IN RE NATIONAL SECURITY LETTER
No. 16-16067, No. 16-16081, No. 16-16082
United States Court of Appeals, Ninth Circuit
July 17, 2017
863 F.3d 1110
Relators did not exercise any of these options. Because their post-judgment motion did not ask for a substantive change to the district court‘s decision, it was not an
DISMISSED.
Under Seal, Petitioner-Appellant,
v.
Jefferson B. Sessions III, Attorney General, Respondent-Appellee.
No. 16-16067, No. 16-16081, No. 16-16082
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 22, 2017, San Francisco, California
Filed July 17, 2017
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,
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.
Certain recipients of these NSLs claim that the nondisclosure requirement violates their First Amendment rights. We hold that the nondisclosure requirement in
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 The law authorizing the FBI to send an information request to a wire or electronic communication service provider was originally enacted as part of the Electronic Communications Privacy Act of 1986.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 (1946); see also ICC v. Brimson, 154 U.S. 447, 472-73 (1894), overruled on other grounds by Bloom v. Illinois, 391 U.S. 194, 198-200 (1968). But while an agency may issue a subpoena
Sections 2709 and 3511 follow the statutory framework typically used to authorize administrative subpoenas. Compare
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.
There are three statutory exceptions to the nondisclosure requirement. See id.
As is typical in the administrative subpoena context,
Whenever a nondisclosure requirement under
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.
In amending the NSL law in 2015, Congress also required the Attorney General to promulgate procedures for periodically reviewing and terminating any nondisclosure requirements issued in connection with an NSL. Pub. L. No. 114-23, Title V, § 502(f), 129 Stat. at 288 (codified at
The 2015 legislation amending the NSL law also added
II
We next turn to the facts of these consolidated appeals, which involve five NSLs issued to two recipients between 2011 and 2013 (while the 2006 NSL law remained in effect). Each NSL at issue contained an information request and a nondisclosure requirement, and informed the recipient that it could seek judicial review of the nondisclosure requirement by notifying the FBI and that the FBI would accordingly initiate judicial review within 30 days.
The first recipient, CREDO Mobile, received three of the NSLs at issue, the first in 2011 and two more in 2013. The second recipient, CloudFlare, received the other two NSLs, both in 2012. Following receipt, CREDO and CloudFlare petitioned the district court to set aside the information requests and nondisclosure requirements contained in each NSL. Each recipient also sought to enjoin the government from issuing additional NSLs and from imposing additional nondisclosure requirements. In response, the government cross-moved in each case to compel compliance with the NSLs.
In considering the 2011 NSL issued to CREDO, the district court held that the nondisclosure and judicial review provisions in the 2006 NSL law violated the First Amendment and that these provisions were not severable from the remainder of the statute, and accordingly enjoined the government from issuing information requests and from enforcing nondisclosure requirements. See In re Nat‘l Sec. Letter, 930 F. Supp. 2d 1064, 1081 (N.D. Cal. 2013). The district court stayed its decision pending the resolution of the government‘s appeal.
Notwithstanding its conclusion that the 2006 NSL law was constitutionally deficient, the district court denied the petitions to set aside the information requests and nondisclosure requirements in the 2013 NSLs issued to CREDO and the 2012 NSLs issued to CloudFlare. The district court reasoned that those NSLs were issued in full compliance with the procedural and substantive requirements suggested by the Second Circuit in John Doe, Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008), which had held that the 2006 NSL law could be constitutionally applied if certain additional safeguards were provided. CREDO and CloudFlare appealed.
