National Security Letter Provisions Are Unconstitutional, Court Concludes

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The “gag order” and judicial review provisions governing the FBI's issuance of national security letters to communication service providers seeking information about subscribers violate the First Amendment and separation of powers principles, a federal district court held March 14 (In re National Security Letter, N.D. Cal., No. C 11-02173 SI, injunction granted 3/14/13).

As a result, the U.S. District Court for the Northern District of California enjoined the federal government from issuing NSLs under the Stored Communications Act, 18 U.S.C. § 2709, and from enforcing the statute's nondisclosure provision. The court, however, stayed enforcement of its judgment “in order for the [U.S. Court of Appeals for the] Ninth Circuit to consider the weighty questions of national security and First Amendment rights presented in this case.”

“The California federal court's decision threatens a key provision on which the government relies to obtain telecommunications records,” Edward R. McNicholas, partner in Sidley Austin LLP's Washington office, told BNA March 16. “Unless the decision is overturned on appeal, the government will have lost a significant authority for seeking such phone records, at least in the relevant circuit.”

“The ruling considered the unconstitutional free speech restrictions to be so integral to the statute that they could not be severed. This renders that NSL authority unusable in the Northern District of California--and more vulnerable to attack elsewhere,” McNicholas, who is also a member of the advisory board forBNA's Privacy & Security Law Report, added.

“We are very pleased that the court recognized the fatal constitutional shortcomings of the NSL statute,” Electronic Frontier Foundation Senior Staff Attorney Matthew Zimmerman, one of the attorneys representing the unnamed telecommunications company in the case, said in a March 15 statement. “The government's gags have truncated the public debate on these controversial surveillance tools. Our client looks forward to the day when it can publicly discuss its experience.”

'Significant Constitutional Infirmities'

Sections 2709(a) and (b) require a wire or electronic communication service provider to hand over information about a subscriber--such as a subscriber's name and address--to the FBI provided the FBI certifies that the information sought is “relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities … .”

Pursuant to this provision, the FBI issued an NSL to the petitioner, an electronic communication service provider, in which it sought information about one or more subscribers. However, the FBI was able to prohibit the petitioner from disclosing the existence of the NSL under Section 2709(c)(1).

Section 2709(c)(1) prohibits the recipient of an NSL from disclosing the existence of the request if the FBI certifies that the disclosure may result in “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 … .”

The petitioner filed a petition to set aside the NSL and the nondisclosure requirement pursuant to 18 U.S.C. §§ 3511(a) and (b) on the grounds that the nondisclosure provision of Section 2709, as well as the judicial review provisions of Section 3511(b), were unconstitutional, facially and as applied.


The court's rationale “would apply with equal force to the other NSL authorities used by the FBI, but which were not at issue in the case” including financial records and credit reports.




Edward R. McNicholas, Sidley Austin LLP

The court agreed, finding Sections 2709(c) and 3511(b) suffered from “significant constitutional infirmities.” The court said it was unable to work around those infirmities because the provisions “are not susceptible to narrowing or conforming constructions to save their constitutionality.” Nor were the unconstitutional nondisclosure provisions severable, the court said.

The district court relied extensively on the U.S. Court of Appeals for the Second Circuit's ruling in John Doe Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008), that the statute's “gag order” feature violates the First Amendment (8 PVLR 13, 1/5/09).

The rationale of the Northern District of California “would apply with equal force to the other NSL authorities used by the FBI, but which were not at issue in the case,” McNicholas told BNA. “This opinion thus puts a cloud over the authorities to seek financial records under the Right to Financial Privacy Act, 12 U.S.C. § 3414, credit reports and related information under the Fair Credit Reporting Act, 15 U.S.C. § 1681v and 15 U.S.C. § 1681u, and even the particularly sensitive NSL authorities used to obtain certain financial and travel information regarding individuals with access to classified information under the National Security Agency Act, 50 U.S.C. § 436.”

Nondisclosure Provision Is Not Narrowly Tailored

The court concluded that Section 2709(c) violates the First Amendment because it is not narrowly tailored to serve a compelling government interest. “[T]he NSL nondisclosure provisions are not narrowly tailored on their face, since they apply, without distinction, to both the content of the NSLs and to the very fact of having received one[,]” the court explained.

The statute imposes a “blanket prohibition” on the disclosure of the receipt of an NSL and does not account for situations where national security is not at issue, thus “rendering the statute impermissibly overbroad and not narrowly tailored,” the court said.

“This pervasive use of nondisclosure orders, coupled with the government's failure to demonstrate that a blanket prohibition on recipients' ability to disclose the mere fact of receipt of an NSL is necessary to serve the compelling need of national security, creates too large a danger that speech is being unnecessarily restricted[,]” the court said.

The court also found the statute's review provisions overbroad because they do not require or permit the government to rescind the nondisclosure order when no longer necessary, the court noted. “The issuance of a nondisclosure order is, in essence, a permanent ban on speech absent the rare recipient who has the resources and motivation to hire counsel and affirmatively seek review by a district court[,]” the court said.

In addition, Section 2709(c) did not meet all of the justifications for sustaining prior restraints on speech as articulated in Freedman v. Maryland, 380 U.S. 51 (1965). The nondisclosure provisions fail to provide a time limit for nondisclosure orders before judicial review, the court explained.

Not a 'Searching Standard of Review'

In addition, the court held that Section 3511(b) violates separation of powers principles because it “impermissibly attempts to circumscribe a court's ability to review the necessity of nondisclosure orders.”

Under Section 3511(b), a court can only modify or set aside a nondisclosure order if it finds “no reason to believe” that the disclosure “may” result in a listed harm, such as a danger to national security, the court explained. If a high ranking government official certifies that the disclosure would result in such a harm, the court must treat that certification as “conclusive.”

Given that the nondisclosure provisions “significantly infringe on speech regarding controversial government powers,” the court said it “can only sustain nondisclosure based on a searching standard of review, a standard incompatible with the deference mandated by Sections 3511(b) and (c).”

The court agreed with the Second Circuit's conclusion in Mukasey that the “conclusive” requirement is unconstitutional. “Treating the government's certification as 'conclusive' diminishes the exacting scrutiny courts must apply to speech restraints down to 'no scrutiny' at all[,]” the district court said.

The court declined to hold Section 3511(e), which requires the court to review evidence ex parte and in camera at the government's request, unconstitutional. It explained that the requirement is “a necessary mechanism for the Court to conduct the searching review of the government's national security justification required by the First Amendment.”

Aaron S. Dyer of Pillsbury Winthrop LLP, in Los Angeles; and Cindy A. Cohn, Lee Tien, Marcia C. Hofmann, and Matthew Zimmerman of the Electronic Frontier Foundation, in San Francisco, represented the petitioner. Steven Y. Bressler of the Department of Justice, in Washington, represented the government.

The court's opinion is available on the Electronic Frontier Foundation's website at

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