T ABLE OF AUTHORITIES

2 CASES

PAGE(s)

3 Board ofDirs. ofRotary Int'l v. Rotary Club ofDuarte,

481 U.S. 537 (1987)........................................................ 13

4

Buckley v. American Const'l Law Foundation,

5

525U.S.182(1999)........................................................ 12

6 Buckley v. Valeo,

424 U.S. 1 (1976).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 13

7

EEOC v. Children's Hosp. Med. Center,

8

719 F.2d 1426 (9th Cir. 1983)............................................... 5,8

9 EEOC v. Karuk Tribe Housing Authority,

260 F.3d 1071 (9th Cir. 2001)................................................. 6

10

FMC v. Port ofSeattle,

11

521 F.2d 431 (9th Cir. 1975).................................................. 6

12 Full Value Advisors, LLCv. SE.c.,

633 F.3d 1101 (D.C. Cir. 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 11

13

Glickman v. Wileman Bros. & Elliot,

14

521U.S.457(1997)........................................................ 11

15 Goodman v. United States,

369 F.2d 166 (9th Cir. 1966).................................................. 9

16

McIntyre v. Ohio Elections Comm 'n,

17

514U.S.334(1995)........................................................ 12

18 Morales v. Daley,

116 F. Supp. 2d 801 (S.D. Tex. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 11

19

Murphy v. Waterfront Comm'n ofNew York Harbor,

20

378 U.S. 52 (1964).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 10

21 NAACP v. Alabama ex reI. Patterson,

357 U.S. 449 (1958).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 13

22

Oklahoma Press Pub. Co. v. Walling,

23

327 U.S. 186 (1946)......................................................... 5

24 Pharm. Care Mgmt. Ass'n v. Rowe,

429 F.3d 294 (1 st Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 11

25

Roberts v. United States Jaycees,

26

468 U.S. 609 (1984).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 13

27 Rounds v. Oregon State Bd. ofHigher Educ., 166 F.3d 1032 (9th Cir. 1999)................................................ 11
28

Case No. C 11 2173 SI

Memorandum in Support ofMotion to Compel Compliance With National Security Letter

111

United States v. Morton Salt Co.,

338 U.S. 632 (1950)..................................................... passim

2

United States v. Sindel,

3

53 F.3d 874 (8th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 11

4 W V. State Bd. ofEduc. v. Barnette, 319 U.S. 624 (1943).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 11
5 FEDERAL STATUTES AND REGULATIONS
6 18 U.S.C. § 2709.......................................................... passim
7 18 U.S.C. § 2510...... , " ...................................................... 7
8 18 U.S.C. § 2711. .............................................................. 7
9 18 U.S.C. § 2703. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 12
10 18 U.S.C. § 35 11 (c)........................................................ passim
11 28U.S.C. § 17.17 ............................................................. 3
12 EXECUTIVE ORDERS AND LEGISLATIVE HISTORY
13 Exec. Order No. 12333,46 Fed. Reg 59941 (Dec. 4, 1981)........................... 3,6
14 H.R. Rep. No. 99-647, 37 (1986).................................................. 7
15 S. Rep. No. 99-541 at 14 (1986).................................................. 7
16

17

18

19

20

21

22

23

24

25

26

27

28

Case No. C 11 2173 Sf

Memorandum in Support of Motion to Compel Compliance With National Security Letter

IV

 
 1 TONY WEST
Assistant Attorney General 2 MELINDA HAAG
United States Attorney 3 ARTHUR R GOLDBERG
SANDRA M. SCHRAIBMAN 4 Assistant Branch Directors
STEVEN Y. BRESSLER D.C. Bar No. 482492
5 Trial Attorney United States Department ofJustice
6 Civil Division, Federal Program; Branch

7 P.O. Box 883
Washington, D.C. 20044 8 Telephone: (202)305-0167
Facsimile: (202) 616-8470
9 Email: Steven.Bressler@usdoj.gov

10 Attorneys for the United States Department ofJustice

11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13

14 THE UNITED STATES DEPARTMENT OF JUSTICE,
15
Plaintiff; 16
v. 17

18

19

Defendant.

)

)

)

)

CIVIL ACTION NO.:

)

~

COMPLAINT FOR INJUNCTIVE AND

)

DECLARATORY RELIEF

)

)

LODGED UNDER SEAL

)

)

20

21

Plaintiff: the United States Department ofJustice, by its undersigned attorneys, brings

22 this civil action for declaratory and injunctive relie~ and alleges as follows:

23

INTRODUCTION

24

1. Counterintelligence and counterterrorism investigations ordinarily must be carried out

25 in secrecy ifthey are to succeed. Because these investigations are directed at groups or

26 individuals taking efforts to keep their own activities secret, it is essential that targets not learn

27 that they are the subject ofan investigation Iftargets learn that their activities are being

28 investigated, they can be expected to take action to avoid detection or disrupt the government's

U.S. Dep 't ofJustice vi
Complaint for Injunct1~v- e "a"n',..,d,...D.,e.,..,,.,cal""r'=a.,..,io"r"'y".,..,,R'e"""l,.,1..,e, . . , . . i j - - - - - - - -

intelligence gathering efforts. The same concern applies to knowledge about the sources and

2 methods the United States intelligence comnrunity is using to acquire infonnation, knowledge

3 which can be used both by the imrrediate targets ofan investigation and by other terrorist and

4 foreign intelligence organizations. And even after a particular investigation has been co111pleted,

5 infonnation about the government's investigative methods can educate other potential targets

6 about how to circumvent and disrupt future counterintelligence or counterterrorism

7 investigations.

8

2. Tue l

!Federal Bureau ofInvestigation (''FBI') is conducting an

9 ongoing national security investigation. As part ofthat investigation,!

12011 the FBI

10 sent defendant

11 .___ _ _ _ ___.la National Security Letter (''NSL'') as authorized by statute, 18 U.S.C.

12 § 2709, seeking limited and specific infonnation necessary to the investigation which the FBI

13 had and has been unable to obtain elsewhere. An authoriz.ed FBI official certified to defendant
14 that disclosure ofthe fuct or contents ofth~----~011 NSL sent to defendant nny, inter alia,

15 endanger national security. Moreover, disclosure ofthe fuct or contents ofthe NSL is prohibited

16 by statute, 18 U.S.C. § 2709.

17

3. Defendant has objected to the NSL, including its request for infonnation as well as its

18 nondisclosure requirement. The FBI continues to need the infonnation requested in the NSL to

19 firrther an ongoing national security investigation. Moreover, as an authorized FBI official has

20 certified, disclosure ofthe fuct or contents ofthe NSL may endanger the national security ofthe

21 United States. For those reasons, the Department ofJustice brings this action for declaratory and

22 iajunctive reliefto obtain infonnation necessary to the FBl's investigation, protect the national

23 security, and enforce the law. This Court should enter a declaratory judgment, and enter an

24 injunction to the effect that, the defendant must C0111ply with the NSL it received and, rmreover,

25 that defendant is bound by the nondisclosure provisions of18 U.S.C. § 2709 and the NSL.

26

JURISDICTION AND VENUE

27

4. The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1345.

28

v. I U.S. Dep 't ofJustice

Complaint for lnjuncti -ve_a_n.d.."."'D,....e.c..l.-a r-a .t,.o..-ry....,.eR.-t,..1..e...,.'J-------~

2

1

5. Venue lies in the N orthem District ofCalifornia pursuant to 18 U.S.C. § 3511 (c) and

2 28 U.S.C. § 1391. 3

PARTIES

4

6. Plaintiffis the United States Department ofJustice, an Executive Agency ofthe

5 United States ofAmerica. The Federal Bureau ofInvestigation (''FBI") is a law enforcement

6 agency within the Department ofJustice.

7

7. Defendant!

8

f'defendant''), is a

9 ,~=_=_==~=~==~==~=~==~=~==~=~==~=~==~=~==l~w_-i·- th_-a_-p.r-.-·-m..c.~a.lplaceo~f_b_us_m_e_s_s~_r- u..-._-_._ -~_~~_~~ _...._.._.~_.

10

IDefendant.___ _ _ _ _ _ _ _ ___.

1 .=:======================:;-------'

11

12

STATUTORY BACKGROUND

13

8. Title 18 U.S.C. § 2709 authorizes the FBI to issue National Security Letters in

14 connection with foreign counterintelligence and counterterrorism investigations. The FBI has

15 similar authority to issue NSLs under the National Security Act ofl 947, the Fair Credit

16 Reporting Act, and the Right to Financial Privacy Act. See 12 U.S.C. §§ 3414(a)(l) and

17 3414(a)(5); 15 U.S.C. § 1681u, 1681v; 50 U.S.C. § 436.

18

9. Subsections (a) and (b) of§ 2709 authorize the FBI to request "subscriber

19 infonnation" and "toll billing records infonnation," or "electronic communication transactional

20 records," from wire or electronic communication service providers, including telephone

21 companies. In order to issue an NSL, a designated official must certify that the infonnation

22 sought is "relevant to an authorized investigation to protect against international terrorism or 23 clandestine intelligence activities ... ."Id. § 2709(b)(1 )-(2). When an NSL is issued in

24 connection with an investigation ofa ''United States person," the same officials must certify that 25 the investigation is "not conducted solely on the basis ofactivities protected by the first 26 amendment ...." Id.

27

10. To protect the secrecy ofcounterintelligence and counterterrorism investigations,

28 § 2709(c) places a nondisclosure obligation on rec~ients ofNSLs. Section 2709(c) prolnbits

U.S. Dep 't ofJustice vJ

Complaint for _ _ Injunct11v-e_a_n_a~v-e-c1-a - ra-to_r_ yR_e~h- e] _ _ _ _ __.

3

1 disclosure when a designated FBI official certifies, prior to the issuance ofthe NSL, that

2 "otherwise there may resuh a danger to the national security ofthe United States, interference

3 with a criminai cotmterterrorism, or cotmterintelligence investigation, interference with

4 diplomatic relations, or danger to the life or physical safety ofany person." Id. § 2709(c)(l).

5 When such a certification is made, the NSL itselfnotifies the recipient ofthe nondisclosure

6 requirement. Id. § 2709(c)(2).

7

11. Tile 18 U.S.C. § 3511 provides for judicial review ofNSLs.

8

12. Section 351 l(a) authoriz.es the recipient ofan NSL to petition a district court ''for an

9 order IIDdifying or setting aside the request" for information contained in the NSL.

10

13. Section 3511 (b) authoriz.es the recipient ofan NSL to petition a district court ''for an

11 order IIDdifying or setting aside a nondisclosure requirement imposed in connection with" the

12 NSL. Id. § 3511 (b)(1 ). Section 3511 (b) provides that the district court "rnay IIDdify or set

13 aside" the nondisclosure requirerrent ifthe court finds no "reason to believe" that disclosure

14 "may endanger the national security ofthe United States" or cause the other harms specified in

15 Section 2709(c). lfa designated senior FBI or DOJ official certifies at the titre ofthe petition

16 that disclosure may endanger national security or interfere with diplomatic relations, § 3511 (b)

17 further provides that the certification "shall be treated as conclusive" by the district court unless

18 it was made "in bad fuith." Ifthe petition is filed a year or IIDre after the issuance ofthe NSL, a

19 denial ofthe petition precludes the recipient from filing another petition for one year. Id.

20

14. Section 351 l(c) provides that, when the recipient ofan NSL "fuil[s] to comply with

21 [the] request for records, a report, or other information," the Attorney General "may invoke the

22 aid ofany district court ofthe United States within the jurisdiction in which the investigation is

23 carried on or the person or entity resides, carries on business, or may be fotmd, to compel

24 compliance with the request." The court thereafter "may issue an order requiring the person or

25 entity to comply with the request," and fuilure to obey the order ofthe court may be punished as

26 contempt. Id.

27

28

4

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STATEMENT OF THE CLAIM

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FBl's Investigation 17. During the course ofan ongoing, authori?.ed national security investigation, the FBI

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r pened a national

12 security investigation tol

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18. The FBII

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The FBI then determined thatl

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20 U.S.C. § 2709, the FBI serve~

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IThe FBI thenl

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an NSL, requesting thel

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20. The NSL served o~

lwas issued by thel

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Seel lunder the authorityof18 U.S.C. § 2709.

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24 2011 NSL (attachment A). Th9

Iin accordance with 18

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25 U.S.C. § 2709(b), that the infonnation sought was relevant to an authori?.ed investigation to 26 protect against international terrorism or clandestine intelligence activities. Id.

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27

21. The NSL, dated0

201 l, sought!

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28 I

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v. l U.S. Dep 't ofJustice
Complaint for Injunctn! ana veczatatutyxe1ie1

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1

22. The NSL inforrred.l..._ _ _ ____.lofthe prohibition against disclosing the contents

2 ofthe NSL, certifying, in accordance with 18 U.S.C. § 2709(c), that such disclosure could result

3 in an emllll::rated harm that is related to an "authorized investigation to protect against

4 international terrorism or clandestine intelligence activities."

5

23. The NSL notified .l..._ _ _ _......lthat, in accordance with 18 U.S.C. § 351 l(a) and

6 (b)~.__ _ _ ____.I had a right to challenge the letter ifcompliance would be unreasonable,

7 oppressive, or otherwise illegal

8

24. The NSL also advised tha~.__ _ _ _.....lhad 10 days to notify the FBI as to

9 whether it desired to challenge the nondisclosure provision

10 III~
11

!Refusal To Comply With 18 U.S.C. § 2709

25. In a letter sent via electronic mail, date~

I2011, defendant, through counsei

12 advised that it intended to "exercise its rights under 18 U.S.C. § 351 l(a) and (b) to challenge the

13 NSL referenced above, including the nondisclosure provision ofthe NSL."

14

26. 1

12011 letter also requested an extension oftime in order

15 to consider legal issues regarding the NSL. FBI agreed to extend the due date for compliance

16 with the NSL to0

17

27. onl

2011.
I 12011, defendant

18

19

20

21

I

22

______________ 28. Defendant'~....__

____.!notified the FBI that

23 defendant does not intend to comply with the NSL's demand for information or its nondisclosure

24 requirement.

25 ..---2-9._T_o_da_t_e,_th_e_F_B_I'_sl==========~~-s-b_e~enunablero l.___________.I

I 26

IThe FBI continues to need that

27 information to further an ongoing national security investigation

28

l

U.S. Dep 't ofJustice v.1

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Complaint for Injunct1,v_e_a_n~a-n-e~cl-ar-a-to-ry~R-e-1i~e'f---------'

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COUNT ONE - VIOLATION OF 18 U.S.C. § 2709

j~

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30. Plaintiff incorporates by reference paragraphs 1 through 29 above.

, f
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31. Defendant has stated its objection to compliance with the provisions o~ and has not

4 complied with, a National Security Letter that was lawfully issued pursuant to 18 U.S.C. § 2709 .

j
!

5

32. Defendant's fuilure to comply with a lawfully issued National Security Letter

l

I

6 violates federal law, 18 U.S.C. § 2709.

!

7 COUNT 1WO-FAILURE TO ABIDE BY A VALID NATIONAL SECURITY LETTER;

1

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INTERFERENCE WITH THE UNITED STATES' SOVEREIGN INTERESTS

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33. Plaintiff incorporates by reference paragraphs 1 through 32 above.

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34. Defendant has stated its objection to compliance with the provisions o~ and has not

l

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11 complied with, a National Security Letter that was lawfully issued pursuant to 18 U.S.C. § 2709.

12

35. Defendant's fuilure to comply with a lawfully issued National Security Letter

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13 interferes with the United States' vindication ofits sovereign interests in law enforcement,

I

1

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14 counterintelligence, and protecting national security.

1

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15

PRAYER FOR RELIEF

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WHEREFORE, the United States Department ofJustice prays for the following relief.

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1. That this Court enter a declaratory judgment, pursuant to 28 U.S.C. § 2201(a), that the

i I

18 defendant is bound by the provisions of 18 U.S.C. § 2709 and th~

I___. ~O11 NSL to.....

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19 D

including the requirement that defendant provide the requested infonnation to the FBI.

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3

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2. That this Court enter a declaratory judgment, pursuant to 28 U.S.C. § 2201(a), that

ii'

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21 disclosure ofthe fuct or contents oftho

2011 NSL t9

fnY result in a

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22 danger to the national security ofthe United States, interference with a crimina~

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23 counterterrorism, or counterintelligence investigation, interference with diplomatic relations, or

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24 danger to the life or physical safety ofa person; and that the defendant is bound by the ....---------.

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25 nondisclosure provisions of18 U.S.C. § 2709 and theD

2011 NSL to

- - - - - - ,. . . . - - - - - - '

26 including the requirement that defendant not disclose the fuct or contents ofth

2011

1

I

27 NSL to any person (other than those to whom such disclosure is necessary to comply with the

I

28 request or an attorney to obtain legal advice or legal assistance with respect to the request).

:oi,

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U.S. Dep 't ofJustice v..___ _ _ _ _ _ _ _ _ _ _ _ ____,

i ~

Complaint for Injunctive and DeclaratoryRelief

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3. That this Court enjoin defendant to comply with the request for information made in

2 and by th~

12011 NSL tol

land provide that information to the FBI as soon

3 as practicable within not tmre than ten days ofthe Court's Order.

4

4. That this Court enjoin defendant, in accordance with 18 U.S.C. § 2709(c), from

5 disclosing to any person (other than those to whom such disclosure is necessary to comply with

6 the request or an attorney to obtain legal advice or legal assistance with respect to the request)

7 that the FBI has sought or obtained access to information or records from defendant under 18

8 U.S.C. § 2709.

9

5. That this Court grant plaintiff such other and further relief as may be just and proper,

10 including any necessary and appropriate temporary, preliminary, and/or permanent iajunctive

11 relief

12 Dated: June 2, 2011

Respectfully submitted,

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TONY WEST Assistant Attorney General
MELINDA HAAG United States Attorney
ARTHURR GOLDBERG SANDRA M. SCHRAlBMAN Assistant Directors, Federal Programs
Branch
Isl Steven Y. Bressler STEVEN Y. BRESSLER D.C. Bar #482492 Trial Attorney U.S. Department ofJustice

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Civil Division, Federal Programs Branch P.O. Box 883 Washington, D.C. 20044 Telephone: (202)305-0167

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Facsimile: (202) 616-8470 Steven.Bressler@usdoj.gov
Counselfor Plaintiff

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U.S. Dep 't ofJustice v.....__ _ _ _ _ _ _ _ _ _ _ _ ____.

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Complaint for Injunctive and Dec/aratoryRelief

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 Case: 13-15957 01/17/2014

ID: 8943982 DktEntry: 29-1 Page: 1 of 79

Nos. 13-15957 & 13-16731 ______________________________________________________________________________
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ____________________
IN RE NATIONAL SECURITY LETTER, ____________________
UNDER SEAL,
Petitioner-Appellee (No. 13-15957), Petitioner-Appellant (No. 13-16731),
v.
ERIC H. HOLDER, Jr., Attorney General; UNITED STATES DEPARTMENT OF JUSTICE; FEDERAL BUREAU OF INVESTIGATION,
Respondents-Appellants (No. 13-15957), Respondents-Appellees (No. 13-16731), ____________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ____________________
GOVERNMENT’S OPENING BRIEF Filed Under Seal
____________________

STUART F. DELERY Assistant Attorney General
DOUGLAS N. LETTER (202) 514-3602 SCOTT R. MCINTOSH (202) 514-4052 JONATHAN H. LEVY (202) 353-0169 Attorneys, Appellate Staff Civil Division, Room 7231 United States Department of Justice 950 Pennsylvania Ave., NW Washington, DC 20530

Case: 13-15957 01/17/2014

ID: 8943982 DktEntry: 29-1 Page: 2 of 79

TABLE OF CONTENTS
STATEMENT OF JURISDICTION ......................................................................... 1 STATEMENT OF ISSUES....................................................................................... 2 INTRODUCTION ..................................................................................................... 3 STATEMENT OF THE CASE ................................................................................. 4
I. Statutory Background ........................................................................... 5 A. National Security Letters are Administrative Subpoenas Used by the FBI in Counterterrorism and Counterintelligence Investigations.............................................................................. 5
B. Confidentiality of National Security Letters is Often Necessary for Effective Counterintelligence and Counterterrorism Investigations ................................................. 8
C. Congress Amended the National Security Letter Statute to Avoid Unnecessary Restrictions on Disclosure ..................... 9
D. NSLs are Enforced in a Manner that Adheres to the Second Circuit’s Opinion and Injunction in Doe .................... 11
II. The Present Controversy..................................................................... 14
A. Appeal No. 13-15957 ............................................................... 15
B. Appeal No. 13-16731 ............................................................... 19
SUMMARY OF ARGUMENT............................................................................... 20

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STATEMENT OF REVIEW................................................................................... 23
ARGUMENT .......................................................................................................... 23
THE NONDISCLOSURE PROVISIONS OF 18 U.S.C.§§ 2709 AND 3511 ARE CONSTITUTIONAL BOTH FACIALLY AND AS APPLIED HERE .................................................................................................. 23
I. THE NSL NONDISCLOSURE PROVISION ARE CONSTITUTIONAL AS APPLIED HERE ................................................. 26
A. The Nondisclosure Requirements in the Three NSLs at Issue Here are Narrowly Tailored to Serve a Compelling Government Interest ........................................................................... 27
1. The Nondisclosure Requirements in the Three NSLs Here Satisfy Strict Scrutiny ...................................................... 27
a. Compelling Government Interest................................... 27
b. Narrow Tailoring............................................................ 28
2. Intermediate Scrutiny is Appropriate ....................................... 31
B. All of the Freedman Procedural Protections were Provided Here ..... 33
C. There is no First Amendment Right to Disclose Information Learned Through Participation in a Secret Government Investigation........................................................................................ 35
II. THE NSL STATUTORY PROVISIONS ARE FACIALLY CONSTITUTIONAL ................................................................................. 44
ii

Case: 13-15957 01/17/2014

ID: 8943982 DktEntry: 29-1 Page: 4 of 79

A. A Facial Challenge Under the First Amendment Succeeds on Overbreadth Grounds Only When a Statute Will Suppress a Substantial Amount of Protected Speech ......................... 44
B. The Freedman Requirements for Administrative Censorship Schemes do not Apply ........................................................................ 48
C. The Statute Complies with Freedman ................................................ 52
D. The Statute’s Standards of Judicial Review Are Constitutional ........ 56
III. Any Asserted Constitutional Flaws in the Statutory Nondisclosure Provisions do not Justify Invalidating the Entire Statute............................. 59
IV. The District Court Erred in Extending Its Injunction Beyond the Parties and Beyond the Geographical Bounds of this Circuit .................................. 63
CONCLUSION ....................................................................................................... 65
STATEMENT OF RELATED CASE
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE

iii

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TABLE OF AUTHORITIES

Cases:

Page

Alaska Airlines, Inc. v. Brock, 480 U.S. 678 (1987) ............................................ 61

Alphonsus v. Holder, 705 F.3d 1031 (9th Cir. 2013) ........................................... 44

Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320 (2006) .......................................................................................... 61

Bd. of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469 (1989).................... 26

Branzburg v. Hayes, 408 U.S. 665 (1972) ............................................................ 28

Broadrick v. Oklahoma, 413 U.S. 601 (1973) ...................................................... 46

Butterworth v. Smith, 494 U.S. 624 (1990) .......................................................... 36

City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750 (1988) ....................... 53

City of Littleton, Colo. v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004) ............... 51

Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020 (9th Cir.), cert. dismissed, 134 S. Ct. 624 (2013). ............................................................ 23

Davenport v. Wash. Educ. Ass'n, 551 U.S. 177 (2007) ........................................ 46

Dep't of Navy v. Egan, 484 U.S. 518 (1988) .................................................. 27, 41

DISH Network Corp. v. FCC, 653 F.3d 771 (9th Cir. 2011), cert. denied, 132 S. Ct. 1162 (2012). .......................................................... 31, 33

Doe v. Gonzales, 500 F. Supp. 2d 379 (S.D.N.Y. 2007), reversed sub nom. Doe v. Mukasey, 549 F.3d 861 (2008) ............................... 30

Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211 (1970)........................ 42

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Dream Palace v. County of Maricopa, 384 F.3d 990 (9th Cir. 2004)................... 51 FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) ................................ 57 First Amendment Coal. v. Judicial Inquiry & Rev. Bd.,
784 F.2d 467 (3d Cir. 1986) ............................................................................. 39 Freedman v. Maryland, 380 U.S. 51 (1965)............................16, 17, 33, 34, 48-56 Free Enter Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138 (2010) ....................................................................................... 60 FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) ................................... 44, 49 Get Outdoors II, LLC v. City of San Diego, 506 F.3d 886 (9th Cir. 2007)......... 58 Goodman v. United States, 108 F.2d 516 (9th Cir. 1939) .................................... 36 Gospel Missions of Am. v. City of L.A., 328 F.3d 548 (9th Cir.) (same), cert. denied, 540 U.S. 948 (2003),......................................................... 59 Hamad v. Gates, 732 F.3d 990 (9th Cir. 2013) ..................................................... 60 Hoffman-Pugh v. Keenan, 338 F.3d 1136 (10th Cir. 2003) cert. denied, 540 U.S. 1107 (2004) ......................................................................................... 37 Hoye v. City of Oakland, 653 F.3d 835 (9th Cir. 2011) ....................................... 53 In re Charlotte Observer, 921 F.2d 47 (4th Cir. 1990).......................................... 37 In re Subpoena, 864 F.2d 1559 (11th Cir. 1989)................................................... 37 John Doe, Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008) .................................................................11-25, 27, 30, 31, 34, 43, ..................................................................................... 45, 47, 52-56, 58, 60, 62-64
Jones v. United States, 526 U.S. 227 (1999)......................................................... 57
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Kamasinski v. Judicial Review Council, 44 F.3d 106 (2d Cir. 1994) .................. 39 Legal Aid Soc'y of Haw. v. Legal Servs. Corp., 145 F.3d 1017
(9th Cir.), cert. denied, 525 U.S. 1015 (1998) .................................................. 47
Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011 (9th Cir. 2009), cert. denied, 559 U.S. 936 (2010) .................... 52
McGehee v. Casey, 718 F.2d 1137 (D.C. Cir. 1983) ............................................ 38
Meinhold v. U.S. Dep't of Defense, 34 F.3d 1469 (9th Cir.1994) ........................ 63
Members of City Council of City of L.A. v. Taxpayers for Vincent, 466 U.S. 789 (1984) ..................................................................................... 45, 47
N.Y. State Club Ass'n, Inc. v. City of New York, 487 U.S. 1 (1988) ............ 46, 53
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937)................................. 55
Perry v. L.A. Police Dep't, 121 F.3d 1365 (9th Cir. 1997), cert. denied, 523 U.S. 1047 (1998) ......................................................................................... 31
Pest Comm. v. Miller, 626 F.3d 1097 (9th Cir. 2010), cert. denied, 132 S. Ct. 94 (2011) ........................................................................................... 53
Reed v. Town of Gilbert, Ariz., 587 F.3d 966 (9th Cir. 2009) ............................. 45
Sams v. Yahoo! Inc., 713 F.3d 1175 (9th Cir. 2013) .............................................. 7
Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022 (9th Cir. 2006)............................................................................ 54
Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984)............................................. 35
Snepp v. United States, 444 U.S. 507 (1980).................................................. 27, 41

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Talk of the Town v. Dep't of Fin. & Bus. Servs., 343 F.3d 1063 (9th Cir. 2003) .................................................................................................... 51
Thomas v. Chi. Park Dist., 534 U.S. 316 (2002) ..................................... 34, 49, 52 Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) ......................................... 31 Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 (1997)....................................32-33 U.S. Dep't of Defense v. Meinhold, 510 U.S. 939 (1993) .................................... 63 United States v. Aguilar, 515 U.S. 593 (1995) ............................................... 32, 39 United States v. AMC Entm't, Inc., 549 F.3d 760 (9th Cir. 2008) ....................... 64 United States v. Diaz, 491 F.3d 1074 (9th Cir. 2007).......................................... 56
United States v. Fulbright, 105 F.3d 443 (9th Cir. 1997), cert. denied, 520 U.S. 1236 (1997), and overruled in part on other grounds by United States v. Heredia, 483 F.3d 913 (9th Cir. 2007) ............................... 32 United States v. Gorman, 314 F.3d 1105 (9th Cir. 2002) ..................................... 56 United States v. Jackson, 390 U.S. 570 (1968) ..................................................... 62 United States v. Jeter, 775 F.2d 670 (6th Cir. 1985), cert. denied, 475 U.S. 1142 (1986) ......................................................................................... 37 United States v. Marchetti, 466 F.2d 1309 (4th Cir.) cert. denied, 409 U.S. 1063 (1972) ................................................................................... 38, 39 United States v. Mendoza, 464 U.S. 154 (1984)................................................... 63 United States v. O'Brien, 391 U.S. 367 (1968) ..................................................... 33 United States v. Richey, 924 F.2d 857 (9th Cir. 1991) ......................................... 39 United States v. Schales, 546 F.3d 965 (9th Cir. 2008) .................................. 46, 47
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United States v. Snepp, 897 F.2d 138 (4th Cir.), cert. denied, 498 U.S. 816 (1990)................................................................................................................. 39
United States v. Williams, 553 U.S. 285 (2008) ................................................... 46 Va. Soc'y for Human Life, Inc. v. FEC, 263 F.3d 379 (4th Cir. 2001),
overruled on other grounds by 681 F.3d 544 (4th Cir. 2012) ............................ 63 Virginia v. Hicks, 539 U.S. 113 (2003) .......................................................... 45, 53 Ward v. Rock Against Racism, 491 U.S. 781 (1989) ..................................... 31, 52 Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442
(2008) ........................................................................................................... 44, 46 World Wide Video of Wash., Inc. v. City of Spokane, 368 F.3d 1186
(9th Cir. 2004) .................................................................................................... 46 Constitution: First Amendment ...................................................................... 4,12,15,16,23, 26,30 Statutes: Fair Credit Reporting Act:
15 U.S.C. §§ 1681u-1681v ............................................................................. 7, 39 Right to Financial Privacy Act:
12 U.S.C. § 3414(a)(1) & (5) ......................................................................... 7, 39 National Security Act of 1947:
50 U.S.C. § 3162 .......................................................................................... 7, 39 Pub. L. 99-508, § 201, 100 Stat. 1867 (1986) ......................................................... 9
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18 U.S.C. § 1510(e) ........................................................................................... 10, 49 18 U.S.C. § 2511(2)(a)(ii) ....................................................................................... 39 18 U.S.C. § 2709 ..........................................................1, 2, 4, 6, 7, 9, 10, 12, 14, 15,
......................................................20, 23, 26, 28, 35, 37, 39, 42, 51, 54, 58, 62, 63 18 U.S.C. § 2710(b)(1) ............................................................................................ 39 18 U.S.C. § 3123(d)(2) ............................................................................................ 40 18 U.S.C. § 3511 ................................................... 1, 2, 6, 10-13, 15, 19, 20, 23, 26,
....................................................................................28, 30, 42, 45, 52, 56, 58, 62 28 U.S.C. § 1291 ....................................................................................................... 2 50 U.S.C. § 1802(a)(4) ............................................................................................ 40 50 U.S.C. § 1822(a)(4)(A)....................................................................................... 40 50 U.S.C. § 1842(d)................................................................................................. 40 50 U.S.C. § 1861(d)................................................................................................. 40 50 U.S.C. § 3162 ....................................................................................................... 7 Rules: Fed.R.Crim.P. 6(e)............................................................................................. 37, 42 Regulations: 46 Fed. Reg. 59941 (Dec. 4, 1981) ......................................................................... 5 68 Fed. Reg. 15315 (Mar. 28, 2003) ..................................................................... 38

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Legislative Materials: S. Rep. No. 99-541 (1986), reprinted in 1986 U.S.C.C.A.N. 3555 ....................... 7
Miscellaneous: Brett A. Shumate, “Thou Shalt Not Speak: The Nondisclosure Provisions of the National Security Letter Statutes and the First Amendment Challenge,” 41 Gonzaga L. Rev. 151, 174-75 (2005)............................................................... 41
Exec. Order No. 12333 §§ 1.14(a), 3.4(a)............................................................... 5 Executive Order 13292.......................................................................................... 38

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IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ____________________
Nos. 13-15957 & 13-16731 ____________________
IN RE NATIONAL SECURITY LETTER, ____________________
UNDER SEAL,
Petitioner-Appellee (No. 13-15957) Petitioner-Appellant (No. 13-16731)
v.
ERIC H. HOLDER, Jr., Attorney General; UNITED STATES DEPARTMENT OF JUSTICE; FEDERAL BUREAU OF INVESTIGATION,
Respondents-Appellants (No. 13-15957) Respondents-Appellees (No. 13-16731) ____________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ____________________
GOVERNMENT’S OPENING BRIEF Filed Under Seal
____________________
STATEMENT OF JURISDICTION
These consolidated appeals arise under 18 U.S.C. §§ 2709 and 3511 and the
Constitution. Appeal No. 13-15957 is from a district court decision issued on
March 14, 2013, which granted a petition seeking to set aside a National Security
Letter (NSL). The district court had jurisdiction over that proceeding under 18

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U.S.C. § 3511. The respondents filed a timely notice of appeal on May 6, 2013. This Court has appellate jurisdiction under 28 U.S.C. § 1291.
Appeal No. 13-16731 is from a separate action before the same district court, brought by the same NSL recipient, seeking to set aside two additional NSLs. The district court denied the recipient’s petition and granted the Government’s cross-petition for enforcement of those NSLs on August 12, 2013. The NSL recipient filed a timely notice of appeal on August 22, 2013. This Court has appellate jurisdiction under 28 U.S.C. § 1291.
This Court has consolidated Nos. 13-15957 and 13-16731, but the Government parties are the appellants only in No. 13-15957, and this opening brief therefore focuses on that appeal.
STATEMENT OF ISSUES 1. Whether 18 U.S.C. §§ 2709(c) and 3511(b) as applied here violate the First Amendment. 2. Whether 18 U.S.C. §§ 2709(c) and 3511(b) are facially unconstitutional. 3. Whether the challenged statutory provisions are severable from the remainder of 18 U.S.C. §§ 2709 and 3511. 4. Whether any injunctive relief should be confined to the NSL recipient at issue, to the NSLs at issue, and to this Circuit.
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INTRODUCTION Congress has empowered the FBI to issue an administrative subpoena known as a National Security Letter (or NSL) as part of authorized investigations to protect against international terrorism and clandestine intelligence activities. NSLs are directed to electronic communications service providers in order to obtain specified limited information; they are not used to obtain the content of communications. Because secrecy is typically vital in such national security investigations, if the FBI certifies that disclosure could cause specified harms, such as interfering with the investigation or endangering the life or physical safety of any person, the NSL statute imposes a nondisclosure obligation on the NSL recipient. The nondisclosure provisions of the NSL statute are similar to grand jury and other secrecy rules that courts have repeatedly upheld as constitutional. But in the decision below, the district court invalidated the nondisclosure provisions on their face under the First Amendment. It did so despite the fact that the statutory provisions have been upheld (with minor exceptions) by the Second Circuit and despite the fact that the district court itself found nothing wrong with the basic function of NSLs as information-gathering tools in authorized national security investigations.
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As applied here, the nondisclosure provisions meet the most exacting First Amendment standards because they are narrowly tailored to meet unquestionably compelling Government interests, and because the Government has provided the highest level of procedural protections. The facial challenge fails because it requires proof that the statute will suppress a significant amount of constitutionally protected speech, and there is no indication that the continued application of the statute is likely to suppress any such speech. Moreover, no perceived flaw in the nondisclosure provision could justify invalidating the entire NSL statute. And finally, any remedy should have been limited to the NSLs and the recipient here, rather than an injunction applicable to all NSLs in all cases. There is therefore no basis for this Court to create a conflict with the Second Circuit’s ruling that upheld the NSL statute, and the district court’s order in No. 13-15957 should be reversed.
STATEMENT OF THE CASE The NSL recipient here asked a district court to set aside a total of three NSLs. In response to the first such request, the district court granted the recipient’s petition, and enjoined the Government “from issuing NSLs under § 2709 or from enforcing the nondisclosure provision in this or any other case.” ER 30. The district court stayed its judgment sua sponte pending this appeal by the Government (No. 13-15957). Ibid. But, in response to a second request similarly
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asking the same district court to set aside two additional NSLs, accompanied by further briefing and the submission of additional evidence, the district court declined to set those NSLs aside and granted the Government’s cross-petition for enforcement, thus requiring the recipient to provide the information sought and to comply with the nondisclosure requirements.1 The recipient has appealed (No. 1316731), and the district court, this Court, and Justice Kennedy have each denied the recipient’s motions for a stay pending appeal. This Court consolidated Nos. 13-15957 and 13-16731.
I. Statutory Background
A. National Security Letters are Administrative Subpoenas Used by the FBI in Counterterrorism and Counterintelligence Investigations.
The President of the United States has charged the FBI with primary authority for conducting counterintelligence and counterterrorism investigations in the United States. See Exec. Order No. 12333 §§ 1.14(a), 3.4(a), 46 Fed. Reg. 59941 (Dec. 4, 1981). Today, the FBI is engaged in extensive investigations into threats, conspiracies, and attempts to perpetrate terrorist acts and foreign intelligence operations against the United States. These investigations are typically
1 In other cases, the same district court also granted the Government’s motions to enforce a total of 21 other NSLs addressed to two different recipients. See ER 2.
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long-range, forward-looking, and prophylactic in nature in order to anticipate and disrupt clandestine intelligence activities or terrorist attacks on the United States before they occur. ER 103 (Unclassified Declaration of FBI Assistant Director Mark F. Giuliano ¶ 9).2
The FBI’s experience with counterintelligence and counterterrorism investigations has shown that electronic communications play a vital role in advancing terrorist and foreign intelligence activities and operations. Accordingly, pursuing and disrupting terrorist plots and foreign intelligence operations often require the FBI to seek information relating to the use of electronic communications. That information often serves as a critical foundation from which the FBI develops leads, determines a suspect’s associates and financial dealings, and applies for warrants to conduct electronic or physical searches; it can also be used to clear individuals of suspicion. ER 103-104 (Giuliano Decl. ¶¶ 910, 14).
The statutory provision principally at issue in this case, 18 U.S.C. § 2709,
2 This declaration appears at ER 101-112. A similar unclassified declaration of FBI Assistant Director Robert Anderson, Jr. appears at ER 43-58. Declarations containing additional information are classified at the “Secret” level and were submitted to the district court ex parte for in camera review and are similarly available to this Court ex parte for its in camera review. See 18 U.S.C. § 3511(e).
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was enacted in 1986 to assist the FBI in obtaining such electronic information by empowering the FBI to issue an administrative subpoena commonly referred to as a National Security Letter. Section 2709 is one of several federal statutes that authorize the FBI or other Government authorities to issue such NSLs in connection with counterintelligence and counterterrorism investigations. See 12 U.S.C. § 3414(a)(5) (Right to Financial Privacy Act); 15 U.S.C. §§ 1681u-1681v (Fair Credit Reporting Act); 50 U.S.C. § 3162 (National Security Act of 1947).
Subsections (a) and (b) of § 2709 authorize the FBI to request “subscriber information and toll billing records information, or electronic communication transactional records,” all of which Congress deemed to be “less private than other records.” Sams v. Yahoo! Inc., 713 F.3d 1175, 1180 (9th Cir. 2013). NSLs may not be used to obtain more private records, including the content of any wire or electronic communication. See S. Rep. No. 99-541 at 44 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3598.
In order to issue an NSL, the Director of the FBI, or a designee “not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office” must certify that the information sought is “relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities.” 18 U.S.C. § 2709(b)(1)-(2). In addition, when
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an NSL is issued in connection with an investigation of a “United States person,” one of the same officials must certify that the investigation is “not conducted solely on the basis of activities protected by the first amendment.” Ibid.
B. Confidentiality of National Security Letters is Often Necessary for Effective Counterintelligence and Counterterrorism Investigations.
Most counterintelligence and counterterrorism investigations must be carried out in secrecy if they are to succeed. Because these investigations themselves are often classified and are typically directed at clandestine groups, it is often essential that targets not learn that they are the subject of an investigation so that they do not take countermeasures to avoid detection, destroy or conceal evidence, flee, craft alibis, and/or expedite attack plans. ER 46-47 (Anderson Decl. ¶¶ 13-15); ER 110111 (Giuliano Decl. ¶¶ 38-40). Likewise, knowledge about the scope or progress of a particular investigation can allow targets to determine the FBI’s degree of penetration of their activities and to alter their timing or methods. The same concern applies to knowledge about the sources and methods that the FBI is using to acquire information, knowledge that can be used both by the immediate targets of an investigation and by other terrorist and foreign intelligence organizations even after a particular investigation has ended. See ER 110-111 (Giuliano Decl. ¶¶ 38, 40).
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The secrecy needed for successful counterintelligence and counterterrorism investigations can be compromised if an NSL recipient discloses that it has received an NSL or provided information pursuant to one. To avoid that result, § 2709(c) contains provisions that restrict the disclosure of information about NSLs.
Originally, § 2709(c) automatically forbade an NSL recipient from disclosing that the FBI sought or obtained access to information by means of an NSL. Pub. L. No. 99-508, § 201, 100 Stat. 1867 (1986). The original nondisclosure requirement was perpetual, and the statute contained no provision for an NSL recipient to contest the need for nondisclosure in court.
C. Congress Amended the National Security Letter Statute to Avoid Unnecessary Restrictions on Disclosure.
In 2006, Congress enacted significant revisions to the nondisclosure provisions designed to avoid unnecessary restrictions. First, the nondisclosure requirement no longer applies automatically. Instead, disclosure is prohibited only if one of the high-level FBI officials noted above certifies that, absent such a requirement, “there may result 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
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physical safety of any person.” 18 U.S.C. § 2709(c)(2). Although this certification applies in “the vast majority of cases,” it is made on a case-by-case basis before each NSL is issued and does not apply, for example, when “the investigation is already overt.” ER 46. When such a certification is made, notice of the nondisclosure requirement is included in the NSL itself. Violation of the nondisclosure requirement is a criminal offense under the NSL statute if, but only if, the recipient discloses the information “knowingly and with the intent to obstruct an investigation or judicial proceeding.” 18 U.S.C. § 1510(e).
Second, Congress amended the statute to provide a specific statutory mechanism for judicial review of a nondisclosure requirement in an NSL, distinct from judicial review of the NSL itself. An NSL recipient may petition a district court “for an order modifying or setting aside a nondisclosure requirement imposed in connection with” the NSL. 18 U.S.C. § 3511(b)(1). If the petition is filed more than a year after the NSL was issued, the FBI or Department of Justice must either re-certify the need for nondisclosure or terminate the nondisclosure requirement. Id. § 3511(b)(3).
A district court “may modify or set aside” the nondisclosure requirement if the court finds “no reason to believe” that disclosure may cause any of the statutorily enumerated harms. Id. § 3511(b)(2) & (3). If the Director of the FBI,
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the Attorney General, the Deputy Attorney General, or an Assistant Attorney General personally certifies at the time of the petition that disclosure may endanger national security or interfere with diplomatic relations, that certification “shall be treated as conclusive” by the district court “unless the court finds that the certification was made in bad faith.” Ibid. If a disclosure petition filed a year or more after the issuance of the NSL is denied, the recipient may try again one year later. Id. § 3511(b)(3).
D. NSLs are Enforced in a Manner that Adheres to the Second Circuit’s Opinion and Injunction in Doe.
The FBI implements the statutory NSL nondisclosure provisions in strict compliance with the Second Circuit’s decision in John Doe, Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008). See ER 48-50 (Anderson Decl. ¶¶ 18-25). That decision interpreted the nondisclosure provisions in a manner that is deliberately protective of the First Amendment interests of NSL recipients and imposed an injunction that binds the Government. The Government implements the nondisclosure provisions throughout the country in conformity with Doe and in a manner highly protective of free speech interests.
Like the present case, Doe involved a facial constitutional challenge to the nondisclosure provisions of the NSL statute. The Doe district court had found, much like the district court here, that the nondisclosure provisions lacked
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constitutionally required procedural safeguards and were substantively overbroad. Also like the court below, the Doe district court had held that the assertedly unconstitutional aspects of the nondisclosure provisions could not be severed from the remaining provisions of the NSL statute, and therefore had prohibited the FBI from issuing NSLs under § 2709 at all. See Doe, 549 F.3d at 870 (describing district court decision).
On appeal, however, the Second Circuit rejected most, although not all, of the district court’s constitutional concerns and substantially narrowed the scope of the injunction. The Second Circuit’s decision allows the Government to continue to issue and enforce NSLs, including NSLs imposing a nondisclosure obligation under § 2709, as long as specified procedures are followed.
To avoid potential First Amendment concerns, the Second Circuit interpreted §§ 2709 and 3511 to “place on the Government the burden to show that a good reason exists to expect that disclosure of receipt of an NSL will risk an enumerated harm.” Doe, 549 F.3d at 883. The court held that the First Amendment obligates the Government to initiate judicial review of the nondisclosure requirement, and modified the district court’s injunction to bar the Government from enforcing nondisclosure requirements unless the Government

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assumes the burden of seeking judicial review.3 The court identified a constitutionally permissible “reciprocal notice procedure,” under which the recipient of an NSL has 10 days to notify the FBI that it intends to challenge the nondisclosure requirements, and the Government then has approximately 30 days in which to initiate judicial review. 549 F.3d at 879, 883-84.
The Second Circuit in Doe agreed with the district court that § 3511(b) is unconstitutional to the extent that it makes specified Government certifications conclusive in judicial proceedings. Id. at 884. Unlike the district court, however, the Second Circuit held that the constitutionally infirm provisions of the NSL statute could be severed from the remaining provisions. The court had “no doubt that if Congress had understood that First Amendment considerations required the Government to initiate judicial review of a nondisclosure requirement and precluded a conclusive certification by the Attorney General, it would have wanted the remainder of the NSL statutes to remain in force.” Id. at 885.
Since 2009, the FBI has complied with the Doe injunction and has implemented Doe’s “reciprocal notice” procedures nationwide. See ER 48, 53-54, 56 (Anderson Decl. ¶ 19 & Exh. A, at 2-3 & Exh. B, at 2). Although historically
3 Despite the Government’s request, however, the court did not modify the unusual reach of the district court’s injunction to parties not before it and to geographical areas outside of the Second Circuit.
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the FBI has issued thousands of NSLs annually, see ER 53 (Anderson Decl. Exh. A, at 2), since Doe only a handful of recipients have provided the Government with notice that they intended to challenge the nondisclosure requirement. II. The Present Controversy
These consolidated appeals relate to two ongoing, authorized FBI national security investigations, the backgrounds of which are described in classified declarations submitted to the district court ex parte for in camera review and similarly available ex parte to this Court for in camera review. Each of the three NSLs at issue in these consolidated appeals was served on the recipient under 18 U.S.C. § 2709 as part of one of those two national security investigations. ER 7683, 117-119.
An FBI Special Agent in Charge certified in each NSL that the information sought was relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities and that any investigation of a United States person was not conducted solely upon the basis of activities protected by the First Amendment. ER 77, 81, 117. The FBI further certified that disclosure of the fact that it had requested or obtained access to the information sought in the NSL could cause one or more of the statutorily enumerated harms and that, therefore, the recipient was prohibited from disclosing the NSL (other
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than as necessary to comply with the NSL or to obtain relevant legal advice). With respect to judicial review of nondisclosure, each NSL notified the recipient of its right to challenge the NSL under 18 U.S.C. § 3511, and of the 10-day period to notify the FBI that it desired to challenge the nondisclosure requirement in order to trigger the FBI’s initiation of judicial proceedings. ER 77-78, 81-82, 118.
A. Appeal No. 13-15957 After the FBI provided an extension of time to respond to the first of these NSLs, the recipient filed the petition at issue in No. 13-15957. See ER 120-122. As relevant here, the petition alleges that (1) the statutory NSL nondisclosure provision is an unconstitutional prior restraint; (2) the judicial standard of review with respect to the nondisclosure requirements violates separation-of-powers principles; and (3) both the underlying informational request and the accompanying nondisclosure requirement violate the First Amendment because they do not meet the requirements of strict scrutiny. ER 121-122.4 On March 14, 2013, the district court granted the petition and issued an order that enjoins the Government “from issuing NSLs under Section 2709 or from

4 After the petition was filed, the Government filed an affirmative action in district court to enforce the NSL, consistent with the Doe procedures described above. That action (District Court No. 11-2667) has been stayed pending this appeal.
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enforcing the nondisclosure provision in this or any other case.” ER 30. The court, acting sua sponte, stayed its judgment pending this appeal. Ibid.
The district court’s decision here closely tracks the district court opinion in Doe, including the portions of that opinion that were later reversed on appeal by the Second Circuit. The district court here rejected the Government’s analogy to grand jury proceedings and other settings in which private parties learn information through participation in Government investigations. Despite observing that a nondisclosure requirement in an NSL “may not be a ‘classic prior restraint’ or a ‘typical’ content-based restriction on speech,” the district court here concluded that such a restriction must not only be “narrowly tailored to serve a compelling governmental interest,” but must also meet the heightened standards that the Supreme Court applied to administrative censorship schemes in Freedman v. Maryland, 380 U.S. 51 (1965). ER 15-17. In applying Freedman, the district court gave no weight to the FBI’s “nationwide compliance” with Doe, characterizing that adherence to Doe as “voluntary,” rather than the result of legal obligation. ER 19. The court also rejected the Second Circuit’s approach in Doe of construing the statutory provisions to avoid potential First Amendment problems, and dismissed as irrelevant the fact that the Government has adhered to Doe’s construction of the statute and Doe’s reciprocal notice mechanism, as well as Doe’s injunction, with
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respect to the NSL here and every other NSL since 2009. See ER 13, 18-20. The district court below concluded that the statutory NSL nondisclosure
provision is facially unconstitutional in several respects: 1. Although the Government followed the Doe reciprocal notice procedures,
the district court found the statute constitutionally deficient under Freedman for not requiring the Government to institute judicial proceedings. ER 20-21.
2. The district court noted that “a strong argument” supported forbidding disclosure of the information sought in an NSL, but it faulted the statute for prohibiting disclosure of the mere fact of receipt of an NSL because, in some (unspecified) situations, disclosure of that fact might not be harmful. ER 21-22.
3. The district court found the duration of nondisclosure requirements constitutionally problematic because they remain in effect until judicially set aside and because a recipient can ask a court to set aside a particular nondisclosure requirement no more than once every year. ER 22-23.
4. The district court held that “as written, the statute impermissibly attempts to circumscribe a court’s ability to review the necessity for nondisclosure orders” by limiting a court’s power to modify or set aside a nondisclosure order to situations in which there is no reason to believe that disclosure may lead to an enumerated harm and by giving conclusive effect to specified officials’
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certifications that particular harms may occur. ER 24. In contrast to the Second Circuit, which construed the challenged statutory
provisions to minimize potential First Amendment concerns, the district court here declined to construe the statutory provisions to avoid potential constitutional problems. ER 27-29. It reasoned that construing the provisions to avoid First Amendment issues would be inconsistent with what the court took to be Congress’s intention to simultaneously “giv[e] the government the broadest powers possible to issue NSL nondisclosure orders” while “preclud[ing] searching judicial review of the same.” ER 28. Accordingly, the district court found “no ‘reasonable construction’” of the statute “that can avoid the constitutional infirmities.” ER 29.
Finally, the district court concluded that the provisions it found unconstitutional – all of which related to the nondisclosure requirement – could not be severed from the underlying substantive provisions that authorize the FBI to issue and enforce NSLs in counterterrorism and counterintelligence investigations. The district court found it “hard to imagine how the substantive NSL provisions – which are important for national security purposes – could function if no recipient were required to abide by the nondisclosure provisions.” ER 29. Disagreeing with the Second Circuit in Doe, the district court dismissed the idea that if Congress had believed that the nondisclosure provision was flawed, it would still have authorized
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the FBI to issue NSLs without a legally binding nondisclsoure obligation (for example, NSLs to recipients that the FBI believed it could trust not to disclose). Accordingly, the district court held the entire NSL statute invalid and unenforceable. This holding made it unnecessary for the district court to address the constitutionality of the statute as applied to the NSL recipient here. Ibid.5
The district court sua sponte stayed its injunction pending this appeal, noting “the significant constitutional and national security issues at stake.” ER 30.
B. Appeal No. 13-16731 After the district court issued the stayed injunction that is the subject of No. 13-15957, the same NSL recipient filed a separate petition to set aside two additional NSLs, and the Government filed a cross-petition to enforce those two NSLs. ER 59-69, 85-88. Notwithstanding the district court’s conclusion in No. 13-15957 that the statute is facially unconstitutional, the court denied the petition to set aside the NSLs in No. 13-16731 and granted the Government’s cross-petition for enforcement. Although the NSL recipient again asserted that the entire statute is facially invalid, this time the district court concluded that “it was appropriate to review the arguments and evidence on an NSL-by-NSL basis,” and analyzed the
5 The district court stated that 18 U.S.C. § 3511(b)(2) and (b)(3) violated separation-of-powers principles, ER 29, but its opinion contains no analysis of that issue.
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validity of the statute as applied. ER 2-3. The district court noted that it is undisputed that “the FBI has complied with
the strictures imposed by [Doe, and t]he Government has, therefore, complied with procedural and substantive requirements that the Court and petitioner in the Court’s prior case recognized could result in a constitutional application of the nondisclosure and judicial review provisions of 18 U.S.C. § 2709(c) and 18 U.S.C. §§ 3511(b)(2), (b)(3).” ER 3. The district court further concluded that “Congress has authorized the FBI to seek the information requested, the procedural requirements set by both the statute and by the Second Circuit’s Doe v. Mukasey decision have been followed, . . . the evidence sought is relevant and material to the investigation,” and the Government had provided classified evidence “explaining further the need for continued nondisclosure of both NSLs.” ER 4. Accordingly, the district court granted the Government’s motion to enforce. ER 5. The recipient’s appeal from this enforcement order is this Court’s No. 13-16731.
SUMMARY OF ARGUMENT Public disclosure of actions by the Government to investigate terrorism and espionage may allow individuals and groups under investigation to take steps to evade detection, destroy evidence, mislead investigators, conceal future terrorist and foreign intelligence activities, and speed plans for an attack. The inclusion of
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nondisclosure requirements within NSLs is thus important for the Government’s efforts to prevent terrorism and espionage against the United States.
Congress nevertheless included several provisions to minimize the impact of nondisclosure requirements in NSLs. Such requirements are imposed only for compelling reasons and require a case-by-case certification of those reasons by a high-level FBI official. Immediate judicial review is available. John Doe, Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008), provides additional procedural protections, including requiring the Government to initiate judicial review whenever a recipient indicates a desire to challenge a nondisclosure requirement. The Government has scrupulously followed Doe nationwide for the past five years, including with respect to the NSLs at issue here.
1. The statute is constitutional as applied in these cases. The Government’s interest in the integrity and secrecy of the specific counterterrorism and/or counterintelligence investigations here is paramount, and the Government proved that nondisclosure was necessary to preserve those interests. The Government initiated judicial review soon after the nondisclosure requirements went into effect and bore the burden of proof in that review. Courts have repeatedly upheld nondisclosure requirements in similar contexts involving grand juries, classified information, criminal investigations, judicial misconduct investigations, and other
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Government procedures, and there is no reason to treat the nondisclosure requirements in the NSLs here differently. Presumably for these reasons, the district court properly granted the Government’s enforcement motion in No. 1316731, which required the recipient to comply with the two NSLs at issue in that case, including their nondisclosure requirements.
2. The statute is facially constitutional because it is capable of being applied constitutionally, not just to the NSL recipient at issue here, but (at a minimum) in every case in which the FBI follows the Doe procedures. Because it is uncontested that the FBI uniformly follows those procedures, the recipient here cannot meet its facial-challenge burden to show that the application of the statute will suppress a substantial amount of speech protected by the First Amendment. The strictest procedural requirements do not apply in such situations and are, at any rate, satisfied by the protections provided here.
3. The district court erred in citing perceived flaws in the nondisclosure requirements as a basis for invalidating the entire NSL statute. Congress clearly wanted the Government to have NSLs as a tool to thwart terrorism and espionage, regardless of what, if any, limitations the Constitution places on nondisclosure requirements. Indeed, Congress specifically authorized the FBI to issue NSLs without nondisclosure requirements.
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4. Even if any relief had been warranted, the district court should have limited its relief to the NSL recipient here. Its broad injunction directly conflicts with Doe and would significantly harm the Government’s counterterrorism and counterintelligence investigations.
STANDARD OF REVIEW In the context of a permanent injunction (including one that has been stayed pending appeal), this Court reviews factual findings for clear error and legal conclusions de novo. E.g., Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020, 1030 (9th Cir.), cert. dismissed, 134 S. Ct. 624 (2013). Because there are no material factual disputes here, de novo review applies.
ARGUMENT THE NONDISCLOSURE PROVISIONS OF 18 U.S.C. §§ 2709 AND 3511 ARE CONSTITUTIONAL BOTH FACIALLY AND AS APPLIED HERE
The nondisclosure provisions of 18 U.S.C. §§ 2709 and 3511 reflect a careful effort by Congress to reconcile the needs of counterterrorism and counterintelligence investigations with the First Amendment interests of NSL recipients. In imposing nondisclosure requirements on the recipients of specified NSLs, Congress was aware of potential First Amendment concerns and therefore included numerous safeguards. Those safeguards, especially when construed as
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the Second Circuit did in Doe, exceed the safeguards previously found to meet constitutional standards with respect to analogous nondisclosure requirements (including those related to grand jury secrecy, classified national security information, judicial disciplinary proceedings, and secret criminal investigations) and to otherwise meet constitutional requirements, especially given the unquestionably compelling Government interest in the integrity and efficacy of its counterterrorism and counterintelligence investigations.
In 2008, the Second Circuit conducted a detailed examination of this statute and concluded that it can be interpreted and applied in a manner that satisfies the First Amendment and that, as a result, “authority to issue NSLs should be preserved.” See John Doe, Inc. v. Mukasey, 549 F.3d 861, 885 (2d Cir. 2008). The Doe court acknowledged that it was possible to interpret several relevant statutory provisions in a manner that would render them constitutionally suspect, but found that the provisions are also susceptible to a different reasonable interpretation that renders them constitutional and it thus permitted their continued operation. For the past five years, including all times relevant here, the Government has acted in accordance with the statutory provisions as prescribed by Doe.
Both the district court below and the NSL recipient here acknowledged that,
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interpreted and implemented in this manner, the statutory provisions are constitutional. It necessarily follows that those provisions are constitutional as applied here – and, indeed, as applied in the thousands of other instances in which the FBI has issued NSLs in conformance with Doe, which include every NSL issued since 2009. This explains the district court’s second order, at issue in No. 13-16731, which required the recipient to comply with both the substantive information requests and the nondisclosure requirements contained in the NSLs at issue there.
The central issue presented in No. 13-15957 is thus not whether the Government’s specific actions here comply with the Constitution; by enforcing the other NSLs against the recipient in this case, the district court itself effectively recognized that they do. The question is whether the statute should be entirely struck down, despite its constitutional operation here and thousands of times over the past five years, because it can conceivably be interpreted as not including all of the safeguards addressed in Doe and implemented by the Government. The district court’s facial invalidation of the statute on this basis was not only incorrect but also represents an extreme intrusion into the legislative realm, contrary to clear instructions from the Supreme Court. This Court should show the same respect for separation of powers that its sister circuit did in Doe and should interpret the
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relevant statutory provisions with the goal of preserving them rather than

destroying them. Doing so will effectuate both congressional intent and First

Amendment interests, by allowing the Government to continue to utilize these

NSL provisions while safeguarding substantive and procedural protections for First

Amendment interests.

I. THE NSL NONDISCLOSURE PROVISIONS CONSTITUTIONAL AS APPLIED HERE.

ARE

Courts should address as-applied challenges to the constitutionality of

statutes before facial challenges. See, e.g., Bd. of Trustees of State Univ. of N.Y.

v. Fox, 492 U.S. 469, 484-85 (1989). The district court disregarded that rule in

No. 13-15957, addressing the facial challenge first and then declining to decide the

as-applied challenge. See ER 29. But in No. 13-16731, the court did address the

as-applied challenge and implicitly ruled that §§ 2709 and 3511 are constitutional

as applied to the two specific NSLs at issue. That as-applied ruling is correct and

logically applies to the NSL in No. 13-15957 as well. In all instances, the statutory

nondisclosure requirements were applied in a manner fully consistent with the First

Amendment.

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A. The Nondisclosure Requirements in the Three NSLs at Issue Here are Narrowly Tailored to Serve a Compelling Government Interest.
1. The Nondisclosure Requirements in the Three NSLs Here Satisfy Strict Scrutiny.
We explain on pages 31 to 33, below, why the district court erred in applying strict scrutiny here. But this Court need not determine the appropriate standard of review, because, as applied to the NSL recipient here – and, indeed, as similarly applied to every NSL recipient since 2009 – the nondisclosure requirements in these NSLs satisfy strict scrutiny because they are narrowly tailored to meet compelling Government interests.6
a. Compelling Government Interest. As a general proposition, maintaining the secrecy of information that relates to Government counterterrorism and counterintelligence investigations is a compelling Government interest. E.g., Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1988) (Government has “‘compelling interest’ in withholding national security information from unauthorized persons in the course of executive business”); Snepp v. United States, 444 U.S. 507, 509 n.3 (1980) (“The Government has a compelling interest in protecting . . . the secrecy of
6 The operation of the statutory nondisclosure provisions was constitutional prior to Doe as well, but only their operation after (and in accordance with) Doe is relevant here.
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information important to our national security”). Cf. Branzburg v. Hayes, 408 U.S. 665, 700-701 (1972) (compelling interest in furthering grand jury functions). That interest is even more compelling when disclosure may result in one of the harms listed in § 2709(c)(1). Indeed, the district court acknowledged that the Government interests served by nondisclosure here are indisputably compelling. ER 21.
b. Narrow Tailoring. The Government demonstrated specifically with respect to the three NSLs at issue here that “disclosure may endanger the national security of the United States, interfere with a criminal, counterterrorism, or counterintelligence investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person.” 18 U.S.C. § 3511(b)(2). As required by § 2709(c), this assertion is included in all three NSLs by an FBI Special Agent in Charge, ER 77, 81, 108, 118, and it is repeated in the declaration of an FBI Assistant Director submitted in connection with these legal challenges, ER 47-48. Specific factual support is included in the classified declarations upon which the district court expressly relied in holding that the Government had met its burden of proof necessary to enforce the NSLs at issue in No. 13-16731. ER 4-5. This classified evidence demonstrates the direct relationship between the nondisclosure requirements in these NSLs and the prevention of one or more of the statutorily
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enumerated harms. The specific nondisclosure requirements included in the three NSLs before this Court were thus narrowly tailored to serve a compelling Government interest, and any challenge to the relevant statutes as applied here must be rejected.
The specific statutory flaws that the district court perceived on the face of the statute had no effect on the NSL recipient here, and therefore are irrelevant to the constitutionality of the statute as applied here. For example, the district court believed that in some instances, a recipient might be able to disclose the mere fact that it had received an NSL without risking any of the statutorily enumerated harms. ER 21-22. But the court never suggested that this was such a case. To the contrary, it noted that there are “situations where recipients would appropriately be precluded from disclosing their receipt of an NSL,” ER 22, and its order enforcing the two nondisclosure requirements in No. 13-16731 constitutes an implicit finding that the statute is narrowly tailored to serve compelling Government interests as applied with respect to those two NSLs.
The district court also suggested that the statute is not sufficiently narrowly tailored because in some instances it could result in NSL nondisclosure requirements that continue in force “longer than necessary to serve the national security interests at stake.” ER 23. Again, neither the district court nor the
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recipient here suggested that this is such a case. There is no allegation that the statute, as applied here, has resulted in nondisclosure requirements that have continued in force too long, and the district court’s order enforcing the specific nondisclosure requirements in the two NSLs at issue in No.13-16731 is an implicit holding that those requirements have not been in force too long.7
The district court also criticized the provision of the NSL statute that allows an NSL recipient to challenge a nondisclosure requirement once every year. ER 23 (citing 18 U.S.C. § 3511(b)(3)). But that statutory provision does not apply here because it is limited to petitions for review of a nondisclosure requirement “filed one year or more after” the issuance of the NSL, 18 U.S.C. § 3511(b)(3), and the challenges here were filed soon after the NSLs were issued.

7 At any rate, the only authority the district court cited for the proposition that nondisclosure requirements can sometimes last too long was the district court decision that the Second Circuit reversed on this very point in Doe. See ER 23 (citing Doe v. Gonzales, 500 F. Supp. 2d 379, 421 (S.D.N.Y. 2007), reversed sub nom. Doe v. Mukasey, 549 F.3d 861 (2008)). The Second Circuit correctly noted that “[t]he information subject to nondisclosure is extremely limited, and, once the need for secrecy – avoiding risk of harm related to international terrorism – has been shown, that need is not likely to dissipate soon.” 549 F.3d at 884 n.16. Accordingly, the Second Circuit properly concluded that the statutory provisions allowing a recipient the opportunity to initiate further judicial review (should it believe that circumstances have in fact eliminated the need for nondisclosure) are constitutionally sufficient.
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2. Intermediate Scrutiny is Appropriate. The Second Circuit correctly concluded in Doe that, because the statutory provisions as applied satisfy traditional strict scrutiny requirements, it is unnecessary to determine whether they are, in fact, subject to a less demanding form of First Amendment scrutiny. See Doe, 549 F.3d at 878. Should this Court deem it necessary to conduct this analysis, however, the specific nondisclosure requirements in the NSLs here should not be subjected to traditional strict scrutiny or (as at least one member of the Doe panel suggested) “not quite as ‘exacting’ a form of strict scrutiny,” ibid., but rather should be subjected to intermediate scrutiny, because these requirements are content-neutral. The Supreme Court has explained that “the principal inquiry in determining content neutrality . . . is whether the government has adopted a regulation of speech because of [agreement or] disagreement with the message it conveys.” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994) (emphasis added, internal quotation marks omitted); accord Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989); DISH Network Corp. v. FCC, 653 F.3d 771, 778 (9th Cir. 2011), cert. denied, 132 S. Ct. 1162 (2012). This remains true even when a statute in fact “refer[s] to the content of speech,” Perry v. L.A. Police Dep’t, 121 F.3d 1365, 1369 (9th Cir. 1997), cert. denied, 523 U.S. 1047 (1998), and means that
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strict scrutiny does not always apply even when a statute regulates speech based on its effects, e.g., United States v. Aguilar, 515 U.S. 593, 605-06 (1995) (First permits criminally punishing disclosure of confidential wiretap information that harms investigation); United States v. Fulbright, 105 F.3d 443, 452 (9th Cir.) (First Amendment permits criminally punishing the filing of judicial documents as part of an attempt to impede a federal officer and obstruct justice), cert. denied, 520 U.S. 1236 (1997), and overruled in part on other grounds by United States v. Heredia, 483 F.3d 913 (9th Cir. 2007).
The nondisclosure requirements in the NSLs here were not imposed because of “disagreement with the message” that a disclosure would convey. The object was not to remove issues and views from the marketplace of ideas, but rather to avoid disclosure of confidential information about particularly sensitive and important national security investigations that could endanger the national security of the United States, endanger someone’s life or physical safety, interfere with diplomatic relations, and/or interfere with the investigation itself. These restrictions are analogous to other restrictions on the dissemination of information that could harm criminal investigations or other important governmental interests. E.g., Aguilar, 515 U.S. at 605-06. Accordingly, the proper standard here is that articulated by the Supreme Court in Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180,
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189 (1997): “A content-neutral regulation will be sustained under the First Amendment if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests.” Accord United States v. O’Brien, 391 U.S. 367, 377 (1968); DISH, 653 F.3d at 780. For the same reasons that the specific nondisclosure requirements in the NSLs at issue here meet strict scrutiny, they necessarily also meet any lesser scrutiny that could apply, including intermediate scrutiny. The NSL statute is therefore constitutional as applied here.
B. All of the Freedman Procedural Protections were Provided Here. The district court faulted the statute for allegedly failing, on its face, to provide the procedural safeguards set forth in Freedman v. Maryland, 380 U.S. 51 (1965). As discussed below, the Freedman requirements are not applicable here because nondisclosure requirements in NSLs are not part of an administrative censorship scheme. See pp. 48-52, infra. But in any event, it is undisputed that all of the Freedman requirements were met with respect to the three NSLs at issue here (and, by extension, with respect to all NSLs issued since 2009). Indeed, the district court specifically found that “the government chose to meet the Freedman safeguards in issuing and seeking to compel the NSL at issue [in No. 13-15957].” ER 19. Moreover, the NSL recipient here “does not dispute that the FBI has
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complied with the strictures imposed by the Second Circuit [in Doe],” ER 3, and concedes that if the statute included the Doe requirements, it “would be constitutional,” ER 13. Thus, even if Freedman did apply here, the statute was constitutionally applied.
Freedman imposes three procedural requirements on administrative censorship schemes. First, any administrative restraint on speech that precedes judicial review must be brief. Thomas v. Chi. Park Dist., 534 U.S. 316, 321 (2002). Here, that requirement was met by application of the Doe reciprocal notice arrangement, under which the Government promptly initiated judicial review of the specific nondisclosure requirements at issue. Second, expeditious judicial review must be available. Ibid. That requirement was unquestionably met here, and the NSL recipient never suggested otherwise. ER 21 n.13. Third, the Government must bear the burden of going to court to enforce the restriction and must bear the burden of proof in court. Ibid. The Government bore the burden of going to court as described in Doe. 549 F.3d at 885. Finally, the district court unquestionably placed the burden of proof on the Government with respect to the specific NSLs at issue here. See ER 5 (“[T]he government has met its burden to enforce these NSLs.”). Thus, the as-applied challenge here based on Freedman must fail.

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C. There is no First Amendment Right to Disclose Information Learned Through Participation in a Secret Government Investigation.
It is undisputed that the information sought through the NSLs at issue here is “relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities.” ER 77, 81, 117; see 18 U.S.C. § 2709(b). But in the course of obtaining this information for unquestionably compelling reasons, the Government necessarily revealed to the NSL recipient the existence of the investigations and potentially other information whose further dissemination may harm those investigations, injure our national security and foreign relations interests, and endanger individual lives and physical safety. The NSLs are analogous in this respect to other contexts in which the Government both provides information to a third party and restricts any further dissemination of that information to serve compelling interests. Such disclosures-with-restrictions have been repeatedly upheld against First Amendment challenges, and the reasons for doing so apply to the NSLs at issue here as well.
For example, in Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984), the Supreme Court upheld the constitutionality of a prohibition on the further distribution of sensitive information obtained by a litigant through pretrial discovery. The Court reasoned that, because the parties “gained the information
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they wish to disseminate only by virtue of the trial court’s discovery processes[,]
. . . continued court control of the discovered information does not raise the same
specter of government censorship that such control might suggest in other
situations.” Id. at 32. Similarly, in Butterworth v. Smith, 494 U.S. 624 (1990), the
Supreme Court rejected limitations on a witness’s “right to divulge information of
which he was in possession before he testified before the grand jury,” but
suggested that the Constitution allows limitations on the dissemination of
“information which [a grand jury witness] may have obtained as a result of his
participation in the proceedings of the grand jury.” Id. at 632; see id. at 636
(Scalia, J., concurring) (“Quite a different question is presented . . . by a witness’
disclosure of the grand jury proceedings, which is knowledge he acquires not ‘on
his own’ but only by virtue of being made a witness.”). Indeed, this Court long
ago upheld a State’s practice of compelling grand jurors and grand jury witnesses
to take an oath of secrecy with respect to their participation in grand jury
proceedings:
It has never been supposed that grand jurors are deprived of the constitutional right of free speech through the oath of secrecy which they take; and a witness summoned to appear before them is in no better case. Through their participation in the proceedings both grand jurors and witnesses occupy a special relationship to the state; and for reasons grounded in public policy, as we have seen, the testimony taken in these proceedings is privileged
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and confidential. Considerations of mere convenience or even of downright hardship on the part of the witness do not outweigh the policy of secrecy in respect of grand jury investigations.
Goodman v. United States, 108 F.2d 516, 520 (9th Cir. 1939).8 Other courts of
appeals agree.9
Similar restrictions constitutionally prohibit the recipients of classified
information from making unauthorized disclosures. These restrictions are closely
analogous to the nondisclosure requirements in the NSLs here because the FBI’s
certifications in support of those nondisclosure requirements (that disclosure may
endanger national security or cause the other harms specified in § 2709(c)) is
8 Goodman is arguably no longer good law to the extent, if any, that the oath barred witnesses from revealing the substance of their own grand jury testimony because that consists of information the witnesses know before attending the grand jury. But Goodman remains good law with respect to grand jurors and any information that either jurors or witnesses obtain as a result of their involvement with the grand jury. Goodman’s constitutional ruling is not undermined by Rule 6(e)(2) of the Federal Rules of Criminal Procedure, which applies grand jury secrecy rules to jurors and others involved in the federal grand jury process, but not to grand jury witnesses.
9 See, e.g., Hoffman-Pugh v. Keenan, 338 F.3d 1136, 1140 (10th Cir. 2003) (constitutional “line should be drawn between information the [grand jury] witness possessed prior to becoming a witness and information the witness gained through her actual participation in the grand jury process,” the further dissemination of which may be forbidden), cert. denied, 540 U.S. 1107 (2004); In re Charlotte Observer, 921 F.2d 47, 50 (4th Cir. 1990); In re Subpoena, 864 F.2d 1559, 1561, 1563 (11th Cir. 1989); United States v. Jeter, 775 F.2d 670, 674 (6th Cir. 1985), cert. denied, 475 U.S. 1142 (1986).
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similar to the determinations the FBI and other agencies make when they classify information on national security grounds. See generally Executive Order 13292, 68 Fed. Reg. 15315 (Mar. 28, 2003).
Although the classification of information prohibits the disclosure of that information by its recipients, no court has ever suggested that such classification, as distinct from a subsequent effort to enjoin disclosure, is a prior restraint prohibited by the First Amendment. For example, the D.C. Circuit rejected a former CIA agent’s claim that the CIA violated the First Amendment when it classified as “top secret” information contained in the former agent’s proposed book. McGehee v. Casey, 718 F.2d 1137 (D.C. Cir. 1983) (“[N]either the CIA’s administrative determination nor any court order in this case constitutes a prior restraint in the traditional sense . . . .”).
For similar reasons, no case suggests that the Government must initiate judicial proceedings to enforce nondisclosure requirements each time it reveals classified information to an employee or contractor. Indeed, in United States v. Marchetti, 466 F.2d 1309 (4th Cir.), cert. denied, 409 U.S. 1063 (1972), the Fourth Circuit placed the burden of going to court on a CIA employee seeking to publish a book that could contain classified information. “Because of the sensitivity of the information and the confidentiality of the relationship in which the information
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was obtained,” the court found “no reason to impose the burden of obtaining judicial review upon the CIA.” Instead, the Court concluded, “[i]t ought to be on Marchetti.” Id. at 1317; accord United States v. Snepp, 897 F.2d 138, 141-42 (4th Cir.), cert. denied, 498 U.S. 816 (1990). Prohibitions on the disclosure of classified information – like grand jury secrecy rules – are enforceable because they do not violate First Amendment rights. Marchetti, 466 F.2d at 1317.
Finally, similar nondisclosure requirements have been upheld in a number of other areas warranting secrecy. See, e.g., United States v. Aguilar, 515 U.S. 593 (1995) (wiretap in criminal investigation); United States v. Richey, 924 F.2d 857 (9th Cir. 1991) (income tax enforcement), Kamasinski v. Judicial Review Council, 44 F.3d 106, 111 (2d Cir. 1994) (proceedings before judicial misconduct board); First Amendment Coal. v. Judicial Inquiry & Review Bd., 784 F.2d 467, 478-79 (3d Cir. 1986) (en banc) (same).
Nor are the NSLs here unique. They are similar to numerous other NSLs issued under § 2709 and other statutes authorizing NSLs with nondisclosure requirements. See 12 U.S.C. § 3414(a)(1) & (5); 15 U.S.C. §§ 1681u & 1681v; 50 U.S.C. § 3162(b). And in many other circumstances, disclosures by nonGovernment actors are prohibited uniformly and automatically. See, e.g., 18 U.S.C. § 2511(2)(a)(ii) (Title III interceptions); id. § 2710(b)(1) (video tape
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services); id. § 3123(d)(2) (pen registers and trap-and-trace devices); 50 U.S.C. §§ 1802(a)(4), 1822(a)(4)(A), 1842(d), & 1861(d) (FISA pen registers, subpoenas, electronic surveillance, and physical searches). For example, 18 U.S.C. § 3123(d)(2) prohibits the recipient of a pen register order from disclosing the existence of the pen register and the underlying investigation “unless or until otherwise ordered by the court.” Id. § 3123(d)(2).
The nondisclosure requirements in the NSLs at issue here should be upheld on the same bases as the secrecy rules applicable to grand juries, classified national security information, judicial misconduct proceedings, and wiretap information discussed above. In each case, First Amendment interests are attenuated because the nondisclosure requirement encompasses only information that the Government provides to a third party along with the disclosure restrictions. The nondisclosure requirements in these NSLs, like the restrictions discussed above, do not censor information that the recipient independently possesses, nor do they impinge upon the ability to engage in general public discussions regarding the scope, operation, or desirability of NSLs or any other governmental information-gathering technique; they merely limit the further dissemination of information provided by the Government about, and as part of, a specific secret counterterrorism or counterintelligence investigation.
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Importantly, the Government’s need for secrecy here is at least as compelling as the need for secrecy in grand jury or judicial disciplinary proceedings. The district court itself recognized that shielding counterterrorism and counterintelligence investigations from the eyes of terrorists and foreign intelligence organizations is a manifestly compelling governmental interest, e.g., Dep’t of the Navy v. Egan, 484 U.S. 518, 527 (1988); Snepp, 444 U.S. at 509 n.3, that was specifically validated with respect to the NSLs at issue here by the Government’s classified evidence, see ER 4. Indeed, while grand jury investigations focus on the prosecution of completed crimes (including relatively minor crimes), the counterterrorism and/or counterintelligence investigations furthered by the NSLs here are arguably even more important because they focus on preventing acts of terrorism and espionage and therefore can save lives, rather than only punish criminals. See Brett A. Shumate, “Thou Shalt Not Speak: The Nondisclosure Provisions of the National Security Letter Statutes and the First Amendment Challenge,” 41 Gonzaga L. Rev. 151, 174-75 (2005).
The nondisclosure requirements in these NSLs are also more narrowly tailored than constitutional grand jury secrecy rules in key respects. They apply here only because FBI Special Agents in Charge certified with respect to each NSL that nondisclosure may prevent one or more of the statutorily enumerated harms.
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This ensures that these nondisclosure requirements are not being imposed unnecessarily. Grand jury secrecy rules, by contrast, apply to all grand jury proceedings, even when some of the rationales for secrecy are absent. For example, grand jury secrecy is justified in part by the need to prevent the subject of a grand jury investigation from learning of it and, as a result, fleeing or tampering with witnesses or evidence, e.g., Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 219 (1979), but the secrecy rules apply even when the grand jury is investigating a suspect who is already incarcerated and therefore incapable of fleeing or tampering, see Fed.R.Crim.P. 6(e).
The district court refused to treat the nondisclosure requirements in these NSLs like grand jury secrecy requirements and other similar nondisclosure rules. But its two stated reasons for doing so are unpersuasive. First, the district court noted that grand jury secrecy rules “provide[] a mechanism for judicial determination of whether secrecy [is] still required.” ER 17. But, as described above, §§ 2709 and 3511 provide simple and straightforward mechanisms for judicial review of both an NSL itself and any nondisclosure requirement contained within an NSL. Indeed, the cases under review here constitute just such judicial review of these specific NSLs.
Second, the district court suggested that the “nature of the proceedings 42

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themselves” justifies grand jury secrecy, while “‘secrecy might or might not be warranted’” in the investigations furthered by NSLs subject to nondisclosure requirements. ER 17 (quoting Doe v. Mukasey, 549 F.3d at 876). But the exact opposite is true. As noted above, the nature of the counterterrorism and/or counterintelligence investigations, coupled with the individualized determination of need for a nondisclosure requirement in each NSL, ensures that these specific nondisclosure requirements are necessary; by contrast, the lack of individualized determinations means that, in some cases, grand jury secrecy applies even when it is less necessary.
The district court erred in treating the nondisclosure requirements in these NSLs differently from the many other instances in which the Government is permitted to prohibit or limit the further disclosure of information that it provides in connection with secret investigations. Compared to these other limitations, the statute as applied here serves an interest that is at least as compelling, and does so by imposing limitations that are more narrowly tailored to promote that interest.

