12/15. The U.S. Court of Appeals (2ndCir) issued its
pages in PDF] in Doe v. Mukasey, a constitutional challenge to the
FBI's use of National Security Letters (NSL) under
18 U.S.C. § 2709 to compel ISPs and phone companies to produce records.
Court of Appeals did nothing to limit the
Federal Bureau of Investigation's (FBI) use of these administrative
warrantless orders. However, it held unconstitutional on First Amendment grounds
certain limitations on service providers' ability to successfully challenge NSLs.
At the time this litigation began, the statute imposed a complete gag on
service providers who received NSLs. The Congress then amended the statute to
allow service providers to consult with counsel, and to petition the District
Court for relief, subject to strict limitations. One of these limitations was that the
District Court had to accept as conclusive certifications from the government
that there was a basis for the NSL.
This opinion affirms in part and reverses in part
the judgment of the District Court. The District Court enjoined the FBI from
issuing NSLs under § 2709, from enforcing the nondisclosure requirement of §
2709(c), and from enforcing the provision for judicial review of the
nondisclosure requirement contained in 18 U.S.C. § 3511(b). See, September 6,
[106 pages in PDF] of the District Court.
The Court of Appeals, in its just released opinion, held that §§ 2709(c) and
3511(b) "are unconstitutional to the extent that they impose a nondisclosure
requirement on NSL recipients without placing on the Government the burden of
initiating judicial review of such a requirement."
It also held that §§ 3511(b)(2) and (b)(3) "are unconstitutional to the
extent that, upon such review, a governmental official's certification that
disclosure may endanger the national security of the United States or interfere
with diplomatic relations is treated as conclusive".
The Court of Appeals also modified the District Court's "injunction by
limiting it to enjoining FBI officials from enforcing the nondisclosure
requirement of section 2709(c) in the absence of Government-initiated judicial
review. Finally, the Court of Appeals remanded to the District Court.
The Court of Appeals addressed only the First Amendment challenge to the
nondisclosure requirement and review procedure. The court did not address a 4th
Amendment challenge to the seizure of information under NSL authority. The
government adroitly evaded a court opinion on this issue by withdrawing the NSL
The FBI, which issued over 40,000 NSLs in 2005, still has authority to issue
NSLs to phone companies, ISPs, and others. It still needs no warrant or court
order. The recipients are still gagged. However, as a result of this opinion,
the recipients will have a greater likelihood of prevailing in the event that
they challenge an NSF in court.
While most phone companies and ISPs are content to quietly comply with any
and all NSLs, those few who do wish to contest NSLs now have some chance of
prevailing, or inducing the FBI to withdraw or modify NSLs.
Background. This and related cases have been pending in the U.S.
District Court (DConn), U.S.
District Court (SDNY) and Appeals Court since 2004. These cases have been
named for different Attorneys General -- previously John Ashcroft and Alberto
Gonzales, and now Michael Mukasey. Also, the underlying statute, as well as the
FBI's requests, have changed during the course of these proceedings.
The identities of the main plaintiffs, to whom the NSLs have been directed, have
not yet been disclosed in public court records. They remain John Doe, Inc. and
John Doe. The American Civil Liberties Union (ACLU) is litigating these cases,
and is also a named party.
18 U.S.C. § 2709 authorizes the FBI to issue NSLs. These are in the nature of
administrative subpoenas, and are not court approved. They compel wire and
electronic communication service providers (usually phone companies and ISPs) to
turn over to the FBI subscriber information and transactional records.
The statute also prohibits recipients of NSLs from disclosing that the
government has sought or obtained information from the recipient pursuant to the
NSL. This gag directive prevents service providers from informing the targets of
FBI investigations. It also deprives people under FBI surveillance from
challenging the NSLs. The extent to which the statute has obstructed service
providers' ability to challenge these NSLs has varied as the statute and FBI
procedures have been amended.
It should also be noted that NSL authority extends to records of financial
12 U.S.C. § 3414) and other types of records not at issue in this case.
Without prior court review, no notice and opportunity for users to challenge
NSLs, and gag orders on service providers, this process is inherently subject to
abuse. Moreover, it has been abused. This abuse has been detailed in reports of
the Department of Justice's (DOJ)
Office of the Inspector General (OIG).
