Doe v. Gonzales

• Decision Date: 23 May 2006
• Docket Number: Docket No. 05-4896-CV(CON).,Docket No. 05-0570-CV(L).
• Citation: 449 F.3d 415
• Parties: John DOE I, John Doe II, American Civil Liberties Union, American Civil Liberties Union Foundation, Plaintiffs-Appellees, v. Alberto GONZALES (In Official Capacity as Attorney General), Robert S. Mueller III (In Official Capacity as Director of the Federal Bureau of Investigation), Marion E. Bowman (In Official Capacity as Senior Counsel of the Federal Bureau of Investigation), John Roe, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

449 F.3d 415

John DOE I, John Doe II, American Civil Liberties Union, American Civil Liberties Union Foundation, Plaintiffs-Appellees, v. Alberto GONZALES (In Official Capacity as Attorney General), Robert S. Mueller III (In Official Capacity as Director of the Federal Bureau of Investigation), Marion E. Bowman (In Official Capacity as Senior Counsel of the Federal Bureau of Investigation), John Roe, Defendants-Appellants.

Docket No. 05-0570-CV(L).

Docket No. 05-4896-CV(CON).

United States Court of Appeals, Second Circuit.

Argued: November 2, 2005.

Decided: May 23, 2006.

COPYRIGHT MATERIAL OMITTED

Douglas N. Letter (Robert D. McCallum, Jr., Acting Deputy Attorney General, Peter D. Keisler, Assistant Attorney General, Gregory G. Katsas, Deputy Assistant Attorney General, Scott R. McIntosh, Department of Justice Attorney, Washington DC; David N. Kelly, United States Attorney for the Southern District of New York, Jeffrey Oestericher, Assistant United States Attorney, New York, NY; Kevin J. O'Connor, United States Attorney for the District of Connecticut, William Collier, Lisa E. Perkins, Assistant U.S. Attorneys, Hartford, CT, on the brief) Department of Justice, Civil Division, Appellate Section, Washington DC, for Defendants-Appellants.

Jameel Jaffer & Ann Beeson (Melissa Goodman, American Civil Liberties Union Foundation, New York, NY; Arthur N. Eisenberg, New York Civil Liberties Union Foundation, New York, NY; Annette M. Lamoreaux, American Civil Liberties Union of Connecticut Foundation, Hartford, CT, on the brief) American Civil Liberties Union Foundation, New York, NY, for Plaintiffs-Appellees.

Bettina B. Plevan (Stephen L. Kass, Samantha Klein, Ethan I. Strell, Carter Ledyard & Milburn LLP, New York, NY, Sarah Netburn, Emery Celli Brinckerhoff & Abady LLP, New York, NY, of counsel), Association of the Bar of the City of New York, New York, NY, for Amicus Curiae Association of the Bar of the City of New York in support of Plaintiffs-Appellees.

Daniel Mach & Theresa A. Chmara (Brian Hauck, Amy L. Tenney, on the brief) Jenner & Block LLP, Washington DC, for Amici Curiae American Association of University Professors, American Booksellers Foundation for Free Expression, American Library Association, Association of American Publishers, Freedom to Read Foundation, and Pen American Center in support of Plaintiffs-Appellees.

Meredith Fuchs (Marc Rotenberg, Marcia Hofmann, Electronic Privacy Information Center, Washington DC, on the brief) National Security Archive, Washington, DC, for Amici Curiae National Security Archive, Project on Government Secrecy of the Federation of American Scientists, Electronic Privacy Information Center, and National Whistleblower Center in support of Plaintiffs-Appellees.

Lee Tien (Kurt B. Opsahl, Kevin S. Bankston, on the brief) Electronic Frontier Foundation, San Francisco, CA, for Amicus Curiae Electronic Frontier Foundation in support of Plaintiffs-Appellees.

Before CARDAMONE, McLAUGHLIN, B.D. PARKER, Circuit Judges.

Judge CARDAMONE concurs in the judgment of the Court, and files a separate concurring opinion.

PER CURIAM.

This consolidated appeal calls on us to consider 18 U.S.C. § 2709, a statute that governs the Federal Bureau of Investigation's (FBI) issuance of National Security Letters (NSLs) to wire or electronic communication service providers. An NSL is an administrative subpoena that allows the FBI to gain access to, inter alia, "subscriber information . . . or electronic communication transactional records" held by internet service providers,¹ when this information is "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities . . . ." 18 U.S.C. §§ 2709(a) & (b)(2). John Does I and II are internet service providers who received NSLs and commenced proceedings in the Southern District of New York and the District of Connecticut (respectively) challenging the constitutionality of § 2709.

Section 2709 was originally enacted as part of Title II of the Electronic Communication Privacy Act of 1986 ("ECPA"), Pub.L. No. 99-508, § 201, 100 Stat. 1848, 1867-68 (1986), and was amended in 1993 and 1996. See generally FBI Access to Telephone Records, Pub.L. No. 103-142, § 1, 107 Stat. 1491, 1491-92 (1993); Intelligence Authorization Act for Fiscal Year 1997, Pub.L. No. 104-293, § 601(a), 110 Stat. 3461, 3469 (1996). Shortly after the terrorist attacks of September 11, 2001, however, Congress again amended § 2709 by means of Title V, Section 505 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 ("USA Patriot Act"), Pub.L. 107-56, 115 Stat. 272, 365 (Oct. 26, 2001).