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II. THE NSL STATUTORY PROVISIONS ARE FACIALLY CONSTITUTIONAL. A. A Facial Challenge Under the First Amendment Succeeds on Overbreadth Grounds Only When a Statute Will Suppress a Substantial Amount of Protected Speech. Ordinarily, a plaintiff can succeed in a facial challenge only by establishing
that the law is unconstitutional in all of its applications. E.g. Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008). That is plainly not the case here, since the district court ordered that the two NSLs at issue in No. 1316731 be enforced, see ER 1-5, and, as explained above, all NSLs issued since 2009, if not earlier, comply with the same requirements.
The overbreadth doctrine is an exception to this general rule that applies only in the First Amendment context and “allows a plaintiff to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Alphonsus v. Holder, 705 F.3d 1031, 1042 n.10 (9th Cir. 2013) (internal quotation marks omitted); see FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 223 (1990) (plurality opinion) (“Although facial challenges to legislation are generally disfavored, they have been permitted in the First Amendment context
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where the licensing scheme vests unbridled discretion in the decisionmaker . . . .”). As an initial matter, this is an inappropriate case in which to even entertain a
facial overbreadth challenge. Such a challenge is improper when the party challenging the statute fails to show “that the ordinance will have any different impact on any third parties’ interests in free speech than it has on [the party asserting a facial challenge].” Members of City Council of City of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 801 (1984); accord Reed v. Town of Gilbert, Ariz., 587 F.3d 966, 974 (9th Cir. 2009). There is no such indication here because the application of the statutory nondisclosure provisions to the NSL recipient here is essentially the same as its application to every NSL recipient since at least 2009.
Moreover, overbreadth typically applies in cases where third-party speech is chilled by the possibility of criminal prosecution and there is no mechanism for obtaining pre-prosecution review. E.g., Virginia v. Hicks, 539 U.S. 113, 119 (2003) (“We have provided this expansive remedy out of concern that the threat of enforcement of an overbroad law may deter or ‘chill’ constitutionally protected speech – especially when the overbroad statute imposes criminal sanctions.”) (emphasis added). But here, § 3511 provides for any party to obtain preenforcement judicial review of any nondisclosure requirement (and, through the Doe procedures, allows any party to shift the burden of initiating that review to the
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Government). This is therefore a case in which “the ‘strong medicine’ of the overbreadth doctrine” is unavailable because potentially affected third parties “are sufficiently capable of defending their own interests in court that they will not be significantly ‘chilled.’” Davenport v. Wash. Educ. Ass’n, 551 U.S. 177, 191 n.5 (2007).
Should this Court nonetheless entertain the recipient’s facial challenge, that challenge faces significant hurdles. To succeed in an overbreadth challenge, a party “must demonstrate from the text of [the applicable statute] and from actual fact that a substantial number of instances exist in which the Law cannot be applied constitutionally,” N.Y. State Club Ass’n, Inc. v. City of New York, 487 U.S. 1, 14 (1988); United States v. Williams, 553 U.S. 285, 292 (2008), and that substantial number must be “judged in relation to the statute’s plainly legitimate sweep,” Wash. State Grange, 552 U.S. at 449 n.6; United States v. Schales, 546 F.3d 965, 971 (9th Cir. 2008), cert. denied, 555 U.S. 1202 (2009). “[T]he facial overbreadth doctrine is ‘strong medicine’ that should be employed ‘sparingly and only as a last resort.’” World Wide Video of Wash., Inc. v. City of Spokane, 368 F.3d 1186, 1199 (9th Cir. 2004) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973)).
The fact that the statutory provisions at issue here were applied 46

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constitutionally with respect to the NSLs in No. 13-16731 does not, by itself, rule out the possibility that the statute is unconstitutionally overbroad, but it makes proof of overbreadth far more difficult. The statutory provisions could be facially overbroad only if their constitutional application here is an outlier and their more common or typical application results in the unconstitutional suppression of speech. But there is no such contention here. To the contrary, the factors that the district court found warranted enforcing the NSLs in No. 13-16731 – most notably adherence to the Doe requirements – are common to all NSLs issued since 2009. Accordingly, the constitutional application of the statute to the NSL recipient here strongly suggests that the statute has been applied constitutionally to all other NSL recipients since 2009, will continue to be applied constitutionally in the future, and is not facially unconstitutional.
Moreover, even if there were a conceivable circumstance in which the enforcement of the nondisclosure provisions of the statute would violate the First Amendment, that would be properly remedied by an “as-applied” challenge by the aggrieved party. See Taxpayers for Vincent, 466 U.S. at 800; Schales, 546 F.3d at 971 (“A statute is not invalid simply because some impermissible applications are conceivable.”); Legal Aid Soc’y of Haw. v. Legal Servs. Corp., 145 F.3d 1017, 1024 (9th Cir.) (speech restrictions unconstitutional “in only limited
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circumstances” are not facially unconstitutional), cert. denied, 525 U.S. 1015 (1998). As noted above, facial challenges are limited to cases in which a substantial number of instances exist in which the statute cannot be applied constitutionally, but the NSL recipient here has shown no such instances.
B. The Freedman Requirements for Administrative Censorship Schemes do not Apply.
The district court erred in holding that the statutory NSL nondisclosure provisions, which the court conceded constitute neither “a ‘classic prior restraint’” nor “a ‘typical’ content-based restriction on speech,” ER 15, must nevertheless comply with the rigorous procedural requirements necessary for content-based government censorship under Freedman v. Maryland, 380 U.S. 51 (1965).
Freedman involved the constitutionality of a state “censorship statute” under which no motion picture could be shown unless and until it was licensed by a state Board of Censors, which could take an unlimited amount of time to “approve and license such films . . . which are moral and proper,” and to “disapprove such as are obscene, or such as tend . . . to debase or corrupt morals or incite to crimes.” Id. at 52 & n.2, 59-60. The Supreme Court held that such an administrative censorship scheme was constitutionally permissible only if the State employed the procedural safeguards discussed above, such as requiring the State to assume the burden of
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initiating judicial review and the burden of proof in court. See pp. 33-34, supra. None of the concerns that led the Supreme Court to impose these exacting
procedural requirements on the censorship scheme in Freedman exists with respect to the statutory NSL nondisclosure provisions. First, Freedman involved “a scheme conditioning expression on a licensing body’s prior approval of content,” which “‘presents peculiar dangers to constitutionally protected speech,’” particularly because it was administered by an official “‘[whose] business is to censor,’” and who is therefore likely to overestimate the dangers of controversial speech. Thomas v. Chicago Park Dist., 534 U.S. 316, 321 (2002) (quoting Freedman, 380 U.S. at 57); accord FW/PBS Inc. v. City of Dallas, 493 U.S. 215, 228-29 (1990) (plurality opinion) (noting the “special concerns” present in a censorship scheme). That concern does not apply to NSL nondisclosure provisions administered by the FBI. These nondisclosure provisions are not part of a censorship scheme that requires would-be speakers to present their speech to the Government for approval before the fact; they are, instead, a common type of regulation that subjects a very narrow type of disclosure to sanction after the fact.10 Indeed, as noted above, the nondisclosure provisions restrict only the further
10 Under the NSL statute, the violation of a specific nondisclosure requirement can be criminally prosecuted only if it is accompanied by an “intent to obstruct an investigation or judicial proceeding.” 18 U.S.C. § 1510(e).
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dissemination of information provided by the Government, not, as in Freedman, the publication of a work created independently from the Government. The NSL nondisclosure provisions are not administered by officials whose “business is to censor,” but by high-level officials of the FBI, whose business is to protect and defend the United States against terrorist and foreign intelligence threats.
The Supreme Court’s second concern with the censorship scheme in Freedman was that “if it is made unduly onerous, by reason of delay or otherwise, to seek judicial review, the censor’s determination may in practice be final.” 380 U.S. at 58. The “procedural safeguards” required by the Supreme Court were “designed to obviate the[se] dangers” by minimizing the delay and other burdens associated with the administrative process and judicial review. Ibid. That concern is inapplicable here, because there are no undue burdens or delays in either administrative or judicial proceedings relating to NSLs. In contrast to the potentially limitless administrative delay in Freedman, there is no administrative delay here because the service of the NSL itself notifies the recipient of the nondisclosure requirement. And a recipient can obtain judicial review immediately and with minimal burden by: (1) filing a petition for review,11 or (2) providing

11 Such a filing is not burdensome, as it requires only a very short statement. See, e.g., ER 121-22 (complete text of the petition for review in No. 13-15957,
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notice to the FBI, which starts the FBI’s 30-day period in which to initiate judicial review itself.
Finally, the Freedman procedural requirements were imposed “to cabin the censor’s otherwise largely unfettered discretion to determine what constitutes suitable, non-obscene expression and what does not.” Talk of the Town v. Dep’t of Fin. & Bus. Servs., 343 F.3d 1063, 1070 (9th Cir. 2003); accord City of Littleton, Colo. v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774, 782 (2004) (characterizing the statutory standards in Freedman as “rather subjective”). But while the Freedman statute employed vague subjective criteria about the content of speech, including whether a film was “moral and proper,” Freedman, 380 U.S. at 52 n.2, the statutory criteria here are specific and objective and involve the consequences of disclosure, such as whether a disclosure may “interfere[] with a criminal, counterterrorism, or counterintelligence investigation.” 18 U.S.C. § 2709(c)(2). Such objective criteria sufficiently protect First Amendment interests without need for the application of the Freedman procedures. See Dream Palace v. Cnty. of Maricopa, 384 F.3d 990, 1003 (9th Cir. 2004) (“[T]he potential harm to First Amendment values is attenuated when the licensing decision depends on

which takes up less than two pages). 51

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reasonably objective criteria.”).12
C. The Statute Complies with Freedman.
At any rate, the statute as construed by Doe provides the procedural
safeguards set forth in Freedman, namely that: (1) any administrative restraint that
precedes judicial review must be brief; (2) expeditious judicial review must be
available; and (3) the government must bear the burden of initiating judicial review
and the burden of proof in court. Thomas, 534 U.S. at 321; accord ER 17-18; see
Freedman, 380 U.S. at 58-60.
The statute here, unlike that at issue in Freedman, allows an NSL recipient to
initiate judicial review the moment it becomes subject to a nondisclosure
requirement in an NSL. 18 U.S.C. § 3511(b). Alternatively, a recipient may
immediately notify the FBI that it wishes to challenge the nondisclosure
requirement, and that notice starts a 30-day clock for the Government to initiate
12 Similar criteria have been deemed sufficiently objective. E.g. Thomas v. Chicago Park Dist., 534 U.S. 316, 324 (2002) (“unreasonable danger to the health or safety of park users.”); Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011, 1028 (9th Cir. 2009) (“protect[ing] the safety of persons and property” and “prevent[ing] dangerous, unlawful or impermissible uses”), cert. denied, 559 U.S. 936 (2010); see also Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989) (“While these standards are undoubtedly flexible, and the officials implementing them will exercise considerable discretion, perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity.”).
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judicial review. Doe, 549 F.3d at 885. As the district court noted, this latter mechanism is not contained within the
four corners of the statute. But the Doe reciprocal notice procedure guarantees prompt initiation of judicial review by the Government, has been accepted by the Government, is included in every NSL that imposes a nondisclosure requirement, and has been fully implemented whenever invoked by an NSL recipient. ER 4850, 53-54, 56. This is significant because overbreadth analysis requires consideration not only of the statutory text but also of “actual fact,” N.Y. State Club Ass’n, Inc. v. City of New York, 487 U.S. 1, 14 (1988); accord Virginia v. Hicks, 539 U.S. 113, 122 (2003); Pest Comm. v. Miller, 626 F.3d 1097, 1112 (9th Cir. 2010), cert. denied, 132 S. Ct. 94 (2011), and when “a well-understood and uniformly applied practice has developed that has virtually the force of a judicial construction,” the law “is read in light of those limits[,] . . . even if the face of the statute might not otherwise suggest the limits imposed.” City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 770 n.11 (1988); accord Hoye v. City of Oakland, 653 F.3d 835, 848 (9th Cir. 2011). The Doe court’s reciprocal notice procedure, which has been well-understood and uniformly applied for the past five years, is clearly such a practice and therefore must be considered before declaring the statutory nondisclosure provisions facially unconstitutional on the basis that
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they violate Freedman. The district court below erred in failing to do so. See Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1035 (9th Cir. 2006) (considering municipal “Administrative Instruction” in determining facial constitutionality of ordinance). When this practice is considered, the compliance with Freedman’s first requirement is clear, as the district court agreed and the NSL recipient here conceded. ER 13, 21.
The NSL recipient here has not contended that the statutory provisions violate the second Freedman requirement, namely the requirement that judicial review be prompt, see ER 21 n.13, and that requirement is clearly met here.
The third Freedman factor requires the Government to initiate judicial review. The statute does not require this within its four corners, but Doe “enjoin[ed] FBI officials from enforcing the nondisclosure requirement of section 2709(c) in the absence of Government-initiated judicial review,” 549 F.3d at 885, and the FBI has fully implemented Doe by notifying all NSL recipients that they can notify the FBI of their opposition to a nondisclosure requirement in an NSL in order to have the FBI initiate judicial review proceedings. ER 48-50. Accordingly, there is no risk that the Government will enforce any challenged nondisclosure requirement without initiating judicial review, and there is therefore no risk of a violation of this Freedman requirement. Facial invalidation of the
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statute on this basis was therefore improper. The third Freedman factor also requires the Government to bear the burden
of proof in court proceedings to sustain and enforce the nondisclosure requirement. In Doe, the Second Circuit noted that the statute is silent with respect to burden of proof and adopted the Government’s interpretation of the statute as placing the burden of proof on the Government. Doe, 549 F.3d at 875. This interpretation is correct, as it fills in a statutory gap in a way that comports with the statutory language and purpose while eliminating constitutional concerns. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30 (1937) (“The cardinal principle of statutory construction is to save and not to destroy.”).
The district court’s approach to the burden of proof is unclear. It appears to have followed Doe with respect to No. 13-16731, in which it placed the burden of proof on the Government and found that it had been met. ER 5 (“[T]he government has met its burden to enforce these NSLs.”). But with respect to No. 13-15957, the district court stated only that “there is no requirement in the statute that the government bear any specific burden of proof.” ER 20. At any rate, the interpretation proffered by the Government – and accepted by the Second Circuit – properly implements the statute and places the burden of proof on the Government, thus complying with Freedman and eliminating any facial constitutional concern in
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this regard. D. The Statute’s Standards of Judicial Review are Constitutional. A reviewing court may modify or set aside a nondisclosure requirement in
an NSL “if it finds that there is no reason to believe that disclosure may” lead to an enumerated harm. 35 U.S.C. § 3511(b)(2). The district court found that this was not the “searching standard of review” required by the First Amendment, but provided no authority for that conclusion. ER 24. Freedman itself provides no such authority, as it focused on the burden of proof, not the standard of review. In contrast, the Second Circuit properly avoided any possible constitutional question by interpreting the statute as requiring the Government “to persuade a district court that there is a good reason to believe that disclosure may risk one of the enumerated harms, and that a district court, in order to maintain a nondisclosure order, must find that such a good reason exists.” Doe, 549 F.3d at 875-76. This is a reasonable reading of the statutory language that gives effect to the language and statutory purpose while eliminating constitutional concerns. See, e.g., United States v. Diaz, 491 F.3d 1074, 1077 (9th Cir. 2007) (“reason to believe,” “reasonable belief,” and “reasonable grounds for believing” bear the same meaning); United States v. Gorman, 314 F.3d 1105, 1111 n.4 (9th Cir. 2002) (same).
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The district court acknowledged that this construction of the judicial review provision “might be less objectionable,” ER 25, but the court insisted on adopting a more cramped reading of the provision which, in its view, rendered the statute unconstitutional. It did so by assuming that Congress had an unconstitutional intent in enacting the statute, namely “to circumscribe a court’s ability to modify or set aside nondisclosure NSLs unless the essentially insurmountable standard ‘no reason to believe’ that a harm ‘may’ result is satisfied.” ER 24.
Given the district court’s mistaken assumption that Congress intended to enact an unconstitutional statute, it may not be surprising that the district court interpreted the statute in a manner that creates constitutional concerns. But the court erred in starting with that assumption. The doctrine of constitutional avoidance “assumes that Congress, no less than the Judicial Branch, seeks to act within constitutional bounds, and thereby diminishes the friction between the branches that judicial holdings of unconstitutionality might otherwise generate.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 565-66 (2009); accord Jones v. United States, 526 U.S. 227, 240 (1999) (courts assume that Congress legislates in light of constitutional limitations). This doctrine is particularly apt here because it would have been unreasonable for Congress to have proposed enforcing nondisclosure requirements in NSLs based on any reason – including an
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irrational or wholly unsupportable reason – and therefore the only reasonable reading of the statute is that it requires a “good” reason. The Second Circuit properly interpreted the statute here in light of both common sense and the assumption that Congress intends to legislate constitutionally, and this Court should do likewise.
The district court also faulted the statute (as did the Second Circuit in Doe) for making certifications by senior officials regarding certain potential harms “conclusive” in judicial proceedings in the absence of bad faith. See ER 24. The district court mischaracterized the statute as making any FBI certification regarding any of the statutorily enumerated harms conclusive, and therefore assumed that the certifications here were conclusive under the statute. See ER 23. But, in fact, the statute provides that certifications for FBI-issued NSLs are conclusive only if made by “the Attorney General, Deputy Attorney General, an Assistant Attorney General, or the Director of the Federal Bureau of Investigation” and only if they state “that disclosure may endanger the national security of the United States or interfere with diplomatic relations.” 18 U.S.C. § 3511(b)(2). Certifications by other Government officials, and certifications relating to other statutorily enumerated harms (such as “interference with a criminal, counterterrorism, or counterintelligence investigation,” 18 U.S.C. § 2709(c)(1)) are
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not “conclusive” under the statute. In this case, no certification has been made by the Attorney General, Deputy
Attorney General, any Assistant Attorney General, or the FBI Director, and the Government has not asserted (nor could it) that any of the certifications made by lower-level officials is “conclusive.” Accordingly, the validity of this statutory provision is irrelevant here, and this NSL recipient lacks standing to challenge it. See, e.g., Get Outdoors II, LLC v. City of San Diego, 506 F.3d 886, 892 (9th Cir. 2007) (overbreadth standing requires that party challenging statute be subject to the specific statutory provision being challenged); Gospel Missions of Am. v. City of L.A., 328 F.3d 548, 554 (9th Cir.) (same), cert. denied, 540 U.S. 948 (2003). Moreover, to our knowledge, no certification entitled to be treated as “conclusive” under the statute has ever been made. In these circumstances, a facial challenge to this particular statutory provision is inappropriate. III. Any Asserted Constitutional Flaws in the Statutory Nondisclosure
Provisions do not Justify Invalidating the Entire Statute. This Court need not address severability because, as explained above, the entire NSL statute is constitutional. If it addresses this issue, however, it should note that the district court erred by holding that the assertedly unconstitutional portions of the statutory nondisclosure provisions cannot be severed from the other
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statutory provisions and that it was therefore obligated to strike down the entire NSL statute. In so doing, the district court thwarted clear congressional intent, contravened Supreme Court precedent, and unnecessarily deprived the FBI of an important statutory tool in the fight against terrorism and espionage.
The district court’s entire analysis of the severability issue consists of three sentences in which the court opined that Congress was aware of “the importance of the nondisclosure provisions” and that “it is hard to imagine how the substantive NSL provisions – which are important for national security purposes – could function if no recipient were required to abide by the nondisclosure provisions which have been issued in approximately 97% of the NSLs issued.” ER 29. This analysis is insufficient, conflicts with binding severability caselaw, and cannot be reconciled with the only court of appeals decision that has addressed this issue. See Doe, 549 F.3d 884-85.
Constitutional statutory provisions are presumed to be severable from unconstitutional provisions and to remain in effect. E.g., Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3161 (2010); Hamad v. Gates, 732 F.3d 990, 1001 (9th Cir. 2013) (noting “presumption of severability”). The presumption here is that even if some (or all) of the statutory nondisclosure provisions were unconstitutional, all remaining statutory provisions – most
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importantly those provisions allowing the FBI to issue NSLs and requiring recipients to supply the requested information – remain valid.
This presumption could be overcome only if it were “evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not.” Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987); Hamad, 732 F.3d at 1001. The key question is: “Would the legislature have preferred what is left of its statute to no statute at all?” Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 330 (2006), or, here, would the legislature have preferred to permit the FBI to decide whether and when to issue NSLs without nondisclosure requirements, rather than leaving the FBI without authority to issue NSLs at all?
It is easy to answer that question in the affirmative, because Congress did allow the FBI to issue NSLs without nondisclosure requirements. Indeed, it is undisputed that the existing statute confers on the FBI discretion to issue NSLs without any nondisclosure requirement, and over the years in which the statute has existed, the FBI has, in fact, issued numerous such NSLs. See ER 19, 22, 29, 53.
This result comports with common sense. The FBI could decide to issue NSLs without legally binding nondisclosure requirements based on its need for the data sought weighed against the likelihood that the recipient would disclose
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information about the investigation and the harm that such a disclosure would
cause. It is impossible that the FBI would never issue NSLs under these
circumstances because it is uncontested that the FBI has already issued numerous
NSLs without nondisclosure requirements. ER 19, 22, 29, 53. And, as a matter of
common sense, there is no reason that the FBI would be unable to identify
potential recipients who understand the importance of nondisclosure in this context
to preventing terrorism and espionage and who would therefore voluntarily keep
the necessary information secret. It seems obvious that Congress would want the
FBI to engage in this type of analysis and issue NSLs, even if it had to do so
without legally binding nondisclosure requirements, as the statute Congress
enacted already provides for NSLs without nondisclosure requirements when the
statutory reasons for such requirements are absent. As the Second Circuit
explained:
Congress would surely have wanted the Government to retain the authority to issue NSLs even if all aspects of the nondisclosure requirement of subsection 2709(c) and the judicial review provisions of section 3511(b) had been invalidated. As the Government points out, even without a nondisclosure requirement, it can protect the national interest by issuing NSLs only where it expects compliance with a request for secrecy to be honored.
Doe, 549 F.3d at 885; cf. United States v. Jackson, 390 U.S. 570, 586 (1968) (“[I]t
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is quite inconceivable that the Congress which decided to authorize capital punishment in aggravated kidnaping cases would have chosen to discard the entire statute if informed that it could not include the death penalty . . . .”). IV. The District Court Erred in Extending Its Injunction Beyond the
Parties and Beyond the Geographical Bounds of this Circuit. For the reasons noted above, the district court’s injunction against the Government should be reversed entirely. Assuming arguendo that some injunctive relief were appropriate, however, the district court erred by issuing an injunction extending to “this or any other case.” ER 30. Absent class certification, injunctive relief should be limited to the parties before the court. See, e.g., Meinhold v. U.S. Dep't of Defense, 34 F.3d 1469, 1480 (9th Cir. 1994); Va. Soc’y for Human Life, Inc. v. FEC, 263 F.3d 379, 392-94 (4th Cir. 2001), overruled on other grounds by 681 F.3d 544 (4th Cir. 2012); see also U.S. Dep't of Defense v. Meinhold, 510 U.S. 939 (1993). Injunctive relief not confined to the parties is particularly inappropriate when it reaches outside the geographical confines of an individual Circuit, for doing so “thwart[s] the development of important questions of law by freezing the first final decision rendered on a particular legal issue.” United States v. Mendoza, 464 U.S. 154, 160 (1984). To preserve the Government’s ability to defend the constitutionality of § 2709 in
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other jurisdictions, injunctive relief (if any) in this case should therefore be
confined to the particular NSL recipient involved in this litigation.
Moreover, because the district court’s injunction conflicts directly with the
Doe injunction, the district court erred in making it applicable nationwide
(including, necessarily, within the Second Circuit). If allowed to go into effect, the
injunction below would create a direct conflict with Doe, which unquestionably
intended to allow the FBI to continue to issue and enforce NSLs under the
circumstances specified. This would be improper:
Principles of comity require that, once a sister circuit has spoken to an issue, that pronouncement is the law of that geographical area. Courts in the Ninth Circuit should not grant relief that would cause substantial interference with the established judicial pronouncements of such sister circuits. To hold otherwise would create tension between circuits and would encourage forum shopping. Thus, we hold the district court abused its discretion in issuing the nationwide injunction.
United States v. AMC Entm’t, Inc., 549 F.3d 760, 773 (9th Cir. 2008).
Accordingly, although no injunction against the Government is proper here, should
this Court affirm any aspect of the district court’s injunction, it should limit the
scope of any remaining injunctive relief to the NSL recipient at issue here and to
the geographical boundaries of the Ninth Circuit.

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CONCLUSION For the foregoing reasons, the judgment of the district court at issue in No. 13-15957 should be reversed.
Respectfully submitted,

JANUARY 2014

STUART F. DELERY Assistant Attorney General
DOUGLAS N. LETTER (202) 514-3602 SCOTT R. MCINTOSH (202) 514-4052 JONATHAN H. LEVY (202) 353-0169 Attorneys, Appellate Staff Civil Division, Room 7231 United States Department of Justice 950 Pennsylvania Ave., NW Washington, DC 20530

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STATEMENT OF RELATED CASE These consolidated cases are related to Under Seal v. Holder, No. 13-1672, which involves the same legal issues but a different NSL recipient. This Court has ordered that No. 13-16732 be briefed separately from, but on the same briefing and oral argument schedule as, Nos. 13-15957 and 13-16731.

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CERTIFICATE OF COMPLIANCE WITH RULE 32(a)(7)(B) OF THE FEDERAL RULES OF APPELLATE PROCEDURE
AND WITH CIRCUIT RULE 32-1 I hereby certify that the foregoing brief satisfies the requirements of Federal
Rule of Appellate Procedure 32(a)(7) and Ninth Circuit Rule 32-1. The brief was
prepared in Times New Roman 14-point font and contains 13,995 words.
/s/ Jonathan H. Levy JONATHAN H. LEVY

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CERTIFICATE OF SERVICE I hereby certify that on January 17, 2014, I filed under seal the foregoing Government’s Opening Brief using the Court’s ECF system. Parties to the case (but not amici) who are registered CM/ECF users will be served by the appellate CM/ECF system.
/s/ Jonathan H. Levy JONATHAN H. LEVY

 
 CCaassee4::1143--c1v5-905474,8008-Y/2G4R/201D5o,cIuDm: 9e6n5t7786-219, FDilketdE0n8tr/y2:81/1053, PPaaggee11 ooff 33

NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FILED
AUG 24 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

In re: NATIONAL SECURITY LETTER, No. 13-15957

UNDER SEAL,

D.C. No. 3:11-cv-02173-SI

Petitioner - Appellee, v.

ORDER

LORETTA E. LYNCH, Attorney General; et al.,

Respondents - Appellants.

In re: NATIONAL SECURITY LETTER, No. 13-16731

UNDER SEAL,

D.C. No. 3:13-mc-80089-SI

Petitioner - Appellant,

v.

LORETTA E. LYNCH, Attorney General; et al.,

Respondents - Appellees.

CCaassee4::1143--c1v5-905474,8008-Y/2G4R/201D5o,cIuDm: 9e6n5t7786-219, FDilketdE0n8tr/y2:81/1053, PPaaggee22 ooff 33

In re: NATIONAL SECURITY LETTER, No. 13-16732

UNDER SEAL, Petitioner - Appellant,

D.C. No. 3:13-cv-01165-SI Northern District of California, San Francisco

v.

ORDER

LORETTA E. LYNCH, Attorney General; et al.,

Respondents - Appellees.

Appeal from the United States District Court for the Northern District of California
Susan Illston, Senior District Judge, Presiding Argued and Submitted October 8, 2014 San Francisco, California
Before: IKUTA, N.R. SMITH, and MURGUIA, Circuit Judges. These consolidated appeals were submitted for decision following oral
argument on October 8, 2014. On June 2, 2015, while these appeals were pending, Congress amended 18 U.S.C. § 2709 and 18 U.S.C. § 3511, the statutes at issue in these appeals. See USA FREEDOM Act of 2015, Pub. L. No. 114-23, 129 Stat. 268 (2015). In light of the significant changes to the statutes, we conclude that a remand to the district court is appropriate so the district court may address the recipients’ challenges to the revised statutes. See Doe v. Gonzales, 449 F.3d 415,

CCaassee4::1143--c1v5-905474,8008-Y/2G4R/201D5o,cIuDm: 9e6n5t7786-219, FDilketdE0n8tr/y2:81/1053, PPaaggee33 ooff 33
419 (2d Cir. 2006) (per curiam); see also Fusari v. Steinberg, 419 U.S. 379, 387, 390 (1975); Coral Constr. Co. v. King Cty., 941 F.2d 910, 928 (9th Cir. 1991).
We therefore VACATE the district court’s judgments in cases 13-15957, 13-16731, and 13-16732. We REMAND to the district court for further proceedings in each of these cases.1
1Each party shall bear its own costs on appeal.
3

 
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No. 13-16732 UNDER SEAL _______________________________________________________________
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
_________________________________________
IN RE NATIONAL SECURITY LETTER
UNDER SEAL, Petitioner-Appellant
v.
ERIC H. HOLDER, JR., Attorney General; UNITED STATES DEPARTMENT OF JUSTICE;
FEDERAL BUREAU OF INVESTIGATION, Respondents-Appellees
_________________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
_________________________________________
BRIEF FOR GOOGLE INC., FACEBOOK, INC., MICROSOFT CORPORATION, AND YAHOO INC. AS AMICI CURIAE SUPPORTING UNDER SEAL PARTY
_________________________________________

Marc J. Zwillinger ZwillGen PLLC 1900 M. Street, NW, Suite 250 Washington, DC 20036 Telephone: (202) 706-5202
Attorney for Amicus Curiae Yahoo Inc.

Albert Gidari Eric D. Miller PERKINS COIE LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: 206.359.8000
Attorneys for Amici Curiae Google Inc., Facebook, Inc., and Microsoft Corporation

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TABLE OF CONTENTS
Page
INTEREST OF AMICI CURIAE............................................................ 1 SUMMARY OF ARGUMENT ................................................................ 3 ARGUMENT .......................................................................................... 5
A. The First Amendment fully protects the speech that Section 2709(c) prohibits .................................. 5
B. Section 2709(c) is an unconstitutional prior restraint.............................................................................. 15 1. A nondisclosure order in an NSL is a prior restraint..................................................................... 16 2. The statute does not satisfy the substantive standards governing prior restraints ....................... 18 3. The statute does not provide the procedural safeguards required for prior restraints................... 19
C. Section 2709(c) is an unconstitutional content-based restriction on speech................................... 22 1. A nondisclosure order in an NSL imposes a content-based restriction .......................................... 22 2. The statute does not satisfy strict scrutiny .............. 24
CONCLUSION ..................................................................................... 30

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TABLE OF AUTHORITIES
Page
CASES
Alexander v. United States, 509 U.S. 544 (1993).......................................................................... 16
Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963)............................................................................ 18
Brandenburg v. Ohio, 395 U.S. 444 (1969).......................................................................... 13
Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729 (2011)........................................................ 6, 7, 13, 24
Butterworth v. Smith, 494 U.S. 624 (1990)...................................................................... 9, 13
Carey v. Brown, 447 U.S. 455 (1980).......................................................................... 23
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)...................................................................... 6, 14
Freedman v. Maryland, 380 U.S. 51 (1965 ................................................................. 15, 17, 20
Frisby v. Schultz, 487 U.S. 474 (1988).......................................................................... 25
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990).......................................................................... 20
Goodman v. United States, 108 F.2d 516 (9th Cir. 1939)............................................................ 14
Haig v. Agee, 453 U.S. 280 (1981).......................................................................... 24

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TABLE OF AUTHORITIES (continued)

Page

In re Russo, 53 F.R.D. 564 (C.D. Cal. 1971) ........................................................ 11
John Doe, Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008) ....................................................... 15, 26
Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829 (1978).......................................................................... 29
Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 794 (1994) .................................................................. 23
Miller v. French, 530 U.S. 327 (2000).......................................................................... 26
Mills v. Alabama, 384 U.S. 214 (1966).......................................................................... 28
NAACP v. Button, 371 U.S. 415 (1963).......................................................................... 25
Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931).......................................................................... 19
New York Times Co. v. United States, 403 U.S. 713 (1971).................................................................... 15, 19
Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376 (1973).......................................................................... 18
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).......................................................................... 29
Reno v. ACLU, 521 U.S. 844 (1997).................................................................... 24, 28
Roth v. United States, 354 U.S. 476 (1957).......................................................................... 13

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TABLE OF AUTHORITIES (continued)

Page

S.E. Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975).......................................................................... 17
Schenck v. United States, 249 U.S. 47 (1919)............................................................................ 14
Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984).............................................................................. 7
Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105 (1991)............................................................................ 6
Thomas v. Chicago Park Dist., 534 U.S. 316 (2002).......................................................................... 20
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994).......................................................................... 23
United States v. Aguilar, 515 U.S. 593 (1995)............................................................................ 8
United States v. Alvarez, 132 S. Ct. 2537 (2012)........................................................................ 6
United States v. Navarro-Vargas, 408 F.3d 1184 (9th Cir. 2005) .......................................................... 11
United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803 (2000).......................................................................... 24
United States v. Richey, 924 F.2d 857 (9th Cir. 1991).............................................................. 8
United States v. Stevens, 559 U.S. 460 (2010).................................................................. 6, 7, 21

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TABLE OF AUTHORITIES (continued)

Page

STATUTES AND RULE
18 U.S.C. § 2709 ............................................................................passim
18 U.S.C. § 3511 ............................................................................. 17, 21
Act for the Establishing Forms of Oaths, reprinted in Acts and Laws of His Majesties Colony of Connecticut, in New-England 86, 88 (1702), amended by Act in Alteration of an Act, intitled, An Act for Prescribing and Establishing Forms of Oaths in this Colony, 1776 Conn. Acts & Laws 421.............................................. 12
Act Regulating the Appointment and Services of Grand Jurors, ch. 4, 1784 Mass. Acts 135 .................................................................... 13
Act to admit Grand Jurors to give evidence, § 2, 1812 Ga. Acts 89, 90 ...................................................................................................... 13
Fed. R. Crim. P. 6 ..................................................................... 13, 14, 15
OTHER AUTHORITIES

Peter Baker and Charlie Savage, Obama Seeks Balance in Plan for Spy Programs, N.Y. Times, Jan. 9, 2014 ................................... 28
4 William Blackstone, Commentaries on the Laws of England (1769)................................................................................................ 10
Black’s Law Dictionary (9th ed. 2009) ................................................. 25
Book of Oaths (H. Twyford ed., 1689) .................................................. 10
Earl of Shaftesbury’s Case, 8 How. St. Tr. 759 (1681)......................... 11

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INTEREST OF AMICI CURIAE Google Inc. is a diversified technology company whose mission is to organize the world’s information and make it universally accessible and useful. Google offers a variety of web-based products and services—including Search, Gmail, Google+, Maps, YouTube, and Blogger—that are used by people throughout the United States and around the world. Facebook, Inc. provides a social utility through which users can connect and share with family members, coworkers, and friends. Microsoft Corporation is a provider of electronic communication services and remote computing storage services to individual users, enterprises, educational institutions, and governments worldwide. Yahoo Inc. is a global technology company with hundreds of millions of users around the world. Yahoo is focused on making the world’s daily habits inspiring and entertaining across devices. Yahoo provides a host of Internet-related services and products including Yahoo Search, Yahoo Mail, Yahoo Weather, Flickr, Yahoo Sports, Yahoo Finance, and Yahoo News. Collectively, amici have long been committed to the principle of transparency. Amici publish transparency reports describing requests

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for user data from governments around the world. With each iteration of their reports, amici strive to release new and useful information. Each amicus provides information about the volume and scope of national security letters (NSLs) that it receives. At the direction of the government, however, that information can be conveyed only in broad ranges. The government limits amici to reporting the number of NSLs received in a six-month period, if any, in ranges of 1000, starting at zero to 999, and similar ranges of 1000 for the number of affected accounts.
This appeal involves 18 U.S.C. § 2709(c), which provides that, upon an appropriate certification from the Director of the FBI, the recipient of an NSL is prohibited from disclosing the fact that it has received an NSL. The question presented is whether Section 2709(c) is consistent with the First Amendment. Although amici have no interest in disclosing in a transparency report the targets or substance of any particular NSL that they may receive, they do wish to publish more detailed aggregate statistics about the volume, scope, and type of NSLs that the government uses to demand information about their users. Because the government argues that Section 2709(c) allows it to re-

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strict any publication of such information, amici have a strong interest in the resolution of the question presented, which goes beyond just the prior restraint of provider speech about the receipt of any particular NSL. Just as important to amici, whenever the government purports to act in the interests of national security to limit protected speech, it should do so only in compliance with the strict requirements of the First Amendment.1
SUMMARY OF ARGUMENT Under 18 U.S.C. § 2709, the Director of the FBI has the authority to issue a national security letter that not only orders a communication service provider to turn over information about its customers but also prohibits the provider from speaking about the order. That prohibition on speech violates the First Amendment. The government attempts to sidestep the serious First Amendment issues raised in this case by arguing that there is no First Amendment right to disclose information gained from participation in a secret government investigation. That is incorrect. Most of the cases
1 All parties have consented to the filing of this brief. No counsel for a party authored this brief in whole or in part, and no person other than amici or their counsel has made a monetary contribution intended to fund the preparation or submission of the brief.
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on which the government relies to establish that proposition involved parties who had sought out confidential information and agreed to keep it confidential as a condition of access. Those cases do not establish that the government may foist a gag order upon the involuntary recipient of an NSL, let alone prohibit the recipient from even reporting periodically the aggregate number of such demands that it receives.
The Supreme Court has held that the categories of speech that do not enjoy First Amendment protection are few and that they are limited to categories of speech that have historically been prohibited. There is no history of restricting speech by parties compelled to participate in government investigations. To the contrary, in the closely analogous context of grand-jury investigations, speech by grand-jury witnesses generally has not been restricted.
A nondisclosure order in an NSL represents an administrative determination that certain speech will not be permitted and is made in advance of any judicial determination that the speech is unlawful. In short, it is a prior restraint. Because the statute establishes a prior-

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restraint regime, it is subject to extraordinarily demanding substantive and procedural standards, which it cannot satisfy.
Even if the statute were not considered a prior restraint, it would still be subject to strict scrutiny as a content-based restriction on speech. To satisfy that scrutiny, the government must show that the statute is narrowly tailored to promote a compelling interest. While the protection of national security is certainly compelling, the statute is not narrowly tailored to achieve it. Instead, the statute prohibits such a broad range of speech that much of the speech it prohibits is likely to have little or no effect on national security. Worse, it suppresses speech on an important issue of public concern, and it does so in a way likely to distort public debate. The government has sought to participate in public debate over its use of the NSL statute. It should not be permitted to gag those best suited to offer an informed viewpoint in that debate: the parties that have received NSLs.
ARGUMENT A. The First Amendment fully protects the speech that
Section 2709(c) prohibits The key premise of the government’s argument is that “there is no First Amendment right to disclose information learned through

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participation in a secret government investigation.” Br. 35 (capitalization omitted).2 That premise is false.
While there are indeed some categories of speech that are not protected by the First Amendment, the Supreme Court has made clear that those categories are “well-defined and narrowly limited.” Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942). In United States v. Stevens, 559 U.S. 460 (2010), the Court rejected, as “startling and dangerous,” the proposition that “[t]he First Amendment’s guarantee of free speech . . . extend[s] only to categories of speech that survive an ad hoc balancing of relative social costs and benefits.” Id. at 470; accord Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2734 (2011) (“[N]ew categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated.”); United States v. Alvarez, 132 S. Ct. 2537, 2544 (2012) (plurality opinion). Instead, the categories of unprotected speech are limited to those “historic and traditional categories long familiar to the bar.” Stevens, 559 U.S. at 468 (quoting Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 127 (1991)
2 References to “Br.” are to the government’s brief in Nos. 13-15957 and 13-16731.
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(Kennedy, J., concurring in the judgment)). Although there may be “‘some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law,’” in the absence of “persuasive evidence that a novel restriction on content is part of a long (if heretofore unrecognized) tradition of proscription, a legislature may not revise the ‘judgment [of] the American people,’ embodied in the First Amendment, ‘that the benefits of its restrictions on the Government outweigh the costs.’” Brown, 131 S. Ct. at 2734 (quoting Stevens, 559 U.S. at 470, 472).
No historical tradition supports denying protection to speech by parties such as the recipients of NSLs, who are compelled to participate in what the government refers to as “a secret government investigation.” Because the speech at issue here is not within any traditionally unprotected category, it is entitled to full First Amendment protection. The government’s efforts to demonstrate otherwise are unavailing.
1. The government relies (Br. 35) on Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984), in which the Supreme Court held that, as a condition of obtaining access to information through civil discovery, a

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party may be subjected to a protective order requiring that it preserve the confidentiality of that information. Similarly, the government cites cases holding that government employees or contractors who have been given access to classified information can be prohibited from revealing that information. Br. 37-38; see also id. at 39 (citing United States v. Aguilar, 515 U.S. 593 (1995) (“Government officials in sensitive confidential positions may have special duties of nondisclosure.”), and United States v. Richey, 924 F.2d 857 (9th Cir. 1991) (disclosure of tax information by IRS agent)).
All of those restrictions differ from Section 2709(c) in that they apply to parties who have voluntarily sought out the information at issue and have thereby accepted the attendant limitations on their speech. NSL recipients, on the other hand, have not asked to be sent NSLs. That distinction is critical to the First Amendment analysis: it is one thing to say that a party seeking access to confidential information can be prohibited from disclosing that information, but it is quite another to say that the government may impose a gag order on a party simply because it has also demanded that the party assist in an investigation.

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2. Similarly unhelpful to the government is Butterworth v. Smith, 494 U.S. 624 (1990), in which the Supreme Court struck down a Florida statute prohibiting a grand-jury witness from “divulg[ing] information of which he was in possession before he testified before the grand jury.” Id. at 632. The government notes (Br. 36) that the Court in Butterworth did not consider “information which [the witness] may have obtained as a result of his participation in the proceedings of the grand jury,” such as the fact that he received a subpoena, or the questions he was asked—information analogous to that covered by a nondisclosure order in an NSL. 494 U.S. at 632; see id. at 637 (Scalia, J., concurring) (noting that the issues raised by a prohibition on the disclosure of such information “are not presented by the narrow question we decide today”). Although the government suggests that the First Amendment does not protect speech that discloses such information, there is no tradition of suppressing it, and the history of the law governing grand-jury witnesses illustrates the lack of support for the government’s position.
At common law, grand jurors were required to maintain the confidentiality of grand-jury proceedings. But the recipients of NSLs—

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persons whose only role in the government’s investigation is that they have been compelled to provide information to it—are more appropriately analogized to grand-jury witnesses, who were not subject to a duty of confidentiality. Blackstone noted that “antiently it was held, that if one of the grand jury disclosed to any person indicted the evidence that appeared against him, he was thereby made accessory to the offence, if felony; and in treason a principal. And at this day it is agreed, that he is guilty of a high misprision, and liable to be fined and imprisoned.” 4 William Blackstone, Commentaries on the Laws of England 126 (1769). He made no mention, however, of any similar rule for grand-jury witnesses. Similarly, grand jurors were required to swear that “the Kings Majesties Counsel, your fellows and your own, you shall keep Secret,” while witnesses were required to swear only that “[t]he Evidence that you shall give to the Inquest, upon this Bill shall be the truth, and the whole truth, and nothing but the truth.” Book of Oaths 114 (H. Twyford ed., 1689).
It is not surprising that witnesses were not sworn to secrecy. One major reason for grand-jury secrecy was to protect the grand jury—and the accused—from the undue influence of the Crown, a rationale that

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would not have applied to witnesses. Americans of the founding era were familiar with the Earl of Shaftesbury’s Case, a case from shortly before the Glorious Revolution in which a grand jury had asserted the right to sit in secret, with one of the grand jurors arguing that “the jury do apprehend, that in private they are more free to examine things in particular, for the satisfying their own consciences, and that without favour or affection.” 8 How. St. Tr. 759, 773-774 (1681); see id. at 821 (explaining that although the grand jury in that case was not permitted to examine the witnesses in secret, it was permitted to deliberate in secret, and it ultimately refused to indict). As this Court has observed, that case “established grand jury secrecy, which continues to be a crucial element in grand juries serving as an independent screen.” United States v. Navarro-Vargas, 408 F.3d 1184, 1191 (9th Cir. 2005); see also In re Russo, 53 F.R.D. 564, 568 (C.D. Cal. 1971) (noting that the grand jury “gradually developed independence of action from the Crown” by “enclosing its proceedings in a veil of secrecy which the Crown was unable to penetrate”). But shielding the grand jury from improper governmental influence does not require gagging those called upon to give evidence.

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After the American Revolution, several States codified the obligation of grand jurors to keep their proceedings secret, but no State appears to have codified a rule of witness secrecy. See, e.g., Act for the Establishing Forms of Oaths, reprinted in Acts and Laws of His Majesties Colony of Connecticut, in New-England 86, 88 (1702), amended by Act in Alteration of an Act, intitled, An Act for Prescribing and Establishing Forms of Oaths in this Colony, 1776 Conn. Acts & Laws 421 (requiring grand jurors to swear that “the Secrets of the Cause, your own, and your Fellows, you [will] duly observe and keep,” but requiring witnesses only to swear to tell the truth, with no obligation of confidentiality); Act Regulating the Appointment and Services of Grand Jurors, ch. 4, 1784 Mass. Acts 135 (requiring grand jurors to swear that “the Commonwealth’s counsel, your fellows and your own, you shall keep secret,” but imposing no obligation of confidentiality on witnesses); Act to admit Grand Jurors to give evidence, § 2, 1812 Ga. Acts 89, 90 (same). Nor, so far as we are aware, did any early American decisions hold that such a rule existed.
To be sure, beginning several decades after the founding era, a handful of States adopted restrictions on disclosures by grand-jury

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witnesses—the statute at issue in Butterworth is one example. But the Federal Rules of Criminal Procedure expressly reject such restrictions. See Fed. R. Crim. P. 6(e)(2)(B) (listing persons, not including witnesses, who “must not disclose a matter occurring before the grand jury”); Fed. R. Crim. P. 6(e)(2)(A) (“No obligation of secrecy may be imposed on any person except in accordance with Rule 6(e)(2)(B).”); Fed. R. Crim. P. 6 advisory committee’s note (1944) (noting that “[t]he seal of secrecy on witnesses seems an unnecessary hardship”). Under the Federal Rules, a grand-jury witness is free to disclose the questions he or she was asked and the testimony that he or she gave.
In short, the government has not come close to establishing that there is an “American tradition of forbidding” the kind of speech at issue here—that is, speech by involuntary participants in a government investigation about their compelled participation. Brown, 131 S. Ct. at 2734. Certainly there is nothing comparable to the kind of historical tradition identified by the Supreme Court in recognizing other categories of unprotected speech, such as obscenity, see Roth v. United States, 354 U.S. 476 (1957), incitement, see Brandenburg v.

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Ohio, 395 U.S. 444 (1969) (per curiam), and fighting words, see Chaplinsky, supra.
3. The government cites one case from this Court (Br. 36-37) for the proposition that grand-jury witnesses may be prohibited from disclosing their testimony. But that case, Goodman v. United States, 108 F.2d 516 (9th Cir. 1939), predates the Federal Rules and was superseded by Rule 6(e)(2)(B). More importantly, the decision long predates modern First Amendment doctrine. The Court’s analysis of the First Amendment question consisted of the assertion that “[t]he contention that the oath [of secrecy] violates the right of the witness to freedom of speech is specious” because “[t]he right is not absolute,” supported by a citation to Schenck v. United States, 249 U.S. 47 (1919), the WWI-era Espionage Act case that was effectively abrogated by Brandenburg. The First Amendment holding of Goodman is no longer good law. In any event, even if speech by grand-jury witnesses can be restricted in certain circumstances, that would not establish that such speech is categorically unprotected.
The government also cites (Br. 37 n.9) cases from other circuits upholding restrictions on speech by various participants in grand-jury

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proceedings. But none of those cases establishes the broad proposition that such speech is unprotected by the First Amendment, or that “there is no First Amendment right to disclose information learned through participation in a secret government investigation.” Br. 35 (capitalization omitted). To say that the First Amendment protects speech like that at issue here is not to say that such speech may never be restricted. Restrictions may be permissible, but only when they can satisfy scrutiny under ordinary First Amendment standards. As explained below, Section 2709(c) cannot survive such scrutiny. B. Section 2709(c) is an unconstitutional prior restraint
The district court concluded that Section 2709(c) “may not be a ‘classic prior restraint,’” and that it need not satisfy the rigorous scrutiny of New York Times Co. v. United States, 403 U.S. 713 (1971). 930 F. Supp. 2d 1064, 1071 (N.D. Cal. 2013) (quoting John Doe, Inc. v. Mukasey, 549 F.3d 861, 876 (2d Cir. 2008)); see Doe, 549 F.3d at 876 (describing Section 2709’s nondisclosure requirement as “in some sense a prior restraint” but also stating that the provision is “not a typical example of such a restriction”). At the same time, the court held that the statute is nevertheless subject to the procedural safeguards for prior restraints set out in Freedman v. Maryland, 380 U.S. 51 (1965).
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930 F. Supp. 2d at 1071-1072. In fact, Section 2709(c) establishes a regime of prior restraint—whether or not characterized as a “classic” prior restraint—and it is subject to the exacting First Amendment scrutiny that applies to such restraints, both as to substance and as to procedure. It cannot survive that scrutiny.
1. A nondisclosure order in an NSL is a prior restraint In Alexander v. United States, 509 U.S. 544 (1993), the Supreme Court explained that “[t]he term ‘prior restraint’ is used to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.” Id. at 550 (emphasis and internal quotation marks omitted). Section 2709(c) provides for just such administrative orders. Specifically, the statute authorizes the FBI Director or his designee to prohibit the recipient of an NSL from “disclos[ing] to any person (other than those to whom such disclosure is necessary to comply with the request or an attorney to obtain legal advice or legal assistance with respect to the request) that the Federal Bureau of Investigation has sought or obtained access to information or records” by means of an NSL. 18 U.S.C. § 2709(c)(1). Under the statute, a party who receives such an order and wishes to speak about an NSL must litigate the validity of
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the order prior to speaking. 18 U.S.C. § 3511(b)(1). In other words, while the prior-restraint doctrine recognizes that “a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand,” S.E. Promotions, Ltd. v. Conrad, 420 U.S. 546, 559 (1975), Section 2709(c) does the exact opposite.
The prior-restraint regime created by Section 2709(c) is particularly troubling because the orders restraining speech are issued by an Executive Branch official, not by a court. The Supreme Court has observed that “[b]ecause the censor’s business is to censor, there inheres the danger that he may well be less responsive than a court—part of an independent branch of government—to the constitutionally protected interests in free expression.” Freedman, 380 U.S. at 57-58 (1965). That danger is especially acute in this context because the official who decides whether to restrain speech is the same official whose conduct— that is, the issuance of an NSL—would be the subject of the speech, creating the risk that a gag order will be used to conceal government overreaching.

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The nature of Section 2709(c)’s prior-restraint regime is illustrated by the efforts of amici to be more transparent with their users in describing government requests for user data. Amici provide the public with information about the volume and scope of NSLs that they receive, but they provide that information only in broad ranges. Significantly, amici were able to communicate that information only after extensive negotiations with the Department of Justice. A regime in which parties who wish to speak about the government’s orders must first obtain the government’s permission cannot plausibly be described as anything other than a regime of prior restraint. Such a regime creates a grave risk “that communication will be suppressed, either directly or by inducing excessive caution in the speaker, before an adequate determination that it is unprotected by the First Amendment.” Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376, 390 (1973).
2. The statute does not satisfy the substantive standards governing prior restraints
“Any system of prior restraints of expression,” the Supreme Court has held, is subject to “a heavy presumption against its constitutional validity.” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963);

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see Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716 (1931). The government makes no effort to argue that the statute can survive First Amendment scrutiny if viewed as a prior-restraint regime, and with good reason. As explained more fully below, the statutory standard governing the issuance of a nondisclosure order—that disclosure “may result” in various specified harms, 18 U.S.C. § 2709(c)(1)—is too low to satisfy ordinary strict scrutiny. A fortiori, it is insufficient to justify a prior restraint. See New York Times Co., 403 U.S. at 730 (Stewart, J., concurring) (reversing injunction against publication of the Pentagon Papers because “I cannot say that disclosure of any of them will surely result in direct, immediate, and irreparable damage to our Nation or its people”) (emphasis added).
3. The statute does not provide the procedural safeguards required for prior restraints
The statute suffers from the independent defect that it fails to provide the procedural safeguards required for a prior-restraint regime. The First Amendment requires three safeguards: “(1) any restraint prior to judicial review can be imposed only for a specified brief period during which the status quo must be maintained; (2) expeditious judicial review of that decision must be available; and (3) the

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censor must bear the burden of going to court to suppress the speech and must bear the burden of proof once in court.” Thomas v. Chicago Park Dist., 534 U.S. 316, 321 (2002) (quoting FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 227 (1990) (opinion of O’Connor, J.)); Freedman, 380 U.S. at 58-59. Here, although judicial review is available, there is no guarantee that it will be “expeditious.” And the first and third requirements are entirely absent because there is no “specified brief period” during which an NSL can restrict speech before judicial review, and the government does not “bear the burden of going to court to suppress the speech.” Instead, the recipient of an NSL remains subject to a gag order until he or she successfully challenges the order in court.
The government promises (Br. 54) that it will inform NSL recipients “that they can notify the FBI of their opposition to a nondisclosure requirement in an NSL in order to have the FBI initiate judicial review proceedings.” That notice, it says (Br. 52-53), will “start a 30-day clock for the Government to initiate judicial review.” Setting aside the question whether a ban on speech can permissibly last for an entire month before judicial review has even begun, the more fundamental problem with the government’s proposal is that “the First Amendment

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protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.” Stevens, 559 U.S. at 480.
The government points out (Br. 54) that its jury-rigged procedure—that is, inviting NSL recipients to ask the government to initiate judicial proceedings against them—is not its own invention but was imposed by the Second Circuit in Doe after that court held, correctly, that the Freedman requirements apply to Section 2709(c). See 549 F.3d at 885. But it is not the role of the court, any more than it is the role of the Executive Branch, to save an unconstitutional statute by enacting the procedures that Congress failed to provide. While the government is correct (Br. 55) that a court should construe a statute to make it constitutional rather than unconstitutional, the procedures required by Doe bear no relation to anything set out in Sections 2709 or 3511—even the government concedes (Br. 53), with significant understatement, that they are “not contained within the four corners of the statute.” The court in Doe therefore erred in concluding that a judicially imposed requirement that the government follow certain pro-

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cedures could save the statute from invalidation. Because the statute as written does not satisfy the procedural requirements for a prior restraint, it violates the First Amendment. C. Section 2709(c) is an unconstitutional content-based
restriction on speech Even if Section 2709(c) is not regarded as a prior restraint, it still violates the First Amendment. As a content-based restriction on speech, the statute is subject to strict scrutiny, and it cannot satisfy that scrutiny. 1. A nondisclosure order in an NSL imposes a content-
based restriction The government attempts to argue (Br. 31-32) that Section 2709(c) does not impose a content-based restriction on speech and is therefore subject only to intermediate scrutiny. That argument lacks merit. Section 2709(c) imposes a content-based restriction on speech because it prohibits the recipient of an NSL from disclosing “that the Federal Bureau of Investigation has sought or obtained access to information or records.” Determining whether speech by the recipient falls within the statute’s prohibition requires examining the content of that speech. If the speech is about the fact “that the Federal Bureau of
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Investigation has sought or obtained access to information or records,” it is unlawful; if it is about something else, it is not. In other words, the applicability of the prohibition turns on the content of the speech. Because “it is the content of the speech that determines whether it is within or without the statute’s blunt prohibition,” the statute is content-based. Carey v. Brown, 447 U.S. 455, 462 (1980).
According to the government (Br. 31), however, “the principal inquiry in determining content neutrality . . . is whether the government has adopted a regulation of speech because of . . . disagreement with the message it conveys.” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994) (internal quotation marks and citation omitted). That may be the “principal” inquiry, but it is not the only one. In arguing to the contrary, the government confuses content-based regulations with viewpoint-based regulations. While the latter are particularly suspect, both are subject to strict scrutiny. Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 794 (1994) (Scalia, J., concurring in the judgment in part and dissenting in part) (“The vice of content-based legislation— what renders it deserving of the high standard of strict scrutiny—is

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not that it is always used for invidious, thought-control purposes, but that it lends itself to use for those purposes.”) (emphasis omitted).
2. The statute does not satisfy strict scrutiny As a content-based restriction on speech, Section 2709 is invalid unless the government “can demonstrate that it passes strict scrutiny—that is, unless it is justified by a compelling government interest and is narrowly drawn to serve that interest.” Brown, 131 S. Ct. at 2738. The narrow-tailoring component of the test requires the government to show that there are no “less restrictive alternatives [that] would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.” Reno v. ACLU, 521 U.S. 844, 874 (1997). Under the strict-scrutiny standard, “[i]t is rare that a regulation restricting speech because of its content will ever be permissible.” United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 818 (2000). Section 2709(c) is no exception. a. There is no doubt that the government has a compelling interest in protecting national security. Br. 27-28; Haig v. Agee, 453 U.S. 280, 307 (1981) (“[N]o governmental interest is more compelling than the security of the Nation.”). Section 2709(c), however, is not narrowly tailored to promote that interest. Moreover, because NSLs are not or-
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dinarily classified, the statute is not narrowly tailored to any interest the government may have in preventing the dissemination of classified information to unauthorized persons. The statute permits the FBI Director to prohibit disclosure whenever he finds that “there may result 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.” 18 U.S.C. 2709(c)(1). That language falls short of narrow tailoring in two respects.
First, the statute is satisfied whenever the FBI director says that the specified harms “may” occur. That imposes hardly any limit at all, as the word “may” requires only a mere possibility. See Black’s Law Dictionary 1068 (9th ed. 2009) (defining “may” as “[t]o be a possibility”). Narrow tailoring requires more. See Frisby v. Schultz, 487 U.S. 474, 485 (1988) (narrow tailoring is satisfied “only if each activity within the proscription’s scope is an appropriately targeted evil”); NAACP v. Button, 371 U.S. 415, 438 (1963) (“Broad prophylactic rules in the area of free expression are suspect.”).

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Second, the enumerated harms in the statute cover far more than harm to national security. For example, “interference with a criminal . . . investigation” could refer to even minor interference with an investigation of a misdemeanor offense having nothing to do with national security. Similarly, as the Second Circuit observed in Doe, the “danger to the . . . physical safety of any person” clause “could extend the Government’s power to impose secrecy to a broad range of information relevant to such matters as ordinary tortious conduct.” 549 F.3d at 874.
Having correctly identified the constitutional problems posed by Section 2709(c)’s broad language, the court in Doe mistakenly concluded that they could be avoided by reading the statute to require that there be “an adequate demonstration that a good reason exists reasonably to apprehend a risk of an enumerated harm,” 549 F.3d at 882, and that the harm be “related to ‘an authorized investigation to protect against international terrorism or clandestine intelligence activities,’” id. at 875 (quoting 18 U.S.C. § 2709(b)). Although that reading mitigates the First Amendment problems to some degree, it cannot be reconciled with the statutory text. See Miller v. French, 530 U.S. 327, 341

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(2000) (“We cannot press statutory construction to the point of disingenuous evasion even to avoid a constitutional question.”) (internal quotation marks and citation omitted).
In any event, even assuming that the broad statutory language could be read in such a limited way, the Second Circuit’s standard, which appears to be akin to the reasonable-suspicion standard of the Fourth Amendment, is not sufficient when strict scrutiny is applicable. To be sure, a prohibition on speech might satisfy strict scrutiny if there were “a good reason . . . reasonably to apprehend a risk” of a very serious harm from the speech. But even as rewritten by the Second Circuit, the statute does not require that the harm be serious—or even more than de minimis—only that it be somehow related to a terrorism investigation. That is, it permits speech to be suppressed upon a determination that there is a risk that it might lead to some kind of “interference with [an] investigation” that is in some way related to terrorism, no mater how minimal the interference may be. The statute is not narrowly tailored to promote the interest in national security.
b. The highly restrictive nature of Section 2709(c) provides additional reason to conclude that the provision cannot be the least restric-

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tive means of achieving the government’s asserted objective. See Reno, 521 U.S. at 874. The statute prohibits speech on matters of vital public concern—namely, the government’s exercise of coercive authority against the recipients of NSLs. See Mills v. Alabama, 384 U.S. 214, 218 (1966) (“Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.”); accord Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829, 838-839 (1978). In that respect, the provision is different from many of the other speech restrictions that the government cites, which apply to information obtained by virtue of a voluntary relationship with the government (such as government employment).
The public interest in the speech that Section 2709(c) prohibits is highlighted by the government’s many disclosures about its use of NSLs. The government’s use of its authority under the NSL statute is a matter of significant public debate, and the government has engaged in that debate by defending its use of the statute. See, e.g., Peter Baker and Charlie Savage, Obama Seeks Balance in Plan for Spy Programs, N.Y. Times, Jan. 9, 2014 (FBI Director James Comey described the

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NSL statute as “a very important tool that is essential to the work we do”). Some NSL recipients may agree that the government has used the statute appropriately; others may not. Some, like amici, while not seeking to disclose individual NSLs if received, have a strong commitment to transparency and want their users to know in the aggregate how many such demands they receive and the number of accounts affected. The nondisclosure provisions impermissibly suppress the speech of those who might be best positioned to offer an informed perspective on the government’s position. The First Amendment does not permit the government to silence a key participant a debate about the government’s activities. R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).

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CONCLUSION The judgment of the district court should be reversed.

Respectfully submitted.

Dated: April 4, 2014

PERKINS COIE LLP

By: s/ Eric D. Miller

Albert Gidari Eric D. Miller 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: 206.359.8000 Facsimile: 206.359.9000

Attorneys for Amici Curiae Google Inc., Facebook Inc., and Microsoft Corporation

Marc J. Zwillinger ZwillGen PLLC 1900 M. Street, NW, Suite 250 Washington, DC 20036 Telephone: (202) 706-5202
Attorney for Amicus Curiae Yahoo Inc.

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I certify that:

CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) and Fed. R. App. P. 29(d) because:
 this brief contains 5759 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or
□ this brief uses a monospaced typeface and contains
_________ lines of text, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because:
 this brief has been prepared in a proportionally spaced typeface using Microsoft Office Word 2010 in Century Schoolbook 14-point type, or

□ this brief has been prepared in a monospaced typeface using
Microsoft Office Word 2003 with ________ characters per inch in [name and type style, e.g., Courier 12-point type].

s/ Eric D. Miller Eric D. Miller
Dated: April 4, 2014

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CERTIFICATE OF SERVICE
I hereby certify that, on April 4, 2014, I filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by sending seven copies by Federal Express to:
Susan Soong, Chief Deputy Clerk - Operations U.S. Court of Appeals for the Ninth Circuit 95 Seventh Street San Francisco, CA 94103
The Court will effect service on the parties.
s/ Eric D. Miller

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NO. 13-16732
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNDER SEAL,
PETITIONER-APPELLANT, V. ERIC H. HOLDER, JR., Attorney General; UNITED STATES DEPARTMENT OF JUSTICE; and FEDERAL BUREAU OF INVESTIGATION,
RESPONDENT-APPELLEES
On Appeal from the United States District Court for the Northern District of California Case No. 13-cv-1165 SI Honorable Susan Illston, District Judge
BRIEF AMICUS CURIAE OF THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS AND 18 MEDIA ORGANIZATIONS IN
SUPPORT OF PETITIONER-APPELLANT UNDER SEAL
Bruce D. Brown Counsel of record for Amici Curiae
Gregg P. Leslie Jamie T. Schuman The Reporters Committee for Freedom of the Press 1101 Wilson Blvd., Suite 1100 Arlington, VA 22209 Telephone: 703.807.2100 Facsimile: 703.807.2109
*Additional amici counsel listed at the end of the document
April 8, 2014

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CORPORATE DISCLOSURE STATEMENT Pursuant t o R ule 26.1 of t he Ninth C ircuit R ules of A ppellate P rocedure, amici disclose that: The R eporters C ommittee f or F reedom of the P ress is a n unincorporated association of reporters and editors with no parent corporation and no stock. American Society of News Editors is a private, non-stock corporation that has no parent. Association of A lternative N ewsmedia has no parent c orporation a nd d oes not issue any stock. California Newspaper Publishers Association is a mutual benefit corporation organized under s tate law f or t he purpose of pr omoting a nd preserving the newspaper industry in California. Courthouse News Service is a pr ivately held c orporation with no pa rent corporation and n o pu blicly held c orporation ho lds more than 10 percent of it s stock. The D aily B east C ompany LL C is o wned by I AC/InterActiveCorp, a publicly tr aded c ompany, a nd the S idney H arman T rust, w ith I AC holding a controlling interest. First A mendment C oalition i s a n onprofit organization w ith n o parent company. It issues no stock and does not own any of the party’s or amicus’ stock.

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Fox News Network, LLC ( “Fox News”), owner of the Fox News Channel and Fox Business Network, states that News Corporation, a publicly held company which is publicly traded, is the ultimate parent of F ox News. No other p ublicly held corporations own 10% or more of Fox News’s stock.
Freedom of the Press Foundation does not have a parent corporation, and no publicly held corporation owns 10% or more of the stock of the organization.
Gannett C o., I nc. i s a p ublicly tr aded c ompany and ha s no affiliates o r subsidiaries that are publicly owned. No publicly held company holds 10% or more of its stock.
The Investigative Reporting Workshop is a privately funded, nonprofit news organization affiliated with the American University School of Communication in Washington. It issues no stock.
The M cClatchy C ompany is p ublicly tr aded on the N ew Y ork S tock Exchange under t he ti cker sy mbol M NI. C ontrarius I nvestment M anagement Limited owns 10% or more of the common stock of The McClatchy Company.
The Media Consortium is a project of the Foundation for National Progress, a 501c3 nonprofit based in the United States.
National P ress P hotographers A ssociation is a 501(c)(6) no nprofit organization with no parent company. It issues no stock and does not own any of the party’s or amicus’ stock.

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National P ublic R adio, Inc. is a privately supported, n ot-for-profit membership organization that has no parent company and issues no stock.
The N ew Y ork T imes C ompany is a p ublicly tr aded c ompany a nd has n o affiliates or subsidiaries that are publicly owned. No publicly held company owns 10% or more of its stock.
North Jersey Media Group Inc. is a privately held company owned solely by Macromedia Incorporated, also a privately held company.
Radio Te levision Digital Ne ws Association is a non profit o rganization that has no parent company and issues no stock.
WP Company LLC d/b/a The Washington Post is a wholly owned subsidiary of Nash Holdings LLC. Nash Holdings LLC is pr ivately held and does not have any outstanding securities in the hands of the public.

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TABLE OF CONTENTS
STATEMENT OF IDENTITY AND INTEREST OF AMICI CURIAE...................1
SUMMARY OF ARGUMENT .................................................................................7
I. THE NON-DISCLOSURE PROVISION OF § 2709(c) IS A PRIOR RESTRAINT ON SPEECH THAT RESTRICTS THE PUBLIC’S RIGHT TO KNOW HOW ITS GOVERNMENT OPERATES........................................8
A. The non-disclosure provision is a prior restraint...........................................9
B. The Supreme Court’s rationales for affording prior restraints heightened protection go to the very heart of governmental accountability. ................13
C. Prior restraint analysis is required even when national security concerns are implicated. .............................................................................................16
II. BOTH SPEAKERS AND LISTENERS HAVE A FIRST AMENDMENT RIGHT TO EXCHANGE INFORMATION ABOUT THE NSL PROGRAM. ...............................................................................................19
III.THE OVERWHELMING SECRECY ALLOWED BY THIS STATUTE HARMS THE PUBLIC DISCOURSE BY THREATENING THE CONFIDENTIAL RELATIONSHIPS OF REPORTERS AND THEIR SOURCES. ..........................................................................................................24
A. The scope, structure, and experience of the NSL program lead reporters and sources to fear that their work product is not confidential...................25
B. Surveillance efforts, such as the NSL program, deter sources from talking to reporters about sensitive subjects. ..............................................28

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TABLE OF AUTHORITIES
Cases Alexander v. United States, 509 U.S. 544 (1993) ......................................... 9, 10, 11 Board of Education v. Pico, 457 U.S. 853 (1982) ...................................................20 Davis v. East Baton Rouge Parish Sch. Bd., 78 F.3d 920 (5th Cir. 1996) ..............21 First Nat. Bank of Boston v. Bellotti, 435 U.S. 765 (1978) .....................................11 FOCUS v. Allegheny County Court, 75 F.3d 834 (3rd Cir. 1996) ..........................21 Garrison v. State of La., 379 U.S. 64 (1964) ...........................................................23 Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010) ...............................17 Hrdlicka v. Reniff, 631 F.3d 1044 (9th Cir. 2011)...................................................20 In re Nat’l Sec. Letter, 930 F.Supp. 2d 1064 (N.D. Cal. 2013).............. 9, 13, 18, 25 John Doe, Inc. v. Mukasey, 549 F.3d 861 (2nd Cir. 2009)......................................10 Klendienst v. Mandel, 408 U.S. 753 (1972).............................................................20 Martin v. City of Struthers, 319 U.S. 141 (1943) ....................................................20 Near v. Minnesota, 283 U.S. 697 (1931) .................................................... 11, 15, 17 Nebraska Press Assoc. v. Stuart, 427 U.S. 539 (1976) .............................. 13, 14, 15 New York Times Co. v. United States, 403 U.S. 713 (1971) ................ 13, 15, 17, 18 Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3rd Cir. 1994) .............................21 Press-Enterprise Co. v. Superior Court of Cal., 464 U.S. 501 (1984)
(“Press-Enterprise I”)............................................................................................11 Seattle Times v. Rhinehart, 467 U.S. 20 (1984) ............................................... 10, 12 Sec’ Application of Dow Jones & Co., Inc., 842 F.2d 603 (2nd Cir. 1988) ............21 Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975).............................10
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Stanley v. Georgia, 394 U.S. 557 (1969).................................................................20
United States v. Progressive, 467 F. Supp. 990 (W.D. Wis. 1979).........................19
Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748 (1976)....................................................................................... 19, 20
Ward v. Rock Against Racism, 491 U.S. 781 (1989).................................................9
Statutes
18 U.S.C. § 2709(c) ......................................................................................... passim
Other Authorities
Alexander Bickel, The Morality of Consent (1975). ...............................................14
Barton Gellman, NSA Broke Privacy Rules Thousands of Times Per Year, Audit Finds, Wash. Post, Aug. 15, 2013, http://wapo.st/16SWco2......................27
Dan Eggen, FBI Found to Misuse Security Letters, Wash. Post, March 14, 2008, http://wapo.st/1fVsq2O ...................................................... 25, 26
Darren Samuelsohn, Barton Gellman aware of legal risks, Politico, Feb. 25, 2014, http://politi.co/1jRkSpO................................................................27
David von Drehle, FBI’s No. 2 Was ‘Deep Throat’: Mark Felt Ends 30-Year Mystery of The Post’s Watergate Source, Wash. Post, June 1, 2005, http://wapo.st/JLlYvZ ...........................................................................................28
Department of Justice, Office of Inspector General, A Review of the Federal Bureau of Investigation’s Use of Exigent Letters and Other Informal Requests for Telephone Records (2010), http://www.justice.gov/oig/special/s1001r.pdf .....................................................26
Derek Green, Kentucky Supreme Court strikes down prior restraint, The Reporters Comm. for Freedom of the Press, Oct. 27, 2010, http://bit.ly/1mwHtZ0 ...........................................................................................16
Dylan Byers, Reporters Say There’s a Chill in the Air, Politico, June 8, 2013, http://politi.co/11znRrJ...................................................................29
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Ellen Nakashima, Plaintiff who challenged FBI’s national security letters reveals concerns, Wash. Post, Aug. 10, 2010, http://wapo.st/PYEr2q ...........................................................................................22
Eric Lichtblau, FBI cast broad net in secretly tracking Americans’ associates, N.Y. Times, Sept. 8, 2007, http://nyti.ms/1jrLYDO ............................................25
Face the Nation Transcripts, June 2, 2013, CBS News, http://cbsn.ws/1aGmeyd .......................................................................................29
Glenn Kessler, James Clapper’s ‘Least Untruthful’ Statement to the Senate, Wash. Post, June 12, 2013, http://wapo.st/170VVSu ...........................................28
Gregg Leslie, State high court suspends prior restraint on news coverage, The Reporters Comm. for Freedom of the Press, Jan. 29, 2010, http://bit.ly/1rFuipr ...............................................................................................16
James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. Times, Dec. 16, 2005, http://nyti.ms/neIMIB..............................................29
James Risen, Lawmakers Question White House Account of an Internet Surveillance Program, N.Y. Times, July 3, 2013, http://nyti.ms/16PNs0q .........28
Jamie Schuman, The Shadows of the Spooks, The News Media and the Law, Fall 2013 http://bit.ly/1f16OaS .............................................................................29
Jamie Schuman, Virginia court vacates prior restraint on witnesses names in murder case, The Reporters Comm. for Freedom of the Press, Oct. 10, 2013, http://bit.ly/P6hWHQ ............................................................................................16
Josh Gerstein, NSA broke rules on call-tracking program, court filings show, Politico, Sept. 10, 2013, http://politi.co/17UxEJR ...............................................27
Kim Zetter, Google Takes on Rare Fight Against National Security Letters, Wired, April 4, 2013; http://wrd.cm/1mNmiC4 ...................................................23
Kim Zetter, ‘John Doe’ Who Fought FBI Spying Freed From Gag Order After 6 Years, Wired, Aug. 10, 2010, http://wrd.cm/1mtnQkA .................... 22, 25

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Lucas A. Powe, Jr., The Fourth Estate and the Constitution: Freedom of the Press in America (1991) .............................................................................14
Lyndsey Wajert, Texas judge denies 2nd request for injunction against blog, The Reporters Comm. for Freedom of the Press, April 21, 2011, http://bit.ly/1he6O6j ..............................................................................................16
Mara Zimmerman, Ohio Supreme Court prevents enforcement of gag order, The Reporters Comm. for Freedom of the Press, April 14, 2010, http://bit.ly/1pc5TWk ...........................................................................................16
Maria Bustillos, What It’s Like to Get a National-Security Letter, The New Yorker, June 28, 2013, http://nyr.kr/JZGyyY.......................................23
My National Security Letter Gag Order, Wash. Post, March 27, 2007, http://wapo.st/1dq1Xjh .........................................................................................22
Nicholas Merrill, How the Patriot Act stripped me of my free-speech rights, Wash. Post, Oct. 25, 2011, http://wapo.st/1m2Ecxz ............................................22
Nicole Lozare, Order prohibiting journalist from ever writing about Haitian prime minister dismissed; but PM can refile complaint, The Reporters Comm. for Freedom of the Press, April 9, 2013, http://bit.ly/1loQq6d ...............16
Privacy and Civil Liberties Oversight Board, Report on the Telephone Records Program Conducted under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court, Jan. 23, 2014, http://bit.ly/1d01flI ................................................................................................30
R. Jeffrey Smith, FBI Violations May Number 3,000, Official Says, Wash. Post, March 21, 2007, http://wapo.st/1dtfJBS .................................... 23, 26
Remarks by the President on Review of Signals Intelligence, Jan. 17, 2014..........27
Rory Eastburg, Tribal court strikes down prior restraint on journalist, The Reporters Comm. for Freedom of the Press, Sept. 11, 2009, http://bit.ly/1loSgnE ..............................................................................................16
Scott Shane, David Johnston, James Risen, Secret U.S. Endorsement of Severe Interrogations, N.Y. Times, Oct. 4, 2007, http://nyti.ms/1dkyMgF ....................29
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The Obama Administration and the Press: Leak investigations and surveillance in post-9/11 America, Comm. To Protect Journalists, Oct. 10, 2013, http://bit.ly/1c3Cnfg ..............................................................................................30
Timothy J. Conner, Florida Court Vacates Prior Restraints, MLRC MediaLawLetter, Sept. 2013, http://bit.ly/1dvI5Lz..............................................16
Transcript of President Obama’s Press Conference (Aug. 9, 2013), http://1.usa.gov/13pyCLa......................................................................................23

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STATEMENT OF IDENTITY AND INTEREST OF AMICI CURIAE The Reporters Committee for Freedom of the Press is a voluntary,
unincorporated association of reporters and editors that works to defend the First Amendment rights and freedom of information interests of the news media. The Reporters Committee has provided representation, guidance and research in First Amendment and Freedom of Information Act litigation since 1970.
With some 500 members, American Society of News Editors (“ASNE”) is an organization that includes directing editors of daily newspapers throughout the Americas. ASNE changed its name in April 2009 to American Society of News Editors and approved broadening its membership to editors of online news providers and academic leaders. Founded in 1922 as American Society of Newspaper Editors, ASNE is active in a number of areas of interest to top editors with priorities on improving freedom of information, diversity, readership and the credibility of newspapers.
Association of Alternative Newsmedia (“AAN”) is a not-for-profit trade association for 130 alternative newspapers in North America, including weekly papers like The Village Voice and Washington City Paper. AAN newspapers and their websites provide an editorial alternative to the mainstream press. AAN members have a total weekly circulation of seven million and a reach of over 25 million readers.