While we considered these appeals, Congress enacted the USA FREEDOM Act, effective June 2, 2015. Recognizing the extensive changes to the NSL law made by this enactment, we vacated the district court‘s judgments and remanded to allow the district court to consider in the first
On remand, CREDO and CloudFlare submitted renewed petitions under
CREDO and CloudFlare appealed the denial of their petitions to set aside the information requests and nondisclosure requirements in the 2011 and 2012 NSLs. The government cross-appealed the district court‘s decision to set aside the nondisclosure requirements in the 2013 NSLs to CREDO, but has since voluntarily dismissed its cross-appeal.12
While this appeal was pending, the FBI closed the investigation underlying the 2011 NSL to CREDO. Following the Termination Procedures adopted as required by the 2015 amendments, the FBI determined that continued nondisclosure was no longer necessary and so notified CREDO in writing. According to the FBI‘s letter to CREDO, CREDO may now disclose “[t]he fact that [CREDO] received the NSL on a certain date” and “[w]hether or not [CREDO] provided responsive information to the FBI pursuant to the NSL.” However, “the nondisclosure requirement remains in place for any information regarding the customer account(s) for which information was sought, as well as any other information that could be used to identify the subscriber(s) for the customer account(s).”13
The FBI also closed the investigation underlying one of the 2012 NSLs issued to CloudFlare. Following the Termination Procedures, the FBI determined that continued nondisclosure was no longer necessary and provided CloudFlare written notice to that effect. According to the FBI‘s letter to CloudFlare, CloudFlare may now disclose the “[t]he fact that [CloudFlare] received the NSL on a certain date“; “[t]he customer account(s) for which information was sought“; and “[w]hether or not [CloudFlare] provided responsive information to the FBI pursuant to the NSL.”14 The nondisclosure requirement contained in the second 2012 NSL to CloudFlare remains in full effect.15
In sum, CREDO is now subject to a nondisclosure requirement “for any infor-
III
We begin our constitutional analysis by analyzing whether this appeal raises a facial challenge or an as-applied challenge to the NSL law. “A facial challenge is an attack on a statute itself as opposed to a particular application.” City of Los Angeles v. Patel, — U.S. —, 135 S.Ct. 2443, 2449, 192 L.Ed.2d 435 (2015). By contrast, “[a]n as-applied challenge contends that the law is unconstitutional as applied to the litigant‘s particular speech activity, even though the law may be capable of valid application to others.” Foti v. City of Menlo Park, 146 F.3d 629, 635 (9th Cir. 1998). The recipients assert that the nondisclosure requirement of
“[C]onstitutional questions of fact (such as whether certain restrictions create a ‘severe burden’ on an individual‘s First Amendment rights) are reviewed de novo.” Prete v. Bradbury, 438 F.3d 949, 960 (9th Cir. 2006) (emphasis omitted). We also review legal conclusions de novo. Id.
IV
The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech, or of the press.” U.S. Const. amend. I. Despite the breadth of this language, the Supreme Court has concluded that some restrictions on speech are constitutional, provided they survive the appropriate level of scrutiny. When the government restricts speech based on its content, a court will subject the restriction to strict scrutiny. See Reed v. Town of Gilbert, — U.S. —, 135 S.Ct. 2218, 2226, 192 L.Ed.2d 236 (2015); United States v. Playboy Entm‘t Grp., Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 885 (2000). Under strict scrutiny, restrictions “may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” Reed, 135 S.Ct. at 2226. If the governmental restriction on speech is content neutral, a court will uphold it if it furthers “an important or substantial governmental interest unrelated to the suppression of free speech, provided the incidental restrictions did not burden substantially more speech than is necessary to further those interests.” Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 186, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997) (internal quotation marks omitted).17
Accordingly, our analysis of
A
We turn first to the question whether the nondisclosure requirement in
Thus, a regulation or law that restricts speech based on its topic, ides, message, or content is “content based” on its face, and is accordingly subject to strict scrutiny. If a court determines that the law is content based at this first step, the court need not “consider the government‘s justifications or purposes” for enacting the regulation. Id. at 2227. “A law that is content based on its face is subject to strict scrutiny regardless of the government‘s benign motive, content-neutral justification, or lack of animus toward the ideas contained in the regulated speech.” Id. at 2228 (internal quotation marks omitted). Only if a law is content neutral on its face should a court proceed to consider whether it is nevertheless a content-based regulation of speech because it “cannot be justified without reference to the content of the regulated speech, or [was] adopted by the government because of disagreement with the message [the speech] conveys.” Id. at 2227 (second alteration in original) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989)) (internal quotation marks omitted).
Applying this framework here, the nondisclosure requirement in
B
Because we have determined that the restriction imposed by the nondisclosure requirement is content based, we turn to the Supreme Court‘s strict scrutiny test for content-based restrictions on speech and ask whether the nondisclosure requirement permitted by
As a threshold matter, we readily conclude that national security is a compelling government interest. Indeed, the Court has recognized that “[e]veryone agrees that the Government‘s interest in combating terrorism is an urgent objective of the highest order.” Holder v. Humanitarian Law Project, 561 U.S. 1, 28, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010). “It is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.” Haig v. Agee, 453 U.S. 280, 307, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981) (quoting Aptheker v. Sec‘y of State, 378 U.S. 500, 509, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964)). By the same token, keeping sensitive information confidential in order to protect national security is a compelling government interest. See Dep‘t of the Navy v. Egan, 484 U.S. 518, 527, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988) (recognizing “the Government‘s compelling interest in withholding national security information from unauthorized persons in the course of executive business” (internal quotation marks omitted)); Snepp v. United States, 444 U.S. 507, 509 n.3, 100 S.Ct. 763, 62 L.Ed.2d 704 (1980)
We therefore turn to the question whether the nondisclosure requirement in
The recipients argue that the 2015 NSL law is not narrowly tailored for two reasons. First, they claim it is overinclusive because it prevents disclosure of the bare fact of receiving the NSL as well as disclosure of the NSL‘s content. Second, they claim it is not the least restrictive alternative because it allows the government to prohibit disclosure indefinitely. Because the recipients claim that the NSL law constitutes a system of prior restraints, they also argue that the statute fails to provide the government with “narrow, objective, and definite standards” to guide its decision to prohibit disclosure. Shuttlesworth, 394 U.S. at 150-51, 89 S.Ct. 935. We consider each argument in turn.
