Doe v. Ashcroft

Decision Date28 September 2004
Docket NumberNo. 04 Civ. 2614(VM).,04 Civ. 2614(VM).
Citation334 F.Supp.2d 471
PartiesJohn DOE; American Civil Liberties Union; and American Civil Liberties Union Foundation, Plaintiffs, v. John ASHCROFT, in his official capacity as Attorney General of the United States; Robert Mueller, in his official capacity as Director of the Federal Bureau of Investigation; and Marion Bowman, in his official capacity as Senior Counsel to the Federal Bureau of Investigation, Defendants.
CourtU.S. District Court — Southern District of New York

Ann Beeson, New York, NY, Arthur N. Eisenberg, New York Civil Liberties Union Foundation, New York, NY, Jameel Jaffer, New York, NY, for American Civil Liberties Union, John Doe.

Meredith E. Kotler, New York, NY, for John Ashcroft, Marion Bowman, Robert Mueller.

OPINION

DECISION AND ORDER

MARRERO, District Judge.

                TABLE OF CONTENTS
                  I. INTRODUCTION ........................................................ 474
                 II. BACKGROUND .......................................................... 476
                     A. DOE'S RECEIPT OF AN NSL .......................................... 478
                     B. § 2709 IN GENERAL ................................................ 479
                     C. LEGISLATIVE HISTORY .............................................. 480
                     D. NSLs AND OTHER INFORMATION-GATHERING AUTHORITY ................... 484
                        1. Administrative Subpoenas ...................................... 484
                        2. Subpoena Authority in the Criminal Context .................... 485
                        3. Background Rules Governing Disclosure of Stored Electronic
                             Communications .............................................. 487
                        4. Mail .......................................................... 488
                        5. Pen Registers and Trap and Trace Devices ...................... 488
                        6. Wiretaps and Electronic Eavesdropping ......................... 489
                        7. Foreign Intelligence Surveillance Act ......................... 489
                III. SUMMARY JUDGMENT STANDARD ........................................... 491
                 IV. DISCUSSION .......................................................... 491
                     A. SECTION 2709, AS DRAFTED, RAISES SERIOUS
                          CONSTITUTIONAL QUESTIONS ....................................... 491
                     B. AS APPLIED HERE, SECTION 2709 LACKS PROCEDURAL
                          PROTECTIONS NECESSARY TO VINDICATE
                          CONSTITUTIONAL RIGHTS .......................................... 494
                        1. Section 2709 And The Fourth Amendment ......................... 494
                        2. NSLs May Violate ISP Subscribers' Rights ...................... 506
                     C. CONSTITUTIONALITY OF THE NON-DISCLOSURE PROVISION ................ 511
                  V. STAY OF JUDGMENT .................................................... 526
                 VI. CONCLUSION .......................................................... 526
                VII. ORDER ............................................................... 527
                
I. INTRODUCTION

Plaintiffs in this case challenge the constitutionality of 18 U.S.C. § 2709 ("§ 2709"). That statute authorizes the Federal Bureau of Investigation ("FBI") to compel communications firms, such as internet service providers ("ISPs") or telephone companies, to produce certain customer records whenever the FBI certifies that those records are "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities."1 The FBI's demands under § 2709 are issued in the form of national security letters ("NSLs"), which constitute a unique form of administrative subpoena cloaked in secrecy and pertaining to national security issues. The statute bars all NSL recipients from ever disclosing that the FBI has issued an NSL.2

The lead plaintiff, called "John Doe" ("Doe")3 for purposes of this litigation, is described in the complaint as an internet access firm that received an NSL. The other plaintiffs are the American Civil Liberties Union ("ACLU") and the American Civil Liberties Union Foundation, which is also acting as counsel to Doe (collectively with Doe, "Plaintiffs"). Plaintiffs contend that § 2709's broad subpoena power violates the First, Fourth and Fifth Amendments of the United States Constitution, and that the non-disclosure provision violates the First Amendment. They argue that § 2709 is unconstitutional on its face and as applied to the facts of this case. Plaintiffs' main complaints are that, first, § 2709 gives the FBI extraordinary and unchecked power to obtain private information without any form of judicial process, and, second, that § 2709's non-disclosure provision burdens speech categorically and perpetually, without any case-by-case judicial consideration of whether that speech burden is justified. The parties have cross-moved for summary judgment on all claims.

