Judge criticizes secrecy rules surrounding FBI requests for companies’ data

In a recent ruling, U.S. District Judge James E. Boasberg for the District of Columbia criticized new rules regarding how long the government can demand secrecy from companies when it requests data on national security cases.

These demands, called national security letters (NSLs), are administrative subpoenas issued by FBI officials without having to seek judicial approval. They are generally accompanied by orders forbidding the recipients from disclosing the NSL’s existence. Judge Boasberg is the first judge to publicly assess new gag-order rules issued by the attorney general as mandated by the USA Freedom Act of 2015. These require the government to revisit gag orders when an investigation ends or on the three-year anniversary of the original subpoena. But Judge Boasberg said the rules contain “several large loopholes.” And thus, he said, they “give the court some pause” as to whether they comply with the law. He rejected the open-ended nature of the gag order, which accompanied requests for data on two of the company’s customers. Such “an indefinite bar . . . seems inconsistent with the intent of the law,” he wrote. He required that officials reconsider the need for the order’s secrecy every three years or until the gag is no longer necessary.