On March 9, 2007, the DOJ's OIG released a
report [30 MB in
PDF] titled "A Review of the Federal Bureau of Investigation's Use of National
Security Letters". See also, story titled "DOJ IG Releases Reports on Use of
NSLs and Section 215 Authority" in
TLJ Daily E-Mail
Alert No. 1,551, March 13, 2007. That report covered the use of NSLs in 2003
On March 13, 2008, the OIG released a
pages in PDF] titled "A Review of the FBI’s Use of National Security Letters:
Assessment of Corrective Actions and Examination of NSL Usage in 2006". See
titled "DOJ Inspector General Releases Second Report on FBI Misuse of National
Security Letters" in
TLJ Daily E-Mail
Alert No. 1,730, March 12, 2008.
Statutes Under Review. 18 U.S.C. § 2709, which sets forth NSL
authority with respect to phone companies and ISPs, was amended by
the "USA PATRIOT Improvement and Reauthorization Act of 2005", which President
Bush signed into law on March 9, 2006. It is now Public Law 109-177. See, story
titled "Bush Signs PATRIOT Act Extension Bills" in
TLJ Daily E-Mail
Alert No. 1,327, March 10, 2006.
§ 2709(a) now provides that "A wire or electronic
communication service provider shall comply with a request for subscriber
information and toll billing records information, or electronic communication
transactional records in its custody or possession made by the" FBI Director.
§ 2709(b) now provides that if the FBI Director "or his designee in a position not lower than Deputy Assistant
Director at Bureau headquarters or a Special Agent in Charge in a Bureau field
office designated by the Director, certifies 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, no wire or electronic communications service provider, or officer,
employee, or agent thereof, shall disclose to any person (other than those to
whom such disclosure is necessary to comply with the request or an attorney to
obtain legal advice or legal assistance with respect to the request) that the
Federal Bureau of Investigation has sought or obtained access to information or
records under this section".
It adds that the recipient of a NSL who consults with
an attorney must inform the FBI of the "identity of an attorney to whom
disclosure was made". It further imposes a nondisclosure requirement on the
§ 3511 was added by HR 3199.
§ 3511(a) provides that "The recipient of a request for
records, a report, or other information under section 2709(b) ... may ...
petition for an order modifying or setting aside the request" in the U.S.
§ 3511(b) provides that "the 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."
But, it continues that if any of certain persons at the
DOJ or FBI "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."
§ 3511(c) adds that for petitions filed one year or
more after the FBI's NSL, the FBI "shall either terminate the nondisclosure
requirement or re-certify that disclosure may result in ..."
Then, in the case of a re-certification, the
"certification shall be treated as conclusive unless the court finds that the
recertification was made in bad faith".
Court of Appeals Opinion. In November of 2006, the government notified the District
Court that it withdrew its NSL. Hence, the Court of Appeals wrote that
"The validity of the NSL issued to John Doe, Inc., is no longer at issue because
the Government has withdrawn it, but the prohibition on disclosing receipt of
the NSL remains." The Court of Appeals opinion therefore only goes to the First
Amendment challenge to the nondisclosure requirement.
The ACLU argued that the nondisclosure requirement is a prior restraint,
content based, and subject to strict scrutiny (ie., the restraint must be
narrowly tailored to promote a compelling government interest), which standard
the government has not met.
The DOJ argued that nondisclosure requirement can be considered to satisfy
First Amendment standards based on analogies to secrecy rules applicable to
grand juries and certain interactions between individuals and governmental
entities, such as restraints on CIA employees' use of secret information.
The Court noted that "The national security context in which NSLs are authorized
imposes on courts a significant obligation to defer to judgments of Executive
The Court of Appeals wrote that "Although the nondisclosure
requirement is in some sense a prior restraint, as urged by the Plaintiffs, it
is not a typical example of such a restriction for it is not a restraint imposed
on those who customarily wish to exercise rights of free expression, such as
speakers in public fora, distributors of literature, or exhibitors of movies."
