John Doe, Inc. v. Mukasey

Decision Date15 December 2008
Docket NumberDocket No. 07-4943-cv.
Citation549 F.3d 861
PartiesJOHN DOE, INC., John Doe, American Civil Liberties Union, American Civil Liberties Union Foundation, Plaintiffs-Appellees, v. Michael B. MUKASEY, in his official capacity as U.S. Attorney General of the United States, Robert Mueller, in his official capacity as Director of the Federal Bureau of Investigation, Valerie E. Caproni, in her official capacity as General Counsel of the Federal Bureau of Investigation, Defendants-Appellants.
CourtU.S. Court of Appeals — Second Circuit

(Theresa A. Chmara, Brian Hauck, Anne E. Ralph, Jenner & Block LLP, Washington, D.C., for amici curiae American Library Ass'n, et al., in support of Plaintiffs-Appellees.).

Before: NEWMAN, CALABRESI, and SOTOMAYOR, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

This appeal concerns challenges to the constitutionality of statutes regulating the issuance by the Federal Bureau of Investigation ("FBI") of a type of administrative subpoena generally known as a National Security Letter ("NSL") to electronic communication service providers ("ECSPs"). See 18 U.S.C. §§ 2709, 3511 (collectively "the NSL statutes"). ECSPs are typically telephone companies or Internet service providers. An NSL, in the context of this appeal,1 is a request for information about specified persons or entities who are subscribers to an ECSP and about their telephone or Internet activity. Primarily at issue on this appeal are challenges to the provisions (1) prohibiting the recipient from disclosing the fact that an NSL has been received, see 18 U.S.C. § 2709(c), and (2) structuring judicial review of the nondisclosure requirement, see id. § 3511(b).

These challenges arise on an appeal by the United States from the September 7, 2007, judgment of the District Court for the Southern District of New York (Victor Marrero, District Judge), enjoining FBI officials from (1) issuing NSLs under section 2709, (2) enforcing the nondisclosure requirement of subsection 2709(c), and (3) enforcing the provisions for judicial review of the nondisclosure requirement contained in subsection 3511(b).2 See Doe v. Gonzales, 500 F.Supp.2d 379 (S.D.N.Y. 2007) ("Doe II"). The District Court ruled that subsections 2709(c) and 3511(b) are unconstitutional on First Amendment and separation-of-powers grounds, see id. at 405-06, 411-13, 416-22, and that subsection 2709(c) could not be severed from section 2709, see id. at 424-25.

We agree that the challenged statutes do not comply with the First Amendment, although not to the extent determined by the District Court, and we also conclude that the relief ordered by the District Court is too broad. We therefore affirm in part, reverse in part, and remand for further proceedings.


The parties. The Plaintiffs-Appellees are an Internet service provider (John Doe, Inc.), the provider's former president (John Doe), the American Civil Liberties Union ("ACLU"), and the American Civil Liberties Union Foundation ("ACLUF").3 The Defendants-Appellants are the Attorney General, the Director of the FBI, and the General Counsel of the FBI, all sued in their official capacities.

The NSL. In February 2004, the FBI delivered the NSL at issue in this litigation to John Doe, Inc. The letter directed John Doe, Inc., "to provide the [FBI] the names, addresses, lengths of service and electronic communication transactional records, to include [other information] (not to include message content and/or subject fields) for [a specific] email address." The letter certified that the information sought was relevant to an investigation against international terrorism or clandestine intelligence activities and advised John Doe, Inc., that the law "prohibit[ed] any officer, employee or agent" of the company from "disclosing to any person that the FBI has sought or obtained access to information or records" pursuant to the NSL provisions. The letter also asked that John Doe provide the relevant information personally to a designated FBI office.

Section 2709 (2004 version). Section 2709 was originally enacted in 1986 as part of Title II of the Electronic Communication Privacy Act of 1986, Pub.L. No. 99-508, § 201, 100 Stat. 1848, 1867-68 (1986). It was amended in 1993 by Pub.L. No. 103-142, 107 Stat. 1491 (1993), in 1996 by Pub.L. No. 104-293, 110 Stat. 3461 (1996), and in 2001 by the USA Patriot Act, Pub.L. No. 107-56, 115 Stat. 272, 365 (2001).

