The Justice Department refuses to turn over records on the FBI’s compliance with requirements that it periodically review and lift national security letter gag orders, the Electronic Frontier Foundation claims in a new lawsuit.
National security letters are secret government demands directing companies to turn over data on private citizens without a warrant. The letters usually come with gag orders that prevent phone companies, internet service providers, and other firms from warning the targets of investigations. The gag orders also forbid the organizations from releasing transparency reports about the exact number of letters they receive.
The government has issued nearly 500,000 such letters since the USA Patriot Act authorized their use in 2001, and it continues to issue more than 12,000 each year, according to a 2014 report by the Office of the Inspector General.
After U.S. District Judge Susan Illston found imposing indefinite gag orders unconstitutional in a 2013 ruling, Congress enacted reforms to the program in 2015.
Under FBI procedures adopted in line with the USA Freedom Act of 2015, the bureau must review the need to keep gag orders in place when each letter is issued, three years after each issuance, and when an investigation is closed. The bureau’s record-keeping system is also designed to generate reminders to review the gag orders, according to the FBI procedures.
According to Wednesday’s lawsuit, digital civil rights group the Electronic Frontier Foundation filed a Freedom of Information Act request in September seeking data on the number of gag orders reviewed under the new rules, the number of reminders generated and the number of termination notices sent to recipients. It also asked how long it takes for a review to begin after a reminder is generated.
Even though companies like Twitter and Google released redacted versions of letters after gag orders were lifted over the last year, the foundation says the FBI told it in March that it was unable to find any records responsive to its request.
“We would have expected the FBI to respond to our FOIA request with records about the gag orders that we know have been lifted,” Aaron Mackey, a lawyer for the foundation, said in a statement. “The FBI’s response that it has no such records raises serious questions about whether the bureau is following Congress’ command to review NSL gag orders.”
Mackey also called the gag orders on national security letter recipients “a draconian and overzealous use of surveillance tools” that hinders public debate about government spying programs.
The lawsuit, filed in San Francisco federal court, seeks an injunction ordering the FBI to turn over the requested records.
“The public has an interest in knowing whether these procedures are being followed, and our FOIA request seeks to shed light on if the FBI is doing so,” Andrew Crocker, a staff attorney representing the foundation in its FOIA lawsuit, said in a statement.
Reforms enacted in 2015 allow companies to disclose a range of how many national security letters they receive, such as 0-499, but companies may not disclose the exact number of letters received or details on the type of information sought by the FBI.
In March, Crocker urged a panel of Ninth Circuit judges to overturn Illston’s 2015 ruling finding the use of national security letters and gag orders constitutional after Congress reformed the program. That appeal is still pending.
The Department of Justice did not immediately respond to an email seeking comment on Wednesday.
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