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The California Newspaper Publishers Association ("CNPA") is a nonprofit trade association representing the interests of nearly 850 daily, weekly and student newspapers throughout California. For over 130 years, CNPA has worked to protect and enhance the freedom of speech guaranteed to all citizens and to the press by the First Amendment of the United States Constitution and Article 1, Section 2 of the California Constitution. CNPA has dedicated its efforts to protect the free flow of information concerning government institutions in order for newspapers to fulfill their constitutional role in our democratic society and to advance the interest of all Californians in the transparency of government operations.
Courthouse News Service is a California-based legal news service for lawyers and the news media that focuses on court coverage throughout the nation, reporting on matters raised in trial courts and courts of appeal up to and including the U.S. Supreme Court.
The Daily Beast was founded in 2008 as the vision of Tina Brown and IAC Chairman Barry Diller. Curated to avoid information overload, the site is dedicated to breaking news and sharp commentary. Tina Brown, former editor of Tatler, Vanity Fair, The New Yorker & Talk, author of the 2007 NY Times best-seller The Diana Chronicles and founder of the annual Women in the World summit, serves as editor-in-chief of the site which regularly attracts over 16 million unique

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online visitors a month and is the winner of two consecutive Webby awards for ‘best news’ site.
First Amendment Coalition is a nonprofit public interest organization dedicated to defending free speech, free press and open government rights in order to make government, at all levels, more accountable to the people. The Coalition’s mission assumes that government transparency and an informed electorate are essential to a self-governing democracy. To that end, we resist excessive government secrecy (while recognizing the need to protect legitimate state secrets) and censorship of all kinds.
Fox News Network LLC (“Fox News”) owns and operates the Fox News Channel, the top rated 24/7 all news national cable channel, and the Fox Business Network, as well as Foxnews.com, Foxbusiness.com, and the Fox News Radio Network.
Freedom of the Press Foundation is a non-profit organization that supports and defends public-interest journalism focused on transparency and accountability. The organization works to preserve and strengthen First and Fourth Amendment rights guaranteed to the press through a variety of avenues, including public advocacy, legal advocacy, the promotion digital security tools, and crowd-funding.
Gannett Co., Inc. is an international news and information company that publishes more than 80 daily newspapers in the United States – including USA

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TODAY – which reach 11.6 million readers daily. The company’s broadcasting portfolio includes more than 40 TV stations, reaching approximately one-third of all television households in America. Each of Gannett’s daily newspapers and TV stations operates Internet sites offering news and advertising that is customized for the market served and integrated with its publishing or broadcasting operations.
The Investigative Reporting Workshop, a project of the School of Communication (SOC) at American University, is a nonprofit, professional newsroom. The Workshop publishes in-depth stories at investigativereportingworkshop.org about government and corporate accountability, ranging widely from the environment and health to national security and the economy.
The McClatchy Company, through its affiliates, is the third-largest newspaper publisher in the United States with 30 daily newspapers and related websites as well as numerous community newspapers and niche publications.
The Media Consortium is a network of the country’s leading, progressive, independent media outlets. Our mission is to amplify independent media’s voice, increase our collective clout, leverage our current audience and reach new ones.
The National Press Photographers Association (“NPPA”) is a 501(c)(6) nonprofit organization dedicated to the advancement of visual journalism in its creation, editing and distribution. NPPA’s approximately 7,000 members include

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television and still photographers, editors, students and representatives of businesses that serve the visual journalism industry. Since its founding in 1946, the NPPA has vigorously promoted the constitutional rights of journalists as well as freedom of the press in all its forms, especially as it relates to visual journalism. The submission of this brief was duly authorized by Mickey H. Osterreicher, its General Counsel.
National Public Radio, Inc. is an award-winning producer and distributor of noncommercial news programming. A privately supported, not-for-profit membership organization, NPR serves a growing audience of more than 26 million listeners each week by providing news programming to 285 member stations that are independently operated, noncommercial public radio stations. In addition, NPR provides original online content and audio streaming of its news programming. NPR.org offers hourly newscasts, special features and 10 years of archived audio and information.
The New York Times Company is the publisher of The New York Times, The Boston Globe, and International Herald Tribune and operates such leading news websites as nytimes.com and bostonglobe.com.
North Jersey Media Group Inc. (“NJMG”) is an independent, family-owned printing and publishing company, parent of two daily newspapers serving the residents of northern New Jersey: The Record (Bergen County), the state’s second-

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largest newspaper, and the Herald News (Passaic County). NJMG also publishes more than 40 community newspapers serving towns across five counties and a family of glossy magazines, including (201) Magazine, Bergen County’s premiere magazine. All of the newspapers contribute breaking news, features, columns and local information to NorthJersey.com. The company also owns and publishes Bergen.com showcasing the people, places and events of Bergen County.
Radio Television Digital News Association (“RTDNA”) is the world’s largest and only professional organization devoted exclusively to electronic journalism. RTDNA is made up of news directors, news associates, educators and students in radio, television, cable and electronic media in more than 30 countries. RTDNA is committed to encouraging excellence in the electronic journalism industry and upholding First Amendment freedoms.
WP Company LLC (d/b/a The Washington Post) publishes one of the nation’s most prominent daily newspapers, as well as a website, www.washingtonpost.com, that is read by an average of more than 20 million unique visitors per month.

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SUMMARY OF ARGUMENT The presumption against prior restraints lies at the heart of the First Amendment.1 Journalists in particular know they can count on this protection when providing the public with information about national, state and local government; foreign policy; crime; and other topics. The Northern District of California’s decision in In re National Security Letter recognized the important interests at stake, but set the bar too low by refusing to recognize that the nondisclosure provision of the National Security Letter statute is a prior restraint on speech of public concern. Instead of finding the timing of a ban on speech dispositive, the lower court based its decision on a false distinction between a statutory gag, such as the one at issue in this case, and a “classic” prior restraint. This erroneous standard threatens to place many potential speakers outside of the heavy protections that prior restraint law affords. It also ignores the Supreme Court’s key policy rationale for making prior restraints presumptively unconstitutional: bans on speech stifle the discourse on important issues that is necessary for an informed democracy. Amici, as members of the news media, agree with the lower court that 18 U.S.C. § 2709(c)
1 Pursuant to Rule 37.6, amici attest that no counsel for any party authored this brief in whole or in part, and that no counsel or party made a monetary contribution intended to fund the preparation or submission of the brief. Additionally, amici attest that they received consent to file this brief from counsel for both sides.
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is unconstitutional. However, amici warn that a ruling by this Court finding the non-disclosure provision anything less than a prior restraint will open the door for other courts to create end-runs around key constitutional protections guaranteeing the free flow of information to the public.
News coverage about the NSL program implicates political decision-making and judicial administration, and, therefore, is at the core of speech and press freedoms. Members of the public have a First Amendment right as listeners to receive information about government affairs when there is a “willing speaker” who wishes to disclose that information. Transparency is important not just for its own sake but also because, as recent reports have concluded, fear of government surveillance has deterred sources from speaking with journalists. More knowledge about the scope and contours of the NSL program can give sources and reporters the confidence needed to responsibly report on public affairs.
ARGUMENT I. THE NON-DISCLOSURE PROVISION OF § 2709(c) IS A PRIOR
RESTRAINT ON SPEECH THAT RESTRICTS THE PUBLIC’S RIGHT TO KNOW HOW ITS GOVERNMENT OPERATES. The court below treated the nondisclosure provision of the National Security Letter statute, 18 U.S.C. § 2709(c), as a serious restriction on speech, but stopped short of recognizing it as a true prior restraint. The court held:

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[G]iven the text and function of the NSL statute, Petitioner’s proposed standards are too exacting. Rather, this Court agrees with the analysis of the Second Circuit in John Doe, Inc. v. Mukasey, and finds that while section 2709(c) may not be a “classic prior restraint” or a “typical” content-based restriction on speech, the nondisclosure provision clearly restrains speech of a particular content— significantly, speech about government conduct.
In re Nat’l Sec. Letter, 930 F.Supp. 2d 1064, 1071 (N.D. Cal. 2013).
Amici agree with the lower court that the gag provision is unconstitutional.
However, the holding ignores the Supreme Court’s long-recognized rule that a
government ban on speech before it occurs is a prior restraint. See, e.g., Alexander
v. United States, 509 U.S. 544 (1993). Not affording this protection to NSL
recipients dilutes the definition of prior restraint, a safeguard on which journalists
rely to obtain and publish information necessary for an informed and healthy
democracy. Weakening this standard hurts not only the news media but also the
public by harming the flow of information in many areas.
A. The non-disclosure provision is a prior restraint.
Prior restraints are “administrative and judicial orders forbidding certain
communications when issued in advance of the time that such communications are
to occur.” Alexander, 509 U.S. at 297 (internal quotation omitted). Supreme
Court precedent shows that the timing of the ban on speech is the key element of a
prior restraint. See Ward v. Rock Against Racism, 491 U.S. 781, 795 n.5 (1989)
(“The relevant question is whether the challenged regulation authorizes

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suppression of speech in advance of its expression…”). See also Alexander, 509 U.S. at 550-51 (declining to find forfeiture of pornography business a prior restraint because it was a punishment for past behavior and “does not forbid petitioner from engaging in any expressive activities in the future”); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 559 (1975) (explaining that prior restraints are so disfavored because “[i]t is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable”).
The court below wrongly found that the nature of the speech was determinative even though Supreme Court cases show that the timing alone determines when a restriction is a prior restraint. In doing so, the lower court incorrectly relied on the U.S. Court of Appeals for the Second Circuit’s cursory analysis of § 2709(c) in John Doe, Inc. v. Mukasey, a separate challenge to the NSL program. The Second Circuit found: “Although the nondisclosure requirement is in some sense a prior restraint…it is not a typical example of such a restriction for it is not a restraint imposed on those who customarily wish to exercise rights of free expression, such as speakers in public fora, distributors of literature, or exhibitors of movies.” John Doe, Inc. v. Mukasey, 549 F.3d 861, 876 (2nd Cir. 2009). Mukasey cited Seattle Times v. Rhinehart, 467 U.S. 20, 33 (1984), for the proposition that a “prohibition on disclosure of material obtained

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through pretrial discovery” is not a classic prior restraint. Mukasey, 549 F.3d at 876.
Mukasey erred in creating two types of prior restraints: typical and atypical ones. As Alexander held, any ban on speech before it occurs is a prior restraint. 509 U.S. at 544. Mukasey’s logic ignores that First Amendment rights – such as the right to attend court proceedings or to sue for access to records – are rights that all members of the public share. See, e.g., Press-Enterprise Co. v. Superior Court of Cal., 464 U.S. 501, 508 (1984) (“Press-Enterprise I”) (finding that “everyone in the community” has a First Amendment-based right to attend voir dire). It also ignores the tenant of First Amendment law that the value of expression lies in its content, not in the identity of the speaker. First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 776–77 (1978) (“The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.”). See also Near v. Minnesota, 283 U.S. 697, 713–14 (1931) (“Every freeman has an undoubted right to lay what sentiments he pleases before the public[.]”) (internal quotation omitted). Amici are concerned that the baseless construction of artificial distinctions will make it easier for other courts to exclude certain speakers from the strong protection that prior restraint law affords.

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Mukasey wrongly based its conclusion about the nature of the restraint on Seattle Times. The holding in that case is limited to a different matter (pre-trial protective orders in a private, civil dispute), and does not involve a wholesale ban on speech. There, the Supreme Court granted a protective order to a religious leader who sued The Seattle Times for defamation and sought to prevent the news outlet from printing pre-trial discovery information, such as financial data. Seattle Times, 467 U.S. at 22, 36. The Court, however, found that the newspaper could publicize “the identical information covered by the protective order” if it discovered it through independent means. Id. at 34. Here, though, there is no way for the public to get information about NSLs because the only people with knowledge of the letters are gagged upon threat of criminal prosecution.
Seattle Times also involved very different policy concerns. The Court “limited [the holding] to the context of pretrial discovery,” and only granted the protective order because a rule to the contrary would restrict a trial court from “oversee[ing]” its docket. Id. at 31, 37. Denying a protective order also would create “significant potential for abuse” by a private party who “incidentally or purposefully” obtains irrelevant information that could damage the other party, the Court found. Id. at 34-35.
These concerns lose their force when the government uses its investigatory powers to undertake a criminal inquiry outside of court. The trial court, in a

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discussion on another matter, recognized that Seattle Times does not control: “The concerns that justified restrictions on a civil litigant’s pre-trial right to disseminate confidential business information obtained in discovery — a restriction that was upheld by the Supreme Court in Seattle Times… — are manifestly not the same as the concerns raised in this case.” In re Nat’l Sec. Letter, 930 F.Supp.2d at 1072.
When the court below wrongly created two tiers of prior restraints, it found that § 2709(c) “does not need to satisfy the extraordinarily rigorous Pentagon Papers test.” Id. at 1071. However, Supreme Court precedent shows that there is only one type of prior restraint. Section 2709(c), a gag on speech before it occurs, must be subject to that body of law.
B. The Supreme Court’s rationales for affording prior restraints heightened protection go to the very heart of governmental accountability.
Because freedom from censorship is integral to reporting on public affairs, “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” Nebraska Press Assoc. v. Stuart, 427 U.S. 539, 559 (1976). See also New York Times Co. v. United States, 403 U.S. 713, 714 (1971) (finding “heavy presumption” against prior restraint’s constitutional validity) (internal quotation omitted) (per curium). The Supreme Court has never upheld a prior restraint against the press, and one reason these

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bans are so disfavored is that they freeze in place the speech necessary for selfgovernance. As constitutional law scholar Alexander Bickel has noted:
Prior restraints fall on speech with a brutality and a finality all their own. Even if they are ultimately lifted they cause irremediable loss … indeed it is the hypothesis of the First Amendment that injury is inflicted on our society when we stifle the immediacy of speech. Alexander Bickel, The Morality of Consent 61 (1975). Protection from prior restraint is especially important for speech on matters of public concern. Nebraska Press, 427 U.S. at 559 (“The damage can be particularly great when the prior restraint falls upon the communication of news and commentary on current events.”). When the government muzzles expression about public affairs, the public becomes less informed and less able to exercise its constitutionally protected duty of participating in democracy. In Nebraska Press, the Supreme Court quoted Thomas Jefferson to underscore this point: “‘Our liberty depends on the freedom of the Press, and that cannot be limited without being lost.’” 427 U.S. at 548. See also Lucas A. Powe, Jr., The Fourth Estate and the Constitution: Freedom of the Press in America 152 (1991) (explaining heavy presumption against prior restraint was “designed to facilitate the informed citizen’s full participation in the country’s government”). Three media challenges to prior restraints – in Near v. Minnesota, New York Times v. United States, and Nebraska Press Association v. Stuart – illustrate the importance to self-government of the heavy presumption against these gags. In
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Near, when the Supreme Court struck down a law that permitted a state to ban articles critical of public officials, the justices explained that a speaker’s rights are especially high when he wants to question or criticize government conduct. 283 U.S. at 717. Forty years later, in New York Times, the Court found that an injunction on publication of classified documents on the history of U.S. involvement in Vietnam was unconstitutional. 403 U.S. at 714. Justice Potter Stewart, in concurrence, explained that banning publication of the Pentagon Papers would be counterproductive and abhorrent to the First Amendment because “the only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry… For without an informed and free press there cannot be an enlightened people.” Id. at 728. In the third case, Nebraska Press, the Supreme Court recognized that the right to free speech is so vital to accountability within the legal system that a defendant’s fair trial claim under the Sixth Amendment does not trump it. 427 U.S. at 568-70 (allowing reporters to cover information they had obtained about alleged police confessions because judges have many methods short of censorship to ensure that defendants are not prejudiced). The policy rationales in Near, New York Times and Nebraska Press show that heightened protection is crucial for topics like the NSL program, where the public’s trust in judicial and political administration is at issue.

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These three cases – which involve coverage of local, state and national
politics; foreign affairs; national security; and criminal trials – also show the range
of topics that prior restraint law has protected from censorship. News outlets rely
on the strong protections that these cases afford to defeat ill-conceived efforts to
suppress reporting whenever the government has sought to shield itself from public
scrutiny.2 Amici are concerned that improperly applying prior restraint law here
will weaken this constitutional protection, and make it more difficult for the media
to inform the public in many areas.
C. Prior restraint analysis is required even when national security concerns are implicated.
2 See, e.g., Jamie Schuman, Virginia court vacates prior restraint on witnesses names in murder case, The Reporters Comm. for Freedom of the Press, Oct. 10, 2013, http://bit.ly/P6hWHQ; Timothy J. Conner, Florida Court Vacates Prior Restraints, MLRC MediaLawLetter, Sept. 2013, http://bit.ly/1dvI5Lz; Nicole Lozare, Order prohibiting journalist from ever writing about Haitian prime minister dismissed; but PM can refile complaint, The Reporters Comm. for Freedom of the Press, April 9, 2013, http://bit.ly/1loQq6d; Lyndsey Wajert, Texas judge denies 2nd request for injunction against blog, The Reporters Comm. for Freedom of the Press, April 21, 2011, http://bit.ly/1he6O6j; Derek Green, Kentucky Supreme Court strikes down prior restraint, The Reporters Comm. for Freedom of the Press, Oct. 27, 2010, http://bit.ly/1mwHtZ0; Mara Zimmerman, Ohio Supreme Court prevents enforcement of gag order, The Reporters Comm. for Freedom of the Press, April 14, 2010, http://bit.ly/1pc5TWk; Gregg Leslie, State high court suspends prior restraint on news coverage, The Reporters Comm. for Freedom of the Press, Jan. 29, 2010, http://bit.ly/1rFuipr; Rory Eastburg, Tribal court strikes down prior restraint on journalist, The Reporters Comm. for Freedom of the Press, Sept. 11, 2009, http://bit.ly/1loSgnE.
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Near, New York Times and Nebraska Press set strict limits for when, if ever, a prior restraint is permissible. Near explained that only in “exceptional cases,” such as to prevent disclosure of the “number or location of troops” during wartime, are these bans constitutional. 283 U.S. at 716. Publication of the Pentagon Papers did not meet that threshold, but Justice William J. Brennan, Jr., in a concurrence in New York Times, elaborated on the Near test: “information that would set in motion a nuclear holocaust” might justify a ban. New York Times, 403 U.S. at 726.
Though these proposed exceptions involve national security, they are not a reason to shield § 2709(c)(1) from prior restraint law. See Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2727 (2010) (“[C]oncerns of national security and foreign relations do not warrant abdication of the judicial role” and courts must “not defer to the Government’s reading of the First Amendment, even when such interests are at stake.”).
Section 2709(c)(1) is problematic because it uses vague threats of harm to national security to authorize restrictions that are more expansive and less concrete than any prior restraint the Supreme Court has said could be justified. It permits non-disclosure orders if “there may result 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.” 18 U.S.C. § 2709(c)(1) (emphasis added). In

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practice, nearly 100 percent of the NSLs issued each year have a non-disclosure order. In re Nat’l Sec. Letter, 930 F.Supp. 2d at 1074.
In New York Times, the Supreme Court rejected a national security rationale for a sweeping ban on speech. Justice Hugo Black explained: “The word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment.” 403 U.S. at 719 (Black, J., concurring). Justice Stewart warned that widespread censorship is destructive because excessive secrecy breeds dissent: “when everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless, and to be manipulated by those intent on self-protection or selfpromotion” Id. at 729 (Stewart, J., concurring).
It is especially important that the Court apply the proper standard here because in the area of national security First Amendment rationales for openness are at their height. Id. at 717 (Black, J., concurring) (finding “newspapers nobly did precisely that which the Founders hoped and trusted they would do” when they revealed government decisions that led to the Vietnam War). See also Id. at 724 (Douglas, J., concurring) (“Open debate and discussion of public issues are vital to our national health.”)
The Western District of Wisconsin emphasized this point when it struck down a prior restraint on an article about the construction of hydrogen bombs, and,

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instead, limited censorship to “technical information” that could help other countries build the weapons. United States v. Progressive, 467 F. Supp. 990, 996 (W.D. Wis. 1979). In ruling against a ban on the entire article, the court emphasized that open debate about nuclear policy is at the heart of what the First Amendment protects. Id. Protection from prior restraint is necessary so as not to “impede the defendants in their laudable crusade to stimulate public knowledge of nuclear armament and bring about enlightened debate on national policy questions.” Id. Similarly, this Court must not impede informed debate about NSLs by allowing § 2709(c) to stand. II. BOTH SPEAKERS AND LISTENERS HAVE A FIRST
AMENDMENT RIGHT TO EXCHANGE INFORMATION ABOUT THE NSL PROGRAM. Petitioners in this matter, unidentified telephone service providers, advance their First Amendment right to be heard about their receipt of a National Security Letter.3 The Supreme Court has found that where there is a willing speaker, the public has a heightened and independent First Amendment right to receive that information. “[W]here a speaker exists, as is the case here, the protection afforded is to the communication, to its source and to its recipients both.” Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 756 (1976).
3 It is in the public record that petitioners in 13-15957 and 13-16731 are unnamed telephone service providers. As the description of petitioner in case 13-16732 is redacted, the nature of its business is unknown to amici.
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Virginia Pharmacy explained that this precept was “clear from the decided cases,” id., such as Klendienst v. Mandel, 408 U.S. 753, 762-63 (1972), where again the Court referred to a broadly accepted right to “receive information and ideas,” and Martin v. City of Struthers, 319 U.S. 141 (1943), where the Court wrote:
The authors of the First Amendment knew that novel and unconventional ideas might disturb the complacent, but they chose to encourage a freedom which they believed essential if vigorous enlightenment was ever to triumph over slothful ignorance. This freedom embraces the right to distribute literature, and necessarily protects the right to receive it. 319 U.S. at 143 (internal citations omitted). In Board of Education v. Pico, which involved a school’s attempts to ban library books, the Court called the right to receive information “an inherent corollary of the rights of free speech and press that are explicitly guaranteed by the Constitution.” 457 U.S. 853, 867 (1982) (“[The] right to receive ideas is a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press, and political freedom.”) (emphasis in original). See also Stanley v. Georgia, 394 U.S. 557, 563 (1969) (“It is now well established that the Constitution protects the right to receive information and ideas.”). This Court also has recognized the rights of listeners. See Hrdlicka v. Reniff, 631 F.3d 1044, 1049 (9th Cir. 2011) (“We see no reason why this well-established principle does not apply to a publisher’s interest in distributing, and an inmate’s corresponding interest in receiving, unsolicited literature.”)
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Courts often invoke the right to receive information when news media parties challenge gag orders and base their standing to intervene on the public’s interest in hearing the information. See Application of Dow Jones & Co., Inc., 842 F.2d 603, 607 (2nd Cir. 1988) (“[T]he rights of potential recipients of speech, like the news agencies, to challenge the abridgment of that speech has already been decided.”) (internal quotation omitted); FOCUS v. Allegheny County Court, 75 F.3d 834, 839 (3rd Cir. 1996) (affirming that third parties have standing to challenge gag orders when the subjects of those orders might fear reprisal by speaking out); Pansy v. Borough of Stroudsburg, 23 F.3d 772, 777 (3rd Cir. 1994) (“The Newspapers may have standing notwithstanding the fact that they assert rights that may belong to a broad portion of the public at large.”) (internal quotation omitted): Davis v. East Baton Rouge Parish Sch. Bd., 78 F.3d 920, 927 (5th Cir. 1996) (holding that because the subject of the gag order was newsworthy and of great public interest in the community, the order severely impeded efforts “to discover newsworthy information from potential speakers”). These cases show the media’s substantial interest in receiving information from willing speakers, and in transmitting that knowledge to the public.
Here, petitioners’ speech can educate the public about the NSL program and the operation of key anti-terrorism initiatives undertaken by the government. While petitioners are willing speakers, other NSL recipients may keep quiet

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because violating the gag order can result in a five-year prison term. See Kim Zetter, ‘John Doe’ Who Fought FBI Spying Freed From Gag Order After 6 Years, Wired, Aug. 10, 2010, http://wrd.cm/1mtnQkA. The plaintiff in the Second Circuit case acknowledged in an anonymous Washington Post opinion piece that other NSL recipients would have wanted to speak out against the NSL program after the government, in a 2007 report, admitted to widespread violations of it: “Without the gag orders issued on recipients of the letters, it is doubtful that the FBI would have been able to abuse the NSL power the way it did. Some recipients would have spoken out about perceived abuses, and the FBI’s actions would have been subject to some degree of public scrutiny.” My National Security Letter Gag Order, Wash. Post, March 27, 2007, http://wapo.st/1dq1Xjh. In 2010, the government allowed the plaintiff, internet service provider owner Nicholas Merrill, to reveal his name but he still could not divulge what information the F.B.I. sought from him. See Zetter, John Doe’ Who Fought FBI Spying Freed From Gag Order After 6 Years, supra; Ellen Nakashima, Plaintiff who challenged FBI’s national security letters reveals concerns, Wash. Post, Aug. 10, 2010, http://wapo.st/PYEr2q. See also Nicholas Merrill, How the Patriot Act stripped me of my free-speech rights, Wash. Post, Oct. 25, 2011, http://wapo.st/1m2Ecxz. Merrill continues to speak publicly about how the non-disclosure provision stymies debate about government policy. Id.

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Where petitioners have a constitutionally protected interest in communicating with the public, the public has a corresponding constitutional interest in receiving the communications in order to fully realize its own political freedoms. See Garrison v. State of La., 379 U.S. 64, 74-75 (1964) (“speech concerning public affairs is more than self-expression; it is the essence of selfgovernment.”). This right is especially clear here because, since the media first reported on former NSA contractor Edward Snowden’s disclosures in June 2013, there has been considerable public interest not just in the NSL program but in the entire U.S. surveillance apparatus. See, e.g., Transcript of President Obama’s Press Conference (Aug. 9, 2013), http://1.usa.gov/13pyCLa (“[T]his is how we’re going to resolve our differences in the United States – through vigorous public debate, guided by our Constitution, with reverence for our history as a nation of laws, and with respect for the facts.”).
The media has covered what little information is available about the NSL program, but many questions remain unanswered. See, e.g., R. Jeffrey Smith, FBI Violations May Number 3,000, Official Says, Wash. Post, March 21, 2007, http://wapo.st/1dtfJBS; Kim Zetter, Google Takes on Rare Fight Against National Security Letters, Wired, April 4, 2013; http://wrd.cm/1mNmiC4; Maria Bustillos, What It’s Like to Get a National-Security Letter, The New Yorker, June 28, 2013, http://nyr.kr/JZGyyY.

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Disclosure would give the public a clearer picture of how the government spends its surveillance budget and the types of organizations and individuals it targets. It also would give citizens the knowledge to challenge the administration if it is abusing its power. The public has a right to receive information from willing speakers, and that right is at its highest for matters of public concern, like the NSL program. III. THE OVERWHELMING SECRECY ALLOWED BY THIS
STATUTE HARMS THE PUBLIC DISCOURSE BY THREATENING THE CONFIDENTIAL RELATIONSHIPS OF REPORTERS AND THEIR SOURCES. In addition to restricting public knowledge about NSLs, § 2709(c)(1), combined with other U.S. surveillance programs, threatens the free flow of information to the public by discouraging confidential sources from speaking with reporters. Because of the secrecy and size of the NSL program, there is a real threat that letters are targeting or incidentally sweeping up information from reporters or sources. Numerous journalists have said in recent reports that the threat that the government is accessing their work product has made some confidential sources unwilling to speak with them. As journalists rely on interviews with willing speakers to gather and report the news, quality reporting about a wide range of public issues diminishes when sources dry up. This concern alone shows why the non-disclosure provisions must be examined as a prior restraint.
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A. The scope, structure, and experience of the NSL program lead reporters and sources to fear that their work product is not confidential.
Though much is unknown about NSLs, the little information that is on the public record shows the sweep of the program. The government has issued more than “tens of thousands of NSLs” annually in recent years on employees at internet service providers, financial institutions, libraries, insurance companies, travel agencies, stockbrokers, car dealerships and other companies. In re Nat’l Sec. Letter, 930 F.Supp.2d at 1074. Zetter, ‘John Doe’ Who Fought FBI Spying Freed From Gag Order After 6 Years, supra. The F.B.I. has increasingly used these orders to obtain personal information about U.S. citizens, in addition to foreigners who are terrorist threats. Dan Eggen, FBI Found to Misuse Security Letters, Wash. Post, March 14, 2008, http://wapo.st/1fVsq2O. It uses NSLs to obtain data not only of terrorist threats, but also of people with whom that target was in contact. Eric Lichtblau, FBI cast broad net in secretly tracking Americans’ associates, N.Y. Times, Sept. 8, 2007, http://nyti.ms/1jrLYDO.
The structure of the program offers little safeguard to journalists and sources who are fearful of surveillance. The F.B.I., and not courts, issues NSLs, and the information that the government seeks needs only to be plausibly relevant to a national security investigation. 18 U.S.C. §§ 2709(b), 2709(c)(1). Despite these minimal requirements, the government has misused the program. Eggen, supra;
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Smith, supra. A Justice Department inspector general report disclosed “hundreds of possible violations of law” in the almost 200,000 NSLs that the FBI issued from 2003 to 2006. Eggen, supra. These misuses include improper requests, collection of more data than permitted, or improper authorization to proceed with a case. Id. In testimony before the U.S. House of Representatives after officials released this audit, F.B.I. General Counsel Valerie E. Caproni said “I think the public should be concerned.” Smith, supra.
A Justice Department report also revealed that the government used “exigent letters” to obtain telephone records for reporters at The New York Times and The Washington Post in conjunction with leaks investigations, and that it did not comply with federal guidelines designed to protect journalists’ First Amendment rights when doing so. Department of Justice, Office of Inspector General, A Review of the Federal Bureau of Investigation’s Use of Exigent Letters and Other Informal Requests for Telephone Records 89, 91, 102-04 (2010), http://www.justice.gov/oig/special/s1001r.pdf (admitting that officials did not make reasonable attempts to obtain the information from other sources, did not get Attorney General approval, and were unaware of protections for reporters). Additionally, national security reporter Barton Gellman said in a February 2014 speech that he has been told that his phone records were obtained at one point

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through an NSL. Darren Samuelsohn, Barton Gellman aware of legal risks, Politico, Feb. 25, 2014, http://politi.co/1jRkSpO.
The risk of governmental overreaching is conceded at the highest levels of the administration. In his January speech on NSA surveillance, President Obama acknowledged “the potential for abuse as intelligence capabilities advance and more and more private information is digitalized.” Remarks by the President on Review of Signals Intelligence, Jan. 17, 2014. Indeed, government documents released in September 2013 show that the NSA had for years regularly searched call logs of about 15,000 numbers that did not have a reasonable, articulable suspicion of terrorism. Josh Gerstein, NSA broke rules on call-tracking program, court filings show, Politico, Sept. 10, 2013, http://politi.co/17UxEJR. Additionally, an internal NSA audit from 2012 revealed that the agency had conducted unauthorized searches of data, including phone records and email, of thousands of Americans dating back to 2008. See Barton Gellman, NSA Broke Privacy Rules Thousands of Times Per Year, Audit Finds, Wash. Post, Aug. 15, 2013, http://wapo.st/16SWco2.
Public equivocations by national security leaders exacerbate concerns about the scope of government surveillance. In response to a question at a Senate Committee hearing in March 2013 from U.S. Senator Ron Wyden asking, “Does the NSA collect any type of data at all on millions or hundreds of millions of

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Americans?,” Director of National Intelligence James Clapper said, “No, sir.” Glenn Kessler, James Clapper’s ‘Least Untruthful’ Statement to the Senate, Wash. Post, June 12, 2013, http://wapo.st/170VVSu. After the disclosure of the “vast Internet surveillance program run by the National Security Agency,” Clapper released a “letter of apology” to Congress that the statements to the Senate were “clearly erroneous.” James Risen, Lawmakers Question White House Account of an Internet Surveillance Program, N.Y. Times, July 3, 2013, http://nyti.ms/16PNs0q.
B. Surveillance efforts, such as the NSL program, deter sources from talking to reporters about sensitive subjects.
Equivocations and noncompliance make it impossible for individuals to understand the limits of the surveillance program. This uncertainty is especially problematic for journalists and sources, who rely on promises of confidentiality when conducting interviews on sensitive topics. There is a long history of journalists breaking significant stories through information from confidential sources. For instance, anonymous sources were the foundation of the more than 150 articles Washington Post reporters Bob Woodward and Carl Bernstein wrote following the Watergate break-in. See David von Drehle, FBI’s No. 2 Was ‘Deep Throat’: Mark Felt Ends 30-Year Mystery of The Post’s Watergate Source, Wash. Post, June 1, 2005, http://wapo.st/JLlYvZ. Confidential sources also led to The New York Times’ 2006 report on the NSA’s illegal wiretapping program, and its
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2007 coverage of harsh interrogations that terrorism suspects in U.S. custody have faced. See James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. Times, Dec. 16, 2005, http://nyti.ms/neIMIB; Scott Shane, David Johnston, James Risen, Secret U.S. Endorsement of Severe Interrogations, N.Y. Times, Oct. 4, 2007, http://nyti.ms/1dkyMgF.
Since the public has become aware of surveillance programs, many reporters at major news outlets have said that these efforts have made sources less willing to talk with them, even about matters not related to national security. New York Times executive editor Jill Abramson explained on CBS’s Face the Nation, “The reporters who work for the Times in Washington have told me that many of their sources are petrified to even return calls at this point.” Face the Nation Transcripts, June 2, 2013, CBS News, http://cbsn.ws/1aGmeyd. Discussing the NSA surveillance programs, New York Times investigative reporter and three time Pulitzer Prize winner David Barstow said, “I have absolutely no doubt whatsoever that stories have not gotten done because of this.” Jamie Schuman, The Shadows of the Spooks, The News Media and the Law, Fall 2013, at 9, http://bit.ly/1f16OaS. See also Dylan Byers, Reporters Say There’s a Chill in the Air, Politico, June 8, 2013, http://politi.co/11znRrJ.
In a study that former Washington Post executive editor Leonard Downie Jr. wrote for the Committee to Protect Journalists, numerous journalists said

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surveillance programs and leaks prosecutions deter sources from speaking to them. The Obama Administration and the Press: Leak investigations and surveillance in post-9/11 America, Comm. To Protect Journalists, Oct. 10, 2013, http://bit.ly/1c3Cnfg. For instance, Associated Press senior managing editor Michael Oreskes said: “There’s no question that sources are looking over their shoulders. Sources are more jittery and more standoffish, not just in national security reporting. A lot of skittishness is at the more routine level.” Id.
The Privacy and Civil Liberties Oversight Board, an executive branch body that advises President Obama, reached the same conclusion: “The Board believes that such a shift in behavior is entirely predictable and rational. Although we cannot quantify the full extent of the chilling effect, we believe that these results – among them greater hindrances to political activism and a less robust press – are real and will be detrimental to the nation.” Privacy and Civil Liberties Oversight Board, Report on the Telephone Records Program Conducted under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court, Jan. 23, 2014, at 164, http://bit.ly/1d01flI.
More transparency about the NSL program and other surveillance efforts is needed to restore confidence in reporters and their confidential sources and protect the public’s interest in robust and informed scrutiny of these policies.

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CONCLUSION

Amici respectfully urge the Court to find 18 U.S.C. § 2709(c) an

unconstitutional prior restraint on speech.

Dated: April 8, 2014

Respectfully submitted,

Additional amici counsel:

____________________________ Bruce D. Brown
Counsel of Record Gregg P. Leslie Jamie T. Schuman The Reporters Committee for
Freedom of the Press 1101 Wilson Blvd., Suite 1100 Arlington, VA 22209 Telephone: 703-807-2100 Facsimile: 703-807-2109

Kevin M. Goldberg Fletcher, Heald & Hildreth, PLC 1300 N. 17th St., 11th Floor Arlington, VA 22209 Counsel for American Society of News Editors Counsel for Association of Alternative Newsmedia

Jim Ewert General Counsel California Newspaper Publishers Association 2000 O Street, Suite 120 Sacramento, California 95811

Rachel Matteo-Boehm Bryan Cave LLP 560 Mission Street, Suite 2500 San Francisco, CA 94105 Counsel for Courthouse News Service

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Andrew Goldberg The Daily Beast Company LLC 555 W. 18th St., 2nd Floor New York, NY 10011
Peter Scheer First Amendment Coalition 534 Fourth St., Suite B San Rafael, CA 94901
Dianne Brandi Executive Vice President Legal and Business Affairs Fox News / Fox Business 1211 Avenue of the Americas, 15th Floor New York, New York 10036
Ahmed Ghappour Civil Rights Clinic University of Texas School of Law 727 Dean Keeton St Austin TX 78705 Counsel for Freedom of the Press Foundation
Barbara W. Wall Vice President/Senior Associate General Counsel Gannett Co., Inc. 7950 Jones Branch Drive McLean, VA 22107
Karole Morgan-Prager Juan Cornejo The McClatchy Company 2100 Q Street Sacramento, CA 95816
James Chadwick Sheppard Mullin Richter & Hampton, LLP
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390 Lytton Avenue Palo Alto, CA 94301 Counsel for Media Consortium
Mickey H. Osterreicher 1100 M&T Center, 3 Fountain Plaza, Buffalo, NY 14203 Counsel for National Press Photographers Association
Greg Lewis Denise Leary Ashley Messenger National Public Radio, Inc. 1111 North Capitol St. NE Washington, D.C. 20002
David McCraw V.P./Assistant General Counsel The New York Times Company 620 Eighth Avenue New York, NY 10018
Jennifer A. Borg General Counsel North Jersey Media Group Inc. 1 Garret Mountain Plaza Woodland Park, NJ 07424
Kathleen A. Kirby Wiley Rein LLP 1776 K St., NW Washington, DC 20006 Counsel for Radio Television Digital News Association
John B. Kennedy James A. McLaughlin Kalea S. Clark The Washington Post 1150 15th Street, N.W. Washington, D.C. 20071
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CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS AND TYPE STYLE REQUIREMENTS PURSUANT TO FED. R. APP. P. 32(a)(7)(C)
Pursuant to Fed. R. App. P. 32(a)(7)(C), I certify as follows: 1. This Brief Amicus Curiae complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 6,953 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii); and 2. This b rief c omplies with t he typeface r equirements o f F ed. R . App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced ty peface using M icrosoft Word 2010 for Windows, the word processing system used to prepare the brief, in 14-point Times New Roman font.

Dated: April 8, 2014

By: ____________________________ Bruce D. Brown Counsel for Amici Curiae

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CERTIFICATE OF SERVICE
I he reby c ertify tha t on April 8, 2 014, a mici R eporters C ommittee f or
Freedom of the Press and 18 other media organizations mailed seven paper copies
of this brief to:
Susan Soong, Chief Deputy Clerk - Operations U.S. Court of Appeals for the Ninth Circuit 95 7th Street San Francisco, CA 94103 telephone is 415-355-7990.
The Ninth Circuit will effect service on the parties because this is a sealed
case. Amici also emailed a searchable PDF file of this document on April 8, 2014
to Susan_Soong@ca9.uscourts.gov.

Dated: April 8, 2014

By: ____________________________ Bruce D. Brown Counsel for Amicus Curiae

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Case No. 13-16732
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

IN RE NATIONAL SECURITY LETTER

UNDER SEAL,

Petitioner-Appellant

v.

ERIC H. HOLDER, Jr., Attorney General; UNITED STATES DEPARTMENT OF JUSTICE; FEDERAL BUREAU OF INVESTIGATION,
Respondents-Appellees

On Appeal from the United States District Court For the Northern District of California
BRIEF OF AMICUS CURIAE ELECTRONIC PRIVACY INFORMATION CENTER (EPIC) IN SUPPORT OF PETITIONER
Marc Rotenberg Counsel of Record
Alan Butler David Husband Electronic Privacy Information Center 1718 Connecticut Ave. NW Suite 200 Washington, DC 20009 Telephone: (202) 483-1140

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CORPORATE DISCLOSURE STATEMENT Pursuant to Fed. R. App. P. 26.1 and 29(c), Amicus Curiae Electronic Privacy Information Center (“EPIC”) is a District of Columbia corporation with no parent corporation. No publicly held company owns 10% or more of EPIC stock.

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TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ........................................................ ii!
TABLE OF CONTENTS ........................................................................................ iii!
TABLE OF AUTHORITIES ................................................................................... iv!
INTEREST OF AMICUS ......................................................................................... 1!
SUMMARY OF THE ARGUMENT ....................................................................... 2!
ARGUMENT............................................................................................................ 3! I.! The “Gag Order” Provision Frustrates Accountability and Is Inconsistent with Reporting Requirements Found Elsewhere in Federal Law ................. 4! II.! Transparency is Necessary to Facilitate Public Oversight of Government Surveillance Methods ................................................................................... 9! A. Public Reporting of the Government’s Activities is Essential in a Democratic Society .................................................................................... 10! B. Statistical Reports Provide an Effective Mechanism for Public Oversight of Government Surveillance Without Compromising Individual Investigations ............................................................................................. 13! C. Without Proper Oversight, National Security Letters Could Be Used to Circumvent Restrictions on Access to Business Records.......................... 20! D. The Justice Department Inspector General Reports Show That Oversight is Necessary to Curb Misuse of NSL Authorities ..................... 22!
CONCLUSION....................................................................................................... 26!
CERTIFICATE OF COMPLIANCE...................................................................... 27!
CERTIFICATE OF SERVICE ............................................................................... 28!

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TABLE OF AUTHORITIES
CASES Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004), vacated, 449 F.3d 415
(2d Cir. 2006) ........................................................................................................ 5 Doe v. Gonzales, 500 F. Supp. 2d 379 (S.D.N.Y. 2007) ...................................... 5, 7 Doe v. Mukasey. 549 F.3d 86 (2d Cir. 2008)........................................................ 5, 7 In re National Security Letter, 930 F. Supp. 2d 1064 (2013) ................................... 8
STATUTES Electronic Communications Privacy Act
18 U.S.C. § 2709 ................................................................................................... 3 18 U.S.C. § 2709(c)(1) ...................................................................................... 5, 6 18 U.S.C. § 2709(c)(4) .......................................................................................... 6 Fair Credit Reporting Act 15 U.S.C. § 1681u ................................................................................................. 3 15 U.S.C. § 1681u(d)(1)........................................................................................ 5 15 U.S.C. § 1681u(d)(4)........................................................................................ 6 15 U.S.C. § 1681v ................................................................................................. 3 15 U.S.C. § 1681v(c)(1) ........................................................................................ 5 15 U.S.C. § 1681v(c)(4) ........................................................................................ 6 National Security Act of 1947 50 U.S.C. § 3162 ................................................................................................... 3 50 U.S.C. § 3162(b)(1).......................................................................................... 5 50 U.S.C. § 3162(b)(4).......................................................................................... 6 Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. 90-351, 82 Stat. 197.......................................................................................................... 11 18 U.S.C. §§ 2510-2520...................................................................................... 11 18 U.S.C. § 2519(3) ............................................................................................ 15 Right to Financial Privacy Act 12 U.S.C. § 3414(a)(3)(A) .................................................................................... 5 12 U.S.C. § 3414(a)(3)(D) .................................................................................... 6 12 U.S.C. § 3414(a)(5) .......................................................................................... 3 USA Patriot Improvement and Reauthorization Act of 2005, Pub. L. No. 109177, 120 Stat. 192 (Mar. 9, 2006) ......................................................... 4, 5, 18, 23

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18 U.S.C. § 3511(b) .............................................................................................. 6
18 U.S.C. § 3511(b)(2).......................................................................................... 7
18 U.S.C. § 3511(b)(3).......................................................................................... 7
OTHER AUTHORITIES
1 David S. Kris & J. Douglas Wilson, National Security Investigations & Prosecutions 2d (2012) ............................................................................... 4, 6, 22
Admin. Office of the U.S. Courts, Wiretap Reports, http://www.uscourts.gov/Statistics/WiretapReports/wiretap-report2012.aspx (last visited Mar. 24, 2014) ................................................................ 15
Alison Leigh Cowan, Judges Question Patriot Act in Library and Internet Case, N.Y. Times (Nov. 3, 2005)........................................................................ 10
American Bar Association, FISA Resolution (February 10, 2013) .................. 13, 14
Andy Greenberg, As Reports Of Wiretaps Drop, The Government's Real Surveillance Goes Unaccounted, Forbes (July 2, 2012)..................................... 26
Anonymous, My National Security Letter Gag Order, Wash. Post, (Mar. 23, 2007).................................................................................................................... 10
Barton Gellman, The FBI’s Secret Scrutiny, Wash. Post (Nov. 6, 2005)............... 10
EPIC, 2011 Report: Wiretap Authorization Decrease (Jul. 3, 2012) ..................... 17
EPIC, Court Approved Wiretaps Reach a New All-Time High (Jul. 6, 2011) ........ 18
EPIC, Federal and State Wiretaps Up 24%, Primary Target Mobile Devices According to 2012 Report (June 28, 2013) ......................................................... 17
EPIC, Foreign Intelligence Surveillance Act Court Orders—1979-2012 .............. 16
James Madison, Speech in the Virginia Ratifying Convention on the Control of the Military (June 16, 1788), in The History of the Virginia Federal Convention of 1788, with some account by eminent Virginians of that era who were members of that body (Vol. I) p. 130 (Hugh Blair Grigsby et al. eds. 1890) ............................................................................................................ 22
Memorandum on Transparency and Open Government, 2009 Daily Comp. Pres. Doc. 10 (Jan. 21, 2009) .............................................................................. 11
Peter Kadzik, FISA Annual Report to Congress, 2012 (April 30, 2013)................ 18
President’s Review Group on Intelligence and Communications Technologies, Liberty and Security in a Changing World 128 (2013) ... 13, 20, 21
Privacy & Civil Liberties Oversight Board, Report on the Telephone Records Program Conducted Under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court 201 (2014) . 19, 20

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Remarks by the President on Review of Signals Intelligence, 2014 Daily Comp. Pres. Doc. 30 (Jan. 17, 2014)............................................................... 9, 12
Report by the Office of the Inspector General of the Department of Justice on the Federal Bureau of Investigation’s Use of Exigent Letters and Other Informal Requests for Telephone Records: Hearing Before the Subcomm. on the Constitution, Civil Rights, and Civil Liberties of the H. Comm. on the Jud. (Apr. 10, 2010) ...................................................................................... 11
S. Rep. 90-1097 (1968), reprinted in 1968 U.S.C.C.A.N. 2112 ...................... 10, 11
The FISA Amendments Act of 2008: Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the Jud. (May 31, 2012) (Testimony of Marc Rotenberg, Executive Director, EPIC) .................... 13
U.S. Dep’t of Justice, Office of the Inspector Gen., A Review of the FBI’s Use of National Security Letters: Assessment of Corrective Actions and Examination of NSL Usage in 2006 (2008) .............................................. 6, 24, 25
U.S. Dep’t of Justice, Office of the Inspector Gen., A Review of the FBI’s Use of Section 215 Orders for Business Records in 2006 (2008) ........................ 21, 22
U.S. Dep’t of Justice, Office of the Inspector Gen., A Review of the Federal Bureau of Investigation’s Use of Exigent Letters and Other Informal Requests for Telephone Records (2010).................................................. 24, 25, 26
U.S. Dep’t of Justice, Office of the Inspector Gen., A Review of the Federal Bureau of Investigation’s Use of National Security Letters (2007) ........ 23, 24, 25

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!
INTEREST OF AMICUS The Electronic Privacy Information Center (“EPIC”) is a public interest research center in Washington, D.C., established in 1994 to focus public attention on emerging civil liberties issues and to protect privacy, the First Amendment, and other Constitutional values.1 EPIC maintains two of the most popular web sites in the world concerning privacy, epic.org and privacy.org. For twenty years, the Electronic Privacy Information Center has routinely provided information to the public about the government’s electronic surveillance activities, based on the annual reports, required by statute, provided by the Administrative Office of the U.S. Courts and the Attorney General. EPIC reviews these reports, prepares charts and graphs, and publishes news items comparing the most recent data with the earlier so as to determine significant changes in the surveillance practices of federal and state governments. EPIC has attempted to provide similar information to the public about the government’s use of National Security Letter authority. However, the statutory provisions before this Court have made such evaluation impossible. Without additional information about the use of

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1 The parties consent to the filing of this brief. In accordance with FRAP 29, the undersigned states that no monetary contributions were made for the preparation or submission of this brief, and this brief was not authored, in whole or in part, by counsel for a party.
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National Security Letters, EPIC and others will be limited in their ability to inform the public about the scope of government surveillance activities.
SUMMARY OF THE ARGUMENT The government’s use of National Security Letters to collect sensitive personal information is a matter of substantial public controversy. The Inspector General has determined that this authority has been used improperly and many questions remain about the full scope of this investigative technique. Information about the use and effectiveness of this authority is necessary to prevent misuse and ensure accountability. The provisions currently before this Court prevent necessary disclosure that would enable public oversight and should be overturned. Comprehensive statistical reports on the use of surveillance authorities by law enforcement have been provided for decades without compromising individual investigations. For organizations such as EPIC, the availability of this information is critical to assess government surveillance programs that impact personal privacy. However, the current NSL provisions do not permit the necessary disclosures to enable meaningful analysis. Separate from the provider’s right to speak freely about the government’s requests for customer information without fear of criminal prosecution is the public’s right to know about the government’s extensive collection of the public’s personal information. The NSL “gag order” provision frustrates this fundamental right.

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ARGUMENT National Security Letter (“NSL”) authorities currently allow the Federal Bureau of Investigation to collect an extraordinary amount of sensitive personal information on American citizens from private companies without meaningful judicial review, notice to a potential target, or public reporting on the activity. See 18 U.S.C. § 2709 (Electronic Communications Privacy Act); 12 U.S.C. § 3414(a)(5) (Right to Financial Privacy Act); 15 U.S.C. §§ 1681u-1681v (Fair Credit Reporting Act); 50 U.S.C. § 3162 (National Security Act of 1947). Under these NSL provisions, companies are compelled to disclose their customers’ private records and, in almost every case, are simultaneously prohibited from disclosing any details about (even the mere existence of) the government’s requests.! These blanket prohibitions on disclosure of information about the use of NSLs not only infringe the First Amendment rights of recipients, they also impact the public’s ability to know about the collection of their information and the conduct of their government. The public’s concern about this particular activity is well founded. The Department of Justice’s Inspector General has uncovered significant abuses in the use of NSL authority, and recent reports by expert panels have recommended significant reform of NSL authority. But these reforms cannot

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be achieved if those who are subject to these provisions face criminal prosecution for even discussing such cases.! I.The “Gag Order” Provision Frustrates Accountability and Is Inconsistent
with Reporting Requirements Found Elsewhere in Federal Law Under the current National Security Letter authority, the FBI and other
federal agencies obtain the private financial and communications records of U.S. consumers and simultaneously prohibit the recipients of NSLs from revealing even the existence of these requests. The nondisclosure provision does not differentiate between the release of case-specific information and the aggregate data that has historically been released about the government’s use of surveillance authorities without compromising individual investigations. As a result, there is no effective means for the public to evaluate the use and efficacy of the authorities that were significantly expanded in the USA PATRIOT Act. Such restrictions have raised substantial First Amendment concerns as to the speech of those receiving the request. Prior to the amendments adopted in the USA Patriot Improvement and Reauthorization Act of 2005, Pub. L. No. 109-177, 120 Stat. 192 (Mar. 9, 2006), NSL recipients were prohibited from disclosing any information about the letters they received, even where disclosure was necessary to obtain legal advice or to implement the order. 1 David S. Kris & J. Douglas Wilson, National Security Investigations & Prosecutions 2d § 20:10, at 752 (2012). These provisions were ruled unconstitutional under the First Amendment, Doe v. Ashcroft, 334 F. Supp.

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2d 471 (S.D.N.Y. 2004), vacated, 449 F.3d 415 (2d Cir. 2006), and were subsequently amended by Congress. The amended nondisclosure provisions were again ruled unconstitutional, Doe v. Gonzales, 500 F. Supp. 2d 379 (S.D.N.Y. 2007),2 before being narrowly construed by the Court of Appeals for the Second Circuit in Doe v. Mukasey. 549 F.3d 861, 883-85 (2d Cir. 2008). But the current FBI procedures, adopted subsequent to Mukasey, are not sufficiently narrow to permit aggregate reporting from NSL recipients. Without a carve-out for public transparency reports, the NSL nondisclosure provisions shield the use of NSLs from meaningful scrutiny.!
Under the amended statute, the FBI may prohibit an NSL recipient from disclosing any information about the letter as long as an authorized official certifies that 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.” 18 U.S.C. § 2709(c)(1).3 And even though the nondisclosure requirements are no longer imposed by default, the FBI has asserted them in nearly every case. See U.S. Dep’t of Justice, Office of the Inspector Gen.,

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2 The case never reached a final resolution on appeal because Congress passed new NSL provisions under the Patriot Reauthorization Act. Pub. L. No. 109-177, § 116, 120 Stat. 192 (Mar. 9, 2006). 3 See also 15 U.S.C. § 1681u(d)(1); 15 U.S.C. § 1681v(c)(1); 12 U.S.C. § 3414(a)(3)(A); 50 U.S.C. § 3162(b)(1).
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A Review of the FBI’s Use of National Security Letters: Assessment of Corrective Actions and Examination of NSL Usage in 2006 10 (2008) [hereinafter 2008 IG Report] (“97% of the NSLs in the random sample imposed non-disclosure and confidentiality obligations on recipients”).4
The statute does not require that the official identify the harm that will result or identify the scope of the disclosure that would cause harm. There is a narrow exception in the statute to allow disclosure as “necessary to comply with the request” or to “an attorney to obtain legal advice or legal assistance with respect to the request.” 18 U.S.C. § 2709(c)(1). But even where disclosure is necessary to comply with the letter, the FBI may require that the recipient notify the agency and provide the identities of those notified.5
The recipient of an NSL may request that a court modify or set aside the nondisclosure order that accompanies an NSL. 18 U.S.C. § 3511(b). See generally 1 Kris & Wilson § 20:10, at 755. If the petition is filed within one year of the date the recipient receives the NSL, the court may modify the order only if it finds that “there is no reason to believe that disclosure may endanger the national security of

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4 Available at http://www.justice.gov/oig/special/s0703b/final.pdf. 5 18 U.S.C. § 2709(c)(4); 15 U.S.C. § 1681u(d)(4); 15 U.S.C. § 1681v(c)(4); 12 U.S.C. § 3414(a)(3)(D); 50 U.S.C. § 3162(b)(4).
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the United States” or other enumerated interests.6 18 U.S.C. § 3511(b)(2). In making this determination, the court must treat an official certification as “conclusive unless the court finds that the certification was made in bad faith.” Id. If the petition is filed more than one year after receipt of the NSL then the government must either “terminate the nondisclosure requirement or re-certify that disclosure may result in danger to national security” within 90 days. 18 U.S.C. § 3511(b)(3).
After Congress enacted these amended nondisclosure provisions, they were ruled unconstitutional in Doe v. Gonzales. 500 F. Supp. 2d 379 (S.D.N.Y. 2007). On appeal, in Doe v. Mukasey, 549 F. 3d 861 (2d Cir. 2008), the Second Circuit affirmed in part and only upheld the remaining provisions after it imposed new constraints on the FBI’s ability to authorize and enforce its nondisclosure orders. Id. at 879-82. The court made clear that the government bears the burden of persuading “a district court that there is a good reason to believe that disclosure may result in one of the enumerated harms.” Id. at 876. But the injunction issued by the court in Doe does not apply outside the Second Circuit. And even under these new constraints, the nondisclosure orders are not narrow enough to allow for aggregate public reporting of FBI orders.

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6 Such as “interfere with a criminal, counterintelligence or counterterrorism
investigation, interfere with diplomatic relations, or endanger the life or physical
safety of any person.”

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The Government has argued that the procedures it has adopted for issuing
and enforcing NSLs nationwide comply with the rules adopted in Doe. (Gov’t Br.
at 11). Yet, the district court found that it had not been “presented with any
evidence” that the Department of Justice “has implemented regulations” or a
formal policy “to impose the construction and safeguards mandated by the Second
Circuit in Doe.” In re Nat’l Security Letter, 930 F. Supp. 2d 1064, 1073 (2013)
(emphasis in original). Any special NSL procedures adopted by the Department of
Justice on a voluntary basis are insufficient to cure the core transparency flaw in
the NSL authorities because even the procedures for these discretionary
determinations are kept secret. Without access to the procedures or any other
information about the use of these NSL authorities, there is effectively no way for
recipients or the public to ensure that the government is complying with the
necessary restrictions.
As President Obama recently stated on this very topic:
Given the unique power of the state, it is not enough for leaders to say: Trust us. We won’t abuse the data we collect. For history has too many examples when that trust has been breached. Our system of government is built on the premise that our liberty cannot depend on the good intentions of those in power. It depends on the law to constrain those in power. Remarks by the President on Review of Signals Intelligence, 2014 Daily Comp.

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Pres. Doc. 30 (Jan. 17, 2014).7 Yet, in this instance, the American public is being asked to trust the voluntary policy changes of the Department of Justice. President Obama himself has said trust is not enough and that the American public deserves instead to “depend upon the law to constrain those in power.” Id. !

II. Transparency is Necessary to Facilitate Public Oversight of Government Surveillance Methods The electronic surveillance methods used by the FBI and other government
agencies have been the subject of intense public debate,8 internal audits and
reports,9 review by Congress,10 yet little information has been made available to

the public. Long ago Congress recognized that meaningful review of electronic

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7 Available at http://www.whitehouse.gov/the-press-office/2014/01/17/remarkspresident-review-signals-intelligence. 8 See e.g., Barton Gellman, The FBI’s Secret Scrutiny, Wash. Post (Nov. 6, 2005) available at http://www.washingtonpost.com/wpdyn/content/article/2005/11/05/AR2005110501366.html; Alison Leigh Cowan, Judges Question Patriot Act in Library and Internet Case, N.Y. Times (Nov. 3, 2005), available at http://www.nytimes.com/2005/11/03/nyregion/03library.html?ex=1175918400&en =ecfd3350a291ea3c&ei=5070&_r=0; Anonymous, My National Security Letter Gag Order, Wash. Post, (Mar. 23, 2007), available at http://www.washingtonpost.com/wpdyn/content/article/2007/03/22/AR2007032201882_pf.html. 9 See e.g., U.S. Dep’t of Justice, Office of the Inspector Gen., A Review of the Federal Bureau of Investigation’s Use of National Security Letters (2007), available at www.justice.gov/oig/special/s0703b/final.pdf. 10 Report by the Office of the Inspector General of the Department of Justice on the Federal Bureau of Investigation’s Use of Exigent Letters and Other Informal Requests for Telephone Records: Hearing Before the Subcomm. on the Constitution, Civil Rights, and Civil Liberties of the H. Comm. on the Jud. (Apr. 10, 2010), available at www.fas.org/irp/congress/2010_hr/exigent.pdf
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surveillance requires the collection and publication of aggregate data that is available to the public and the press. In 1968 Congressed passed a federal wiretap Act,11 with the dual purpose of “(1) protecting the privacy of wire and oral communications, and (2) delineating on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized.” S. Rep. 90-1097 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2153.
Congress recognized that the public reporting was necessary to facilitate oversight of this new authority. Congress established reporting requirements “intended to form the basis for a public evaluation” of the surveillance authorities to “ensure the community that the system of court-order electronic surveillance envisioned by the proposed chapter is properly administered and will provide a basis for evaluating its operation.” Id. at 2196, codified at 18 U.S.C. § 2519. However, similar information is not available for the use of NSL authority.
A. Public Reporting of the Government’s Activities is Essential in a Democratic Society At the beginning of his tenure, President Obama made clear that his “Administration is committed to creating an unprecedented level of openness in government,” and emphasized that “information maintained by the Federal Government is a national asset.” Memorandum on Transparency and Open

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11 Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. 90-351, 82 Stat. 197. The wiretap provisions are codified at 18 U.S.C. §§ 2510-2520.
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Government, 2009 Daily Comp. Pres. Doc. 10 (Jan. 21, 2009).12
The President reaffirmed this commitment to transparency in his recent
speech on reform of the NSA surveillance programs:
There is an inevitable bias, not only within the intelligence community but among all of us who are responsible for national security, to collect more information about the world, not less. So in the absence of institutional requirements for regular debate and oversight that is public as well as private or classified, the danger of government overreach becomes more acute . . . .
Remarks by the President on Review of Signals Intelligence, 2014 Daily Comp.
Pres. Doc. 30 (Jan. 17, 2014).13 Specifically, the President addressed the need for

additional oversight of the use of National Security Letters:
Now, these are cases in which it’s important that the subject of the investigation, such as a possible terrorist or spy, isn’t tipped off. But we can and should be more transparent in how government uses this authority. I’ve therefore directed the attorney general to amend how we use national security letters so that this secrecy will not be indefinite, so that it will terminate within a fixed time unless the government demonstrates a real need for further secrecy. We will also enable communications providers to make public more information than ever before about the orders they have received to provide more data to the government.
Id.
The President’s conclusion reflects the recommendations of an expert panel

selected to recommend changes to intelligence programs in light of changing
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12 Available at http://www.whitehouse.gov/the_press_office/TransparencyandOpenGovernment 13 Available at http://www.gpo.gov/fdsys/pkg/DCPD-201400030/pdf/DCPD201400030.pdf.

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communications technologies. The Review Group stated “When it is possible to
promote transparency without appreciably sacrificing important competing
interests, we should err on the side of transparency.” President’s Review Group on
Intelligence and Communications Technologies, Liberty and Security in a
Changing World 128 (2013).14 The Review Group specifically identified the
reporting of aggregate statistics as a priority:
the government should, to the greatest extent possible, report publically on the total number of requests made and the number of individuals whose records have been requested. These totals inform Congress and the public about the overall size and trends in a program, and are especially informative when there are major changes in the program. Id. The Review Group’s recommendations also follow from earlier
recommendations made by EPIC and others to promote greater accountability in
the use of electronic surveillance authority. See, e.g., The FISA Amendments Act of
2008: Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Security
of the H. Comm. on the Jud. (May 31, 2012) (Testimony of Marc Rotenberg,
Executive Director, EPIC).15
This need for greater public reporting was also endorsed by a special
committee of the American Bar Association that undertook an evaluation of the
expanded use of the FISA, shortly after 9-11, to ensure that Government conduct
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14 Available at http://www.whitehouse.gov/sites/default/files/docs/2013-1212_rg_final_report.pdf. 15 Available at http://epic.org/privacy/testimony/EPIC-FISA-Amd-Act-TestimonyHJC.pdf
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complied with constitutional principles while effectively and efficiently safeguarding national interests. American Bar Association, FISA Resolution (February 10, 2013).16 The ABA report stressed the importance of both the Government’s legitimate intelligence gathering activity and the protection of individuals from unlawful government intrusion. The ABA recommended that the Congress conduct regular and timely oversight, that FISA orders be sought only when the government has a “significant” foreign intelligence purpose, and that the Government make available an “annual statistical report on FISA investigations, comparable to the reports prepared by the Administrative Office of the United States Courts pursuant to 18 U.S.C. § 2519.” Id.
Yet the provisions under review before this Court provide for indefinite gag orders regarding national security letters, issued to the recipients without regard for the transparency interest at stake.
B. Statistical Reports Provide an Effective Mechanism for Public Oversight of Government Surveillance Without Compromising Individual Investigations While the government has an important interest in maintaining the integrity of its investigations, it has done so in the law enforcement context for decades while still providing for aggregate reporting on the use of electronic surveillance techniques. The annual reports prepared by the Administrative Office of the U.S.
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16 Available at http://epic.org/privacy/terrorism/fisa/aba_res_021003.html.

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Courts on the use of Title III Wiretap Authorities provide remarkably useful data for evaluating surveillance methods without compromising any particular investigations.17 EPIC and many others, including press organizations, review these reports closely and use them to inform the public about important developments related to government surveillance.
The Administrative Office of the US Courts is required by statute to report to Congress annually “a full and complete report concerning the number of applications for orders authorizing or approving the interception of wire, oral, or electronic communications” made at the federal and state level. 18 U.S.C. § 2519 (3). This is commonly known as the Wiretap report and has been submitted annually since 1969. The report of the Administrative Office is a remarkable document, perhaps the most comprehensive report on wiretap authority produced by any government agency in the world.
These comprehensive reports highlight various types of information in statistical tables.18 The annual Wiretap Reports contain information such as the

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17 See, e.g., Admin. Office of the U.S. Courts, Wiretap Reports, http://www.uscourts.gov/Statistics/WiretapReports/wiretap-report-2012.aspx (last visited Mar. 24, 2014). 18 There are nine tables: Table 1—Jurisdictions with Statues Authorizing the Interception of Wire, Oral, or Electronic Communications Table 2—Intercept Orders Issued by Judges Table 3—Major Offenses for Which Court-Authorized Intercepts Were Granted Table 4—Summary of Interceptions of Wire, Oral, or Electronic Communications
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overall number of intercept orders issued by judges, the average cost per order, as well as the arrests and convictions resulting from intercepts installed, among other data. The data provided in these reports provide EPIC and others the data necessary to evaluate changes in government surveillance at the state and federal level, the efficacy of these wiretaps, and the costs of the intercepts. This information allows the public, the press, and policymakers to evaluate important trends in the use of this investigative technique.
EPIC has used the information provided by these reports to construct charts and graphs demonstrating the use of electronic surveillance authority. EPIC has tracked wiretap orders from 1968-2012,19 noting the total number of authorized orders each year, and the number of federal and state orders. EPIC also tracks Foreign Intelligence Surveillance Act Court (“FISC”) orders, including pen register orders, traditional FISA orders, and NSL and 215 orders. 20 EPIC analyzes the FISA Pen Register applications four ways: by noting the overall number of pen

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Table 5—Average Cost Per Order Table 6—Types of Surveillance Used, Arrests, and Convictions for Intercepts Installed Table 7—Authorized Intercepts Granted Table 8—Summary of Supplementary Reports for Intercepts Terminated Table 9—Arrests and Convictions Resulting from Intercepts Installed Available at http://www.uscourts.gov/Statistics/WiretapReports/wiretap-report2012.aspx 19 Id. 20 See EPIC, Foreign Intelligence Surveillance Act Court Orders—1979-2012, available at http://epic.org/privacy/wiretap/stats/fisa_stats.html.
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register applications, if the applications have been modified or rejected by the FISC, and how many U.S. persons have been targeted for pen registers. EPIC analyzes the traditional FISA Surveillance Orders by noting the number of applications presented each year and then the number approved or rejected. EPIC analyzes the 215 orders by noting the number of 215 applications, the number modified by the FISC, and the number of combined 215 and pen register applications (if any) that particular year.
This information is critical to evaluating both the effectiveness and the need for various types of Government surveillance activities. For example, in 2012 EPIC reviewed the wiretap report and found that wiretaps were “up 24%” and that encryption had affected law enforcement’s ability to conduct surveillance for the first time since the Administrative Office began collecting encryption data.!EPIC, Federal and State Wiretaps Up 24%, Primary Target Mobile Devices According to 2012 Report (June 28, 2013).21! Similarly, EPIC reported that “wiretap orders dropped 14 percent in 2011,” which “resulted primarily from a drop in applications for intercepts in narcotics offenses.” EPIC, 2011 Report: Wiretap Authorization Decrease (Jul. 3, 2012).22 In 2010, EPIC reported that wiretaps had “reached an all time high” with an increase in the “average number of persons whose communications were intercepted” per wiretap order, even though “only 26% of
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21 Available at http://epic.org/2013/06/federal-and-state-wiretaps-up.html 22 Available at http://epic.org/2012/07/2011-report-wiretap-authorizat.html.
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intercepted communications in 2010 were incriminating.” EPIC, Court Approved Wiretaps Reach a New All-Time High (Jul. 6, 2011).23 Aggregate statistical reports have provided much needed public accountability of federal wiretap practice and that is the approach that should be followed now for NSLs.
By contrast, EPIC currently analyzes the NSL information in only two categories: the number of NSL applications concerning U.S. persons and the number of U.S. persons involved in NSL applications, as this is the only information available. Presently the DOJ releases the aggregate number of NSLs and the aggregate number of U.S. persons affected by NSLs but no other information.24 Aggregate reporting of more detailed NSL information could provide valuable data on trends and differences amongst the various NSLs that are served across the country. It would be of great value to the public to have data on NSLs broken down by region, by FBI field-office, by whether the NSL had a certified non-disclosure provision or not, what type of data the NSL is seeking to uncover, the efficacy of the NSL in question, and the general industries which are receiving NSLs. All of this information could be delivered in aggregate form (as

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
23 Available at http://epic.org/2011/07/court-approved-wiretaps-reach.html. 24 USA PATRIOT Improvement and Reauthorization Act, Pub. L. 109-177 § 118 (2006). The numbers are reported to Congress in the FISA Annual report. See e.g., Peter Kadzik, FISA Annual Report to Congress, 2012 (April 30, 2013), available at http://www.fas.org/irp/agency/doj/fisa/2012rept.pdf.
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has been done in the case of the Wiretap Act) without impairing the success of these investigations.
Currently, we lack data on the type of information being sought and the results of the investigations that take place through NSLs. The Wiretap report, by contrast, provides a granular examination of the various regions, costs of investigation, the efficacy of the various wiretaps, and numerous other factors, which provide the public insight into what is being done in their name.
Both the Privacy and Civil Liberties Oversight Board (“PCLOB”) and the President’s Review Group on Intelligence and Communications Technologies have called for a greater release of aggregate statistics about electronic surveillance activities. In the recent report on the government’s collection of telephone records, the PCLOB stated that “One way to understand and assess any government program is numerically. . . .Periodic public reporting on surveillance programs is a valuable tool in promoting accountability and public understanding.” Privacy & Civil Liberties Oversight Board, Report on the Telephone Records Program Conducted Under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court 201 (2014).25 The report emphasized that “the publication of additional numerical information on the frequency with which various surveillance authorities are being used would be possible without
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
25 Available at http://www.pclob.gov/SiteAssets/Pages/default/PCLOB-Report-onthe-Telephone-Records-Program.pdf.
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allowing terrorists to improve their tradecraft.” Id. The report also found that current rules limit the ability “of private sector entities to disclose to their customers the scope of government surveillance or data disclosure demands” and noted the value of permitting “reasonable disclosures of aggregate statistics that would be meaningful without revealing sensitive government capabilities or tactics.” Id. at 202.
The President’s Review Group report recommended several substantial reforms of the procedures for issuing NSLs.26 Specifically, the Review Group recommended that non-disclosure orders only be issued after a judicial finding of necessity, should only be in effect for 180 days, and never prevent the recipient of an order from being able to challenge the order. Liberty and Security in a Changing World at 122-23. The Review Group also emphasized that recipients of NLS should be able to disclose general information and aggregate statistics on the NSL orders, as well as allow the government to disclose aggregate statistics. Id. at 123-24. The Review Group further cautioned that all government actions related to its surveillance programs should be undertaken “only with due consideration of and respect for the strong presumption of transparency that is central to democratic governance.” Id. at 124. !

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26 Of the Review Group’s 46 recommendations, 6 involved changes to NSL procedures.
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C. Without Proper Oversight, National Security Letters Could Be Used to Circumvent Restrictions on Access to Business Records Transparency in the government’s use of National Security Letters is especially important given the overlap between NSLs and the controversial 215 telephone record collection program. The President’s Review Group recently noted that “there have been serious compliance issues in the use of NSLs,” id. at 91, and that “it is essential that the standards and processes for issuance of NSLs match as closely as possible the standards and processes for issuance of section 215 orders. Otherwise, the FBI will naturally opt to use NSLs whenever possible in order to circumvent the more demanding—and perfectly appropriate—section 215 standards.” Id. at 93 n. 83. The Department of Justice’s Inspector General found that the FBI had issued NSLs, “after the FISA court, citing First Amendment concerns, had twice declined to sign Section 215 orders in the same investigation.” U.S. Dep’t of Justice, Office of the Inspector Gen., A Review of the FBI’s Use of Section 215 Orders for Business Records in 2006 5 (2008) [hereinafter Section 215 IG Report]. The FBI’s justification “was that as a matter of separation of powers, the FISA Court could not order the FBI to close an investigation, and while the court’s judgment on the First Amendment question necessarily prevailed under Section 215, the FBI’s own contrary interpretation necessarily prevailed with respect to interpretation of the NSI Guidelines and (to the extent applicable) the First Amendment proviso in the

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NSL statutes.” 1 Kris & Wilson § 20:8, 749. But, as the Inspector General report emphasized, the NSL provisions “have the same First Amendment caveat as Section 215 requests and the FBI issued the NSLs based on the same factual predicate, without further reviewing the underlying investigation to ensure that it was not premised solely on protected First Amendment conduct.” Section 215 IG Report at 5.
Thus in the past the Department of Justice has issued NSLs to obtain the same information that the Foreign Intelligence Surveillance Court had prohibited it from obtaining under Section 215. The public would have no knowledge this occurred at all, were it not for the Inspector General Report. Aggregate data on when and if NSLs are issued in cases where Section 215 orders have been denied will allow the public to be aware of these situations, without damaging the integrity of the ongoing investigations. It is precisely this type of “gradual and silent encroachment” that our the founders warned would lead to greater “abridgement of the freedom of the people” than by “violent and sudden usurpations.” James Madison, Speech in the Virginia Ratifying Convention on the Control of the Military (June 16, 1788), in The History of the Virginia Federal Convention of 1788, with Some Account by Eminent Virginians of That Era Who Were Members of That Body (Vol. I) p. 130 (Hugh Blair Grigsby et al. eds., 1890).

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Public vigilance regarding secret interpretation of the law is essential, and transparency is necessary to facilitate such oversight.
D. The Justice Department Inspector General Reports Show That Oversight is Necessary to Curb Misuse of NSL Authorities The Inspector General’s (“OIG”) initial reports on the FBI’s use of NSL authority found significant violations of law. The subsequent reports also reflected improved compliance by the FBI. These reports show that public reporting can improve compliance, without endangering the FBI’s ability to conduct investigations relevant to national security. Yet even the IG’s reports have failed to address the ongoing problem with the “gag” order or the absence of routine reporting on the use of NSL authority. Under the Patriot Reauthorization Act of 2005, the Department of Justice Office of the Inspector General (OIG) is required to review “the effectiveness and use, including any improper or illegal use, of national security letters issued by the Department of Justice.” Pub. L. No. 109-177 § 119. The OIG released its first report, covering calendar years 2003 through 2005, on March 9, 2007. U.S. Dep’t of Justice, Office of the Inspector Gen., A Review of the Federal Bureau of Investigation’s Use of National Security Letters (2007).27 The OIG then issued two

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
27 Available at http://www.justice.gov/oig/special/s0703b/final.pdf.
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follow up reports over the next few years, covering FBI corrective actions and investigating abuses and illegalities discovered in the first report.28
The FBI is required to report to Congress on the number of NSLs issued; the OIG found in their first report that the FBI underreported this number. The OIG review looked at 77 case files containing 293 NSLs from four separate FBI field offices issued in the 2003-2005 period. This review found that there were 17% more NSLs in the sample of case files than in FBI reporting databases. Id. at 32. Delays in data entry also caused about 4,600 NSLs to not be reported to Congress. Id. at 33. The OIG concluded that the FBI database significantly understates the number of NSL requests issued, and that Congress has been misinformed about the scale of the usage of the NSL authority.
The report further stated that violations are supposed to be reported by the FBI to the Intelligence Oversight Board. During the 3-year period in question, the FBI self-reported 26 violations out of the 140,000 NSLs issued. The OIG, however, found 22 potential violations out of the sample of 293 NSLs it reviewed. Id. at 69. The OIG has stated that there is no indication that the 293 NSLs it reviewed are not representative of all of the NSLs issued, thus indicating that the FBI is failing to self-report a very significant number of violations. Id. at 84.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
28 See 2008 IG Report; U.S. Dep’t of Justice, Office of the Inspector Gen., A Review of the Federal Bureau of Investigation’s Use of Exigent Letters and Other Informal Requests for Telephone Records (2010), available at http://www.justice.gov/oig/special/s1001r.pdf.
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The OIG also found over 700 “exigent letters,” which are not authorized by statute and some of which appear to have been issued when no exigency or emergency existed. Id. at 86. These letters requested records from telephone companies and promised that proper subpoenas had been submitted or would follow. However the OIG found no confirmation that subpoenas, NSLs, or other proper process did follow or had in fact been submitted.
The second Inspector General Report found similar errors in the use of NSLs by the FBI in 2006 and also found that the FBI’s Field Review “did not capture all NSL-related possible intelligence violations in the files it reviewed and therefore did not provide a fully accurate baseline from which to measure future improvement.” 2008 IG Report at 8.29 The report also found “that 97% of the NSLs in the random sample imposed non-disclosure and confidentiality obligations on recipients.” Id. at 10.
The third Inspector General Report evaluated the 739 exigent letters requested by the FBI, identified in the first report. This report detailed substantial illegality and lack of compliance with the proper NSL provisions. U.S. Dep’t of Justice, Office of the Inspector Gen., A Review of the Federal Bureau of Investigation’s Use of Exigent Letters and Other Informal Requests for Telephone Records 257-59 (2010). Most disturbingly, the IG report found the FBI put forward

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29 Available at http://www.justice.gov/oig/special/s0803b/final.pdf.
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a novel legal theory (which is redacted in the report) to support the collection of phone records, “only after the OIG found repeated misuses of its statutory authority to obtain telephone records through NSLs or the ECPA’s emergency voluntary disclosure provisions.” Id. at 268. These findings would not have been possible without examination by the Inspector General but are not sufficient to ensure that the FBI’s use of NSLs are lawful and in compliance with all relevant procedures. The FBI should disclose comprehensive aggregate statistics to maintain credibility with the American public.
The Inspector General Reports helped shed light on the FBI’s practices with NSLs and provide evidence that the FBI has improved compliance. However, this is an argument for more oversight, not less. The success of the Inspector General Reports argues for continued, institutionalized oversight. See, e.g., Andy Greenberg, As Reports Of Wiretaps Drop, The Government's Real Surveillance Goes Unaccounted, Forbes (July 2, 2012) (arguing for enhanced reporting of electronic surveillance.)30
Aggregate statistics would complement the mandated reviews by the Inspector General and provide essential data necessary for the public to analyze and evaluate surveillance authorities used in national security investigations.

