Under Seal v. Sessions (In re Nat'l Sec. Letter)

Decision Date17 July 2017
Docket NumberNo. 16-16067, No. 16-16081, No. 16-16082,16-16067
Citation863 F.3d 1110
Parties IN RE NATIONAL SECURITY LETTER, Under Seal, Petitioner-Appellant, v. Jefferson B. Sessions III, Attorney General, Respondent-Appellee. In re National Security Letter, Under Seal, Petitioner-Appellant, v. Jefferson B. Sessions III, Attorney General, Respondent-Appellee. In re National Security Letter, Under Seal, Petitioner-Appellant, v. Jefferson B. Sessions III, Attorney General, Respondent-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Andrew Crocker (argued), Nathan Cardozo, Lee Tien, Kurt Opsahl, Jennifer Lynch, David Greene, Cindy Cohn, and Aaron Mackey, Electronic Frontier Foundation, San Francisco, California; Richard Wiebe, Law Office of Richard R. Wiebe, San Francisco, California; for Petitioner-Appellants.

Lewis S. Yelin (argued), Scott R. McIntosh, and Douglas N. Letter, Appellate Staff; Brian Stretch, United States Attorney; Benjamin C. Mizer, Principal Deputy Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Respondent-Appellee.

Before: Sandra S. Ikuta, N. Randy Smith, and Mary H. Murguia, Circuit Judges.

OPINION

IKUTA, Circuit Judge:

In this case, we consider challenges to the constitutionality of the law authorizing the Federal Bureau of Investigation (FBI) to prevent a recipient of a national security letter (NSL) from disclosing the fact that it has received such a request. 18 U.S.C. § 2709(c). An NSL is an administrative subpoena issued by the FBI to a wire or electronic communication service provider which requires the provider to produce specified subscriber information that is relevant to an authorized national security investigation. Id. § 2709(a). By statute, the NSL may include a requirement that the recipient not "disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records" under the NSL law. Id. § 2709(c)(1)(A). Both the information request and the nondisclosure requirement are subject to judicial review. See id. § 3511. (Because § 2709 and § 3511 work together, we refer to them collectively as "the NSL law.")

Certain recipients of these NSLs claim that the nondisclosure requirement violates their First Amendment rights. We hold that the nondisclosure requirement in 18 U.S.C. § 2709(c) is a content-based restriction on speech that is subject to strict scrutiny, and that the nondisclosure requirement withstands such scrutiny. Accordingly, we affirm.

I

We begin by reviewing the statutory framework under which NSLs are issued. The law authorizing the FBI to send an information request to a wire or electronic communication service provider was originally enacted as part of the Electronic Communications Privacy Act of 1986. Pub. L. No. 99-508, § 201, 100 Stat. 1848, 1867. The law was extensively amended in 2006, as part of the USA Patriot Improvement and Reauthorization Act of 2005. Pub. L. No. 109-177, §§ 115, 116(a), 120 Stat. 192, 211–17 (2006). The letters received by the recipients here were issued under the 2006 version of the NSL law. Subsequently, Congress enacted the USA FREEDOM Act of 2015, Pub. L. No. 114-23, 129 Stat. 268, which further amended the NSL law effective June 2, 2015.1

The NSL law is best understood as a form of administrative subpoena. Congress may authorize federal agencies to issue administrative subpoenas without court authorization for any purpose within Congress's constitutional power. See Okla. Press Publ'g Co. v. Walling , 327 U.S. 186, 208–09, 66 S.Ct. 494, 90 L.Ed. 614 (1946) ; see also ICC v. Brimson , 154 U.S. 447, 472–73, 14 S.Ct. 1125, 38 L.Ed. 1047 (1894),overruled on other grounds by Bloom v. Illinois , 391 U.S. 194, 198–200, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968). But while an agency may issue a subpoena without prior judicial approval, it must invoke the aid of a federal court to enforce it. See, e.g. , United States v. Sec. State Bank & Trust , 473 F.2d 638, 641–42 (5th Cir. 1973) ; see also Shasta Minerals & Chem. Co. v. SEC , 328 F.2d 285, 286 (10th Cir. 1964). The "power to punish is not generally available to federal administrative agencies," and so enforcement must be sought "by way of a separate judicial proceeding." Shasta Minerals , 328 F.2d at 286.

