Warrant Canaries and Disclosure by Design: The Real Threat to National Security Letter Gag Orders
22 Pages Posted: 22 Dec 2014
Date Written: December 19, 2014
Since the 1980s, the FBI has issued documents referred to as National Security Letters (NSLs), which demand data from companies — including financial institution records and the customer records of telephone companies and communications service providers — for foreign intelligence investigations. The use of the letters increased dramatically after the attacks of September 11, 2001 and the USA PATRIOT Act’s expansion of the FBI’s statutory NSL authority. But these letters were rarely publicized or publically challenged. They often include gag orders that require recipients not to reveal the contents of the letter, or even its existence. After the leak of classified information by Edward Snowden in 2013, however, numerous corporations were criticized for turning over user data to the government. Communications service providers suddenly became more vocal about challenging the gag orders that accompany NSLs. This Essay summarizes the legal challenges to NSL gags currently underway in the courts and recommends that legal scholars shift focus to extrajudicial measures that communications service providers are adopting unilaterally to cabin the scope of the government’s NSL gag authority. The Essay argues that these extrajudicial measures reframe the legal issues that NSLs raise, and could make ongoing legal challenges to NSL gags obsolete before courts have a chance to decide them.
Keywords: Warrant Canary, Transparency Report, National Security Letter, Gag Order, First Amendment, Prior Restraint
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