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RESEARCH DOCUMENT : National Security Archive Joins Media Groups Versus Unlimited Gag Orders

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National Security Archive Joins Media Groups Versus Unlimited
Gag Orders

Published: May 3, 2019

by Lauren Harper and Tom Blanton

more information, contact:

202-994-7000 or

Brief Argues for Court Review, Time Limits on Secrecy of National Security

Barr v. Redacted Needs A

D.C., May 3, 2019
– The National Security Archive, along with 15 other
media organizations, filed a “friend of the court” brief on April 29 in the lawsuit Barr v. Redacted
challenging the FBI’s authority to issue national security letters (NSLs)
without any judicial oversight and under indefinite gag orders. The letters
demand business records from a wide array of organizations for national
security investigations, and their accompanying gag orders prohibit the
recipient from speaking with anyone about the NSL, often permanently.

The amicus brief argues courts
have put time limits on secrecy before, both by ordering the government to
justify the continued necessity of a nondisclosure provision on an ongoing
basis (In re Nat’l Sec.
Letters, No. 16-518
), and requiring a triennial judicial review for
a nondisclosure provision (Sessions
v. Twitter, Inc.
In re Nat’l Sec. Letters, No. 16-518
), making Barr v. Redacted’s unlimited
time frame an outlier. The brief also underscores that both the media and
recipients of the NSLs have mutually reinforcing First Amendment interests in
contributing to public debate about government surveillance, and that the
media’s role in this area is unique because NSLs often evade both public
scrutiny and review by the courts.

The amicus curiae brief was
filed with the United States Court of Appeals for the Second Circuit, which is
reviewing a lower court decision that held that the FBI’s Termination
Procedures are a “potential backstop to protect First Amendment interests.” The
Archive was represented pro
by Lisa Zycherman of Davis Wright Tremaine and Peter Karanjia
of DLA Piper, the same team that represented the Archive in the Gina Haspel
torture cable case, National Security Archive v. CIA, which forced
the release
of the Haspel torture cables and provided
a chronology
of black site waterboarding supervised by the future CIA

addition to the Archive, the brief was filed on behalf of the American Society
of News Editors, the Associated Press Media Editors, the Association of
Alternative Newsmedia, the Associated Press, the Center for Investigative
Reporting, the Center for Public Integrity, First Look Media Works, Inc., the
Hearst Corporation, the McClatchy Company, the Association of Magazine Media,
the New York Times, Online News Association, the Reporters Committee for
Freedom of the Press, the Society of Professional Journalists, and the
Washington Post.

August 2016 D.C. District Court Judge James E. Boasberg became the first
judge to publicly assess the new gag-order rules mandated by the USA Freedom
Act of 2015. He criticized the
NSLs, specifically faulting “several large loopholes” in the new rules that
would, under various circumstances, allow the NSLs to remain open indefinitely.
Boasberg also faulted the lack of review for “large swaths” of issued NSLs.

2014, an
intelligence panel
 set up by President Obama proposed requiring
judicial approval for issuing NSLs, and cited a 2008
Justice Department Inspector General report
as proof that the 192,499 NSLs
the FBI sent between 2003 and 2006 were extensively misused. The expert
intelligence panel noted, “We are unable to identify a principled reason
why NSLs should be issued by FBI officials when section 215 orders and orders
for pen register and trap-and-trace surveillance must be issued by the [Foreign
Intelligence Surveillance Court],” going on to suggest that a transition should
take place “as soon as reasonably possible.” Then FBI director James Comey spoke
out against the suggestion

have been several victories against NSLs over the years in addition to Sessions v. Twitter, Inc and
In re Nat’l Sec. Letters,
No. 16-518
. The 2004 case Doe
v. Ashcroft 
challenged the constitutionality of the
letters, specifically their non-disclosure provisions, and the resulting ruling
issued by Judge Victor Marrero found the NSLs violate the Fourth
Amendment. This led to revisions of the USA Patriot Act, allowing for greater
judicial review and clarifications to the non-disclosure clauses.

2015 Nicholas Merrill, who ran the small Internet company Calyx, became the
first person
allowed to fully disclose the contents of an NSL he received
from the FBI in 2004. Thanks to a multi-year court battle Merrill’s gag order
was lifted, and revealed
 in 2004 the FBI demanded Merrill “turn over all physical mail
addresses, email addresses and Internet Protocol addresses associated with one
customer’s account, as well as telephone and billing records and anything else
considered to be an ‘electronic communications transactional record.’” The NSL
also demanded cell-tower location data and any “screen
” or online nicknames associated with the customer in question.

Office of the Director of National Intelligence’s most
recent statistical transparency report
on the use of FISA orders and
national security letters during calendar year 2018 shows that there were
10,235 requests filed for 38,872 subscribers’ information last year.

more information on these letters, visit the Archive’s Cyber Vault, which
contains all six of the Office of the Director of National Intelligence’s
Statistical Transparency Reports

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