united-states national-security
Do US gag orders block seeking of legal counsel?
<p>Do gag orders issued in the United States of America prevent you from seeking legal counsel and discussing the case?</p>
<p>I expect that anyone who has received a gag order may not understand the legalize of the order and what they can and cannot do. Naturally, I'd expect them to email some lawyers to ask for advice.</p>
<p>By definition, a gag order prevents you from speaking about it. But does that also apply to seeking legal counsel?</p>
<p>I'm sure there have been countless cases of gag orders in the U.S., but I also expect that we don't know about most instances due to, well, the gag order. Two exceptions come to mind:</p>
<ol>
<li><a href="https://en.wikipedia.org/wiki/American_Civil_Liberties_Union_v._Ashcroft" rel="nofollow noreferrer">Calyx Internet Access, 2004</a></li>
<li><a href="https://en.wikipedia.org/wiki/Lavabit#Suspension_and_gag_order" rel="nofollow noreferrer">Lavabit, 2013</a></li>
</ol>
<p>In the first case, Nicholas Merrill was represented by the ACLU. Was it a violation of the gag order for Merill to contact the ACLU?</p>
<p>In the US, does a gag order prevent you from emailing organizations with lawyers for the purpose of seeking legal advice?</p>

<p>The issue raised by the post primarily comes up in the context of a &quot;National Security Letter&quot; which is a form of administrative subpoena which a recipient is not allowed to disclose having received in many cases.</p>
<p>For example, the case of <em>ACLU v. Ashcroft</em>, linked in the question, and pertaining to Calyx Internet Access (2004), involved a National Security Letter. There was also a National Security Letter component to the Lavabit (2013) case cited in the question.</p>
<p>But the National Security Letter statute itself (at least as presently amended) expressly allows conferral with counsel about it. The relevant statute is 18 U.S.C. § 2709(c)(2) which provides:</p>
<blockquote>
<p>(A) In general. — A wire or electronic communication service provider
that receives a request under subsection (b), or officer, employee, or
agent thereof, may disclose information otherwise subject to any
applicable nondisclosure requirement to —</p>
<p>(i) <strong>those persons to whom disclosure is necessary in order to comply
with the request</strong>;</p>
<p>(ii) <strong>an attorney in order to obtain legal advice or assistance
regarding the request</strong>; or</p>
<p>(iii) other persons as permitted by the Director of the Federal Bureau
of Investigation or the designee of the Director.</p>
</blockquote>
<p>Even if this exception were not in the law, however, this exception would probably be implied in law, because the courts have held that National Security Letters and similar non-disclosure agreements must provide a timely opportunity for judicial review, which implicitly includes a right to counsel in the proceeding. <em>See <a href="https://ons/2017/07/17/16-16067.pdf" rel="nofollow noreferrer">Under Seal v. Sessions</a></em>, Slip Op. at 34-40 (9th Cir. 2017).</p>
<p>Similarly, a Medicaid gag rule, that prohibited people from conferring with lawyers regarding legal options for circumventing means tests for the Medicare nursing home program, were held unconstitutional. <em>See, e.g., Zahner v. MacKereth</em>, Civil No. 11-306 Erie (W.D. Pa. Jan. 16, 2014, not overruled or negatively treated on appeal).</p>
<p>There are a few tribunals, primarily the <a href="https://www.fisc.uscourts.gov/" rel="nofollow noreferrer">Foreign Intelligence Surveillance (FISA) Court</a> (that provides probable cause and legality review for national security inquires) and the <a href="https://en.wikipedia.org/wiki/Guantanamo_military_commission" rel="nofollow noreferrer">military commissions in Guantanamo Bay, Cuba</a>, in which a lawyer representing a party in those tribunals must have a security clearance. But, the requirement of a security clearance to represent someone in the tribunal would not apply to pre-litigation legal counsel to review and response to the National Security Letter.</p>
