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A pair of telecom and tech companies brought their long-running battle against secret government surveillance into a federal appeals court on Wednesday.

Mobile phone service provider Credo Mobile Inc. and cloud computing company CloudFlare have for years been fighting FBI gag orders that bar them from disclosing information about so-called national security letters they receive. The FBI can issue these letters without court scrutiny, requiring companies then to turn over customer names, addresses and other records.

The companies say the potentially indefinite gag orders about the letters are an unconstitutional prior restraint on free speech. The gag orders should either apply for a limited period time, they say, or be automatically subject to court review. They lost a battle last summer when a San Francisco district court judge ruled that legislation passed by Congress creating a route to challenge the secrecy requirements fixed any constitutional problems that may have existed.

On Wednesday, a panel at the U.S. Court of Appeals for the Ninth Circuit questioned whether it should fall on companies to initiate a challenge to the gag order. Department of Justice attorney Lewis Yelin at least once found himself on the defensive in contending that the law properly requires companies to do so.

“If it requires any effort on behalf of the [recipient], where is that permissible under Freedman?” asked Judge Mary Murguia. She was referring to a seminal 1965 U.S. Supreme Court decision on free speech, Freedman v. Maryland, that stripped the government’s ability to ban films.

“In short, I think there is not an example of prior case law discussing this specific scenario,” responded Yelin. But he stressed that the burden on the companies is a low one, saying that recipients of national security letters simply have to request the FBI to start an internal review if they disagree with its requirements. If the agency stands by the gag order, he said, the company can request that the government start legal proceedings to have a federal judge review the national security letter.

But the notion that this is an easy hurdle to surmount was rejected by Andrew Crocker, a staff attorney at the Electronic Frontier Foundation. “These are service providers engaged in a business,” said Crocker. “They don’t take the decision to stand up to the government very lightly.”

Judge Sandra Ikuta asked whether a company would have to go through this procedure before speaking with a consultant about how to deal with the FBI letter, and Judge Norman Randy Smith—who rounded out the panel—asked whether the letters can be tailored to bar the disclosure of only some information. Yelin answered in the affirmative to both.

The case, Under Seal v. Sessions, is one of several attempts by technology companies to push back against limitations on what they can say when the government comes looking for information. Microsoft Corp. has a similar suit pending in federal court in Seattle. That case tests the constitutionality of provisions in the Electronic Communications Privacy Act barring companies from informing the public when they turn over customer data pursuant to a court-issued warrant. Twitter has asked a federal judge to strike down rules prohibiting the company from disclosing how many national security requests it receives.

EFF’s opening brief can be read here. The Department of Justice’s answer is here.

Copyright The Recorder. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

A pair of telecom and tech companies brought their long-running battle against secret government surveillance into a federal appeals court on Wednesday.

Mobile phone service provider Credo Mobile Inc. and cloud computing company CloudFlare have for years been fighting FBI gag orders that bar them from disclosing information about so-called national security letters they receive. The FBI can issue these letters without court scrutiny, requiring companies then to turn over customer names, addresses and other records.

The companies say the potentially indefinite gag orders about the letters are an unconstitutional prior restraint on free speech. The gag orders should either apply for a limited period time, they say, or be automatically subject to court review. They lost a battle last summer when a San Francisco district court judge ruled that legislation passed by Congress creating a route to challenge the secrecy requirements fixed any constitutional problems that may have existed.

On Wednesday, a panel at the U.S. Court of Appeals for the Ninth Circuit questioned whether it should fall on companies to initiate a challenge to the gag order. Department of Justice attorney Lewis Yelin at least once found himself on the defensive in contending that the law properly requires companies to do so.

“If it requires any effort on behalf of the [recipient], where is that permissible under Freedman?” asked Judge Mary Murguia. She was referring to a seminal 1965 U.S. Supreme Court decision on free speech, Freedman v. Maryland, that stripped the government’s ability to ban films.

“In short, I think there is not an example of prior case law discussing this specific scenario,” responded Yelin. But he stressed that the burden on the companies is a low one, saying that recipients of national security letters simply have to request the FBI to start an internal review if they disagree with its requirements. If the agency stands by the gag order, he said, the company can request that the government start legal proceedings to have a federal judge review the national security letter.

But the notion that this is an easy hurdle to surmount was rejected by Andrew Crocker, a staff attorney at the Electronic Frontier Foundation. “These are service providers engaged in a business,” said Crocker. “They don’t take the decision to stand up to the government very lightly.”

Judge Sandra Ikuta asked whether a company would have to go through this procedure before speaking with a consultant about how to deal with the FBI letter, and Judge Norman Randy Smith —who rounded out the panel—asked whether the letters can be tailored to bar the disclosure of only some information. Yelin answered in the affirmative to both.

The case, Under Seal v. Sessions, is one of several attempts by technology companies to push back against limitations on what they can say when the government comes looking for information. Microsoft Corp. has a similar suit pending in federal court in Seattle. That case tests the constitutionality of provisions in the Electronic Communications Privacy Act barring companies from informing the public when they turn over customer data pursuant to a court-issued warrant. Twitter has asked a federal judge to strike down rules prohibiting the company from disclosing how many national security requests it receives.

EFF’s opening brief can be read here. The Department of Justice’s answer is here.

Copyright The Recorder. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.