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30 Available at http://www.forbes.com/sites/andygreenberg/2012/07/02/as-reportsof-wiretaps-drop-the-governments-real-surveillance-goes-unaccounted/.
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Without this information, the public cannot effectively evaluate the programs that its representatives vote to renew or to reject.

CONCLUSION Amicus respectfully requests this Court affirm the lower court’s decision.

Respectfully submitted,

___/s/ Marc Rotenberg__________ Marc Rotenberg
Counsel of Record Alan Butler David Husband Electronic Privacy Information Center 1718 Connecticut Ave. NW, Suite 200 Washington, DC 20009 (202) 483-1140

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CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of 7,000 words of Fed. R. App. P. 29(d) and Fed. R. App. P. 32(B)(i). This brief contains 5,743 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Office Word in 14 point Times New Roman style.

Dated: March 27, 2014

___/s/ Marc Rotenberg__________ Marc Rotenberg
Counsel of Record Alan Butler David Husband Electronic Privacy Information Center 1718 Connecticut Ave. NW, Suite 200 Washington, DC 20009 (202) 483-1140

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CERTIFICATE OF SERVICE I hereby certify that on this 27th Day of March, 2014, the foregoing Brief of Amicus Curiae Electronic Privacy Information Center in Support of Petitioners was served via U.S. Mail on: Susan Soong, Chief Deputy Clerk – Operations U.S. Court of Appeals for the Ninth Circuit P.O. Box 193939 San Francisco, CA 94119-3939

Dated: March 27, 2014

___/s/ Marc Rotenberg___________ Marc Rotenberg
Counsel of Record Alan Butler David Husband Electronic Privacy Information Center 1718 Connecticut Ave. NW, Suite 200 Washington, DC 20009 (202) 483-1140

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 Case: 13-16732

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No. 13-16732
UNDER SEAL

DktEntry: 35

Page: 1 of 41

IN THE
United States Court of Appeals
FOR THE NINTH CIRCUIT
d
In Re: NATIONAL SECURITY LETTER,

UNDER SEAL, — v.—

Petitioner-Appellant,

ERIC HOLDER, JR., ATTORNEY GENERAL; UNITED STATES DEPARTMENT OF JUSTICE; FEDERAL BUREAU OF INVESTIGATION,
Respondents-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA CASE NO. 13-CV-1165 SI HONORABLE SUSAN ILLSTON, DISTRICT JUDGE

BRIEF OF AMICI CURIAE FLOYD ABRAMS INSTITUTE FOR FREEDOM OF EXPRESSION AND FIRST AMENDMENT
SCHOLARS IN SUPPORT OF THE PARTIES UNDER SEAL

MICHAEL J. S TRUMWASSER ADRIENNA WONG* STRUMWASSER & WOOCHER LLP 10940 Wilshire Boulevard, Suite 2000 Los Angeles, California 90024 (310) 576-1233

JONATHAN MANES BJ ARD NABIHA SYED* FLOYD ABRAMS INSTITUTE FOR
FREEDOM OF EXPRESSION YALE LAW SCHOOL P.O. Box 208215 New Haven, Connecticut 06520 (203) 432-9387

Attorneys for Amici Curiae

*Not admitted in this jurisdiction

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CORPORATE DISCLOSURE STATEMENT
None of the amici has a parent corporation and no corporation owns 10% or more of any of the amici’s stock.
STATEMENT OF COMPLIANCE WITH RULE 29(C)(5)
Pursuant to Federal Rule of Appellate Procedure 29( c)(5), amici certify that no party’s counsel authored this brief in whole or in part, no party or party’s counsel contributed m oney that was inte nded to fund preparing or subm itting this brief, and no person—other than amici, their mem bers, or their counsel — contributed money that was intended to fund preparing or submitting this brief.

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TABLE OF CONTENTS

INTEREST OF THE AMICI CURIAE AND CONSENT TO FILE .........................1

I. NSL NONDISCLOSURE ORDERS ARE CLASSIC PRIOR RESTRAINTS AND ARE PRESUMPTIVELY UNCONSTITUIONAL. .........3

A. NSL Gag Orders Are Cl assic Prior Restraints Because They Prohibit Speech Before Its Communication. .................................................................4

B. NSL Gag Orders Are Classic Prior Restraints Because They Subject Far More Speech to Executive Control Than Is Otherwise Permitted............5

C. NSL Gag Orders Are Cl assic Prior Restraints Because Th ey Vest the Executive with Significant Discretion To Censor Speech. .............................7

D. NSL Gag Orders Are Cl assic Prior Restraints Because They Permanently Forbid Speech b y Executive Fiat Unless and Until a Judge Decides Otherwise. ..............................................................................11

E. NSL Gag Orders Ar e Classic Prior Restraints Because They Operate

in Secrecy, Shrouding Their Operation and Effects From

Public

Scrutiny and Encouraging Their Overuse. ....................................................13

F. Attempts To Distinguish t he NSL Gag Order Schem e from Other Classic Prior Restraints Fail. .........................................................................14

II. THE NSL GAG ORDER SCHEME LACKS THE PROCEDURAL SAFEGUARDS REQUIRED OF PRIOR RESTRAINTS. ................................19

III.THE NSL GAG ORDER SCHEME FAILS THE STRINGENT SUBSTANTIVE TEST APPLICABLE TO PRIOR RESTRAINTS.................21

A. Prior Restraints Are Unconstituti onal Unless Disclosure Would Certainly Result in Grave Harm, There Are No Less Burdensome Means To Prevent Such Harm , and the Restraint Would Be Effective in Preventing the Threatened Harm...............................................................21

B. The NSL Gag Order Scheme, On Its Face, Cannot Satisfy the Scrutiny Applicable to Prior Restraints. .......................................................................25

1. NSL gags can be issued upon the mere possibili ty of harm, in violation of Pentagon Papers and Nebraska Press. .................................25

2. NSL gags forbid recipients from saying anything about the NSL, whether or not specific disclosures pose a risk in a particular case. ........27

C. In Operation and Effect, th e NSL Gag Order Scheme Censors Public Discussion of the FBI’s Use of NSLs. ...........................................................28

CONCLUSION ........................................................................................................30

APPENDIX (List of Amici Curiae).........................................................................32

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TABLE OF AUTHORITIES
Cases
Alexander v. United States, 509 U.S. 544 (1993) ........................................................................................ 3, 13
Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963) ...............................................................................................21
Butterworth v. Smith, 494 U.S. 624 (1990) ...............................................................................................9
Carroll v. President & Comm’rs of Princess Anne, 393 U.S. 175 (1968) .............................................................................................12
CBS Inc. v. Davis, 510 U.S. 1315 (1994) ...........................................................................................22
Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010) .............................................................................................16
City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750 (1988) .............................................................................................13
Freedman v. Maryland, 380 U.S. 51 (1965) ...............................................................................................20
Hoffman-Pugh v. Keenan, 338 F.3d 1136 (10th Cir. 2003) .............................................................................9
In re Nat’l Sec. Letter, 930 F. Supp. 2d 1064 (N.D. Cal. 2013). ...................................................... passim
John Doe, Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008)......................................................................... passim
Kreisner v. City of San Diego, 1 F.3d 775 (9th Cir. 1993)......................................................................... 7, 11, 13
Marks v. United States, 430 U.S. 188 (1977) .............................................................................................23
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Mills v. Alabama, 384 U.S. 214 (1966) .............................................................................................29
N.A.A.C.P., Western Region v. City of Richmond, 743 F.2d 1346 (9th Cir. 1984) .............................................................................20
N.Y. Times v. United States, 403 U.S. 713 (1971) .....................................................................................passim
Near v. Minnesota, 283 U.S. 697 (1931) ........................................................................................ 4, 12
Neb. Press Ass’n v. Stuart, 427 U.S. 539 (1976) .....................................................................................passim
Org. for a Better Austin v. Keefe, 402 U.S. 415 (1971) ...................................................................................... 12, 21
Se. Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) ...............................................................................................5
Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) ...............................................................................................17
Snyder v. Phelps, 131 S. Ct. 1207 (2011) .........................................................................................29
Staub v. City of Baxley, 355 U.S. 313 (1958) ...............................................................................................7
United States v. Salameh, 992 F.2d 445 (2d Cir. 1993).................................................................................27
Statutes
18 U.S.C. § 2709 ..............................................................................................passim
18 U.S.C. § 3511 ........................................................................................... 8, 12, 25
Fed. R. Crim. P. 6(e) ..................................................................................................9
Other Authorities
4 William Blackstone, Commentaries .......................................................................4 iv

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American Civil Liberties Union, Internet Archive’s NSL Challenge (Apr. 29, 2008), https://www.aclu.org/national-security/internet-archives-nsl-challenge .............15
American Civil Liberties Union, Librarians’ NSL Challenge (May 26, 2006), https://www.aclu.org/national-security/librarians-nsl-challenge .........................15
Dep’t of Justice, Office of Inspector General, A Review of the FBI’s Use of National Security Letters (Mar. 2007) .................................................................29
Letter from Deputy Att’y Gen. James Cole (Jan. 27, 2014), http://www.uscourts.gov/uscourts/courts/fisc/misc-13-03-04-05-06-07-notice140127.pdf ................................................................................................ 6, 10, 11
Lorenzo Franceschi-Bicchierai, Yahoo Publishes First Transparency Report, Mashable (Sep. 6, 2013), http://mashable.com/2013/09/06/yahoo-transparencyreport/ ...................................................................................................................10
Mark A. Franklin et al., Cases and Materials on Mass Media Law (7th ed. 2005) 13
National Security Letter to Internet Archive (Nov. 19, 2007), https://www.eff.org/node/55601 ............................................................................8
National Security Letter to Library Connection, Inc. (May 19, 2005), https://www.aclu.org/files/images/nationalsecurityletters/asset_upload_file924_2 5995.pdf .................................................................................................................8
National Security Letter to Nicholas Merrill (2004), https://www.aclu.org/files/assets/4610_001_redactednsl.pdf ...............................8
Nicholas Merrill, How the Patriot Act Stripped Me of my Free-Speech Rights, OpEd, Wash. Post, Oct. 25, 2011 .............................................................................15
President’s Review Group on Intelligence and Communications Technology, Liberty and Security in a Changing World (Dec. 12, 2013)................................18
Remarks of the President on Review of Signals Intelligence (Jan. 17, 2014).........18
Richard Salgado, Shedding Some Light on Foreign Intelligence Surveillance Act (FISA) Requests, Google Official Blog (Feb. 3, 2014), http://googleblog.blogspot.com/2014/02/shedding-some-light-on-foreign.html 15

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Richard Salgado, Transparency Report: Shedding More Light on National Security Letters (Mar. 5, 2013), http://googleblog.blogspot.com/2013/03/transparencyreport-shedding-more-light.html ..........................................................................10
Stipulation and Order of Dismissal, John Doe, Inc. v. Holder, No. 04-cv-2614 (S.D.N.Y. July 30, 2010) .......................................................................................7
Thomas I. Emerson, The System of Freedom of Expression (1970)......................4, 5

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INTEREST OF THE AMICI CURIAE AND CONSENT TO FILE Amici Curiae are the Floyd Abram s Institute for Freedom of Expression at Yale Law School and First Amendment Scholars Bruce Ackerman, Jack Balkin, Jane Bambauer, Margot Kam inski, Neil Richards, and David Schulz. Amici have an interest in preserving robust constituti onal protections against prior restraint in the online and new media environm ent. A description of each amicus is provided in the Appendix. This brief is filed with the consent of all parties pursuant to Rule 29(a).
ARGUMENT The nondisclosure orders that routinely accompany National Security Letters (“NSLs”) prohi bit i ndividuals who have received NSLs from publicly saying anything at all about them. Under the stat ute, these gag orders are presum ptively permanent. The court below was correct to invalidate the s tatute under the First Amendment, but its reasoning was incorrect insofar as it held that NSL gag orders are not akin to “classic prior restrain t[s]” and therefore not subject to the “extraordinarily rigorous” First Ame ndment st andards applicable to such prohibitions on speech. In re Nat’l Sec. Letter (“ In re NSL ”), 930 F. Supp. 2d 1064, 1071 (N.D. Cal. 2013). The Seco nd Circuit’s 2008 decision upholding the same statutory provi sions, upon which the government relies, also refused to treat the nondisclosure orders as prior restrain ts and instead sought to rehabilitate the
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statute by tem pering its m ost egregious procedural flaws. John Doe, Inc. v.

Mukasey, 549 F.3d 861, 876 (2d Cir. 2008).

Both courts erred. NSL gag orders bear all the indicia of classic prior

restraints: they preem ptively forbid core protected speech about the government’ s

activities; prohibit far m ore speech than c onstitutionally justified; are im posed by

executive fiat; and operate in obscurity, shielding their cen sorious effects from

public scrutiny. Moreover, NSL recipients have a significant interest in speaking

about NSLs in order to reassure th

eir customers, to expose governm ent

overreaching, or in their cap acity as me dia companies and content providers. See

infra Section I.

As a “system of prior restraints,” the NSL gag order scheme “comes to this

Court bearing a heav y presumption against its constitutional validity.” N.Y. Times

v. United States (“Pentagon P apers”), 403 U.S. 713, 714 (1971) (per curiam );

Neb. Press Ass’n v. Stuart , 427 U.S. 539 (1976). While prior restrai nts m ust be

subject to procedural safeguards, see infra Section II, procedural protections like

those devised by the Second Circuit cannot remedy the scheme’s failure to abide

by the First Amendment’s substantive lim its on g overnment authority to im pose

prior restraints. In particular, the Firs t Amendment forbids pr ior restraint unless

the government makes the most stringent showing that the restraint is necessary to

avoid grave and all but certain harm to the nation, and no less restrictive means are

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available. The NSL statute fails this test. It em powers the FBI to im pose a complete gag—and requires the courts to uphold one—on the strength of the FBI’s assertion of the mere possibil ity that disclosure m ight cause harm. The First Amendment’s fundamental antipathy t o prior restraint cannot be so easily overcome. See infra Section III. I. NSL NONDISCLOSURE ORDERS ARE CLASSIC PRIOR
RESTRAINTS AND ARE PRESUMPTIVELY UNCONSTITUIONAL. The nondisclosure provisions of the NSL statute bear all the hallmarks of classic prior restraints. Prior restraints are “ad ministrative and judicial orders forbidding certain comm unications when issued in advance of the time that su ch communications are to occur.” Alexander v. United States , 509 U.S. 544, 550 (1993). The key attributes of prior rest raints are that (1) they prohibit speech before it takes place, rather than thr ough subsequent punishment; (2) they sweep too broadly, subjecting far more speech to gove rnment control t han could be lawfully accom plished through subseque nt punishm ent; (3) the y vest t he government with vast discretion to cen sor speech at will; (4) they forbid individuals from speaking unless and until permitted by a government official or a judge, such that the governm ent enjoys t he benefits of inaction and inertia at the expense of the speak er and her audience; and (5) they operate in secret or opaque ways, rendering the scheme’s censorial e ffects less transparent and accountable to the public than a schem e of subsequent punishm ent. See generally Thomas I.
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Emerson, The System of Freedom of Expression

506 (1970). The NSL

nondisclosure scheme bears all these attributes of classic prior restraints and should

be treated as such.

A. NSL Gag Orders Are Classic Prior Restraints Because They Prohibit Speech Before Its Communication.
The NSL gag orders possess the chief char acteristic of prior restraints: they

impose a “previous restraint upon publication” rather than post hoc censure. Near

v. Minnesota , 283 U.S. 697, 713-14 (1931) (quoting

4 William Blackstone,

Commentaries *151). The FBI may unilaterally prohibi t NSL recipients from

disclosing to anybody other than their la wyers that the government has sought or

obtained inform ation using an NSL. 18 U.S.C. § 2709(c)(1). Recipients are

thereby forbidden from stating that they ha ve received an NSL or saying anything

about its contents. They cannot discuss the manner or circumstances in which the

FBI approached them or even inform fellow citizens about th e general categories

of information that the FBI regards as “electronic co mmunication transactional

records” subject to com pulsory disclosure via NSL. Id. § 2709(a). This sweeping

prohibition on speech acco mpanies 97% of the FBI’s NSLs. In re NSL , 930 F.

Supp. 2d at 1074.

NSL recipients typically include co mmunications service providers, both

large and small, who have si gnificant interests in speaking about NSLs: to reassure

their customers, to act as whistleblowers if they believe NSLs are being m isused, 4

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or because they are in the business of producing news. See infra Section I.F. Such communications companies—Facebook, Google, Yahoo, and many others—are in many respects the media organizations of the 21st century. But the recipients of the NSLs challenged here—and t housands like them—are “forbidden [from] say[ing] what they wanted to say” in public. Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 553 (1975). This is the essence of a prior restraint.
B. NSL Gag Orders Are Classic Prio r Restraints Because Th ey Subject Far More Speech to Executive Control Than Is Otherwise Permitted.
Prior rest raints are “likely to bri ng under governm ent scrutiny a far wider range of expression” than subsequent puni shments because “[i]t is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is of ten so finely drawn.” Nebraska Press, 427 U.S. at 589 (quoting Emerson, supra, at 506, and Conrad, 420 U.S. at 559). “The First Amendment…accords greater protection against prior restraints than it does against subsequent punishment” precisely because the former poses “‘risks of freewheeling censorship [that] are formidable.’” Id. at 589 (quoting Conrad, 420 U.S. at 559). NSL gag orders share this feature of classic prior restraints because they indiscriminately prohibit m uch legitimate speech that poses no national security concern.
The NSL statute prohibits the recipient of an NS L gag order from sharing any information about that NSL, including the bare fact that the recipient has
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received o ne. 18 U.S.C. § 2709(c)(1). As the lower court observed, the statute “does not distinguish—or allow the FBI to distinguish—between a prohibi tion on disclosing mere receipt of an NSL a nd disclosing t he underlying contents.” In re NSL, 930 F. Supp. 2d at 1076. As a result, recipients are forbidden from saying anything about the NSL, even when ther e is no reason to prohi bit them from discussing cert ain matters. Fo r instance, while it may be appropriate to prohi bit disclosure of an ongoing investigation’s target, the recipient in such a case would be forbidden from describing the bare fact of receipt or the types of records sought, even if that information would not reveal the target.
Indeed, the government has acknowledged that NSL gag orders are overbroad. Since 20 13 it has p ermitted some companies to disclose the aggregate number of NSLs received per year with in bands of a thousand, even though disclosing such inform ation would otherwise be prohi bited. See Letter from Deputy Att’y Gen. James Cole (J an. 27, 2014) (“Cole Letter”). 1 The FBI has also agreed, albeit after years of litigation, that certain NSL recipients can identify themselves. See, e.g. , Stipulation and Order of Dism issal, John Doe, Inc. v. Holder, No. 04-cv-2614 (S.D.N.Y. July 30, 2010).

1http://www.uscourts.gov/uscourts/courts/fisc/misc-13-03-04-05-06-07notice-140127.pdf
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NSL gag orders are thus, on their face , substantively overbroad, subjecting far more speech to executive p rohibition and control than cou ld be justified in a scheme of subsequent puni shment. In this respect, the NSL gag scheme is akin to the classic prior restraints that the Supr eme Court has invalidated in the p ast. See, e.g., Pentagon Papers, 403 U.S. at 714 (rejecting governm ent application to enjoin the publication of any part of the 7,000 page study).
C. NSL Gag Orders Are Classic Prior Restraints Because They Vest the Executive with Significant Discretion To Censor Speech.
The NSL gag order scheme is typical of prior restraints insofar as it grants officials broad discretion to suppress speech prior to judicial review. As t his Court has explicitly recognized, “government censo rship” is “ [a]mong the risks that the prior restraint doctrine seeks to m inimize.” Kreisner v. City of San Di ego, 1 F.3d 775, 807 (9th Cir. 1993); see also Staub v. City of Baxley , 355 U.S. 313, 322 (1958) (“[A]n ordinance which…makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official…is an unconstitutional censorship or prior re straint upon the enjoym ent of those freedoms.”).
The NSL statute gives FBI o fficials enormous discretion to im pose gag orders. FBI officials may issue a gag or der sim ply by certifyi ng tha t disclosure “may result” in any of vari ous harms. 18 U.S.C. § 2709(c)(1). The standard is so

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capacious that, as mentioned above, gag orders accom pany 97% of NSLs. In re NSL, 930 F. Supp. 2d at 1074.
When the FBI issues a gag order, it doe s not specify which of the avail able grounds forms the basis for t he gag, and does not otherwise provide any rationale for the gag. Rather, inspection of NSLs that have been partially disclosed following litigation suggests that, when i ssuing NSL nondisclosure orders, the FBI either provides no reason at all for the gag, or parrots t he relevant statutory provision in its entirety.2 This practice highlights the lack of meaningful l imits on the discretion enjoyed by the FBI.
The FBI’s discretion is not m eaningfully tem pered by judicial review, not only because such review is r are but also because the statute directs t he court to “treat as conclusive” an FBI certification th at the gag is justi fied, unless the court finds the certification was made in bad faith. 18 U.S.C. § 3511(b)(2)-(3). Even under the Second Circuit’s reinterpretati on, the FBI would be required only to provide the court with a “good reason” th at an enumer ated harm “ may result.” Doe, 549 F.3d at 876. The court “is not to…second-guess[]” an Executive Branch “judgment on matter s of national security” so long as the co urt “receive[s ] so me
2 See NSL to Internet Archive (Nov. 19, 2007), https://www.eff.org/node/55601; NSL to Library Connection, Inc. (May 19, 2005), https://www.aclu.org/files/images/nationalsecurityletters/asset_upload_file924_25 995.pdf; NSL to Nicholas Merrill (2004), https://www.aclu.org/files/assets/4610_001_redactednsl.pdf.
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indication that the judgm ent ha s been soundly reach ed.” Id. at 882. This
extraordinarily deferential judicial review so constrains the role of the judiciary in
protecting the First Amendment that it leav es the decision to gag speech in the hands of the executive branch.3
This is all the more troubling since the government has actually deployed the
NSL gag order schem e in ways that demonstrate precisely the dangers of
censorship that the Constitution’s prohibitio n of prior restraints was meant to
address. While continuing to attach a complete nondisclosure order to nearly every
NSL, the government has begun to craft ad hoc and seemingly arbitrary exceptions
prescribing what com panies may say about the NSLs they have received in the
aggregate. Worse, it appears to have granted these special dispensations unequally
to different speakers.
In March 2013, Google appears to have been the first com pany to report
aggregate data about the nu mber of NSLs it received, rounded to the nearest 1000.
This disclosure was apparently perm itted by private agreement with th e
3 For sim ilar reasons, NSL gag orders c annot be justified by analogy to grand jury secrecy rules. Accord Doe, 549 F.3d at 876-77; In re NSL, 930 F. Supp. 2d at 1072. Grand jury witne sses free to speak by default, Fed. R. Crim. P. 6(e), and courts have invalidated secrecy rules unless the y are strictly lim ited in scope and duration solely to protect the integrity of the p roceeding. See Butterworth v. Smith, 494 U.S. 624 (1990); Hoffman-Pugh v. Keenan , 338 F.3d 1136 (10th Cir. 2003). NSLs, by contrast, are unlim ited in scope and duration, are im posed unilaterally by an executive official, an d are not issued in the context of any official proceeding.
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government. See Richard Salgado, Transparency Report: Shedding More Light on National Security Letters (Mar. 5, 2013). 4 It appears the governm ent forbade

Yahoo from publishing exactly the same kind of aggregate statistics. See Lorenzo

Franceschi-Bicchierai, Yahoo Publishes First Transparency Report , Mashable

(Sep. 6, 2013) (“[T]he government would not authorize us to [publish aggregate

NSL data] even though the governm ent allo wed other providers to do so in the past.”). 5 The discrepancy in the treatm ent of Google and Yahoo raises the

troubling prospect that the governm ent has chosen favorites and discrim inated

based on the identity of the speakers.

It appears that the government has now adopted a uniform position regarding

how NSL statistics m ay b e reported, but this carve-out rem ains arbitrary:

companies can choose either to report the num ber of NSLs in bands of 1000 ( e.g.,

0-999) or else report “the tot al num ber of national security process received,

including all NSLs and FISA orders” in bands of 250. See Cole Letter. These

parameters were establis hed not by any regulation or judicial decision, but,

apparently, by letter addressed to the

general counsels of five technology

companies as part of an agreement to se ttle lawsuits in the Foreign Intelligence

Surveillance Court, where those co mpanies sought perm ission to report sim ilar

4 http://googleblog.blogspot.com/2013/03/transparency-report-sheddingmore-light.html
5 http://mashable.com/2013/09/06/yahoo-transparency-report/
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statistics about FISA production orders. Id. The rules described in the letter could, presumably, be changed at any moment.
These ad hoc arrangements precisely illustra te the dangers of a prior restraint regime. The govern ment has enormous discretion to decide what may be said about NSLs and thus effectively to se ize the power to shape public discussion. Even whi le the go vernment perm its s peech about the ap proximate aggregat e number of NSLs a co mpany ha s received, it forbids speech that is li kely to be much more illuminating, such as information about the raw volume of inform ation produced in response to NSLs, the num ber of NSL orders a recipient has challenged or refused, or th e categories of records the FBI r egards as “electronic communications transactional records” subject to an NSL order. Like classic prior restraints, the NSL nondiscl osure regi me produces “unbri dled discretion” that invites “governm ent censorshi p” a nd “s elf-censorship by speakers.” Kreisner, 1 F.3d at 807.
D. NSL Gag Orders Are Cl assic Pr ior Restraints Because They Permanently Forbid Speech by Ex ecutive Fiat Unless and Until a Judge Decides Otherwise.
Classic prior restraints are charact erized by the perm anent or indefinite character of the speech prohibition, whic h ends only if an official or judge subsequently interve nes. For instance, the injunction struck down in Near v. Minnesota permanently barred a newspaper fro m producing any future “malicious,
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scandalous and defamatory” publication. 283 U.S. at 701. See also, e.g. Org. for a Better Au stin v. Keefe , 402 U.S. 415 (1971) (vacating indefinit e injunction forbidding leafleting). The NSL scheme suffers from the same defect.
The NSL statute includes no provi sion for tim e lim its or sunsets on gag orders. 18 U.S.C. § 2709(c). Instead , the gagged party bears the burden of challenging the order in court. Id. § 3511(b). The government has no obligation to initiate review, wh ether in court or in ternally. Moreover, the recipient m ay challenge each gag order only once per year. Id. § 3511(b)(2). As a result, an individual without the resources or mettle to sue the federal government will remain gagged permanently, even after any justification for the order passes. Even a person able to mount yearly challenges—and amici are aware of nobody who has done so—could remain gagged for m any months after the basis for the gag lapsed. See In re NSL , 930 F. Supp. 2d at 1076 (“Nothi ng in the statute requires or even allows the government to rescind the non -disclosure order once the im petus for it has passed.”).
Even short speech prohibi tions raise significant First Amend ment concerns. See Carroll v. Pr esident & Co mm’rs of Princess Anne , 393 U.S. 175, 182 (1968) (“A delay of even a day or two may be of cruc ial importance in some instances.”). Restraints that are presum ptively permanent, like those routinely im posed upon NSL recipients, raise truly grave concerns.
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The fact that NSL gag orders remain in place unless successfully challenged by the recipient dra stically shifts the bu rden of action onto the speaker. Thi s burden raises a concern that “i nform[s] all of [the Supreme Court’s] prior restraint cases:…the unacceptable chill ing of protected speech.” Alexander, 509 U.S. at 572. As both t his court and the Supreme Court have recognized, prior restrai nt, which places the burden of proving the right to speak on the would-be speaker, can intimidate parties into self-censorship. Kreisner, 1 F.3d 807 (quoting City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 757-59 (1988)).
E. NSL Gag Orders Are Classic Prior Restraints Because They Operate in Secrecy, Shrouding Their Opera tion and Effects From Public Scrutiny and Encouraging Their Overuse.
The NSL nondisclosure scheme suppre sses public discussion about not only the government’s use of NSLs, but also the operation of the gag order scheme itself. This is a key feature of classic prior restraints: they render government suppression of speech less transparent and thus less a ccountable. See Marc A. Fran klin et al., Cases and Materials on Mass Media Law 95 (7th ed. 2005) (“[M]uch of the special hostility to traditional prior restraints ha s concerned the co ntext in which they historically operated: one was prohibited from publishing without the approval of a professional censor who usually operated in secret and with great discretion.”).
The FBI’s decisions to im pose gag orde rs are made entirely behind closed doors; even court challenges are conduct ed largely under seal. The gag order
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scheme is thus shrouded in secrecy, allo wing the issuance of tens of thousands of NSL gag orders t o remain invi sible to t he public. Worse still, the scheme forbids the people who know the most about the operation of the NSL gag regime to speak about it. This veil of secrecy insulate s the government’s actions from scrutiny by the Am erican people and lowers the po litical costs of these restrictions, heightening the danger that protected sp eech will be unnecess arily and improperly suppressed.
F. Attempts To Distinguish the NS L Gag Order Sche me from Other Classic Prior Restraints Fail.
Both the court below and the Second Circuit in Doe v. Mu kasey summarily rejected the argumen t that the NSL g ag or der scheme am ounts to a classic prior restraint. Neither court’s rationale withstands scrutiny.
The Second Circuit contended that NSL gag orders do not constitute “classic” prior restraints because (1) they are not “imposed on those who customarily wish to exercise rights of free expression, such as speakers in public fora, distributors of literature, or exhibitors of m ovies”; and (2) “although the nondisclosure requirement is triggered by the content of a category of inform ation, that category, consisting of the fact of receipt of an NSL and some related details, is far mo re limited than the broad categ ories of info rmation that have been at issue with respect to typical conten t-based restrictions.” Doe, 549 F.3d at 876. Bot h conclusions are incorrect.
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It is incorrect that NSL recipients do not “customarily wish to exercise rights of free expression.” In any case, the First Am endment is h ostile to distinctions based on the type of person or organization speaking. NSL recipients have repeatedly sought to speak in order to inform their customers and to alert the public about the FBI’s activities. Indeed, these concerns motivated three NSL recipients who have successfully challen ged their ga g orders: Library Connection, a library consortium concerned with patrons’ priv acy; the Internet Archive, a non-profit digital library; and Nicholas Merrill, a priv acy activist and president of an Internet company with a m ission to protect its clients’ privacy. 6 Even the nation’s largest online service providers—Google, Yahoo, Facebook and others—continue to chafe against the prohibit ion on providi ng t heir customers even basic inform ation regarding the NSLs they receive. See, e.g., Richard Salgado, Shedding Some Light on Foreign Intellige nce Surveillance Act ( FISA) Requests , Google Offi cial Blog (Feb. 3, 2014) (“[W]e still believe m ore tr ansparency is needed so everyone ca n better understand how surveillance laws work and decide whether or not they serve

6 See ACLU, Librarians’ NSL Challenge (May 26, 2006), https://www.aclu.org/national-security/librarians-nsl-challenge; ACLU, Internet Archive’s NSL Challenge (Apr. 29, 2008), https:// www.aclu.org/nationalsecurity/internet-archives-nsl-challenge; Nicholas Merrill, How the Patriot Act Stripped Me of my Free-Speech Rights, Op-Ed, Wash. Post, Oct. 25, 2011.
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the public interest.”). 7 Many of these online services now also provi de news and other content, reflect ing changes in the 21 st century media lan dscape. The notion that NSL recipients have no desire to speak is unfounded.
It is also irrelevant. Even if only one r ecipient desired to reveal the fact that she had received a request, her First Amendm ent right of free expression could not be diminished because others were content to live in a less free and open society.
The First Amendment simply does not permit the extent of speech protection to turn on the speaker’s identity or viewpoint. The First Amendm ent guards the speech rights of m edia organizations, non- media organizations, and individual s alike. See, e.g. , Citizens United v. Fed . Election Comm’n , 558 U.S. 310, 352 (2010) (“We have consistently rejected the proposition that the institutional press has any constit utional privilege beyond th at of other speakers.”). The First Amendment does not allow the speech rights of NSL recipients to be regarded as categorically inferior to those of indivi duals, like pam phleteers or journa lists, who have previously been targets for speech restrictions.
The S econd Circuit’s impress ion that NSL recipients are not people who “customarily wish to exercise rights to freedom of expression, ” may have arisen because it has not previously been customary for the government to impose routine,

7 http://googleblog.blogspot.com/2014/02/shedding-some-light-onforeign.html
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indiscriminate, and perm anent gag orders on those from whom it demands information. The governm ent may not evade First Amendment prohibitions on prior restraint sim ply by targeting a class of citizens that it has not previously thought to censor.
The Seco nd Circuit cites Seattle Times Co. v. Rhinehart , 467 U.S. 20, 33 (1984), to suggest t hat NSL gag orders a re “not the kind of classic prior restraint that requires ex acting First Amend ment scrutiny.” Doe, 549 F.3d at 876. But Seattle Times only holds that inform ation exchanged in discovery bet ween parties to civil litigation can som etimes be pr otected from further dissem ination. NSL recipients do not ask for the information th ey recei ve when s erved with an NSL, nor is the NSL issued within any court- supervised process. Moreover, NSL gag orders forbid speech about governm ent activity, which is central to the First Amendment, see inf ra Section III.C, unlike discovery protective orders, which often cover information primarily of private concern. What is at stake in this case is whether the government may com pel citizens who are not otherwise subject to any proceeding to disclose information a nd simultaneously bind them to co mplete secrecy.
The Second Circuit also erred when it attempted to distinguish the NSL prior restraint scheme on the grounds that it ta rgets a “far m ore lim ited” category of information “than the broad categories of in formation that have been at issue with
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respect to typical content-based restrictions.” Doe, 549 F.3d at 876. As explained,

NSL gag orders forbid recipi ents from a ny discussion regarding the gag orde rs

they recei ve. Th ey cannot explain to their fellow citizens how NSLs are b eing

used or what kinds of records the FBI demands pursuant to an NSL—which would

reveal the kinds of i nformation the FBI believes are subject to warrantless search

using an NSL. The gag order scheme has, in effect, created a population of

Americans with knowledge of the FBI’s use of NSL and gag-orders, but who are

collectively forbidden from sharing what they know with the public.

This is not a narrow restraint. And the importance of this kind of speech

could hardly be clearer than at this moment, when vigorous public debate about

domestic surveillance is underway. See Remarks of the Pre sident on Review of

Signals Intelligence (Jan. 17, 2014) (“For ultim ately, what’s at stake in this debate

goes far beyond a few m onths of headlines , or passing tensions i n our foreign

policy. When you cut through the noise, what ’s really at stake is how we remain

true to who we are in a world that

is remaking itself at dizzying speed.”)

(discussing NSLs, am ong other surveillanc e authorities); President’s Review

Group on Intelligence and Communications Technology, Liberty and Security in a

Changing World 89-94 (Dec. 12, 2013) (discussing NSLs).

The court below adopted the Second Ci rcuit’s fla wed analysis in hol ding

that the NSL gag schem e was not a “classic prior restraint.” In re NSL , 930 F.

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Supp. 2d at 1071. The reasons it articulated for t hat conclusion, however, belie a misunderstanding of the crucial features of pri or restraint. Immediately after holding that NSL gags “m ay not be a ‘classi c prior restraint,’” the district court observed that “the nondisclo sure provision clearly restra ins speech of a particular content—significantly, speech about gover nment conduct”; that “the FBI has…the unilateral power to determ ine, on a case-by-case basi s, wh ether to allow NSL recipients to speak about the NSLs”; and that “reci pients are prevented from speaking about their receipt of NSLs an d from disclosing, as part of the public debate on the appropriate use of NSLs or other intelligence devices, their own experiences.” Id. Far from revealing that NSL gags are not “t ypical,” these observations dem onstrate that NSL gags are p aradigmatic instances of prior restraint: broad, content-ba sed restrictions on speech, supra Sections I.A-B, that are im posed at will by the executive, supra Sections I.C-D, and that operate shrouded in secrecy, supra Section I.E. The district court erred simply in failing to follow its observations to their appropriate conclusion: that the NSL nondisclosure scheme constitutes a classic system of prior restraint. II. THE NSL GAG ORDER SCHEME LACKS THE PROCEDURAL
SAFEGUARDS REQUIRED OF PRIOR RESTRAINTS. As prior restraints, NSL gag orders m ust include stringent procedural safeguards. But even if the statute in cluded adequate procedural protections— which it does not, see In re NSL , 930 F. Supp. 2d at 1073-75—it would remain
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unconstitutional for faili ng to meet the substanti ve standards applicable to prior restraints. See Part III, infra.
The First Amendment im poses both pro cedural safeguards and substantive limits on prior restraint. See, e.g. , Freedman v. Maryland , 380 U.S. 51 (1965). Required procedures include, notably, that if the governm ent wishes to censor speech, it must quickly initiate judicial review and bear the burden of proof. Id. at 58-59; accord Pentagon Papers , 403 U.S. 713 (seeking judicial injunction); Nebraska Press, 427 U.S. 539 (sam e). The NSL stat ute does not include any such protections. See In Re NSL , 930 F. Supp. 2d at 1073-75. Even the prophylactic procedures suggested by the Second Circuit—now, apparently, adopted nationwide by the government—do not require the government to initiate review as a matter of course as required by Freedman, but instead to do so only if the recipient objects to the gag order within a short period. Doe, 549 F.3d at 879.
These procedural defects ar e s ufficient to invalidate the NSL scheme. But procedural safeguards are merely a ne cessary—rather than sufficient—condition for the co nstitutionality of a scheme of prio r restraint. Where, as here, a prior restraint targets protected speech, it mu st al so comport with the stringent substantive guarantees of the First Amendm ent. See, e.g. , N.A.A.C.P., Western Region v. City of Richmond, 743 F.2d 1346, 1358 n.9 (9th Cir. 1984) (“Because we strike down the…ordinance on subst antive grounds, we need not resolve the
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procedural issue here.”). Thus, even if th is Court were to hold that the procedures devised by the Second Circuit are consiste nt with both the statute and the First Amendment, the resulting scheme would remain unconstitutional for exceeding the First Am endment’s substantive lim its on the FBI’s authority to im pose prior restraints. III. THE NSL GAG ORDER SCHEME FAILS THE STRINGENT
SUBSTANTIVE TEST APPLICABLE TO PRIOR RESTRAINTS. The Supreme Court has long held that a prior restraint “comes to [a court] bearing a heavy presumption against its constitutional validity,” Bantam Books, Inc. v. Sullivan , 372 U.S. 58, 70 (1963), and “carries a heavy burden of showing justification,” Org. for a Better Austin v. Keefe , 402 U.S. 415, 419 (1971). This burden does not fall away in the face of na tional security considerations. Quite the contrary: the Supreme Court addressed a prio r restraint sought on nati onal security grounds in Pentagon Papers , and it applied the m ost st ringent constitutional test even in that context. 403 U.S. at 714; see also Nebraska Press, 427 U.S. at 561. A. Prior Restraints Are Unconsti tutional Unless Disclosure Would
Certainly Result in Grave Harm , There Are No Less Burdenso me Means To Prevent Such Harm, and the Restraint Would Be Effective in Preventing the Threatened Harm. The Supreme Court has repeatedly held that prior restraints may be sustained only in extraordinary circu mstances: “Eve n where questions of allegedly urgent national security or co mpeting constituti onal interests are concerned …we hav e
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imposed this ‘m ost extraordinary rem ed[y]’ only where the evil that would result from the reportage is both great and certain and cannot be m itigated by less intrusive measures.” CBS Inc. v. Davis , 510 U.S. 1315, 1317 (1994) (alteration in original) (citations omitted) (quoting Nebraska Press, 427 U.S. at 562).
In Pentagon Papers , the government sought to enjoin publication of a classified study of U.S. involvem ent in the ongoing Vietnam War. The government argued that disclosure woul d im pair the conduct of the war and endanger American lives. The Court squa rely rejected the government’s position, holding, per curiam, that, as a prior restraint, the injunction “bear[s] a heavy presumption against its constitutional validity,” and despite the ongoing war effort, the government failed to carry the “heavy burden of showing just ification for t he imposition of such a restraint.” 403 U.S. at 714.
While “every member of the [ Pentagon Papers] Court, tacitly or explicitly, accepted the…condemnation of prior rest raint as presum ptively unconstitutional,” the Court’s reasoning was fractured. Nebraska Press , 427 U.S. at 558. Justices Black and Douglas would have erected an absolut e bar against prior restraints. Pentagon Papers, 403 U.S. at 715 (Black, J., concurring); id. at 720 (Douglas, J., concurring). Justice Brenna n took a slightly less absolu te view: that “the First Amendment’s ban” on prior restraint could be “overridden” only “when the Nation is at war” and only upon “governm ental allegation and proof t hat publication must
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inevitably, directly, and immediately caus e the occurrence o f an event kindred to imperiling the safety of a transport already at sea.” Id. at 726-27 (Brennan, J., concurring) (internal quotation omitted).
Justice Stewart, joined by Justice White, articulated the “narrowest grounds” for concurring in the judgment and his rationale should therefore be regarded as the Court’s holding. See Marks v. Unit ed States , 430 U.S. 188, 193 (1977). Specifically, he rejected the prior restra int on the ground t hat he “[could not] say that disclosure of any of [the documents ] will surely result in direct, immediate, and irreparable damage to our Nation or its people.” 403 U.S. at 730 (Stewart, J., concurring). Unlike the others, Justi ce Stewart’s opini on neither rules out the possibility of future prior restraint, nor exp licitly limits prior restraint to wartime. Therefore, under Marks, its test authoritatively e xplains the “heavy burden of showing justification” that the governm ent must meet to justi fy prior restraint. Id. at 714 (per curiam).
Outside the national security context, the Court has articulated si milarly strict standards for overridi ng the presum ption ag ainst prior restraint. Thus, in Nebraska Press , the Court considered whether a pr ior restraint could be justified on the grounds t hat publicity regarding a cr iminal trial jeopardized the defendants’ right to a fair and im partial jury. 427 U.S . at 545. The Court recognized “[t]he thread running through all [previous] cas es is that prior restraints on speech and
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publication are the m ost serious and th e least t olerable infringement on First Amendment rights.” Id. at 559. Accordingly, in order to determine whether th e prior restraint was constituti onal, it exam ined (a) “the nature and extent of” the speech in question, (b) “whether other me asures would be likely to mitigat e t he effects” of disclosure, and (c) “how effectively a restraining order would operate to prevent the threaten ed danger.” Id. at 5 62. The Court found the pri or restraint unconstitutional because of a failure to examine alternati ves that might hav e addressed the asserted harm, and a failure to dem onstrate that the prior restraint would have effectively addressed the threatened harm. Id. at 564-67.
The NSL prior restraint system at issue here is su bject to both the Pentagon Papers standard for assessing alleged national security harm s from speech (permitting prior restraint only where dir ect, immediate, an d irreparable damag e would surely result from disclosure) and the Nebraska Press scrutiny of pri or restraints in general (requiri ng that the harm b e grave, that there be no alternative or less restrictive means to address the ha rm, and that the chosen means to address the harm be effective).8

8 The court below erred in suggesting that “narrow . . . t ailor[ing] to serv e a compelling government interest” is the co rrect substantive standard to apply, In re NSL, 930 F. Supp. 2d at 1075-77, rather th an the m ore precise and stringent requirements of Pentagon Papers and Nebraska Press . The court below also appears to suggest that the Second Circu it’s approach may satisfy the substanti ve
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B. The NSL Gag Order Scheme, On Its Face, Cannot Satisfy the Scrutiny Applicable to Prior Restraints.
The NSL gag scheme, on its face, do es not meet the tests laid out in Pentagon Papers an d Nebraska Press : NSL gag orders may be issued without establishing that they are necessary to prevent harm, and they are issued as a matter of routine without consideration of less restrictive alternatives.
1. NSL gags can be issued upon th e m ere possibility of ha rm, in violation of Pentagon Papers and Nebraska Press.
In order to im pose and subsequently de fend a gag, the NSL statute requires an FBI official only to certify that any of the specified harms “ may result.” 1 8 U.S.C. § 2709(c)(1); id. § 3511(b)(2)-(3) (c ourts m ust “treat[] as conclusive” certification to this effect by an appropriate official). The statute does not require the FBI to explain why the alleged harm “may” exist, nor even to identify which of the various specified harm s a particular NSL threatens. Instead, on the strength of the bare assertion of the possibility of unspecified harm, the FBI m ay im pose a complete ban on all speech regarding an NSL.
A determ ination that harm “may result” fails b y definition to m eet th e Pentagon Papers standard, which requires that disclosure will “surely result” in “direct, immediate, and irreparable damage.” 403 U.S. at 730. “May” simply does

requirements of the First Amendment. Id. at 1078. But that approach falls far short of what the First Amendment requires. See infra Section III.B & note 9.
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not capture the certainty Pentagon Papers requires. See also Nebraska Press , 427 U.S. at 569-70 (st riking down prior restrain t because assertion of likely harm did not “possess the requisite degree of certainty to justify restraint”).
It also fails the Nebraska Press requirement that there be no alternative measures and that t he restrai nt “effectiv ely…operate to pr event the threatened danger.” Id. at 562. A determ ination that harm “may result” provides no assurance that the speech prohibition is the least burdensome means to prevent the harm, nor that the prohibition would effectively prevent the harm.9
Moreover, the NSLs statute’s broadly-worded grounds for issuing gag orders invite their use in ci rcumstances wh ere s pecific justification is lacking. The FBI can issue a gag order where disclosure m ay resu lt in (1) “danger to the national security of the United States”; (2) “interference with a crim inal, counterterrorism, or counterintelligence investigation”; (3) “interference with diplom atic relations”; or (4) “danger to the life or physical safety of any person.” 18 U.S.C. § 2709(c)(1). But merely requiring the possibility of “i nterference” does not capture the “direct,

9 The Second Circuit reinterpreted the NS L statute to require the FBI, when challenged to defend an NSL in court, to provi de a “good reason.” Doe, 549 F.3d at 875. Under this standard, “upholdi ng of nondisclosure does not require the certainty, or even t he i mminence of, an enumerated har m,” only that “some reasonable likelihood [of harm] must be shown.” Id. at 875. This standard plainly does not meet the Pentagon Papers requirement that “direct, i mmediate, and irreparable harm” will “surely result,” or the Nebraska Press requirement that any restraint must be effective to prevent certain harm.
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immediate, and irreparable harm” requ ired to justif y a prior restraint under Pentagon Papers. The notion of “interference” is simply too elastic to justify prior restraints. Sim ilarly, requiring only a possibility of an unspecified degree o f “danger” to national security is unlikely to suffice.
For these reasons alone, the NSL gag scheme cannot be just ified under the standards applicable to prior restraints, and must be invalidated.
2. NSL gags forbi d recipients from saying anything about t he NSL, whether or not specific disclosures pose a risk in a particular case.
The gag scheme makes no effort to tailo r orders to individual, case-by-case circumstances as required by Pentagon Papers and Nebraska Press. I nstead, the gag categorically forbids any disclosure about the NSL, and thereby fails to lim it its application to information necess ary to preserve national security. See, e.g. , Nebraska Press, 427 U.S. at 565 (st riking down prior restraint due to i nsufficient consideration of alternative, l ess restri ctive measures to protect the specified interests); United States v. Salameh , 992 F.2d 445, 447 (2d Cir. 1993) (striki ng down gag on defense attorneys because prior restraints mu st be “no broader than necessary” to ensure a fair trial).
This categorical ban fails bot h logic and necessity. It sim ply cannot be t hat disclosing the existence of an NSL would al ert the target of an investigation in all or even the majority of cases. Many NSL reci pients are large online service providers, each of whom has m illions of subscribers. Perm itting disclosure of
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NSLs without the name or identifying details of the target would appear to mitigate, in m ost circum stances, any harm to the government’s interests in investigation, national security, diplomatic relations, or public safety.
At m inimum, the one-size-fits-all nature of the NSL prior restraint schem e means it fails the requirem ent of Pentagon Papers and Nebraska Press that ther e must be no alternative or less restrictive means to mitigate the specified harm. The FBI may not prohi bit disclosures where those restrictions are unnecessary to protect national security interests.
C. In Operation and Effect, the NSL Gag Order Scheme Censors Public Discussion of the FBI’s Use of NSLs.
The NSL gag scheme turns prior restra int doctrine on its head. Instead of conforming to the extrem ely narrow ci rcumstances in which constitutiona lly protected speech mi ght be prohibited in advance, the NS L statute treats th e issuance of indefinite prior restraints as a default rule that applies nearly every time the FBI issues an NSL. In some circumstances, it may be possible to justify certain prohibitions—for instance a time-lim ited restriction on identifying the target of an investigation. But the scheme prohi bits far more speech than could conceivably be justified to protect national security, foreign relations, public safety, or the integrity of FBI investigations. Inste ad, in ope ration and effect, the gag order regime permits the FBI to com pel citizens to produ ce information—to the tune of tens of

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thousands of secret orders per year—wh ile forbidding the public from speaking or learning about the government’s activities.
Beyond its violation of the limits on prior restraint, this scheme strikes at the core of the First Amendm ent, a central “purpose of [whi ch] was to prote ct the free discussion of governmental affairs” incl uding “the manner in which government is operated or should be operated.” Mills v. Alabama , 384 U.S. 214, 218 (1966). Such speech occupies “the highest rung of the hierarchy of First Amend ment values, and is entitled to special protection.” Snyder v. Phelps , 131 S. Ct. 1207, 1215 (2011).
Currently, the publi c is deprived of information from NSL recipients, who best understand how this powerful tool is wielded by the government. For instance, recipients may not discuss the categories of information subj ect to collection—a valuable insight where the relevant stat ute does not provide , and the governm ent has not offered, even a generic defi nition of t he “electronic comm unication transactional records” subject to NSL reque sts. Recipients also cannot blow the whistle if the FBI appears to be abusing the statute, as it has done in the past. See, e.g., Dep’t of Justice, Office of Inspector General, A Review of the FBI’s Use of National Security Letters (Mar. 2007). Instead, the government has dictated, by fiat, that recipients may only provide ro ugh, aggre gate statistics that do little to illuminate how the government is using NSLs.
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This is plainly inadequate. As Justi ce Stewart explained, the “ only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an en lightened citizenry—in an informed and critical public opini on which alone can he re protect the values of dem ocratic government.” Pentagon Papers, 403 U.S. at 728 (Stewart, J., concurring).
The First Amendment sim ply does not permit the governm ent to conscript thousands of citizens into its investigative efforts, and at the same tim e force them to submit en masse to a permanent oath of secrecy. The scheme operates—through the accretion of thousands upon thousa nds of individual gag orders—to censor public discussion and controversy over the government’s domestic surveillance. It cannot be reconciled with the Constitution.
CONCLUSION Because the NSL g ag order scheme is an unconstitutional system of prior restraint, this Court shoul d affirm the lower court’s judgm ent and invalidate the NSL statute under the First Amendment.

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·tted.

Dated: March 28,2014

Nabiha Syed* FLOYD ABRAMS INSTITUTE FOR
FREEDOM of EXPRESSION
YALE LAW SCHOOL10 P.O. Box 208215 New Haven, CT 06520 Tel: (203) 432-9387 Fax: (203) 432-3034 jonathan.manes@yale.edu
Michael J. Strumwasser Adrienna Wong* STRUMWASSER & WOOCHER LLP 10940 Wilshire Blvd, Suite 2000 Los Angeles, CA 90024 Tel: (310) 576-1233 Fax: (310) 319-0156 awong@strumwooch.com *Not admitted in this jurisdiction.
Attorneys for Amici Curiae

10 This brief has been prepared and joined by an organization and individuals affiliated with Yale Law School, but it does not purport to present the school's institutional views, if any. Counsel wish to thank Vera Eidelman, Samuel Kleiner, and Rebecca Wexler for their outstanding assistance in preparing this brief.
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APPENDIX (List of Amici Curiae)11
The Floyd Abram s Instit ute for Freedom of Expression a t Yale Law School promotes freedom of speech, freedom of th e press, and access to information as informed by the values of dem ocracy and human freedom. The Institute’s m ission is both practical and scholarly, supporting litigation and law refo rm efforts as well as academic scholars hip, conferences, an d other events on First Amendment and related issues.
Bruce Ackerman Sterling Professor of Law and Political Science Yale Law School
Jack M. Balkin Knight Professor of Constitutional Law and the First Amendment Yale Law School
Jane Bambauer Associate Professor of Law University of Arizona James E. Rogers College of Law
Margot Kaminksi Executive Director, Information Society Project Yale Law School
Neil Richards Professor of Law Washington University School of Law
David A. Schulz Floyd Abrams Clinical Visiting Lecturer in Law Yale Law School

11 Law school affiliations are stated for purposes of identification only. 32

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CERTIFICATE OF COMPLIANCE WITH RULE 32(A)

This brief complies with the type-volume limitation of Rule 29(d) of the

Federal Rules of Appellate Procedure because it is 6,975 words, excluding the

parts of the brief exempted by Rule 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Rule 32(a)(5) of the

Federal Rules of Appellate Procedure and the type-style requirements of Rule

32(a)(6) of the Federal Rules of Appellate Procedure because this brief has been

prepared in a proportionally spaced typeface using Microsoft Office Word 2010, in

14-point Times New Roman font.

~e~s

Dated: March 28,2014

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CERTIFICATE OF SERVICE
I hereby certify that I caused the foregoing brief to be mailed to the Court on March 28, 2014, and that the Court will effect service on the parties~ in accordance with the Instructions for Prospective Amici issued by the Court in this case.

Dated: March 28,2014

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NO. 13-16732 UNDER SEAL
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNDER SEAL,

Petitioner-Appellant,

V.
ERIC H. HOLDER, JR., ATTORNEY GENERAL; UNITED STATES DEPARTMENT OF JUSTICE; and FEDERAL BUREAU OF INVESTIGATION,
Respondents-Appellants.

On Appeal from the United States District Court for the Northern District of California Case No’s. ll-cv-1165 SI
Honorable Susan Illston, District Court Judge
BRIEF AMICI CURIAE OF EXPERTS IN COMPUTER SCIENCE AND DATA SCIENCE IN SUPPORT OF APPELLANT UNDER SEAL

Phillip R. Malone, CA Bar No. 163969 Michael Chen, CA Bar Student Cert. No. 34469 Emily Warren, CA Bar Student Cert. No. 34473 Rachel Yu, CA Bar Student Cert. No. 34474 JUELSGAARD INTELLECTUAL
PROPERTY & INNOVATION CLINIC Mills Legal Clinic at Stanford Law School 559 Nathan Abbott Way Stanford, California 94305-8610 Telephone: (650) 725-6369
Counsel for Amici Curiae

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CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure 26.1, each of the amici listed in Exhibit A states that he or she is not a corporation that issues stock and has no parent corporation.

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TABLE OF CONTENTS
STATEMENT OF INTEREST..................................................................................1
INTRODUCTION .....................................................................................................2
ARGUMENT .............................................................................................................3
I. NATIONAL SECURITY LETTERS GIVE THE FBI EXTENSIVE AUTHORITY TO SURVEIL ORDINARY AMERICANS .......................................................................................3
II. NSL DATA REVEAL DEEPLY SENSITIVE INFORMATION ABOUT INDIVIDUALS AND THEIR ASSOCIATIONS ................................................................................15
A. Even a Single Call, Text, or E-mail Reveals Sensitive Information ................................................................................ 17
B. Patterns of Calls, Texts, and Emails Reveal Even More Sensitive Information................................................................22
1. Social Graph and Predictive Modeling Techniques are Easy to Implement and Immensely Informative ......23
2. NSL Data Reveal Extensive Private Political, Personal, Associational, Religious, Corporate, Medical, and Financial Information ...............................27
CONCLUSION ........................................................................................................33
STATEMENT OF RELATED CASES ...................................................................34
CERTIFICATE OF COMPLIANCE.......................................................................35

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TABLE OF AUTHORITIES Cases ACLU v. Clapper, 33-cv-03994 (WHP) (SDN& Aug. 23, 2013) Dkt 27,
Declaration of Edward W. Felton.................................................................21, 28 Statutes Electronic Communications Privacy Act (ECPA)............................................passim 18 U.S.C. § 2510(8) ...................................................................................................5 18 U.S.C. § 2703(c)(1)...............................................................................................7 18 U.S.C. § 2709.................................................................................................14,15 18 U.S.C. § 2709(a)-(b) .....................................................................................2, 3, 4 50 U.S.C. § 1861........................................................................................................7 Agency Publications, Reports and Opinions
Administration White Paper: Bulk Collection of Telephony Metadata Under Section 215 of the USA Patriot Act 2 (Aug. 9, 2013).....................................7, 16
Daniel Koffsky, Requests for Information Under the Electronic Communications Privacy Act, in 32 Opinions of the Office of Legal
Counsel (2008)......................................................................................................4 The President’s Review Group on Intelligence and Communications
Technologies, Final Report 90 (2013)......................................................4, 6, 7, 8 State of California Franchise Tax Board, Reporting Income Tax Fraud,
https://www.ftb.ca.gov/online/Fraud_Referral/important_information.asp ....... 18 U.S. Department of Justice Office of the Inspector General, A Review of the
FBI’s Use of National Security Letters: Assessment of Corrective Actions and Examination of NSL Usage in 2006 (2008)...................................7, 8, 10, 15 U.S. Department of Justice Office of the Inspector General, A Review of the FBI’s Use of Section 215 Orders for Business Records in 2006 5 (2008).........14

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U.S. Department of Justice Office of the Inspector General, A Review of the FBI’s Use of National Security Letters 36 (2007) .......................................passim
U.S. Department of Justice Office of the Inspector General, A Review of the Federal Bureau of Investigation’s Use of Exigent Letters and Other Informal Requests for Telephone Records 75 (2010).............................11, 14, 15
Magazines, Newspapers and Blogs
Matt Blaze, Phew, NSA Is Just Collecting Metadata. (You Should Still Worry), Wired (June 16, 2013 9:30 AM), http://www.wired.com/opinion/2013/06/phew-it-was-justmetadata-not-think-again ..............................................................................16, 27
The Economist, Mining Social Networks: Untangling the Social Web, (Sept. 2, 2010), http://www.economist.com/node/16910031.............................30
Dan Eggen, Text ‘Give’ to Obama: President’s Campaign Launches Cellphone Donation Drive, Wash. Post (Aug. 23, 2012), http://www.washingtonpost.com/politics/text-give-to-obamapresidents-campaign-launches-cellphone-donationdrive/2012/08/23/5459649a-ecc4-11e1-9ddc340d5efb1e9c_story.html ...................................................................................22
Barton Gellman, NSA Statements to the Post, Wash. Post, Aug 15, 2013, http://wapo.st/1ixchnm .............................................................................18
Hal Hodson, How Metadata Brought Down CIA Boss David Petraeus, NewsScientist (Nov. 16, 2013 1:59 PM), http://www.newscientist.com/article/dn22511-how-metadatabrought-down-cia-boss-david-petraeus.html. .....................................................29
Mail & Guardian, Story Tip-Offs, http://mg.co.za/page/story-tip-offs ....................19
Jane Mayer, What’s the Matter With Metadata?, New Yorker (June 6, 2013), http://www.newyorker.com/online/blogs/newsdesk/2013/06/verizon-nsametadata-surveillance-problem.html ..................................................6, 16, 28, 32
New York Times, Contact the Public Editor, NYTimes.com, http://publiceditor.blogs.nytimes.com/contact-the-public-editor/ ......................18

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Rebecca J. Rosen, Stanford Researchers: It is Trivially Easy to Match Metadata to Real People, The Atlantic (Dec. 24, 2013 1:50 PM), http://www.theatlantic.com/technology/archive/2013/12/stanford-researchers-itis-trivially-easy-to-match-metadata-to-real-people/282642 ...............................17
Internet Sources
Griffin Boyce and Brian Duggan, The Real Reason Why Metadata Collecting Is Dangerous, New America Foundation (June 17, 2013 4:54 PM), http://inthetank.newamerica.net/blog/2013/06/real-reason-why-metadatacollecting-dangerous ...........................................................................................21
Childhelp, Childhelp National Child Abuse Hotline, http://childhelp.org/pages/hotline-home .............................................................18
Charles Duhigg, How Companies Learn Your Secrets (Feb. 16, 2012), http://www.nytimes.com/2012/02/19/magazine/shoppinghabits.html?pagewanted=1&_r=1&hp ...............................................................33
Electronic Privacy Information Center, National Security Letters, http://epic.org/privacy/nsl/ ....................................................................................4
GLBT National Help Center, Gay, Lesbian, Bisexual and Transgender National Hotline, http://www.glbtnationalhelpcenter.org/hotline.....................................18
IBM, Analyst’s Notebook, http://www-03.ibm.com/software/products/en/ analysts-notebook-family .................................................................................... 26
IBM, Environmental Investigation Agency: IBM i2 Solution Help Combat the Illegal Tiger Trade (2012) ..............................................................26
Jonathan Mayer & Patrick Mutchler, MetaPhone: The NSA Three-Hop, Web Policy (Dec. 9, 2013), http://webpolicy.org/2013/12/09/metaphonethe-nsa-three-hop/ ...................................................................................13, 14, 18
Jonathan Mayer & Patrick Mutchler, MetaPhone: The Sensitivity of Telephone Metadata, Web Policy (Mar. 12, 2014), http://webpolicy.org/2014/03/12/metaphone-the-sensitivity-of-telephonemetadata ............................................................................................18, 20, 30, 33
MIT Media Lab, Immersion, https://immersion.media.mit.edu ..............................25

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Chris Soghoian, US Surveillance Law May Poorly Protect New Text Message Services, American Civil Liberties Union (Jan. 8, 2013, 9:44 AM), https://www.aclu.org/blog/national-security-technology-and-liberty/ussurveillance-law-may-poorly-protect-new-text ....................................................5
Susan G. Komen for the Cure, Donate by Text, http://ww5.komen.org................223
Pete Yost & Matt Apuzzo, With 3 ‘Hops,’ NSA Gets Millions of Phone Records, Associated Press (Jul. 31, 2013 6:19 PM), http://bigstory.ap.org/article/senate-panel-looking-limits-surveillance .............11

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STATEMENT OF INTEREST1 The amici listed in Exhibit A are professors of computer and data science at the country’s leading educational institutions, and expert computer scientists, specializing in data and computer security, data analysis, cryptography, and privacy-enhancing technologies. Collectively, amici’s research has significantly shaped the development of modern communications technology and data analysis techniques. Amici offer this brief to emphasize for the Court the extraordinary sensitivity of the data that can be gathered through National Security Letters, notwithstanding its legal categorization as “non-content” data, and the personal, intimate, family, associational, political, health and medical, financial and other information that can be revealed by such data. Amici’s expertise and familiarity with data analysis and communications technology offer a particularly informed perspective on the issues confronted in this case. The list of amici attached as Exhibit A includes a brief biography of each.

1 Pursuant to Federal Rule of Appellate Procedure 29(c)(5), no one, except for the amici and their counsel, has authored this brief in whole or in part, or contributed money towards its preparation. All parties have consented to the filing of this brief.
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INTRODUCTION Under the Electronic Communications Privacy Act (ECPA) National Security Letter (NSL) provisions of 18 U.S.C. § 2709(a)-(b), the FBI easily surveils ordinary Americans. NSLs can be obtained merely with the signature of any special agent in charge of any FBI field office, and there is no need for suspicion of wrongdoing. The data seized need only be considered “relevant” to a counterintelligence or counterterrorism investigation, and the person whose data are taken need not be in any way considered a suspect or target. With no affirmative judicial approval of the NSL process and a low “relevance” standard that encompasses potentially millions of people per single NSL request, the government unreasonably invades the privacy of potentially every American. Through the hundreds of thousands of NSLs have already been issued, the FBI may have collected data on almost every person in the United States. And once collected, NSL data typically is stored in massive databases and can be accessed broadly—not just by top FBI officials. While the government asserts that the information obtained by NSLs does not include the actual content of a communication, NSL information can nonetheless be incredibly revealing. Through even a relatively naïve analysis of information obtained by an NSL, the FBI can gather extensive information about a person’s political contributions, intimate relationships, religious and community

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affiliations, medical conditions, financial records, and much more. The rise of “Big Data” and sophisticated analytical tools only compound this danger, giving the government unprecedented access to the sensitive information of American citizens.
ARGUMENT I. NATIONAL SECURITY LETTERS GIVE THE FBI EXTENSIVE
AUTHORITY TO SURVEIL ORDINARY AMERICANS
The current version of the substantive ECPA NSL provisions, codified at 18 U.S.C. § 2709(a)-(b), authorizes dozens of FBI agents around the country to issue national security letters without meaningful, affirmative judicial checks. These letters can compel the disclosure of all non-content data connected with phone calls, text messages, and emails—essentially, everything except for actual recordings and copies of the messages themselves. Agents can collect data pertaining to any entity that may be “relevant” to an investigation and have issued hundreds of thousands of requests for such data. Moreover, since “relevant” may be defined however the Bureau wishes, the standard offers it great discretion to collect data on nearly any American. Once collected, these data are stored in databases accessible by tens of thousands of people and are used to produce intelligence reports for dozens of agencies. Predictably but unfortunately, there is

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substantial evidence that the FBI has abused these expansive authorities.2 Though the type of data that the FBI may demand under § 2709(a)-(b) has
not been fully litigated, public and private actors have interpreted the statute’s key terms (subscriber information, toll billing records, and electronic transaction communication records) to include all of the following kinds of information3:
1. All phone numbers, email addresses, and screen names associated with an individual; 2. The individual associated with any phone number, email address, or screen name; 3. All mailing address, phone number, and billing information associated with an individual and the length of time an individual has subscribed to a service;

2 The President’s Review Group on Intelligence and Communications Technologies, Final Report 90 (2013).
3 See Daniel Koffsky, Requests for Information Under the Electronic Communications Privacy Act, in 32 Opinions of the Office of Legal Counsel 2, 5 (2008); President’s Review Group, supra note 2, at 90; Chris Soghoian, US Surveillance Law May Poorly Protect New Text Message Services, American Civil Liberties Union (Jan. 8, 2013, 9:44 AM), https://www.aclu.org/blog/nationalsecurity-technology-and-liberty/us-surveillance-law-may-poorly-protect-new-text; National Security Letters, Electronic Privacy Information Center (last visited Mar. 13, 2014, 4:35 PM), http://epic.org/privacy/nsl/; Decl. in Supp. of Pet. to Set Aside National Security Letter and Nondisclosure Requirement In re Matter of National Security Letters 5, 11, Mar. 14, 2013, ECF 13-1165; Declaration of Under Seal in Support of Petition to Set Aside National Security Letters and Nondisclosure Requirements Imposed in Connection Therewith, In re Matter of National Security Letters, No. CV-131165 (LB) (N.D. Cal. Mar. 14, 2013), Exhibit A.

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4. All IP addresses from which a user has logged into an email account and the timeframes during which each was used; 5. A complete list of all phone calls ever associated with a phone number including, for each call, whether it was outgoing or incoming, the phone number contacted, how long the call lasted, and when it was made; 6. A complete list of all text messages ever associated with a phone number including, for each message, whether it was sent or received, the phone number contacted, and when it was sent; and 7. A complete list of all emails ever associated with a screen name, including, for each email, whether it was sent or received, the email address contacted, other email addresses that were copied, the size of the message, and when it was sent.
These NSL-obtained data, colloquially referred to as “metadata,” generally are considered “non-content” under the definition of “contents” in 18 U.S.C. § 2510(8).4 But the data demanded by NSLs, while legally non-content data, are in fact profoundly meaningful. As discussed further in section II, information from NSLs can expose details ranging from political beliefs and affiliations to the structure of grassroots organizations to reproductive choices to medical conditions
4 See Decl. Set Aside 9, 15, ECF 13-1165.

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and more. As former Google Senior Privacy Analyst and privacy/surveillance author Susan Landau stated in an interview: “The public doesn’t understand . . . It’s much more intrusive than content.” The government gains expansive private information by studying “who you call, and who they call. If you can track that, you know exactly what is happening—you don’t need the content.”5
The ECPA NSL substantive provisions authorize the FBI to demand not only many kinds of substantive data, but also data relating to nearly any American. In contrast to older versions of the statute, the current “very low” relevance standard authorizes the FBI to demand data on individuals who are not investigation targets and eliminates any requirement to record particularized facts justifying why an individual’s data are relevant.6 The only limits on what can be deemed “relevant” are that investigations to which data are relevant must be authorized and that the FBI must be able to justify—almost always to itself rather than a court—that the request is motivated by more than a First Amendmentprotected activity alone. § 2709(b). The administration has recently argued that “‘relevance’ is a broad standard that permits discovery of large volumes of data in
5 Jane Mayer, What’s the Matter With Metadata?, New Yorker (June 6, 2013), http://www.newyorker.com/online/blogs/newsdesk/2013/06/verizon-nsametadata-surveillance-problem.html (quoting interview with Landau) (internal quotation marks omitted).
6 President’s Review Group, supra note 2, at 90.

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circumstances where doing so is necessary to identify much smaller amounts of information within that data that directly bears on the matter being investigated.”7
The substantial lack of affirmative judicial approval in determining what is sufficiently relevant contrasts starkly with other provisions of ECPA and Section 215 of the Patriot Act, statutes governing the collection of similar data but requiring a court order or subpoena. 18 U.S.C. § 2703(c)(1); 50 U.S.C. § 1861. This contrast drove the President’s Review Group on Intelligence and Communications Technologies to observe that it was “unable to identify a principled reason why NSLs should be issued by FBI officials” rather than by a court.8
In practice, the expansive relevance standard has facilitated the use of NSLs in “approximately one-third of all counterterrorism, counterintelligence, and cyber investigations” during 2006.9 When the FBI issues these NSLs, they include one or more requests for either “toll billing records” (telephony and text-message data), “electronic communications transactional records” (email data), or subscriber

7Administration White Paper: Bulk Collection of Telephony Metadata Under Section 215 of the USA Patriot Act 2 (Aug. 9, 2013).
8 President’s Review Group, supra note 2, at 93. 9 U.S. Department of Justice Office of the Inspector General, A Review of the FBI’s Use of National Security Letters: Assessment of Corrective Actions and Examination of NSL Usage in 2006 109 (2008).
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information (names and other identifying data associated with an account). A response to any individual request will thus include hundreds to hundreds of thousands of individual observations—including, for example, a 26-minute call from a subscriber to a phone number the FBI has identified as belonging to his mother, at 10:35 PM six months ago.
As shown in Table I, even the limited unclassified information available indicates that the FBI has made over 300,000 NSL requests in the past decade, the “overwhelming majority” of which have been for ECPA NSL data.10 Of these, the FBI has made almost 150,000 requests for non-subscriber information of U.S. persons, mostly toll billing or electronic transaction records, and over 165,000 requests (with estimates above 340,000)11 for information about U.S. persons, including subscriber information. Including requests for information about non-

10 U.S. Department of Justice Office of the Inspector General, A Review of the FBI’s Use of National Security Letters 36 (2007); accord OIG (2008), supra note 9, at 60, 107; President’s Review Group, supra note 2, at 90.
11 The only public information about requests for subscriber-only information about U.S. persons are that such requests made up 56% of total requests for U.S. persons’ information in 2006, Table I, and the majority of requests in 2012, President’s Review Group, supra note 2, at 90. If subscriberonly requests for data about U.S. persons comprised 56% of all requests for data about U.S. persons in all years, as it did in 2006, then the FBI would have made 342,868 total requests for U.S. persons’ data.
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Americans, the FBI made over 304,000 requests (with estimates above 570,000).12 Collectively, these requests have generated databases with millions of observations of phone calls, emails, and text messages.13

12 To estimate total requests for persons of any nationality in years other than 2006, we assume that the proportion of total requests that were requests for U.S. persons’ data in these years equaled that in 2006, 60%, OIG (2008), supra note 9, at 108. Combined with the data for 2006, this yields an estimate of 571,446 total requests.
13 Though the precise size of the database is not public, it is possible to estimate. Table I shows that the FBI made 149,663 total requests for nonsubscriber information pertaining to U.S. citizens. If the FBI made 228,579 requests for information about non-U.S. persons, see notes 2-3, supra (estimating 571,446 total requests of which 342,868 pertained to U.S. citizens), and 44% of these were for toll billing records or electronic transaction communications records, see Table I row 2006 (showing this proportion for U.S. persons’ requests), then it made 99,775 requests for non-subscriber information pertaining to non-U.S. persons, yielding a total database of such information that would include 249,437 requests (149,663 + 99,775). If each request yielded an average of 1,000 observations then the database would have nearly 250 million observations.
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Year
2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 Total known
Estima1t8ed
Totals

TABLE I: NSL REQUESTS FROM 2003 TO 2012, BY REQUEST TYPE

For U.S. persons' non-subscriber information (mostly toll billing or
electronic communicat1io4ns
transactional records)

For any U.S. persons' data,
including su1b5scriber
information

6,519 8,943 9,254 12,583 16,804 24,744 14,788 24,287 16,511 15,229 149,662 149,662

More than 6,519 More than 8,943 More than 9,254 28,827 More than 16,804 More than 24,744 More than 14,788 More than 24,287 More than 16,511 More than 15,229 More than 165,906 342,868

For non-U.S.
persons'1d6ata of
any type
Classified Classified Classified 19,279 Classified Classified Classified Classified Classified Classified Classified 99,775

17
Total requests
39,346 56,507 47,221 49,425 More than 16,804 More than 24,744 More than 14,788 More than 24,287 More than 16,511 More than 15,229 More than 304,862 571,446

The full set of individuals whose data the FBI could demand under the

relevance standard likely comprises all Americans. Since the FBI uses NSLs to

determine a target’s “family members, associates, living arrangements, and

contacts,” an authorized agent may deem data pertaining to individuals far

14 Data in this column for from 2003-2005 from 2007 OIG Report, supra note 9, at xx. Data for 2006-2012 from annual reports the FBI has made to Congress, available at https://www.fas.org/irp/agency/doj/fisa/#rept. Note that these data may include some additional requests for other types of NSL information authorized by statutes other than ECPA (see 2007 OIG Report at xx).
15 Data in this column from 2008 OIG Report, supra note 9, at 108.
16 Data in this column from 2008 OIG Report, supra note 9, at 108.
17 Data in this column derived from OIG 2007 Report, supra note 9, at xvi, xix; OIG 2008 Report at 110. These figures include requests that the FBI failed to report to Congress but that the OIG found in its review of the FBI-OGC NSL database as of May 2006, May 2007.
18 See notes 2-4, supra.

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removed from an investigation target to be “relevant.”19 A 2010 OIG investigation found that the FBI has regarded the personal data of any individual within an investigation target’s “community of interest” or “calling circle” to be relevant, though the definitions of these terms were redacted.20 Revealingly, the 2007 OIG investigation could not find FBI guidance discouraging case agents from using NSLs to access the data of individuals “two or three steps removed” from an investigation target.21 This is the same standard used by the NSA and means, for example, that if investigation target Adam called Betsy (step one), who emailed Caleb (step two), who texted Dwayne (step three), then Dwayne’s data would be deemed “relevant” to the investigation of Adam.
Though three steps may seem trivial, some estimate that “[i]f the average person called 40 unique people, a three hop [or step] analysis would allow the government to mine the records of 2.5 million Americans when investigating one suspected terrorist.”22 Others have estimated that the FBI could deem “the phone

19 OIG (2007), supra note 10, at xxiv. 20 U.S. Department of Justice Office of the Inspector General, A Review of the Federal Bureau of Investigation’s Use of Exigent Letters and Other Informal Requests for Telephone Records 75 (2010). 21 OIG (2007), supra note 10, at 109. 22 Pete Yost & Matt Apuzzo, With 3 ‘Hops,’ NSA Gets Millions of Phone Records, Associated Press (Jul. 31, 2013 6:19 PM), http://bigstory.ap.org/article/senate-panel-looking-limits-surveillance.

