What procedural steps does an NSL recipient take to petition a court to modify or lift a gag order and how often do they succeed?
Executive summary
National Security Letter (NSL) recipients may invoke statutory “reciprocal notice” procedures, ask the FBI to reconsider its nondisclosure demand, and—if that fails or the recipient prefers—file a petition in federal district court to modify or set aside the gag order; courts have occasionally struck nondisclosure provisions but successful outcomes are rare in practice, and agency reviews lift only a tiny fraction of gag orders (for example, the FBI lifted about 6.4% of gag orders it reviewed between February 2016 and September 2017) [1] [2].
1. The legal lever: statute-authorized court petitions and reciprocal notice
Since the 2006 amendments and later the USA FREEDOM Act, the statutory process allows an NSL recipient to petition a federal district court to modify or set aside both the records request and the accompanying nondisclosure requirement, and provides a “reciprocal notice” mechanism by which a recipient can force an FBI review of the nondisclosure within a short window (the FBI must review within 30 days once reciprocal notice is invoked) [3] [1].
2. The common sequence: counsel, reciprocal notice, agency review, then court
Practically, recipients typically retain counsel (although lawyers who see the NSL are themselves constrained by the nondisclosure) and either request the FBI terminate the nondisclosure under its internal termination procedures or invoke reciprocal notice to trigger the statutory 30‑day review; if the FBI refuses to lift or narrow the gag, the recipient may file a district‑court challenge seeking modification or vacatur of the nondisclosure order [3] [1].
3. What courts actually review and the burden of proof
When a court reviews a nondisclosure order under the statute, it does not apply a broad First Amendment test in every circuit: Congress framed limited statutory grounds under which courts may overturn gag orders—courts may only set aside nondisclosure where they find there is no reason to believe disclosure would harm national security, interfere with investigations or diplomatic relations, or endanger life or safety—so the statutory standard narrows the issues the court will reach, and appellate panels (notably the Ninth Circuit) have at times upheld indefinite gag structures as constitutionally permissible given the availability of a review mechanism [3] [4] [5].
4. Agency practice and institutional friction: termination procedures versus reality
Congress required periodic review and the FBI adopted internal termination procedures triggered at a three‑year anniversary or case closure, but transparency litigation by civil‑liberties groups revealed that the FBI reviews only a subset of NSLs and that lifts are rare—the EFF’s analysis of FBI data showed only about 6.4% of gag orders reviewed between Feb. 2016 and Sept. 2017 were lifted, and FOIA fights exposed gaps in the Bureau’s recordkeeping and adherence to review mandates [2] [6] [7].
5. How often petitioners succeed — rare but precedent‑setting wins exist
Success in court is the exception, not the rule: many recipients never challenge gag orders and those who do face statutory constraints and deference to government claims; nevertheless, there are high‑profile victories—Nicholas Merrill’s long litigation produced a court lift and published opinion that highlighted First Amendment concerns and forced partial un‑gagging, and other companies (Automattic, Cloudflare, Microsoft) have obtained relief or negotiated lifts in specific instances—but systemic data shows lifts are uncommon in aggregate [8] [9] [10] [1] [2].
6. Practical prescription and realistic expectations
A recipient seeking to end a gag should document invocation of reciprocal notice, retain counsel experienced in national‑security litigation, prepare to litigate under the narrow statutory standards (and in some circuits face precedent upholding indefinite nondisclosure), and budget for protracted fights—the law provides a route, courts sometimes grant relief, but institutional practice and judicial doctrine have combined to make full and routine un‑gagging an uncommon outcome [3] [4] [2].