In re Nat'l Sec. Letter

• Decision Date: 14 March 2013
• Docket Number: No. C 11–02173 SI.,C 11–02173 SI.
• Citation: 930 F.Supp.2d 1064
• Court: U.S. District Court — Eastern District of California
• Parties: In re NATIONAL SECURITY LETTER.

930 F.Supp.2d 1064

In re NATIONAL SECURITY LETTER.

No. C 11–02173 SI.

United States District Court, N.D. California.

March 14, 2013.

Held Unconstitutional

18 U.S.C.A. §§ 2709(c), 3511(b)(2, 3)

Prior Version Recognized as Unconstitutional

18 U.S.C.A. § 2709

Steven Yale Bressler, U.S. Department of Justice, Washington, DC, for In re National Security Letter.

ORDER GRANTING MOTION TO SET ASIDE NSL LETTER

SUSAN ILLSTON, District Judge.

Pursuant to the National Security Letter Statute, 18 U.S.C. § 2709, the FBI issued a National Security Letter (“NSL”) to Petitioner, an electronic communication service provider (“ECSP”), seeking “subscriber information.” By certifying, under section 2709(c)(1), that disclosure of the existence of the NSL may result in “a danger to the national security of the United States, interference with a criminal, counterterrorism, or counterintelligence investigation, interference with diplomatic relations, or danger to the life or physical safety of any person,” the FBI was able to prohibit Petitioner from disclosing the existence of the NSL. Petitioner filed a Petition to Set Aside the National Security Letter and Nondisclosure Requirement, pursuant to 18 U.S.C. §§ 3511(a) and (b).¹

Petitioner challenges the constitutionality—both facially and as applied—of the nondisclosure provision of 18 U.S.C. § 2709(c) and the judicial review provisions of 18 U.S.C. § 3511(b) (collectively “NSL nondisclosure provisions”). Petitioner argues that the nondisclosure provision of the statute is an unconstitutional prior restraint and content-based restriction on speech. More specifically, Petitioner contends that the NSL provisions lack the necessary procedural safeguards required under the First Amendment, because the government does not bear the burden to seek judicial review of the nondisclosure order and the government does not bear the burden of demonstrating that the nondisclosure order is necessary to protect specific, identified interests. Petitioner also argues that the NSL nondisclosure provisions violate the First Amendment because they act as a licensing scheme providing unfettered discretion to the FBI, and that the judicial review provisions violate separation of powers principles because the statute dictates an impermissibly restrictive standard of review for courts adjudicating challenges to nondisclosure orders.

In addition, Petitioner attacks the substantive provisions of the NSL statute itself, both separately and in conjunction with the nondisclosure provisions, arguing that the statute is a content-based restriction on speech that fails strict scrutiny.

The government opposed the Petition, filed a separate lawsuit seeking a declaration that Petitioner is required to comply with the NSL,² and filed a motion to compel compliance with the NSL in this case.³ In its opposition to the Petition, the government argues that the NSL statute satisfies strict scrutiny and does not impinge on the anonymous speech or associational rights of the subscriber whose information is sought in the NSL. The government also asserts that the nondisclosure provisions are appropriately applied to Petitioner, because the nondisclosure order is not a “classic prior restraint” warranting the most rigorous scrutiny and because it was issued in this case after an adequate certification from the FBI. Finally, the government argues that the standards of judicial review provided for review of NSLs and nondisclosure orders are constitutional. In support of its arguments in opposition to the Petition, as well as in support of its own motion to compel compliance with the NSL, the government relies on a classified declaration from a senior official with the FBI, which the Court has reviewed. The government filed a redacted and unclassified version of the FBI official's declaration, which has been provided to Petitioner and its counsel.

For the reasons discussed below, the Court finds that the NSL nondisclosure and judicial review provisions suffer from significant constitutional infirmities. Further,those infirmities cannot be avoided by “conforming” the language of the statute to satisfy the Constitution's demands, because the existing statutory language and the legislative history of the statutes block that result. As such, the Court finds section 2709(c) and 3511(b) unconstitutional, but stays the judgment in order for the Ninth Circuit to consider the weighty questions of national security and First Amendment rights presented in this case.

