You'd be hard-pressed to find a better example of the government’s ludicrous approach to secrecy than a current case before the Ninth Circuit Court of Appeals challenging the constitutionality of National Security Letters.
For almost two months, the government and Court of Appeals have teamed up to prevent a group of news organizations and press freedom groups—including Freedom of the Press Foundation—from publicly releasing a legal brief containing 100% public information. As of today, you can finally read that legal brief here.
A little background is needed to understand the absurdity of the situation: Last March, the Electronic Frontier Foundation (EFF) won a landmark case in district court, where a judge ruled that the entire National Security Letters statute was an unconstitutional infringement of the First Amendment. National Security Letters are an invasive tool used by the FBI to get ISPs, telecom companies, and others to secretly hand over private information on American citizens with no prior judicial oversight. Worse, NSLs come with a gag order, meaning the company that receives it cannot tell their customer that his or her private data has been handed over to the authorities. Thankfully, the gag order was ruled a violation of free speech and the whole statute was struck down.
But since the ruling had such significant consequences, the decision was put on hold until the Court of Appeals had a chance to affirm or reverse it. And despite the public nature of the ruling, the EFF’s client and the person or group the NSL affects are still secret.
Earlier this year, outside groups were invited by the court to submit amicus (friend of the court) briefs to help the court better understand the issue, so Reporter’s Committee For Freedom of the Press (RCFP) wrote a brief that was signed by Freedom of the Press Foundation and fifteen major news organizations, including the New York Times and Washington Post.
In the brief, we argue that the gag orders on National Security Letters were a classic case of prior restraint — the same kind prior restraint ruled unconstitutional by the Supreme Court in the Pentagon Papers case and many others throughout US history. “Bans on speech stifle the discourse on important issues that is necessary for an informed democracy," the brief says. "[If] this Court finding the non-disclosure provision [in the NSL statute] anything less than a prior restraint [it] will open the door for other courts to create end-runs around key constitutional protections guaranteeing the free flow of information to the public."
Lawyers for RCFP and the rest of our coalition were not privy to any confidential information or given a security clearance, and wrote their brief based entirely on public information. Despite this, RCFP had to file our brief under seal and could not reveal the contents to the public. So, to sum up: a group of news organizations protesting an unconstitutional prior restraint were also under a different unconstitutional prior restraint that barred them from telling the public what they already knew.
Our coalition also filed a brief arguing the seal of the original brief was unconstitutional, but to no avail. To make matters worse, the government asked for a month extension to review the brief before unsealing it, And then the court inexplicably said it would keep it sealed for eight more days. So a brief that was filed at the beginning of April—again, that contained absolutely no secret information—was kept secret by the government and the courts for almost more than six weeks.
This is government secrecy at its absolute worst and is blatantly unconstitutional. It's a shame the court did not recognize that immediately.