The Department of Justice’s policies surrounding lengthy gag orders on secret FBI requests for records are unconstitutional, wrote five members of Congress in a legal brief filed Thursday.
When companies or individuals receive these requests, known as national security letters, they are not typically allowed to share any of the content—or even say that they received such a request—except with an attorney. The FBI does not need to consult a judge to file those requests.
“The FBI’s [national security letter] authority is bound by the law and constitutional limits,” reads the brief, which was signed by U.S Representatives Zoe Lofgren (D-Calif.), James Sensenbrenner (R-Wisc.), John Conyers (D-Mich.), Anna Eshoo (D-Calif.), and Ted Poe (R-Texas).“It is [our] view that the rules currently in place for reviewing NSL nondisclosure orders do not meet the requirements of the USA FREEDOM Act and are unconstitutional.”
The Department of Justice’s protracted review procedures for freeing targets of the gag orders violate the First Amendment, they argued in the brief, which was filed in support of a years-long case being waged by the Electronic Frontier Foundation on behalf of an unnamed client.
According to numbers released by the FBI to Congress, the FBI issued nearly 50,000 national security letters between 2013 and 2015—the vast majority of which still have gag orders.
Very few national security letters have ever been disclosed to the public. Rare cases include three such letters published by Yahoo and another disclosed by the host of a small Internet Service Provider, Nicholas Merrill, who fought for that right in court for more than ten years.
Though the White House typically has jurisdiction over matters of national security, the lawmakers argued this was a special case where congressional interpretation of the law is vital, and they believe the Department of Justice’s failure to remove gag orders attached to these letters after extensive periods of time is not in line with the law.
The FBI and the Department of Justice have been criticized in the past for failing to lift gag orders attached to those secret requests, even after investigations have concluded. According to the USA Freedom Act passed in 2015, non-disclosure obligations are meant to be limited in time.