DOJ admits misstatement in challenge to secret record requests; one isn't the lowliest number
The U.S. Justice Department has admitted an “inadvertent misstatement” during oral arguments last month when its counsel maintained that companies receiving national security letters are free to reveal that fact.
In a letter (PDF) made public on Thursday, the Justice Department said the lawyer was mistaken in the Oct. 8 arguments before the San Francisco-based 9th U.S. Circuit Court of Appeals. The appeals court is considering a challenge to the secret record requests in a lawsuit filed by the Electronic Frontier Foundation on behalf of an unnamed telecommunications company. The Huffington Post and the National Journal have stories.
The government lawyer had indicated that companies could disclose they had received one or more national security letters—used to gather business records without judicial approval in terrorism investigations—and could discuss their quality. “That suggestion was mistaken,” the Justice Department letter says.
The lawyer, it seems, failed to recognize the distinction between zero and one.
The government moved in January to allow broad disclosure of the letters after revelations by Edward Snowden. Companies can now reveal how many national security letters they received in the previous six months, but only in bands of a thousand.
A company that discloses it has received 0 to 1,000 letters is getting too specific if it discloses that it has received one or more letters, according to the Justice Department letter. “The lower end of these bands was set at 0, rather than 1, in order to avoid such disclosures,” the letter says.
Companies are free to say they got one or more letters, however, if they are in one of the bands starting at 1,000 or above, the letter says.