Moreover, "although the nondisclosure requirement is triggered
by the content of a category of information, that category, consisting of the
fact of receipt of an NSL and some related details, is far more limited than the
broad categories of information that have been at issue with respect to typical
"The nondisclosure requirement of subsection 2709(c) is not a
typical prior restraint or a typical content-based restriction warranting the
most rigorous First Amendment scrutiny. On the other hand, the Government's
analogies to nondisclosure prohibitions in other contexts do not persuade us to
use a significantly diminished standard of review. In any event, John Doe, Inc.,
has been restrained from publicly expressing a category of information, albeit a
narrow one, and that information is relevant to intended criticism of a
The Court of Appeals opinion reaches no conclusion as to what
standard of review applies. But, it wrote that whether the court were to apply
strict scrutiny or a less exacting form of strict scrutiny, it would reach the
same conclusion as to the constitutionality of the statutes' provisions
regarding nondisclosure and the conclusive nature of government certifications.
The Court then offered this summary: "To recapitulate our conclusions, we (1)
construe subsection 2709(c) to permit a nondisclosure requirement only when
senior FBI officials certify that disclosure may result in an enumerated harm
that is related to ``an authorized investigation to protect against
international terrorism or clandestine intelligence activities,´´ (2) construe
subsections 3511(b)(2) and (b)(3) to place on the Government the burden to show
that a good reason exists to expect that disclosure of receipt of an NSL will
risk an enumerated harm, (3) construe subsections 3511(b)(2) and (b)(3) to mean
that the Government satisfies its burden when it makes an adequate demonstration
as to why disclosure in a particular case may result in an enumerated harm, (4)
rule that subsections 2709(c) and 3511(b) are unconstitutional to the extent
that they impose a nondisclosure requirement without placing on the Government
the burden of initiating judicial review of that requirement, and (5) rule that
subsections 3511(b)(2) and (b)(3) are unconstitutional to the extent that, upon
such review, a governmental official’s certification that disclosure may
endanger the national security of the United States or interfere with diplomatic
relations is treated as conclusive."
How is the FBI to comply with part (4) of the above summary? The opinion
offers some thoughts, but leaves it to the government to determine how to
discharge this obligation.
Reaction. The ACLU's Melissa Goodman stated in a
that "We are gratified that the appeals court found that the FBI cannot silence
people with complete disregard for the First Amendment simply by saying the
words `national security,´" ... This is a major victory for the rule of law."
She continued that "The court recognized the need for judicial oversight of
the government's dangerous gag power and rejected the Bush administration's
position that the courts should just rubber-stamp these gag orders. By upholding
the critical check of judicial review, the FBI can no longer use this incredible
power to hide abuse of its intrusive Patriot Act surveillance powers and silence
The ACLU's Arthur Eisenberg stated in the same release that "The appellate
panel correctly observed that the imposition of such a conclusive presumption
ignored well-settled First Amendment standards and deprived the judiciary of its
important function as a protector of fundamental rights".
The Electronic Frontier Foundation (EFF) previously submitted an
amicus curiae brief [35 pages in PDF] to the Court of Appeals. The EFF's
Kurt Upsahl stated in a
release that "The fig leaf was not good enough to satisfy the First
Amendment. The Second Circuit struck down the statute's truncated judicial
review provisions, which required the court to treat the FBI's assertions as
conclusive absent evidence of bad faith. In addition, the government was
required to initiate judicial proceedings to enforce the gag, instead of the ISP
who received the NSL. The Court also construed several controversial aspects of
the NSL statute narrowly, substantially reducing the scope of the FBI's gag
More Information. For TLJ coverage of the early stages, see:
titled "Lawsuit Challenges Constitutionality of Law Allowing FBI to Obtain
Records from Electronic Communication Service Providers" in
TLJ Daily E-Mail
Alert No. 887, April 29, 2004.
- story titled "District Court Holds National Security Letters Statute
TLJ Daily E-Mail
Alert No. 989, October 4, 2004.
story titled "Suit Challenges Constitutionality of National Security
Letters" in TLJ
Daily E-Mail Alert No. 1,202, August 26, 2005.
titled "2nd Circuit Stays District Court Injunction in National Security
Letter Case" in
TLJ Daily E-Mail Alert No. 1,218, September 21, 2005.
This case is John Doe, Inc., et al. v. Michael Mukasey, U.S. Court of
Appeals for the 2nd Circuit, App. Ct. No. 07-4943-cv, an appeal from the U.S.
District Court for the Southern District of New York, D.C. No. 04 Civ 2614 (VM),
Judge Victor Marrero presiding.
Judge Jon Newman wrote the opinion of the Court of Appeals, in which Judges
Sotomayor and Calabresi joined.