Subsection 2709(a) imposes a duty on ECSPs to comply with requests for specified information about a subscriber, and subsection 2709(b) authorizes the Director of the FBI and other FBI officials to request specified information about a subscriber from ECSPs. The texts of subsections 2709(a) and (b), as they existed in 2004, when this lawsuit was filed (the current versions are unchanged) are set out in the margin.4 Subsection 2709(c), as it existed in 2004, imposed a blanket nondisclosure requirement prohibiting an ECSP from disclosing receipt of an NSL. The text of subsection 2709(c), as it existed in 2004 (it has since been changed), is set out in the margin.5

The lawsuit and the District Court's first decision. The Plaintiffs filed this lawsuit in April 2004 and an amended complaint in May 2004. They contended that section 2709 violated the First and Fourth Amendments by authorizing the FBI to compel the disclosure of private records relating to constitutionally protected speech and association; they also contended that the nondisclosure requirement of subsection 2709(c) violated the First Amendment by permanently barring NSL recipients from disclosing that the FBI had sought or obtained information from them.

On the Plaintiffs' motion for summary judgment, the District Court ruled primarily that section 2709 (presumably the disclosure requirements of subsections 2709(a) and (b)) was unconstitutional under the Fourth Amendment because it authorized "coercive searches effectively immune from any judicial process," Doe v. Ashcroft, 334 F.Supp.2d 471, 494-506 (S.D.N.Y.2004) ("Doe I"), and that the nondisclosure requirement of subsection 2709(c) was unconstitutional under the First Amendment because it was an unjustified prior restraint and a content-based restriction on speech, see id. at 511-25. Nearly one year later, a District Court in Connecticut preliminarily enjoined enforcement of the nondisclosure requirement of subsection 2709(c), finding a probability of success on the claim that subsection 2709(c) was unconstitutional under the First Amendment because it was an unjustified prior restraint and content-based restriction. See Doe v. Gonzales, 386 F.Supp.2d 66, 73-75, 82 (D.Conn.2005) ("Doe CT").

Amendments to the NSL statutes. While appeals in Doe I and Doe CT were pending, Congress amended the NSL statutes in two respects. See USA Patriot Improvement and Reauthorization Act of 2005, §§ 115, 116(a), Pub.L. No. 109-177, 120 Stat. 192, 211-14 (Mar. 9, 2006) ("the Reauthorization Act"), amended by USA Patriot Act Additional Reauthorizing Amendments Act of 2006, § 4(b), Pub.L. No. 109-178, 120 Stat. 278, 280 (Mar. 9, 2006) ("Additional Reauthorization Act"), codified at 18 U.S.C.A. § 2709(c) (West Supp.2008). First, although leaving intact subsections 2709(a) and (b), requiring compliance with NSLs, Congress amended the nondisclosure prohibition of subsection 2709(c) to require nondisclosure only upon certification by senior FBI officials that "otherwise 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." Id. § 2709(c)(1) ("the enumerated harms").6 The Reauthorization Act amended subsection 2709(c) by replacing the single paragraph of former subsection 2709(c) with four subdivisions, the fourth of which was amended by the Additional Reauthorization Act. We consider below the text of amended subsection 2709(c), which is set out in the margin.7 Second, in the Reauthorization Act, Congress added provisions for judicial review, now codified in section 3511, to permit the recipient of an NSL to petition a United States district court for an order modifying or setting aside the NSL, see 18 U.S.C.A. § 3511(a) (West Supp.2008), and the nondisclosure requirement, see id. § 3511(b). The NSL may be modified if "compliance would be unreasonable, oppressive, or otherwise unlawful." Id. § 3511(a). The nondisclosure requirement, which prohibits disclosure by the NSL recipient of the fact that the FBI has sought or obtained access to the requested information, may be modified or set aside, upon a petition filed by the NSL recipient, id. § 3511(b)(1), if the district court "finds ...

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