National Security Letters: Court Upholds FBI's Ability To Bar Companies From Telling Customers Of Data Requests

Privacy advocates suffered a setback after a California appeals court panel ruled to allow the FBI to continue issuing National Security Letters (NSL) to gain access to customer data stored by tech companies.

The case presented to a panel of three judges at the Ninth U.S. Court of Appeals in San Francisco challenged NSLs sent to content delivery network Cloudflare and progressive telecommunications company Credo Mobile.

Read: Government Surveillance: US Company Balked At NSA Data Demand

The letters from the FBI required the companies not to inform users of the request for data, which the companies objected to on First Amendment grounds. The panel of judges ruled the letters and additional non-disclosure requirements do not violate the First Amendment right of the companies.

Cloudflare and Credo Mobile filed the case in an effort to fight against the practice of issuing gag orders to companies when requesting user data and communications.

NSLs are often used by law enforcement to compel companies to provide customer data without acquiring a warrant. Those letters are often accompanied by gag orders that prevent companies from disclosing the information requests to their customers for a certain period of time—often indefinitely.

Tech companies are not alone in their attempts to push back against the NSLs, which require them to surrender user data and provide access to law enforcement. Privacy advocates who believe users have the right to know when their personal information is being accessed have also pushed for law enforcement to end the use of the ongoing gag orders.

Read: FBI Gag Orders: FBI Secret Subpoenas To Collect User Data From Tech Companies Dropped 5 Percent In 2016

“We are disappointed in the Ninth Circuit’s decision and are considering our options for next steps,” Credo Mobile CEO Ray Morris said in a statement provided to International Business Times.

“At Credo, we know what an uphill battle challenging these gag orders can be and feel that the court missed an opportunity to protect the First Amendment rights of companies that want to speak out in the future.”

The effort to push back against NSLs has gained steam in recent years, as companies have become more willing to push back against government agencies making requests for data.

Earlier this year, Microsoft won the right to continue a lawsuit against the U.S. Department of Justice on behalf of its customers over ongoing gag orders that effectively prevented the company ever from informing a user of a government investigation.

Adobe also succeeded in a challenge over an indefinite gag order, which a federal judge determined was unnecessary and overreaching. Twitter likewise has been an outspoken opponent of the secret subpoenas. The social network won a suit over a government demand to reveal the identity of an anonymous user who had criticized the president.

Earlier this year, it was revealed at least one tech company in the U.S. refused to comply with a NSL request, marking only the second instance such a refusal has occurred.

According to figures published by the Office of the Director of National Intelligence this year, the FBI’s reliance on NSLs has decreased in recent years. The agency sent 12,150 letters in 2016, down from 12,870 last year and significantly lower than its peak of 56,507 requests in 2004.