National Security Letter v. Sessions
863 F.3d 1110
9th Cir.2017Background
- The FBI may issue National Security Letters (NSLs) under 18 U.S.C. § 2709 to wire or electronic communication service providers requesting subscriber/transactional records relevant to national-security investigations; NSLs may include a nondisclosure requirement forbidding recipients from revealing that the FBI sought or obtained such records.
- A high-ranking FBI official must certify that disclosure “may result” in one of four harms: threat to national security, interference with investigations, interference with diplomatic relations, or danger to life/safety; recipients are notified of the right to judicial review under 18 U.S.C. § 3511.
- Petitioners (CREDO Mobile and CloudFlare) received NSLs (2011–2013) and challenged the nondisclosure requirements as violating the First Amendment; district court decisions varied as statutory amendments and procedural safeguards changed over time.
- Congress amended the NSL statute in 2015 (USA FREEDOM Act), adding procedures including DOJ/FBI termination-review requirements and a mechanism permitting limited aggregate disclosures by covered persons (50 U.S.C. § 1874).
- On remand under the 2015 law, the district court enforced some NSLs and set aside others; the FBI later terminated or narrowed nondisclosure for some NSLs per new Termination Procedures, leaving a limited set of nondisclosure obligations at issue on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2709(c) nondisclosure is content-based regulation of speech | Recipients: It forbids speech about a specific topic (receipt of NSLs), so it is content-based and presumptively invalid | Government: The restriction serves national-security interests and is a permissible confidentiality restriction | Court: § 2709(c) is content-based on its face and therefore subject to strict scrutiny |
| Whether § 2709(c) survives strict scrutiny (narrow tailoring / compelling interest) | Recipients: Overbroad and not least restrictive (bars harmless disclosures, allows indefinite restraints, gives FBI too much discretion) | Government: National security is compelling; statute requires individualized certification that disclosure “may result” in enumerated harms; 2015 termination procedures and judicial review limit duration and scope | Court: Survives strict scrutiny — national security is compelling and statute (with 2015 amendments) is narrowly tailored |
| Whether § 2709(c) is an unconstitutional prior restraint requiring Freedman procedural safeguards | Recipients: It functions as a prior restraint and needs narrow, objective standards and the full Freedman safeguards | Government: Statute provides expedited review, government must go to court within 30 days after notice, and courts may review ex parte/classified submissions; burden on government and recipient’s right to prompt review are satisfied | Court: Even if Freedman applies, the 2015 NSL law provides the required safeguards (short pre-review period, direction to courts to rule expeditiously, government’s burden to seek and justify nondisclosure) |
| Whether judicial-review and termination mechanisms are adequate to prevent indefinite/overbroad nondisclosure | Recipients: Judicial review is rarely used and termination procedures allow long or open-ended nondisclosure | Government: Termination procedures (3-year review and closure-triggered review), judicial modification, and courts’ authority to impose periodic review suffice | Court: Procedures plus availability of judicial modification/termination adequately address duration and overbreadth concerns |
Key Cases Cited
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (content-based speech restrictions trigger strict scrutiny)
- Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) (government’s interest in combating terrorism is compelling)
- Haig v. Agee, 453 U.S. 280 (1981) (national security is an overriding governmental interest)
- Freedman v. Maryland, 380 U.S. 51 (1965) (procedural safeguards required for prior restraints: brief specified pre-review period, expeditious judicial review, government bears burden in court)
- John Doe, Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008) (interpreting “may result” to require a good-reason/good-reason-to-believe showing; relevant precedent on NSL review)
- Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) (narrow tailoring requires considering less-restrictive alternatives)