FBI Surveillance gag orders upheld by US Appeals Court

FBI Encryption

The FBI will be able to continue to issue secret surveillance orders to communications companies for customer data after a ruling earlier this week by a U.S. federal appeals court.

The decision was made by the 9th U.S. Circuit Court of Appeals in San Francisco, where a 3 Judge panel unanimously agreed with an earlier court’s decision that it was permissible for the FBI to send National Security Letters under a gag order.

National Security Letters

A National Security Letter is a type of subpoena which US law enforcement bodies can use to request communications data and other related content about specific users from communications companies.

It is thought that tens of thousands of these National Security Letters are issued each year, along all with accompanying gag orders. The gags themselves can vary in duration, but many will last forever.

Privacy campaigners have long argued that these gag orders are a violation of the 1st amendment to the US Constitution which enshrines the right to free speech.

However, Judge Sandra Ikuta, writing on behalf of the panel, said that they had concluded that the gag orders were in the interests of the Government, were sufficiently narrow, and that the law included the permission for a judicial review to be sought. The US Department of Justice refused to comment on the case.

The case in question was brought by CloudFlare, a content distribution service and CREDO Mobile, a phone network operator. They were challenging the government to be able to notify customers of theirs about five National Security Letters which were sent, under gag orders, between 2011 and 2013.

The firms were represented in court by Andrew Crocker, who is an attorney for the Electronic Frontier Foundation. He described the decision as disappointing but was unable to say if a further appeal to the US Supreme Court would follow.

Not the first push for transparency

They are not the first US tech firms to raise this matter through the courts. Microsoft and Twitter are just two of the companies that have raised the issue of how much information they can disclose on such requests, both to those users directly affected, and the wider general public.

The gag orders mean that no-one can know a lot of very critical information about National Security Letters, a tool by which US Law Enforcement bodies can access a great deal of personal information.

There is no reliable accurate data on how many of these are issued, to which tech companies, and about which users. You could be subject to a National Security Letter yourself, but never ever know about it. Indeed, the only time many people ever do learn about them is if their communications data is subsequently used in a criminal case.

This lack of transparency has long angered privacy campaigners such as the Electronic Frontier Foundation, which VPNCompare.co.uk is proud to support. They have worked hard to open the system up to greater public scrutiny, but so far to no avail.

It is a distinct possibility that this case could be taken all the way to the Supreme Court, but with a conservative majority on that body too, it is highly likely that that case might fail also.

Using a VPN can help

In the meantime, it is strongly recommended that US Internet users make use of a VPN such as IPVanish or ExpressVPN to encrypt their data and change their IP Address. This limits the amount of personal data your ISP is holding about you and means that even if you are subjected to a National Security Letter, the information provided about you will be of limited value.

Once again, in view of an American legal system which fails to protect the privacy of individual users, it is necessary for the users to take steps to protect themselves.

David Spencer

Author: David Spencer

David is VPNCompare's News Editor. Anything going on in the privacy world and he's got his eye on it. He's also interested in unblocking sports allowing him to watch his favourite football team wherever he is in the world.

Away from writing, he enjoys reading and politics. He is currently learning Mandarin too... slowly.

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