1
The recipients contend that the NSL law is not narrowly tailored because, as they interpret the NSL law, it prevents disclosures that are not harmful to national security and therefore does not further the government‘s compelling interest. Specifically, the recipients argue that a recipient who has millions of customers could disclose the receipt of a single NSL without impeding national security interests. Second, the recipients argue that
These arguments are based on the erroneous assumption that, in order to determine whether the NSL law is narrowly tailored, we must analyze each provision of the NSL law individually to ensure that each is itself narrowly tailored. This granular focus cannot be reconciled with the Supreme Court‘s direction that narrow tailoring is not perfect tailoring. Williams-Yulee, 135 S.Ct. at 1671. Analyzing the statute as a whole, we reject the recipients’ arguments.
The statute does not authorize the government to issue a nondisclosure requirement based on a mere possibility of harm; rather, a high ranking official must certify that disclosure “may result” in one of four enumerated harms,
Similarly, the new 2015 provision allowing disclosures to “other persons as permitted by the [FBI] Director” or the Director‘s designee, id.
Nor are we persuaded by the recipients’ attempt to divorce the nondisclosure requirement from the availability of judicial review, which authorizes a court to modify a nondisclosure order with “conditions appropriate to the circumstances,”
Finally, the provision allowing a speaker to disclose its status as a recipient of a specified range of NSLs, see
2
The recipients next argue that the nondisclosure requirement in
Nonetheless, the Termination Procedures do not resolve the duration issue entirely. For example, where the government determines that the nondisclosure requirement remains necessary at the close of an investigation, the Termination Procedures do not require any subsequent review. Similarly, if an investigation extends for many years, the Termination Procedures do not provide for any interim review between the third-year anniversary and the date the investigation closes.
But the Termination Procedures are supplemented by the availability of judicial review. When judicial review is sought, either through a recipient‘s own petition or on the government‘s application following notice from a recipient, the reviewing court “shall . . . issue a nondisclosure order that includes conditions appropriate to the circumstances.”
Moreover, as part of the judicial review process, a court may require the government to justify the continued necessity of nondisclosure on a periodic, ongoing basis, or may terminate the nondisclosure requirement entirely if the government cannot certify that one of the four enumerated harms may occur. See In re Nat‘l Sec. Letters, No. 16-518, 2016 WL 7017215, at *4 (D.D.C. July 25, 2016) (imposing periodic review every three years); see also In re Nat‘l Sec. Letter, 165 F. Supp. 3d 352, 356 (D. Md. 2015) (imposing periodic review every 180 days until issuance of the Termination Procedures). Accordingly, any constitutional concerns regarding the duration of the nondisclosure requirement can be addressed by a reviewing court‘s determination that periodic review should be one of the “conditions appropriate to the circumstances.” See
We therefore conclude that the 2015 NSL law is narrowly tailored to serve a compelling government interest, both as to inclusiveness and duration. Accordingly, we hold that the nondisclosure requirement in
V
Having determined that the First Amendment does not prevent the govern-
The recipients argue that the NSL law‘s nondisclosure requirement is such a restriction because it is a content-based rule that “forbid[s] certain communications when issued in advance of the time that such communications are to occur.” Alexander v. United States, 509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993). In the absence of such a restriction, the recipients argue, they would have the opportunity to disclose the receipt of an NSL, subject to subsequent judicial review.
