Government Admits 'Misstatement' In Key Surveillance Lawsuit

Federal Bureau of Investigation (FBI) director James Comey attends a conference on 'Todays Terrorism: Todays Counterterrorism
Federal Bureau of Investigation (FBI) director James Comey attends a conference on 'Todays Terrorism: Todays Counterterrorism' in New York on November 3, 2014. US faces an increasing number of homegrown violent extremists radicalized online and inspired by jihadists in Syria to carry out acts of violence, Comey warned during the conference. Comey said the danger was witnessed 'in a very real way' by attacks that killed two soldiers in Canada in recent weeks. In a speech in New York, Comey said tracking down those inspired by the so-called Islamic State group in Syria was 'extremely difficult and something we spend every single day working on.' AFP PHOTO/Jewel Samad (Photo credit should read JEWEL SAMAD/AFP/Getty Images)

The U.S. government has admitted that it made a significant courtroom mistake in arguments over a controversial surveillance technique.

The Justice Department claimed in court last month that companies receiving FBI letters demanding business records can reveal those requests even in the face of gag orders. But in a Nov. 6 letter made public Thursday, the government acknowledged that lawyer Douglas Letter made "an inadvertent misstatement."

FBI gag orders really do gag their recipients from revealing even the fact that they have received government surveillance orders. The use of the special "national security letters" -- which carry the weight of a subpoena but do not require a judge's approval -- was vastly expanded under the post-9/11 Patriot Act.

For years the government has maintained that even when businesses are forced to turn over phone calling records or other data, they can't make their objections public. The government's seeming about-face last month had left civil liberties attorneys shocked.

Advocates argue that the national security letters are an invasion of privacy, and the gag orders are an affront to free speech.

Lawyers for the nonprofit Electronic Frontier Foundation are challenging the government in court over the constitutionality of both the letters and the gag orders. Letter's misstatement was made in oral arguments before an appeals court in California last month. A district judge previously ruled against the government.

"But now we learn that the government’s position remains unchanged," Electronic Frontier Foundation Legal Director Cindy Cohn said in a statement. "Because the government’s argument to the Ninth Circuit depended in part on the assertion that the NSL gag order does nothing to stifle public debate, this later retraction significantly undermines its case.”



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