EFF Report Shows FBI Is Failing to Address First Amendment Harms Caused By National Security Letters

EFF has long fought to end the FBI’s ability to impose gag orders via National Security Letters (NSLs). They violate the First Amendment and result in indefinite prohibitions on recipients’ ability to speak publicly about controversial government surveillance powers. Records and data released by the FBI earlier this year confirm that, despite congressional reforms in 2015, the vast majority of NSL recipients remain gagged. What’s more, the FBI has not taking meaningful steps to dissolve those gag orders.

Today, EFF is publishing “The Failed Fix to NSL Gag Orders,” a new report based on an in-depth analysis of records EFF obtained after we won a Freedom of Information Act lawsuit earlier this year. Our report is based on records we obtained that identified more than 700 NSL recipients that the FBI had freed from lengthy gag orders, the subject of a front-page New York Times story in September.

As the Times reported, those records showed that in addition to Internet companies, the leading credit reporting agencies are frequent recipients of NSLs.  But these credit agencies have been entirely silent about NSLs, even after the FBI explicitly permitted them to speak.  Today, Senators Elizabeth Warren, Rand Paul, and Ron Wyden sent a letter to Experian, Equifax, and Transunion, expressing alarm about the companies’ silence and seeking more information about how this frequently used national security investigatory authority affects Americans’ credit histories and other sensitive records.

EFF’s analysis of the records obtained in our FOIA suit concludes that absent further judicial or legislative intervention, the FBI will continue to violate the First Amendment rights of NSL recipients. As we write in the report, “when left to its own discretion, the FBI overwhelmingly favors maintaining gag orders of unlimited duration.” Our findings suggest even though Congress directed the FBI to reducing the number of these gag orders, the Bureau’s internal procedures “do not meaningfully reduce the large numbers of de facto permanent NSL gag orders, failing First Amendment scrutiny. They also fall short of adequately safeguarding recipients’ First Amendment rights. And as the records and data EFF obtained in its FOIA suit show, the FBI is unlikely to make progress in ending those gags without further direction by Congress or the courts.”

Accordingly, the report includes recommendations for how to fix this urgent problem. We’re pleased that Sens. Warren, Paul, and Wyden are looking into the matter, and we hope Congress takes up the larger issue of NSL reform soon.