Appeals Court Very Concerned About Gag Orders On National Security Letters

from the now-do-something-about-it dept

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On Tuesday, Twitter sued the US government for the right to be more transparent about how many National Security Letters (NSLs) and FISA court orders it had received (even if the answer was zero). On Wednesday the appeal on last year's district court ruling saying that gag orders on NSLs were unconstitutional was heard in California, and the judges sounded quite skeptical of the government's argument . You can hear the ~1 hour hearing on the Court's website (it was supposed to livestream, but then didn't). The case involves a still unnamed service provider who challenged the gag order, represented by the EFF.While questions from judges during oral arguments can often be misleading in terms of where the court eventually lands, at a first pass, the judges certainly sounded fairly skeptical of the DOJ's extreme claims. The idea that it would be impossible for the DOJ/FBI to review the gag order on every NSL? Really? The judges certainly seemed to recognize the general problem with a gag order with no end, and how that could be a very serious restriction on free speech. The government did its usual song and dance about how if it doesn't have this gag order power, people are put in danger, but at least from the hearing, it sounded like the court was skeptical.Of course, now we have to keep waiting, to see what the panel decides. Hopefully it won't take all that long. Some of the judges certainly seemed to express concern about the length of time even this process has taken, so hopefully they will be more efficient in issuing a ruling. From there, it's likely that whoever loses may appeal (either for an en banc hearing by the entire 9th Circuit Appeals Court or to the Supreme Court). This process is still far from over, but it will be important to keep tabs on what happens in this case -- and it will likely impact Twitter's case, and other companies' attempts to be transparent about requests for information from the government.

Filed Under: 9th circuit, free speech, gag orders, national security letters, prior restraint

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