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9th Cir. Hears Oral Arguments in National Security Letter Case

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By Mark Wilson, Esq. on October 10, 2014 2:05 PM

Earlier this week, we mentioned In re National Security Letter was on appeal to the Ninth Circuit. In the context of Twitter's lawsuit against the DOJ, National Security Letter was Twitter's best chance for success, with Judge Susan Illston having agreed that NSLs are unconstitutional.

As it happens, a Ninth Circuit panel heard oral arguments in National Security Letter two days ago. How it went could be a gauge of Twitter's success in its suit against the DOJ.

Douglas Letter, for the DOJ

Douglas Letter had the advantage of a prior case from the Second Circuit, Doe v. Mukasey, where the Second Circuit said the NSL portion of the PATRIOT Act was unconstitutional -- but at the same time outlined broad procedures the government could take to make NSLs more constitutional. The government has followed these procedures ever since, said Letter.

Judges Sandra Ikuta and Mary Murguia wondered where the regulations were. Letter said there were no regulations, only the statute itself and Mukasey, which he said the FBI follows as part of their "internal directives." When asked if there were consequences should the FBI not follow those directives, Letter said "there very well could be." He never said that there would be.

Judge N. Randy Smith, who tries to play the country lawyer with "Columbo"-esque feigned naivete, was concerned (as he usually is when asking a question) about the scope of the NSLs. When do they end? An NSL recipient is "gagged" for as long as the government wants, and the recipient has the burden of getting the gag lifted. Especially worrisome to Smith was the fact that a recipient must wait at least a year after petitioning to have the NSL lifted before taking any action. How is that narrow tailoring?

Letter responded that, basically, the government issues so many NSLs that it wouldn't be administratively feasible to check every case out in less than a year before deciding to lift the NSL.

Kurt Opsahl (Deputy General Counsel at EFF), for Unnamed Service Providers

The other parties in this case are two unnamed Internet service providers -- unnamed because they can't even acknowledge they received NSLs. Opsahl said their First Amendment rights were abrogated because they can't participate in the national debate on NSLs with the same gravitas they could if they were able to say they received NSLs.

Opsahl also responded to Letter's contention that service providers don't want to speak. Actually, he said, they do, as evidenced by the transparency reports they put out describing how many NSLs they receive, up to the allowable level of specificity (which is in batches of 1,000). Essentially, he said, the NSL provision is a licensing scheme in which the government allows certain people to speak (ISPs that received over 1,000 NSLs) and others not to (ISPs that received fewer than 1,000 NSLs). ISPs aren't allowed to reveal whether they received zero NSLs.

Opsahl also responded to Letter's analogizing an NSL to a grand jury gag; grand jurors are gagged until a judge authorizes them to speak. Opsahl said the major difference was that juries are organs of the court, whereas the NSLs are issued and certified by the executive branch alone.

How'd It Go?

Actually, it's hard to say. The questions from the panel didn't seem deeply probing or critical. Smith's question to Letter about the scope of the NSL gag was the most critical question either side received. The judges' questions largely involved clarifying things like procedure or standard of review. This could be an indication that they're trying to tread lightly and not upset the PATRIOT Act too much.

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