Bipartisan Members of Congress File Amicus Brief in Support of Legal Challenge to National Security Letter Gag Orders

September 29, 2016
Press Release

WASHINGTON, D.C. Bipartisan Members of Congress this week filed an Amicus Curiae brief in support of a legal challenge to the Department of Justice's use of National Security Letter gag orders and improper implementation of the USA FREEDOM Act.

The brief, filed by U.S. Reps. Zoe Lofgren (D-Calif.), F. James Sensenbrenner (R-Wis.), John Conyers, Jr. (D-Mich.), Anna G. Eshoo (D-Calif.), and Ted Poe (R-Texas) details the members' objections to the manner in which the Department of Justice reviews nondisclosure orders. Reps. Sensenbrenner and Conyers were the lead authors of the USA FREEDOM Act which passed in 2015.

"Although Congress recognizes that the Executive branch is entitled to deference in matters of national security, the FBI's NSL authority is bound by the law and constitutional limits" the brief reads. "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 Amicus argues the following:

1) That Congress made clear in passing the USA FREEDOM Act that non-disclosure obligations should have fixed durations, and that these orders should be reviewed at appropriate intervals to determine whether the facts of the case still support nondisclosure.

However, current Department of Justice review procedures do not fulfill Congress' intent to ensure regular, periodic review. Instead, the process provides at most two reviews: once three years after the iniation of a full investigation, and a second at some "time between the last review and the close of the investigation," which could rage from days to decades. The brief explains this is inconsistent with the letter of the law and intent of Congress.

2) The Department of Justice review procedures violate the First Amendment because they fail to meet strict scrutiny and do not include sufficient procedural safeguards.

NSL recipients are subjected to substantial harm and are prevented from meaningfully participating in public debate or sharing their experienecs with Congress. Due to the flawed review process, this may be the case even when a compelling government interest in nondisclosure no longer exists. As the brief reads, "imposing a perpetual nondisclosure obligation when there is not potential countervailing harm is incompatible with the narrow tailoring requirement of the strict scrutiny standard."

While the number of individals subjected to NSL gag orders has not been determined, reporting suggests it is large. Between 2013 and 2015 the FBI issued over 48,000 letters of which 97% may have been accompanied by nondisclosure orders.

The Amicus brief was filed in support of the plaintiffs of In Re: National Security Letters in the Ninth Circuit Court of Appeals.

The full brief can be viewed here.

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