The FBI doesn’t run afoul of the First Amendment by muzzling companies whose customers fall under investigation, a federal appeals court ruled Monday.
A three-judge panel of the Ninth Circuit Court of Appeals upheld disclosure rules involving the FBI’s use of administrative subpoenas known as National Security Letters (NSLs), leaving in place a policy that lets government investigators issue them alongside gag orders prohibiting recipients from acknowledging their existence.
The FBI issues tens of thousands of NSLs each year to communication providers in order to compel customer records and has argued that letting recipients disclose details about the requests could be detrimental to national security.
The Electronic Frontier Foundation, a California-based digital rights group, sued the Justice Department in San Francisco federal court on behalf of two NSL recipients, internet firm Cloudflare and phone company CREDO, in hopes of having either notify their users about being ordered to silently surrender customer data. It won the case in District Court but the ruling was stayed pending the outcome of the government’s appeal.
“If the nondisclosure requirement is content based, we then consider whether it survives strict scrutiny,” Ninth Circuit Judge Sandra Ikuta wrote for the unanimous panel Monday.
The “nondisclosure requirement imposes a content-based restriction that is subject to, and withstands, strict scrutiny,” she added.
“The nondisclosure requirement in the NSL law therefore does not run afoul of the First Amendment,” the panel ruled.
Electronic Frontier Foundation attorney Andrew Crocker described the court’s ruling as “disappointing,” but did not say whether an appeal will be filed before the U.S. Supreme Court, Reuters reported.
“In 2017, it’s really unsupportable to not give internet companies like my clients a full First Amendment set of rights that they would give to any other speaker,” Mr. Crocker told Gizmodo. “The implicit assumption in this ruling is that they don’t have this set of rights.”
The Justice Department declined to comment, Reuters reported.
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