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National Security Letter Gag Order FOIA

Last Update: May 9, 2012

What's at Stake

Under the Patriot Act, the FBI has the authority to issue “national security letters” (NSLs) to internet service providers, credit card companies, cell phone providers, and others, requiring that they hand over information about their customers if it is “relevant” to a counterterrorism or counter-intelligence investigation.

Summary

In 2011, the FBI issued 16,511 NSL requests.

The FBI also has the authority to impose gag orders on NSL recipients, prohibiting them from disclosing that the government sought or obtained information from them. In 2004, the ACLU challenged the government’s ability to silence recipients of NSLs using gag orders. By imposing these gag orders, the FBI cloaked the use (and abuse) of its NSL authority in near-blanket secrecy. In a landmark ruling, a federal appellate court held in 2008 that the gag order provisions were unconstitutional. The Court held that the government could fix part of the problem by adopting a “reciprocal notice” policy. Under the policy, the FBI would inform NSL recipients of their right to challenge gag orders. If a recipient indicated an intent to do so, the FBI would initiate court proceedings to prove that the gag order was necessary. In the course of those court proceedings, judges would actually consider the necessity for secrecy—rather than simply defer to the FBI’s view that secrecy was necessary.

In March 2011, we filed a request under the Freedom of Information Act (FOIA) to find out whether the FBI had implemented the reciprocal notice policy, and in September 2011 we filed a lawsuit to enforce the request. In response to our lawsuit, the FBI released two batches of documents (see below). One of the documents by the FBI confirms that the FBI has in fact adopted the reciprocal notice policy. (Based on that confirmation, we terminated the case in November 2012).

The FOIA Request:
ACLU FOIA Request (Mar. 15, 2011)

Documents Released:
• FBI
April 11, 2012 — Release Cover Letter
Letter to Patrick Leahy (Aug. 15, 2011)
Letter to Robert S. Mueller (June 12, 2011)
Letter to Patrick Leahy (Dec. 9, 2010)
Letter to Eric Holder (Mar. 17, 2010)
Letter to Nancy Pelosi (May 4, 2009)
May 10, 2012 — Release Cover Letter
Correspondence re NSL Bill 1800
FBI Responses to Senate Judiciary Committee
Emails re Gag Order Decision in Doe v. Mukasey
Emails re Mueller Testimony
Emails re Gag Order Decision in Doe v. Muskasey-2
Correspondence re S. 1686 and Patriot Act Extension Act of 2009
NSL Update Powerpoint
Emails re NSL Section of the DIOG
Emails re OIG Review of NSLs
Misc. Emails re NSLs
Correspondence re Assessment of S. 193
FBI Memo re NSL Training
FBI Corporate Policy Notice Delegation of an Acting Official to Issue National Security Letters
FBI Memo re Procedures for Collection, Use, and Storage of Information Derived from National Security Letters
NSL Templates

District Court Proceedings:
Complaint (Sept. 14, 2011)
• FBI
First Stipulation re: FBI’s searching for documents (Dec. 16, 2011)
Second Stipulation re: FBI’s processing of documents (Feb. 15, 2012)
• At a hearing on May 4, the Court extended the FBI’s processing deadline to May 11, 2012.
• DOJ
First Stipulation re: DOJ’s searching for and processing of documents (Dec. 16, 2011)

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