EFF Report Shows FBI Is Failing to Address First Amendment Harms Caused By National Security Letters

By Andrew Crocker and Aaron Mackey

EFF has long fought to end the FBI’s ability to impose gag orders via National Security Letters (NSLs). They violate the First Amendment and result in indefinite prohibitions on recipients’ ability to speak publicly about controversial government surveillance powers. Records and data released by the FBI earlier this year confirm that, despite congressional reforms in 2015, the vast majority of NSL recipients remain gagged. What’s more, the FBI has not taking meaningful steps to dissolve those gag orders.

Today, EFF is publishing “The Failed Fix to NSL Gag Orders,” a new report based on an in-depth analysis of records EFF obtained after we won a Freedom of Information Act lawsuit earlier this year. Our report is based on records we obtained that identified more than 700 NSL recipients that the FBI had freed from lengthy gag orders, the subject of a front-page New York Times story in September.

As the Times reported, those records showed that in addition to Internet companies, the leading credit reporting agencies are frequent recipients of NSLs.  But these credit agencies have been entirely silent about NSLs, even after the FBI explicitly permitted them to speak.  Today, Senators Elizabeth Warren, Rand Paul, and Ron Wyden sent a letter to Experian, Equifax, and Transunion, expressing alarm about the companies’ silence and seeking more information about how this frequently used national security investigatory authority affects Americans’ credit histories and other sensitive records.

EFF’s analysis of the records obtained in our FOIA suit concludes that absent further judicial or legislative intervention, the FBI will continue to violate the First Amendment rights of NSL recipients. As we write in the report, “when left to its own discretion, the FBI overwhelmingly favors maintaining gag orders of unlimited duration.” Our findings suggest even though Congress directed the FBI to reduce the number of these gag orders, the Bureau’s internal procedures “do not meaningfully reduce the large numbers of de facto permanent NSL gag orders, failing First Amendment scrutiny. They also fall short of adequately safeguarding recipients’ First Amendment rights. And as the records and data EFF obtained in its FOIA suit show, the FBI is unlikely to make progress in ending those gags without further direction by Congress or the courts.”

Accordingly, the report includes recommendations for how to fix this urgent problem. We’re pleased that Sens. Warren, Paul, and Wyden are looking into the matter, and we hope Congress takes up the larger issue of NSL reform soon.

This article was sourced from EFF.org

Andrew Crocker is a senior staff attorney on the Electronic Frontier Foundation’s civil liberties team. He focuses on EFF’s national security and privacy docket, as well as the Coders’ Rights Project. While in law school, Andrew worked at the Berkman Center for Internet and Society, the American Civil Liberties Union’s Speech, Privacy, and Technology Project, and the Center for Democracy and Technology. He received his undergraduate and law degrees from Harvard University and an M.F.A. in creative writing from New York University. His interests include Boggle and donuts.

Aaron Mackey works on free speech, privacy, government surveillance and transparency. Before joining EFF in 2015, Aaron was in Washington, D.C. where he worked on speech, privacy, and freedom of information issues at the Reporters Committee for Freedom of the Press and the Institute for Public Representation at Georgetown Law. Aaron graduated from Berkeley Law in 2012, where he worked for EFF while a student in the Samuelson Law, Technology & Public Policy Clinic. He also holds an LLM from Georgetown Law. Prior to law school, Aaron was a journalist at the Arizona Daily Star in Tucson, Arizona. He received his undergraduate degree in journalism and English from the University of Arizona in 2006, where he met his amazing wife, Ashley. They have two young children.

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