OpenStack 10/07/2017 (p.m.)

• It's A-OK for FBI agents to silence web giants, says appeals court • The Register

  Tags: surveillance state, FBI, NSLs, prior-restraint, 1st Amendment, litigation

  • Gagging orders in the FBI's National Security Letters are all above board and constitutional, a California court has ruled.

    These security letters are typically sent to internet giants demanding information on whoever is behind a username or email address. Crucially, these requests include clauses that prevent the organizations from warning specific subscribers that they are under surveillance by the Feds.

    Cloudflare and Credo Mobile aren't happy with that, and – with the help of rights warriors at the EFF – challenged the gagging orders. Despite earlier successes in their legal battle, the 9th US Circuit Court of Appeals ruled [PDF] on Monday that the gagging orders do not trample on First Amendment rights.

  • The FBI dishes out thousands of National Security Letters (NSLs) every year; they can simply be issued by a special agent in charge in a bureau field office, and don’t require judicial review. They allow the Feds to obtain the name, address, and records of any services used – but not the contents of conversations – plus billing records of a person, and forbid the hosting company from telling the subject, meaning those under investigation can’t challenge the decision.

    It used to be the case that companies couldn’t even mention the existence of the NSL system for fear of prosecution. However, in 2013 a US district court in San Francisco ruled that such extreme gagging violated the First Amendment. That decision came after Google, and later others, started publishing the number of NSL orders that had been received, in defiance of the law.

    In 2015 the Obama administration amended the law to allow companies limited rights to disclose NSL orders, and to set a three-year limit for the gagging order. It also set up a framework for companies to challenge the legitimacy of NSL subpoenas, and it was these changes that caused the appeals court verdict in favor of the government.

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