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 A lower court judge in San Francisco previously ruled such gag
orders were unconstitutional in a lawsuit filed by an undisclosed
telecom company.
At a hearing on Wednesday, a three-judge 9th U.S. Circuit Court of
Appeals panel in San Francisco weighed whether the First Amendment
allowed recipients of so-called "national security letters" to
discuss them.
Judge N.R. Smith, a George W. Bush nominee, asked whether the
government should have a greater responsibility to lift the gag
order on its own. That would ease the burden on telecom companies
who currently have to go to court, he said.
"It seems to me, if I'm going to narrow this particular statute,
that there should be some obligation on the part of the government
to end the order," Smith said. "Why isn't there?"
Douglas Letter, an attorney for the U.S. Department of Justice, said
the FBI does not have the resources to continuously review thousands
of national security letters to determine if secrecy is still
warranted.
"The bureau would not be able to function," Letter said.
Tech companies have sought to clarify their relationships with U.S.
law enforcement and spying agencies, especially after revelations by
former National Security Agency contractor Edward Snowden that
outlined the depth of U.S. spying capabilities.
Twitter Inc <TWTR.N>, for instance, sued the U.S. Department of
Justice on Tuesday following months of fruitless negotiations over
how much information the company could disclose about government
surveillance.
In the case at the 9th Circuit, the plaintiff telecom company said
the FBI's gag orders surrounding national security letters represent
an "unprecedented grant of authority" and violate the First
Amendment. Those letters seek customer information like billing
records, not the content of individual messages.
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The government calls such secrecy "vital" in national security cases
because public disclosure could interfere with the probe or endanger
someone's physical safety.
Tech companies including Google Inc <GOOGL.O>, Microsoft Corp
<MSFT.O> and Facebook Inc <FB.O> filed legal arguments against the
government in the case.
The government may not "foist a gag order upon the involuntary
recipient of an NSL," the companies wrote, "let alone prohibit the
recipient from even reporting periodically the aggregate number of
such demands that it receives."
Judge Sandra Ikuta, another George W. Bush nominee hearing arguments
on Wednesday, suggested the law may not violate free speech because
the government only sought secrecy for information it disclosed that
impacts national security. It does not prohibit speech about
information someone receives independently.
"This is not, 'I have this great idea. I've uncovered corruption,
and government says, no, I may not speak about that," Ikuta said.
A ruling could come at any time.
(Reporting by Dan Levine; Editing by Cynthia Osterman)
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