Do US gag orders block seeking of legal counsel?

Question

Do gag orders issued in the United States of America prevent you from seeking legal counsel and discussing the case?

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.

By definition, a gag order prevents you from speaking about it. But does that also apply to seeking legal counsel?

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:

1. Calyx Internet Access, 2004
2. Lavabit, 2013

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?

In the US, does a gag order prevent you from emailing organizations with lawyers for the purpose of seeking legal advice?

Answer 1

The issue raised by the post primarily comes up in the context of a "National Security Letter" which is a form of administrative subpoena which a recipient is not allowed to disclose having received in many cases.

For example, the case of ACLU v. Ashcroft, 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.

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:

(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 —

(i) those persons to whom disclosure is necessary in order to comply with the request;

(ii) an attorney in order to obtain legal advice or assistance regarding the request; or

(iii) other persons as permitted by the Director of the Federal Bureau of Investigation or the designee of the Director.

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. See Under Seal v. Sessions, Slip Op. at 34-40 (9th Cir. 2017).

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. See, e.g., Zahner v. MacKereth, Civil No. 11-306 Erie (W.D. Pa. Jan. 16, 2014, not overruled or negatively treated on appeal).

There are a few tribunals, primarily the Foreign Intelligence Surveillance (FISA) Court (that provides probable cause and legality review for national security inquires) and the military commissions in Guantanamo Bay, Cuba, 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.