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records of a sizable proportion of the United States population” to be relevant to a single terrorism investigation under a three-steps rule.23 Moreover, both of these estimates consider only steps among phone calls; the addition of texts and emails expands the circle of relevant individuals and businesses exponentially. Thus, with millions of Americans’ data considered relevant to any investigation and thousands of investigations each year, a three-steps definition of relevance is a largely empty check on FBI discretion.
According to the 2007 OIG report, once the FBI receives data responding to an NSL request, that data is typically uploaded to a number of different databases. Electronic communications transactional records are uploaded to the Automated Case Support System, the FBI’s centralized case management system. Roughly 34,000 individuals had access to this system in 2005. Toll billing records are uploaded to the Telephone Applications database. Some 19,000 individuals had access to this database in 2006.24 In addition, information from NSL demands is stored separately in a number of classified databases about which no information

23 Jonathan Mayer & Patrick Mutchler, MetaPhone: The NSA Three-Hop, Web Policy (Dec. 9, 2013), http://webpolicy.org/2013/12/09/metaphone-the-nsathree-hop/.
24 OIG (2007), supra note 10, at 28-30.
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has been made public.25 Supplementing these storage databases, the FBI also uses a data analysis application called the Investigative Data Warehouse, which can pull data from each of these databases and run analytic models to reveal data patterns that may be of interest to investigators.26
Thousands of non-FBI personnel also have direct access to these databases.27 Others are often recipients of FBI-produced intelligence products, which are regularly derived from NSL-data analysis and provided to entities including the CIA, NSA, DIA, Joint Terrorism Task Forces at the federal, state, and local levels, foreign governments, U.S. Attorneys’ offices, and the FISA Court.28
Given the vast authority the ECPA NSL provisions grant to the FBI to collect and store these massive amounts of data, it is unsurprising that reports have surfaced documenting the FBI’s abuse of its NSL authority. Due to the low relevance standard, the FBI has relied upon the NSL process to conduct fishing

25 Id. 26 Id. 27 Id. 28 Id. at xxiii.
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expeditions before it can support a subpoena or FISA court order.29 In at least one instance, moreover, a FISA court twice denied the FBI access to data under Section 215, citing First Amendment concerns. In response to this denial, the FBI issued NSLs based on an identical factual predicate to the Section 215 order, gathering the same data outside the eyes of the FISA court, even though “NSLs have the same First Amendment caveat as Section 215.”30
In others cases, NSL recipients have given the FBI information that exceeded the scope of the NSL, pertained to the wrong individuals, or covered the wrong time period, and the FBI failed to destroy the irrelevant data.31 NSLs have been signed by individuals who were not authorized agents32 and have been issued in connection with unauthorized investigations,33 both in violation of the terms of 18 U.S.C. § 2709. Moreover, though a Presidential Order requires the FBI to report all such intelligence violations to the President’s Intelligence Oversight Board, the FBI failed to report one or more violations in 22% of the cases in the OIG’s
29 See U.S. Department of Justice Office of the Inspector General (OIG), A Review of the Federal Bureau of Investigation’s Use of National Security Letters xxiv (2007).
30 U.S. Department of Justice Office of the Inspector General, A Review of the FBI’s Use of Section 215 Orders for Business Records in 2006 5 (2008).
31 OIG (2008), supra note 9, at 100. 32 OIG (2010), supra note 20, at 75. 33 OIG (2007), supra note 10, at 66-67.

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sample.34 Furthermore, between 2003-2005, the FBI also failed to report almost 4,600 NSLs to Congress—nearly all ECPA NSLs—as required by § 2709.35
Separate from but related to the NSL process, the FBI for many years issued so-called exigent letters, demanding the kinds of data available through NSLs but circumventing even the procedures for issuing NSLs. These letters were often structured to include a promise from the FBI of “legal process to follow,” such as a subpoena or NSL.36 In one instance, the FBI used an exigent letter to gather reporter and news organization telephone data following a media leak constituting protected First Amendment speech.37 It entered these records into its NSL databases, where they remained for three years until discovered by the OIG.38 II. NSL DATA REVEAL DEEPLY SENSITIVE INFORMATION ABOUT
INDIVIDUALS AND THEIR ASSOCIATIONS
The types of data that can be obtained by NLSs reveal a wide variety sensitive information about the individuals from which the information comes and their associations, beliefs, speech and activities. Despite government claims that the collected data is “just metadata” and do “not include any information about the
34 Id. 35 Id. 36 OIG (2010), supra note 20, at 65. 37 Id. at 89-122. 38 Id. at 278.

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content” of phone calls, text messages, and emails, NSL data often can reveal information of the same character as that which could be obtained by listening in on a phone call or reading a text or email.39
In many instances, “non-content” data, such as NSL data, may be of even more value to government officials than content data. Since substantial non-content data analysis can be automated, non-content data surveillance often yields substantive information cheaper and faster than approaches such as traditional wiretapping, which can be more labor intensive.40 And unlike content data, the routine creation of non-content is often unavoidable and unprotectable. As computer scientist Matt Blaze noted, “we leave trails of metadata [non-content data] everywhere, anytime we reach out to another person.” There is almost no existing way to dust these trails.41 Due to § 2709’s broad scope, the relatively low cost of analysis, and the unprotected nature of non-content data, the FBI can use NSLs to determine everything from individuals’ actions, beliefs and religious and political affiliations to organizations’ structures and strategic plans to much more.

39 Administration White Paper, supra note 7, at 2.
40 Jane Mayer, supra note 5.
41 See Matt Blaze, Phew, NSA Is Just Collecting Metadata. (You Should Still Worry), Wired (June 16, 2013 9:30 AM), http://www.wired.com/opinion/2013/06/phew-it-was-just-metadata-not-thinkagain.

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A. Even a Single Call, Text, or E-mail Reveals Sensitive Information Though each NSL request can include information on thousands of interactions, a single phone call, text message, or email can already disclose deeply private information. In many instances, details about the content of a conversation can be deduced from the identity of the parties. Although data that the FBI receives does not explicitly state whom a subscriber has contacted—NSL requests contain telephone numbers or e-mail addresses, not names—it is trivially easy for the FBI to match these data to specific individuals. One way to do so is to issue another NSL. An even more straightforward approach is to conduct a search for a number or address either online or through a public database. Consider, for example, the phone number 916.446.5247, which a Google search can instantly connect to Planned Parenthood Affiliates of California. Or the email pacificregion@aa.org, which, even without a Google search, one could associate with Alcoholics Anonymous. More generally, research shows that the government can link identities associated with lesser-known phone numbers just as easily.42

42 See Rebecca J. Rosen, Stanford Researchers: It is Trivially Easy to Match Metadata to Real People, The Atlantic (Dec. 24, 2013 1:50 PM), http://www.theatlantic.com/technology/archive/2013/12/stanford-researchers-it-istrivially-easy-to-match-metadata-to-real-people/282642; Jonathan Mayer & Patrick Mutchler, MetaPhone: The Sensitivity of Telephone Metadata, Web Policy (Mar. (continued on next page)
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With just the identity of the other side of a record, the FBI can already learn
sensitive information about an individual. For example, certain phone lines are
reserved for a specific purpose: support hotlines for rape victims, domestic
violence victims, people contemplating suicide, or “listening lines” for gay and
lesbian youths.43 Such hotlines exist for veterans, first responders, drug addicts,
gambling addicts, and child abuse victims.44 Similarly, almost every federal, state,
and local agency, including the FBI, has established hotlines for reporting fraud
and misconduct by both internal and external sources.45 Likewise, some email
addresses are allocated to particular objectives, such as tipping off reporters about
a potential story.46 A 30-minute call or a lengthy email to any of these hotlines
(footnote continued from previous page) 12, 2014), http://webpolicy.org/2014/03/12/metaphone-the-sensitivity-oftelephone-metadata (finding that simple Google searches and a cheap, consumeroriented data tool could match 91% of a random sample of 100 phone numbers to specific individuals).
43 See, e.g., Gay, Lesbian, Bisexual and Transgender National Hotline, GLBT National Help Center (last visited Mar. 11, 2014), http://www.glbtnationalhelpcenter.org/hotline.
44 See, e.g., Childhelp National Child Abuse Hotline, Childhelp (last visited Mar. 14, 2014), http://childhelp.org/pages/hotline-home.
45 See, e.g., Barton Gellman, NSA Statements to the Post, Wash. Post, Aug 15, 2013, http://wapo.st/1ixchnm; Reporting Income Tax Fraud, State of California Franchise Tax Board (last visited Mar. 17, 2014), https://www.ftb.ca.gov/online/Fraud_Referral/important_information.asp.
46 See New York Times, Contact the Public Editor, NYTimes.com (last visited Mar. 18, 2014), http://publiceditor.blogs.nytimes.com/contact-the-public(continued on next page)
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reveals information that anyone would consider private. In each of these cases, even without knowing a single word of the phone conversation or email exchange, NSL data from the interaction discloses meaningful clues as to the underlying content. Though these hotlines and tip lines are meant to allow vital, anonymous expression, NSLs allow the FBI to strip away that safety and anonymity and expose both the individual and effectively the content of his or her speech.
In an empirical study highlighting the significance of NSL data in these situations, Stanford University researchers Jonathan Mayer and Patrick Mutchler demonstrated that substantial personal information could be revealed through a single phone call. Analyzing data from 546 volunteers’ phone calls to 33,688 unique numbers, Mayer and Mutchler discovered that a large proportion of participants contacted “sensitive organizations” in their daily lives.47 The table below shows the proportion of volunteers who made at least one call to an organization whose purpose revealed sensitive information about the caller:

(footnote continued from previous page) editor/; Mail & Guardian, Story Tip-Offs (last visited Mar. 18, 2014), http://mg.co.za/page/story-tip-offs.
47 Mayer & Mutchler, supra note 42 (“phone metadata is unambiguously sensitive, even in a small population and over a short time window. We were able to infer medical conditions, firearm ownership, and more, using solely phone metadata.”).
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Category
Health Services Financial Services Pharmacies Veterinary Services Legal Services Recruiting and Job Placement Religious Organizations Firearm Sales and Repair Political Officeholders and Campaigns Adult Establishments Marijuana Dispensaries

Participants with ≥ 1 Calls
57% 40% 30% 18% 10% 10% 8% 7% 4% 2% 0.4%

As several of these categories suggest, NSL data from a single interaction can reveal sensitive information about possible civil legal disputes or criminal activity. Sensitive information obtained through NSLs is shared with U.S. Attorney’s Offices,48 and a call to a marijuana dispensary, an email to CustomerService@GunsAmerica.com, or a text message to a known gang member, could all serve as reason to begin an investigation or as evidence in a later criminal case, even where the individual was not suspected of anything at the time of the NSL. Contacting a defense attorney may even indicate concerns about criminal activity.
Furthermore, how and when governmental authorities act on these potentially incriminating communications depends solely on their interpretation of

48 OIG (2007), supra note 10, at xxiii.

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the data. If the picture that NSL data paints is inaccurate or incomplete, it can lead to unnecessary arrests, unexplained detentions, or at the very least, a further invasion of an individual’s privacy through additional searches.49
In the extreme, NSL data can reveal information even more sensitive than the actual contents of the communication itself. Consider, for instance, the case of text message donation hotlines. Set up as partnerships between wireless telephone carriers and non-profit organizations, these donation hotlines enable wireless subscribers to donate to charities through cellular text messages. By sending a message to a predetermined phone number, a subscriber triggers the wireless carrier to make a donation and add the amount to his monthly bill. In one such program to support of victims of the Haitian earthquake, the American Red Cross enabled thousands of subscribers to text HAITI to 90999 to donate $10.50
In recent years, text-message donation hotlines have gained popularity and expanded to numerous organizations such as churches, cancer research

49 See Griffin Boyce and Brian Duggan, The Real Reason Why Metadata Collecting Is Dangerous, New America Foundation (June 17, 2013 4:54 PM), http://inthetank.newamerica.net/blog/2013/06/real-reason-why-metadatacollecting-dangerous.
50 See Declaration of Edward W. Felten, ACLU v. Clapper, No. 13-cv-03994 (WHP) (S.D.N.Y. Aug. 23, 2013), ECF No. 27 (“Felten Decl.”), 16.
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foundations, and reproductive services organizations like Planned Parenthood.51 After a policy change by the Federal Election Commission in 2012, these programs have even invaded electoral campaigns. Candidates such as Barack Obama and Mitt Romney raised money directly via text messages.52
In these interactions, the significant information—the identity of the recipient organization and size of the donation—is contained in the NSL data, not in the content of text messages such as “HAITI.” The NSL data alone is sufficient to determine whether the sender was donating (and how much) to a church, Planned Parenthood, or a particular political campaign.
B. Patterns of Calls, Texts, and Emails Reveal Even More Sensitive Information
In addition to inferences from a single communication, the FBI can gain a far richer and more deeply revealing picture of the contours of a person’s life using data-analysis techniques that assess patterns of activity—who an individual contacts, how frequently, and when. By analyzing the hundreds to hundreds of thousands of data points returned in response to each NSL request, the FBI can
51 See Donate by Text, Susan G. Komen for the Cure (last visited Mar. 11, 2014), http://ww5.komen.org.
52 See, e.g., Dan Eggen, Text ‘Give’ to Obama: President’s Campaign Launches Cellphone Donation Drive, Wash. Post (Aug. 23, 2012), http://www.washingtonpost.com/politics/text-give-to-obama-presidents-campaignlaunches-cellphone-donation-drive/2012/08/23/5459649a-ecc4-11e1-9ddc340d5efb1e9c_story.html.

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learn an individual’s religion, sleep patterns, work habits, hobbies, number and location of friends, and even civil and political affiliations. By combining data from multiple requests about multiple individuals, the FBI can deduce the nature and function of entire organizations, and how the people within them interact.
1. Social Graph and Predictive Modeling Techniques are Easy to Implement and Immensely Informative
The recent evolution of two tools, social graphs and predictive modeling, add particular potency to the aggregation of data gathered through NSLs. With respect to the first, publicly available software packages can generate social graphs from datasets such as the FBI’s NSL database. These software packages take a dataset of non-content data and output a graphical image of an individual’s patterns of communication or of communications among members of a group. Consider two such software packages: MIT’s Immersion and IBM’s i2 Analyst’s Notebook.
MIT’s Immersion uses the “From, To, Cc and Timestamp” fields of a person’s emails—all included in response to NSL requests for electronic transaction communications records—to create a “people-centric view” of that person’s life. In under a minute, the software churns through thousands of emails and spits out a network of individuals and organizations with which the user has communicated, highlighting key contacts and linking contacts with each other. By tracking interactions across time, Immersion can also trace the development of relationships. Based on the frequency of the emails exchanged, the software
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visualizes a growth or contraction of connections between not only the original user, but also other individuals in his network, detailing his “personal and professional history.”53

Figure 1: An Immersion user's network, visualized as a social graph
Figure 2: The Immersion user's network a week earlier. The expansion and contraction of circles provide a visual interpretation of relationship development between individuals in the network.
53 See Immersion, MIT Media Lab (last visited Mar. 17, 2014), https://immersion.media.mit.edu.
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IBM’s more sophisticated i2 Analyst’s Notebook software uses the same basic ideas to identify key people, events, and connections in networks described by much larger datasets.54 For example, the Environmental Investigation Agency used Analyst’s Notebook to process non-content data from undercover investigations in order to accurately map out a criminal international tiger trafficking network.55
Either in conjunction with or independent of social graphs, the FBI can also use predictive modeling to derive sensitive information about individuals and groups from the data it has gathered through NSLs. Predictive models allow analysts to use known patterns of activity to make specific and highly accurate predictions about individual and organizational attributes, such as race, religion, or leadership structure. For example, happily married couples often call each other many times a week. If an analyst applied a predictive model based on this pattern to a set of toll billing records for an individual who had called her spouse infrequently for many months, the model might indicate that she had between a predictable chance of filing for divorce within one year.

54 See Analyst’s Notebook, IBM (last visited Mar. 17, 2014), http://www03.ibm.com/software/products/en/analysts-notebook-family.
55 See IBM, Environmental Investigation Agency: IBM i2 Solution Help Combat the Illegal Tiger Trade (2012).
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The larger the dataset a researcher has upon which to build a predictive model, the more precise the model will be. If a certain calling pattern is only seen in a few married couples, then applying a model based on that pattern to new data will yield only weak inferences. But if the same pattern is seen in 5,000 couples, a model based on the pattern will offer opportunities to ask nuanced queries and make inferences with confidence. For instance, a researcher could query the likelihood of divorce in six months and in two years, and the confidence intervals around results might be plus or minus 5% rather than 10%. Given the vast data set that NSLs provide—including hundreds of millions of observations, as estimated above—it is almost certain that FBI researchers have created sophisticated and highly precise predictive models. Even if they have not, there is an extensive public literature on predictive modeling upon which the Bureau can draw.
Though the FBI has developed its data-analysis tools in order to improve its terrorism and espionage investigations, these dual-use tools are even easier to apply to ordinary Americans. As Matt Blaze argues, “[t]he better understood the patterns of a particular group’s behavior, the more useful it is. This makes using metadata [non-content data] to identify lone-wolf Al Qaeda sympathizers (a tiny minority about whose social behavior relatively little is known) a lot harder than, say, rooting out Tea Partiers or Wall Street Occupiers, let alone the people with

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whom we share our beds.”56 2. NSL Data Reveal Extensive Private Personal, Political, Associational, Religious, Corporate, Medical, and Financial Information
As we lack access to the FBI’s massive database of NSL data, we cannot say with precision what applying social graphs and predictive models to this data would reveal. But even relatively naïve analyses of this data yields information on medical conditions, religious affiliations, relational and political networks, corporate structures, and finances. Comprehensively applying social graphs and predictive modeling to millions of observations would only increase the sensitivity of many of these inferences.
First, information obtained through NSLs can reveal substantial information about the operations of political groups. A social graph derived from NSL data can reveal an association’s otherwise anonymous membership, donors, political supporters, and confidential sources. As former NSA official William Binney has stated, the government could use data analysis to “monitor the Tea Party, or reporters, whatever group or organization you want to target. . . It’s exactly what

56 Matt Blaze, Phew, NSA Is Just Collecting Metadata. (You Should Still Worry), Wired (June 16, 2013 9:30 AM), http://www.wired.com/opinion/2013/06/phew-it-was-just-metadata-not-thinkagain.

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the Founding Fathers never wanted.”57 Even a cursory analysis of the frequency of communications among members could distinguish who within a grassroots movement is an ardent organizer and who is a casual participant. With more detailed study, as Susan Landau noted, non-content data can even show “if opposition leaders are meeting, who is involved, where they gather, and for how long.”58
Second, NSL data disclose a great deal about the strength of personal relationships. Generally, a person one calls once a week is more likely to be a close friend than someone one calls once a year.59 More specifically, consider an NSL request made with regards to a man in an illicit intimate relationship. The data returned in reply to this request might show he makes long, frequent calls to his mistress late at night, in contrast to the short, sparse calls made to his wife. Eventually, the affair may end, and the frequency of the calls to the mistress might drop or end entirely. Or, perhaps the affair continues and he begins to communicate frequently with an attorney specializing in divorce. Precisely in this vein, it was FBI analysis of non-content data similar to NSL data that ultimately

57 Jane Mayer, supra note 5 (quoting interview with Binney) (internal quotation marks omitted).
58 Jane Mayer, supra note 5 (quoting interview with Susan Landau). 59 See Felten Decl., 17.

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revealed former CIA director David Petraeus’s affair with Paula Broadwell. While looking into allegations of another sort, the FBI linked together multiple email addresses used by Broadwell to uncover the affair that ended both participants’ public careers.60
Third, the FBI can easily infer religious affiliation and association from information gained ghrough NSLs. On the most basic level, adherents of particular religions likely call organizations affiliated with their religion more often than they call organizations affiliated with other religions. Relying only on “the naïve assumption” that this is true, Mayer and Mutchler accurately identified the religion of 73% of participants.61
Additionally, adherents of different religions may exhibit notable patterns of phone calls, emails, and text messages. For example, the NSL data of an individual who strictly observes the Sabbath would show no communications on Saturdays, while that of an individual who regularly attends church on Sunday mornings would show little activity at that time. NSL data of an individual who is Muslim

60 See Hal Hodson, How Metadata Brought Down CIA Boss David Petraeus, NewsScientist (Nov. 16, 2013 1:59 PM), http://www.newscientist.com/article/dn22511-how-metadata-brought-down-ciaboss-david-petraeus.html.
61 Mayer & Mutchler, supra note 42.
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and recites the Isha prayer nightly might show more activity between dawn and dusk if that individual communicates with others before or after prayers.
Furthermore, on an organizational level, a social graph of email data could disclose a network of friends who frequent the same religious services. An evolution of this social graph over time could reveal when an individual changed faiths or began to frequent a different place of worship. It could also show who manages the religious social community, which members are most active, and to whom certain members turn for advice at critical moments.
Fourth, NSL data can reveal internal or external dynamics within the corporate sector. For example, NSL data can reveal the relative power of employees within a firm. As The Economist observed: “People at the top of the office or social pecking order often receive quick callbacks [and] do not worry about calling other people late at night.”62 The lengths of phone calls can also be indicative: “Influential [people] reveal their clout by making long calls, while the calls they receive are generally short.”63
NSL data can also expose valuable information about a company’s future. Multiple calls among a subset of the members of a board of directors over a short
62 Mining Social Networks: Untangling the Social Web, Economist (Sept. 2, 2010), http://www.economist.com/node/16910031.
63 Id.

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period of time and soon before a board meeting might evince intentions to stage a corporate takeover. Correspondence by executives at a smaller firm with those at a larger competing firm, and then investment banks and attorneys who specialize in acquisitions, could indicate a coming sale of the company.
Fifth, NSL data can reveal substantial information about someone’s personal finances. As noted above, Mayer and Mutchler found that over half of individuals in their sample called at least one of their financial institutions over only the fewmonth time horizon of their study. An individual in debt would have frequent contact with entities identifiable as debt collectors and might contact payday loan services or an attorney who specializes in Chapter 7 bankruptcy filings. Someone who provides funds to a relative abroad might receive more emails from Western Union than is typical and might contact foreign banking organizations. Moreover, NSL data obtained through ECPA’s provisions is only one subset of all NSL data that the FBI can collect. Other statutes provide authority to demand full credit reports, for example, data that could quickly corroborate evidence derived from ECPA NSLs.
Finally, patterns in data obtained through FBI use of NSLs can reveal an enormous amount of sensitive information about medical conditions. Consider, for instance, the inferences derived from personal records showing “a call to a gynecologist, and then a call to an oncologist, and then a call to close family

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members.”64 Mayer and Mutchler’s study empirically documents this possibility. Relying on patterns of phone calls to certain kinds of doctors, laboratories, pharmacies, and home-reporting hotlines, Mayer and Mutchler deduced that one participant in their study suffered from cardiac arrhythmia and another from relapsing multiple sclerosis. For a third, they observed that the participant had a long morning call with her sister, then two days later placed a series of calls to the local Planned Parenthood clinic, placed additional calls to the clinic two weeks later, and then made a final call a month afterwards.65
In a different context, a recent, widely reported incident involving Target illustrates how predictive models can enhance these inferences. Using extensive customer data, Target determined that pregnant women are more likely to buy certain products at different stages of pregnancy. To capitalize on this trend, Target used its database to create a “pregnancy prediction” score upon which it based an advertisement campaign offering targeted coupons to women in different trimesters. In so doing, Target discovered incredibly private information about its customers’ reproductive choices and, in at least one case, determined that a teenage girl was pregnant and sent her pregnancy related coupons before even her father

64 Jane Mayer, supra note 5 (quoting Susan Landau) (internal quotation marks omitted).
65 See Mayer & Mutchler, supra note 42.

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found out.66 These types of patterns that can easily be discerned from aggregated

information are often far more revealing than one might ever imagine from any

individual piece of data.

CONCLUSION

The reach of NSL demands for information into the private lives of ordinary

Americans is nearly limitless. Contradicting government claims that NSL data does

not include content, simple analysis of NSL data can reveal a wide variety of any

American’s otherwise anonymous political activity or beliefs, close relationships,

religious affiliations, personal or community associations, medical records,

financial data and more. The FBI can learn deeply sensitive information about the

daily life of almost every person in this country without meaningful, affirmative

judicial approval.

DATED: March 28, 2014

Respectfully submitted,
JUELSGAARD INTELLECTUAL PROPERTY & INNOVATION CLINIC Mills Legal Clinic at Stanford Law School

By: /s/ Phillip R. Malone Phillip R. Malone
Counsel for Amici Curiae
66 See Charles Duhigg, How Companies Learn Your Secrets, NYTimes.com (Feb. 16, 2012), http://www.nytimes.com/2012/02/19/magazine/shoppinghabits.html?pagewanted=1&_r=1&hp.

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STATEMENT OF RELATED CASES
Consolidated cases Under Seal v. Holder, et al. , No’s. l3-15957 and 1316731, and Under Seal v. Holder, et al. , No. l3-16732, which involve the same legal issues but different NSL recipients, are related. This Court has ordered that No’s. l3-15957 and 13-16731 be briefed separately from, but on the same briefing and oral argument schedule as, No. l3-16732.

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CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS AND TYPE STYLE
REQUIREMENTS PURSUANT TO FED. R. APP. P. 32(a)(7)(C)
Pursuant to Fed. R. App. P. 32(a)(7)(C), I certify as follows: 1. This Brief Amici Curiae complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) and 29(d) because this brief contains 6,925 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii); and 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word for Mac 2011, the word processing system used to prepare the brief, in 14 point Times New Roman font. I declare under penalty of perjury that this Certificate of Compliance is true and correct and that this declaration was executed on March 28, 2014.

By: /s/Phillip R. Malone Phillip P. Malone
JUELSGAARD INTELLECTUAL PROPERTY & INNOVATION CLINIC
Counsel for Amici Curiae

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EXHIBIT A

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EXHIBIT A List of Amici and Short Biographies1 Harold Abelson is a Professor in the Department of Electrical Engineering and Computer Science at the Massachusetts Institute of Technology. A fellow at the Institute of Electrical and Electronic Engineers (IEEE), he was awarded the 2011 Association for Computing Machinery (ACM) Special Interest Group on Computer Science Education Award for Outstanding Contribution to Computer Science Education and the 2012 ACM Karl V. Karlstrom Outstanding Educator Award. Professor Abelson’s research interests focus on information technology and policy; he is also an advocate of intellectual property reform, innovation, and an open Internet. His publications include Access Control is an Inadequate Framework for Privacy Protection and Blown to Bits: Your Life, Li berty, and Happiness After the Digital Explosion. Andrew W. Appel is the Chair of and a Professor in Princeton University’s Computer Science Department. He was named an ACM Fellow in 1998 and received the 2002 ACM Special Interest Group on Programming Languages (SIGPLAN) Distinguished Service Award. Professor Appel is active in issues related to the intersection between law and technology, focusing his research
1 Amici file this brief in their individual capacities, not as representatives of the institutions with which they are affiliated.

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primarily on program verification, computer security, programming language semantics, and compilers. His publications include Compiling with Continuations and Security Seals on Voting Machines: A Case Study. Steven M. Bellovin is a Professor in the Computer Science Department at Columbia University. He was elected to the National Academy of Engineering in 2001 and awarded the NIST/NSA National Computer Systems Security Award in 2006. Professor Bellovin’s research focuses on networks, security, and the tensions between the two. Examples of his publications include Firewalls and Internet Security: Repelling the Wily Hacker, Facebook and privacy: It's complicated, and When Enough Is Enough: Location Tracking, Mosaic Theory, and Machine Learning. Matthew A. Blaze is an Associate Professor in the Computer and Information Science Department at the University of Pennsylvania where he also directs the Distributed Systems Lab Research. He implemented the Crytographic File System for Unix in 2002, which remains in use today. Professor Blaze’s research interests center cryptography and its applications, trust management, human scale security, secure systems design, and networking and distributed computing. Several recent publications include Going Bright: Wiretapping Without Weakening Communication Infrastructure and Notes on Theoretical Limitations and Practical Vulnerabilities of Internet Surveillance Capture.

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Fernando J. Corbato is Professor Emeritus in the Department of Electrical Engineering and Computer Science at M.I.T. He has achieved wide recognition for his pioneering work on the design and development of multiple-access computer systems. He was associated with the M.I.T. Computation Center from its organization in 1956 until 1966. In 1963 he was a founding member of Project MAC, the antecedent of CSAIL. In 1990, Prof. Corbato received the Turing Award, "for his pioneering work in organizing the concepts and leading the development of the general-purpose, large-scale, time-sharing and resource-sharing computer systems." At his retirement in 1996, Prof. Corbato held a Ford Professor of Engineering Chair. Lorrie Faith Cranor is an Associate Professor of Computer Science and of Engineering and Public Policy at Carnegie Mellon University. She is also the director of the CyLab Usable Privacy and Security Laboratory. Professor Cranor was the 2006 Phase 1 Winner of the Tor Graphical User Interface Design Competition and 2004 IBM Best Academic Privacy Faculty Award. Her work has been widely recognized, most recently being awarded the Future of Privacy Forum Privacy Papers for Policy Makers 2012 award for Leading Paper. Her research interests focuses on usable privacy and security, with recent publications including The Platform for Privacy Preferences 1.0 (P3P 1.0) Specification and Privacy in ECommerce: Examining User Scenarios and Privacy Preferences. David Farber is the Distinguished Career Professor of Computer Science and Public Policy in the School of Computer Science at Carnegie Mellon University. He has been a major contributor to the development of computer networking and
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computer programming languages. Professor Farber served as Chief Technologist to the FCC from 2000 to 2001 and received the 1995 ACM Special Interest Group on Data Communications Award for lifelong contributions to the computer communications field. His publications include A Secure and Reliable Bootstrap Architecture and Recoverability of Communication Protocols—Implications of a Theoretical Study. Edward W. Felten is is the Robert E. Kahn Professor of Computer Science and Public Affairs, and the Director of the Center for Information Technology Policy, at Princeton University. He has published more than 100 papers in the research literature. In 2011-12 he served as the first Chief Technologist at the Federal Trade Commission. He has testified before Congressional hearings on topic including surveillance and privacy. He is a member of the National Academy of Engineering and the American Academy of Arts and Sciences. Michael J. Freedman is an Associate Professor in the Computer Science Department at Princeton University. His research broadly focuses on distributed systems, security, and networking, and has led to commercial products and deployed systems reaching millions of users daily. His privacy-related research has developed techniques for untrusted and encrypted cloud services, anonymous communication systems, and secure multi-party computation. A recipient of the Presidential Early Career

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Award for Scientists and Engineers (PECASE), Freedman has also been

recognized by a National Science Foundation CAREER Award, the Office of

Naval Research's Young Investigator Award, membership in DARPA's

Computer Science Study Group, an Alfred P. Sloan Fellowship, and

multiple conference award publications.

Matthew D. Green is an Assistant Research Professor in the Department of

Computer Science at Johns Hopkins University. He received the 2007 Award for

Outstanding Research in Privacy Enhancing Technologies. Professor Green’s

research interests include privacy-enhanced information storage, anonymous

payment systems, and bilinear map-based cryptography as well as cryptographic

engineering. His publications include Improved Proxy Re-Encryption Schemes with

Applications to Secure Distributed Storage

and Security Analysis of a

Cryptographically-Enabled RFID Device.

J. Alex Halderman is an Assistant Professor of Electrical Engineering and

Computer Science at the University of Michigan. His work has won numerous

distinctions, including two best paper awards from the USENIX Security

conference. Professor Halderman's research focuses on computer security and

privacy, with an emphasis on problems that broadly impact society and public

policy. His publications include Telex: Anticensorship in the Network

Infrastructure and Lest We Remember: Cold-Boot Attacks on Encryption Keys.

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Robert Harper is a Professor of Computer Science at Carnegie Mellon University, where he has been a member of the faculty since 1988. His research focuses on the application of constructive type theory, a computationally based foundation for mathematics, to programming languages and program verification. He was elected as an ACM Fellow in July of 2006. He is the co- recipient of the 2006 Most Influential Paper Ten Years Later Award from the ACM Conference on Programming Language Design and Implementation and of the 2007 Test of Time Award from the IEEE Conference on Logic in Computer Science. He is a past editor of the Journal of the ACM, and is currently a member of the editorial board for the Journal of Functional Programming, Information and Computation, and Mathematical Structures in Computer Science. He was honored with the Allen E. Newell Award for Excellence in Research, and the Herbert A. Simon Award for Excellence in Teaching, both at Carnegie Mellon University. David Mazieres is associate professor of Computer Science at Stanford University, where he leads the Secure Computer Systems research group. Prof. Mazieres received a BS in Computer Science from Harvard in 1994 and Ph.D. in Electrical Engineering and Computer Science from MIT in 2000. Prof. Mazieres's research interests include Operating Systems and Distributed Systems, with a particular focus on security. Prof. Mazieres has several awards including a Sloan award (2002), USENIX best paper award (2001), NSF CAREER award (2001),

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MIT Sprowls best thesis in computer science award (2000), and fast-track journal papers at OSDI (2000), SOSP (1995), and SOSP (2005). Greg Morissett is the Allen B. Cutting Professor of Computer Science at Harvard University, where he also served as the Associate Dean for Computer Science and Engineering from 2007-2010. Prof. Morrisett has received a number of awards for his research on programming languages, type systems, and software security, including a Presidential Early Career Award for Scientists and Engineers, an IBM Faculty Fellowship, an NSF Career Award, and an Alfred P. Sloan Fellowship. He was recently made a Fellow of the ACM. He currently serves on the editorial board for The Journal of the ACM and as co-editor-in-chief for the Research Highlights column of Communications of the ACM. In addition, Prof. Morrisett has served on the DARPA Information Science and Technology Study (ISAT) Group, the NSF Computer and Information Science and Engineering (CISE) Advisory Council, Microsoft Research's Technical Advisory Board, and Microsoft's Trusthworthy Computing Academic Advisory Board. James Purtilo is an Associate Professor of Computer Science at the University of Maryland, College Park, where he specializes in software producibility and product assurance. Purtilo has published on software formal methods, rapid prototyping and testing, most recently with a focus on mechanisms for intrusion detection and prevention in secure systems. At the University of Maryland, he has

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served as director of the Master of Software Engineering Program on his campus, Associate Dean in his college and Chair of CS Department's undergraduate program. Ronald L. Rivest is a Professor of Electrical Engineering and Computer Science at the Massachusetts Institute of Technology. A founder of RSA Security and Peppercoin, Professor Rivest was received the 2012 National Cyber Security Hall of Fame and 2005 Massachusetts Innovation & Technology Exchange (MITX) Lifetime Achievement Award. His research primarily focuses on cryptography and computer and network security. His recent publications include Introduction to Algorithms and A Method f or Obtai ning Digi tal Si gnatures and Public-Key Cryptosystems. Avi Rubin is a Professor of Computer Science at Johns Hopkins University and Technical Director of the Johns Hopkins Information Security Institute. He was the Director of the USENIX Association from 2000 to 2004 and a recipient of the 2007 Award for Outstanding Research in Privacy Enhancing Technologies. His research primarily focuses on computer security. His recent publications include Charm: A Framework for Rapidly Prot otyping C ryptosystems and Security and Privacy in Implantable Medical Devices and Body Area Networks. Barbara Simons is retired from IBM Research. She is the only woman to have received the Distinguished Engineering Alumni Award from the College of

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Engineering of U.C. Berkeley. A fellow of the American Association for the Advancement of Science (AAAS) and a fellow and former president of the Association for Computing Machinery (ACM), she has also received the Computing Research Association Distinguished Service Award. An expert on electronic voting, Simons recently published Broken Ballots: Will Your Vote Count?, a book on voting machines co-authored with Douglas Jones. She was appointed to the Board of Advisors of the U.S. Election Assistance Commission in 2008, and she was a member of the workshop, convened at the request of President Clinton, that produced a report on Internet Voting in 2001. Eugene H. Spafford is a Professor in the Department of Computer Science at Purdue and serves as the Executive Director of Purdue’s Center for Education and Research in Information Assurance and Security. He was an advisor to the National Science Foundation (NSF) and is the Editor-in-Chief of the Elsevier journal, Computers & Security. Professor Spafford was inducted into the Cybersecurity Hall of Fame in 2013 and received the 2007 ACM President’s Award. His research focuses on preventing, detecting, and remedying information system failures and information security. He has published many articles and books including Practical UNIX and Inte rnet Security and Web Security, Privacy & Commerce.

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Daniel S. Wallach is a Professor of Computer Science and a Rice Scholar at the Baker Institute for Public Policy at Rice University. A member of the USENIX Association Board of Directors, he received the 2013 Microsoft Faculty Research Award, 2009 Google Research Award, and 2000 NSF CAREER Award. Professor Wallach’s research primarily focuses on computer security and has touched on issues include web browsers and servers, peer-to-peer systems, smartphones, and voting machines. His publications include VoteBox: A Tamper-evident, Verifiable Electronic Voting System and Secure Routing for Structured Peer-to-Peer Overlay Networks.

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CERTIFICATE OF SERVICE

I certify that I caused the foregoing BRIEF AMICI CURIAE OF EXPERTS IN
COMPUTER SCIENCE AND DATA SCIENCE IN SUPPORT OF APPELLANTS
to be delivered to the court by placing the same for Federal Express next-business-
day delivery on March 31, 2014, addressed as follows:
Susan Soong, Chief Deputy Clerk - Operations U.S. Court of Appeals for the Ninth Circuit 95 7th Street San Francisco, CA 94103
I am informed and believe that the court will effect service on the parties.
Dated: March 31, 2014
/s/ Lynda F. Johnston LYNDA F. JOHNSTON

 
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No. 13-16732 UNDER SEAL

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNDER SEAL, PETITIONER- APPELLANT,
V.
ERIC H. HOLDER, Jr., Attorney General; UNITED STATES DEPARTMENT OF JUSTICE; FEDERAL BUREAU OF INVESTIGATION, RESPONDENTS-APPELLEES.

On Appeal From the United States District Court for the Northern District of California Case No. 13-cv-1165 SI
Honorable Susan Illston, District Court Judge

BRIEF OF AMICI CURIAE CONGRESSWOMAN ZOE LOFGREN (D-CA), CONGRESSMAN THOMAS MASSIE (R-KY),
CONGRESSMAN JARED POLIS (D-CO), AND CONGRESSWOMAN ANNA G. ESHOO (D-CA)
IN SUPPORT OF PETITIONER

Marcia Hofmann 25 Taylor Street San Francisco, CA 94102 Telephone: (415) 830-6664 marcia@marciahofmann.com
Counsel for Amici Curiae

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TABLE OF CONTENTS

I. II. TABLE OF AUTHORITIES.................................................................................................ii
STATEMENT OF AMICI CURIAE ....................................................................................1
INTRODUCTION ..................................................................................................................3
ARGUMENT ............................................................................................................................4
I. NATIONAL SECURITY LETTERS RAISE SPECIAL OVERSIGHT CONCERNS BECAUSE, UNLIKE OTHER FORMS OF INVESTIGATIVE PROCESS, THEY ARE ISSUED DIRECTLY BY THE FBI, ARE NOT SUBJECT TO PRIOR JUDICIAL REVIEW, AND ARE ALMOST ALWAYS ACCOMPANIED BY A PERMANENT NON-DISCLOSURE ORDER. ..............................................................................................................................4
A. The USA PATRIOT Act’s Expansion of Section 2709 Resulted in the FBI’s Systematic Misuse of National Security Letters and Undermined Congress’ Ability to Oversee the Bureau’s Use of This Tool. ................................................5
B. National Security Letters are a Uniquely Problematic Form of Legal Process Because They Permit Investigators to Demand Information and Silence Recipients With No Prior Judicial Oversight. ......................................................10
II. THE OPEN-ENDED NON-DISCLOSURE ORDERS THAT ACCOMPANY NATIONAL SECURITY LETTERS RAISE SUBSTANTIAL FIRST AMENDMENT CONCERNS BECAUSE THEY BAR RECIPIENTS FROM DISCLOSING IMPORTANT INFORMATION TO THEIR CUSTOMERS, CONGRESS, AND THE PUBLIC. ...........................................14

CONCLUSION ......................................................................................................................20

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TABLE OF AUTHORITIES

CASES Butterworth v. Smith, 494 U.S. 624 (1990).............................................................................. 12 California v. Acevedo, 500 U.S. 565 (1991) ............................................................................. 11 Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004),
vacated sub nom. Doe v. Gonzales, 449 F.3d 415 (2d Cir. 2006) .................................. 10, 12 Doe v. Mukasey, 549 F.3d 861 (2d Cir. 2008)....................................................................... 15 In re Nat’l Sec. Letter, 930 F. Supp. 2d 1064 (N.D. Cal. 2013) .......................................... 15 Johnson v. United States, 333 U.S. 10 (1948) .......................................................................... 11 Press-Enter. Co. v. Superior Ct., 478 U.S. 1 (1986)................................................................. 12 United States v. Powell, 379 U.S. 48 (1964) ............................................................................ 12 United States v. R. Enters., Inc., 498 U.S. 292 (1991) ............................................................ 12
STATUTES 12 U.S.C. § 3414 ........................................................................................................................4 15 U.S.C. § 1681(u) ...................................................................................................................4 15 U.S.C. § 1691(v)....................................................................................................................4 18 U.S.C. § 2703 ............................................................................................................... 10, 13 18 U.S.C. § 2705 ............................................................................................................... 11, 13 18 U.S.C. § 2709 ..............................................................................................................passim 18 U.S.C. § 3511 ............................................................................................................. 3, 4, 15

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20 U.S.C. § 1232g ................................................................................................................... 13

50 U.S.C. § 1861 .........................................................................................................10, 13, 14

50 U.S.C. § 3162 ........................................................................................................................4

Electronic Communications Privacy Act, 18 U.S.C. §§ 2501 et seq................................................................................................. 5, 13

USA PATRIOT Act, Pub. L. No. 107-56, 115 Stat. 272 (2001) ................................................................ 5, 6, 13

USA PATRIOT Improvement and Reauthorization Act, Pub. L. No. 109-177, § 119 (2005) ......................................................................................6

CONSTITUTIONAL PROVISIONS U.S. CONST. AMEND. VI ....................................................................................................... 12

FEDERAL RULES OF CRIMINAL PROCEDURE Federal Rule of Criminal Procedure 6................................................................................. 12 Federal Rule of Criminal Procedure 17 .............................................................................. 12 Federal Rule of Criminal Procedure 41 .............................................................................. 10

LEGISLATIVE MATERIALS Surveillance Order Reporting Act of 2013,
H.R. 3035, 113th Cong. (introduced Aug. 2, 2013) ....................................................... 19
USA FREEDOM Act, H.R. 3361, 113th Cong. (introduced Oct. 29, 2013) ..................................................... 18
USA FREEDOM Act, S. 1599, 113th Cong. (introduced Oct. 29, 2013) .......................................................... 18

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OTHER AUTHORITIES Apple, Update on National Security and Law Enforcement Orders (Jan. 27, 2014) ................ 16
Brad Smith, General Counsel and Executive Vice President, Legal & Corporate Affairs, Microsoft, Providing Additional Transparency on US Government Requests for Data (Feb. 3, 2014)....................................................................................................................... 16

Charles Doyle, Senior Specialist, American Law Division, Congressional Research Service, Administrative Subpoenas in Criminal Investigations (March 17, 2006). ......... 11, 12

Charles Doyle, Senior Specialist, American Law Division, Congressional Research Service, National Security Letters in Foreign Intelligence Investigations: A Glimpse at the Legal Background 6-7 (Jan. 3, 2014) ................................................................................................4
Department of Justice, Criminal Division, Computer Crime and Intellectual Property Section, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations (2009) .............................................................................................................. 11

Department of Justice, Inspector General, A Review of the Federal Bureau of Investigation’s Use of Exigent Letters and Other Informal Requests for Telephone Records (Jan. 2010) ...... 8, 9

Department of Justice, Office of Legal Policy, Report to Congress on the Use of Administrative Subpoena Authorities by Executive Branch Agencies and Entities (2002) ...... 13
Department of Justice, Office of the Inspector General, A Review of the FBI’s Use of National Security Letters: Assessment of Corrective Actions and Examination of NSL Usage in 2006 (March 2008) ...................................................................................................6, 7, 8, 9

Department of Justice, Office of the Inspector General, A Review of the Federal Bureau of Investigation’s Use of National Security Letters (March 2007) .................................... 6, 7, 8
Dropbox, 2013 Transparency Report (last visited April 10, 2014) ...................................... 16

Facebook, Global Government Requests Report (last visited April 10, 2014) ....................... 16
Google, Transparency Report: Shedding More Light on National Security Letters (March 5, 2013) ..................................................................................................................................... 16
Jeremy Kessel, Manager, Global Legal Policy, Fighting for more #transparency (Feb. 6, 2014) ..................................................................................................................................... 18

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Kenneth R. Carter, CloudFlare, CloudFlare Transparency Report on National Security Orders (Jan. 27, 2014) ..................................................................................................................... 16
Letter From James M. Cole, Deputy Attorney General, Department of Justice, to General Counsels of Facebook, Google, LinkedIn, Microsoft, and Yahoo, Jan. 27, 2014 ...................................................................................................................................... 17
Liberty and Security in a Changing World: Report and Recommendations from the President’s Review Group on Intelligence and Communications Technologies (Dec. 12, 2013)...........passim
LinkedIn, Transparency Report 1H 2013 (Feb. 3, 2014)....................................................... 16
Ryan Gallagher, Tech Giants United in Court to Fight Against Government Surveillance Secrecy, Slate, Sept. 10, 2013............................................................................................................ 17
Verizon Transparency Report (last visited April 10, 2014)..................................................... 16

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STATEMENT OF INTEREST OF AMICI CURIAE Congresswoman Zoe Lofgren represents California’s Nineteenth District in the 113th Congress. She was elected to her first term in 1994. She serves on the House Committee on the Judiciary, the Committee on Science, Space, and Technology, and the Committee on House Administration. Congresswoman Lofgren champions government oversight and transparency. She introduced H.R. 3035, the Surveillance Order Reporting Act of 2013, and co-sponsors H.R. 3361, the USA FREEDOM Act. Congressman Thomas Massie represents Kentucky’s Fourth District in the 113th Congress. He was elected to his first term in 2012. He serves on the House Committee on Transportation and Infrastructure, the Committee on Science, Space, and Technology, and the Committee on Oversight and Government Reform. Congressman Massie is a staunch defender of the Constitution and an unwavering advocate for individual liberty and privacy rights. He is a co-sponsor of the Surveillance Order Reporting Act and the USA FREEDOM Act. Congressman Jared Polis represents Colorado’s Second District in the 113th Congress. He was elected to his first term in 2008. He serves on the House Committee on Education and the Workforce and the Committee on Rules. Prior to being elected to Congress, Representative Polis was an Internet entrepreneur, starting several successful businesses and gaining an appreciation for the importance of government transparency in the creation and implementation of laws and regulations. Representative Polis has introduced the Email Privacy Act to enhance privacy

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protections for information stored by electronic communication service providers. He

is also a co-sponsor of the USA FREEDOM Act.

Congresswoman Anna G. Eshoo represents California’s Eighteenth District in

the 113th Congress. She was elected to her first term in 1992. She is a senior member

of the House Energy and Commerce Committee and is the Ranking Member of the

Communications and Technology Subcommittee. Congresswoman Eshoo served on

the House Permanent Select Committee on Intelligence from 2003-2009, and, in the

113th Congress, she is a cosponsor of the Email Privacy Act and the USA FREEDOM Act.1

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	   
1 This brief is filed with the consent of all parties. It was not written in whole or part by current counsel for any party, though the undersigned attorney served as counsel for one of the petitioners in the district court while employed as a senior staff attorney at the Electronic Frontier Foundation. She currently holds an honorary, uncompensated position as Special Counsel to EFF. No person or entity other than undersigned counsel or amici has made a monetary contribution to the preparation or submission of this brief.
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INTRODUCTION

This case concerns the constitutionality of 18 U.S.C. §§ 2709 and 3511, which

allow the Federal Bureau of Investigation to issue national security letters (NSLs) in

counterintelligence investigations to demand non-content information from

telecommunications and Internet service providers. These letters are issued directly by

the Bureau without any prior judicial review, and are almost always accompanied by a

non-disclosure order barring the recipient from revealing anything about the demand. Petitioner argues that sections 2709 and 3511 violate the First Amendment,
both facially and as applied. Amici urge this Court to agree.

NSLs are profoundly problematic because the FBI has extraordinary discretion

to issue these demands unilaterally and shroud them in secrecy. Indeed, the Department of Justice Inspector General has documented widespread misuse of this

investigative tool. Because Congress must depend on information reported by the FBI

to conduct oversight, and NSL recipients are barred from disclosing even the most

basic information about these demands, it is exceedingly difficult to evaluate the Bureau’s use of this controversial power.

Moreover, section 2709’s speech restrictions violate the free expression rights

of communications service providers that want to be more transparent and forthright

with their users, Congress, and the public. Amici support the rights of these companies to disclose aggregate statistics about the national security process they

receive, and have sponsored legislation toward that end.

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NSLs undermine the ability of Congress to perform its key government

oversight role, as well as the public’s ability to engage in informed debate about

matters of public importance. For this reason, amici respectfully ask that this Court

find sections 2709 and 3511 facially unconstitutional.

ARGUMENT
I. National Security Letters Raise Special Oversight Concerns Because, Unlike Other Forms of Investigative Process, They are Issued Directly by the FBI, Are Not Subject to Prior Judicial Review, and are Almost Always Accompanied by a Permanent Non-Disclosure Order. Together, 18 U.S.C. §§ 2709 and 3511 authorize the FBI to demand
information about a service provider’s customers without any prior judicial review,
and to impose indefinite non-disclosure orders forbidding the provider to reveal
anything about the demand. 2 No other form of legal process leaves so much
discretion to the Executive branch, which makes it uniquely ripe for abuse.

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	   
2 Section 2709 is not the only legal authority that permits the FBI to issue NSLs. Though not challenged in this case, several other statutes allow the FBI to serve NSLs on particular types of businesses. See, e.g., 12 U.S.C. § 3414, 15 U.S.C. §§ 1681(u) and 1691(v), 50 U.S.C. § 3162. See also Charles Doyle, Senior Specialist, American Law Division, Congressional Research Service, National Security Letters in Foreign Intelligence Investigations: A Glimpse at the Legal Background 6-7 (Jan. 3, 2014), available at https://www.fas.org/sgp/crs/intel/RS22406.pdf.
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A. The USA PATRIOT Act’s Expansion of Section 2709 Resulted in the FBI’s Systematic Misuse of National Security Letters and Undermined Congress’ Ability to Oversee the Bureau’s Use of This Tool.

Section 2709 was enacted in 1986 as part of the Electronic Communications

Privacy Act, 18 U.S.C. §§ 2501 et seq. As originally drafted, section 2709 permitted

the FBI to issue an NSL only if it was authorized by an official at the level of Deputy

Assistant Director or higher at FBI headquarters, and only where that official certified

there were “specific and articulable facts giving reason to believe that the customer or

entity whose records are sought is a foreign power or an agent of a foreign power.” 18

U.S.C. § 2709(b) (1986); see also Liberty and Security in a Changing World: Report and

Recommendations from the President’s Review Group on Intelligence and Communications Technologies 90 (Dec. 12, 2013) (“President’s Review Group”).3

In 2001, the USA PATRIOT Act substantially expanded the FBI’s authority to

issue these legal demands in several ways. Pub. L. No. 107-56, 115 Stat. 272. First, the

law gave more FBI officials the power to approve NSLs. No longer restricting this

activity to senior-level officials at Bureau headquarters, the law now permits Special

Agents in Charge of any FBI field office to authorize an NSL. 18 U.S.C. § 2709(b).

Second, the USA PATRIOT Act loosened the basic standard for issuing an

NSL. Prior to the passage of the Act, high-level officials were required to certify that

“specific and articulable facts” existed “giving reason to believe that the customer or
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	   
3 Available at http://www.whitehouse.gov/sites/default/files/docs/2013-12-12_rg_ final_report.pdf.

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entity whose records are sought is a foreign power or an agent of a foreign power.” 18

U.S.C. § 2709(b) (1986). The USA PATRIOT Act lowered this bar, permitting the

FBI to issue NSLs whenever records are “relevant to an authorized investigation to

protect against international terrorism or clandestine intelligence activities.” 18 U.S.C.

§ 2709(b).

In the USA PATRIOT Improvement and Reauthorization Act of 2005,

Congress directed the Department of Justice Office of the Inspector General to

review the FBI’s use of NSLs, which it documented in two reports issued in 2007 and

2008. A Review of the Federal Bureau of Investigation’s Use of National Security Letters (March

2007) (“2007 OIG Report”); A Review of the FBI’s Use of National Security Letters:

Assessment of Corrective Actions and Examination of NSL Usage in 2006 (March 2008) (“2008 OIG Report”).4

Not surprisingly, the Inspector General found the FBI’s issuance of NSLs

increased sharply after the USA PATRIOT Act made this form of legal process easier

to use. In 2000, the year before the USA PATRIOT Act became law, the FBI issued

about 8,500 NSL requests. This number skyrocketed to approximately 39,000 requests

in 2003, after the USA PATRIOT Act’s changes went into effect, and jumped again to

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	   
4 Available at http://www.usdoj.gov/oig/special/s0703b/final.pdf & http://www.usdoj.gov/oig/special/s0803b/final.pdf.
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more than 48,106 requests in 2006.5 2007 OIG Report at 120; 2008 OIG Report at

107. But many of these figures are simply the Inspector General’s best estimate, as the

FBI’s NSL recordkeeping practices were poor during the time period covered by the

reports, and the available data “significantly understated” the FBI’s NSL requests.

2007 OIG Report at 34.

Based on the available data, the Inspector General exhaustively documented

illegal and improper use of NSLs. 2007 OIG Report at 66-102; 2008 OIG Report at

131-155. These findings revealed a broad array of infractions, including:

• Issuing NSLs after the FBI’s authority to conduct an underlying investigation had ended;
• Using NSLs to collect email subscriber information and telephone billing records about the wrong people;
• Gathering subscriber information beyond what was requested in the NSL;
• Gathering subscriber information beyond the time limits of the NSL;
• Seeking information beyond the scope of what a particular NSL statute would permit, e.g., issuing a section 2709 NSL to access an investigative target’s educational records; and

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	   
5 Note the distinction between NSL “requests” and NSL “letters.” One NSL letter may include multiple requests for subscriber information. See 2007 OIG Report at 120. For example, in one investigation, the FBI issued nine NSL letters seeking subscriber information related to 11,100 phone numbers. Id. at 36. The precise number of NSL requests issued under each of the separate NSL authorities remains non-public, but the FBI issued the “overwhelming majority” pursuant to section 2709. Id. at 36-37; 2008 OIG Report at 107.
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• Using NSLs to obtain subscriber information not relevant to an authorized national security investigation.6 The Inspector General noted, however, that the “overwhelming majority” of
possible NSL misuses had never been identified or reported through the internal oversight channels established within the FBI, and so were never documented. 2007 OIG Report at 84; 2008 OIG Report at 132.
In an additional report issued in 2010, the Inspector General determined that the FBI had improperly collected “community of interest” or “calling circle” information through more than 250 NSLs (and other means). A Review of the Federal Bureau of Investigation’s Use of Exigent Letters and Other Informal Requests for Telephone Records 75 (Jan. 2010).7 These requests were made without a proper assessment of whether the telephone numbers were relevant to authorized national security investigations. Id. at 75-76. They were also sometimes issued on the basis of First Amendment-protected activity, and were used to gather reporters’ and news organizations’ toll billing records and calling information. Id. at 6, 89-122.
The Inspector General also determined the FBI had issued 11 “blanket” NSLs in an attempt to legitimize the collection of records it had already acquired through informal requests with no basis in law—including records related to many telephone numbers that were not relevant to any national security investigation. Id. at 165-68,
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	   
6 2007 OIG Report at 66-67; 2008 OIG Report at 131, 140-41. 7 Available at http://www.justice.gov/oig/special/s1001r.pdf.

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203-208. The FBI also issued after-the-fact NSLs regularly to paper over its collection

of information through improper processes. Id. at 211-212. The Inspector General

again attributed these problems to a lack of oversight within the agency. Id. at 213-

214, 279-285.

The FBI has reportedly taken steps to mitigate the many problems identified by the Inspector General between 2007 and 2010.8 But it has been four years since that

office reviewed the FBI’s use of NSL authority, which makes it difficult to gauge the

Bureau’s progress.

Congress does have one measuring stick: section 2709(e) requires the Bureau to

“fully inform” Congress twice a year about its use of NSL power. But this form of

oversight relies on the FBI’s self-reported data—which means Congress’ information

is only as accurate and complete as the FBI’s. Thanks to the Inspector General’s

reports, we know the Bureau’s own internal oversight has left much to be desired.

Given this history, Congress cannot—and should not—be forced to rely exclusively

on the Bureau to understand the effectiveness and shortcomings of the NSL regime.

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	   
8 In 2008, the Inspector General concluded it was too soon to know “whether the new guidance, training, and systems put into place by the FBI in response to our first NSL report will fully eliminate the problems with the use of NSLs that we identified and that the FBI confirmed in its own reviews. At the same time, we believe that the FBI has made significant progress in addressing these issues and that the FBI’s senior leadership is committed to addressing misuse of NSLs.” 2008 OIG Report at 49.
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B. National Security Letters are a Uniquely Problematic Form of Legal Process Because They Permit Investigators to Demand Information and Silence Recipients With No Prior Judicial Oversight.

The Bureau’s checkered history of NSL misuse might have been avoided from

the outset if national security letters were subject to judicial oversight before approval.

But section 2709 lacks this fundamental check, which contributes to its constitutional failings.

This investigative capability is also wholly unnecessary. The government enjoys a host of law enforcement tools to compel service providers to disclose information

about their customers under the proper circumstances, including probable cause

warrants; grand jury subpoenas; criminal trial subpoenas; administrative subpoenas; 18

U.S.C. § 2703(d) court orders; and orders issued under the Foreign Intelligence Surveillance Act (FISA). See Doe v. Ashcroft, 334 F. Supp. 2d 471, 484-91 (S.D.N.Y.

2004) (discussing the differences between NSLs and other information-gathering authorities), vacated sub nom. Doe v. Gonzales, 449 F.3d 415 (2d Cir. 2006).

There is a crucial difference between the NSLs challenged in this case and other forms of legal process. NSLs are issued directly by investigators who are also

empowered to impose never-ending non-disclosure orders on recipients—without

any prior judicial approval. No other legal process operates this way. For example:

(1) Federal Rule of Criminal Procedure 41 warrants. As a general rule, warrants issue only upon a showing of probable cause to a neutral magistrate. Johnson v. United States,

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333 U.S. 10, 14 (1948); see also California v. Acevedo, 500 U.S. 565, 586-88 (1991) (Stevens, J. dissenting) (discussing the deeply rooted line of Supreme Court precedent requiring a judicial officer to issue warrants, reflecting a policy judgment that privacy interests outweigh the burdens on law enforcement).
Unlike an FBI field office issuing an NSL, law enforcement agents serving a warrant have no direct authority to impose a non-disclosure order on an Internet service provider. Rather, a court may, under certain narrow circumstances, order a provider not to disclose the existence of a warrant for a period the court “deems appropriate.” 18 U.S.C. § 2705(b); see also Department of Justice, Criminal Division, Computer Crime and Intellectual Property Section, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations 259 (2009) (model “nondisclosure and sealing” request to be presented to a magistrate in a warrant application).
(2) Grand jury subpoenas. While a grand jury subpoena does not require prior approval of a court, a prosecutor must authorize its issuance in the context of a grand jury investigation—which itself is meant to be a procedural protection against excessive government power. President’s Review Group at 91 n.76; Charles Doyle, Senior Specialist, American Law Division, Congressional Research Service, Administrative Subpoenas in Criminal Investigations 5 (March 17, 2006) (“Administrative Subpoenas”) (the grand jury is “a buffer against the abuse of government authority.”).9 Moreover, a

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	   
9 Available at https://www.fas.org/sgp/crs/intel/RS22407.pdf.

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witness may ask a judge to quash a grand jury subpoena that is “unreasonable or oppressive.” Fed. Rule Crim. P. 17(c)(2); United States v. R. Enters., Inc., 498 U.S. 292, 299 (1991). And grand jury witnesses and subpoena recipients are generally free to speak about the fact they received a grand jury subpoena. Fed. Rule Crim. P. 6(e)(2)(A); see also Butterworth v. Smith, 494 U.S. 624, 626 (1990).
(3) Criminal subpoenas. Federal Rule of Criminal Procedure 17(c) authorizes law enforcement agencies to issue subpoenas for potential evidence in criminal proceedings. As is the case with grand jury subpoenas, a recipient may ask a court to quash an “unreasonable or oppressive” criminal trial subpoena. Fed. Rule Crim. P. 17(c)(2). And far from being shrouded in secrecy, criminal trial proceedings are presumptively public. Doe v. Ashcroft, 334 F. Supp. 2d at 486 (citing U.S. CONST. AMEND. VI); see also Press-Enter. Co. v. Superior Ct., 478 U.S. 1, 13 (1986) (the public enjoys a qualified First Amendment right of access even to preliminary criminal proceedings).
(4) Administrative subpoenas. Executive agencies can issue administrative subpoenas to carry out investigative and administrative duties under a range of authorities. Administrative Subpoenas at 6.10 Agencies can issue these subpoenas without prior judicial approval, but are able to enforce them only through the authority of a court. Id. at 7-8; see also United States v. Powell, 379 U.S. 48, 57-58 (1964).

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	   
10 Available at https://www.fas.org/sgp/crs/intel/RS22407.pdf.

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In rare instances, some administrative subpoena authorities permit agencies to issue

non-disclosure orders. See, e.g., 20 U.S.C. § 1232g(b)(1)(J)(ii). But most of these

authorities do not include such restrictions, or instead provide for a court to issue a non-disclosure order under appropriate circumstances.11

(5) Section 2703(d) orders. Under the Electronic Communications Privacy Act,

investigators may seek a court order to compel a service provider to disclose the

contents of communications or other subscriber information in a criminal

investigation. 18 U.S.C. § 2703(d). The court may prevent the provider from

disclosing the existence of the order under certain narrow circumstances, but the

investigative agency does not have this authority. Id. § 2705(b).

(6) Foreign Intelligence Surveillance Act orders. Finally, the government takes the

position that it can obtain records from a communications service provider under the

Foreign Intelligence Surveillance Act, which (among other things) authorizes the

collection of “any tangible things” related to an authorized investigation. 50 U.S.C. §

1861 (as amended by the USA PATRIOT Act, Pub. L. No. 107-56, § 215, 115 Stat.

272). To obtain such an order, the FBI must apply and make a requisite showing to

the Foreign Intelligence Surveillance Court or a United States magistrate judge. 50

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	   
11 For a comprehensive list of administrative subpoena authorities and a summary of their provisions, see Department of Justice, Office of Legal Policy, Report to Congress on the Use of Administrative Subpoena Authorities by Executive Branch Agencies and Entities (2002), available at http://www.justice.gov/archive/olp/rpt_to_congress.htm.
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U.S.C. § 1861(b). The recipient is generally not allowed to disclose the order’s

existence (with some narrow exceptions). Id. § 1861(d).

Only one investigative tool gives the FBI carte blanche to issue national

security legal process under its own authority and unilaterally impose a permanent

secrecy requirement on the recipient: the national security letter. NSLs are a truly

unusual form of legal process because they leave exceptional discretion in the FBI’s

hands. As the President’s Review Group has noted, there is “no principled reason” why the FBI should have this extraordinary latitude when it has other, less

problematic forms of national security-related process at its disposal. President’s

Review Group at 92-93.

II. The Open-Ended Non-Disclosure Orders That Accompany National Security Letters Raise Substantial First Amendment Concerns Because They Bar Recipients From Disclosing Important Information to Their Customers, Congress, and the Public.
In addition to permitting the FBI to compel a service provider to disclose

certain subscriber information, section 2709(c) allows the FBI to impose an unlimited

non-disclosure order to prevent the service provider from discussing the NSL publicly—including the very fact that it received an NSL—upon a certification that

“there may result 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.” 18 U.S.C. § 2709(c)(1). And the FBI almost always makes this certification: non-

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disclosure orders accompany 97 percent of all NSLs issued by the FBI. President’s

Review Group at 92; see also In re Nat’l Sec. Letter, 930 F. Supp. 2d 1064, 1073 (N.D.

Cal. 2013).

Section 3511 allows recipients to file a petition to modify or set aside an NSL

or an accompanying non-disclosure order. But a court may grant the petition only

under limited conditions, and must treat the FBI’s certifications as conclusive unless

made in bad faith. 18 U.S.C. §§ 3511(b)(2)-(3). Thus, an NSL recipient must fight a steep uphill battle to challenge a speech restriction.
The Second Circuit recognized in Doe v. Mukasey that this burden creates

serious First Amendment problems, striking down the provisions of section 3511(b)

that require a court to treat the FBI’s certifications as conclusive. 549 F.3d 861, 885 (2d Cir. 2008). That court salvaged section 2709(c) by interpreting it to require the

government to initiate judicial review if an NSL recipient decides to contest a non-

disclosure requirement. Id. at 881. The district court here went further, finding

sections 2709(c) and 3511(b)(2)-(b)(3) facially unconstitutional. In re Nat’l Sec. Letter, 930 F. Supp. 2d at 1081 (No. 13-15957).

The President’s Review Group has also noted the critical First Amendment

concerns raised by everlasting non-disclosure requirements. The committee suggested

that the law be changed to ensure that non-disclosure orders accompanying a range of national security demands—including NSLs—should issue only upon judicial

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approval, and should last only 180 days unless a court renews the order. President’s Review Group at 122-123.
The non-disclosure requirements of section 2709(c) do not sit well with NSL recipients—far from it. Last year, several major communications service providers began reporting aggregate numbers of national security legal process they receive, including NSLs—but the Justice Department allowed them to do so only in broad number ranges such as 0-999.12 Since then, several major Internet companies have negotiated with the Obama Administration for the right to publicly disclose this data in greater detail. See, i.e., Reform Government Surveillance, https://www.reformgovernmentsurveillance.com (last visited March 27, 2014) (a campaign in which AOL, Apple, Dropbox, Facebook, Google, LinkedIn, Microsoft,

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	   
12 See, e.g., Google, Transparency Report: Shedding More Light on National Security Letters (March 5, 2013), http://googleblog.blogspot.com/2013/03/transparency-reportshedding-more-light.html; Apple, Update on National Security and Law Enforcement Orders (Jan. 27, 2014), http://images.apple.com/pr/pdf/140127upd_nat_sec_and_law_enf_ orders.pdf; Dropbox, 2013 Transparency Report, https://www.dropbox.com/ transparency (last visited April 11, 2014); Verizon Transparency Report, http://transparency.verizon.com/us-data (last visited April 11, 2014); Brad Smith, General Counsel and Executive Vice President, Legal & Corporate Affairs, Microsoft, Providing Additional Transparency on US Government Requests for Data (Feb. 3, 2014), http://blogs.technet.com/b/microsoft_on_the_issues/archive/2014/02/03/ providing-additional-transparency-on-us-government-requests-for-customerdata.aspx; LinkedIn, Transparency Report 1H 2013 (Feb. 3, 2014), http://help.linkedin.com/app/answers/detail/a_id/41878/ft/eng; Facebook, Global Government Requests Report, https://www.facebook.com/about/government_requests (last visited April 11, 2014); Kenneth R. Carter, CloudFlare, CloudFlare Transparency Report on National Security Orders (Jan. 27, 2014), http://blog.cloudflare.com/ cloudflare-transparency-report-on-national-security-orders.

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Twitter, and Yahoo have called on the government to allow them to “publish the number and nature of government demands for user information.”).
When these negotiations failed to yield results, Google Facebook, Microsoft, and Yahoo asked the Foreign Intelligence Surveillance Court to declare that they have a First Amendment right to publish basic aggregate data about the various types of national security process they receive, including NSLs. See Ryan Gallagher, Tech Giants United in Court to Fight Against Government Surveillance Secrecy, Slate, Sept. 10, 2013.13
In response to this pressure, the Justice Department recently agreed to allow companies to report national security process in two new ways. Letter From James M. Cole, Deputy Attorney General, Department of Justice, to General Counsels of Facebook, Google, LinkedIn, Microsoft, and Yahoo, Jan. 27, 2014.14 The first option is to report aggregate data about distinct categories of legal process—including the number of NSLs received and number of user accounts affected by NSLs—as a single number in bands of 1000. Id. at 2-3. Alternatively, these companies may choose to report the total number of all national security requests received, including all NSLs and FISA orders, and the total number of all “customer selectors” targeted by all national process, as single figures in bands of 250. Id. at 3.

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	   
13 http://www.slate.com/blogs/future_tense/2013/09/10/yahoo_google_ facebook_microsoft_fight_for_permission_to_release_data_about.html.
14 Available at http://www.justice.gov/iso/opa/resources/36620141271601840 7143.pdf.

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While this middle ground is a step in the right direction, it does not resolve the

companies’ fundamental free speech concerns. As Twitter has pointed out:

We think the government’s restriction on our speech not only unfairly impacts our users’ privacy, but also violates our First Amendment right to free expression and open discussion of government affairs. We believe there are far less restrictive ways to permit discussion in this area while also respecting national security concerns. . . . We are also considering legal options we may have to seek to defend our First Amendment rights.”

Jeremy Kessel, Manager, Global Legal Policy, Fighting for more #transparency (Feb. 6, 2014).15

Amici strongly support the rights of these companies to be open and honest

with their customers and the general public about the number of national security

demands they receive. Toward this end, 21 senators and 142 members of Congress

sponsored bipartisan bills in the House and Senate seeking to ensure communications

service providers can issue quarterly aggregate reports to the public about NSLs and

other national security demands from the government. See the Uniting and

Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-

collection, and Online Monitoring Act (USA FREEDOM Act), H.R. 3361, 113th Cong. (introduced Oct. 29, 2013); S. 1599, 113th Cong. (introduced Oct. 29, 2013).16

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	   
15 https://blog.twitter.com/2014/fighting-for-more-transparency.
16 Congresswoman Lofgren has also introduced the Surveillance Order Reporting Act of 2013, bipartisan legislation that would similarly ensure communications providers have the right to reports aggregate statistics to the public about national security
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These bills would allow electronic service providers to reveal an estimate of the

national security demands they receive from the government, as well as estimates of

the number of users or accounts affected by those demands, in numbers rounded to

the nearest 100 (rather than 1000). Providers could also publish an estimate of the

number of demands with which they comply, rounded to the nearest 100. And the

legislation would allow providers who have not received any national security

demands to disclose that basic fact. Companies should have the freedom to divulge statistics about the number of

national security demands they get from the government. Restrictions on such

disclosures not only impinge upon their First Amendment rights, but also keep them

from being truthful and upfront with their customers, Congress, and the public. Amici also believe these statistics are an important counterpoint to the self-

reported data they receive from the Executive branch about its use of controversial

investigative tools in national security matters. This information will help Congress

keep the Executive branch accountable, and inform meaningful public debate about our government’s investigative powers.

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
demands received from the government. H.R. 3035, 113th Cong. (introduced Aug. 2, 2013).
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CONCLUSION

Amici respectfully ask that this Court reverse the district court’s ruling in 13-

16732.

Dated: April 11, 2014

/s/ Marcia Hofmann Marcia Hofmann 25 Taylor Street San Francisco, CA 94102 Telephone: (415) 830-6664 marcia@marciahofmann.com
Counsel for Amici Curiae Congresswoman Zoe Lofgren, Congressman Thomas Massie, Congressman Jared Polis, and Congresswoman Anna G. Eshoo

2	0  

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CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE REQUIREMENTS

Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C), I certify as

follows:

1. This brief is 4,427 words, excluding the parts of the brief exempted by

Federal Rule of Appellate Procedure 32(a)(7)(B)(iii). It therefore complies with the

type-volume limitation of Federal Rule of Appellate Procedure 32(a)(7)(B). 2. This brief’s type size and typeface comply with Federal Rule of Appellate

Procedure 32(a)(5) and (6). It was written in Garamond typeface with 14-point font.

Dated: April 11, 2014

/s/ Marcia Hofmann Marcia Hofmann

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CERTIFICATE OF SERVICE

I certify that I filed the foregoing amici brief with the Clerk of the Court for the

United States Court of Appeals for the Ninth Circuit in accordance with the Chief

Deputy Clerk’s Instructions for Prospective Amici.

I further certify that I sent this brief via FedEx to the Court at the below

address on April 11, 2014:

Susan Soong, Chief Deputy Clerk - Operations U.S. Court of Appeals for the Ninth Circuit 95 7th Street San Francisco, CA 94103

The court will effect service on the parties.

Dated: April 11, 2014

/s/ Marcia Hofmann Marcia Hofmann

2	2  

 
 Case: 16-16067, 07/17/2017, ID: 10510050, DktEntry: 87-1, Page 1 of 41

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

IN RE NATIONAL SECURITY LETTER,

No. 16-16067

D.C. No.

UNDER SEAL,

3:11-cv-02173-SI

Petitioner-Appellant,

v.

JEFFERSON B. SESSIONS III, Attorney General,
Respondent-Appellee.

IN RE NATIONAL SECURITY LETTER,

No. 16-16081

UNDER SEAL, Petitioner-Appellant,

D.C. No. 3:13-mc-80089-
SI

v.

JEFFERSON B. SESSIONS III, Attorney General,
Respondent-Appellee.

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2

IN RE NATIONAL SECURITY LETTER

IN RE NATIONAL SECURITY LETTER,

No. 16-16082

D.C. No.

UNDER SEAL,

3:13-cv-01165-SI

Petitioner-Appellant,

v.

OPINION

JEFFERSON B. SESSIONS III, Attorney General,
Respondent-Appellee.

Appeal from the United States District Court for the Northern District of California Susan Illston, District Judge, Presiding
Argued and Submitted March 22, 2017 San Francisco, California
Filed July 17, 2017
Before: Sandra S. Ikuta, N. Randy Smith, and Mary H. Murguia, Circuit Judges.
Opinion by Judge Ikuta

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IN RE NATIONAL SECURITY LETTER

3

SUMMARY*

Civil Rights
The panel affirmed the district court’s orders denying petitions brought by electronic communication service providers pursuant to 18 U.S.C. § 3511(a) to set aside information requests and nondisclosure requirements in National Security Letters issued to them by the Federal Bureau of Investigation.
A National Security Letter is an administrative subpoena issued by the FBI to a wire or electronic communication service provider requiring the provider to produce specified subscriber information that is relevant to an authorized national security investigation. 18 U.S.C. § 2709(a). By statute, a National Security Letter may include a requirement that the recipient not disclose the fact that it has received such a request. In this case, recipients of National Security Letters alleged that the nondisclosure requirement violates their First Amendment rights.
The panel held that § 2709(c)’s nondisclosure requirement imposes a content-based restriction that is subject to, and withstands, strict scrutiny. The panel further held that, assuming the nondisclosure requirement was the type of prior restraint for which the procedural safeguards set forth in Freedman v. Maryland, 380 U.S. 51 (1965) were required, the National Security Letters law provided those

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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IN RE NATIONAL SECURITY LETTER

safeguards. The panel concluded that the nondisclosure requirement does not run afoul of the First Amendment.

COUNSEL
Andrew Crocker (argued), Nathan Cardozo, Lee Tien, Kurt Opsahl, Jennifer Lynch, David Greene, Cindy Cohn, and Aaron Mackey, Electronic Frontier Foundation, San Francisco, California; Richard Wiebe, Law Office of Richard R. Wiebe, San Francisco, California; for PetitionerAppellants.
Lewis S. Yelin (argued), Scott R. McIntosh, and Douglas N. Letter, Appellate Staff; Brian Stretch, United States Attorney; Benjamin C. Mizer, Principal Deputy Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Respondent-Appellee.

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. 18 U.S.C. § 2709(c). An NSL is an administrative subpoena issued by the FBI to a wire or electronic communication service provider which requires the provider to produce specified subscriber information that is relevant to an authorized national security investigation. Id. § 2709(a). By statute, the NSL may include a requirement

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IN RE NATIONAL SECURITY LETTER

5

that the recipient not “disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records” under the NSL law. Id. § 2709(c)(1)(A). Both the information request and the nondisclosure requirement are subject to judicial review. See id. § 3511. (Because § 2709 and § 3511 work together, we refer to them collectively as “the NSL law.”)

Certain recipients of these NSLs claim that the nondisclosure requirement violates their First Amendment rights. We hold that the nondisclosure requirement in 18 U.S.C. § 2709(c) is a content-based restriction on speech that is subject to strict scrutiny, and that the nondisclosure requirement withstands such scrutiny. Accordingly, we affirm.

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-

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IN RE NATIONAL SECURITY LETTER

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. 448, 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 without prior judicial approval, it must invoke the aid of a federal court to enforce it. See, e.g., United States v. Sec. State Bank & Trust, 473 F.2d 638, 641–42 (5th Cir. 1973); see also Shasta Minerals & Chem. Co. v. SEC, 328 F.2d 285, 286 (10th Cir. 1964). The “power to punish is not generally available to federal administrative agencies,” and so enforcement must be sought “by way of a separate judicial proceeding.” Shasta Minerals, 328 F.2d at 286.

Sections 2709 and 3511 follow the statutory framework typically used to authorize administrative subpoenas. Compare 18 U.S.C. §§ 2709, 3511, with, e.g., 21 U.S.C. § 876(a). Section 2709 authorizes the FBI to make an information request to “[a] wire or electronic communication service provider” for “subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession,” and

1 Where necessary to differentiate between the 2006 and 2015 versions of the NSL law, we refer to the former as the “2006 NSL law” and the latter as the “2015 NSL law.” Unless otherwise noted, a reference to 18 U.S.C. § 2709 or 18 U.S.C. § 3511 refers to the 2015 NSL law.

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provides that the recipient “shall comply” with the request. 18 U.S.C. § 2709(a).2 In order to issue such a request, the FBI Director or a sufficiently high-ranking designee of the Director must “specifically identif[y] a person, entity, telephone number, or account as the basis for a request,” and must certify that the “records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities” and that the investigation “is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States.” Id. § 2709(b)(1)–(2).3 The NSL must

2 18 U.S.C. § 2709(a) provides:
Duty to Provide. — A wire or electronic communication service provider shall comply with a request for subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession made by the Director of the Federal Bureau of Investigation under subsection (b) of this section.
3 18 U.S.C. § 2709(b) provides:
Required Certification. — The Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director, may, using a term that specifically identifies a person, entity, telephone number, or account as the basis for a request —
(1) 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,

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IN RE NATIONAL SECURITY LETTER

include notice of the availability of judicial review under 18 U.S.C. § 3511. Id. § 2709(d).

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. § 2709(c)(1)(B).4

address, length of service, and toll billing records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States; and
(2) request the name, address, and length of service 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 information sought is relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution of the United States.
4 18 U.S.C. § 2709(c)(1)(B) provides:
Certification. — The requirements of subparagraph (A) shall apply if the Director of the Federal Bureau of Investigation, or a designee of the Director whose rank shall be no lower than Deputy Assistant Director at

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If the FBI Director or a sufficiently high-ranking designee of the Director issues a certification “that the absence of a prohibition of disclosure under this subsection may result” in one of these harms, id., and the government gives the recipient notice of the availability of judicial review pursuant to § 3511, see id. § 2709(d)(2), the government may prohibit the recipient from disclosing that it has received the NSL, see id. § 2709(c)(1)(A),5 subject to such judicial review.

