2nd Circuit Stays District Court Injunction in National Security Letter Case
September 20, 2005. The U.S. Court of Appeals (2ndCir) heard oral argument on the Department of Justice's (DOJ) Emergency Motion for Stay Pending Expedited Appeal in Doe v. Gonzales, a case pertaining to National Security Letter authority under 18 U.S.C. § 2709. The Court of Appeals granted a stay of the District Court's ruling of September 9 which enjoined the gag provisions of § 2709.
The Court of Appeals also announced the schedule for an expedited appeal process. The DOJ's brief is due by September 27. The ACLU's brief is due by October 4. (The ACLU is a named plaintiff, and the ACLU Foundation is counsel for plaintiffs.) The DOJ's reply brief is due by October 10. See, ACLU release of September 20.
Section 2709. § 2709 is titled "Counterintelligence access to telephone toll and transactional records". It provides that the FBI may "request the name, address, length of service, and local and long distance toll billing records of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service provider to which the request is made that the name, address, length of service, and toll billing records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities". (Parentheses in original.)
This section further requires service providers to comply with any such request, which is more commonly referred to as a National Security Letter or NSL. It further imposes a gag on communications about such NSLs. It provides that "No wire or electronic communication service provider, or officer, employee, or agent thereof, shall disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records under this section." The District Court ruling under review pertains to this gag provision.
There is no requirement in this section that the FBI first obtain a court order. There is no notice to the affected individuals that their privacy has been compromised. There is no procedure for the recipient, or affected individuals, to contest the validity of the NSL.
However, the Department of Justice (DOJ) has conceded that there are constitutional limitations on the gag order authority. Moreover, two different bills approved by the House and Senate in July to extend the expiring provisions of the PATRIOT Act contain amendments to Section 2709 that would limit gag order authority. See, HR 3199, the "USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005", and S 1389, the "USA PATRIOT Improvement and Reauthorization Act of 2005". See also, story titled "House Approves PATRIOT Act Extension Bill" in TLJ Daily E-Mail Alert No. 1,180, July 22, 2005.
District Court Proceedings. On August 9, 2005, a plaintiff identified as John Doe filed a complaint [18 page PDF scan of redacted copy] in U.S. District Court (DConn) against Attorney General Alberto Gonzales and others seeking a declaratory judgment that 18 U.S.C. § 2709 violates the First, Fourth and Fifth Amendments of the US Constitution, and an injunction barring the FBI from enforcing a National Security Letter. The plaintiffs also seek preliminary relief. The District Court unsealed the redacted complaint on August 24. See, story titled "Suit Challenges Constitutionality of National Security Letters" in TLJ Daily E-Mail Alert No. 1,202, August 26, 2005.
The unredacted portions of the complaint suggest that the lead plaintiff is an employee of a library that provides internet access to its users. For example, it states that "The vast majority of libraries around the country are "electronic communication service providers" under Section 2709 because they use online service to track circulation and cataloging of library materials, to track patron borrowing, and to provide Internet access to library patrons. As a result, libraries maintain a wide range of sensitive information about the reading habits and Internet usage of library patrons."
The District Court promptly heard oral arguments on August 31. It granted injunctive relief as to the gag provisions of § 2709 on September 9, but stayed its effect until September 20, to allow expedited review by the Court of Appeals. See, opinion [29 page redacted PDF scan] of September 9, and ACLU release of September 9.
The District Court held that "the application of § 2709(c) to the plaintiffs in this case on the topic of Doe's identity does not pass strict scrutiny. The defendants have failed to show a compelling state interest that is served by gagging the plaintiffs with regard to Doe's identity. If the government's interest is more broadly defined as preventing an unknown subject of the government's investigation from learning of the government's investigation, which would support a finding of a compelling interest, the gag provision as to Doe's identity is not narrowly tailored to serve that interest. Because § 2709(c) as applied cannot survive strict scrutiny, the plaintiffs have shown a substantial likelihood of success on the merits, as well a irreparable harm. Therefore, the court grants their motion to enjoin enforcement of § 2709(c) against them with regard to Doe's identity."
The District Court case is John Doe, et al. v. Alberto Gonzales, et al., U.S. District Court for the District of Connecticut, D.C. No. 3:05cv1256 JCH, Judge Janet Hall presiding.
Court of Appeals Proceedings. The DOJ brought the present expedited appeal.
It wrote in its September 15 memorandum [21 pages in PDF] that "When the Federal Bureau of Investigation investigates international terrorism and clandestine foreign intelligence activities, 18 U.S.C. § 2709 authorizes the FBI to issue National Security Letters (“NSLs”) to obtain relevant subscriber information and transactional records from wire and electronic communication service providers. To protect the integrity of such sensitive investigations, Section 2709 prohibits recipients of NSLs from disclosing that the government has sought or obtained information from the recipient pursuant to the NSL. Absent such a prohibition, disclosure of information about the NSL, including the identity of the NSL’s recipient, can seriously jeopardize the investigation itself -- for example, by alerting the target of the investigation that his activities are subject to scrutiny, and allowing the target to hide, move his activities to another provider, provide misinformation to the government, or otherwise frustrate the FBI's investigation."
It added that "Disclosure can also cause more general harm to the government’s counter-terrorism and counterintelligence efforts by allowing terrorist organizations and foreign intelligence operatives to monitor the government’s investigatory activities and look for information and patterns that can be used to evade detection and otherwise frustrate future investigations."
It argued that the gag provisions of § 2709 are constitutional, and hence, the District Court's ruling should be stayed pending consideration of the issue upon full briefing.
The Court of Appeals granted the stay requested by the DOJ.
The Court of Appeals case is Doe, et al. v. Gonzales, et al., U.S.
Court of Appeals for the Second Circuit, Judges Sotomayor, Wesley and Brieant