Tech Firms: FBI ‘Gag Orders’ Unconstitutional

By Julian Hattem

Four tech companies claim that the FBI is ignoring their First Amendment rights by barring them from revealing what types of information they turn over to the government.

In courtdocuments unsealed recently, Google, Yahoo, Microsoft and Facebook claimed that the national security letter (NSL) orders are a “prohibition on speech [that] violates the First Amendment.”

“The government has sought to participate in public debate over its use of the NSL statute,” the companies wrote in a friend-of-the-court brief. “It should not be permitted to gag those best suited to offer an informed viewpoint in that debate; the parties that have received NSLs.”

The FBI uses the letters to get information from banks, Web companies and others about their customers. Under the terms of the letters, though, companies are prevented from disclosing details about having received the request and handed over information.

Tech companies say that government secrecy about surveillance operations causes customers to lose trust in them, especially in light of the Edward Snowden revelations. That stealth has threatened their bottom line.

To reassure their users, the companies have pressed for changes from Washington.

A Yahoo spokesperson said the company was “committed to free speech and transparency when it comes to government requests for our users’ data.”

“We’ll continue to defend our users’ data from unwarranted government access and to advocate that all governments reform their surveillance practices to respect free expression and privacy,” the spokesperson said in the statement sent to The Hill.

Companies that receive the letters can disclose how many they have gotten in ranges of 1,000. In their brief, the firms said they wanted to publish “detailed aggregate statistics about the volume, scope, and type of NSLs that the government uses to demand information about their users.”

The tech companies filed their brief in a U.S. Court of Appeals for the Ninth Circuit case in April, alongside a brief from 18 media organizations including the New York Times, FOX News and National Public Radio.

The case centers on unnamed recipients of the FBI letters who protested the gag order placed on them.