Bureau headquarters or a Special Agent in Charge of a Bureau field office, certifies that the absence of a prohibition of disclosure under this subsection may result in —
(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.
5 18 U.S.C. § 2709(c)(1)(A) provides:
In general. — If a certification is issued under subparagraph (B) and notice of the right to judicial review under subsection (d) is provided, no wire or electronic communication service provider that receives a request under subsection (b), 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.

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IN RE NATIONAL SECURITY LETTER

There are three statutory exceptions to the nondisclosure requirement. See id. § 2709(c)(2).6 First, a recipient “may

6 18 U.S.C. § 2709(c)(2) provides:
(A) In general. — A wire or electronic communication service provider that receives a request under subsection (b), or officer, employee, or agent thereof, may disclose information otherwise subject to any applicable nondisclosure requirement to —
(i) those persons to whom disclosure is necessary in order to comply with the request;
(ii) an attorney in order to obtain legal advice or assistance regarding the request; or
(iii) other persons as permitted by the Director of the Federal Bureau of Investigation or the designee of the Director.
(B) Application. — A person to whom disclosure is made under subparagraph (A) shall be subject to the nondisclosure requirements applicable to a person to whom a request is issued under subsection (b) in the same manner as the person to whom the request is issued.
(C) Notice. — Any recipient that discloses to a person described in subparagraph (A) information otherwise subject to a nondisclosure requirement shall notify the person of the applicable nondisclosure requirement.
(D) Identification of disclosure recipients. — At the request of the Director of the Federal Bureau of Investigation or the designee of the Director, any person making or intending to make a disclosure under clause (i) or (iii) of subparagraph (A) shall identify to the Director or such designee the person to whom such

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IN RE NATIONAL SECURITY LETTER

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disclose information otherwise subject to any applicable nondisclosure requirement” to “those persons to whom disclosure is necessary in order to comply with the request.” Id. § 2709(c)(2)(A)(i). Second, the recipient may disclose such information to “an attorney in order to obtain legal advice or assistance regarding the request.” Id. § 2709(c)(2)(A)(ii). Third, if the recipient wants to provide the information to other individuals, it may do so if it obtains the permission of the FBI Director or the designee of the Director. Id. § 2709(c)(2)(A)(iii). The recipient must also inform those persons receiving the information that they are subject to the same nondisclosure requirement applicable to the initial recipient, id. § 2709(c)(2)(C).

As is typical in the administrative subpoena context, § 2709 does not contain any penalty provision either for failure to comply with the information request or for failure to comply with the nondisclosure requirement. Only a court has authority to enforce the information request or the nondisclosure requirement. See id. § 3511. If a recipient fails to comply with an information request, the government “may invoke the aid” of a district court “to compel compliance with the request.” Id. § 3511(c).7 The court may “issue an order

disclosure will be made or to whom such disclosure was made prior to the request.
7 18 U.S.C. § 3511(c) provides:
In the case of a failure to comply with a request for records, a report, or other information made to any person or entity under section 2709(b) of this title, section 626(a) or (b) or 627(a) of the Fair Credit Reporting Act, section 1114(a)(5)(A) of the Right to Financial Privacy Act, or section 802(a) of the National

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IN RE NATIONAL SECURITY LETTER

requiring the person or entity to comply with the request,” and “[a]ny failure to obey the order of the court may be punished by the court as contempt thereof.” Id. Alternatively, the recipient of an NSL may petition the district court “for an order modifying or setting aside the request,” and the district court may do so “if compliance would be unreasonable, oppressive, or otherwise unlawful.” Id. § 3511(a).8

Whenever a nondisclosure requirement under § 2709(c) is imposed on a recipient, the recipient may challenge the requirement in one of two ways. First, the recipient may “file a petition for judicial review in any court described in

Security Act of 1947, the Attorney General may invoke the aid of any district court of the United States within the jurisdiction in which the investigation is carried on or the person or entity resides, carries on business, or may be found, to compel compliance with the request. The court may issue an order requiring the person or entity to comply with the request. Any failure to obey the order of the court may be punished by the court as contempt thereof. Any process under this section may be served in any judicial district in which the person or entity may be found.
8 18 U.S.C. § 3511(a) provides, in relevant part:
The recipient of a request for records, a report, or other information under section 2709(b) of this title . . . may, in the United States district court for the district in which that person or entity does business or resides, petition for an order modifying or setting aside the request. The court may modify or set aside the request if compliance would be unreasonable, oppressive, or otherwise unlawful.

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[§ 3511(a)].” Id. § 3511(b)(1)(A).9 Second, the recipient “may notify the Government” that it desires judicial review, id., in which case “[n]ot later than 30 days after the date of receipt of a notification [from the recipient], the Government shall apply [to the district court] for an order prohibiting” disclosure, id. § 3511(b)(1)(B). The government’s application for a nondisclosure order (or for an extension of

9 18 U.S.C. § 3511(b)(1) provides:
(A) Notice. — If a recipient of a request or order for a report, records, or other information under section 2709 of this title . . . wishes to have a court review a nondisclosure requirement imposed in connection with the request or order, the recipient may notify the Government or file a petition for judicial review in any court described in subsection (a).
(B) Application. — Not later than 30 days after the date of receipt of a notification under subparagraph (A), the Government shall apply for an order prohibiting the disclosure of the existence or contents of the relevant request or order. An application under this subparagraph may be filed in the district court of the United States for the judicial district in which the recipient of the order is doing business or in the district court of the United States for any judicial district within which the authorized investigation that is the basis for the request is being conducted. The applicable nondisclosure requirement shall remain in effect during the pendency of proceedings relating to the requirement.
(C) Consideration. — A district court of the United States that receives a petition under subparagraph (A) or an application under subparagraph (B) should rule expeditiously, and shall, subject to paragraph (3), issue a nondisclosure order that includes conditions appropriate to the circumstances.

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such an order), must include a certification from the FBI Director or a sufficiently high-ranking designee “containing a statement of specific facts indicating that the absence of a prohibition of disclosure under [§ 3511(b)] may result in” one of the four harms enumerated in § 2709(c)(1)(B). Id. § 3511(b)(2).10 The nondisclosure requirement remains in effect while the district court considers the recipient’s challenge or the government’s application for a nondisclosure order. Id. § 3511(b)(1)(B).

A court receiving a recipient’s petition for judicial review of a nondisclosure requirement or the government’s

10 18 U.S.C. § 3511(b)(2) provides:
An application for a nondisclosure order or extension thereof or a response to a petition filed under paragraph (1) shall include a certification from the Attorney General, Deputy Attorney General, an Assistant Attorney General, or the Director of the Federal Bureau of Investigation, or a designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director, or in the case of a request by a department, agency, or instrumentality of the Federal Government other than the Department of Justice, the head or deputy head of the department, agency, or instrumentality, containing a statement of specific facts indicating that the absence of a prohibition of disclosure under this subsection may result in [the four harms enumerated in 18 U.S.C. § 2709(c)(1)(B)].
Under the 2006 NSL law, the government was not required to provide a statement of specific facts supporting its certification. Rather, “such certification shall be treated as conclusive unless the court finds that the certification was made in bad faith.” 18 U.S.C. § 3511(b)(2) (2006).

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application for a nondisclosure order “should rule expeditiously.” Id. § 3511(b)(1)(C). The court “shall issue a nondisclosure order or extension thereof . . . if the court determines that there is [good] reason to believe that disclosure of the information subject to the nondisclosure requirement during the applicable time period may result in” one of the four enumerated harms. Id. § 3511(b)(3).11 In making this determination, “the court shall, upon request of the government, review ex parte and in camera any government submission or portions thereof, which may include classified information.” Id. § 3511(e). Any nondisclosure order issued by a reviewing court should “include[] conditions appropriate to the circumstances.” Id. § 3511(b)(1)(C).

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 12 U.S.C. § 3414 note). The Attorney General adopted such

11 18 U.S.C. § 3511(b)(3) provides:
A district court of the United States shall issue a nondisclosure order or extension thereof under this subsection if the court determines that there is reason to believe that disclosure of the information subject to the nondisclosure requirement during the applicable time period may result in [the four harms enumerated in 18 U.S.C. § 2709(c)(1)(B)].
The Second Circuit in John Doe, Inc. v. Mukasey adopted the “common-sense understanding” that “reason” in the 2006 NSL law means “good reason.” 549 F.3d 861, 875 (2d Cir. 2008). We also adopt this understanding.

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procedures in November 2015. See Termination Procedures for National Security Letter Nondisclosure Requirement, Fed. Bureau of Investigation (Nov. 24, 2015), https://www.fbi.gov/file-repository/nsl-ndp-procedures.pdf (hereinafter “Termination Procedures”). Under these procedures, any nondisclosure requirement must terminate when the underlying investigation is closed or “on the threeyear anniversary of the initiation” of the investigation, unless “the FBI makes a determination that one of the existing statutory standards for nondisclosure is satisfied.” Once the FBI has determined that nondisclosure is no longer required, it must provide written notice to the recipient to that effect. If the FBI does not terminate the nondisclosure requirement at either of these occasions, the recipient retains the right to challenge the requirement in district court. 18 U.S.C. § 3511(a).

The 2015 legislation amending the NSL law also added 50 U.S.C. § 1874, which allows “[a] person subject to a nondisclosure requirement” to disclose aggregate data regarding the number of NSLs (in specified ranges or “bands”) that the person has received. Pub. L. No. 114-23, Title VI, § 603(a), 129 Stat. at 295–96 (codified at 50 U.S.C. § 1874(a)(1)–(4)). For instance, a person may report receiving 0 to 99, 0 to 249, 0 to 499, or 0 to 999 nondisclosure requirements. A person who chooses to report receiving 0 to 99 nondisclosure requirements may make such a disclosure on an annual basis, while a person who chooses to report receipt of a larger range of NSLs may report semiannually. See 50 U.S.C. § 1874(a)(1)–(4).

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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.

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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 instance the constitutionality of the 2015 NSL law.

On remand, CREDO and CloudFlare submitted renewed petitions under § 3511(a) to set aside the information requests and nondisclosure requirements contained in each NSL and the government cross-petitioned to enforce both components of the NSLs. This time, the district court held that the NSL law, as amended, was constitutional. It also determined that the government had carried its burden of showing that there was good reason to believe that disclosure of the 2011 NSL to CREDO and of the 2012 NSLs to CloudFlare might result in one of the four enumerated harms. Accordingly, it granted the government’s cross-petitions to enforce those three NSLs in their entirety. However, with respect to the 2013 NSLs to CREDO, the district court held that the government’s certification that one of the four enumerated harms would

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result absent nondisclosure was insufficient. Accordingly, it granted CREDO’s petition to set aside the nondisclosure requirement in the 2013 NSLs.

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 crossappeal.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

12 The 2013 NSLs’ nondisclosure requirements are therefore no longer at issue, and CREDO raises no argument on appeal challenging the information requests contained in the 2013 NSLs.
13 The nondisclosure requirement also remains in place for the name and contact information of the FBI Special Agent identified in the NSL.

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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 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)” under the 2011 NSL. CloudFlare is subject to a nondisclosure requirement only as to one of the 2012 NSLs.16

14 As with the 2011 NSL to CREDO, the nondisclosure requirement remains in place for the name and contact information of the FBI Special Agent identified in the first 2012 NSL to CloudFlare.
15 Because CloudFlare identified itself not only as the recipient of one of the 2012 NSLs but also as challenging two NSLs before us, the FBI determined that CloudFlare may be publicly identified.
16 On appeal, CREDO and CloudFlare raise the same arguments. Therefore, we refer to the appellants together as the “recipients.”

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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, 135 S. Ct. 2443, 2449 (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 § 2709(c) prevents them from speaking about matters of public policy and engaging in the political process, but do not argue that the NSL law can never be constitutionally applied in any context. Accordingly, we analyze the recipients’ challenge as a facial challenge. Cf. Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 802–03 (1984) (concluding that the plaintiff’s challenge to an ordinance was an as-applied challenge because the plaintiffs acknowledged that the statute could be validly applied in other cases).

“[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,

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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, 135 S. Ct. 2218, 2226 (2015); United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (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 (1997) (internal quotation marks omitted).17

Even if the government has constitutional authority to impose a particular content-based restriction on speech, the government does not have unfettered freedom to implement such a restriction through “a system of prior administrative restraints.” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963); see also id. at 66 (“[A] State is not free to adopt whatever procedures it pleases for dealing with obscenity . . . without regard to the possible consequences for constitutionally protected speech.” (quoting Marcus v. Search Warrants, 367 U.S. 717, 730–31 (1961))). Rather, “a law

17 The government may also restrict the time, place, and manner of speech so long as it does not discriminate based on content and meets certain other criteria. See Consol. Edison Co. of N.Y., Inc. v. Pub. Serv. Comm’n, 447 U.S. 530, 536 (1980). This form of restriction is not at issue here.

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subjecting the exercise of First Amendment freedoms to the prior restraint of a license” or other burden must itself pass constitutional muster. Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150–51 (1969). A system that gives public officials authority to regulate or prohibit an individual’s exercise of First Amendment rights based on the content of the individual’s speech must have “narrow, objective, and definite standards to guide the licensing authority,” id. at 151, and must have the “procedural safeguards that reduce the danger of suppressing constitutionally protected speech,” Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 559 (1975). These procedural safeguards are as follows: “(1) any restraint prior to judicial review can be imposed only for a specified brief period during which the status quo must be maintained; (2) expeditious judicial review of that decision must be available; and (3) the censor must bear the burden of going to court to suppress the speech and must bear the burden of proof once in court.” Thomas v. Chi. Park Dist., 534 U.S. 316, 321 (2002) (quoting FW/PBS v. City of Dallas, 493 U.S. 215, 227 (1990) (principal opinion of O’Connor, J.), and citing Freedman v. Maryland, 380 U.S. 51, 58–60 (1965)). The procedural requirements for systems imposing contentbased restraints do not apply, however, to “a content-neutral permit scheme regulating speech in a public forum.” Id. at 322.

Accordingly, our analysis of § 2709(c)’s nondisclosure requirement proceeds in three steps. We must first determine whether the nondisclosure requirement is content based or content neutral. If the nondisclosure requirement is content based, we then consider whether it survives strict scrutiny. Finally, we must determine whether the nondisclosure requirement constitutes the type of restraint for which the

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procedural safeguards are required and, if so, whether it provides those safeguards.

A

We turn first to the question whether the nondisclosure requirement in § 2709(c) is content based or content neutral. A government’s restriction on “speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” Reed, 135 S. Ct. at 2227. The first step in determining whether speech is content based is “to consider whether a regulation of speech ‘on its face’ draws distinctions based on the message a speaker conveys.” Id. (quoting Sorrell v. IMS Health, Inc., 564 U.S. 552, 566 (2011)). Regulations draw such a distinction if they “target speech based on its communicative content,” id. at 2226, prohibit “public discussion of an entire topic,” id. at 2230 (quoting Consol. Edison Co. of N.Y. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 530, 537 (1980)), or “single[] out specific subject matter for differential treatment,” id.

Thus, a regulation or law that restricts speech based on its topic, idea, 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, contentneutral 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

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“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 (1989)) (internal quotation marks omitted).

Applying this framework here, the nondisclosure requirement in § 2709(c) is content based on its face. By its terms, the nondisclosure requirement prohibits speech about one specific issue: the recipient may not “disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records” by means of an NSL. See 18 U.S.C. § 2709(c). Such a restriction “target[s] speech based on its communicative content,” and restricts speech based on its “function or purpose.” Reed, 135 S. Ct. at 2226–27. Given this conclusion, we need not proceed to the second step of the analysis, to determine whether the statute stifles views with which the government disagrees, see Ward, 491 U.S. at 791, or distinguishes among views about NSLs in deciding which speech is prohibited, see Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 643 (1994). We conclude that the nondisclosure requirement is a contentbased restriction.

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 § 2709(c) is narrowly tailored to serve a compelling state interest. Reed, 135 S. Ct. at 2226.

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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 (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 (1981) (quoting Aptheker v. Sec’y of State, 378 U.S. 500, 509 (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 (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 (1980) (“The Government has a compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service.”). Here, the recipients do not dispute that the nondisclosure requirement directly serves the compelling state interest of national security: a nondisclosure requirement may be imposed only if one of the four enumerated harms “may result” absent nondisclosure. 18 U.S.C. § 2709(c)(1)(B).

We therefore turn to the question whether the nondisclosure requirement in § 2709(c) is narrowly tailored. A restriction is not narrowly tailored “if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.” Reno v. Am. Civil Liberties Union, 521 U.S. 844, 874 (1997). Nevertheless, strict scrutiny requires that a content-based

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restriction “be narrowly tailored, not that it be ‘perfectly tailored.’” Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656, 1671 (2015) (quoting Burson v. Freeman, 504 U.S. 191, 209 (1992)). Accordingly, a reviewing court should “decline to wade into th[e] swamp” of calibrating the individual mechanisms of a restriction. Id. Ultimately, the Supreme Court has emphasized that strict scrutiny is not “fatal in fact.” Id. at 1666 (quoting Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237 (1995)).

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. 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 18 U.S.C. § 2709(c)(2)(A)(iii), authorizing the FBI director or a

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designee to permit a recipient to make disclosures to additional persons, is an insufficient remedy for overinclusiveness because it gives the FBI total discretion to determine who may receive disclosures and does not require the FBI to engage in any consideration of a narrower nondisclosure requirement. Further, they argue that the judicial review provisions are insufficient to render the nondisclosure requirement narrowly tailored because, according to the recipients, a court’s subsequent narrowing of the nondisclosure requirement is irrelevant to the narrow tailoring analysis.18 Finally, they argue that 50 U.S.C. § 1874, allowing for disclosure of aggregate data in various ranges, does not remedy the overinclusiveness of the nondisclosure requirement, because it arbitrarily differentiates between recipients who receive fewer than 500 NSLs (who must include “0” in the lowest reporting band) from recipients who receive more than 500 NSLs. As a result, the recipients argue, recipients who receive fewer than 500 NSLs are forced to make the false assertion that they might have received no NSLs.

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.

18 The recipients also argue that the judicial review provisions are insufficient to address overinclusiveness because they are triggered only if a recipient challenges the nondisclosure order. We reject this argument because judicial review is available to every recipient and, as we discuss in Section V, the burden of obtaining review is de minimis.

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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, 18 U.S.C. § 2709(c)(1)(B), meaning that there is “some reasonable likelihood” that harm will result from the disclosure. John Doe, Inc. v. Mukasey, 549 F.3d at 875. The government must engage in an individualized analysis of each recipient when making such a certification, which may include consideration of the size of the recipient’s customer base. If disclosure of the receipt of an NSL would not result in one of the enumerated harms because the recipient has millions of customers, the government could not properly make the certification required under the statute. Moreover, under those circumstances, the reviewing court would lack a good reason to believe that continued nondisclosure as to the fact of receipt is necessary. 18 U.S.C. § 3511(b)(3).

Similarly, the new 2015 provision allowing disclosures to “other persons as permitted by the [FBI] Director” or the Director’s designee, id. § 2709(c)(2)(A)(iii), merely provides the FBI with more flexibility to tailor the scope of the nondisclosure provision. We reject the recipients’ argument that this provision gives the government unfettered discretion and therefore creates a system of insufficiently cabined prior restraints. Even if the NSL law is determined to be the type of regulation for which procedural safeguards are required (see section V, infra), the law as a whole imposes narrow, objective, and definite standards on the government before it can issue a nondisclosure requirement, see id. § 2709(c); cf. Shuttlesworth, 394 U.S. at 150 (considering a city ordinance

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that “conferred upon the [governmental authority] virtually unbridled and absolute power to prohibit” certain forms of speech). The fact that the statute also gives the FBI Director or a designee discretion to make additional exceptions to the nondisclosure requirement does not lessen the adequacy of the clear standards imposed on these officials before issuing a nondisclosure requirement in the first place.

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,” 18 U.S.C. § 3511(b)(1)(C). The availability of judicial review is a component of each nondisclosure requirement issued under § 2709(c); each recipient is informed of the availability of judicial review in the NSL itself. See id. § 2709(d); see also id. § 3511(a), (b)(1). The fact that some, or even most, NSL recipients do not seek judicial review of a nondisclosure requirement is not relevant to the question whether the NSL law is narrowly tailored on its face.

Finally, the provision allowing a speaker to disclose its status as a recipient of a specified range of NSLs, see 50 U.S.C. § 1874, does not affect our conclusion that the NSL statute is narrowly tailored. To the contrary, the provisions allow recipients to make additional specified disclosures regarding the receipt of the nondisclosure requirements in certain circumstances without obtaining government or court approval. We decline the recipients’ invitation to quibble with the particular ranges selected by Congress. See Williams-Yulee, 135 S. Ct. at 1671.

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2

The recipients next argue that the nondisclosure requirement in § 2709(c) is not narrowly tailored because it authorizes restraints of overly long or indefinite duration and so is not the least restrictive means of achieving the government’s compelling interest. We agree that in order to ensure that the nondisclosure requirement is narrowly tailored to serve the government’s compelling interest in national security, a nondisclosure requirement must terminate when it no longer serves such a purpose. But the 2015 amendments to the NSL law largely address this concern by requiring the Attorney General to promulgate the Termination Procedures, which are now in effect.19 Under these procedures, the FBI is required to reassess the necessity of nondisclosure on two occasions: three years after an investigation is begun and upon the closing of an investigation. This mandated reassessment reduces the likelihood that an overly long nondisclosure requirement will be imposed. For example, if the need for nondisclosure arises because of the ongoing status of an investigation, nondisclosure would no longer be required following the closure of the investigation, and the requirement would terminate pursuant to the Termination Procedures.20

19 The recipients do not challenge the Termination Procedures themselves.
20 In this case, the Termination Procedures worked as intended: nondisclosure requirements in two of the NSLs at issue in this case were reduced in scope or entirely removed pursuant to the Termination Procedures, as the FBI determined upon the completion of the relevant investigations that continued nondisclosure was not required.

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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.” 18 U.S.C. § 3511(b)(1)(C). A court’s order enforcing an administrative subpoena must be within constitutional bounds. See Brock v. Local 375, Plumbers Int’l Union of Am., 860 F.2d 346, 349–50 (9th Cir. 1988). Therefore, a reviewing court would be bound to ensure that the nondisclosure requirement does not remain in place longer than is necessary to serve the government’s compelling interest. See Playboy Entm’t, 529 U.S. at 813.

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

Case: 16-16067, 07/17/2017, ID: 10510050, DktEntry: 87-1, Page 33 of 41

IN RE NATIONAL SECURITY LETTER

33

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 18 U.S.C. § 3511(b)(1)(C).

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 § 2709(c) survives strict scrutiny.21

21 The recipients argue that the NSL law should be held to a higher standard than strict scrutiny. According to the recipients, a content-based restriction imposed by a system of prior restraint is permissible only if (1) the harm to the governmental interest is highly likely to occur; (2) the harm will be irreparable; (3) no alternative exists for preventing the harm; and (4) the restriction will actually prevent the harm. This argument is meritless. No Supreme Court or Ninth Circuit opinion has articulated such a test, nor do the three cases cited by the recipients support it. The brief per curiam opinion in New York Times Co. v. United States (Pentagon Papers) did not specify a test that should be applied to prior restraints. See 403 U.S. 713, 714 (1971). Further, neither Nebraska Press Ass’n v. Stuart, 427 U.S. 541 (1976), nor Levine v. U.S. District Court, 764 F.2d 590 (9th Cir. 1985), required the government to show that harm to a government interest (i.e., protecting a criminal defendant’s Sixth Amendment rights) was highly likely to occur or that no alternative to a restraining order existed. Nor did either case suggest that a pretrial restraint is invalid unless it is certain to prevent the harm at issue. Rather, consistent with the application of strict scrutiny, these opinions considered the availability of less restrictive alternatives to a restraining order. See Nebraska Press, 427 U.S. at 563–64; Levine, 764 F.2d at 599–601.

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34

IN RE NATIONAL SECURITY LETTER

V

Having determined that the First Amendment does not prevent the government from restricting the information subject to nondisclosure under the NSL law, we next consider the recipients’ argument that the nondisclosure requirement in § 2709(c) is the sort of content-based restriction on speech which must have the procedural safeguards identified by the Supreme Court in Freedman v. Maryland, 380 U.S. 51.

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 (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, § 2709(c) limits certain speech in advance but “is not a typical example” of a regulation for which procedural safeguards are required. John Doe, Inc. v. Mukasey, 549 F.3d at 876. The Supreme Court has generally focused on two types of government schemes requiring safeguards: censorship schemes and licensing schemes. The Court has long held that schemes requiring a putative speaker to submit proposed speech to a governmental body, which is then “empowered to determine whether the applicant should be granted permission — in effect, a license or permit — on the basis of its review of the content of the proposed” speech, Se. Promotions, 420 U.S. at 554, “avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system,”

Case: 16-16067, 07/17/2017, ID: 10510050, DktEntry: 87-1, Page 35 of 41

IN RE NATIONAL SECURITY LETTER

35

Freedman, 380 U.S. at 58. The Court has applied this rule to censorship schemes requiring film exhibitors to obtain prior approval before showing a film, see id. at 52–53, requiring producers to obtain permission to show theatrical productions in municipal theaters, Se. Promotions, 420 U.S. at 554, allowing the postmaster to hold books sent through the mail pending a determination of obscenity, Blount v. Rizzi, 400 U.S. 410, 413–15 (1971), and seizing materials brought into the United States pending an obscenity determination by customs agents, United States v. Thirty-Seven (37) Photographs, 402 U.S. 363, 365–66 (1971), among other systems of censorship. The need for procedural safeguards in these cases derived from the principle that “a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand.” Se. Promotions, 420 U.S. at 559. “[T]he line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable.” Id.

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 (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 (2004) (requiring procedural safeguards in government schemes for licensing adult entertainment businesses); see also FW/PBS, 493 U.S. at 220, 228–30 (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

Case: 16-16067, 07/17/2017, ID: 10510050, DktEntry: 87-1, Page 36 of 41

36

IN RE NATIONAL SECURITY LETTER

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 (quoting FW/PBS, 493 U.S. at 228) (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.” 18 U.S.C. § 2709(b)(1). As the Second Circuit noted, “[u]nlike an exhibitor of movies,” the recipient of a nondisclosure requirement “did not intend to speak and was not subject to any administrative restraint on speaking prior to the Government’s issuance of an NSL.” John Doe, Inc. v. Mukasey, 549 F.3d at 880 (emphasis added). And unlike the operator of an adult entertainment business, the recipient of a nondisclosure requirement does not operate an enterprise where receiving government approval under the licensing scheme at issue “is the key to [its] obtaining and maintaining a business.” FW/PBS, 493 U.S. at 230.

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 (1990) (upholding in part a law requiring witnesses to maintain the confidentiality of the grand jury process); Seattle Times Co.

Case: 16-16067, 07/17/2017, ID: 10510050, DktEntry: 87-1, Page 37 of 41

IN RE NATIONAL SECURITY LETTER

37

v. Rhinehart, 467 U.S. 20, 37 (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.” 494 U.S. at 626. 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. Similarly, the only information subject to nondisclosure under § 2709(c) relate to the NSL and its contents — information of which a recipient was not in possession prior to the NSL’s issuance. The Supreme Court has sometimes reviewed such governmental confidentiality restrictions under a framework akin to strict scrutiny, considering whether the state has the “highest form of state interest,” and the restriction is “necessary to further the state interests asserted.” Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 102 (1979); see also United States v. Aguilar, 515 U.S. 593, 605–06 (1995). On other occasions, it has applied a test closer to intermediate scrutiny, see Rhinehart, 467 U.S. at 32–34, in which it balanced the government’s interest against that of the speaker’s by considering factors such as whether the speaker obtained the confidential information from a government source and whether the speaker knew the information prior to the government action. Compare id. at 31–32 (noting that First Amendment concerns are lessened when the speaker learned the information only as “a matter of legislative grace” through a court’s discovery process), with Butterworth, 494 U.S. at 632 (striking down a confidentiality restriction to the extent it restricted disclosure of information that was in the speaker’s possession prior to his grand jury

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38

IN RE NATIONAL SECURITY LETTER

testimony). But the Court has not held that these sorts of government confidentiality restrictions must have the sorts of procedural safeguards required for censorship and licensing schemes.

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. 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. 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. 18 U.S.C. § 3511(b)(1)(B). This 30-day period is both “specified” and “brief.” See John Doe, Inc. v. Mukasey, 549 F.3d at 883 (considering a “30-day period in which the Government considers whether to seek judicial review”); cf. Thirty-Seven (37) Photographs, 402 U.S. at 370–74 (plurality opinion) (holding that a 14-day limit on the initiation of judicial proceedings was sufficient under Freedman). Accordingly, we reject the recipients’ argument that the 2015 NSL law fails to provide this first safeguard.

Second, Freedman requires that “expeditious judicial review” must be available. Thomas, 534 U.S. at 321. The 2015 NSL law’s direction to reviewing courts, that they “should rule expeditiously” on any petition by a recipient or

Case: 16-16067, 07/17/2017, ID: 10510050, DktEntry: 87-1, Page 39 of 41

IN RE NATIONAL SECURITY LETTER

39

application by the government regarding the validity of a nondisclosure order, 18 U.S.C. § 3511(b)(1)(C), provides this safeguard. The recipients contend that this directive is insufficient because Congress should have imposed a specific time limit. Again, we disagree. While neither party may control how quickly a case moves through a court’s docket, we “presume that courts are aware of the constitutional need to avoid undue delay result[ing] in the unconstitutional suppression of protected speech.” City of Littleton, 541 U.S. at 782 (alteration in original) (internal quotation marks omitted); see also Dream Palace, 384 F.3d at 1003 (referring to City of Littleton’s “presumption that . . . courts function quickly enough, and with enough solicitude for the First Amendment rights of [speakers]”). Neither Freedman nor any other Supreme Court decision requires that judicial review be completed in a specified time frame, such as the 60 days suggested by the Second Circuit in John Doe, Inc. v. Mukasey, see 549 F.3d at 879. The courts’ duty to “exercise [their] powers wisely so as to avoid serious threats of delayinduced First Amendment harm,” City of Littleton, 541 U.S. at 782, assures us that judicial proceedings will move sufficiently rapidly to safeguard an NSL recipient’s First Amendment rights.

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. The recipients argue that § 3511(b)(1)(B)’s notice procedure is insufficient because a nondisclosure requirement may remain in place without judicial review if the recipient does not notify the government that it wishes to have a court review the order and if the recipient fails to bring its own petition to modify or set aside the nondisclosure requirement. We reject this argument. Freedman focused on minimizing

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40

IN RE NATIONAL SECURITY LETTER

the burden to the film exhibitor to “seek judicial review” of the state’s denial of a license; it did not focus on which party bore the initial burden. 380 U.S. at 58–59. Here, the burden on a recipient is de minimis, as the recipient may seek judicial review simply by notifying the government that it so desires. Freedman does not require that the government provide judicial review of confidentiality provisions for the benefit of individuals who do not wish to speak.

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 required to impose a nondisclosure requirement on both the fact of receipt and the contents of the NSL. Because the government must sufficiently certify and establish that both disclosures would likely result in one of the four enumerated harms, these requirements place the burden of proof on the government and thereby provide Freedman’s third safeguard.

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.

Case: 16-16067, 07/17/2017, ID: 10510050, DktEntry: 87-1, Page 41 of 41

IN RE NATIONAL SECURITY LETTER

41

VI

We conclude that § 2709(c)’s nondisclosure requirement imposes a content-based restriction that is subject to, and withstands, strict scrutiny. We further hold that, assuming the nondisclosure requirement is the type of prior restraint for which the Freedman procedural safeguards are required, the NSL law provides those safeguards. The nondisclosure requirement in the NSL law therefore does not run afoul of the First Amendment.

AFFIRMED.

 
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No. C 13-80089 SI
ORDER DENYING PETITION TO SET ASIDE, DENYING MOTION TO STAY AND GRANTING CROSS-PETmON TO ENFORCE
FILED UNDER SEAL

16

Currently before the Court is a petition to modify or set aside two National Security Letters

17 (NSLs) that were issued to petitioner by the Federal Bureau of Investigation on

2013,

18 under 18 U.S.C. §§ 3511(a) and (b). Petition, filed 4/23/13. The government, in addition to

19 opposing the petition, filed a cross-petition to enforce the two NSLs under 18 U.S.C. § 3511(c).

20 Cross-Petition, filed 5/23/13. Petitioner has also filed a motion to stay proceedings in this case

21 pending the resolution of the government's appeal in In re NSL, No.3: 11-cv-2173 SI. These matters

22 were scheduled for a hearing on August 2, 2013. Pursuant to Civil Local Rule 7-1 (b), the Court

23 determined that these matters are appropriate for resolution without oral argument, and VACATED

24 the hearing. Having considered the papers submitted, including the classified declaration of Robert

25 Anderson, Jr. submitted ex parte for the Court's review, the Court rules as follows.

26

In a separate case brought by petitioner challenging a 2011 NSL, this Court found

27 unconstitutional portions ofthe NSL statute governing nondisclosure orders issued in conjunction with 28 NSLs. See In re NSL, No. 3: 11-cv-2173 SI (March 14, 2013) (finding 18 U.S.C. § 2709(c), 18

U.S.C. §§ 3511(b)(2), (b)(3» facially unconstitutional). The Court's judgment - as to the

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1 enforcement of the particular NSL at issue in that case - was stayed pending appeal. Whether the

2 challenged nondisclosure provisions are, in fact, facially unconstitutional will be determined in due

3 course by the Ninth Circuit.

4

On March 29, 2013, a different recipient of NSLs filed a petition in this Court challenging

5 19 NSLs, and the government filed a cross-petition to enforce those same NSLs. See In re NSLs, No.

6 3: 13-mc-80063-SI. The petitioner in that case requested that the Court set aside the NSLs and enjoin

7 the FBI from issuing future NSLs, on the ground that the portions of the NSL statute governing

8 nondisclosure orders are facially unconstitutional. In orders filed on May 21 and May 23, 2013, the

9 Court found, in light of the pending appeal and stay of the judgment in In re NSL, No. 3: ll-cv-2173

10 SI, that it was appropriate to review the arguments and evidence on an NSL-by-NSL basis. The

11 Court concluded that the government had met its burden to enforce the NSLs, granted the

12 government's cross petition to enforce, and denied the petitioner's petition to set aside the NSLs. See

13 In re NSLs, No. 3: 13-mc-80063-SI (May 21,2013 and May 23, 2013).

14

On March 14, 2013, another recipient of NSLs filed a petition in this Court challenging two

15 NSLs, and the government filed a cross-petition to enforce those same NSLs. See In re NSLs, No.

16 3: 13-cv-1165-SI. The petitioner in that case mounted the same facial constitutional challenge to the

17 NSL statute as was brought in the cases discussed supra. For the same reasons that the Court

18 reviewed the arguments and evidence on an NSL-by-NSL basis in In re NSLs, No.3: 13-mc-80063-SI,

19 the Court found it appropriate to do so in In re NSLs, No. 3:13-cv-1165-SI. The Court concluded

20 that the government had met its burden to enforce the NSLs, granted the government's cross petition

21 to enforce, and denied the petitioner's petition to set aside the NSLs. See In re NSLs, No.

22 3: 13-cv-1165-SI (Order Denying Petition to Set Aside and Granting Cross-Petition to Enforce, dated

23 August 12, 2013).

24

Petitioner seeks a stay of this case pending the resolution of the government's appeal in In re

25 NSL, No.3: ll-cv-2173 SI. Petitioner argues that a stay is warranted because that appeal involves the

26 same parties and the same constitutional challenges to the NSL statute. Petitioner contends that the

27 Ninth Circuit's resolution of the appeal will control the outcome of this litigation, and thus that a stay

28 is in the interest of judicial efficiency and economy. The government opposes a stay of its cross-

2

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1 petition seeking enforcement, and argues that the Court should review and enforce the two NSLs at

2 issue in this case.

3

The Court concludes that a stay of this case is not appropriate, and that in light of the fact that

4 the Ninth Circuit will address the facial constitutional challenges in In re NSL, No.3: 11-cv-2173 SI,

5 and consistent with its approach in the subsequent cases challenging NSLs, this Court will review the 6 arguments and evidence on an NSL-by-NSL basis. l

7

The Government has submitted evidence - both unclassified and classified - intended to

8 demonstrate that the two NSLs were issued in full compliance with the procedural and substantive

9 requirements imposed by the Second Circuit in Doe v. Mukasey, 549 F.3d 861 (2d Cir. 2008). Those

10 requirements include: (1) notifying NSL recipients that the government will initiate judicial review

11 of the nondisclosure order and underlying NSL if the recipient objects to compliance; (2) certifying

12 that the nondisclosure order is necessary to prevent interference with an authorized investigation to

13 protect against international terrorism or clandestine intelligence agencies; (3) upon a challenge in

14 Court, the government submits evidence to show the District Court judge there is a "good reason"

15 to believe that absent nondisclosure, some reasonable likelihood of harm to an authorized investigation

16 to protect against international terrorism or clandestine intelligence agencies will result; and (4) the

17 District Court is not expected to treat the FBI's certification as to the necessity of the nondisclosure

18 as conclusive, but to conduct a searching review of the evidence submitted. Id. at 883-84.

19

Although not privy to the classified information, petitioner does not dispute that the FBI has

20 complied with the strictures imposed by the Second Circuit. The government has, therefore,

21 complied with procedural and substantive requirements that the Court and petitioner in the Court's

22 prior case recognized could result in a constitutional application of the nondisclosure and judicial

23 review provisions of 18 U.S.C. § 2709(c) and 18 U.S.C. §§ 3511(b)(2), (b)(3). See In re NSL, No.

24 3: 11-2173 SI (March 14, 2013) at 7,21-23. In these circumstances - given the as-applied showings,

25 given that the constitutionality of the statute as written is under review at the Ninth Circuit, and given

26

27

28

1 In contrast, the Court stayed In re NSL, No.3: 11-2667 SI because that case involves the same

2011 NSL at issue in In re NSL, No. 3:11-2173 S1.

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1 that petitioner did not raise arguments specific to the two NSLs at issue why the nondisclosure orders

2 should not be enforced - the Court DENIES the petition to modify or set aside the two NSLs.

3

Turning to the government's cross-petition to enforce, the government argues that in

4 determining whether to enforce administrative subpoenas (like the NSLs at issue), the Court must

5 consider: (1) whether Congress has granted the FBI the authority to investigate; (2) whether

6 procedural requirements have been followed; and (3) whether the evidence sought is relevant and

7 material to the investigation. See EEOCv. Children's Hospital Medical Center, 719 F.2d 1426, 1428

8 (9th Cir. 1983). Having reviewed the Government's arguments and evidence submitted, the Court

9 finds that as to the two NSLs, Congress has authorized the FBI to seek the information requested, the

10 procedural requirements set both by the statute and by the Second Circuit's Doe v. Mukasey decision

11 have been followed, and the evidence sought is relevant and material to the investigation. In

12 particular, as disclosed in the Government's pleadings, a senior FBI official has certified that the

13 information sought is relevant to an authorized investigation to protect against international terrorism

14 or clandestine intelligence activities; and the investigations, where aimed at a "United States person,"

15 are not conducted solely on the basis of activities protected by the First Amendment. See Mem. In

16 Support of Cross-Petition at 17-19 (citing classified Anderson Declaration). The government's

17 declarant also explains what information is being sought in and how that information is relevant to

18 a pending national security investigation. [d. at 17-18. As to both NSLs, the government has

19 shown through the unclassified Anderson Declaration that senior FBI officials certified, pursuant to

20 the NSL statute, that the nondisclosure requirement was imposed because"otherwise there may result

21 a danger to the national security of the United States, interference with a criminal, counterterrorism,

22 or counterintelligence investigation, interference with diplomatic relations, or danger to the life or

23 physical safety of any person." 18 U.S.C. § 2709(c)(I). The government has also submitted evidence

24 explaining further the need for continued nondisclosure of both NSLs. See Mem. In Support of

25 Cross-Petition at 18-19 (citing classified Anderson Declaration).

26

27

28

4

1

Accordingly, having reviewed the arguments and evidentiary showing made, the Court finds

2 that the government has met its burden to enforce these NSLs and therefore GRANTS the

3 government's cross-petition to enforce.

4

5

IT IS SO ORDERED.

6

SUSAN ILLSTON United States District Judge

5

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA

IN RE: NSL, Plaintiff,
v.

Case Number: 13-MC-80089 SI CERTIFICATE OF SERVICE

___________D_ef_e_nd_a_n_t.___________~I
I, the undersigned, hereby certifY that I am an employee in the Office ofthe Clerk, U.S. District Court, Northern District of California.
That on August 13, 2013, I SERVED a true and correct copy(ies) ofthe attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.
Cindy Ann Cohn Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109
Steven Bressler USDOJ P.O. Box 883 Washington, DC 20044
August 13, 2013

Richard W. Wieking, Clerk By:

 
 Case: 13-16732

04/14/2014

ID: 9057550

No. 13-16732

UNDER SEAL

DktEntry: 43

Page: 1 of 38

dIN THE
United States Court of Appeals
FOR THE NINTH CIRCUIT

In Re: NATIONAL SECURITY LETTER,

UNDER SEAL, — v.—

Petitioner-Appellant,

ERIC HOLDER, JR., ATTORNEY GENERAL; UNITED STATES DEPARTMENT OF JUSTICE; FEDERAL BUREAU OF INVESTIGATION,
Respondents-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA CASE NO. 13-CV-1165 SI HONORABLE SUSAN ILLSTON, DISTRICT JUDGE

BRIEF OF AMICUS CURIAE PEN AMERICAN CENTER, INC. IN SUPPORT OF PETITIONER-APPELLANT

Of Counsel:
EDWARD J. D AVIS LINDA STEINMAN LACY H. KOONCE, III
DAVIS WRIGHT TREMAINE LLP 1633 Broadway, 27th Floor New York, New York 10019 (212) 489-8230

THOMAS R. BURKE DAVIS WRIGHT TREMAINE LLP 505 Montgomery Street, Suite 800 San Francisco, California 94111 (415) 276-6500
Counsel for Amicus Curiae PEN American Center, Inc.

Case: 13-16732 04/14/2014

ID: 9057550 DktEntry: 43 Page: 2 of 38

FEDERAL RULE OF APPELLATE PROCEDURE 26.1 CORPORATE DISCLOSURE STATEMENT
Pursuant to Rules 26.1 and 29(c)(1) of the Federal Rules of Appellate Procedure, counsel for Amicus Curiae PEN American Center, Inc. hereby certifies as follows: PEN American Center, Inc. is a private non-governmental not-forprofit corporate party, with no parent corporation. No publicly held company owns stock in PEN American Center, Inc.

DAVIS WRIGHT TREMAINE LLP

By:

/s/ Thomas R. Burke

505 Montgomery Street, Suite 800 San Francisco, California 94111-6533 Telephone: (415) 276-6500 Facsimile: (415) 276-6599

Attorneys for Amicus Curiae PEN American Center, Inc.

Case: 13-16732 04/14/2014

ID: 9057550 DktEntry: 43 Page: 3 of 38

TABLE OF CONTENTS Page
INTEREST OF AMICUS CURIAE ............................................................................1 SUMMARY OF ARGUMENT .................................................................................1 ARGUMENT .............................................................................................................5
I. THE NATIONAL DISCUSSION ABOUT THE IMPACT OF CLANDESTINE SURVEILLANCE ON PERSONAL FREEDOM ............................................................................................5 A. THE HISTORICAL FRAMEWORK .........................................5 B. WRITERS’ ROLES IN THE PUBLIC DISCOURSE ABOUT SECURITY AND FREEDOM ....................................6 1. WRITERS MUST BE FREE TO EXPLORE SENSITIVE SUBJECTS..................................................7 2. WRITERS HAVE WARNED OF THE DANGERS OF CLANDESTINE SURVEILLANCE .........................9 3. THE PEN DECLARATION ON DIGITAL FREEDOM .....................................................................13
II. THE EXPERIENCE OF WRITERS DEMONSTRATES THAT CLANDESTINE SURVEILLANCE CHILLS SPEECH ...................15 A. THE HISTORY OF ABUSES OF SURVEILLANCE AGAINST WRITERS ..............................................................15 B. THE IMPACT OF MODERN SURVEILLANCE ON WRITERS: THE PEN WRITERS SURVEY..........................18 C. THE MODERN DEBATE ABOUT HIGH-TECH SURVEILLANCE ....................................................................21
III. THE NSL ACT VIOLATES THE FIRST AMENDMENT ...............23 CONCLUSION ........................................................................................................30
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TABLE OF AUTHORITIES
Page(s)
Cases Clapper v. Amnesty Int’l,
133 S.Ct. 1138 (2013) .........................................................................................18
Freedman v. Maryland, 380 U.S. 51 (1965) ........................................................................................24, 25
In re Nat’l Sec. Letter, 930 F. Supp. 2d 1064 (N.D. Cal. 2013).......................passim
Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976) ............................................................................................ 27
Olmstead v. United States, 277 U.S. 438 (1928) ..........................................................................................6, 7
Sheppard v. Maxwell, 384 U.S. 333 (1966) ............................................................................................ 27
U.S. v. Brown, 250 F.3d 907 (5th Cir. 2001) ..............................................................................27
United States v. Jones, 132 S. Ct. 945 (2012)............................................................................................8
United States v. U.S. Dist. Ct. (Keith), 407 U.S. 297 (1972) .............................................................................................. 7
Statutes
18 U.S.C. § 2709 ...............................................................................................passim
Other Authorities PEN Declaration on Digital Freedom ..........................................................13, 14, 15
PEN American Center, Two Views on How Surveillance Harms Writers (Sept. 3, 2013)..........................................................................................8
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PEN American Center, The Impact of US Government Surveillance on Writers: Findings From a Survey of PEN Membership (October 31, 2013) ..................................................................................18, 19, 20
PEN American Center, Chilling Effects: NSA Surveillance Drives U.S. Writers to Self-Censor (November 12, 2013).........................................18, 19, 20
PEN American Center, Creative Conscience, Writers on Surveillance, Society and Culture (April 2, 2014) ...................................................................10
Senate Select Comm. to Study Governmental Operations with Respect to Intelligence Activities and the Rights of Americans (Book II), S. Rep. No. 94-755 (1976) ......................................................................................17
Jeremy Bentham, The Panopticon Writings (Miran Bozovic, ed., 1995) ...................................................................................................................11
Julie E. Cohen, Examined Lives: Informational Privacy and the Subject as Object, 52 Stan. L. Rev. 1373 (2000)................................................10
Noam Cohen, Surveillance Leaves Writers Wary, N.Y. Times (November 11, 2013)....................................................................................19, 21
William O. Douglas, Points of Rebellion (1969).....................................................11
Dave Eggers, US writers must take a stand on NSA surveillance, Guardian (Dec. 19, 2013) .....................................................................................7
Michel Foucault, Discipline and Punish (1975)......................................................12
Franz Kafka, The Trial (1925) .................................................................................12
John Locke, The Second Treatise on Government (1690) ......................................... 5
Jane Mayer, Verizon and the N.S.A.: The Problem With Metadata, New Yorker (June 6, 2013).................................................................................22
Victor Navasky, Naming Names (1980) ..................................................................16
George Orwell, 1984 (1949) ....................................................................................11
Natalie Robins, Alien Ink (1992) .............................................................................17
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Julian Sanchez, On Fiction and Surveillance (May 14, 2012), http://www.pen.org/nonfiction/julian-sanchez-fiction-andsurveillance .........................................................................................................11
David K. Shipler, The Rights of the People: How Our Search for Safety Invades Our Liberties (2011).....................................................................9
Larry Siems, A Blacklisted Screenwriter on American Surveillance (Aug. 30, 2013) .............................................................................................10, 16
Daniel J. Solove, The Digital Person (2004).....................................................12, 13
Daniel J. Solove, Five Myths About Privacy, Washington Post (June 13, 2013)....................................................................................................22
Melvin I. Urofsky and Philip E. Urofsky eds., Selections from the Private Papers of Justice William O. Douglas (1987) .........................................6

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INTEREST OF AMICUS CURIAE PEN American Center, Inc. is a non-profit association of writers that
includes poets, playwrights, essayists, novelists, editors, screenwriters, journalists,
literary agents, and translators (“PEN”). PEN has approximately 3,700 members
and is affiliated with PEN International, the global writers’ organization with 144
centers in more than 100 countries around the world. PEN International was
founded in 1921, in the aftermath of the first World War, by leading European and
American writers who believed that the international exchange of ideas was the
only way to prevent disastrous conflicts born of isolation and extreme nationalism.
Today, PEN works along with the other chapters of PEN International to advance
literature and protect the freedom of the written word wherever it is imperiled. It
advocates for writers all over the world. The interest of PEN in this case is in
protecting the freedoms of writers in the United States under the First Amendment.1
SUMMARY OF ARGUMENT This amicus brief is submitted to give voice to the concerns of American
writers regarding the extraordinary and unparalleled power granted to the Federal
1 All parties to this appeal consent to the filing of this amicus brief. This brief was authored entirely by counsel for amicus curiae PEN. No counsel for any party authored the brief in any part, nor did any party (or any person other than PEN and its counsel) contribute money to fund its preparation or submission. PEN is submitting substantially identical briefs in this appeal and the consolidated appeal in related cases No. 13-15957 and 13-16731.

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Bureau of Investigation (“FBI”) under the National Security Letter Statute, 18 U.S.C. § 2709 (the “Statute”). The Statute allows the FBI to collect information about activities protected by the First Amendment – the free expression and free association of citizens – without judicial oversight and adequate procedural safeguards, and to impose what amounts to a perpetual, blanket gag order on any recipient of a National Security Letter (“NSL”) seeking such information, with no provision for meaningful judicial review.
As a class of citizens intimately familiar with the effects that gag orders may have both on the press and on speech generally, and the chilling effect that unchecked government intrusion may have on freedom of speech and association, writers have long warned against the perils of allowing a culture of surveillance and secrecy to take root in our society. Too often, writers have witnessed and experienced the consequences of our failing to maintain vigilance against such oppressive behavior, and paid the price that secrecy extracts from free public discourse. Over the last century, American writers have been the targets of government surveillance and even persecution, often in the name of national security. Abuses have occurred not only during the McCarthy era and J. Edgar Hoover’s reign at the FBI, but in every administration through the present day. That history deepens the apprehensions of writers at the secretive, unreviewed NSL procedure.
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Most recently, in the wake of recent revelations about the National Security Agency, this country has been engaged in fervent public discussion of the proper balancing of national security and individual freedom, in light of the capacities of modern technology and the threat of organized terrorism. The debate echoes historical discussions of security and freedom that date back to the founding of the nation. The fact that the government may secretly seek information about our communications without adequate judicial supervision, and impose a prior restraint barring entities with information about us from even revealing to the public that they have received an NSL, raises public fears of clandestine observation and surveillance, chills free speech, inhibits free association, and prevents entities that receive NSLs from contributing crucial information to the national conversation about security and freedom. By barring people who have first-hand experience with new intelligence mechanisms from speaking, the NSL Statute stifles debate before it can even be joined.
Our country’s professional journalists and writers are key to this public debate. They play essential roles as moderators, advocates, antagonists, scholars, critics, and sounding boards. To develop and deliver important messages, writers often must research sensitive issues, have conversations with sources who may espouse radical ideas, and explore uncomfortable and provocative subjects. A culture of secrecy and surveillance prevents vital information from being made
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available to the public and generally undermines writers’ freedom to play their roles and freely contribute to the public discourse, especially when the public discussion concerns clandestine surveillance itself.
Because their communications may concern controversial or sensitive topics, and because of the unfortunate history of oppression of writers in the name of national security, writers are naturally concerned that they are at heightened risk of surveillance. A recent survey of writers commissioned by PEN confirms that the impact of this new culture of secrecy and surveillance is not hypothetical: writers have changed their behavior because they believe the government is observing them or secretly seeking information about their activities. Writers are curtailing communication with sources and colleagues; they are avoiding writing about certain topics; and they are not pursuing research they otherwise would.
The expectation of privacy that permits the free flow of ideas is essential to democracy, and it is eroded by the government’s collection of records of our communications. As the District Court correctly recognized in holding that the NSL Statute could not withstand First Amendment scrutiny, if investigation of U.S. citizens is warranted by national security concerns, the government must justify any resulting intrusion upon free speech. NSLs issued by the FBI under a shroud of secrecy enforced by a prior restraint, without meaningful judicial oversight, cannot be sustained under the Constitution. As writers have warned for
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generations, and PEN’s survey confirms, people who fear that every move they make is being recorded by a government bureaucracy – even an ostensibly benign one – inevitably censor themselves. PEN is profoundly concerned that, as NSLs deepen the atmosphere of secret surveillance, our private communications will become less frank, our associations will become more limited, the scope of thought will shrink, and our democracy will be debased.
ARGUMENT I. THE NATIONAL DISCUSSION ABOUT THE IMPACT OF
CLANDESTINE SURVEILLANCE ON PERSONAL FREEDOM A. THE HISTORICAL FRAMEWORK The proper balance of security and personal freedom has been debated since the dawn of organized societies, and certainly since the founding of this country. As John Locke and others who followed proposed, in forming a government, citizens voluntarily cede some personal liberty in exchange for the protections provided by uniting with others. E.g., The Second Treatise of Civil Government, Chapter IX (“Of the Ends of Political Society and Government”) (1690). The Preamble to the Constitution uses the phrase “to secure the blessings of liberty” to announce the purpose of our agreement: liberty is not possible without the security that a stable government provides, but a primary goal of providing security is to create the space needed for personal freedom.

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Democracies attempt to strike a balance between freedom and security in the face of shifting events, both domestic and foreign. In times of crisis when security concerns are ascendant, personal freedoms may be threatened, often through an insidious “creep” of benign-seeming security measures. As Justice Douglas warned, “[a]s nightfall does not come all at once, neither does oppression.” Melvin I. Urofsky and Philip E. Urofsky eds., Selections from the Private Papers of Justice William O. Douglas 162 (1987). Similarly, Justice Brandeis cautioned that, even where sacrifices of liberty are sought for legitimate ends, we should not lose sight of the fundamental values at stake: “Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. … The greatest dangers to liberty lurk in insidious encroachment by men of zeal, wellmeaning but without understanding.” Olmstead v. United States, 277 U.S. 438, 479 (1928) (Brandeis, J., dissenting).
B. WRITERS’ ROLES IN THE PUBLIC DISCOURSE ABOUT SECURITY AND FREEDOM
In the United States, writers have always played critical roles as thinkers, investigators, dissenters, and advocates for change. Writers develop ideas through conversations, including exchanges with radicals, dissidents, pariahs, victims of violence, and others who do not wish for their communications to become known. Writers may espouse unpopular ideas, and take positions that serve as lightning rods for hatred or ridicule. Our democracy depends on the ferment of intellectual
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debate, and our writers serve as arbiters of, and contributors to, public discourse about a wide range of important issues, including the fundamental issues of security and freedom.
1. WRITERS MUST BE FREE TO EXPLORE SENSITIVE SUBJECTS
To make original contributions to public discourse, writers must be confident they are protected by a zone of privacy. The Constitution safeguards that zone of privacy. The freedom to communicate with whomever one chooses, away from the prying eyes of the state, is an essential condition for creativity and critical writing, and especially for the expression of dissent.
Our Fourth Amendment rights to freedom from intrusion are bound closely to our rights under the First Amendment to freedom of association and freedom of expression. See, e.g., Olmstead, 277 U.S. at 478 (Brandeis, J., dissenting); United States v. U.S. Dist. Ct. (Keith), 407 U.S. 297, 314 (1972) (“The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power.”). Justice Sotomayor recently echoed this concern: “[a]wareness that the Government may be watching chills associational and expressive freedoms.” United States v. Jones, 132 S. Ct. 945, 956 (2012) (Sotomayor, J., concurring).
As PEN member and author Dave Eggers has warned, “The effect of an entire nation of individuals choosing to abstain from certain phone calls, email messages, internet searches, for fear of what could be done with that information in
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the future, threatens not just a chill, but a permanent intellectual ice age.” Dave
Eggers, US writers must take a stand on NSA surveillance, Guardian (Dec. 19,
2013). 2 Philosopher Kwame Anthony Appiah, a former president of PEN, also
has elucidated some of the dangers that surveillance threatens for writers and
society:
Great moral advances begin often as radical ideas, ideas that would lead those who have them to be subjected to obloquy or even to violence. Serious thinking is done by writing and by exchanges of ideas with others. In a society that lived through the abuses of state power against Dr. Martin Luther King Jr. we cannot think that we will only be endangered if we are in the wrong. I have sometimes thought, myself, as I reflected on issues about the morality of terrorism and our responses to it, that I must censor myself in my most private writings because I cannot be sure that my writings will not be spied upon, misconstrued, used against me. PEN, Two Views on How Surveillance Harms Writers (Sept. 3, 2013).3 Thus it is
not just the knowledge of widespread surveillance that threatens free speech and
associational rights, it is also the fact that writers suspect but “cannot be sure”
whether spying is occurring in particular instances, and therefore must assume that
it is, and operate accordingly. This leads to self-censorship just as surely as actual
knowledge of specific surveillance. The use of NSLs, with a total embargo on
information about their use, imposes just such a chill.
2 Available at http://www.theguardian.com/books/2013/dec/19/dave-eggers-uswriters-take-stand-nsa-surveillance. 3 Available at http://www.pen.org/blog/two-views-how-surveillance-harms-writers.
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2. WRITERS HAVE WARNED OF THE DANGERS OF CLANDESTINE SURVEILLANCE
Informed by their own experiences of the effect of government surveillance
on their work, through the years writers have used the tools of their trade to
document and predict its impact on society at large. Writers have richly
illuminated, in fiction and non-fiction, these significant threats.
As PEN member David K. Shipler has written:
Privacy is like a poem, a painting, a piece of music. It is precious in itself. Government snooping destroys the inherent poetry of privacy, leaving in its absence the artless potential for oppression. At the least, if the collected information is merely filed away for safekeeping, a weapon is placed in the hands of the state. If it is utilized, acute consequences may damage personal lives. Even where government is benign and wellmeaning – a novelty that neither James Madison nor Tom Paine imagined – the use of everyday information about someone’s past to predict his behavior can lead to obtrusive mistakes….
The Rights of the People: How Our Search for Safety Invades Our Liberties 294-95
(2011).
Social scientists have confirmed that a generalized awareness of surveillance
reduces the variety of ideas people entertain and express:
[T]he experience of being watched will constrain, ex ante, the acceptable spectrum of belief and behavior. Pervasive monitoring of every first move or false start will, at the margin, incline choices toward the bland and the mainstream. The result will be a subtle yet fundamental shift in the content of our character, a blunting and
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blurring of rough edges and sharp lines. But rough edges and sharp lines have intrinsic, archetypal value within our culture. … The condition of no-privacy threatens not only to chill the expression of eccentric individuality, but also, gradually, to dampen the force of our aspirations to it. Julie E. Cohen, Examined Lives: Informational Privacy and the Subject as Object,
52 Stan. L. Rev. 1373, 1425-26 (2000) (citing psychological studies indicating that
“lack of privacy makes people less inclined to experiment and less inclined to seek
help”).
The screenwriter Walter Bernstein, who lived through blacklisting in the
1950s, believes the mass surveillance today has created a climate of fear that
necessarily cramps thought: “It’s not an atmosphere that helps create creativity or
lets the mind run free. You’re always in danger of self-censorship….” Larry Siems, A Blacklisted Screenwriter on American Surveillance (Aug. 30, 2013).4
Author Janne Teller concurs: “This idea that somebody can read along with what
you write, can keep an eye on everything you do … it inhibits you and makes you,
in a way, want to instinctively conform to something that you think will not put
you in danger.” PEN American Center, Creative Conscience, Writers on Surveillance, Society and Culture (April 2, 2014).5

4 Available at http://www.pen.org/blacklisted-screenwriter-american-surveillance. 5 Available at http://www.pen-international.org/newsitems/creative-consciencewriters-on-surveillance-society-and-culture.
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Authors often create fictional worlds more extreme than reality to warn the public about the prying eyes of a powerful state and to underscore the critical importance of privacy to human creativity. As writer Julian Sanchez observed, when we discuss surveillance and privacy, “we speak a language borrowed from fiction.” On Fiction and Surveillance (Introduction to PEN World Voices Festival panel: “Life in the Panopticon: Thoughts on Freedom in an Era of Pervasive Surveillance”) (May 14, 2012).6
The most common literary reference point for state surveillance is, of course, George Orwell’s dystopian novel, 1984 (1949). See, e.g., William O. Douglas, Points of Rebellion 29 (1969) (“Big Brother … will pile the records high with reasons why privacy should give way to national security, to law and order, to efficiency of operation, to scientific advancement and the like.”). By depicting a totalitarian society ruled by an omniscient regime, Orwell vividly illustrated the dangers of a powerful surveillance state.
Other writers have explored the power of surveillance alone, even without Orwellian government repression. The title of the PEN World Voices Festival panel noted above refers to the “Panopticon” devised by British philosopher Jeremy Bentham – a circular prison with a central observation tower permitting guards to see inmates in their cells at all times without letting the inmates ever 6 Available at http://www.pen.org/nonfiction/julian-sanchez-fiction-andsurveillance.
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know whether they were being watched. Bentham called it “a new mode of obtaining power of mind over mind, in a quantity hitherto without example.” Jeremy Bentham, The Panopticon Writings (Miran Bozovic, ed., 1995).
Philosopher Michel Foucault used the concept of the Panopticon as a metaphor to analyze modern power structures in his work Discipline and Punish (1975). Like Bentham, Foucault recognized that the mere knowledge that, at any given moment, one could be watched is sufficient to achieve the desired effect of control: “Hence the major effect of the Panopticon: to induce in the inmate a state of conscious and permanent visibility that assures the automatic functioning of power.” Id. at 201. Foucault concluded that individuals subject to the constant possibility of surveillance – whether in a building or in society at large – come to internalize “the constraints of power,” censoring themselves and permitting whoever is in authority to exert more and more control with less and less need to exert any physical force. Id. at 202-03.
Another literary illustration of the impact of government surveillance is found in the work of Franz Kafka. In The Trial (1925), Joseph K. is arrested without explanation and discovers that “[a] vast bureaucratic court has apparently scrutinized his life and assembled a dossier on him. The Court is clandestine and mysterious, and court records are ‘inaccessible to the accused.’” Daniel J. Solove, The Digital Person 27-55, 36 (2004). He engages in a maddening, largely fruitless
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quest to understand the charges against him and who brought them. The “Kafkaesque” danger of secret surveillance is not necessarily that agencies will be “led by corrupt and abusive leaders,” but rather that it “shift[s] power toward a bureaucratic machinery that is poorly regulated and susceptible to abuse.” Id. at 178.
The Panopticon model illustrates how the comprehensive collection of personal information affects society, even if we never know whether any particular record is being collected or examined. The broad power to issue NSLs to companies that maintain our personal data – data that is to some extent beyond our control – places the FBI in the position of a guard in the watch tower, and the nondisclosure provisions prevent us from ever knowing when our data is being “watched.” The gag orders thus place citizens – including writers – in the role of Joseph K., unable to learn enough even to guess at the information the government is collecting.
3. THE PEN DECLARATION ON DIGITAL FREEDOM As an advocate for writers, PEN has long campaigned to counter the inhibiting effects governments can have upon free expression. In light of the history of government oppression of writers, described below, and the dramatic expansion of government surveillance in the digital age, in September 2012, the PEN Assembly of Delegates, representing 20,000 writers, adopted the PEN
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Declaration on Digital Freedom (the “PEN Declaration”).7 Government
surveillance is the focus of one of the four cardinal principles in the PEN
Declaration:
All persons have the right to be free from government surveillance of digital media.
The PEN Declaration explains why freedom from government surveillance
of our electronic communications is crucial:
a. Surveillance, whether or not known by the specific intended target, chills speech by establishing the potential for persecution and the fear of reprisals. When known, surveillance fosters a climate of self-censorship that further harms free expression.
The Declaration then sets out the implications of this principle for governments
around the world:
b. As a general rule, governments should not seek to access digital communications between or among private individuals, nor should they monitor individual use of digital media, track the movements of individuals through digital media, alter the expression of individuals, or generally surveil individuals.
c. When governments do conduct surveillance – in exceptional circumstances and in connection with legitimate law enforcement or national security investigations – any surveillance of individuals and monitoring of communications via digital media must meet international due process laws and standards that

7 Available at http://www.pen-international.org/pen-declaration-on-digitalfreedom/declaration-on-digital-freedom-english.
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apply to lawful searches, such as obtaining a warrant by a court order.
d. Full freedom of expression entails a right to privacy; all existing international laws and standards of privacy apply to digital media, and new laws and standards and protections may be required.
e. Government gathering and retention of data and other information generated by digital media, including data mining, should meet international laws and standards of privacy, such as requirements that the data retention be time-limited, proportionate, and provide effective notice to persons affected.
PEN Declaration ¶ 3.
II. THE EXPERIENCE OF WRITERS DEMONSTRATES THAT CLANDESTINE SURVEILLANCE CHILLS SPEECH
A. THE HISTORY OF ABUSES OF SURVEILLANCE AGAINST WRITERS
The potential for abuse of the powerful NSL mechanism, given the absence
of meaningful judicial oversight, is hardly hypothetical. Petitioner’s Opening
Brief8 documents the FBI’s prior misuse of NSLs, as documented in reports of the
Department of Justice Inspector General. Opening Brief at 12-15. The misuse
included improper requests for information on First Amendment-protected activity.
Id. at 13. The Reports also “linked much of the FBI’s abuse problem to a lack of
oversight, both outside and within the agency.” Id. at 14.
8 References to “Petitioner” are to Petitioner-Appellant. References to “Opening Brief” are to Petitioner-Appellant’s Opening Brief filed February 28, 2014 (Dkt. No. 26).
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This, unfortunately, does not come as a great surprise to writers. Throughout history, writers, artists, and public intellectuals have been particularly susceptible to intrusive surveillance and scrutiny. During the twentieth century, the FBI maintained active surveillance and investigation files on more than 150 writers, including James Baldwin, Truman Capote, Willa Cather, T.S. Eliot, William Faulkner, F. Scott Fitzgerald, Lillian Hellman, Ernest Hemingway, Sinclair Lewis, Henry Miller, Dorothy Parker, Gertrude Stein, John Steinbeck, Tennessee Williams, and Richard Wright. See Natalie Robins, Alien Ink (1992). As PEN member Natalie Robins concluded, although this practice was often the result of a combination of “paranoia,” “conspiracy,” “monumental bureaucratic overkill” and agents “simply doing their job,” “one thing is certain: most of the writers were watched because of what they thought.” Id. at 17.
Such abuses have been especially frequent during times of heightened national security concerns. In the United States during the McCarthy era, for example, writers and artists suspected of having Communist leanings were interrogated by Congress and the FBI and blacklisted if they did not inform on their colleagues. Writers like Walter Bernstein were visited frequently by the FBI, often once or twice a month for years. Their neighbors were asked about their visitors. Their garbage was examined. See Siems, A Blacklisted Screenwriter; see also generally Victor Navasky, Naming Names (1980).
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Reports of the U.S. Senate Select Committee to Study Governmental
Operations with Respect to Intelligence Activities (the “Church Committee”) in
1975 and 1976 contained scathing criticisms of the failures of the executive
branch, Congress, and the courts to curb abuses:
The Constitutional system of checks and balances has not adequately controlled intelligence activities. Until recently the Executive branch has neither delineated the scope of permissible activities nor established procedures for supervising intelligence agencies. Congress has failed to exercise sufficient oversight, seldom questioning the use to which its appropriations were being put. Most domestic intelligence issues have not reached the courts, and in those cases when they have reached the courts, the judiciary has been reluctant to grapple with them. Senate Select Comm. to Study Governmental Operations with Respect to
Intelligence Activities and the Rights of Americans (Book II), S. Rep. No. 94-755
(1976).
Without proper oversight, abusive intelligence activities directed towards
American citizens ran rampant during the periods studied by the Church
Committee. The committee detailed “intelligence excesses” found in every
presidential administration and described, for instance, how the FBI “targeted Dr.
Martin Luther King, Jr., in an effort to ‘neutralize’ him as a civil rights leader.”
See Brief of Former Church Committee Members and Staff as Amici Curiae
Supporting Respondents and Affirmance at 4, 9-13, Clapper v. Amnesty Int’l, 133
S.Ct. 1138 (2013) (No. 11-1025). 17

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In light of this history, writers have every reason to worry about the
government’s collection of sensitive information and its efforts to keep details of
that collection secret.
B. THE IMPACT OF MODERN SURVEILLANCE ON WRITERS: THE PEN WRITERS SURVEY
A survey of PEN’s members conducted during October 2013 shows how the
culture of secrecy and surveillance is already affecting writers and their work.
PEN American Center, The Impact of US Government Surveillance on Writers: Findings From a Survey of PEN Membership (October 31, 2013) (“PEN Survey”),9
at 1. An accompanying report summarizes the Survey’s findings and includes
narrative responses describing writers’ experiences and concerns. PEN American
Center, Chilling Effects: NSA Surveillance Drives U.S. Writers to Self-Censor (November 12, 2013) (“PEN Report”).10
The results are sobering. As reported in the New York Times, the Survey
shows that a large majority of PEN respondents are “deeply concerned about
recent revelations regarding the extent of government surveillance of email and
9 Available at http://www.pen.org/sites/default/files/Chilling%20Effects_PEN%20American.pdf, at 1-10. 10 Available at http://www.pen.org/sites/default/files/Chilling%20Effects_PEN%20American.pdf, at 12-26. While a few survey questions were specific to the NSA’s program of mass collection of telephone metadata, most addressed the expansion of government surveillance generally.
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phone records, with more than a quarter saying that they have avoided, or are seriously considering avoiding, controversial topics in their work.” Noam Cohen, Surveillance Leaves Writers Wary, N.Y. Times (November 11, 2013). The Survey reveals that 76% of respondents believe increased government surveillance is particularly harmful to writers because it impinges on the privacy they need to create freely. PEN Survey, at 1-3. Many writers now assume that their communications are monitored. Id. at 2, 5. 94% of respondents believe that technology companies are collaborating with the government to provide vast amounts of personal information on Americans (raising the specter that the government’s order that recipients not disclose the fact that they have received NSLs could be interpreted as “collaboration”). Id. at 6, 9. A large majority believe that the gathered data may be mismanaged or abused for years to come. Id. at 1, 4.
These beliefs are constraining writers’ behavior. Many writers reveal that they have avoided discussing or writing about controversial topics as result of the presumed monitoring. They have curtailed certain types of research; they have taken extra steps to mask their identities and the identities of sources; they have avoided contacting people if those people could be endangered if it became known that they were speaking to a writer; and some have even declined to meet with people who might be seen as security threats. Id. at 3. Their narrative comments provide insight into the reasons for this changing behavior. One writer notes
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having already “dropped stories … and avoided research on the company
telephone due to concerns over wiretapping or eavesdropping.” Id. at 6. Another
indicates that “the writers who feel most chilled, who are being most cautious, are
friends and colleagues who write about the Middle East.” Id. The self-censorship
extends not just to writing and speaking but to other activities essential to creative
and productive expression, as writers limit their research, steer clear of certain
topics, and avoid communicating with sources and colleagues. See PEN Report.
I was considering researching a book about civil defense preparedness during the Cold War: what were the expectations on the part of Americans and the government? What would have happened if a nuclear conflagration had taken place? … But as a result of recent articles about the NSA, I decided to put the idea aside ….
I write books, most recently about civil liberties, and to protect the content of certain interviews, I am very careful what I put in emails to sources, even those who are not requesting anonymity. I’m also circumspect at times on the phone with them—again, even though they may not be requesting anonymity and the information is not classified. …
PEN Survey at 7, 8.
The message is clear: writers are restricting their activities and censoring
their own work, in ways that are already damaging free expression. The “insidious
encroachment” predicted by Justice Brandeis by zealous and well-meaning
protectors of our national security is being felt. As PEN’s Executive Director
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Suzanne Nossel stated upon release of the Survey, “[w]riters are kind of the canary in the coal mine in that they depend on free expression for their craft and livelihood.” See Cohen, Surveillance. Our society depends on the freedom of writers and others to gather information, exchange ideas, and openly express their views. Inhibiting writers deprives the public of necessary voices and undermines democracy. It is impossible to measure the harm we suffer from the loss of stories that writers do not write.
C. THE MODERN DEBATE ABOUT HIGH-TECH SURVEILLANCE
Writers have participated actively in public debates over the extraordinary measures the government has taken to provide additional investigative and enforcement powers to law enforcement and intelligence agencies, including the expansion of the FBI’s power to issue NSLs. The scope and technological complexity of the surveillance programs and the deep mantle of secrecy under which they have been maintained have shocked many observers.
One of the insights from the recent debate on high-tech surveillance, as many writers have noted, is that even when the government only collects “metadata” rather than the content of private communications, as in the case of many NSLs, that hardly obviates the intrusion and the chilling effect on free expression and association. When aggregated, metadata alone – such as the time of a communication, its duration, and the parties involved – can yield extremely
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private facts and provide a map of personal associations across the country and the
world:
Whom someone is talking to may be just as sensitive as what’s being said. Calls to doctors or health-care providers can suggest certain medical conditions. Calls to businesses say something about a person’s interests and lifestyle. Calls to friends reveal associations, potentially pointing to someone’s political, religious or philosophical beliefs. Daniel J. Solove, Five Myths About Privacy, Washington Post (June 13, 2013)
(warning of the possibility of tracking “the entire country’s social and professional
connections”); see also Jane Mayer, Verizon and the N.S.A.: The Problem With
Metadata, New Yorker (June 6, 2013) (metadata may reveal impending corporate
takeovers, sensitive political information such as whether and where opposition leaders may meet, and who is romantically involved with whom).11
The government’s collection of this type of information has a particular
impact on writers and therefore on freedom of expression. Writers often depend
on confidential sources to inform their work. Whistleblowers, and indeed any
sources who fear retribution, may wish to remain anonymous, and may be less
likely to talk to authors if they know data on their communications is being
collected and stored. The government’s records of communications may permit
11 Available at http://www.newyorker.com/online/blogs/newsdesk/2013/06/verizon-nsa-metadatasurveillance-problem.html.
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reprisals or sanctions against writers, or people with whom they speak, here and in other countries where they may be more vulnerable. The prospect that metadata collected through NSLs can reveal to the government the entire web of a writer’s associations and interactions thus inevitably limits and deters valuable communications.
By virtue of their widespread use by the FBI to collect private information about U.S. citizens, NSLs are a key topic in the national discussion of growing government surveillance. In order for writers to contribute to the public debate on modern surveillance methods, they need access to the key facts. The nondisclosure provisions of the Statute directly silence service providers, who are precluded from telling their stories about the FBI’s data collection efforts and even from disclosing that they received an NSL. The stifling of such sources, and of writers themselves, impoverishes an important public debate. III. THE NSL ACT VIOLATES THE FIRST AMENDMENT
PEN agrees with Petitioners that the District Court correctly found that the NSL Statute’s nondisclosure provision lacks adequate procedural safeguards and is a content-based restriction on speech that cannot survive strict scrutiny.
The District Court took careful note of the “active, continuing public debate over NSLs,” as discussed above, “which has spawned a series of Congressional hearings, academic commentary, and press coverage.” In re Nat’l Sec. Letter, 930
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F. Supp. 2d 1064, 1076 (N.D. Cal. 2013) (ER 7-30) (hereinafter, “Opinion”). Information about the use of NSLs is crucial to the discussion, but, as the District Court concluded, the Statute gives the FBI virtually unbridled power to prevent recipients from discussing their NSLs, and
the recipients are prevented from speaking about their receipt of NSLs and from disclosing, as part of the public debate on the appropriate use of NSLs or other intelligence devices, their own experiences. Opinion at 1071 (emphasis added). The District Court found this prohibition on speech about NSLs “especially problematic.” Id. at 1076. Contributing to the court’s unease with the essentially blanket nondisclosure order is its across-the-board usage; the government indicated that the FBI imposed nondisclosure in 97% of the thousands of NSLs it has issued. Id. at 1074. Given the importance of even the mere fact of receipt of an NSL to the national debate on the use of modern intelligence devices, PEN believes that the District Court correctly held that “the nondisclosure provision clearly restrains speech of a particular content – significantly, speech about government conduct.” Id. at 1071 (citing John Doe, Inc. v. Mukasey, 549 F.3d 861, 876, 878 (2d Cir. 2008)). As a result, the Court analyzed the statutory nondisclosure provision under the standard of review set forth in Freedman v. Maryland, 380 U.S. 51 (1965), requiring prior restraints to be narrowly tailored to serve a compelling
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governmental interest and to satisfy the procedural safeguards set forth in Freedman.
PEN emphatically agrees with the District Court that the NSL nondisclosure provisions do not provide those safeguards. First, the Statute permits a restraint on speech of unlimited duration. Opinion at 1075. This is particularly damaging to the public discourse, because it not only prevents current discussion of a topic of national concern, but will also prevent fully informed discussion far in the future, when historians and other writers seek to understand and explain the events of our time in historical perspective. The absence of any provision for expeditious judicial review, which Freedman also requires, also raises writers’ concerns that public discussion will be impoverished for years to come.
The Statute’s failure to place the burden of initiating judicial review on the government, as required by the Supreme Court under Freedman, concerns writers as much as it concerned the District Court. Opinion at 1074-75. The need for judicial review and a guide for its application are especially important if the FBI is collecting metadata relating to customers from their service providers because of the privacy concerns it raises. Customers do not use those companies’ services with the expectation that their metadata will be shared with anyone else, much less turned over to the government, with its history of misusing information to suppress dissent or embarrassment. Private companies are primarily motivated by profit-
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making, and, while they may not share the government’s interest in suppressing dissent, they may have little incentive to stand in the shoes of a customer and resist disclosure of data, especially if doing so requires affirmatively petitioning for judicial review. Indeed, of the hundreds of thousands of NSLs issued by the FBI, only seven challenges are publicly known to have been filed. See Opening Brief at 57 n.17.
PEN further agrees with the District Court that the nondisclosure provisions are not narrowly tailored to serve a compelling governmental interest in national security without unduly burdening speech. Opinion at 1075-77. The statute does not distinguish between disclosing the content of NSLs and disclosing the mere fact that an NSL has been received, thus creating a “blanket” prohibition, not a narrowly tailored remedy. Id. The Court also appropriately found that the unlimited duration of such blanket prohibitions, and their apparent use in 97% of NSLs, underlines the statute’s overbreadth. Id.
Although the District Court might have gone further and found the underlying authorization for compelled production of records unconstitutional, as discussed below, its decision with respect to the nondisclosure provisions is eminently sound. A restraint on speech on a topic of public concern, without prior meaningful judicial review, is nothing more than a gag order. The Supreme Court has conclusively held that such direct restrictions, historically imposed on the
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press, violate the First Amendment. Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976); Sheppard v. Maxwell, 384 U.S. 333 (1966). Although “modern” gag orders imposed on individuals, such as participants in lawsuits, may be upheld where there is a compelling public interest (in the litigation setting, often a competing Sixth Amendment interest in a fair trial), they remain disfavored under the law. See, e.g., U.S. v. Brown, 250 F.3d 907 (5th Cir. 2001).
A further concern for writers is that, in the rare instances in which a recipient of an NSL who has been ordered not to disclose anything challenges the nondisclosure provision in court, the Statute forecloses any meaningful judicial review. As the District Court found, the statute impermissibly circumscribes the judiciary’s ability to apply the correct level of scrutiny, by limiting the circumstances in which a court may set aside or modify the nondisclosure requirement to situations in which “there is no reason to believe” one of the enumerated harms may occur, and by requiring the court to treat certifications by senior officials as to the likelihood of such harm as “conclusive.” Opinion at 18. This excessive deference to the FBI violates the separation of powers and invites the kind of abusive behavior writers have suffered from in the past.
In light of the historical use of gag orders against the press, and against individuals to prevent them from speaking to the press, writers are very familiar with the effects of prior restraints, which rob the public debate of valuable voices.
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As moderators and participants in the public debate, writers have an important interest in all relevant information being provided to the public, to ensure that the debate is vigorous and thorough.
Finally, although not addressed by the District Court, the absence of effective judicial oversight under the Statute extends not just to the nondisclosure provisions, but also more generally to the primary authority delegated to the FBI to compel private parties to produce records in the first place. Nothing in the Statute prevents the FBI from seeking information reflecting activities protected by the First Amendment, such as the “entire web of a writer’s associations and interactions” that might be disclosed by the collection of metadata. As NSLs are issued by the FBI without prior court approval, the only safeguard to ensure that there is a compelling need for the information that trumps First Amendment interests, and that the request is narrowly tailored, is the latent ability for the recipient to initiate a judicial review of the request, but the judiciary would be constrained.
Yet even if the statute did provide some kind of effective judicial review after the fact, in the context of NSLs it does not. The party whose rights are threatened by disclosure of the information sought by an NSL is not the recipient company, but that company’s customer. In most instances, the FBI gags the recipient, who therefore cannot disclose to its customer that a request for records
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has been made. For the company to vindicate its customer’s rights it would either have to challenge the nondisclosure order and then (in the unlikely event that it succeeds) notify the customer, or challenge the underlying records request itself. These enormous disincentives for recipients to bring a challenge, coupled with the possibility that the actual target of the NSL may never have access to the courts at all to bring a challenge, create an additional constitutional infirmity.
The government has acted with impunity for over a decade in issuing NSLs without meaningful judicial oversight, and in virtual secrecy through the use of blanket gag orders. PEN believes that this type of unconstitutional surveillance severely constrains public debate on issues of national importance by muzzling those participants with the most relevant stories to tell, and by forcing writers to censor themselves, further muting some of our most thoughtful voices at a time when they are most needed.

