In re National Security Letter
930 F. Supp. 2d 1064
N.D. Cal.2013Background
- NSL issued to Petitioner ECSP seeking subscriber information under 18 U.S.C. § 2709; FBI certifies potential danger to national security or investigations to prohibit disclosure.
- Petitioner challenges NSL nondisclosure provisions and § 3511(b) review provisions as unconstitutional facially and as applied.
- Government opposes petition, seeks compliance and a declaration that Petitioner must comply with NSL; government relies on classified FBI declaration.
- Court must decide constitutionality of NSL nondisclosure provisions and judicial review provisions, including First Amendment and separation of powers concerns.
- Court previously discussed Doe v. Gonzales and John Doe, Inc. v. Mukasey, which guided procedural safeguards and review standards.
- Court grants relief, enjoins NSLs and nondisclosure enforcement, but stays judgment for appeal or 90 days due to national security interests.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constitutionality of NSL nondisclosure provisions | Doe argues they are unconstitutional prior restraints and content-based restrictions. | Gonzales argues provisions satisfy national security needs and appropriate scrutiny. | Nondisclosure provisions unconstitutional. |
| Constitutionality of § 3511(b)(2)/(b)(3) review standards | Constitutional concerns about conclusive certification and limited review under Freedman. | Government asserts deference is appropriate in national security context. | Provisions violate First Amendment and separation of powers. |
| Duty to initiate judicial review and burden of proof | Government must initiate review and bear burden to show necessity. | Record shows no explicit mandate; government argues compliance suffices. | Government must initiate review and carry burden of proof. |
| Applicability of Freedman procedural safeguards | NSL lacks timely, expeditious review and burden-shifting violates Freedman. | Government claims safeguards are or could be satisfied in practice. | Freedman safeguards apply; statute fails to satisfy them. |
| Severability of unconstitutional nondisclosure from substantive NSL provisions | Nondisclosure provisions cannot be severed to save statute. | Severability could preserve substantive NSL provisions. | Nondisclosure provisions not severable; entire NSL invalid. |
Key Cases Cited
- Doe v. Gonzales, 500 F.Supp.2d 379 (S.D.N.Y. 2007) (First Amendment challenges to NSL nondisclosure provisions)
- John Doe, Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008) (Guided Freedman-like procedural safeguards and review)
- Freedman v. Maryland, 380 U.S. 51 (U.S. 1965) (Prior restraint safeguards for government speech restrictions)
- Seattle Times Co. v. Rhinehart, 467 U.S. 20 (U.S. 1984) (Civil discovery confidentiality distinctions not equivalent to NSL nondisclosure)
- Thirty-Seven (37) Photographs, 402 U.S. 363 (U.S. 1971) (Prompt judicial review and limits on sealing during seizures)
- Haig v. Agee, 453 U.S. 280 (U.S. 1981) (Compelling government interest in national security)