[Infowarrior] - Appeals Court Narrows National Security Secrecy, Limits Oversight

[Richard Forno]

Court Narrows National Security Secrecy, Limits Oversight
By David Kravets EmailDecember 15, 2008 | 4:05:34 PM

http://blog.wired.com/27bstroke6/2008/12/court-narrowing.html

A unanimous federal appeals court on Monday narrowed the scope of when  
telecommunications companies must keep secret so-called self-issued  
search warrants requested of them by the Federal Bureau of  
Investigation.

But the court limited when it was necessary for judges to review a  
secrecy order.

The appeal concerned various counter-terrorism statutes and the 2006  
USA Patriot Act, which allows the FBI to demand, among other things,  
information concerning telephone and e-mail communications without a  
warrant under what is known as a national security letter, or NSL. The  
law forbids the companies to disclose to the target that the bureau  
has sought information concerning their telephone and e-mail traffic.

Ruling on American Civil Liberties Union challenge to the gag order  
provision, the 2nd U.S. Circuit Court of Appeals concluded 3-0 that  
secrecy is required on a carrier if the FBI certifies that disclosure  
of the NSL "may result in an enumerated harm that is related to an  
authorized investigation to protect against international terrorism or  
clandestine intelligence activities."

That phrasing dramatically limited the parameters of when a gag order  
was automatically required. Until the court's ruling Monday, the  
standard for secrecy was required when the FBI asserts that disclosure  
of a NSL may result in "a danger to the national security of the  
United States, interference with a criminal, counterterrorism, or  
counterintelligence investigation, interference with diplomatic  
relations, or danger to the life or physical safety of any person."

The ACLU -- which sought to limit the rule in a bid to allow targets  
the ability to challenge the NSLs -- maintained the secrecy rule  
violated the First Amendment rights of the telecommunication companies.

"The nondisclosure requirement," Judge Jon O. Newman wrote (.pdf) for  
the appeals court, "is not a typical prior restraint or a typical  
content-based restriction warranting the most rigorous First Amendment  
scrutiny."

Judge Newman's 55-page opinion was joined by judges Guido Calabrese  
and Sonia Sotomayor.

In 2005, there were 40,000 national security letters, or NSLs, sent to  
carriers, the court noted. The letters often demand phone numbers  
dialed or received and outgoing and incoming e-mail addresses of  
selected individuals. The contents of such communications usually are  
not authorized under a National Security Letter.

In the case decided Monday, the appeals court greatly diverged from  
the lower courts when it comes to how much judicial oversight is  
required, if any.

A New York federal judge had ruled that the law's lack of language  
requiring judicial oversight of the secrecy provisions accorded the  
FBI too much power. The lower court declared the secrecy provision  
unconstitutional, and demanded a judge review every gag order. That  
decision was stayed pending appeal.

But on Monday, the New York-based appellate court agreed with the  
government that it should not be required to "initiate litigation" and  
obtain judicial approval of every secrecy order, which number in the  
tens of thousands. Instead, the court noted that judges must review  
the validity of a secrecy order, in private if necessary, only when a  
telecommunications company challenges the gag order under what the  
court termed a "reciprocal notice procedure."

Yet the "reciprocal notice procedure" may have little value in the  
real world -- meaning tens of thousands of customers may never know  
personal information, including banking records, were disclosed to the  
FBI. As the appeals court noted, telecommunication companies have only  
challenged secrecy orders three times.

The court wrote:

     The government could inform each NSL recipient that it should  
give the government prompt notice, perhaps within 10 days, in the  
event that the recipient wished to contest the nondisclosure  
requirement. Upon receipt of such notice, the government could be  
accorded a limited time, perhaps 30 says, to initiate a judicial  
review to maintain the nondisclosure requirement, and the proceeding  
would have to be concluded within a prescribed time, perhaps 60 days.

     … The NSL could also inform the recipient that the nondisclosure  
requirement would remain in effect if the recipient declines to give  
the government notice of an intent to challenge the requirement or,  
upon a challenge, if the government prevails. If the government is  
correct that very few NSL recipients have any interest in challenging  
the nondisclosure requirement (perhaps no more than three have done so  
thus far), this 'reciprocal notice procedure' would nearly eliminate  
the government's burden to initiate litigation.