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CONCLUSION For the foregoing reasons, amicus curiae PEN respectfully requests that the

District Court’s decision be upheld.

Dated: San Francisco, California April 11, 2014

Respectfully submitted, DAVIS WRIGHT TREMAINE LLP By: /s/ Thomas R. Burke

505 Montgomery Street, Suite 800 San Francisco, California 94111-6533 Telephone: (415) 276-6500 Facsimile: (415) 276-6599

Of Counsel: Edward J. Davis Linda Steinman Lacy H. Koonce, III Eric Feder DAVIS WRIGHT TREMAINE LLP 1633 Broadway, 27th Floor New York, New York 10019 (212) 489-8230

Attorneys for Amicus Curiae PEN American Center, Inc.

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CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS AND TYPE STYLE REQUIREMENTS 1. This brief complies with the type-volume limitation of Fed. R. App. P.
29(d) and 32(a)(7)(B) because it contains 6,640 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Office Word in Times New Roman Font Style and 14 Point Size for the body of the brief and for the footnotes.

By: /s/Thomas R. Burke Thomas R. Burke

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CERTIFICATE OF SERVICE I here by certify tha t I cau sed t he f oregoing B rief of Amicus Cur iae PEN American C enter, Inc. in S upport of Pe titioner-Appellant i n C ase N o.1316732 to be mailed to the Court on April 11, 2014, via overnight next business day delivery, and t hat the Court will effect service on the par ties, in acc ordance with the Instructions for Prospective Amici issued by the Clerk of the Court in this case.

on this 11th day of April 2014. _

/s_/_R__a_m_i_ro__A_._H__o_n_e_y_w_e_ll_____ Ramiro A. Honeywell

 
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No. 13-16732 UNDER SEAL United States Court of Appeals for the Ninth Circuit

UNDER SEAL,

Petitioner-Appellant,

v.

ERIC H. HOLDER, JR., Attorney General; UNITED STATES DEPARTMENT OF JUSTICE; and FEDERAL BUREAU OF
INVESTIGATION, Respondents-Appellees

On Appeal from the United States District Court for the Northern District of California Case No. 13-cv-1165 SI Honorable Susan Illston, District Judge

BRIEF OF NSL RECIPIENTS WHO HAD CHALLENGED THEIR NSL’S AS AMICI CURIAE IN SUPPORT OF PETITIONER-APPELLANT

Eugene Volokh UCLA School of Law First Amendment Amicus Brief Clinic 405 Hilgard Ave. Los Angeles, CA 90095 (310) 206-3926 volokh@law.ucla.edu
Counsel for Amici Curiae*
* Counsel would like to thank Curtis Brown, Sara Liss, and Paulette Rodriguez-Lopez, UCLA School of Law students who helped write this brief.

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RULE 26.1 DISCLOSURE STATEMENT Amicus curiae Internet Archive is a § 501(c)(3) nonprofit corporation, has no parent companies, and no persons or entities own it or any part of it.

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TABLE OF CONTENTS
RULE 26.1 DISCLOSURE STATEMENT .................................................. i
TABLE OF CONTENTS .............................................................................. ii
TABLE OF AUTHORITIES .......................................................................iii
INTEREST OF AMICI CURIAE ................................................................. 1
SUMMARY OF ARGUMENT...................................................................... 4
ARGUMENT ................................................................................................. 7
I. Section 2709 Seriously Interferes with People’s Right to Associate........................................................................................... 7
II. Section 2709 Presumptively Violates the Free Speech and Petition Clauses by Preventing NSL Recipients from Effectively Lobbying for Changes to the NSL Program............. 11
III. Section 2709 Lacks the Narrowness and the Procedural Protections That the Supreme Court Has Identified as Necessary for Speech Restrictions to Be Upheld........................ 16
A. Section 2709 Lacks the Procedural Requirements Mandated by the Supreme Court in Freedman v. Maryland ................................................................................. 17
B. Section 2709 Lacks the Narrow Tailoring Stressed by Holder v. Humanitarian Law Project ................................... 20
C. Section 2709 Lacks the Limited Duration or Potential for Judicial Supervision That Is Available with Regard to Grand Jury Secrecy ............................................................ 22
CONCLUSION............................................................................................ 27

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TABLE OF AUTHORITIES Cases
Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1964)...................................19 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) .................................13
California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972) .................................................................................................... 12
Cohen v. Cowles Media Co., 501 U.S. 663 (1991)........................................13 Doe v. Gonzales, 449 F.3d 415 (2d Cir. 2006) ................................................4 Doe v. Mukasey, 549 F.3d 861 (2d Cir. 2008) ..........................................4, 23
Empress LLC v. City & County of S.F., 419 F.3d 1052 (9th Cir. 2005)............................................................................................................. 11
Florida Star v. B.J.F., 491 U.S. 524 (1989).................................................13 Freedman v. Maryland, 380 U.S. 51 (1965) ........................................ passim Gregory v. Chicago, 394 U.S. 111 (1969) .....................................................11 Hoffmann-Pugh v. Keenan, 338 F.3d 1136 (10th Cir. 2003)......................23
Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010)...............7, 20 In re IBP Confidential Business Documents Litigation, 755 F.2d
1300 (8th Cir. 1985) .................................................................................... 12 In re National Security Letter, 930 F. Supp. 2d 1064 (N.D. Cal.
2013).......................................................................................... 14, 22, 24, 25

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Miller v. California, 413 U.S. 15 (1973).......................................................18
NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) .....................5, 7
National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977) ...................................................................................................... 17
Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781 (1988)...........17
Shelton v. Tucker, 364 U.S. 479 (1960)......................................................5, 8
Statutes and Rules
18 U.S.C. § 2709..................................................................................... passim
18 U.S.C. § 3511(a) ........................................................................... 14, 15, 19
18 U.S.C. § 3511(b) ........................................................................... 15, 16, 19
Other Sources
Declaration of Professor Edward W. Flynn, American Civil Liberties Union v. Clapper, No. 13-CV-03994 (S.D.N.Y. Aug. 26, 2013)............................................................................................................... 9
Eric Lichtblau, F.B.I. Data Mining Reached Beyond Initial Targets, N.Y. Times, Sept. 9, 2007 ..............................................................9
Eugene Volokh, Crime Facilitating Speech, 57 Stan. L. Rev. 1095 (2005) ........................................................................................................... 12
Gov. Notice, Nos. Misc 13-03, 13-04, 13-05, 13-06, 13-07 (FISA Ct. Jan. 27, 2014), available at http://www.uscourts.gov/uscourts/ courts/fisc/misc-13-03-04-05-06-07-notice-140127.pdf ............................. 22

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Katherine J. Strandberg, Freedom of Association in a Networked World: First Amendment Regulation of Relational Surveillance, 49 B.C. L. Rev. 741 (2008)..........................................................................10
Kim Zetter, ‘John Doe’ Who Fought FBI Spying Freed from Gag Order After 6 Years, Wired, Aug. 10, 2010 .................................................4
Michael J. Woods, Counterintelligence And Access to Transactional Records: A Practical History of The USA Patriot Act Section 215, 1 J. Nat’l Security L. & Pol’y 37 (2005)...........................9
U.S. Dep’t of Justice, Federal Bureau of Investigation, Letter to Internet Archive, Nov. 19, 2007 ..................................................................2
U.S. Dep’t of Justice, Office of the Inspector General, A Review of the FBI’s National Security Letters: Assessment of Corrective Action and Examination of NSL Usage in 2006 (March 2008), available at http://www.justice.gov/oig/special/s0803b/final.pdf. ...........25
U.S. Dep’t of Justice, Office of the Inspector General, Statement of Inspector General Glenn Fine, Inspector General, U.S. Department of Justice, Before the Senate Committee on the Judiciary Concerning Reauthorizing the USA Patriot Act (Sept. 23, 2009), available at http://www.justice.gov/oig/testimony/ t0909.pdf. ...............................................................................................25, 26

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INTEREST OF AMICI CURIAE1 The amici—the Internet Archive, Peter Chase, George Christian, and Nicholas Merrill—had all received National Security Letters, and then proceeded to successfully challenge them. They believe that their experiences offer them a particularly good perspective on how 18 U.S.C. § 2709 imposes an unconstitutional restriction on First Amendment freedoms. 1. The Internet Archive was founded in 1996 to build a free and permanent “Internet library” for the benefit of researchers, historians, scholars, artists and the public. The Archive stores electronic data (including a vast range of Internet pages), and digitizes physical data that it gets from, among other sources, libraries, educational institutions, and private companies. The Archive collaborates with institutions such as the Library of Congress and the Smithsonian to preserve a record for future generations.

1 No party or party’s counsel has authored this brief in whole or in part, or contributed money that was intended to fund preparing or submitting the brief. No person has contributed money that was intended to fund preparing or submitting the brief, except that UCLA School of Law paid the expenses involved in filing this brief.
All parties have consented to the filing of this brief.
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In November 2007, the Internet Archive received a National Security Letter from the FBI seeking a user’s name, address, and any electronic communication transactional records pertaining to the user. The letter instructed the Archive not to disclose the existence of the letter. The Archive’s founder was even unable to discuss the letter with other members of the Archive’s Board of Directors.
The Archive responded in December 2007 by suing to challenge the constitutionality of the letter’s non-disclosure obligations and the FBI’s authority to demand user information without judicial review. Following months of negotiation, the FBI withdrew the NSL and lifted its nondisclosure requirement. Thereafter, a redacted version of the letter was made public.2
2. In 2005, Peter Chase was the Vice President and George Christian was the Executive Director of Library Connection Inc., a non-profit corporation formed by 27 libraries in the greater Hartford, Connecticut area to provide the libraries with computer and telecommunications services. Library Connection received a National Security Letter de-
2 U.S. Dep’t of Justice, Federal Bureau of Investigation, Letter to Internet Archive, Nov. 19, 2007, https://www.eff.org/node/55601.
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manding certain library patron information. The Executive Board of Library Connection—Chase, Christian, and two other officers—sued to have the NSL set aside. All four were subjected to a gag order with regard to the NSL, and were unable to discuss the matter with anyone. Among other things, they were not able to testify before Congress, which was then considering extending the USA Patriot Act.
Chase was at the time the Chair of the Intellectual Freedom Committee of the Connecticut Library Association. He received many invitations to speak at public events to explain why librarians opposed the Patriot Act, but had to refuse all of them because he was concerned that something he said in the discussion or the questions and answers might run afoul of the gag order.
While the case was on appeal, and several weeks after the Patriot Act extension was signed, the Justice Department released Chase and Christian from the gag order.3 Because of the changes to the Patriot Act and the removal of the gag order, the Second Circuit Court ruled that

3 Alison Leigh Cowan, Four Librarians Finally Break Silence in Records Case, N.Y. Times, May 31, 2006.
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Chase’s and Christian’s case was moot. Doe v. Gonzales, 449 F.3d 415, 421 (2d Cir. 2006).
3. In 2004, Nicholas Merrill was the President of Calyx Internet Access Corp., a web hosting and security consulting company that received a National Security Letter from the FBI. He has been under a § 2709 gag order for 10 years, and is still not allowed to disclose to anyone exactly what happened. Only after nearly seven years of expensive and time-consuming litigation challenging the gag order was he allowed to disclose the bare facts that he was the “John Doe” in the case that became Doe v. Mukasey, 549 F.3d 861, 881 (2d Cir. 2008), and to state that he got the NSL.4
SUMMARY OF ARGUMENT The National Security Letter statute, 18 U.S.C. § 2709, severely burdens the freedom of speech. First, § 2709 lets the government gather a vast trove of information about people’s connections to various ideologi-

4 Kim Zetter, ‘John Doe’ Who Fought FBI Spying Freed from Gag Order After 6 Years, Wired, Aug. 10, 2010 (noting that Merrill “has finally been partially released” from the order, and “can now identify himself and discuss the case, although he still can’t reveal what information the FBI sought”).
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cal, political, and religious groups—far more information than that involved in leading associational privacy cases such as NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958), and Shelton v. Tucker, 364 U.S. 479 (1960). Section 2709 thus chills association at least as much as the government actions held unconstitutional in those cases.
Second, as the District Court correctly concluded, the gag order provision of § 2709 directly restricts speech—and directly restricts petitioning the government for redress of grievances—based on content. When most of us are subject to government action that we think is improper (whether or not we think the action is legally unauthorized), we can complain. We can complain to our Senators or Representatives. We can complain to the media, and to the public through the media.
We can complain to party leaders, urging them to make our experience an issue in an upcoming campaign. We can complain to state and local politicians, who can in turn relay our concerns to their political allies in Congress. Criticism of government action, by those who have the closest experience with that action, is a necessary part of democratic self-government and of the checks and balances that the First Amendment imposes on the government.
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And we can make our criticism concrete and therefore more persuasive only by explaining exactly what was done to us. Specific, fact-based arguments are what it takes to persuade. Airy generalities that say “the government makes some people do this thing, and I think that’s wrong, but I can’t give any specific examples of this happening” do not suffice. The National Security Letter statute forecloses such concrete, persuasive arguments—essentially preventing effective criticism of the statute itself.
To be sure, national security concerns may justify some kinds of burdens on expressive association and on speech. But the Supreme Court has repeatedly made clear that even in the rare circumstances in which the government has good reason to impose some such burdens, the burdens must be kept narrow, and must be accompanied by adequate procedural safeguards.
Section 2709 fails to comply with these requirements. Section 2709 involves executive action that suppresses speech without the safeguards—such as broad judicial review—that Freedman v. Maryland, 380 U.S. 51 (1965), requires for such action. Section 2709 imposes a speech restriction aimed at fighting terrorism, but one that does not of-
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fer the alternative channels for speech that Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010), repeatedly pointed to as vital even when national security is involved. And though the government tries to justify § 2709 by analogy to grand jury secrecy provisions, Gov’t Opening Br. 3, 36, NSLs lack the judicial supervision that has traditionally cabined grand jury secrecy.
ARGUMENT I. Section 2709 Seriously Interferes with People’s Right to
Associate “Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.” NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958). Thus, in NAACP the Supreme Court quashed a subpoena that demanded disclosure of the NAACP’s membership; any such coercive gathering of information about group membership, the Court held, was unconstitutional unless it was narrowly tailored to a compelling government interest. Id. at 455, 463-66.

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Likewise, in Shelton v. Tucker, 364 U.S. 479 (1960), the Supreme Court held that even government employees could not be compelled to reveal all the associations to which they belonged. “[T]o compel a teacher to disclose his every associational tie is to impair that teacher’s right of free association, a right closely allied to freedom of speech and a right which, like free speech, lies at the foundation of a free society.” Id. at 485-86. And this was said in a context—government employment—in which the government generally has much greater power than it has when regulating the public at large.
The danger of infringing the right to free association is even greater in this case. In NAACP, the government merely sought a list of members of an organization, and in Shelton a list of organizations to which an employee belonged. But under § 2709, the government can demand an association’s telephone records, which can link the association to its members, to its sympathizers, and indeed to anyone who had ever communicated with the association by telephone. And it can demand an individual’s telephone records, which the government can use not only to reconstruct that individual’s affiliations—which would include con-

8

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tacts with political, social, and religious groups—but also to extrapolate the affiliations of people in the target’s social network.5
Since 2007, the FBI has used § 2709 to gather transactional information that identifies numbers dialed by telephone service subscribers, email addresses contacted by Internet Service Provider users, and the dates of such communications. 6 Aggregating several years’ worth of such data may easily reveal a person’s every civic or political interest and relationship.7 Patterns of frequent phone calls to people who work at groups such as the National Rifle Association or Emily’s List indicate extensive involvement in those groups, whether as an employee or as a volunteer.
Likewise, knowing that a person does not use his telephone on Saturdays would indicate that he is likely an observant Jew or SeventhDay Adventist. A person who calls a mosque often, and who is not a
5 Eric Lichtblau, F.B.I. Data Mining Reached Beyond Initial Targets, N.Y. Times, Sept. 9, 2007.
6 Michael J. Woods, Counterintelligence And Access to Transactional Records: A Practical History of The USA Patriot Act Section 215, 1 J. Nat’l Security L. & Pol’y 37, 41 (2005).
7 Declaration of Professor Edward W. Flynn, at 15-16, American Civil Liberties Union v. Clapper, No. 13-CV-03994 (S.D.N.Y. Aug. 26, 2013).
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vendor or other business associate, is probably a Muslim. Conversely, aggregate data on all phone calls to local mosques can yield a list of many of the area’s Muslims.
Moreover, the data collected under § 2709 includes information not only about the targeted individual, but also about everyone whom the person has called. Thus, even an NSL validly targeting a person who does threaten national security may give rise to other NSLs targeting people who are not threats. “If a targeted individual belongs to a terrorist organization, a political organization, and a religious organization, . . . and those organizations have overlapping memberships,” a review of the data “might mistakenly categorize a member of the legitimate political organization as a member of the terrorist organization merely because the two people shared some contacts.”8
Such § 2709 data collection is likely to chill speech even more than the subpoena in NAACP or the employer demands in Shelton did. Getting involved in a political or religious group usually involves interacting with the group’s members via phone, e-mail, or another form of elec-
8 Katherine J. Strandberg, Freedom of Association in a Networked World: First Amendment Regulation of Relational Surveillance, 49 B.C. L. Rev. 741, 762 (2008).
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tronic communication. People concerned that the FBI will gather a full dossier of their political and religious activities may be deterred from joining, or even contacting, groups that criticize the government or that might otherwise be targets of government disapproval.
This concern will be greater still for people with certain kinds of political or religious affiliations that are often perceived as risk factors for terrorist activity, and that law enforcement might be able to deduce using the information obtained under § 2709. Individuals might decide not to associate with minority causes or communities, such as mosques, fearing that they will be targeted for investigation. Section 2709 is thus a grave burden on the right of expressive association. II. Section 2709 Presumptively Violates the Free Speech and
Petition Clauses by Preventing NSL Recipients from Effectively Lobbying for Changes to the NSL Program The First Amendment protects “the right of the people . . . to petition the Government for a redress of grievances.” See, e.g., Gregory v. City of Chicago, 394 U.S. 111, 119 (1969) (Petition Clause protects the right of protesters who marched from city hall to the mayor’s residence to lobby for desegregation of public schools); Empress LLC v. City & County of S.F., 419 F.3d 1052, 1054, 1056 (9th Cir. 2005) (Petition Clause immun-
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izes from civil liability a request that city administrator make a particular zoning decision); In re IBP Confidential Business Documents Litigation, 755 F.2d 1300, 1309-10 (8th Cir. 1985) (Petition Clause protects sending a letter to a Congressman about an ongoing investigation and distributing copies of it to people with a “legitimate interest” in the investigation). Likewise, the right to freedom of speech protects the right to air one’s grievances to the public more broadly.
But the rights to petition and to speak mean little without the right to make concrete, specific, fact-based arguments in those petitions or statements. Listeners’ judgment about general problems is deeply influenced by specific examples, whether the listeners are government officials, voters, or newspaper reporters deciding whether to cover a matter about which they have heard a complaint. Any side that is barred from giving concrete, detailed examples will thus be seriously handicapped in public debate. See Eugene Volokh, Crime-Facilitating Speech, 57 Stan. L. Rev. 1095, 1156 (2005).
By way of analogy, consider lawsuits, which are themselves petitions to courts for redress of grievances. See California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972). Courts routinely dis-
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miss complaints that lack specific factual claims supporting the legal allegations. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Courts generally disfavor party briefs that make sweeping legal arguments not tethered to the facts of the case (except in the rare situations in which a facial challenge is allowed). No court would be convinced by an argument that a law is unconstitutional as applied, unless it sees facts about how the law was applied.
What is true of judges is true of public servants in other branches, and of intelligent and influential members of the general public. Barring people from giving specific details about their grievances is in practice a denial of the right to petition for redress of those grievances. Yet this is exactly what § 2709 does by forbidding any disclosure of details about a National Security Letter—a content-based restriction on speech that is critical to vital national debates. See Cohen v. Cowles Media Co., 501 U.S. 663, 670 (1991) (characterizing Florida Star v. B.J.F., 491 U.S. 524 (1989), which struck down a restriction on communicating specific facts—in that case, the names of rape victims—as a case in which “the State itself defined the content of publications that would trigger liability”); In re National Security Letter, 930 F. Supp. 2d 1064, 1072 (N.D.
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Cal. 2013) (concluding that, while § 2709(c) is not “a ‘typical’ contentbased restriction,” “the nondisclosure provision clearly restrains speech of a particular content—significantly, speech about government conduct”).
To be sure, 18 U.S.C. § 3511(a) provides two limited mechanisms for review of the NSL itself and for the accompanying nondisclosure requirements. First, it lets NSL recipients petition a court to have the NSL modified or set aside, but only on the grounds that “compliance would be unreasonable, oppressive, or otherwise unlawful.” Id. This is an extremely limited remedy, because it substantially constrains the arguments a court may consider in ruling on any challenge to an NSL. It is not clear, for instance, that a recipient could challenge the underlying claims leading to the issuance of the NSL—such as the government’s conclusion that a vast range of information about a person and his contacts needs to be turned over—so long as it would be easy for the service provider to comply with the NSL.
Nor would the remedy allow NSL recipients to effectively argue that § 2709 is too broad, or that it strikes an improper balance between security and privacy. And it is no answer to say that such arguments should
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instead be directed to legislators and other citizens, since § 2709 limits the efficacy of such public arguments by preventing the use of concrete evidence to support them. The combination of § 2709 and § 3511(a) prevents NSL recipients from mounting an effective challenge either in court or in the public sphere. Moreover, as Part III.A will discuss, the § 3511 remedy lacks the procedural protections required for judicial review of administrative orders.
Judicial review of the gag order (as opposed to the NSL itself) under 18 U.S.C. § 3511(b) is even more limited. Such a requirement attached to an NSL may be modified only if a court “finds that there is no reason to believe that disclosure may endanger the national security of the United States, interfere with a criminal, counterterrorism, or counterintelligence investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person.” Id. (emphases added).9 Thus, so long as there is even the slightest possibility that national security might be jeopardized, a court cannot lift the nondisclosure requirement.
9 This is the standard for all review of any NSL for a year after it is issued, and for review of an NSL even after that year if a high government official concludes that the NSL should remain in effect. 18 U.S.C. § 3511(b).
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This is an extraordinarily demanding standard, apparently more demanding even than proof beyond a reasonable doubt, though here cutting in favor of the government.
Moreover, if a sufficiently high government official “certifies that disclosure may endanger the national security of the United States or interfere with diplomatic relations, such certification shall be treated as conclusive unless the court finds that the certification was made in bad faith.” Id. (emphasis added). Whatever the value of this sort of extremely government-friendly procedure may be to national security or law enforcement, the nature of the procedure highlights just how hard the burden on speech is to lift.
Thus, the gag order provisions of NSLs gravely burden the right to free speech and to petition the government, even beyond the burden on expressive association created by NSLs themselves. III. Section 2709 Lacks the Narrowness and the Procedural
Protections That the Supreme Court Has Identified as Necessary for Speech Restrictions to Be Upheld To be sure, the Supreme Court has on rare occasions upheld substantial burdens on important and constitutionally protected speech and associational rights—but only when such restrictions served sufficiently
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important government interests, were suitably narrow, and provided the proper procedural protections. Thus, those precedents just illustrate how unconstitutionally broad and procedurally unsound the current § 2709 scheme is. All the Court’s teaching related to prior restraints and narrow tailoring has seemingly been set aside in the drafting and implementation of the NSL statute.
A. Section 2709 Lacks the Procedural Requirements Mandated by the Supreme Court in Freedman v. Maryland
To begin with, when speech is restricted by executive action, the restriction must provide for full and prompt judicial review, which the government itself must initiate. Freedman v. Maryland, 380 U.S. 51 (1965). This rule was first set forth in the Court’s obscenity cases, though it is also applicable outside obscenity law.10 In the early 1960s, the Court concluded that the government interest in restricting the distribution of obscene material—which the Court has held to be constitu-

10 Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 802 (1988) (applying the same precedents to licensing requirements for charitable solicitors, aimed at preventing fraud); National Socialist Party of America v. Village of Skokie, 432 U.S. 43, 44 (1977) (per curiam) (applying the same precedents to an injunction against a demonstration).
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tionally unprotected11—was strong enough to justify some restrictions on such material. But even restrictions aimed at suppressing constitutionally unprotected obscenity, the Court held in Freedman, were invalid unless they included sufficient procedural safeguards. It follows, then, that procedural safeguards are even more important where, as here, the government action suppresses or deters protected expression.
Under Freedman, orders restricting speech must contain four related procedural safeguards. First, the Court held, “the burden of proving that the [restricted speech] is unprotected expression must rest on the censor.” Id. at 58. Second, “because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint.” Id. Third, there must be an assurance that the government “will, within a specified brief period,” either lift any temporary restraint “or go to court” to get a judicial decision that the speech restriction is permissible. Id. at 59. “Any restraint imposed in advance of a final judicial determination on the merits must similarly

11 Miller v. California, 413 U.S. 15, 23 (1973). 18

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be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution.” Id. And, fourth, “the procedure must also assure a prompt final judicial decision.” Id.
Moreover, these rules apply both to express speech restrictions (such as the gag order provision discussed in Part II) and to actions that deter speech without expressly forbidding it (such as the coercive surveillance practices discussed in Part I). Freedman relied on Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1964), in its analysis, 380 U.S. at 57-59, and Bantam Books involved a speech-deterring practice—a government commission’s sending threatening letters to booksellers—rather than an expressly speech-restricting practice.
Sections 2709(c) and 3511(a)-(b) fail to offer the protections that Freedman mandates. They do not require the government to promptly go to court in order to turn a brief temporary speech restriction (or a brief surveillance of people’s potentially constitutionally protected associations) into a permanent one. Rather, a speech restriction of potentially indefinite duration is imposed when an NSL is issued. The restriction is not even considered by a judge until the NSL recipient bears the burden of going to court to challenge the NSL. The recipient also bears the
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burden of persuading the court that the restriction is justified. And the NSL regime does not assure a prompt final judicial decision.
In both of these respects, the NSL regime is much like the system struck down in Freedman. The consequence is precisely the sort of risk of error—and lack of “necessary sensitivity to freedom of expression,” 380 U.S. at 58—that the Court has condemned.
B. Section 2709 Lacks the Narrow Tailoring Stressed by Holder v. Humanitarian Law Project
Likewise, even Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010)—the only current Supreme Court precedent to uphold a contentbased speech restriction under strict scrutiny—emphasized that such a speech restriction was allowed only because of the statute’s extremely narrow sweep. The Court in Holder held that the compelling government interest in fighting terrorism justified a narrow restriction on speech “directed to, coordinated with, or controlled by foreign terrorist groups.” Id. at 2711, 2730 (emphasis added). But the Court repeatedly stressed just how narrow the restriction was—the law left people free to say anything they wanted, so long as they said it independently of the terrorist groups:

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Under the material-support statute, plaintiffs may say anything they wish on any topic. They may speak and write freely about the PKK and LTTE, the governments of Turkey and Sri Lanka, human rights, and international law. They may advocate before the United Nations. As the Government states: “The statute does not prohibit independent advocacy or expression of any kind.”
Id. at 2272-73. The Court went on to reason that,
We also find it significant [to the narrow tailoring analysis] that Congress has been conscious of its own responsibility to consider how its actions may implicate constitutional concerns. . . . [M]ost importantly, Congress has avoided any restriction on independent advocacy, or indeed any activities not directed to, coordinated with, or controlled by foreign terrorist groups.
Id. at 2726. “[W]e in no way suggest that a regulation of independent
speech would pass constitutional muster, even if the Government were
to show that such speech benefits foreign terrorist organizations.” Id. at
2730.
But Section 2709 lacks any such narrowing principle. NSL recipients
are barred from speaking about the NSL almost completely and indefi-
nitely, and they have no alternative avenues (such as the independent
advocacy available in Holder) for expressing their views. All they can
report to the public is a very rough approximation of the number of
NSLs and similar requests that they have received in a particular

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year12—far from an adequate substitute for being able to concretely explain why they think the NSLs are unjustified or excessive.
C. Section 2709 Lacks the Limited Duration or Potential for Judicial Supervision That Is Available with Regard to Grand Jury Secrecy
Similarly, there are important procedural protections that cabin the restrictions on grand jury witnesses’ revealing what they learned from their questioning. The most significant such protection is the opportunity for substantial judicial supervision of grand jury subpoenas that limits the restriction to only that which is necessary.
In this, grand jury confidentiality rules differ markedly from the nondisclosure requirements imposed by § 2709. As the District Court noted, “While courts have upheld state law restrictions on grand jury witnesses’ disclosure of information learned only through participation in grand jury proceedings, those restrictions were either limited in duration or allowed for broad judicial review.” In re National Security Letter, 930 F. Supp. 2d 1064, 1072 (N.D. Cal. 2013); see Hoffmann-Pugh v.

12 Gov. Notice, Nos. Misc 13-03, 13-04, 13-05, 13-06, 13-07 (FISA Ct. Jan. 27, 2014), available at http://www.uscourts.gov/uscourts/courts/fisc/ misc-13-03-04-05-06-07-notice-140127.pdf.
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Keenan, 338 F.3d 1136, 1140 (10th Cir. 2003) (noting that grand jury
secrecy rules provide a judicially enforceable mechanism for a witness
to obtain a “determination that secrecy is no longer required”). Where
there is reason to think that grand jury proceedings are being systemat-
ically misused or overused, traditional judicial remedies keep those pro-
ceedings in check.
Indeed, as the Second Circuit held in Doe v. Mukasey, 549 F.3d 861,
881 (2d Cir. 2008), § 2709 gag orders may well lack the compelling se-
crecy justifications that support grand jury secrecy:
Unlike the grand jury proceeding, as to which interests in secrecy arise from the nature of the proceeding, the nondisclosure requirement of subsection 2709(c) is imposed at the demand of the Executive Branch under circumstances where secrecy might or might not be warranted, depending on the circumstances alleged to justify such secrecy. Id. at 876-77. Prompt judicial review of the sort mandated by Freedman
v. Maryland is thus necessary to keep § 2709’s speech restraints “nar-
rowly tailored,” Mukasey, 549 F.3d at 881, to a proven need for secret
surveillance, rather than just to an Executive Branch assertion of such
need.

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The Department of Justice argues that blanket secrecy, with no judi-
cial inquiry as to specialized need, is required because “knowledge
about the sources and methods that the FBI is using to acquire infor-
mation” may be used by “terrorist and foreign intelligence organizations
even after a particular investigation has ended.” Gov’t Opening Br. 8. In
some cases, some degree of secrecy may indeed be justified. But § 2709
also prevents telecommunications companies from alerting anyone
when the FBI wrongly identifies someone as a potential terrorist, or
when trends in records requests suggest an abuse of the National Secu-
rity Letter system. As the court below noted,
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. National Security Letter, 930 F. Supp. 2d at 1076. “[T]he statute does
nothing to account for the fact that when no such national security con-
cerns exist, thousands of recipients of NSLs are nonetheless prohibited
from speaking out about the mere fact of their receipt of an NSL, ren-
dering the statute impermissibly overbroad and not narrowly tailored.”

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Id. And, unlike with the judicial review available in the grand jury context, § 3511’s minimalist review system is inadequate to protect against such overbreadth.
Like all human institutions, the Justice Department and the FBI make mistakes—and, as with most human mistakes, such mistakes are most likely when the humans realize that they are operating with minimum oversight. The Department of Justice itself, for instance, has reported that 7.5% of NSLs issued between 2003 and 2006 were likely to been issued in violation of the Justice Department’s own internal procedures. 13 The evidence suggests these violations were both underidentified and underreported.14 Moreover, “some of the justifications for

13 U.S. Dep’t of Justice, Office of the Inspector General, A Review of the FBI’s National Security Letters: Assessment of Corrective Action and Examination of NSL Usage in 2006, at 158 (Mar. 2008), available at http://www.justice.gov/oig/special/s0803b/final.pdf.
14 U.S. Dep’t of Justice, Office of the Inspector General, Statement of Inspector General Glenn Fine, Inspector General, U.S. Department of Justice, Before the Senate Committee on the Judiciary Concerning Reauthorizing the USA Patriot Act, at 4-5 (Sept. 23, 2009), available at http://www.justice.gov/oig/testimony/t0909.pdf.
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imposing [the confidentiality] requirement were perfunctory and conclusory.”15
Furthermore, the FBI relied heavily—particularly from 2003 to 2006—on an “emergency” procedure that allowed for the issuance of “exigent letters,” which were never subject to § 2709’s internal process.16
15F
And the Inspector General has found that this informal procedure was used even when there was clearly no emergency, and supervisors were signing off on such letters without knowing whether or not such circumstances really existed. 17 Indeed “FBI officials and employees . . . un-
16F
questioningly issue[d] hundreds of these improper and inaccurate letters over a 3-and-a-half year period.”18
17F
Thus, as recent history demonstrates, much speech and association will be unnecessarily constrained if courts take the FBI’s certifications
15 Id. at 6. 16 U.S. Department of Justice, Inspector General, A Review of the Federal Bureau of Investigation’s Use of Exigent Letters and Other Informal Requests for Telephone Records, at 65-67 (Jan. 2010), available at http://www.justice.gov/oig/special/s1001r.pdf. 17 Id. at 66. 18 Id. at 66-67.
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regarding national security relevance as conclusive—as § 3511(b) tells courts to do, absent a rare finding of “bad faith” on the part of high government officials. Indeed, such risk of error is a big part of why the Supreme Court found independent judicial review to be critical to protecting the First Amendment. Freedman, 380 U.S. at 59. And this risk of error is only exacerbated by the confidentiality of the process, and the resulting absence of public scrutiny and political review of particular gag order decisions.
CONCLUSION Section 2709 imposes grave burdens on the political and religious association of people who are being surveilled using the NSLs. It imposes grave and content-based burdens on the speech of NSL recipients. And it does both of these things without the procedural protections and the narrow tailoring that the Supreme Court requires of such burdens.
Respectfully Submitted,
s/ Eugene Volokh Attorney for Amici Curiae Internet Archive, Peter Chase, George Christian, and Nicholas Merrill

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CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 5,231 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Word 2010 in 14-point New Century Schoolbook.
Dated: Mar. 31, 2014
s/ Eugene Volokh Attorney for Amici Curiae Internet Archive, Peter Chase, George Christian, and Nicholas Merrill

28

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CERTIFICATE OF SERVICE
I hereby certify that I filed the foregoing Brief Amicus Curiae with
the Clerk of the Court for the United States Court of Appeals for the
April 1
Ninth Circuit by mailing the brief to the Court on Mxxxaxrx.xx3x1x, 2014. The
Court will effect service on the parties.
April 1
Dated: Mxxxaxrx.x3xx1x, 2014
s/ Eugene Volokh
Attorney for Amici Curiae Internet Archive, Peter Chase, George Christian, and Nicholas Merrill

29

 
  
 2

3

4

5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE NORTHERN DISTRICT OF CALIFORNIA

7

8 IN RE NATIONAL SECURITY LETTER

9

10

I

No. C 11-02173 SI
ORDER GRANTING MOTION TO SET ASIDE NSL LETTER

11

12 Pursuant to the National Security Letter Statute, 18 U.S.C. § 2709, the FBI issued a National
13 Security Letter ("NSL") to Petitioner, an electronic communication service provider ("ECSP"), seeking
14 "subscriber information." By certifying, under section 2709(c)(1 ), that disclosure of the existence of
15 the NSL may result in "a danger to the national security of the United States, interference with a
16 criminal, counterterrorism, or counterintelligence investigation, interference with diplomatic relations,
17 or danger to the life or physical safety of any person," the FBI was able to prohibit Petitioner from
18
disclosing the existence ofthe NSL. Petitioner filed a Petition to Set Aside theNational Security Letter 19
and Nondisclosure Requirement, pursuant to 18 U.S.C. §§ 3511 (a) and (b). 1 20
Petitioner challenges the constitutionality- both facially and as applied- of the nondisclosure 21
provisionof18 U.S.C. § 2709(c) and the judicial review provisions of18 U.S.C. § 351l(b) (collectively
22
"NSL nondisclosure provisions"). Petitioner argues that the nondisclosure provision of the statute is 23
an unconstitutional prior restraint and content-based restriction on speech. More specifically, Petitioner 24
contends that the NSL provisions lack the necessary procedural safeguards required under the First 25

26

27

1 While the documents submitted in this case were filed under seal, the parties have agreed to unseal partially redacted versions of the parties' briefing on the Petition to Set Aside and the

28

government's Motion to Compel Compliance with the Petition. See Docket Nos. 28, 38. This Order is not sealed and shall be publicly available.

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1 Amendment, because the government does not bear the burden to seek judicial review of the

2 nondisclosure order and the government does not bear the burden of demonstrating that the

3 nondisclosure order is necessary to protect specific, identified interests. Petitioner also argues that the

4 NSL nondisclosure provisions violate the First Amendment because they act as a licensing scheme

5 providing unfettered discretion to the FBI, and that the judicial review provisions violate separation of

6 powers principles because the statute dictates an impermissibly restrictive standard ofreview for courts

7 adjudicating challenges to nondisclosure orders.

8

In addition, Petitioner attacks the substantive provisions ofthe NSL statute itself, both separately

9 and in conjunction with the nondisclosure provisions, arguing that the statute is a content-based

10 restriction on speech that fails strict scrutiny.

11

The government opposed the Petition, filed a separate lawsuit seeking a declaration that

12 Petitioner is required to comply with the NSL,2 and filed a motion to compel compliance with the NSL

13 in this case.3 In its opposition to the Petition, the government argues that the NSL statute satisfies strict

14 scrutiny and does not impinge on the anonymous speech or associational rights ofthe subscriber whose

15 information is sought in the NSL. The government also asserts that the nondisclosure provisions are

16 appropriately applied to Petitioner, because the nondisclosure order is not a "classic prior restraint"

17 warranting the most rigorous scrutiny and because it was issued in this case after an adequate

18 certification from the FBI. Finally, the government argues that the standards ofjudicial review provided

19 for review of NSLs and nondisclosure orders are constitutional. In support of its arguments in

20 opposition to the Petition, as well as in support of its own motion to compel compliance with the NSL,

21 the government relies on a classified declaration from a senior official with the FBI, which the Court

22

23

2 See Civ. No. 11-2667 (Under Seal).

24

3 With respect to the substantive portions ofthe NSL as applied to this case, Petitioner argues

25

that the FBI's certification ofnecessity for the subscriber information at issue does not demonstrate that an enumerated harm contemplated by the statute would occur absent disclosure, and that the FBI has

26

failed to affirmatively demonstrate that the investigation at issue is not being conducted solely on the basis of activities protected by the First Amendment. Petition at 24. As discussed below, because the

27

Court finds the NSL nondisclosure provisions constitutionally infirm and concludes that the nondisclosure provisions cannot be severed from the substantive NSL provisions, the Court does not

28

reach the issue ofwhether the FBI has made a sufficient showing to require Petitioner to comply with the NSL.

2

has reviewed. The government filed a redacted and unclassified version of the FBI official's

2 declaration, which has been provided to Petitioner and its counsel.

3

For the reasons discussed below, the Court fmds that the NSL nondisclosure and judicial review

4 provisions suffer from significant constitutional infirmities. Further, those infirmities cannot be avoided

5 by "conforming" the language ofthe statute to satisfy the Constitution's demands, because the existing

6 statutory language and the legislative history ofthe statutes block that result. As such, the Court finds

7 section 2709(c) and 3511 (b) unconstitutional, but stays the judgment in order for the Ninth Circuit to

8 consider the weighty questions ofnational security and First Amendment rights presented in this case.

9

10

BACKGROUND

11 1. NSL Statutes at Issue

12

Sections 2709(a) and (b) of Title 18 of the United Sates Code provide that a wire or electronic

13 communication service provider shall comply with a request4 for specified categories of subscriber

14 information ifthe Director ofthe FBI or his designee certifies that the records sought are relevant to an

15 authorized investigation to protect against international terrorism or clandestine intelligence activities,

16 provided that such an investigation of a United States person is not conducted solely on the basis of

17 activities protected bytheFirstAmendmentto theConstitutionofthe United States. Section 2709(c)(1)

18 provides that if the Director of the FBI or his designee certifies that "there may result a danger to the

19 national security of the United States, interference with a criminal, counterterrorism, or

20 counterintelligence investigation, interference with diplomatic relations, or danger to the life or physical

21 safety of any person," the recipient of the NSL shall not disclose to anyone (other than to an attorney

22 to obtain legal advice or legal assistance with respect to the request) that the FBI has sought or obtained

23 access to information or records sought in the NSL. Section (c)(2) provides that the FBI shall inform

24 the recipient of the NSL of the nondisclosure requirement.

25

Section 3511 provides for judicial review ofNSLs and nondisclosure orders issued under section

26

27

28

4 This request is generally referred to as a "National Security Letter," or "NSL."

3

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2709 and other NSL statutes.5 Under 3511(a), the recipient of an NSL may petition a district court for

2 an order modifying or setting aside the NSL. The court may modify the NSL, or set it aside, only "if

3 compliance would be unreasonable, oppressive, or otherwise unlawful." Under 3511(b)(2), an NSL

4 recipient subject to a nondisclosure order may petition a district court to modify or set aside the

5 nondisclosure order. If the NSL was issued within a year of the time a challenge to the nondisclosure

6 order is made, a court may "modify or set aside such a nondisclosure requirement if it finds that there

7 is no reason to believe that disclosure may endanger the national security ofthe United States, interfere

8 with a criminal, counterterrorism, or counterintelligence investigation, interfere with diplomatic

9 relations, or endanger the life or physical safety of any person." However, if a specified high ranking

10 government official (i.e., the Attorney General, Deputy or Assistant Attorney Generals, the Director of

11 the Federal Bureau of Investigation, or agency heads) certifies that disclosure "may endanger the

12 national security of the United States or interfere with diplomatic relations, such certification shall be

13 treated as conclusive unless the court finds that the certification was made in bad faith." 18 U.S.C.

14 3511 § (b)(2).

15

Under 3511 (b)(3), ifthe petition to modify or set aside the nondisclosure order is filed more than

16 one year after the NSL issued, a specified government official, within ninety days of the filing of the

17 petition, shall either terminate the nondisclosure requirement or re-certify that disclosure may result in

18 an enumerated harm. If the government provides that re-certification, the Court may again only alter

19 or modify the NSL ifthere is "no reason to believe that disclosure may" have the impact the government

20 says it may, and the court must treat the certification as "conclusive unless the court finds that the

21 recertification was made in bad faith." Finally, ifthe court denies a petition for an order modifying or

22 setting aside a nondisclosure order, "the recipient shall be precluded for a period ofone year from filing

23 another petition to modify or set aside such nondisclosure requirement."

24

Under 3511(d) and (e) the Court may close hearings to "the extent necessary to prevent an

25 unauthorized disclosure of a request for records," may seal records regarding any judicial proceedings,

26

27

5 See 12 U.S.C. § 3414(a)(5) (fmancial records); 15 U.S.C. § 1681u (credit history); 15 U.S.C.

§ 1681v (full credit reports); 50 U.S.C. § 436 (information concerning investigation of improper

28 disclosure of classified information).

4

1 and "shall, upon request ofthe government, review exparte and in camera any government submission,

2 or portions thereof, which may include classified information."

3

4 2. Prior Cases Testing Constitutionality of the NSL Provisions

5

This Court is not the first to address the constitutionality of the NSL provisions currently in

6 effect. In Doe v. Gonzales, 500 F. Supp. 2d 379 (S.D.N.Y. 2007), affirmed in part and reversed in part

7 and remanded by John Doe, Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008), the District Court found that

8 the nondisclosure provision was a prior restraint and a content-based restriction on speech that violated

9 the First Amendment because the government did not bear the burden to seek prompt judicial review

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10 of the nondisclosure order. 500 F. Supp. 2d at 406 (relying on Freedman v. Maryland, 380 U.S. 51 11 (1965)).6 The District Court approved allowing the FBI to determine whether disclosure would 12 jeopardize national security, finding that the FBI's discretion in certifying a need for nondisclosure of 13 an NSL "is broad but not inappropriately so under the circumstances" of protecting national security. 14 !d. at 408-09. However, the District Court determined that section 3511 (b)'s restriction on when a court 15 may alter or set aside an NSL- only ifthere is no reason to believe that disclosure will result in one of 16 the enumerated harms- in combination with the statute's direction that a court must accept the FBI's 17 certification ofharm as "conclusive unless the court finds that the certification was made in bad faith," 18 were impermissible attempts to restrict judicial review in violation of separation of powers principles. 19 !d. at 411-13. The District Court found that the unconstitutional nondisclosure provisions were not 20 severable from the substantive provisions of the NSL statute, and declined to address whether the 21 unconstitutional judicial review provision- which implicated review of other NSLs, not just NSLs to

22 electronic communication service providers at issue- was severable.

23

The District Court's decision was affirmed in part, reversed in part and remanded by the Second

24 Circuit Court of Appeals in John Doe, Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008). In that opinion,

25 the Second Circuit found that while not a "classic prior restraint" or a "broad" content-based prohibition

26

27

6 For an extensive discussion of the history and use ofNSLs, as well as the legislative history

ofthe specific NSL provisions challenged by Petitioner, see Doe v. Gonzales, 500 F. Supp. 2d 379, 38728 392 (S.D.N.Y. 2007).

5

1 on speech necessitating the "most rigorous First Amendment scrutiny," the nondisclosure requirement

2 was sufficiently analogous to them to justify the application ofthe procedural safeguards announced in

3 Freedman v. Maryland, 380 U.S. 51, particularly the third Freedman prong requiring the government

4 to initiate judicial review. !d. at 881 ("in the absence of Government-initiated judicial review,

5 subsection 3511(b) is not narrowly tailored to conform to First Amendment procedural standards.").

6 However, in order to avoid the constitutional deficiencies, the Court read into the statute a requirement

7 that the government inform each NSL recipient that the recipient could contest the nondisclosure

8 requirements and if contested, the government would initiate judicial review within 30 days, and that

9 review would conclude within 60 days. Under the Second Circuit's "conforming" of section 2709(c),

10 the Freedman concerns were met.

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11

The Second Circuit also found the restrictions on the District Court's review ofthe adequacy of

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14 sections 2709(c) and 35ll(b) in significant respects. First, the Court accepted the government's position

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15 -offered in litigation- that the section 2709(c) nondisclosure requirement applies only if the FBI 16 certifies that an enumerated harm related to an authorized investigation to protect against international 17 terrorism or clandestine intelligence activity may occur. !d. 875.7 Second, the Court accepted the

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18 government's litigation position that section 3511 (b)(2)'s requirement that a court may alter or modify

19 the nondisclosure agreement only ifthere "is no reason to believe that disclosure may" risk one of the

20 enumerated harms, should be read to mean that a court may alter or modify the nondisclosure agreement

21 unless there is "some reasonable likelihood" that the enumerated harm will occur. Third, the Court

22 accepted the government's agreement that it would bear the burden ofproofto persuade a district court

23 - through evidence submitted in camera as necessary - that there is a good reason to believe that

24 disclosure may risk one of the enumerated harms; and that the district court must find that such a good

25 reason exists. !d. at 875-76.

26

7 As written, the statute allows for nondisclosure orders to issue in connection with NSLs where 27 the government certifies that "there may result a danger to the national security of the United States,

28

interference with a criminal, counterterrorism, or counterintelligence investigation, interference with diplomatic relations, or danger to the life or physical safety of any person." 18 U.S.C. § 2709(c).

6

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In interpreting section 3511 (b) to require the government to show a "good" reason that an

2 enumerated harm related to international terrorism or clandestine intelligence activity may result, and

3 requiring the government to submit proof to the district court to support its certification, the Second

4 Circuit found that a court would have - consistent with its duty independently to assess First

5 Amendment restraints in light of national security concerns - "a basis to assure itself (based on in

6 camera presentations where appropriate) that the link between the disclosure and risk of harm is

7 substantial." !d. at 881. After implying these limitations - based on the government's litigation

8 concessiOns the Second Circuit found that most ofthe significant constitutional deficiencies found by

9 the district court could be avoided. However, the Second Circuit affirmed the holding that section

10 3511 (b)(2) and (b)(3)'s provision that government certifications must be treated as "conclusive" is not

11 "meaningful judicial review"as required by the First Amendment. !d. at 882. In conclusion, the Second 12 Circuit severed the conclusive presumption provision of section 3511 (b), but left intact the remainder 13 of section 3511 (b) and the entirety of section 2709, with the added imposed limitations and "with 14 government-initiated review as required." Id. at 885. 8

15

In the pleadings in the present case, the government did not state whether it was complying with

16 the narrowing constructions and the procedural requirements imposed on the NSL nondisclosure

17 provisions by the Second Circuit. However, at the hearing before this Court, the government asserted

18 that it was following the mandates imposed by the Second Circuit in the John Doe, Inc. v. Mukasey

19 decision for all NSLs being issued, since it would be impracticable to attempt to comply with that

20 decision only in the Second Circuit.

21

At the hearing, this Court also asked Petitioner whether in its view the challenged NSL

22 nondisclosure provisions would survive constitutional scrutiny if the requirements imposed by the

23 Second Circuit were adopted by Congressional amendment. Petitioner agreed that the nondisclosure

24 provisions if so amended would be constitutional, but argued that the NSL provisions cannot be saved

25 by judicial reconstruction but only through Congressional amendment. 26

27

8 Because the government did not concede or voluntarily offer to be the party to initiate court

28

review of challenged nondisclosure order, the Court enjoined the government from enforcing the nondisclosure requirements in absence of government-initiated judicial review. !d.

7

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1

DISCUSSION

2 1. Jurisdiction Over the Constitutional Challenge

3

The government argues first that this Court does not have jurisdiction to consider Petitioner's

4 constitutional challenges to the NSL nondisclosure provisions. Under section 351l(a)'sjudicial review

5 provision, courts can "modify or set aside" NSLs if compliance would be "unreasonable, oppressive,

6 or otherwise unlawful." Under section 3511 (b), a court can "modify or set aside" nondisclosure orders

7 if"ifit finds that there is no reason to believe that disclosure may endanger the national security of the

8 United States, interfere with a criminal, counterterrorism, or counterintelligence investigation, interfere

9 with diplomatic relations, or endanger the life or physical safety ofany person." As the scope ofjudicial

10 review expressly provided is limited to those two issues, the government contends this Court cannot

11 review the constitutionality ofthe NSL provisions in this action brought pursuant to section 3511. Govt.

12 Oppo. at 6-7. The Court disagrees. As part of determining whether to modify or set aside an NSL-

13 which Petitioner seeks to do in this case- the Court can review the constitutional attack on the statute,

14 because the statute's constitutionality implicates whether an NSL served on a wire or electronic

15 communications provider, including this one, is unreasonable or unlawful. Cf AFGE Local] v. Stone,

16 502 F.3d 1027, 1039 (9th Cir. 2007) (where statutory scheme did "not clearly state an intention on the

17 part of Congress to preclude judicial review of constitutional claims," those claims should be

18 adjudicated). In any event, the government does not dispute that, even without the judicial review

19 provisions in section 3511 (a) and (b), the court can exercise its fundamental obligation to determine the

20 constitutionality of the NSL nondisclosure provisions under the Declaratory Relief Act, 28 U.S.C.

21 § 2201. Cf Doe v. Ashcroft, 334 F. Supp. 2d 471,475 (S.D.N.Y. 2004), vacated and remanded by Doe

22 I v. Gonzales, 449 F.3d 415 (2d Cir. 2006)(finding Section 2709's nondisclosure provision- prior to 23 enactment of judicial review provisions in Section 3511 - unconstitutional in part because former 24 Section 2709 "effectively bars or substantially deters any judicial challenge to the propriety ofan NSL 25 request."). 26

27 2. 28

Level of Scrutiny Petitioner contends that the nondisclosure order amounts to both a classic prior restraint on

8

speech and a content-based restriction on speech, and urges that accordingly exacting levels of scrutiny

2 be used in evaluating the restriction.

3

Petitioner argues that the nondisclosure order is a classic prior restraint on speech, noting that

4 it prohibits recipients of an NSL from speaking not just about the NSL' s contents and target, but even

5 about the existence or receipt of the NSL. See, e.g., Alexander v. United States, 509 U.S. 544, 550

6 (1993) ("The term 'prior restraint' is used 'to describe administrative and judicial orders forbidding

7 certain communications when issued in advance of the time that such communications are to occur."'

8 (quoting M. Nimmer, Nimmer on Freedom ofSpeech§ 4.03, p. 4-14 (1984))). Petitioner argues that,

9 as a "classic" prior restraint, the statute can only be saved if disclosure of the information from NSLs

10 will "surely result in direct, immediate, and irreparable damage to our Nation or its people." New York

11 Times Co. v. United States (Pentagon Papers), 403 U.S. 713, 730 (1971) (Stewart, J.,joined by White,

12 J. concurring).

13

Petitioner also contends that the NSL nondisclosure order is a content-based restriction on

14 speech, because it targets a specific category ofspeech- speech regarding the NSL. As a content-based

15 restriction, the nondisclosure provision is "presumptively invalid," R.A. V v. St. Paul, 505 U.S. 377, 382

16 (1992), and can only be sustained if it is "narrowly tailored to promote a compelling Government

17 interest. ... If a less restrictive alternative would serve the Government's purpose, the legislature must

18 use that alternative." United States v. Playboy Entm 't Group, 529 U.S. 803, 813 (2000) (citation

19 omitted).

20

The Court finds that given the text and function of the NSL statute, Petitioner's proposed

21 standards are too exacting. Rather, this Court agrees with the analysis of the Second Circuit in John

22 Doe, Inc. v. Mukasey, and finds that while section 2709(c) may not be a "classic prior restraint" or a 23 "typical" content-based restriction on speech, the nondisclosure provision clearly restrains speech of 24 a particular content- significantly, speech about government conduct. John Doe, Inc. v. Mukasey, 549 25 F.3d 861, 876, 878 (2d Cir. 2008). Under section 2709(c), the FBI has been given the unilateral power 26 to determine, on a case-by-case basis, whether to allow NSL recipients to speak about the NSLs. As 27 a result, the recipients are prevented from speaking about their receipt ofNSLs and from disclosing, as 28 part of the public debate on the appropriate use of NSLs or other intelligence devices, their own

9

1 experiences. In these circumstances, the Court finds that while section 2709(c) does not need to satisfy

2 the extraordinarily rigorous Pentagon Papers test, section 2709(c) must still meet the heightened

3 justifications for sustaining prior-restraints announced in Freedman v. Maryland and must be narrowly

4 tailored to serve a compelling governmental interest. See John Doe, Inc. v. Mukasey, 549 F.3d at 878-

5 881(applying third Freedman procedural safeguard); see also id. at 878 (noting government conceded

6 strict scrutiny applied in that case).

7

The Court is not persuaded by the government's attempt to avoid application of the Freedman

8 procedural safeguards by analogizing to cases which have upheld restrictions on disclosures of

9 information by individuals involved in civil litigation, grand jury proceedings and judicial misconduct

10 investigations. The concerns that justified restrictions on a civil litigant's pre-trial right to disseminate

11 confidential business information obtained in discovery - a restriction that was upheld by the Supreme

12 Court in Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984)- are manifestly not the same as the

13 concerns raised in this case. Here, the concern is the government's unilateral ability to prevent

14 individuals from speaking out about the government's use of NSLs, a subject that has engendered

15 extensive public and academic debate. 9

16

The government's reliance on cases upholding restrictions on witnesses in grand jury orjudicial

17 misconduct proceedings from disclosing information regarding those proceedings is similarly misplaced.

18 With respect to grand jury proceedings, the Court notes that the basic presumption in federal court is 19 that grand jury witnesses are not bound by secrecy with respect to the content oftheir testimony. See, 20 e.g., In re Grand Jury, 490 F.3d 978, 985 (D.C. Cir. 2007) ("The witnesses themselves are not under 21 an obligation of secrecy."). While courts have upheld state law restrictions on grand jury witnesses' 22 disclosure ofinformation learned only through participation in grandjury proceedings, those restrictions 23 were either limited in duration or allowed for broad judicial review. See, e.g.,Hoffmann-Pugh v.

24 Keenan, 338 F.3d 1136, 1140 (lOth Cir. 2003) (agreeing state court grand jury witness could be 25

26

9 See, e.g., Statement of Glenn Fine, Inspector General, U.S. Department of Justice before the

Senate Judiciary Committee concerning Reauthorizing the USA Patriot Act (September 23, 2009) 27 <www.justice.gov/oig/testimony/t0909.pdf>; 72 Geo. Wash. L. Rev., August 2004, The Future of

Internet Surveillance Law: A Symposium to Discuss Internet Surveillance, Privacy & The USA Patriot 28 Act; Editorial, Breaking a Promise on Surveillance, N.Y. Times, July 29, 2010, at 22.

10

1 precluded from disclosing information learned through giving testimony, but noting state law provides

2 a mechanism for judicial determination ofwhether secrecy still required); cf Butterworth v. Smith, 494

3 U.S. 624, 632 (1990) (interests in grand jury secrecy do not "warrant a permanent ban on the disclosure

4 by a witness ofhis own testimony once a grand jury has been discharged.").

5

Importantly, as the Second Circuit recognized, the interests of secrecy inherent in grand jury

6 proceedings arise from the nature ofthe proceedings themselves, including "enhancing the willingness

7 of witnesses to come forward, promoting truthful testimony, lessening the risk of flight or attempts to

8 influence grand jurors by those about to be indicted, and avoiding public ridicule of those whom the

9 grand jury declines to indict." John Doe, Inc. v. Mukasey, 549 F.3d at 876. In the context ofNSLs,

10 however, the nondisclosure requirements are imposed at the demand ofthe Executive Branch "under

11 circumstances where the secrecy might or might not be warranted." !d. at 877. Similarly, the secrecy

12 concerns which inhere in the nature of judicial misconduct proceedings, as well as the temporal

13 limitations on a witness's disclosure regarding those proceedings, distinguish those proceedings from

14 section 2709(c). Id. 10

15

16 3. Procedural Safeguards

17

Having concluded that the procedural safeguards mandated by Freedman should apply to section

18 2709(c), the question becomes whether those standards are satisfied by section 2709(c). Freedman

19 requires that '"(1) any restraint prior to judicial review can be imposed only for a specified briefperiod

20 during which the status quo must be maintained; (2) expeditious judicial review of that decision must
21 10 The cases relied on by the government, where restrictions on speech were not considered
22 prior restraints because speakers were not restrained in advance but instead subjected to potential criminal penalties after the speech occurred, are also inapposite. See, e.g., Cooper v. Dillon, 403 F.3d
23 1208, 1215 (11th Cir. 2005); see also CBS Inc. v. Davis, 510 U.S. 1315, 1317 (1994) (distinguishing between "a threat of criminal or civil sanctions after publication" which "chills speech" and a prior
24 restraint which "freezes" speech) (citation omitted); Landmark Communications v. Va., 435 U.S. 829, 838 (1978) (appellant did not dispute that statute imposing criminal sanctions for disclosure of
25 confidential proceedings of judicial misconduct was not "a prior restraint or attempt by the State to censor the news media."). Here, the recipients ofNSLs are not merely warned that disclosing the NSL
26 could result in criminal sanctions, but ordered in the NSLs themselves not to disclose its existence or its contents. See Section 2709(c)(1) ("no wire or electronic communications service provider ... shall
27 disclose to any person ... that the Federal Bureau of Investigation has sought or obtained access to information or records under this section."); Section 2709(c)(2) ("request" shall notify the recipient of
28 the "nondisclosure requirement").

11

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1 be available; and (3) the censor must bear the burden of going to court to suppress the speech and must

2 bear the burdenofproofonce in court."' Thomas v. Chi. ParkDist., 534 U.S. 316,321 (2002) (quoting

3 FWIPBS, Inc. v. Dallas, 493 U.S. 215,227 (1990) (O'Connor, J.,joined by Stevens, and Kennedy, JJ.)).

4

The government argues that even ifthe Freedman factors apply to section 2709(c), the manner

5 in which Petitioner's NSL and court challenge have, in fact, been handled by the FBI satisfy those

6 factors. The government is attempting to foreclose Petitioner's facial attack on the NSL provisions by

7 arguing that this Court must defer to the government's "authoritative constructions" ofthe NSL statute,

8 including its implementation in this case. See, e.g., Govt Oppo. at 20, n.1 0. The Court, however, has

9 not been presented with any evidence of an "authoritative construction." There is no evidence that the

10 Department of Justice has implemented regulations to impose the constructions and safeguards

11 mandated by the Second Circuit in the John Doe v. Mukasey decision. There is no evidence that either

12 the DOJ or the FBI has adopted a formal "policy" adhering to those constructions and safeguards. The

13 most the government says in its briefs is that consistent with "usual FBI practice," the NSL at issue

14 informed Petitioner that ifPetitioner objected to the NSL, the FBI would seek judicial review within 30

15 days. At oral argument, government counsel stated that it continued to comply with Freedman's

16 procedural requirements. But, a statement in a brief of"usual practice" and a commitment to continue

17 that practice made in court are not sufficient to demonstrate the existence of- and thereby mandate

18 court deference to- an agency's "authoritative construction" ofa licensing scheme, much less a content-

19 based scheme like the one at issue. Cf Ward v. Rock against Racism, 491 U.S. 781, 795-796 (1989)

20 (finding that "[a]dministrative interpretation and implementation of a regulation are, of course, highly 21 relevant to our analysis" of a facial challenge to a content-neutral time, place and manner regulation 22 impacting speech). 11 The risks ofunwarranted suppression of speech inherent in content-based speech 23 restrictions cannot be adequately ameliorated by governmental promises to comply with Freedman's

24 requirements.

25

Similarly, even if the FBI is in fact complying with both the procedural and substantive

26

27

11 That the government likewise initiated judicial review in another case, after an NSL recipient

requested the government seek judicial review ofthe NSL nondisclosure requirement, does not change 28 this conclusion. See Case No 12-0007 (AJTIIDD) (E.D. Va. April24, 2012) (partially unsealed order).

12

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1 requirements imposed by the Second Circuit for all NSLs issued, the fact that the statute is facially

2 deficient- in not mandating the procedural and substantive protections discussed below- presents too

3 great a risk of potential infringement of First Amendment rights to allow the FBI to side-step

4 constitutional review by relying on its voluntary, nationwide compliance with the Second Circuit's

5 limitations. Cf Friends ofthe Earth, Inc. v. Laidlaw Envtl. Servs, Inc., 528 U.S. 167, 174 (2000) ("A

6 defendant's voluntary cessation of allegedly unlawful conduct ordinarily does not suffice to moot a

7 case.").

8

Another significant factor weighs in favor ofthis Court resolving the facial challenge: despite

9 evidence demonstrating that tens ofthousands ofNSLs are issued each year- and by the government's

10 own estimate, 97% of them may come with a nondisclosure order- only a handful of challenges to the

11 NSL provisions have been brought. Compare DOJ Office of Inspector General "A Review of the

12 Federal Bureau of Investigation's Use of National Security Letters," March 2007 at 120

13 <www.usdoj.gov/oig/special/s0703b/final.pdf> (noting that in 2005, more than 47,000 NSL requests

14 were issued) with Doe v. Gonzales, 500 F. Supp. 2d 379, 405 (S.D.N.Y. 2007) (finding as of2007 that 15 only two challenges have been made in federal court since the original enactment ofthe NSL statute). 12

16

All ofthese factors weigh in favor ofthis Court reviewing Petitioner's facial challenge. Simply

17 because the government chose to meet the Freedman safeguards in issuing and seeking to compel the

18 NSL at issue here, does not foreclose Petitioner's ability to challenge the constitutionality of the

19 statute's provisions.

20

21

A. Government Must Initiate Judicial Review and Bear Burden of Proof

22

There is no dispute that the NSL provisions do not require the government to initiate judicial

23 review ofNSL nondisclosure orders. The Second Circuit found that this deficiency rendered the NSL
24 provisions unconstitutional, but suggested that if the government were to inform recipients that they

25

26

12 The Court recognizes that a more recent challenge to a nondisclosure order was brought in

2012. However, in that case, while the NSL recipient requested the government to obtain judicial 27 review of the nondisclosure requirement, the NSL recipient did not appear in Court or otherwise

28

participate in the Eastern District ofVirginia proceedings. See partially unsealed April24, 2012 Order in Case No 12-0007 (AJT/IDD) (E.D. Va. April24, 2012).

13

1 could object to the nondisclosure order, and that if they objected, the government would seek judicial

2 review, then the constitutional problem could be avoided. John Doe, Inc. v. Mukasey, 549 F.3d at 879.

3 The Second Circuit noted that there are three ways the government could satisfy this requirement: (1)

4 by interpreting its authority in section 3511(c) to move to compel compliance with an NSL to also

5 encompass a petition for judicial review of the nondisclosure order; (2) by identifying another way to

6 invoke the equitable power ofa district court to prevent disclosure ofthe NSL; or (3) by seeking explicit

7 Congressional authorization. !d. at 884.

8

There is no evidence in this record as to which option, if any, the government has decided to

9 follow, although the government did file a complaint for declaratory and injunctive relief in support of

10 the NSL and nondisclosure order here, after receiving notice that Petitioner intended to contest both the

11 NSL and the nondisclosure order. See Case No. 11-02173, Docket No. 1 filed June 3, 2011 (Under

12 Seal).

13

With respect to the burden of proof, there is no requirement in the statute that the government

14 bear any specific burden ofproof, in terms ofthe showing necessary to justify the nondisclosure order.

15 To the contrary, section 3511(b) provides that a court may modify or set aside a nondisclosure

16 requirement only if the court finds there is "no reason to believe" that disclosure "may" endanger

17 national security, interfere with an investigation or diplomatic relations, or endanger any person. The

J:1-<

18 Second Circuit addressed this issue by construing 3511 (b)(2) and (b)(3) to place on the government the

19 burden to show that a "good reason" exists to expect disclosure of receipt of an NSL will risk an

20 enumerated harm. The Second Circuit suggested that the government could satisfy this burden by

21 providing evidence to the court - submitted ex parte and in camera if necessary - showing why

22 disclosure in a particular case could result in an enumerated harm. John Doe, Inc. v. Mukasey, 549 F.3d

23 at 883. Here, the government did not address the burden of proof requirement of the third Freedman

24 prong or explain its position, other than noting that in this case it submitted a classified declaration in

25 support ofits opposition to the Petition and in support ofits motion to compel compliance with the NSL. 26

27

B. Short Period of Time Prior to Judicial Review

28

Under Freedman's first prong, any restraint prior to judicial review can be imposed only for a

14

1 specified brief period. The NSL provisions do not provide any limit to the period of time the

2 nondisclosure order can be in place prior to judicial review. The Second Circuit addressed this problem
3 by finding that ifthe government were to notifY NSL recipients that ifthey objected to the nondisclosure

4 order within 10 days, the government would seekjudicial review ofthe nondisclosure restriction within

5 30 days, then this Freedman factor would be satisfied. This Court agrees that if the statute, or a

6 regulation implementing the NSL provisions, imposed the time limitations suggested by the Second 7 Circuit, that would be sufficient. But that is not the record before the Court. 13

8

9 4. Narrowly Tailored to Serve a Compelling Governmental Interest

10

In addition to satisfYing the Freedman procedural safeguards, as content-based restrictions on

11 speech, the NSL nondisclosure provisions must be narrowly tailored to serve a compelling governmental

12 interest.

13

It is undisputed that our national security interests are compelling. See, e.g., Haig v. Agee, 453

14 U.S. 280, 307 (1981) ("no governmental interest is more compelling than the security ofthe Nation.").

15 The question is whether the NSL nondisclosure provisions are sufficiently narrowly tailored to serve

16 that compelling interest without unduly burdening speech.

17

The Court finds that the NSL nondisclosure provisions are not narrowly tailored on their face,

18 since they apply, without distinction, to both the content of the NSLs and to the very fact of having 19 received one. The government has a strong argument14 that allowing the government to prohibit

20 recipients ofNSLs from disclosing the specific information sought in NSLs to either the targets or the

21 public is generally necessary to serve national security in ongoing investigations. However, the

22 government has not shown that it is generally necessary to prohibit recipients from disclosing the mere

23 fact of their receipt of NSLs. The statute does not distinguish - or allow the FBI to distinguish -

24 between a prohibition on disclosing mere receipt ofan NSL and disclosing the underlying contents. The 25

26

13 Petitioner does not challenge section 2709(c) under the second Freedman factor, that

"expeditious judicial review" must be available.

27

14 The argument is supported by the information provided in the declaration of a high ranking 28 FBI official, submitted to the Court ex parte and to the Petitioner in a redacted form.

15

1 statute contains a blanket prohibition: when the FBI provides the required certification, recipients cannot

2 publicly disclose the receipt ofan NSL. A review ofthe FBI's use ofNSLs discloses that the FBI issued

3 nondisclosure orders for 97% of the NSLs it had issued. See Statement of Glenn Fine, Inspector

4 General, U.S. Department of Justice before the Senate Judiciary Committee concerning Reauthorizing

,.
i

5 the USA Patriot Act (September 23, 2009) at 6 <www.justice.gov/oig/testimony/t0909.pdf>. This

6 pervasive use of nondisclosure orders, coupled with the government's failure to demonstrate that a

7 blanket prohibition on recipients' ability to disclose the mere fact of receipt of an NSL is necessary to

8 serve the compelling need of national security, creates too large a danger that speech is being

9 unnecessarily restricted. See, e.g., Speiser v. Randall, 357 U.S. 513, 525 (1958) ("[T]he line between

10 speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or

11 punished is finely drawn.... The separation of legitimate from illegitimate speech calls for more

12 sensitive tools....")(internal citations omitted).

13

To be sure, the First Amendment concerns at issue do not require that every recipient of an NSL

14 must be allowed to disclose the fact oftheir receipt of an NSL. It is not hard to surmise situations where

15 recipients would appropriately be precluded from disclosing their receipt of an NSL. For example if

16 an ECSP has only a handful of subscribers, disclosure could compromise a national security

17 investigation. The problem, however, is that the statute does nothing to account for the fact that when

18 no such national security concerns exist, thousands of recipients of NSLs are nonetheless prohibited

19 from speaking out about the mere fact of their receipt of an NSL, rendering the statute impermissibly

20 overbroad and not narrowly tailored. This is especially problematic in light of the active, continuing

21 public debate over NSLs, which has spawned a series ofCongressional hearings, academic commentary,

22 and press coverage. See fn. 9 supra. Indeed, at oral argument, Petitioner was adamant about its desire

23 to speak publicly about the fact that it received the NSL at issue to further inform the ongoing public

24 debate.

25

In addition to the breadth of the non-disclosure provision, the Court is concerned about its

26 duration. Nothing in the statute requires or even allows the government to rescind the non-disclosure

27 order once the impetus for it has passed. Instead, the review provisions require the recipient to file a

28 petition asking the Court to modify or set aside the nondisclosure order. 18 U.S.C. § 3511(b). The

16

issuance ofa nondisclosure order is, in essence, a permanent ban on speech absent the rare recipient who

2 has the resources and motivation to hire counsel and affirmatively seek review by a district court. Also

3 problematic is the fact that if a recipient seeks review, and the court declines to modify or set aside the

4 nondisclosure order, a recipient is precluded from filing another petition to modify or set aside for a

5 year, even ifthe need for nondisclosure would cease within that year. 18 U.S.C. § 3511(b)(3). By their

6 structure, therefore, the review provisions are overbroad because they ensure that nondisclosure

7 continues longer than necessary to serve the national security interests at stake. See also Doe v.

8 Gonzales, 500 F. Supp. 2d 379,421 (S.D.N.Y. 2007), affirmed in part and reversed in part by John Doe,

9 Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008) ("Once disclosure no longer poses a threat to national

10 security, there is no basis for further restricting NSL recipients from communicating their knowledge

11 of the government's activities. International terrorism investigations might generally last longer than

12 run-of-the-mill domestic criminal investigations, but they do not last forever.").

13

14 5. Prescribing the Standards of Judicial Review

15

As noted above, section 3511 (b) allows for judicial review, but the scope of that review is

16 narrow. In particular, the statute provides that a district court may only modify or set aside the

17 nondisclosure requirement ifthe court finds "there is no reason to believe" that disclosure "may" result

18 in an enumerated harm. If the FBI certifies that such a harm "may" occur, the district court must accept

19 that certification as "conclusive." Petitioner asserts that these limits on judicial review violate

20 separation ofpowers principles and violate Petitioner's due process rights to an unbiased decisionmaker.

21

The Second Circuit addressed the first two issues by interpreting "no reason to believe," as

22 requiring the government to provide a "good reason," and the "may occur" to mean the government

23 must show "somereasonab1e likelihood" ofharm. John Doe, Inc. v. Mukasey, 549 F.3d at 875-76. The

24 Second Circuit noted that in making that showing, the government would be required to "at least

25 indicate the nature ofthe apprehended harm and provide a court with some basis to assure itself (based

26 on in camera presentations where appropriate) that the link between disclosure and risk of harm is

27

28

17

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substantial." !d. at 881 Y Turning to the third issue, the "conclusive" treatment of the FBI's

2 certification, the Second Circuit found the mandated deference unconstitutional because it would

3 preclude meaningful judicial review. !d. at 882-83 ("The fiat of a governmental official, though senior

4 in rank and doubtless honorable in the execution of official duties, cannot displace the judicial

5 obligation to enforce constitutional requirements.").

6

The Court finds that, as written, the statute impermissibly attempts to circumscribe a court's

7 ability to review the necessity of nondisclosure orders. As noted above, while not a "classic" prior

8 restraint or content-based speech restriction, the NSL nondisclosure provisions significantly infringe

9 on speech regarding controversial government powers. As such, the Court can only sustain

10 nondisclosure based on a searching standard of review, a standard incompatible with the deference

11 mandated by Sections 3511(b) and (c). As written, the statute expressly limits a court's powers to

12 modifY or set aside a nondisclosure order to situations where there is "no reason to believe" that

13 disclosure "may" lead to an enumerated harm; and if a specified official has certified that such a harm 14 "may" occur, that determination is "conclusive." The statute's intent- to circumscribe a court's ability

15 to modifY or set aside nondisclosure NSLs unless the essentially insurmountable standard "no reason 16 to believe" that a harm "may" result is satisfied- is incompatible with the court's duty to searchingly 17 test restrictions on speech. See, e.g., John Doe, Inc. v. Mukasey, 549 F.3d at 883 ("The fiat of a 18 governmental official, though senior in rank and doubtless honorable in the execution ofofficial duties, 19 cannot displace the judicial obligation to enforce constitutional requirements. 'Under no circumstances 20 should the Judiciary become the handmaiden of the Executive.' United States v. Smith, 899 F.2d 564,

21 569 (6th Cir. 1990).").

22

The government argues that in light of the national security context in which NSLs are issued,

23 a highly deferential standard of review is not only appropriate but necessary. The Court does not

24 disagree. Courts necessarily give significant deference to the government's national security 25

26

15 In this case, the government did not address, either in its briefs or in oral argument, whether

27

it intends to adhere to the substantive limitations adopted by the Second Circuit in all future judicial proceedings reviewing the imposition of NSL nondisclosure orders. As noted, in this case the FBI

28

submitted a declaration in camera presenting an official explanation of the need for nondisclosure in order to justifY the order here.

