EFF Sues FBI Over Withheld NSL Guideline Documents

from the we're-sorry,-we-thought-you-understood-the-'s'-stood-for-'secret dept

The EFF has been instrumental in assisting ISPs in their fights against National Security Letters and their accompanying gag orders. To date, thanks to the a change in the law (in response to an NSL lawsuit by the EFF and the implementation of the USA Freedom Act) and entities like the EFF applying pressure, the public is finally getting a chance to see what's contained in these warrantless demands for subscriber info.

Hopefully, the new avenues available to ISPs to challenge gag orders will result in a steady stream of released NSLs. More importantly, maybe the forced transparency will result in the FBI dialing back its use of NSLs -- something it does thousands of times a year and, worse, a way to route around FISA Court rejections.

But the FBI isn't ready to give up its NSL-related secrecy yet. According to the FBI, it instituted new rules for NSLs in 2015, partly in response to the USA Freedom Act. These new rules went into effect in 2016. The problem is we have to take the FBI's word for it. It says it's exercising more oversight and control, but the policy change itself is still hiding somewhere at the back of its filing cabinets.

This is one of several documents the EFF is seeking. The FBI isn't interested in handing these over, so it's decided to issue its standard "no documents here" shrug. Unfortunately for the FBI, the EFF knows its way around an FOIA lawsuit.

Following a ruling in EFF’s lawsuit that NSL gags are unconstitutional, Congress enacted reforms in 2015 that require the bureau to review NSLs to determine whether the gag orders are still necessary, and terminate those that are not. The FBI established procedures under which a record keeping system generates reminders—when an NSL investigation closes or reaches the three-year anniversary of its initiation—that the gag order should be reviewed for possible termination. EFF sent a FOIA request to the FBI in September seeking records about the number of NSLs reviewed under these procedures, the number of reminders generated, the number of termination notices sent to NSL recipients, and how long it takes for a review to begin after a reminder is generated. In March the FBI said it had no such records. In a complaint filed today in San Francisco, EFF asked a court to order the FBI to disclose the requested records.

It is impossible to believe the FBI has no responsive records. If this is truly the case, the FBI never implemented the new NSL guidelines it claimed it did, much less write them up. And that only explains the alleged lack of paperwork for one of the EFF's requests. In order to take the FBI's entire non-response at face value, one is forced to assume the FBI has no new guidelines for NSL gag order reviews and/or is operating under the old review standards, which were pretty much nonexistent.

What's likely the case is the FBI has performed a deliberately inadequate search of the database least likely to hold the requested documents. The FBI maintains several data silos -- something that forces FOIA requesters to know the intricacies of the agency's multiple search methods if they hope to lay their hands on FBI documents.

Hopefully the court will smack the FBI around for its refusal to perform a thorough search and order the agency to turn over this information to the EFF. The government will probably put up a bit of fight, as a ruling in the EFF's favor would both expose its new NSL guidelines to the public (potentially making it much easier to trigger a review) and the labyrinthine underpinnings of its document search systems.

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Filed Under: fbi, foia, guidelines, nsl

Companies: eff