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Ninth Circuit keeps Reporters Committee amicus brief in NSL case sealed more than six weeks

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The U.S. Court of Appeals for the Ninth Circuit ruled on Wednesday that it will wait until May 23 to…

The U.S. Court of Appeals for the Ninth Circuit ruled on Wednesday that it will wait until May 23 to unseal an amicus brief that contains no confidential information and that the Reporters Committee for Freedom of the Press filed more than five weeks ago.

The Reporters Committee and 18 other media organizations filed the brief in support of the Electronic Frontier Foundation’s challenged to the National Security Letters program on April 8.

Amici were required to file materials under seal, but the Reporters Committee filed a motion with its brief asking the Court to unseal the document.

"The Court cannot constitutionally seal this brief,” the Reporters Committee wrote in the motion. “Amici have had no access to confidential materials in the case; the brief only includes information that is already public; and there are clear public policy reasons for requiring that the materials be open.”

The Government responded to the Reporters Committee’s motion on April 21, and asked that the Ninth Circuit defer action on it until after May 11.

On April 23, the Reporters Committee filed a response challenging the Government’s request. Five days later, the Government consented to unsealing the media coalition’s brief.

In its order yesterday, the Ninth Circuit gave no reason why it is waiting eight more days to unseal the brief, though it did say its ruling was only effective “absent objection by any of the parties.”

The media brief argues that the non-disclosure provision on the National Security Letter statute is classic prior restraint on speech, and the Northern District of California’s failure to term it as such threatens an important protection on which journalists rely.

Under the National Security Letter statute, the FBI can demand personal information about anyone from phone companies, Internet service providers and other institutions. The government has issued tens of thousands of NSLs annually in recent years, and nearly 100 percent of these letters have a non-disclosure order which gags recipients from discussing them.

The media brief also argues that the gag provision violates the public's First Amendment right to receive information about this government program.