BACKGROUND

1. NSL Statutes at Issue

Sections 2709(a) and (b) of Title 18 of the United Sates Code provide that a wire or electronic communication service provider shall comply with a request ⁴ for specified categories of subscriber information if the Director of the FBI or his designee certifies that the records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the First Amendment to the Constitution of the United States. Section 2709(c)(1) provides that if the Director of the FBI or his designee certifies that “there may result a danger to the national security of the United States, interference with a criminal, counterterrorism, or counterintelligence investigation, interference with diplomatic relations, or danger to the life or physical safety of any person,” the recipient of the NSL shall not disclose to anyone (other than to an attorney to obtain legal advice or legal assistance with respect to the request) that the FBI has sought or obtained access to information or records sought in the NSL. Section (c)(2) provides that the FBI shall inform the recipient of the NSL of the nondisclosure requirement.

Section 3511 provides for judicial review of NSLs and nondisclosure orders issued under section 2709 and other NSL statutes.⁵ Under 3511(a), the recipient of an NSL may petition a district court for an order modifying or setting aside the NSL. The court may modify the NSL, or set it aside, only “if compliance would be unreasonable, oppressive, or otherwise unlawful.” Under 3511(b)(2), an NSL recipient subject to a nondisclosure order may petition a district court to modify or set aside the nondisclosure order. If the NSL was issued within a year of the time a challenge to the nondisclosure order is made, a court may “modify or set aside such a nondisclosure requirement if it finds that there is no reason to believe that disclosure may endanger the national security of the United States, interfere with a criminal, counterterrorism, or counterintelligence investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person.” However, if a specified high ranking government official ( i.e., the Attorney General, Deputy or Assistant Attorney Generals, the Director of the Federal Bureau of Investigation, or agency heads) certifies that disclosure “may endanger the national security of the United States or interfere with diplomatic relations, such certification shall be treated as conclusive unless the court finds that the certification was made in bad faith.” 18 U.S.C. § 3511(b)(2).

Under 3511(b)(3), if the petition to modify or set aside the nondisclosure order is filed more than one year after the NSL issued, a specified government official, within ninety days of the filing of the petition, shall either terminate the nondisclosure requirement or re-certify that disclosure may result in an enumerated harm. If the government provides that re-certification, the Court may again only alter or modify the NSL if there is “no reason to believe that disclosure may” have the impact the government says it may, and the court must treat the certification as “conclusive unless the court finds that the recertification was made in bad faith.” Finally, if the court denies a petition for an order modifying or setting aside a nondisclosure order, “the recipient shall be precluded for a period of one year from filing another petition to modify or set aside such nondisclosure requirement.”

Under 3511(d) and (e) the Court may close hearings to “the extent necessary to prevent an unauthorized disclosure of a request for records,” may seal records regarding any judicial proceedings, and “shall, upon request of the government, review ex parte and in camera any government submission, or portions thereof, which may include classified information.”

2. Prior Cases Testing Constitutionality of the NSL Provisions

This Court is not the first to address the constitutionality of the NSL provisions currently in effect. In Doe v. Gonzales, 500 F.Supp.2d 379 (S.D.N.Y.2007), affirmed in part and reversed in part and remanded by John Doe, Inc. v. Mukasey, 549 F.3d 861 (2d Cir.2008), the District Court found that the nondisclosure provision was a prior restraint and a content-based restriction on speech that violated the First Amendment because the government did not bear the burden to seek prompt judicial review of the nondisclosure order. 500 F.Supp.2d at 406 (relying on Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965)).⁶ The District Court approved allowing the FBI to determine whether disclosure would jeopardize national security, finding that the FBI's discretion in certifying a need for nondisclosure of an NSL “is broad but not inappropriately so under the circumstances” of protecting national security. Id. at 408–09. However, the District Court determined that section 3511(b)'s restriction on when a court may alter or set aside an NSL-only if there is no reason to believe that disclosure will result in one of the enumerated harms-in combination with the statute's direction that a court must accept the FBI's certification of harm as “conclusive unless the court finds that the certification was made in bad faith,” were impermissible...