A court filing unsealed late Wednesday shows that the U.S. Department of Justice (DOJ) made a highly misleading argument to an appeals court in October during a hearing on the constitutionality of National Security Letters (NSLs).

On October 8, the Electronic Frontier Foundation argued before the United States Court of Appeals for the Ninth Circuit that provisions in the USA PATRIOT Act that prohibit service providers from discussing NSLs they may have received violates the First Amendment. During the hearing, the judges’ questioning addressed concerns that the government is using its NSL authority to stifle recipients’ constitutionally protected right to comment on the government’s actions. But DOJ Attorney Douglas Letter countered that these companies are free to discuss the “quality” of NSLs letter they received from the FBI—a claim that contradicted the government’s prior position and turned out not to be true.

Following the hearing, EFF’s clients requested that the DOJ reconcile the statement Letter made to the court with the department’s longstanding contention that companies could not discuss having received NSLs at all. In response, the DOJ filed a letter with the court admitting that Letter’s statements were incorrect, reaffirming its position that the broad gag includes any statement about the NSLs they have received. The DOJ also apologized to the court.

EFF Legal Director Cindy Cohn issued the following statement in response to the retraction:

EFF’s clients have consistently challenged the indiscriminate use of gag orders in combination with National Security Letters. In particular, they have challenged the government’s contention that NSL recipients can’t even use their experiences receiving overbroad NSLs to push for reform in Congress or in the broader public debate. This is especially the case now that the USA FREEDOM Act, which has some limited NSL reform, is going to be discussed in the Senate. At the oral argument, the judges were very concerned that the government is using its NSL authority to stifle recipients’ constitutionally protected right to comment on the government’s actions. We were surprised to hear, in response to those concerns, the government retreat from its position that the NSLs gags prevent recipients from talking about "very fact of having received" an NSL. When we wrote to the government asking if this new position meant that our clients could indeed talk about the quality of the NSLs they have received, the government retracted its statements to the court and apologized. But it's troubling that we had to raise the issue before the government addressed it and that it seems the government was willing to let the court believe that the gag was narrower than it actually is in order to win the case.

EFF represents two companies challenging NSLs—a telecom company and an Internet company. The names of these companies remain under seal, as the government continues to insist that even identifying them might endanger national security. In March 2013 a federal district court judge in San Francisco agreed with EFF and ruled the NSL provisions unconstitutional, barring future NSLs and accompanying gag orders. That ruling was stayed pending appeal, however, and the district court has subsequently enforced separate NSLs—including NSLs issued to both EFF clients—and indicates that it will continue to do so until the Ninth Circuit rules on EFF’s challenges.

Here's what Doug Letter originally told the court (mp3 available here):

There is a category that the deputy attorney general provided that recipients can make disclosures and there is a category of 0-249 so recipients can disclose that. They’re allowed to disclose within these bands. And they can fully participate in the public debate, they can say as we have disclosed we’re in that band 0-249 and it can say the very things that [EFF Senior Staff Attorney Kurt Opsahl] said they can’t. They can say and we think the government is asking for too much in many of the NSLs we received and we want to talk to our fellow recipients and see if they too have felt that there’s too much and we think Congress ought to do something about that. They can do all of that. There’s nothing that says that they can’t comment, they’re allowed to make specific comments about quantity, there’s absolutely no ban on them commenting on the quality of those they’ve received.

Here's an excerpt from the subsequent retraction:

In the course of discussing disclosures described in this letter, approximately 49 minutes into the Court's recording of the argument, government counsel indicated that if a company discloses that it is in one of these two bands starting with zero, it could publicly discuss the fact that it had received one or more NSLs and could discuss the quality of the specific NSL(s) that it had received. That suggestion was mistaken. The district court correctly noted that “the NSL nondisclosure provisions . . . apply, without distinction, to both the content of the NSLs and to the very fact of having received one."

For the full text of the Justice Department's letter:

https://www.eff.org/document/governments-letter-re-misstatement-oral-argument