Both the Southern District of New York in Doe v. Ashcroft ("Doe I"), 334 F.Supp.2d 471 (S.D.N.Y.2004), and the District of Connecticut in Doe v. Gonzales ("Doe II"), 386 F.Supp.2d 66 (D.Conn. 2005), ruled on the constitutionality of § 2709 (as amended by the USA Patriot Act). However, while this appeal was pending, Congress passed the USA Patriot Improvement and Reauthorization Act of 2005, Pub.L. No. 109-177, 120 Stat. 192 (Mar. 9, 2006) (the "Reauthorization Act" or the "Act"). This Act dramatically altered § 2709, and added several new procedures codified at 18 U.S.C. § 3511, which now govern judicial review of the FBI's requests for information through NSLs. In light of the significant changes to § 2709 in the Reauthorization Act, this Court issued an order on March 15, 2006 requesting supplemental letter briefs from the parties on the impact of the Reauthorization Act on this case.

Having reviewed the Government's Letter Brief dated March 29, 2006 ("Gov't Ltr. Br."), the Plaintiffs' Letter Brief dated April 7, 2006 ("Pls.Ltr.Br."), and the Government's Reply Letter Brief dated April 18, 2006 ("Gov't Reply Ltr. Br."), we dispose of Doe I and Doe II as follows.

I. Doe I, No. 05-0570

In Doe I, on cross-motions for summary judgment, the Southern District of New York held that the then-applicable version of § 2709 was unconstitutional as applied to John Doe I under the Fourth Amendment because it was denied pre-enforcement judicial review. Doe I, 334 F.Supp.2d at 494-511. The Southern District of New York also held that the permanent nondisclosure requirement (also known as the "gag order" provision) of the then-applicable version of § 2709(c) was unconstitutional on its face under the First Amendment because it operated as a content-based prior restraint on speech that was not sufficiently narrowly tailored to achieve a compelling governmental interest. Doe I, 334 F.Supp.2d at 511-26.

The Reauthorization Act has substantially shifted the legal footing on which Doe I stands. The parties agree that the Reauthorization Act's provisions apply retroactively to NSLs issued before the Reauthorization Act. See Gov't Ltr. Br. at 2-3; Pls. Ltr. Br. at 1. Because the Reauthorization Act added provisions permitting NSL recipients to challenge the issuance of NSLs in court, see 18 U.S.C. § 3511(a), John Doe I no longer presses Fourth Amendment claims on this appeal, see Pls. Ltr. Br. at 2 n. 2; see also Gov't Reply Ltr. Br. at 1. Therefore, we deem them abandoned, rendering this portion of the appeal moot. Accordingly, we vacate the Fourth Amendment portion of the Southern District of New York Opinion in Doe I. See Russman v. Bd. of Educ., 260 F.3d 114, 122 (2d Cir.2001) ("In general, where the appellee has caused the case to become moot, we vacate the district court's judgment to prevent the appellee from insulating a favorable decision from appellate review.").

The new § 2709(c) now explicitly allows an NSL recipient to talk with an attorney "to obtain legal advice or legal assistance with respect to the request." 18 U.S.C. § 2709(c)(1); see Gov't Ltr. Br. at 2. The Reauthorization Act also added procedures for the judicial review of the terms and conditions of nondisclosure imposed on a recipient of an NSL. See 18 U.S.C. § 3511(b). However, Plaintiffs argue that the revised version of § 2709(c), as amended and supplemented by the Reauthorization Act, still violates John Doe I's First Amendment rights. See Pls. Ltr. Br. at 2-4. The Government responds that the Reauthorization Act and the new procedures found in 18 U.S.C. § 3511 solve the purported First Amendment problems that the nondisclosure provisions of the prior version of § 2709(c) had raised. See Gov't Ltr. Br. at 3-4.

We do not believe that it would be prudent to resolve these novel First Amendment issues as a part of this appeal. Therefore, we also vacate the First Amendment portion of Doe I, and we remand this case so that the Southern District of New York, in the first instance, can address the First Amendment issues presented by the revised version of § 2709(c), and the Reauthorization Act's new procedures and standards for judicial review found at 18 U.S.C. § 3511. On remand, the district court will, as appropriate, have the opportunity to receive amended pleadings, request new briefs, conduct oral argument, and, in due course, furnish its views on the constitutionality of the revised version of § 2709(c) and the Reauthorization Act. See, e.g., Lewis v. Cont'l Bank Corp., 494 U.S. 472, 482, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) ("[I]n instances where [ ] mootness is attributable to a change in the legal framework governing the case, and where the plaintiff may have some residual claim under the new framework that was understandably not asserted previously, our practice is to vacate the judgment and remand for further proceedings in which the parties may, if necessary, amend their pleadings or develop the record more fully.").²

II. Gonzales v. Doe II, No. 05-4896

In Doe II, on a motion for preliminary injunction, the District of Connecticut enjoined the Government from enforcing the gag order imposed on John Doe II under § 2709(c) insofar as it prevented John Doe II from revealing its identity as a...