Sections 2709 and 3511 follow the statutory framework typically used to authorize administrative subpoenas. Compare 18 U.S.C. §§ 2709, 3511, with, e.g. , 21 U.S.C. § 876(a). Section 2709 authorizes the FBI to make an information request to "[a] wire or electronic communication service provider" for "subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession," and provides that the recipient "shall comply" with the request. 18 U.S.C. § 2709(a).2 In order to issue such a request, the FBI Director or a sufficiently high-ranking designee of the Director must "specifically identif [y] a person, entity, telephone number, or account as the basis for a request," and must certify that the "records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities" and that the investigation "is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States." Id. § 2709(b)(1)(2).3 The NSL must include notice of the availability of judicial review under 18 U.S.C. § 3511. Id. § 2709(d).

The NSL law contemplates that in some cases, a recipient's disclosure of the fact that it has received an FBI request for specific information may result in one of four enumerated harms: "(i) a danger to the national security of the United States; (ii) interference with a criminal, counterterrorism, or counterintelligence investigation; (iii) interference with diplomatic relations; or (iv) danger to the life or physical safety of any person." Id. § 2709(c)(1)(B).4 If the FBI Director or a sufficiently high-ranking designee of the Director issues a certification "that the absence of a prohibition of disclosure under this subsection may result" in one of these harms, id. , and the government gives the recipient notice of the availability of judicial review pursuant to § 3511, see id. § 2709(d)(2), the government may prohibit the recipient from disclosing that it has received the NSL, see id. § 2709(c)(1)(A),5 subject to such judicial review.

There are three statutory exceptions to the nondisclosure requirement. See id. § 2709(c)(2).6 First, a recipient "may disclose information otherwise subject to any applicable nondisclosure requirement" to "those persons to whom disclosure is necessary in order to comply with the request." Id. § 2709(c)(2)(A)(i). Second, the recipient may disclose such information to "an attorney in order to obtain legal advice or assistance regarding the request." Id. § 2709(c)(2)(A)(ii). Third, if the recipient wants to provide the information to other individuals, it may do so if it obtains the permission of the FBI Director or the designee of the Director. Id. § 2709(c)(2)(A)(iii). The recipient must also inform those persons receiving the information that they are subject to the same nondisclosure requirement applicable to the initial recipient, id. § 2709(c)(2)(C).

As is typical in the administrative subpoena context, § 2709 does not contain any penalty provision either for failure to comply with the information request or for failure to comply with the nondisclosure requirement. Only a court has authority to enforce the information request or the nondisclosure requirement. See id. § 3511. If a recipient fails to comply with an information request, the government "may invoke the aid" of a district court "to compel compliance with the request." Id. § 3511(c).7 The court may "issue an order requiring the person or entity to comply with the request," and "[a]ny failure to obey the order of the court may be punished by the court as contempt thereof." Id. Alternatively, the recipient of an NSL may petition the district court "for an order modifying or setting aside the request," and the district court may do so "if compliance would be unreasonable, oppressive, or otherwise unlawful." Id. § 3511(a).8

Whenever a nondisclosure requirement under § 2709(c) is imposed on a recipient, the recipient may challenge the requirement in one of two ways. First, the recipient may "file a petition for judicial review in any court described in [§ 3511(a) ]." Id. § 3511(b)(1)(A).9 Second, the recipient "may notify the Government" that it desires judicial review, id. , in which case "[n]ot later than 30 days after the date of receipt of a notification [from the recipient], the Government shall apply [to the district court] for an order prohibiting" disclosure, id. § 3511(b)(1)(B). The government's application for a nondisclosure order (or for an extension of such an order), must include a certification from the FBI Director or a sufficiently high-ranking designee "containing a statement of specific facts indicating that the absence of a prohibition of disclosure under [§ 3511(b) ] may result in" one of the four harms enumerated in § 2709(c)(1)(B). Id. § 3511(b)(2).10 The nondisclosure requirement remains in effect while the district court considers the recipient's challenge or the government's application for a nondisclosure order. Id. § 3511(b)(1)(B).

A court receiving a recipient's petition for judicial review of a nondisclosure requirement or the government's application for a nondisclosure order "should rule expeditiously." Id. § 3511(b)(1)(C). The court "shall issue a nondisclosure order or extension thereof ... if the court determines that there is [good] reason to believe that disclosure of the information subject to the nondisclosure requirement during the applicable time period may result in" one of the four enumerated harms. Id. § 3511(b)(3).11 In making this...

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