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Court Limits FBI in Issuing Gag Orders

Updated on August 12, 2016

Free Speech Advocates Say FBI Goes Too Far

A federal judge’s recent ruling changes how the FBI can use a law that allows the agency to require secrecy from corporations when the government asks them for information on national security cases.

The FBI can demand secrecy under the national security letters (NSLs) authorized by the USA Freedom Act of 2015.

They are administrative subpoenas that do not require judicial approval. The subpoenas forbid the corporations from disclosing the fact they were served with NSLs, which are essentially the same as gag orders.

U.S. District Judge James E. Boasberg for the District of Columbia said the rules allowing the gag orders contain several large loopholes. He also said they give the court some pause about their constitutionality.

The American Civil Liberties Union says the NSLs violate First Amendment rights of free speech.
Members of Congress who approved the USA Freedom Act generally agreed NSLs were an extreme measure but necessary for national security during the war on terrorism.

Congress tried to build in a safeguard against free speech violations by requiring periodic reviews of any ongoing need for gag orders.

But Judge Boasberg said the end dates for gag orders in NSLs were too indefinite.

Boasberg’s ruling followed a lawsuit by a company that had been issued an NSL by the FBI. The name of the company was redacted in court filings.

The judge required the FBI to more frequently reconsider the need for the gag orders.
The FBI can legally issue NSLs when corporate records are relevant to an investigation to protect against terrorism. Typically, the records include bank records and Internet protocol addresses.

Boasberg wrote that he was not suggesting changing all the FBI’s procedures for the 16,000 NSLs issued annually.

Court Orders Restrictions on FBI Gag Orders

Court Orders Restrictions on FBI Gag Orders
Court Orders Restrictions on FBI Gag Orders

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