Appeals court rules FBI demands for personal communications data constitutional

In an anonymous decision on Monday, a federal appeals court’s three-judge panel in San Francisco upheld a lower court decision allowing the FBI to continue the issuance of national security letters (NSLs) to communications companies demanding individual consumer data without user notification.

NSLs are typically sent to network providers and social media companies to gather evidence for investigations on suspected criminal activity. Judges on the 9th U.S. Circuit Court effectively determined the FBI’s practice does not violate free speech rights, ruling that “gag orders” on NSLs are reviewed by federal judges and satisfy the government’s “compelling interest” requirement.

While NSLs themselves do not require judicial oversight, lawmakers added provisions in 2016 which federal courts have since ruled make the FBI practice constitutional. Such civil liberty protections include notifying NSL recipients that the requests can be legally challenged.

“The nondisclosure requirement in the NSL law therefore does not run afoul of the First Amendment,” Judge Sandra Ikuta said in the court’s decision.

Plaintiffs in the case, a mobile phone network company and a content distribution and domain name service company, sued the federal government under the First Amendment for not allowing them to provide notification to their customers that they had received NSLs and were being forced to hand-over personal information to the FBI.

In a similar case in Washington, Facebook Inc. has filed a legal challenge in D.C.’s appeals court to an April decision by a superior court judge, arguing FBI gag orders that accompany NSLs also violate the U.S. Constitution’s First Amendment.

Specifically, Facebook’s lawsuit is based on search warrants issued for three user accounts that apparently contain evidence of plans to disrupt Donald Trump’s presidential inauguration in January, which resulted in the arrest of over 200 people for rioting. A court filing shows the FBI demanded “all contents of communications, identifying information and other records”, for the accounts over a three-month period.

According to the Washington Post, Facebook has said it received approximately 41,000 NSLs in the second half of 2016 and cooperated with 83 percent of those requests.

Electronic Frontier Foundation attorneys, representing plaintiffs in San Francisco’s 9th circuit case, said no determination has been made as to whether an appeal to the U.S. Supreme Court will be filed.


[Reuters] [The Hill] [AP via Washington Post] [Photo courtesy Chip Somodevilla/Getty Images via The Intercept]