This argument is not entirely persuasive. As the Second Circuit noted,
In later years, the Supreme Court has extended the applicability of Freedman, holding that government schemes for licensing constitutionally permissible speech or communicative conduct also require procedural safeguards. See Riley v. Nat‘l Fed‘n of the Blind of N.C., Inc., 487 U.S. 781, 802, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988) (requiring procedural safeguards in government schemes for licensing professional fundraisers to solicit money); City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774, 776, 780, 124 S.Ct. 2219, 159 L.Ed.2d 84 (2004) (requiring procedural safeguards in government schemes for licensing adult entertainment businesses); see also FW/PBS, 493 U.S. at 220, 228-30, 110 S.Ct. 596 (principal opinion of O‘Connor, J.) (same); Dream Palace v. County of Maricopa, 384 F.3d 990, 1001 (9th Cir. 2004) (same). The safeguards required for licensing schemes are less extensive than those required in Freedman because they do “not present the grave dangers of a censorship system.” City of Littleton, 541 U.S. at 783, 124 S.Ct. 2219 (quoting FW/PBS, 493 U.S. at 228, 110 S.Ct. 596) (internal quotation marks omitted).
The NSL law does not resemble these government censorship and licensing schemes. It neither requires a speaker to submit proposed speech for review and approval, nor does it require a speaker to obtain a license before engaging in business. Rather, the NSL law prohibits the disclosure of a single, specific piece of information that was generated by the government: the fact that the government has requested information to assist in an investigation addressing sensitive national security concerns, i.e., “to protect against international terrorism or clandestine intelligence activities.”
Rather than resembling a censorship or licensing scheme, the NSL law is more similar to governmental confidentiality requirements that have been upheld by the courts. See, e.g., Butterworth v. Smith, 494 U.S. 624, 634-36, 110 S.Ct. 1376, 108 L.Ed.2d 572 (1990) (upholding in part a law requiring witnesses to maintain the confidentiality of the grand jury process); Seattle Times Co. v. Rhinehart, 467 U.S. 20, 37, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984) (upholding a restriction on disclosure of information obtained through pretrial discovery). In Butterworth, for instance, the Court considered a Florida statute that “prohibit[ed] a grand jury witness from ever disclosing testimony which he gave before that body.” Butterworth, 494 U.S. at 626, 110 S.Ct. 1376. While the statute could not constitutionally prohibit a witness from disclosing “information of which he was in possession before he testified before the grand jury,” the Court did not invalidate that “part of the Florida statute which prohibits the witness from disclosing the testimony of another witness.” Id. at 632-33, 110 S.Ct. 1376. Similarly, the only information subject to nondisclosure under
We need not, however, resolve the question whether the NSL law must provide procedural safeguards, because the 2015 NSL law in fact provides all of them. First, Freedman requires that “any restraint prior to judicial review can be imposed only for a specified brief period.” Thomas, 534 U.S. at 321, 122 S.Ct. 775. A speaker must “be assured, by statute or authoritative judicial construction, that the censor will, within a specified brief period, either issue a license or go to court.” Freedman, 380 U.S. at 58-59, 85 S.Ct. 734. The 2015 NSL law readily provides this assurance: a recipient may immediately notify the government that it desires judicial review, and the recipient is guaranteed by statute that the government will “go to court” within 30 days of receiving notice by “apply[ing] for an order prohibiting the disclosure of the existence or contents” of the NSL at issue.
Second, Freedman requires that “expeditious judicial review” must be available. Thomas, 534 U.S. at 321, 122 S.Ct. 775. The 2015 NSL law‘s direction to reviewing courts, that they “should rule expeditiously” on any petition by a recipient or application by the government regarding the validity of a nondisclosure order,
Finally, Freedman requires that the government “bear the burden of going to court to suppress the speech” and “the burden of proof once in court.” Thomas, 534 U.S. at 321, 122 S.Ct. 775. The recipients argue that
The recipients further argue that the NSL law “does not sufficiently place the burden of proof on the government” because the “reason to believe” and “may result” standards are insufficiently stringent. We reject this argument, too. As the Second Circuit held, and as we have already discussed, the government must certify to the reviewing court and establish to the court‘s satisfaction, that there is a good reason to believe that absent nondisclosure, one of the enumerated harms is reasonably likely to result. John Doe, Inc. v. Mukasey, 549 F.3d at 875. Since the government has prohibited the recipient from disclosing the fact that it has even received an NSL, certification and proof are re-
Because the NSL law provides the three procedural safeguards set forth in Freedman, we reject the recipients’ argument that the NSL law is an invalid prior restraint on Freedman grounds.
VI
We conclude that
AFFIRMED.
Pesticide Action Network North America; Natural Resources Defense Council, Inc., Petitioners,
v.
U.S. Environmental Protection Agency, Respondent.
No. 14-72794
United States Court of Appeals, Ninth Circuit.
Filed July 18, 2017
IN RE PESTICIDE ACTION NETWORK NORTH AMERICA; Natural Resources Defense Council, Inc.,