A San Francisco federal appeals court heard arguments today in an activist lawsuit seeking to ban National Security Letters, or NSLs, as unconstitutional. NSLs are one of the more controversial tools used by the FBI to conduct investigations, as they include a gag order preventing the recipient from talking about the fact that they got an NSL.

The Electronic Frontier Foundation filed a lawsuit challenging the NSLs as unconstitutional in 2011, well before the Snowden disclosures about widespread surveillance. Their two clients are unnamed, but one is a telecom company and one is an Internet company. The two "service providers" want to speak out about the fact that they received letters, but can't. In April of last year, they won a stunning victory, when US District Judge Susan Ilston agreed with EFF that the letters are unconstitutional. The gag order stopping EFF's clients from discussing "controversial government powers" violates the First Amendment, Ilston ruled.

The government has appealed the proceeding. Today, almost 19 months after Ilston's order came out, a three-judge appeals panel heard arguments from both sides.

DOJ: Follow the 2nd Circuit

Department of Justice appellate lawyer Douglas Letter urged the judges to follow the lead of the 2nd Circuit, which heard an earlier case challenging NSLs, Doe v. Mukasey. That ruling tweaked, but didn't shut down, the non-disclosure rules around NSLs. The FBI and other investigative agencies are following those rules, he said.

"Would there be any consequences if the FBI decided not to follow them?" asked Judge Sandra Ikuta.

"There very well could be," answered Letter.

"Could be or would be?" asked Ikuta.

"We cannot enforce NSLs unless we follow the procedure set out by the 2nd Circuit," said Letter.

Then Judge Randy Smith expressed his concern that the 2nd Circuit rules weren't good enough. They still don't provide for any clear end to the gag orders.

"Remember, there are thousands of NSLs issued a year," said letter. "This is such a useful tool in counter-espionage, counter-intelligence... we can't look at every single one. If the recipient wants to speak, they can trigger the judicial review mechanism. Overwhelmingly, they do not want to speak."

"Do we really know that?" asked Ikuta.

EFF: “Can't talk with gravitas”

When EFF's Kurt Opsahl had his chance at the podium, he strenuously disagreed with the idea that most recipients of NSLs were happy just keeping quiet about it.

"More and more service providers are releasing transparency reports," he pointed out. "These are aggregate numbers of the types of legal processes they receive. Many would like to say what NSLs they receive."

Because of the gag order, Opsahl's clients are limited from contributing to an important public debate, he said. "They can't talk with gravitas, by saying, 'I am the recipient of an NSL,' or talk about how it affected them," he said.

The 2nd Circuit rules in place don't just stop the NSL recipient from speaking on national security issues, said Opsahl. In the government's view, if someone talks about receiving an NSL, that could affect "diplomatic relations," and that's part of national security.

"The government has fretted that other governments would look askance at the US, because of its lack of secrecy," said Opsahl.

Parts of the 2nd Circuit opinion were made moot by later Congressional action, and the judges would do best to consider it as an "advisory position."

On rebuttal, Letter delved into the transparency reports that Opsahl had brought up. Service providers are already allowed to disclose in wide ranges when they receive NSLs; for example, they can disclose if they received between 0 and 249 NSLs. In earlier years, they were limited to bands of a thousand; for instance, Google has disclosed it received between 0 and 999 NSLs each year between 2009 and 2012.

The arguments ended after nearly one hour. The judges had held open the idea of having a closed session after the public debate to discuss confidential material, but elected not to.

Listing image by Ken Lund via Flickr