For the reasons explained below, the Court grants Plaintiffs' motion. The Court concludes that § 2709 violates the Fourth Amendment because, at least as currently applied, it effectively bars or substantially deters any judicial challenge to the propriety of an NSL request. In the Court's view, ready availability of judicial process to pursue such a challenge is necessary to vindicate important rights guaranteed by the Constitution or by statute. On separate grounds, the Court also concludes that the permanent ban on disclosure contained in § 2709(c), which the Court is unable to sever from the remainder of the statute, operates as an unconstitutional prior restraint on speech in violation of the First Amendment.

The Court's ruling is about the process antecedent to the substance of any particular challenge, and in that vein, it is both narrow and broad. This determination is narrow in two respects. First, although the Court recognizes hypothetically that some aspects of the interpretation of § 2709 as proffered by the Government here may be plausible, the Court's analysis of the legislative record reveals grounds at least as compelling to cast substantial doubt upon such a reading of the statute. Given its strong reservations about the sufficiency of the statutory basis upon which the Government's theory is founded, the Court in the final analysis deems it unnecessary to rule upon Plaintiff's facial challenge to § 2709 on Fourth Amendment grounds.

Second, the Court declines Plaintiffs' invitation to decide the measure of Fourth Amendment protection demanded when the Government makes NSL requests generally or in any particular case. The Court decides only that those rights, as well as other rights attaching to protected speech content that may be revealed to the Government as a result of an NSL, are implicated to some extent when an individual receives an NSL, thus necessitating the practical availability of some form of access to the judicial system to challenge the NSL. On the record before it, the Court finds that in practice those rights are substantially curtailed by the manner in which the FBI administers § 2709.

The Court's ruling is broad in that even if § 2709 could be fairly construed in accordance with the Government's proposed reading to incorporate the availability of some judicial review, and putting aside the impairment of Fourth Amendment protections the Court finds countenanced by § 2709 as applied, other structural flaws inherent in the statute as a whole render it invalid on its face. In particular, the Court agrees with Plaintiffs that § 2709(c), the non-disclosure provision, is unconstitutional. In simplest terms, § 2709(c) fails to pass muster under the exacting First Amendment standards applicable here because it is so broad and open-ended. In its all-inclusive sweep, it prohibits the NSL recipient, or its officers, employees, or agents, from revealing the existence of an NSL inquiry the FBI pursued under § 2709 in every case, to any person, in perpetuity, with no vehicle for the ban to ever be lifted from the recipient or other persons affected, under any circumstances, either by the FBI itself, or pursuant to judicial process. Because the Court cannot sever § 2709(c) from § 2709(a) and (b), the Court grants the remedy Plaintiffs request enjoining the Government from using § 2709 in this or any other case as a means of gathering information from the sources specified in the statute.

Considering the implications of its ruling and the importance of the issues involved, the Court will stay enforcement of its judgment for 90 days, pending appeal or measures by the Government otherwise to address the flaws in the structure and implementation of § 2709 described here.

II. BACKGROUND

Like most of our constitutional law's hardest cases, this dispute is about two fundamental principles: values and limits. It centers on the interplay of these concepts, testing the limits of values and the values of limits where their ends collide.

National security is a paramount value, unquestionably one of the highest purposes for which any sovereign government is ordained. Equally scaled among human endeavors is personal security, an interest especially prized in our system of justice in the form of the guarantee bestowed upon the individual to be free from imposition by government of unwarranted restraints on protected fundamental rights.4 Efficiency, too, counts as a basic value, though it essentially serves as a tool in the service of other interests. To perform its national security functions properly, government must be empowered to respond promptly and effectively to public exigencies as they arise, and in pursuit of those necessary actions to maintain a reasonable measure of secrecy surrounding its operations and methods.

When pushed to their outer limits, these values may clash, giving rise to another form of interaction among vital societal principles. Inevitably, the resultant forces entail, from exercise of the powers assigned to the different branches of government, judgments about how and by whom to resolve which value may have exceeded its designated bounds. This choice is...

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