3 October 2011, ODNI: FISC: Re Government's Ex Parte Submission of Reauthorization Certifications (Memorandum Opinion, Order) (PDF)
NOV. 14, 2014
Justice Dept. Apologizes for Inaccuracy in National Security Letters Case
By CHARLIE SAVAGE
WASHINGTON -- The Justice Department has apologized  to a federal appeals court for providing inaccurate information about a central issue in a case challenging the constitutionality of a disputed law-enforcement power known as national security letters.
The letters are a kind of subpoena that the F.B.I. can issue without court oversight. The case centers on the constitutionality of a gag rule that forbids companies from disclosing whether they have received such letters.
The Justice Department said it had misled the court by incorrectly saying that telecommunications companies were permitted to disclose that they had received at least one such letter seeking records about a customer. In a letter unsealed this week, the department said that the misstatement was "inadvertent."
It is the latest in a series of inaccurate statements that the executive branch has made to other branches of government about surveillance rules and practices, many of which have come to light during the scrutiny on data collection that came after the leaks last year by the former intelligence contractor Edward J. Snowden.
Even before Mr. Snowden's leaks, the Electronic Frontier Foundation filed a lawsuit challenging the constitutionality of the letters on behalf of an unnamed telecommunications provider. In March 2013 a Federal District Court judge in San Francisco struck them down, ruling  that the gag provision violated the First Amendment.
The Obama administration appealed to the Court of Appeals for the Ninth Circuit, which heard oral arguments  last month. In the arguments, Kurt Opsahl, a lawyer for the foundation, emphasized that recipients of such letters could not participate with authority in the public debate because they could not describe their experiences, because that would reveal that they had received at least one letter.
The Justice Department recently began permitting companies to say how many national security letters they had received, but only in broad bands like "between 0 and 999." As a result, they cannot confirm that they have received any, because even those in the lowest band might have received zero.
But during the oral arguments, a Justice Department lawyer, Douglas Letter told the appeals court that Mr. Opsahl's claim that companies could not fully participate in public debate was not true because a firm could say that it was in the lowest band, and go on to say "and we think the government is asking for too much in many of the N.S.L.'s we have received."
While providers are limited in commenting about the quantity they received, Mr. Letter added, "There is absolutely no ban on them commenting on the quality of those they received."
After the arguments, Cindy Cohn, the legal director of the Electronic Frontier Foundation, wrote a letter to the Justice Department saying that it appeared to be changing its rule, and listed a variety of comments her client would like to make in public in light of what Mr. Letter said was permissible.
But the Justice Department wrote to the Ninth Circuit saying that Mr. Letter had inadvertently misstated the rule. In fact, so long as a firm has received fewer than 1,000 national security letters, it may not disclose whether it had received any at all, the letter said.
"We regret this inadvertent inaccuracy and apologize for any confusion that may have been caused," wrote Jonathan H. Levy, a Justice Department lawyer, in the letter.
In a once-secret ruling in October 2011 by the Foreign Intelligence Surveillance Court, which the Obama administration declassified after Mr. Snowden's leaks, Judge John D. Bates chastised  the executive branch for having misled the court on at least three occasions about how various N.S.A. surveillance and data-collection programs worked.
In 2012, during another lawsuit challenging the N.S.A.'s warrantless surveillance program under the FISA Amendments Act, the Justice Department successfully urged the Supreme Court to dismiss the case because the plaintiffs could not prove they had been wiretapped.
The department told the justices that doing so would not prevent judicial review of the law because prosecutors would tell criminal defendants that they faced evidence derived from such eavesdropping, and they would have standing to challenge it. But it emerged last summer that prosecutors' actual practice  had been to conceal the origins of such evidence from defendants.
And during Senate testimony in March 2013, the director of national intelligence, James R. Clapper, said the National Security Agency did not deliberately collect records of any type about millions of Americans. Three months later, Mr. Snowden's leaks brought to light the fact that the agency was systematically collecting calling records of Americans in bulk.