In a welcome and commendable move, LinkedIn, the business social networking giant, has filed an amicus brief in EFF’s landmark case challenging the statute governing National Security Letters (NSLs) as an unconstitutional prohibition of free speech (read the full brief here). LinkedIn has also filed a motion with the FISA court arguing it’s their First Amendment right to publish how many users are affected by FISA court orders, which have been at the center of the NSA scandal.
In a historic decision this March, a California district court judge struck down a National Security Letter statutes on the basis that its broad gag orders prohibiting companies from even acknowledging they received an NSL violated the First Amendment. The decision is now up on appeal in the Ninth Circuit and LinkedIn has filed its brief in support of EFF’s unnamed client.
We applaud LinkedIn’s push for more transparency surrounding both NSLs and FISA court orders, which are both under renewed scrutiny since The Guardian and Washington Post started publishing revelations based on documents given to them by NSA whistleblower Edward Snowden in June.
One of EFF’s core arguments on behalf of our gagged client—echoed by LinkedIn in its amicus brief—is simple: Americans have the right to know how pervasive the FBI’s use of this largely unchecked power has become. Since the first national security letter statute was passed in 1986, the FBI has issued hundreds of thousands of such letters seeking private telecommunications and financial records of Americans without any court approval whatsoever. The broad gag orders prevent recipients from even being able to acknowledge receipt of one—making them ripe for abuse—and the FBI has, on multiple occasions, been excoriated by government watchdogs for exceeding their powers.
Like other companies such as Google and Microsoft, LinkedIn has been trying to negotiate with the government about a way to tell the public how many people are affected by these orders. The government has refused to budge, sticking to its insufficient offers to permit publication of vague '0-999' ranges, attempting to defuse the crisis without giving enough data for an informed debate. These proposed compromises fail to solve the clear First Amendment problems created by the NSL surveillance regime.
LinkedIn’s legal briefs are an extension of a July 18, 2013 letter that dozens of companies, nonprofit organizations, and trade associations sent a letter to President Obama and Congress urging greater transparency around national security-related requests from the US government. We hope other companies will follow LinkedIn’s lead and join in the legal fight. We also hope that other companies who are already pushing back against suspect surveillance authorities, but who are doing so in secret because of gag orders, will keep up their efforts.
These gag orders violate the free speech of their company, but also the trust of their users. In their legal brief, LinkedIn makes the point that even the US government has emphasized that being able to explain privacy protections to users is a key building users' trust. As the Internet Policy Task Force of the Department of Commerce noted in a report:
Privacy protections are crucial to maintaining consumer trust, which is necessary to secure full use of the Internet as a political, educational, cultural, and social medium. Trust—the belief that someone or something will behave as expected, and not another way—is of central importance to the Internet.
We couldn’t agree more and we hope the Ninth Circuit and FISA court do too.
