The Reporters Committee for Freedom of the Press and 18 other media organizations filed a friend-of-the-court brief in the U.S. Court of Appeals for the Ninth Circuit in support of the Electronic Frontier Foundation’s challenge to the National Security Letters program.
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.
The information at issue is not just important for its own sake, but because, as recent reports have shown, fear of government surveillance has deterred confidential sources from speaking to journalists about a wide range of topics. The brief emphasizes that more knowledge about the NSL program can give sources and reporters confidence that their communications are confidential.
The Electronic Frontier Foundation’s challenge involves three cases, all of which are under seal. The Reporters Committee was required to file its briefs under seal, but submitted a motion to the Ninth Circuit asking it to unseal its brief.
“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 Ninth Circuit has made available on its website a handful of filings in the three NSL cases (all named “Under Seal v. Holder”).
About the Reporters Committee
Founded in 1970, the Reporters Committee for Freedom of the Press offers free legal support to thousands of working journalists and media lawyers each year. It is a leader in the fight against persistent efforts by government officials to impede the release of public information, whether by withholding documents or threatening reporters with jail. In addition to its 24/7 Legal Defense Hotline, the Reporters Committee conducts cutting-edge legal research, publishes handbooks and guides on media law issues, files frequent friend-of-the-court legal briefs and offers challenging fellowships and internships for young lawyers and journalists. For more information, go to www.rcfp.org, or follow us on Twitter @rcfp.