18

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1 determinations. 16 However, that deference must be based on a reasoned explanation from an official

2 that directly supports the assertion ofnational security interests. As the Second Circuit recognized, the

3 statute might be less objectionable if the statute allowed the Court to determine whether there was a

4 "good reason" to believe an enumerated harm might occur if disclosure were allowed, and that "good

5 reason" required the government to demonstrate "some reasonable likelihood" that an enumerated harm

6 may occur if disclosure of the NSL were allowed. John Doe, Inc. v. Mukasey, 549 F.3d at 874-75.

7 However, the language relied on by the Second Circuit is not in the statute and, in this Court's view,

8 expressly contradicts the level ofdeference Congress imposed under Section 3511 (b) and (c). The Court

9 also agrees with the Second Circuit that the statute's direction that courts treat the government's

10 certification as "conclusive" is likewise unconstitutional. Treating the government's certification as

11 "conclusive" diminishes the exacting scrutiny courts must apply to speech restraints down to "no

12 scrutiny" at all. !d. at 882-83.

13

In support of its argument that the "conclusive" deference mandated by Section 3511 (b) is

14 permissible, the government also relies on cases arising under the Federal Freedom oflnformation Act

15 and cases upholding restrictions on former government employees' abilities to disseminate classified 16 or sensitive information. Those cases, however, are distinguishable. They are not prior restraint cases

17 and address only the high level of deference courts generally give to executive branch determinations

18 as to whether the government must release its own classified or national security information. See, e.g.,

19 Ctr.for Nat'! Sec. Studies v. UnitedStatesDOJ, 331 F.3d 918 (D.C. Cir. 2003)(deferringto government

20 position on release of records under FOIA); McGehee v. Casey, 718 F.2d 1137 (D.C. Cir. 1983)

21 (upholding government decision to prevent ex-CIA employee from publishing classified information);

22 see also Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1096 at n.9 (9th Cir. 2010) (in seeking

23 access to government records, "the balance of interests will more often tilt in favor of the Executive

24 when disclosure is the primary end in and ofitself. FOIA therefore predictably entails greater deference

25 to the national classification system than does the state secrets doctrine."). These cases do not address 26

27

16 See, e.g., Al Haramain Islamic Found., Inc. v. United States Dep 't ofthe Treasury, 686 F.3d

965, 980 (9th Cir. 2012) ("We owe unique deference to the executive branch's determination that we

28 face 'an unusual and extraordinary threat to the national security' of the United States.").

19

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1 the situation faced by Petitioner -the prevention of the disclosure of the fact that Petitioner received 2 an NSL letter and the information sought therein.

3

4 6. Procedures for In Camera Review

5

Finally, Petitioner challenges section 3511(e) to the extent that it forces a court "upon request

6 of the government" to review government submissions ex parte and in camera. Petitioner asserts that

7 the decision whether to review materials ex parte and in camera should rest with the courts, and that ex

8 parte and in camera proceedings lack fundamental fairness. The Court recognizes Petitioner's concerns,

9 but does not find section 3511 (e) unconstitutional. Despite the language ofthe statute, which attempts

10 to mandate that a court review materials exparte and in camera at the demand ofthe government, courts

11 have an inherent ability to determine on their own whether there is a need to review materials ex parte

12 and in camera and if so, the steps to be taken to minimize any unfairness. See Doe v. Gonzales, 500 F.

13 Supp. 2d 379, 423 (S.D.N.Y. 2007) (the "Court's authority to assess what process is due on a

14 case-by-case basis is undisturbed by the language of § 3511 (e)"); see also Ass 'n for Reduction of

15 Violence v. Hall, 734 F.2d 63,68 (lstCir. 1984) (ordering redaction or summary ofprivileged materials

16 if necessary); Naji v. Nelson, 113 F.R.D. 548, 553 (N.D. Ill. 1986) (requiring government to disclose

17 non-classified portions of withheld documents). Moreover, in the context of intelligence gathering

18 activities and national security, the use of ex parte and in camera submissions to review classified

19 information may be the only way for a court to carry out its duty, as noted above, to conduct a searching

20 review of the government's evidence offered in support of an NSL request or nondisclosure order.

21

Petitioner relies on the Ninth Circuit's decision in American-Arab Anti-Discrimination Comm.

22 v. Reno, 70 F.3d 1045 (9th Cir. 1995), which held that use ofundisclosed national security information

23 in summary adjustment-of-status legalization proceedings violated due process. However, in a

24 subsequent decision, the Ninth Circuit questioned the continued validity of that holding. See Al

25 Haramain Islamic Found., Inc. v. United States Dep 't ofthe Treasury, 660 F.3d 1019 (9th Cir. 2011 ),

26 reprinted as amended atAl Haramain Islamic Found., Inc. v. United States Dep't ofthe Treasury, 686

27 F.3d 965, 981-82 (9th Cir. 2012). The Court clarified that the holding in American-Arab Anti-

28 Discrimination Commission was based on the content ofthe classified information, specifically the fact

20

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1 that the government had argued that the aliens threatened national security, but the classified 2 information contained nothing about the aliens themselves. In Al Haramain, the Ninth Circuit held 3 that "the use of classified information in the fight against terrorism," qualified as a sufficiently 4 extraordinary circumstance to overcome any presumption against the use of classified information in 5 deportation proceedings. !d., at 982. 17 This Court finds that the use ofclassified information, submitted 6 in camera for the Court's review of the necessity of a nondisclosure order or an NSL, is not 7 unconstitutional but is instead a necessary mechanism for the Court to conduct the searching review of 8 the government's national security justification required by the First Amendment. 9

10 7. Remedy

11

Having concluded that the NSL provisions suffer from significant constitutional infirmities, the

12 Court must determine the appropriate remedy. As an initial matter, the Court finds that it is not within

13 its power to "conform" the NSL nondisclosure provisions, as did the Second Circuit. The statutory

14 provisions at issue - as written, adopted and amended by Congress in the face of a constitutional

15 challenge - are not susceptible to narrowing or conforming constructions to save their

16 constitutionality. 18 The Second Circuit relied primarily on United States v. Thirty-Seven (3 7)

17 Photographs, 402 U.S. 363 (1971) and United States v. Booker, 543 U.S. 220 (2005), but the narrow

18 defects in the statutes under review in those cases bear little resemblance to the multiple constitutional

19 inadequacies identified by the Court in the NSL nondisclosure provisions.

20

In Thirty-Seven (37) Photographs, the Supreme Court reviewed a statute authorizing customs

21

22

17 The Ninth Circuit inA! Haramain Islamic Found. also found that to the extent practicable,

the government should provide an unclassified summary ofthe information withheld to counsel or allow

23 access to the classified information to defense counsel who have secured an appropriate level ofsecurity

clearance, in order to minimize any due process concerns. !d. at 983. Here, the government provided

24 an unclassified, redacted version of the classified declaration to Petitioner's counsel.

25

18 As noted above, after the prior version of the NSL statute, including the nondisclosure

provision in 18 U.S.C. § 2709, was found unconstitutional by two district courts in the Second Circuit, 26 Congress amended the provision and added thejudicialreviewprovisions in 18 U.S.C. § 3511. See Doe

v. Ashcroft (Doe I), 334 F. Supp. 2d 471 (S.D.N.Y. 2004); Doe v. Gonzales (Doe Cl), 386 F. Supp. 2d

27 66 (D. Conn. 2005); see also Doe I v. Gonzales, 449 F. 3d 415 (2d Cir. 2006) (remanding Doe I for

reconsideration in light of amendments to NSL nondisclosure provisions and dismissing Doe CT as

28 moot in light of government's withdrawal of nondisclosure order).

21

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1 agents to seize obscene materials. While the statute met most of the requirements ofFreeman, its sole

2 omission was the "failure to specify exact time limits within which resort to the courts must be had and

3 judicial proceedings be completed." !d. at 371. In construing the statute to require judicial review to

4 be commenced within fourteen days and completed within sixty days, the Court relied on extensive

5 congressional history recognizing that "prompt" judicial review of seizures must be provided. !d. at

6 371-72. Here, however, there are multiple constitutional problems with the statute; indeed, despite the

7 Second Circuit's attempt to conform the statute, the problems still resulted in the Second Circuit striking

8 down the conclusive review provisions as unconstitutional. Compare United States v. Thirty-Seven (3 7)

9 Photographs, 402 U.S. 363 at 369 (noting the "cardinal principle" of construing a statute to avoid its

10 unconstitutionality does not govern cases where statutes "could not be construed so as to avoid all

11 constitutional difficulties"); with John Doe, Inc. v. Mukasey, 549 F.3d at 884 (striking down

12 "conclusive presumption" clauses of subsections 3511 (b)(2) and (b)(3), while conforming remainder

13 of statute). Moreover, there is no evidence before the Court that Congress was still concerned about

14 constitutional deficiencies after it had taken steps to address some ofthe constitutional infirmities found

15 by district courts in the Second Circuit. Rather, it appears that, in amending and reenacting the statute

16 as it did, Congress was concerned with giving the government the broadest powers possible to issue

17 NSL nondisclosure orders and preclude searching judicial review of the same.

18

In Booker, the Supreme Court struck down the judicial review provisions of the Sentencing

19 Reform Act, which provided for de novo review of sentencing departures, and instead inferred

20 "appropriate review standards from related statutory language, the structure of the statute, and the

21 'sound administration ofjustice."' 543 U.S. at 260-61. Here, however, the sorts ofmultiple inferences

22 required to save the provisions at issue are not only contrary to evidence of Congressional intent, but

23 also contrary to the statutory language and structure of the statutory provisions actually enacted by

24 Congress.

25

The government does not directly address the Second Circuit's approach, other than approving

26 the Second Circuit's result in a footnote. See Govt. Oppo. at 20-21 & fn.lO. Instead, the government

27 asserts that this Court should rely on the "canon of constitutional avoidance." See Govt. Oppo. at 20,

28 n. 10 (relying on Gonzales v. Carhart, 550 U.S. 124, 153 (2007) (canon of constitutional avoidance

22

1 applies if a reasonable interpretation of statute can avoid constitutional infirmities)). Here, however,

2 the Court cannot ignore express language in the statute in order to come up with "reasonable

3 interpretations" that would be constitutional.

4

The government also relies on a line of cases where courts accepted limiting constructions

5 offered by the government to avoid striking down content-neutral time, place and manner restrictions 6 on speech. See Govt. Oppo at 20-21, n. 10 (citing Cox v. New Hampshire, 312 U.S. 569, 575 (1941),

7 Stokes v. Madison, 930 F.2d 1163, 1170 (7th Cir. 1991 )). Again, those cases are inapposite to the

8 situation here, where Congress has drafted a very specific statute aimed at preventing speech on a

9 particular subject, and redrafted amendments to it to address identified constitutional deficiencies. In

10 light of the language actually and intentionally used by Congress in amending the statute after it was

11 initially struck down as unconstitutional by two different district courts in the Second Circuit, this Court

12 finds there is no "reasonable construction" that can avoid the constitutional infirmities that have been

13 identified.

14

The Court also finds that the unconstitutional nondisclosure provisions are not severable. There

15 is ample evidence, in the manner in which the statutes were adopted and subsequently amended after

16 their constitutionality was first rejected in Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004) and

17 Doe v. Gonzales, 386 F. Supp. 2d 66 (D. Conn. 2005), that Congress fully understood the issues at hand

18 and the importance ofthe nondisclosure provisions. Moreover, it is hard to imagine how the substantive

19 NSL provisions - which are important for national security purposes- could function if no recipient

20 were required to abide by the nondisclosure provisions which have been issued in approximately 97%

21 of the NSLs issued. 22

23 8. Petitioner's Challenge to the Statute As Applied

24

In light ofthe Court's conclusion that the NSL provisions suffer from significant constitutional

25 defects which cannot be remedied in this forum, and the conclusion that the Court cannot sever the

26 unconstitutional nondisclosure provisions from the substantive NSL provisions, the Court need not reach

27 Petitioner's as-applied challenge to both the nondisclosure provision and the substantive request for

28 information.

23

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CONCLUSION

2

For the reasons discussed above, the Court concludes that the nondisclosure provision of 18

3 U.S.C. § 2709(c) violates the First Amendment and 18 U.S.C. § 35ll(b)(2) and (b)(3) violate the First

4 Amendment and separation of powers principles. The Government is therefore enjoined from issuing

5 NSLs under§ 2709 or from enforcing the nondisclosure provision in this or any other case. However,

6 given the significant constitutional and national security issues at stake, enforcement of the Court's

7 judgment will be stayed pending appeal, or if no appeal is filed, for 90 days.

8

9

IT IS SO ORDERED.

10

11 Dated: March 14, 2013 12

SUSAN ILLSTON United States District Judge

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

24

 
 I.

The NSL Nondisclosure Obligation Is Not Subject

To Freedman .. ....................................... 18

2

2.

Assuming, Arguendo, That The Freedman Test Applies,

3

It Is Satisfied By The NSL Served On Petitioner.............. 20

4

a.

The FBI Has Sought Judicial Review Of The NSL,

Satisfying The Third Freedman Prong................ 21

5

b.

The NSL Served On Petitioner Applied Its Nondisclosure

6

Requirement For Only A Brief

Period Prior To Judicial Review, Satisfying The

7

First Freedman Prong............................. 21

8

c.

Petitioner Lacks Standing To Challenge 18 U.S.c.

§ 3511(b)(2).................................... 21

9

d.

The NSL Nondisclosure Requirement Applied To

10

Petitioner Is Justified.............................. 22

II

V. The Standards Of Judicial Review OfNSLs Under 18 U.S.c. § 3511(b)

Are Constitutional.. ................................................ 23

12

A. The Standards Of Judicial Review In Section 3511 (b) Do Not

13

Violate The First Amendment.. ................................ 24

14

B. The Standards Of Judicial Review Do Not Violate The

Separation-Of-Powers Doctrine................................. 25

15

VI. The Statutory Provision Authorizing The Government To Submit

16

Sensitive National Security Material To The Court Ex Parte and In

Camera Accords With Long-Standing Judicial Practice And The Constitution .. 26

17

VII. The Nondisclosure Provisions Of The NSL Statutes Are Severable........... 27

18

CONCLUSION............................................................... 28

19

20

21

22

23

24

25

26

27

28

Case No. ell 217351

Memorandum in Opposition to Petition to Set Aside National Security Letter

11

2

TABLE OF AUTHORITIES

3 CASES

PAGE(s)

4 AI Haramain Islamic Foundation, Inc. v. U.S. Dept. of Treasury,

585 F. Supp. 2d 1233 (D. Or. 2008) ........................................... 27

5

Alaska Airlines v. Brock,

6

480 U.S. 678 (1987).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 28

7 Alexander v. United States,

509 U.S. 544 (1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 15, 17

8

Ariz. Cattle Growers' Ass'n v. United States Fish & Wildlife,

9

273 F.3d 1229 (9th Cir. 2001)................................................ 25

10 Board of Dirs. of Rotary lnt') v. Rotary Club of Duarte,

481U.S.537(1987)........................................ ................ 11

11

Broadrick v. Oklahoma,

12

413 U.S. 601 (1973)........................................................ 21

13 Buckley v. Am Const'l Law Found,

525 U.S. 182. ................................................ . . . . . . . .. 10,11

14

Buckley v. Valeo,

15

424U.S.l(1976)....................................................... 11,28

16 Butterworth v. Smith,

494 U.S. 624(1990)..................................................... 13,15

17

CIA v. Sims,

18

471 U.S. 159 (1985)........................................................ 24

19 Center for Nat'l Security Studies v. Dep't of Justice,

331 F.3d 918 (D.C. Cir. 2003)............................................. 24,26

20

Cf. Burson v. Freeman,

21

504U.S.191(1992)........................................................ 22

22 Cf. Kamasinski v. Judicial Review Council, 44 F.3d 106 (2d Cir. 1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 14
23

24 Cf. Pharm. Care Mgmt. Ass'n v. Rowe,

429 F.3d 294 (1st Cir. 2005).................................................. 9

25

Cf. United States v. Marchetti,

26

466 F.2d 1309 (4th Cir. 1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 19, 20

27 City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 16
28

Case l','o. C 11 2173 51

Memorandulli in Opposition to Pelilion to Set Aside Sationu! Security Letter

1ll

City of Littleton v. Z.J. Gifts D-4,

541 U.S. 774 (2004)........................................................ 19

2

Cooper v. Dillon,

3

403 F.3d 1208 (l1th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 16

4 Cox v. New Hampshire,

312 U.S. 369 (1941)........................................................ 21

5

Dep't of the Army v. Blue Fox,

6

525 U.S. 255 (1999).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 7

7 Department of the Navy v. Egan,

484 U.S. 518 (1988) ..................................................... , 8,24

8

Detroit Free Press v. Ashcroft,

9

303 F.3d 681 (6th Cir. 2002)................................................. 25

10 Dish Network Corp. v. FCC,

636 F.3d 1139 (9th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 16

11

Doe v. Ashcroft,

12

334 F. Supp. 2d at 522 (same in NSL context). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 14,22

13 Doev. Holder,

703 F. Supp. 2d 313 (S.D.N.Y. 2010).......................................... 27

14

Doe v. Mukasey,

15

549 F.3d 861 (2d Cir. 2008)............................................. 14, 15, 17

16 FW/PBS, Inc. v. City of Dallas,

493U.S.215(l990)........................................................ 18

17

First Am. Coalition v. Judicial Review Bd.,

18

784 F.2d 467 (3d Cir. 1986).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 14

19

Forsyth County v. Nationalist Movement,

20

505 U.S. 123(1992)........................................................ 23

21 Freedman v. Maryland,

380 U.S. 51 (1965)...................................................... passim

22

Full Value Advisors v. S.E.c.,

23

633 F.3d 1101 (D.C. Cir. 2011) ............................................ , 9,10

24 Glickman v. Wileman Bros. & Elliot,

521 U.S. 457 (1997)........................................................ 10

25

Global Relief Found. v. O'Neill,

26

315 F.3d 748 (7th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 26

27 Gonzales v. Carhart, 550 U.S. 124 (2007)........................................................ 20
28

Case No. C II 217351

Memorandum in Opposition to Petition to Set Aside .\'atiol1a/ Security Letter

IV

Haig v. Agee,

453U.S.280(1981)......................................................... 8

2

Hoffman-Pugh v. Keenan,

3

338 F.3d 1136 (lOth Cir. 2003)............................................. " 14

4 Holder v. Humanitarian Law Project,

130 S. Ct. 2705 (2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 11, 24

5

Holy Land Found. for Relief & Dev. v. Ashcroft,

6

333 F.3d 156 (D.C. Cir. 2003) .............................................. " 27

7 Jifry v. FAA,

370 F.3d 1174 (D.C. Cir. 2004) ............................................. " 27

8

Kasza v. Browner,

9

133 F.3d 1159 (9th Cir. 1998).............................................. " 27

10 Kingsley Intern. Pictures Corp. v. SUNY Regents,

360 U.S. 684 (1959) ...................................................... " 19

11

Landmark Comm. v. Virginia,

12

435 U.S. 829 (1978)...................................................... " 16

13 Lehman v. Nakshian,

453 U.S. 156 (1981)......................................................... 7

14

Lujan v. Defenders of Wildlife,

15

504 U.S. 555 (1992) ...................................................... " 22

16 McGehee v. Casey,

718 F.2d 1137 (D.C. Cir. 1983)......................................... 17,19,24

17

McIntyre v. Ohio Elections Comm'n,

18

514 U.S. 334 (1995)..................................................... 10,11

19 Mohamed v. Jeppesen Dataplan, Inc.,

579 F.3d 943 (9th Cir. 2009)............................................... " 27

20

Morales v. Daley,

21

116 F. Supp. 2d 801 (S.D. Tex. 2000)........................................... 9

22 Murphy v. Waterfront Comm'n of New York Harbor,

378 U.S. 52 (1964).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 9

23

NAACP v. Alabama ex reI. Patterson,

24

357 U.S. 449 (1958).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 11

25 In re NSA Telecom. Records Litig.,

633 F. Supp. 2d 949 (N.D. Cal. 2009)......................................... 26

26

National Council of Resistance of Iran v. Dep 't of State,

27

251 F .3d 192 (D.C. Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 27

28

Case ]1,'0. C 11 1173 51

Memorandum ill Opposilion 10 Pelilioll to Set Aside National Securit\' LettC'r

v

New York Times v. United States,

403 U.S. 713 (1971).................................................. 15,17,24

2

Niemotko v. Maryland,

3

340 U.S. 268(1951) ........................................................ 23

4 People's Mojahedin Org. of Iran v. Dep't of State,

327 F.3d 1238 (D.C. Cir. 2003)............................................... 27

5

Pollard v. FBI,

6

705 F.2d 1151 (9th Cir. 1983)................................................ 27

7 Postscript Enterprises v. City of Bridgeton,

905 F.2d 223 (8th Cir. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 21

8

Prescott v. United States,

9

973 F.2d 696 (9th Cir. 1992).................................................. 6

10 Roberts v. United States Jaycees,

468 U.S. 609(1984) ........................................................ 11

II

Rounds v. Oregon State Bd. of Higher Educ.,

12

166 F.3d 1032 (9th Cir. 1999)................................................ 10

13 S. Or. Barter Fair v. Jackson County,

372 F.3d 1128 (9th Cir. 2004) .............................................. " 23

14

Seattle Affiliate of Oct. 22nd Coalition v. City of Seattle,

15

550 F.3d 788 (9th Cir. 2008)................................................. 20

16 Seattle Times Co. v. Rhinehart,

467 U.S. 20 (1984)...................................................... passim

17

Shuttlesworth v. City of Birmingham,

18

394U.S.147(1969)........................................................ 23

19 Stokes v. City of Madison,

930 F.2d 1163 (7th Cir. 1991).............................................. " 21

20

In Re Subpoena to Testify,

21

864 F.2d 1559 (lIth Cir. 1989)............................................. " 14

22

Thomas v. Chicago Park District,

23

534 U.S. 316 (2002)................................................ " 18,21,23

24 United States v. Diaz,

491 F.3d 1074 (9th Cir. 2007)................................................ 25

25

United States v. Ott,

26

827F.2d473 (9thCir. 1987)................................................. 27

27 United States v. Santa Maria, 15 F.3d 879 (9th Cir. 1994)................................................ " 20
28

Case No. C 11 2173 51

Memorandum ill Oppositio/l 10 Petitio/l to Set Aside Satiollai Securit)· Ll!lter

VI

United States v. Sherwood,

312 U.S. 584 (1941)......................................................... 7

2

United States v. Sindel,

3

53 F.3d 874 (8th Cir. 1995)................................................... 9

4 United States v. United States District Court,

407 U.S. 297 (1972).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 22

5

United States v. Wunsch,

6

84 F.3d 1110 (9th Cir. 1996)................................................. 20

7 W.V. State 3d. ofEduc. v. Barnette, 319 U.S. 624 (1943).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 9
8

9 FEDERAL STATUTES

10 2 U.S.c. § 1407(d)............................................................. 25

11 5 U.S.c. § 706(2).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 25

12 7 U.S.c. § 1508(3)(U)......................................................... 25

13 12 U.S.c. §§ 203(b)(I)........................................................ 25

14 12 U.S.c. § 3414........................................................... 4, 12

15 15 U.S.c. §§ 1681u-1681v...................................................... 4

16 12 U.S.c. § 3420(b)........................................................... 15

17 15 U.s.c. § 78/(k)(5).......................................................... 25

18 15U.S.C.§168Iu............................................................ 12

19 15 U.S.c. § 1681v............................................................ 12

20 18U.S.C.§793 .............................................................. 17

21 18 U.s.c. § 794.............................................................. 17

22 18 U.S.c. § 798. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 17

23 18 U.S.c. §251 1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 15

24 18 U.s.c. § 2709.......................................................... passim

25 18 U.S.c. § 3511. ......................................................... passim

26 31 U.S.c. § 5326. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 15

27 50 U.S.c. § 436............................................................ 4, 12

28 50 U.s.c. § 1802(a)(4)(A)...................................................... 12

Case No. C I I 2173 SI

Memorandum in Opposition to Petition to Set Aside National Security Letter

VII

50 U.S.c. §§ 1842(d).......................................................... 15

2

50 U.S.c. § 186J(d)(2). .................................................... 12,15

3

RULES AND REGULATIONS

4

28 C.F .R. § 17.17........................................................... " 3

5

Exec. Order No. 12333 §§ 1.14(a), 3.4(a) ............................................ 3

6

46 Fed. Reg 59941 (Dec. 4, 1981)............................................... " 3

7

Federal Rule of Criminal Procedure 6(e)............................................ 15

8

H. Rep. No. 99-690(1) at 15, 18, reprinted in 1986 U.S.C.C.A.N. 5341, 5345 ........... 12,14

9

MISCELLANEOUS

10

Office of the Inspector General, A Review of the FBI's Use o[National Security Letters:

11

Assessment of Corrective Actions and Examination ofNSL Usage in

2006, p. 6 (March 2008). .................................................... 8

12

13

14

IS

16

17

18

19

20

21
22

23

24

25

26

27

28

Case ,va C II ]17351

Memorandum in Opposilion ro Pelilion 10 Sel Aside Suliollol Security Letlcr

Vlll

accepted the burden of seeking judicial review of the NSL within a reasonable time

2 (approximately 30 days) if petitioner objected to it.

3

Likewise, petitioner's arguments that the statutory standards of review in § 3511(b)

4 violate the First Amendment and the separation-of-powers doctrine are without merit. The

5 standards are substantially the same as those that courts have developed in related contexts to

6 review government restrictions on the disclosure of national security infonnation. They reflect

7 the basic institutional differences between the executive and judicial branches in assessing the

8 risks to national security posed by the disclosure of sensitive infonnation. Nor does the

9 separation-of-powers doctrine prevent Congress from prescribing the appropriate standard of

10 review, even where that standard is deferential. Similarly, § 3511(e) merely allows the

11 government to submit classified and sensitive national security infonnation ex parte and in

12 camera, a procedure that courts have long sanctioned.

13

Finally, even if the Court were to accept petitioner's invitation to expand its review

14 beyond the only waiver of sovereign immunity at issue here, and it were to accept petitioner's

15 unfounded arguments that some portion of the NSL statutes is unconstitutional, that portion

16 should be severed from the remainder of Sections 2709 and 3511.

17

For all of these reasons, the Court should deny the petition to set aside the NSL.

18

BACKGROUND

19 I. 20

Statutory Background
A. National Security Letters

21

The President of the United States has charged the FBI with primary authority for

22 conducting counterintelligence and counterterrorism investigations in the United States. See

23 Exec. Order No. 12333 §§ 1. 14(a), 3.4(a), 46 Fed. Reg 59941 (Dec. 4,1981). The FBI's

24 experience with national security investigations has shown that electronic communications playa

25 vital role in advancing terrorist and foreign intelligence activities and operations. See Classified

26 Declaration of Mark F. Giuliano, Assistant Director of the FBI for the Counterterrorism Division,

27 to be submitted ex parte and ill camera to the Court pursuant to 18 U .S.c. § 3511 (e) and 28

28

Case No. C 11 2173 SI

Memorandllm in Opposition to Petitioll to Set Aside National Security Letter

3

C.F.R. § 17.17.1 Accordingly, pursuing and disrupting, e.g., ten'orist plots often requires the FBI

2 to seek infonnation relating to electronic communications.

3

Title 18 U.S.c. § 2709 was enacted by Congress 25 years ago to assist the FBI in

4 obtaining such infonnation. Section 2709 empowers the FBI to issue an NSL, a type of

5 administrative subpoena. Several other federal statutes also authorize government authorities to

6 issue NSLs in connection with counterintelligence and counterterrorism investigations. See 12

7 U.S.c. § 3414(a)(5); 15 U.S.c. §§ 1681u-1681v; 50 U.S.c. § 436. Subsections (a) and (b) of

8 § 2709 authorize the FBI to request "subscriber infonnation" and "toll billing records

9 infonnation," or "electronic communication transactional records," from wire or electronic

10 communication service providers. Section 2709 does not authorize the FBI to seek the content of

II any wire or electronic communication. In order to issue an NSL, the Director of the FBI, or a

12 senior-level designee, must certify that the infonnation sought is "relevant to an authorized

13 investigation to protect against international terrorism or clandestine intelligence activities ...."

14 Id. § 2709(b)(1 )-(2). When an NSL is issued in connection with an investigation of a "United

15 States person," the same officials must also certify that the investigation is "not conducted solely

16 on the basis of activities protected by the first amendment ...." Id.

17

B. Confidentiality of National Security Letters

18

Counterintelligence and counterterrorism investigations are long-range, forward-looking,

19 and prophylactic in nature; e.g., the government aims to disrupt terrorist acts against the United

20 States before they occur. Guiliano Dec!. ~ 9. Because these investigations are directed at

21 individuals or groups taking efforts to keep their own activities secret, it is essential that targets

22 not learn that they are the subject of an investigation. Id. ~~ 38-40. If targets learn that their

23 activities are being investigated, they can be expected to take action to avoid detection or disrupt

24 the government's intelligence gathering efforts. Id. '137. Likewise, knowledge about the scope

25 or progress of a particular investigation allows targets to detennine the FBI's degree of

26

IThe government will file under seal and serve on petitioner a redacted version of

27 Assistant Director Giuliano's declaration that does not contain classified information or other sensitive law enforcement information that cannot be shared with petitioner, and Attachment C

28 hereto is an unclassi fied summary of the declaration.

Case No. C 11 217351

Memorandum in Opposition to Petition to 5et Aside .Vationa! 5ecurin' Letter

4

IV. The Nondisclosure Provision Of The NSL Statute, 18 U.S.c. § 2709(c), Is Validly Applied To Petitioner.
2 The nondisclosure requirement of the NSL that petitioner challenges here is neither
3 unconstitutional nor anomalous. Congress repeatedly has recognized the need for secrecy when
4 conducting counterintelligence and counter-terrorism investigations, and each of the several
5 statutes allowing issuance ofNSLs includes a nondisclosure provision similar to 18 U.S.C.
6 § 2709(C).3 As Congress has explained, "the FBI could not effectively monitor and counter the
7 clandestine activities of hostile espionage agents and terrorists if they had to be notified that the
8 FBI sought their ... records for counterintelligence investigations," and the "effective conduct of
9 FBI counterintelligence activities requires such non-disclosure." H. REP. No. 99-690(1) at IS, 18,
10 reprinted in 1986 U.S.C.C.A.N. 5341, 5345 (regarding enactment of 12 U.S.c. § 3414(a)(5)).
II Thus, Congress also has imposed similar nondisclosure requirements in connection with the use
12 of other investigative techniques apart from NSLs in national security investigations. 4
13 As explained below, the nondisclosure requirement applied to petitioner here is no less
14 proper than the confidentiality requirements described above. It complies with the First
IS Amendment and survives any properly-applied scrutiny because it is narrowly tailored to serve
16 the paramount governmental and public interest in national security.
17

18

19

20 3 See 12 U.S.c. § 3414(a)(l) (requests from certain government authorities for financial

21 records); 12 U.s.c. § 3414(a)(5) (FBI requests to financial institutions for financial records of
customers); 15 U.S.c. § 1681 u (FBI requests to consumer reporting agencies for records seeking 22 identification of financial institutions and other identifying inforn1ation of consumers); 15 U .S.c.

23

§ 1681 v (requests to consumer reporting agencies for consumer reports and all other information in consumers' files); 50 U.s.c. § 436(b) (requests to financial institutions or consumer reporting

24 agencies for financial infonnation and consumer reports needed for authorized law enforcement
investigation, counterintelligence inquiry, or security detennination). 25

4See 50 U.S.c. § 1842(d)(2)(B) (pen register or trap and trace device for foreign 26 intelligence and counter-terrorism investigations); 50 U .S.c. § 1861 (d)(2)( order for production of

27 tangible things in connection with national security investigations); 50 U.S.c. § 1802(a)(4)(A) (electronic surveillance to intercept forei,gn intelligence infonnation); 50 U.S.c. § 1822(a)(4)(A)

28 (physical search for foreign intelligence information).

Case .vo. C / / ;; /73 Sf

Memorandum ill Opposition to Petition to Set Aside Sationai Seeurit)' Letter

12

A. The Government May Validly Require That Private Parties Not Disclose Information Gained Through Participation In An Official Investigation.
2
The critical need for secrecy in national security investigations explained above provides 3
the explanation and justification for the nondisclosure requirement of the NSL served on 4
petitioner. When relevant infonnation is in the hands only of third parties, requests from the 5
govemment for the infonnation unavoidably notify those parties of the investigation and give 6
them knowledge to which they were not previously privy. In these circumstances, the best way 7
to prevent the investigation from being compromised is to obligate the private party not to 8
disclose information about the investigation that it has leamed through its own participation.
9 Numerous judicial decisions make clear that restrictions on a party's disclosure of
10
infomlation obtained through participation in confidential proceedings stand on a finner 11
constitutional footing than restrictions on the disclosure of infonnation obtained through 12
independent means. In Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984), the Supreme Court 13
upheld the constitutionality of a judicial order that prohibited parties to a civil suit from 14
disclosing sensitive infonnation obtained through pretrial discovery. In rejecting a First 15
Amendment challenge to the order, the Court noted that the parties "gained the infonnation they 16
wish to disseminate only by virtue of the trial court's discovery processes," which themselves 17
were made available as a matter of legislative grace rather than constitutional right. 467 U.S. at 18
32. The Court found that "control over [disclosure of] the discovered infonnation does not raise
19 the same specter of ... censorship that such control might suggest in other situations." Jd.
20 The Supreme Court relied on this distinction again in Butterworth v. Smith, 494 U.S. 624
21 (1990), where the Court held that Florida could not constitutionally prohibit a grand jury witness
22
from disclosing the substance of his testimony after the tenn of the grand jury had ended. In so
23 holding, the Court distinguished Rhinehart on the ground that "[h]ere ... we deal only with [the
24 witness's] right to divulge infonnation of which he was in possession before he testified before
25
the grand jury, and not information which he may have obtained as a result of his participation in
26 the proceedings of the grand jury." Jd. at 632; id. at 636 (Scalia, J., concurring) ("[q]uite a
27 different question is presented ... by a witness' disclosure of the grand jury proceedings, which
28

Case.'I'o. C 112173 S1

Memorandum ill Opposition 10 Petitioll to Set Aside .Yationai Seeuritl' Letter

13

is knowledge he acquires not 'on his own' but only by virtue of being made a witness.").s

2

Section 2709(c) is analogous to the grand jury and other investigatory nondisclosure

3 provisions discussed above. Indeed, 18 U.S.c. § 2709 is intended explicitly to mirror grand jury

4 subpoena powers in many key respects. See H. REP. No.1 07-236(1) at 61-62 (Congress sought to

5 "hannonize" § 2709 "with existing criminal law where an Assistant United States Attorney may

6 issue a grand jury subpoena for all such records in a criminal case. "). In Doe v. Ashcroft, a case

7 considering the facial constitutionality of 18 U.S.c. § 2709(c), the court concluded that "[t]he

8 principle that Rhinehart and its progeny represent is directly applicable" to § 2709 because "[a]n

9 NSL recipient or other person covered by the statute learns that an NSL has been issued only by

10 virtue of his particular role in the underlying investigation." 334 F. Supp. 2d 471,519 (S.D.N.Y.

11 2004), vacated on other grolin ds , Doe v, Gonzales, 449 F.3d 415 (2d Cir. 2006); see also id: at

12 518 (the "laws which prohibit persons from disclosing infonnation they learn solely by means of

13 participating in confidential government proceedings trigger less First Amendment concerns

14 tha[n] laws which prohibit disclosing infonnation a person obtains independently."). And in Doe

15 v. Mukasey, a subsequent appeal in that litigation, the Second Circuit held that "[t]he

16 nondisclosure requirement of subsection 2709(c) is not a typical prior restraint or a typical

17 content-based restriction warranting the most rigorous First Amendment scrutiny." 549 F.3d

18 861, 877 (2d Cir. 2008).6 The Mukasey court declined to detennine the standard of review

19
5The Circuit Courts of Appeal likewise have upheld similar nondisclosure requirements 20
based on this principle. See Hoffrnan-Pugh v. Keenan, 338 F.3d 1136, 1140 (lOth Cir. 2003) ("a
21 [constitutional] line should be drawn between infonnation the \vitness possessed prior to becoming a witness and infonllation the witness obtained through her actual participation in the
22 grand jury process"; upholding statute prohibiting disclosure of, inter alia, infonllation sought by
23 prosecution in grand jury); In Re Subpoena to Testify, 864 F.2d 1559, 1562 (11th Cir. 1989) (similar); First Am. Coalition v, Judicial RevieH' Ed:, 784 F.2d 467, 479 (3d Cir. 1986) (en bane)
24 (state may prohibit witnesses and other persons "from disclosing proceedings taking place before" a judicial misconduct investigation board). Cf Kamasinski v. Judicial Review Council,
25 44 F.3d 106,110-12 (2d Cir. 1994).

26

61n Mukasey, the Second Circuit did not fully accept the analogy between the NSL

27 nondisclosure requirement and those in proceedings in which "interests in secrecy arise from the nature of the proceeding," such as grand juries, because "the nondisclosure requirement of

28 subsection 2709(c) is imposed at the demand of the Executive Branch under circumstances where

Case /,,'0 C II 2173 Sf

Memorandum ill Oppositiol1 to Petitio)) to Set Aside Saliol7oi S!'curifl' Lell!'r

14

applicable whether strict scrutiny or something less '"exacting''' -- because § 2709(c) survived

2 either level of scrutiny on its face, 549 F.3d at 878,

3

Likewise, this Court need not decide whether strict scrutiny or a lesser standard applies to

4 the NSL at issue here: it easily satisfies either standard, As discussed below, the nondisclosure

5 requirement of the NSL here is no more restrictive than the nondisclosure provisions upheld in

6 the cases above, and is justified by a far more compelling purpose,

7

B. The Nondisclosure Requirement Of The NSL Served On Petitioner Is Not A

Classic Prior Restraint And Does Not Warrant The Most Rigorous Scrutiny.

8

As the Second Circuit held, the nondisclosure obligation imposed on petitioner here "is

9

not a typical prior restraint or a typical content-based restriction[,]" Mukasey, 549 F,3d at 877,

10

Because the NSL restricts limited information obtained only by participation in a confidential

11

investigation, it does not "raise the same specter of censorship" as other restrictions, Rhinehart,

12

467 U,S, at 32, Petitioner urges the Court (BL at 6) to apply the most stringent review available,

13

drawing from the high-water mark First Amendment protections outlined in New York Times v,

14

United States, 403 U,S, 713 (1971), and Freedman v, Mwyland, 380 U,S, 51. But the NSL

15

nondisclosure requirement does not "warrant[] the most rigorous First Amendment scrutiny,"

16

Mukasey, 549 F,3d at 877,

17

"The doctrine of prior restraint originated in the common law of England, where prior

18

restraints of the press were not pennitted, but punishment after pUblication was," Alexander v,

19

United States, 509 U,S, 544, 553 (1993), The Supreme Court has recognized two types of classic

20

21 secrecy might or might not be warranted, depending on the circumstances alleged to justify such secrecy," 549 F,3d at 877, But for all the often-obvious reasons discussed above why national
22 security investigations require secrecy, those interests likewise inhere "from the nature of the
proceeding" in this context. Id. Thus, by requiring that the FBI make a case-by-case 23 detennination before applying the nondisclosure requirement, the statute provides greater
24 protection than what is constitutionally required, not less. In Butterworth, for example, the Supreme Court did not require a prosecutor to make a case-by-case determination of whether
25 "witnesses would be hesitant to come forward" or "less likely to testify fully and frankly" absent
Federal Rule of Criminal Procedure 6( e), nor whether "those about to be indicted would flee, or 26 would try to influence individual grand jurors to vote against indictment." 494 U,S, at 630, Nor
27 do the nondisclosure provisions of wiretap, pen register, and similar laws require the government to make a case-by-case detennination of the scope of required confidentiality, See 18 U,S.c. §§
28 2511, 3123(d); 50 USc. §§ 1842(d), 1861(d); 12 U.S.c. § 3420(b); 31 U,S,c. § 5326.

Case ,Va. C 11 2173 Sf

MellloralldulIl ill Oppositioll to Petitioll to Set Aside ,Vational Securitr Letter

15

infonnation, would be a prior restraint. See, e.g., 18 U.S.C. §§ 793-794, 798.~

2

The second category of prior restraints takes the fonn of court injunctions against certain

3 speech or speakers. See Alexander, 509 u.s. at 550. Here, this Court has not imposed an order

4 prohibiting petitioner from making the disclosures prohibited by the NSL. Pursuant to 18 U.S.c. 5 § 3511, the government has sought such an Order enforcing the nondisclosure requirements of

6 the NSL and § 2709(c) on petitioner. See Civ. No. 11-2667 SI (N.D. Cal.) (under seal). 7 However, as discussed supra, the Supreme Court has recognized that court orders prohibiting 8 infonnation acquired only by virtue of participation in an official investigation do not raise the 9 same concerns as other injunctions on speech. Rhinehart, 467 U.S. at 32. At a minimum, the

10 nondisclosure requirement of the NSL is not "the kind of classic prior restraint that requires

11 exacting First Amendment scrutiny." Id. at 33; Mlikasey, 549 F.3d at 877 (NSL nondisclosure

12 requirement does not "warrant[] the most rigorous First Amendment scrutiny.").

13

For all of these reasons, the "exacting" standard to which "censorship," Rhinehart, 467

u.s. 14 U.S. at 32, was held in New York Times Co. v.

does not apply here. Moreover, this case is

15 fundamentally different from NeB' York Times, in which the government sought to enjoin the 16 New York Times and the Washington Post from publishing the Pentagon Papers, a "classified 17 study" discussing the evolution of the United States' involvement in the Vietnam War. ld. at

18 714. An individual NSL, unlike the nation's war policy, is not a matter of general public

19 concern. Furthermore, Justice Stewart's concurrence recognizes that situations exist such as this 20 one where the First Amendment would not bar an "injunction against publishing infonnation

21 about government plans or operations." Id. at 731. While the infonnation in any given NSL is of 22 interest to few people, disclosure ofNSL infonnation may reveal government plans or operations

23 and may lead to widespread harm.

24

25

~Whenever the executive branch classifies any item of inforn1ation under Executive Order

13292, it thereby prohibits the disclosure of the infonnation by the infonnation's recipients. See 26 18 U.s.c. § 793 (providing criminal penalties for improper disclosure of classified infonnation).

27 The classification of inforn1ation itself, like a categorical prohibition of disclosure with threat of subsequent punishment, does not "constitute[] a prior restraint in the traditional sense." See

28 McGehee v. Casey, 718 F.2d 1137, 1147 (D.C. Cir. 1983).

Case No. C J / 2 J 73 Sf

Memorandum in Opposition to Petition to Set Aside NUliol1u/ Security Leller

17

C. The NSL Nondisclosure Requirement Is Accompanied By Ample And Adequate Procedural Protections.
2 Premised on its faulty assumption that the NSL nondisclosure obligation is a classic prior
3 restraint subject to strictest scrutiny, petitioner analogizes the nondisclosure requirement to the
4 type of speech licensing scheme that the Supreme Court examined in Freedman v, Maryland,
5 380 U.S. 5l. But Freedman does not apply here. Moreover, even under Freedman, petitioner's
6 challenge to the NSL would fail because the NSL is accompanied by Freedman's protections.
7 1. The NSL Nondisclosure Obligation Is Not Subject To Freedman.
8 Freedman involved the constitutionality of a "censorship statute" that made it unlawful to
9 exhibit any motion picture unless and until the film was "submitted [to] ... and duly approved
10 and licensed by" a state Board of Censors. 380 U.S. at 735 & n.2. The statute directed the Board
II of Censors to "approve and license such films ... which are moral and proper," and to
12 "disapprove such as are obscene, or such as tend ... to debase or cOffilpt morals or incite to
13 crimes." Id. at 52 n.2. The statute did not place any time limit on the Board's deliberations, nor
14 did it provide any "assurance of prompt judicial detennination" regarding the Board's decisions.
15 Id. at 59-60. There were two primary concerns with this scheme not present here. First,
16 "[b]ecause the censor's business is to censor," institutional bias may lead to the suppression of
17 speech that should be pern1itted. Id. at 57. Second, "ifit is made unduly onerous, by reason of
18 delay or otherwise, to seek judicial review, the censor's detern1ination may in practice be final."
19 Id. at 58. The "procedural safeguards" adopted by the Supreme Court were "designed to obviate
20 the[se] dangers" by minimizing the burdens of administrative and judicial review. Id.
21 Thus, Freedman requires that: "'(1) any [administrative] restraint prior to judicial review
22 can be imposed only for a specified brief period during which the status quo must be maintained;
23 (2) expeditious judicial review of that decision must be available; and (3) the censor must bear
24 the burden of going to court to suppress the speech and must bear the burden of proof once in
25 court.'" Thomas v. Chicago Park District, 534 U.S. 316, 321 (2002) (quoting FW/PBS, Inc. v.
26 City ofDallas, 493 U.S. 215, 227 (1990) (plurality opinion); Freedman, 380 U.S. at 58-60.
27 The scope and origin of the infonnation at issue is profoundly different here than in
28

Case No C JJ 2173 51

Memorandum ill Oppositioll /0 Petitiun to Set Aside SationaJ Securin' Letter

18

annually." Mem in Support of Petition at 11. Here, petitioner was free to seek judicial review of

2 the nondisclosure requirement at any time, see 18 U.S.c. § 3511 (b), and chose to do so promptly.

3 By statute, if an NSL recipient waits until one year after receipt of the NSL to challenge a

4 nondisclosure requirement and a court rejects the challenge, then the recipient must wait one year

5 before bringing another action for review. Id. § 3511 (b)(2). But § 3511 (b)(2) does not now

6 apply to petitioner, which filed its petition under § 3511 (b)( 1). Petitioner cannot satisfy the basic

7 requirement that it has suffered or is about to suffer a cognizable injury from the provision it is

8 challenging. See, e.g., Lujall v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).11

9

d. The NSL Nondisclosure Requirement Applied To Petitioner Is

Justified.

10

Perhaps because it is not in a position to dispute the need for nondisclosure of the fact and

11

contents of the NSL it received in this case before the Court, petitioner seeks to challenge the

12

underlying statutory standards in a hypothetical case not before the Court. Br. at 15-16. But,

13

again, 18 U.S.c. § 3511(b) is a limited waiver of sovereign immunity that proscribes the outlines

14

of a petition for review. As discussed in this memorandum and established by Assistant Director

15

Giuliano's Declaration, the nondisclosure requirement applied to petitioner is well-tailored to

16

serve the compelling government interest in national security.

17

18

11 Even if petitioner had standing, the waiting period is justified and appropriate in this

context. The one-year period only becomes relevant when the recipient has already

19 unsuccessfully challenged an NSL that was issued at least one year beforehand. 18 U.S.c.

§ 3511 (b)(2). When a court rejects a request for disclosure under § 3511 (b), it is obviously 20 legitimate to require the recipient to wait for some period before renewing its claim; the First

21 Amendment can hardly obligate the court and the FBI to take up the nondisclosure question again immediately after the initial judicial decision. Congress concluded that, when the reasons for

22 nondisclosure have already been found to remain applicable more than one year after the issuance

of the NSL, the additional passage ofless than twelve months is unlikely to result in a significant 23 change. That conclusion is a constitutionally permissible one. Cf Burson v. Freeman, 504 U.S.

24 191, 210 (1992) (plurality opinion) (difference between legislature's designated 100-foot "campaign-free zone" and proposed alternative of 25-foot buffer zone "is a difference only in

25 degree, not a less restrictive alternative in kind"). Moreover, national security investigations

differ fundamentally from nonnal criminal investigations, and this difference affects the duration 26 of secrecy necessary -- long-range investigations may require long-range secrecy. See United

27 States v. United States District Court, 407 U.S. 297, 322 (1972) (discussing differences between national security and typical criminal investigations); Doe v. Ashcroft, 334 F. Supp. 2d at 522
28 (same in NSL context).

Case So. C 11 2173 Sf

Memorandllm in Opposition to P<!Iitiol1 to Set Aside ,'.,'''tiona1 Security Letter

22

Moreover, the statutory standards do not, as petitioner claims, vest the FBI with 2 "unfettered discretion." As described above, the nondisclosure requirement is triggered only 3 where, as here, the Director of the FBI or his appropriate designee certifies that disclosure of the

4 FBI's request for infonnation "may result [in] a danger to the national security of the United
5 States, interference with a criminal, counterterrorism, or counterintelligence investigation,
6 interference with diplomatic relations, or danger to the life or physical safety of any person." 18
7 U.S.c. § 2709(c). These are appropriately narrow and objective standards. 12
8 V. The Standards Of Judicial Review OfNSLs Under 18 U.S.c. § 3S11(b) Are Constitutional.
9 The federal courts have consistently given deference to reasoned judgments by the
10 Executive Branch regarding the potential hanns to national security that may result from
II disclosures of classified (and even non-classified) information about counterintelligence and
12 counterterrorism programs. The standards of judicial review in 18 U.S.c. § 3511(b) merely
13

14

12In evaluating regulations governing the time, place, and manner of expression, the

15 Supreme Court has held that a law that leaves the regulation of speech "to the whim of the administrator" runs afoul of the First Amendment. Forsyth County v. Nationalist /v/ovement, 505

16 U.S. 123, 133 (1992). An ordinance may not pennit officials "to roam essentially at will,

dispensing or withholding pennission to speak, assemble, picket, or parade according to their 17 own opinions regarding the potential effect of the activity in question on the 'welfare,' 'decency,'

18 or 'morals' of the community," Shuttlesworth v. City ofBirmingham, 394 U.S. 147, 153 (1969). Thus, an administrator must be required to rely on "narrowly drawn, reasonable, and definite

19 standards." Niemotko v. Mmyland, 340 U.S. 268,271 (1951). The standards of § 2709(c) meet

this test. The Supreme Court has held that similar criteria, such as "health and safety" or "life 20 and health," are sufficiently "specific and objective" to protect against licensing decisions based

21 on the content or viewpoint of the licensee's expression. Thomas, 534 U.S. at 324; accord S. Or. Barter Fair v. Jackson Countv, 372 F.3d 1128, 1138, 1141 (9th Cir. 2004) ("We do not have to

22 pretennit reasonable health and safety regulations on the chance that a public official might abuse

his discretion and trample on First Amendment rights."). The § 2709(c) standards, including 23 "life or physical safety," are equally specific and objective. They also include: "danger to the

24 national security of the United States"; "interference with a criminal, counterterrorism, or counterintelligence investigation"; or "interference with diplomatic relations." 18 U.S.c.

25 § 2709(c)(l). See Thomas, 534 U.S. at 322-23 ("[a] licensing standard which gives an official

authority to censor the content of a speech differs toto coelo from one limited by its tenus ... to 26 considerations of public safety and the like." (quotation marks omitted)). These are objective

27 criteria, unlike those in Forsyth County, where a local official was empowered to impose whatever fee he deemed "reasonable," without reference to "any objective factors." 505 U.S. at

28 133. They are defined as narrowly as possible, and as narrowly as those upheld in Thomas.

Case No. C II ] 173 Sf

Memorandum in Oppositioll 10 Pelilion 10 Set Aside ,Vi/liollai SecurilY Leller

23

codify this well-established and well-founded deference; they do not, as petitioner asserts, violate

2 either the separation of powers or the First Amendment.

3

A. The Standards Of Judicial Review In Section 3S11(b) Do Not Violate The

First Amendment.

4

The primary rationale for judicial deference in this context is the underlying difference in

5

institutional capacities between the Judicial Branch and the Executive Branch in making

6

judgments about the risks to national security posed by the disclosure of particular confidential

7

infom1ation. Federal courts have traditionally exercised great restraint in reviewing decisions by

8

the govemment to withhold information in the interest of national security. See, e.g., Egan, 484

9

U.S. at 529; CIA v. Sims, 471 U.S. 159, 179 (1985); Center for Nat '/ Security Studies v. Dep 't of

10

Justice, 331 F.3d 918,927 (D.C. Cir. 2003); McGehee, 718 F.2d at 1147-49. For their part, "the

11

Executive departments responsible for national defense and foreign policy have unique insights

12

into what adverse effects might occur as a result of [disclosure of] a particular classified record."

13

McGehee, 718 F.2d at 1148. "It is abundantly clear that the govemment's top counterterrorism

14

officials are well suited to make this predictive judgment," whereas "the judiciary is in an

15

extremely poor position to second-guess the executive's judgment in this area of national

16

security." Center for Nat 'I Security Studies, 331 F.3d at 927,928. Thus, as the Supreme Court

17

recently held, "when it comes to collecting evidence and drawing factual inferences in th[e] area

18

[of national security], 'the lack of competence on the part of the courts is marked,' and respect

19

for the Govemment's conclusions is appropriate." HLP, 130 S. Ct. at 2727.

20

Petitioner suggests that New York Times, 403 U.S. 713, forecloses judicial deference

21

under § 3511 (b). New York Times is distinguishable for the reasons discussed above at pp. 17-

22

18. As noted, the NSL here is not a classic prior restraint like the one at issue in New York

23

Times. In addition, it is far from clear that New York Times rests on a judicial rejection of the

24

executive branch's assessment of national security risks. See, e.g., id. at 731 (White & Stewart,

25

JJ., concurring) ("I am confident" that "revelation of these documents will do substantial damage

26

to public interests").

27

Section 3511 (b) pennits courts to modify or set aside a nondisclosure requirement where

28

Case No. C 11 217351

Memoranduill in Oppositioll to Petition to Set Aside Xutiollai Security Letter

24

there is "no reason to believe" that disclosures may endanger national security, interfere with

2 criminal, counterterrorism, or counterintelligence investigations, interfere with diplomatic

3 relations, or endanger lives and physical safety. The "no reason to believe" standard is consistent

4 with the standards that courts have employed to assess similar risks in other cases, both statutory

5 and constitutional. It can be interpreted and has been interpreted in related contexts to be

6 "interchangeable with and conceptually identical to the phrases 'reasonable belief and

7 'reasonable grounds for bel ieving. '" United States v. Diaz, 491 F.3d 1074, 1077 (9th Cir. 2007).

8 Thus, the "no reason to believe" standard does not foreclose a court from evaluating the

9 reasonableness of the FBI's judgments. 13

10

B. The Standards Of Judicial Review Do Not Violate The Separation-Of-Powers

Doctrine.

11

In addition to arguing that the standards of judicial review in § 3511 (b) violate the First

12

Amendment, the petitioner also argues that "[b]y purportedly restricting the authority of the

13

courts to a particular standard of review ... the statute violates the separation of powers," Br. at

14

17. This argument is meritless: Congress routinely mandates deferential standards for judicial

15

review of Executive Branch decisions. The most well-known example is the deferential

16

"arbitrary and capricious" standard of review prescribed by the Administrative Procedure Act.

17

See 5 USc. § 706(2); Ariz. Cattle Grmvers' Ass 'n v. United States Fish & Wildl(fe, 273 F.3d

18

1229,1235-36 (9th Cir. 2001) ("The arbitrary and capricious test is a narrow scope of review....

19

The court is not empowered to substitute its judgment for that of the agency."). See also, e.g., 2

20

U.S.c. § 1407(d); 7 U.s.c. § 1508(3)(B)(iii)(Il); 12 U.S.c. §§ 203(b)(1), 1817(j)(5); 15 U.S.c.

21

§ 78l(k)(5). No decision has ever suggested that the separation-of-powers doctrine entitles courts

22

to disregard an otherwise constitutional standard of review prescribed by Congress. As long as

23

24 [3Nor would the application of strict sCnItiny (assuming, arguendo, that it applies)
25 preclude judicial deference to executive assessments of national security hanns. See, e.g.,
Detroit Free Press v. Ashcrojt, 303 F.3d 681, 707 (6th Cir. 2002) (holding national security26 related deportation nIle was subject to strict sCnItiny under the First Amendment while
27 "defer[ring] to [the government's] judgment. These agents are certainly in a better position [than the court] to understand the contours of the investigation and the intelligence capabilities of
28 terrorist organizations.").

Case Nu. C II :: 173 51

Memorandum in Opposition to Petition to Set Aside ,\'atiol1a/ Securitr Letter

25

the standard of review is not inconsistent with some substantive constitutionallimitation, such as

2 the First Amendment, Congress has plenary authority to prescribe the standard ofjudicial review.

3

Nor does adhering to Congress' deferential standard of review in § 3511 (b) compel courts

4 to abdicate their institutional responsibilities under Article III:

5

In so deferring, we do not abdicate the role of the jUdiciary. Rather, in

undertaking a deferential review, we simply recognize the different roles

6

underlying the constitutional separation of powers. It is within the role of the

executive to acquire and exercise the expertise of protecting national security. It is

7

not within the role of the court to second-guess executive judgments made in

furtherance of that branch's proper role.

8 Center for Nat '[ Security Studies, 331 F.3d at 932. The same reasoning applies here. 14

9

VI. The Statutory Provision Authorizing The Government To Submit Sensitive National

10

Security Material To The Court Ex Parte and In Camera Accords With Long-

Standing Judicial Practice And The Constitution.

II

The NSLjudicial review statute, 18 U.S.c. § 3511, provides that "[i]n all proceedings

12

under this section, the court shall, upon request of the government, review ex parte and in

13

camera any government submission or portions thereof, which may include classified

14

infonnation." Id. § 3511 (e). Petitioner argues that this is "deeply inconsistent with the

15

separation of powers," prevents it from "meaningfully participating in judicial review," and is

16

"inconsistent with strict scrutiny." Br. at 20. These arguments are wholly without merit.

17

First, even assuming that strict scrutiny applies, the Court is perfectly capable of

18

examining classified evidence ex parte and under the appropriate standard.

19

Second, courts have unifonnly rejected constitutional challenge to statutes like § 3511 (e)

20

that authorize the government to submit national security infonnation ex parte. E.g., Global

21

ReliefFound. v. 0 'Neill, 315 F.3d 748, 754 (7th Cir. 2002) (also stating "[t]he Constitution

22

would indeed be a suicide pact ... if the only way to" enforce a national security statute "were to

23

reveal infonnation that might cost lives."); III re NSA Telecom. Records Litig., 633 F. Supp. 2d

24

25
14Petitioner lacks standing to object to the separate provision of § 3511(b) that gives 26 conclusive effect to a good-faith certification that disclosure may endanger national security or
27 interfere with diplomatic relations only if the certification is made by the Director of the FBI, the Attorney General, the Deputy Attorney General, or an Assistant Attorney General. This
28 provision does not apply here; other designated officials made the certification in this case.

Case .va. C II 2173 Sf

MemorandulIl in Opposition to Petition to Set Aside ;Vationai Security Leiter

26

949, 971-72 (N .D. Cal. 2009) (rejecting Due Process challenge to similar statute). Likewise,

2 courts considering challenges to NSLs have reviewed sensitive government infonnation in

3 camera and ex parte. E.g., Doe v. Holder, 703 F. Supp. 2d 313 (S.D. N. Y. 2010).

4

Even in the absence of an express statutory authorization like § 3511(e), courts have

5 consistently recognized (and exercised) their "inherent authority to review classified material ex

6 parte, in camera as part of [their] judicial review function." Jifiy v. FAA, 370 F.3d 1174, 1182

7 (D.C. Cir. 2004).15 The reasons for this rule are manifest: "under the separation of powers ...

8 the Executive Branch has control and responsibility over access to classified infonnation and has

9 [a] 'compelling interest' in withholding national security infonnation from unauthorized

10 persons." People's Mojahedin Org. ofIran v. Dep 't ofState, 327 F.3d 1238, 1242 (D.C. Cir. II 2003) (citation omitted). This paramount interest outweighs any countervailing interest of 12 petitioner in a due process balancing analysis. See Nat 'I Council ofResistance oflran, 251 F.3d

13 192, 207 (D.C. Cir. 2001) (,,[T]hat strong interest of the government clearly affects the nature ...

14 of the due process which must be afforded petitioners.").

15

Section 3511 (e) merely codifies the government's ability to submit classified or sensitive

16 infonnation ex parte and in camera; it fully comports with the Constitution.

17 VII. The Nondisclosure Provisions Of The NSL Statutes Are Severable

18

As noted, facial invalidation of an NSL statute is outside the scope of relief available

19 where, as here, a court considers a petition brought under 18 U.S.c. § 3511. Nonetheless, should

20

21

15 See also, e.g., Mohamed v. Jeppesen Dataplan, Inc., 579 F.3d 943,948 n.8 (9th Cir.

2009) (noting with approval that the government had made classified declaration available to the

22 court for ex parte, in camera review), vacated upon rehearing en banc on other grollnds, 614

F.3d 1070 (9th Cir. 2010); Kasza v. Brmi'l1er, 133 F.3d 1159, 1170 (9th Cir. 1998) (upholding 23 assertion of State Secrets Privilege based on in camera and ex parte review of classified

24 government declarations); United States v. Ott, 827 F.2d 473,476-77 (9th Cir. 1987) (district court's ex parte consideration of sealed FBI affidavit did not violate due process); Pollard v. FBI,

25 705 F.2d 1151, 1153 (9th Cir. 1983) (where the claimed exemption is national defense or foreign

policy secrecy, it is "not necessary that additional reasons be recited for excluding Pollard's 26 attorney from the in camera proceedings"); Holy Land Found. for Relief & Dev. v. Ashcrofi, 333

u.s. 27 F.3d 156, 164 (D.C. Cir. 2003); National COllncil ofResistance ofIran v. Dep 't ofState, 251 F .3d 192,208-09 (D.C. Cir. 2001); Al Haramain Islamic Foundation, Inc. v. Dep't of

28 TreasUl)" 585 F. Supp. 2d 1233, 1258-60 (D. Or. 2008).

Case No. C 11 ] 173 Sf

MemoralldulJl ill Oppositioll to Petitioll to Set Aside Satiollal Security Letter

27

 
 -.:

1

TABLE OF AUTHORITIES

2

CASES

3 Alexander v. United States,

509 U.S. 544

............................................................................................................... 7

4

Ayotte v. Planned Parenthood ofNorthern New England,

5

546 U.S. 320 (20@6) ............................................................................................................. 22

6 Bates v. City ofLittle Rock,

361 U.S. 516 (1900) ............................................................... ............................................. 22

7

Blount v. Rizzi,

8

400 U.S. 410 (1971) ............................................................................................................. 12

9 Buckley v. Am. Constitutional Law Found.,

525 U.S. 182 (19?9) ............................................................................................................. 21

,
!

10

Buckley v. Valeo,

11

424 U.S. 1 (1976) ................................................................................................................. 23

I

i

!
I

12 City ofLakewood v. Plain Dealer Pub. Co., 486 U.S. 750 (1988) ....................................................................................................... 14, 16

! 1

13

Doe v. Ashcroft,

l ,

14

334 F.Supp.2d 411 (S.D.N.Y.2004), vacated by Doe v. Gonzales 449 F.3d 415 (2nd.

Cir., May 23, 2006) ...........................................:................................................................... 23

J I

15 Doe v. Gonzales,

i

16

386 F.Supp.2d 66 (D.Conn.2005) ......................................................................................... 23

I

I ,
I
I

17 Doe v. Mukasey, 549 F. 3d 861 (2d Cir. 2008) .........................................................................................passim
18

I
I
I

Forsyth County, Georgia v. The Nationalist Movement,

19

505 U.S. 123 (1992) ............................:.....:.......................................................................... 15

i

i

20 Freedman v.Maryland, ; 380 U.S. 51 (1965) ....................................... ................................................................... 9, 12

I
I

21

FW/PBS, Inc. v. City oflJal/as,

22

493 U.S. 215 (1990) ........................................... ...................................;............................... 9

!

23 Gibsonv. Florida Legisl(ltive Investigation Comm., 372 U.S. 539 (19('j3) ............................................................................... :............................. 22

oj

24

1 ,

Legal Services Corp. v. Velazquez,

i

25

531 U.S. 533 (2001) .............................................................................................................. 20

I

1 I

26 Loving v. United States,
517 U.S. 748 (1996) ............................................................................................................. 16

1

27

Marbury v. Madison,

28

. 1 Cranch 137, 5 U.S. 137,2 L.Ed. 60 (1803) .............................................. ........................ 17

Case No. _ _ __

MFA IN SUPPORT OF PETITION TO SET ASIDE NATIONAL SECURITY LETTER AND NONDISCLOSURE REQUIREMENT

...

1 Marks v. United States,

430 U.S. 188 (1977) ...........................................;................................................................... 7

1

2

I

McIntyre v. Ohio Elections Comm 'n,

1

3

514 U.S. 334 (1995) ...............................................................................;....................... 17,21

, , !

j

1
i

4 Minnesota v. Mille Lacs Band ofChippewa Indians, 526 U.S. 172 (1999) ............................................................................................................. 22

I
I

5

NAACP v. Alabama,

6

357 U.S. 449 (1958) ............................................................................................................. 21

,,!

!

7 NAACP v. Button,

I i
l

371 U.S. 415 (1963) ...................................................................... .......................................20
8
Nebraska Press Ass 'n v. Stuart,

1

9

427 U.S. 539 (1976) ........................................................................................................... 7,8

1 !

10 New York Times v. United States (Pentagon Papers),
403 U.S. 713 (1971) ...........................................................................................................7,8

1
1

11

!

Organization for a' Better Austin v. Keefe,

1

12

402 U.S. 415 (1971) ............................................................................................................... 7

\

1

13 Pierce v. Underwood,

487 U.S. 552 (1988) ............................................................................................................. 12

J

14

f

Plaut v. Spendthrift

Inc.,

I

15

514 U.S. 211,219 (1995) ..................................................................................................... 14

16 R.A. V. v. City ofSt. Paul"

J

505 U.S. 377

....;...................................................;.................................................... 17

I

17

!
I
i

Reno v. ACLU,

18

521 U.S. 844 (1997) ................................................................. ...................................... 12, 18

I

I

19 Seattle Affiliate ofOct. 22nd Coal. to Stop Police Brutality, Repression & Criminalization of
a Generation v. City ofSeattle,

I

20

550 F.3d 788 (9th Cir. 2008) .......................................................................................... 14, 16

21 Shuttlesworth v. City ofBirmingham,

j

394 U.S. 147

............................................................................................................. 15

l

22

Stenberg v. Carhart,

1
I

23

530 U.S. 914 (20@0) ..............:.............................................................................................. 14

'I
I

24 Thomas v. Chicago ParkDistrict,

1

534 U.S. 316 (2002) ............................................................................................................... 9

'1
I

25

l

.Turner Broadcasting System, Inc. v. FCC,

l
1

26

512 U.S. 622 (1994) ............................................................................................................. 18

27 United Pub. Workers ofAm. v. Mitchell,
330 U.S. 75 (1947) ................................................................................................................ 14
28

Case No. _ _ __

MPA IN SUPPORT OF PETITION TO SET ASIDE NATIONAL SECURITY LEITER AND NONDISCWSURE REQUIREMENT

'" 1

1 United States v. Booker,

543 U.S. 220 (2005) ....................................................................................................... 11, 12

2

United States v. Playboy Entertainment Group, Inc.,

3

529 U.S. 803 (2000) ....................................................................................................... 18, 19

4 United States v. Raines,

362 U.S. 17(1960) .......................................................................................................... 11, 13

!

5

I
i

United States v. Thirty-Seven Photographs,

i

6

402 U.S. 363 (1971) .................................................................................................. 12, 13, 15

i

!
I

7 Virginia v. American Booksellers Assn., 484 U.S. 383 (1988) ....................................................................................................... 11, 13

I

8 9

i

United States Code

STATUTES AND CODES

.I

10

Title 18, section 2705(a) ....................................................................................................... 27

i j

Title 18, section 2705(b)........................................................................................................ 27

i
I
I

11

Title 18, section 2709 ....................................................................................................... 1, 25

Title 18, section 2709(a)-(b) .................................................................................................. 8

12

Title 18, section 2709(b)................................................................................................. 22, 28

!
1
1

Title 18, section f709(b)( 1) ...........................................................................................passim

13

Title 18, section 2709(b)(2) ................................................................................ 21,24,25,28

Title 18, section 2709(c) ................................................................................................passim

1

14

Title 18, section 3511(a) ....................................................................................................... 27

I

Title 18, section 3511(b)...............................;................................................................passim

15

Title 18, section 3511(b)(2) .................................................................................................. 19

Title 18, section 3511(b)(2)-(3) .........................................;'.................................................. 11

I

16

Title 18, section 3511(b)(3) ................................................................................................... 22

Title 19, section 1305(a) ....................................................................................................... 13

I ,

17

,OTHERAUTHORITIES

I

18

I

Department of Justice, Inspector General, A Review ofthe FBI's Use ofNational Security

1

19

Letters: Assessment ofCorrective Actions and Examination ofNSL Usage in 2006

(March 2008), available at http://www.usdoj.gov/oigispecialls0803b/final.pdf

20

("2008 OIG Report") ......................................................................:............................... 4, 5, 6

I I

21 Department of Justice, Inspector General, A Review ofthe Federal Bureau ofInvestigation's

i

Use ofNational Security Letters (March 2007), available at

I

22

http://www.usdoj.gov/oigispecialls0703b/final.pdf(''2007 OIG Report") ....................4, 5, 6

, I

23 Department of Justice, Inspector General, A Review ofthe Federal Bureau ofInvestigation's

Use ofExigent Letters and Other Informal Requestsfor Telephone Records (January

, j

24

2010), available athttp://www.justice.gov/oig/special/slOOlr.pdf(''2010 OIG

Report") .......................................................................................................................... 4, 5, 6

! ,

25

I

S. 193, USA PATRIOT ACf Sunset Extension Act of20ll, available at

Ij,

26

http://thomas.loclgov/cgi-binlbdqueryJz?dI12:SNOOI93..................................................... 12 .

i

1
1

27

1
I

28

I

i

l

. Case No. _ _ __

MPA IN SUPPORT OF PETITION TO SET ASIDE NATIONAL

"'7n""n'"fC'nn..,•. '

SECURITY LETTER AND NONDISCLOSURE REQUIREMENT

PATRIOT Act was passed, to 39,000 in 2003, after the PATRIOT Act relaxed the

1

standards required to issue an NSL, to more than 48,106 NSL requests in 2006 alone.3

2007010 Report 120; 2008 OIG Report 107.4

2

• The possible intelligence violations reported within the FBI between 2003 and 2006

3

included improperly authorized NSLs, improper requests under NSL statutes, and

unauthorized information collection through NSLs. 2007 010 Report 66-67; 2008 OIG

4

Report 138-143.

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19
ld. 20

• The FBI's improper practices included requests for information based on First Amendment protected activity including acquisition of reporters' and news organizations' telephone toll billing records and other calling activity information. 2010 OIG Report 6,89-122.5
• Pursuant to Executive Order, all intelligence agencies, including the FBI, must report intelligence violations to the Intelligence Oversight Board ("lOB"), an independent, civilian intelligence-monitoring board that reports to the President. Despite this, the review of 2003-2005 investigative files at four FBI field offices Jjevealed that 22% contained one or more possible violations that had never been reported, 2007 OIG Report 78, representing an overall possibleiviolation rate of7.5 percent, 2008 OIG . Report 76. According to the OIG, these findings suggested ''that a significant number of NSL-related possible [JOB] violations throughout the FBI have not been identified or reported by FBI personne1." March 2007 01G Report 84.
• The FBI issued hundreds ofNSLs for "community ofinterest" or "calling circle"
information to obtain multiple toll records in response to an individual NSL. 20rO OIG
Report 75. These were issued without the mowledge or approval of authorized NSL signers and without any determination that :the telephone numbers were relevant to authorized national security investigations.Jd. at 60, 75-76.
• The FBI dismissed many NSL infractions as mere "administrative errors," a substantial number of which ''involved violations of internal controls designed to ensure appropriate supervisory and legal review of the use ofNSL authorities." 2008 OIG Report 100. The OIG expressed concern that the FBI's attitude toward these matters "diminishes their seriousness and fosters a perception that compliance ,with FBI policies government the FBI's use of its NSL autho'rities is annoying paperwork."

21

22 3 The report distinguishes NSL

from NSL

because a single NSL letter may

23 contain multiple requests for information. 2007 OIG Report 120. For example, the FBI issued nine NSL letters in one investigation requesting subscriber information on 11,100 different phone

24 numbers. 2007 OIG Report 36.

4 Many of these figures are, unfortunately, only the

best estimate, as the FBI's NSL

25 recordkeeping system was poor during the time perioq covered by the reports, and the available

26

data significantly underestimated the number ofNSL requests that had been made. 2007 OIG Report 34. In fact, the OIG estimated that "approximf/.tely 8,850 NSL requests, or 6 percent of

27 NSL requests issued by the FBI during [2003-2005], were missing from the database." Id. s The OIG stated, "We believe that these matters involved some ofthe most serious abuses of the

28 FBI's authority to obtain telephone records." 2010 OIG Report 285.

Case No. _ _ __

5
MPA IN SUPPORT OF PETITION TO SET ASIDE NATIONAL SECURITY LEITER AND NONDISCLOSURE REQUIREMENT

I
g

5

.,j

1

..:

1

The OIG Reports linked much of the FBI's NSL abuse problem to a lack of oversight

2 within the agency. 2010 OIG Report 213-214, 279-285. Oversight outside of the agency was also

3 lacking. The 010 determined in 2007 that the FBI failed to report nearly 4,600 NSL requests to

4 Congress between 2003 and 2005, almost all ofwhich were issued under section 2709. 2007 OIG

5 Report 33..

6

The OIG Reports also document lack or oversight from the companies receiving the NSLs.

7 For example, telecommunications employees who processed FBI requests for information did not

8 request separate legal process for requests for community of interest records. 2010. OIG Report 59.

9 And in over half of all NSL violations submitted to the Intelligence Oversight Board, the private

10 . entity receiving the NSL either provided more information than requested or turned over 11 information without receiving a valid legal justification from the FBI.6 As one phone company

12 employee who was embedded with FBI stated, ''personally, it wasn't my place to police the

13 police." 2010 010 Report 42.7

14 fiI. ARGUMENT

15

The standards required by the First Amendment are clear and unequivocal and must be

16 applied here to both the prior restraints on speech created by the nondisclosure provisions and

17 under the strict scrutiny standards for both the

provisions and the substantive

18 statutory provisions. Under them, the NSL statute fails.

19

A. . The Nondisclosure Provision of the NSL Statute Constitutes an

20

Unconstitutional Prior Restraint

21 There is no dispute that the nondisclosure proyision of section 2709(c) creates a prior
22 restraint on petitioner, since the NSL prohibits communications that would otherwise occur. See
23

24 6 https://www.eff.org/pages/patterns-misconduct-fbi-:intelligence-violations#ii.

7 While the FBI claims to have taken steps to mitigate the problems discovered by the OIG, the 25 OIG has stated, "[w]e believe it is too soon to conclude whether the new guidance, training, and

26

systems put into place by the FBI in response to our first NSL report will fully eliminate the problems with the use ofNSLs that we identified and that the FBI confirmed in its own reviews.

27 At the same time, we believe that the FBI has made significant progress in addressing these issues and that the FBI's senior leadership is committed to addressing misuse ofNSLs." 2008 OIG Report

28 49.

Case No. _ _ __

6
MPA IN SUPPORT OF PETITION TO SET ASIDE NATIONAL SECURITY LETTER AND NONDISCLOSURE REQUIREMENT

f

.:

1 Alexander v. United States, 509 544, 550 (1993). A prior restraint on free speech is ''the most

2 serious and the least tolerable infiingement on First Amendment rights." Nebraska Press Ass'n v.

3 Stuart, 427 U.S. 539,559 (1976). "Any prior restraint on expression comes to [a court] with a

4 heavy presumption against its constitutional validity," and "carries a heavy burden of showing

5 justification." Organization/or a Better Austin v. Kee/e, 402 U.S. 415, 419 (1971) (internal 6· quotation marks omitted). Accordingly, analysis of the NSL statute starts with prior restraint

7 doctrine.

8

1. The NSL Statute Fails the Pentagon Papers Test for Prior Restraints in the

Context ofNational Security

9

10

The first test for prior restraints, applicable in the context of claims of national security, is

11 New York Times v. United States (Pentagon Papers), 403 U.S. 713 (1971). The Supreme Court, in

12 a briefper curiam decision, denied the United States' :request for an injunction preventing the New

13 York Times and Washington Post frqm publishing the ·contents of a classified'historical study of

14 U.S. policy towards Vietnam, known colloquially as the "Pentagon Papers," on the ground that the

15 government failed to overcome the heavy presumption against the constitutionality of a prior

16 restraint on speech. Under Pentagon Papers, a prior restraint on speech in the context of a

17 government assertion of national security requires that disclosure of the information will "surely

18 result indirect, immediate, and irreparable harm to our Nation or its people." 403 U.S. at 730

19 (Stewart, J. joined by White, J., concurring).8

20

The NSL statute obviously fails this demanding standard. The NSL itself is based on a

21 written certification by the Director of the FBI or his designee that ''the information sought is

22 ·relevant to an authorized investigation to protect against international terrorism or clandestine

23 intelligence activities." 18 U.S.C. § 2709(a)-(b) (emphasis added). The FBI may then prohibit the

24

25 8 The Stewart-White concurrence is the holding o,f the case, because of the six Justices who concurred in the judgment, Justices Stewart and Whfte concurred on the narrowest grounds. See
26 Marks v. United States, 430 U.S. 188, 193 (1977) ("[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the as!sent of five Justices, the holding of the Court
27 may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds") (internal quotation omitted).
28

Case No. _ _ __

7
MPA IN SUPPORT OF PETITION TO SET ASIDE NATIONAL SECURITY LETTER AND NONDISCLOSURE REOUIREMENT

NSL recipient from speaking about the NSL so long as the FBI certifies that a 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." 18 U.S.C. § 2709(c) (emphasis added).

These statutory standards do not even come close to the requirements ofPentagon Papers,

that the speech poses a "specific, articulable risk of direct, immediate and irreparable harm."

Instead of "direct" harm, the statute requires only that the information be "relevant to an

investigation," and there is no mention ofimmediacy or that the harm be irreparable. In the

context of the nondisclosure order, the statute only requires that a "danger" to national security or

"interference" with other activities "may result," with no requirement ofharm, much less direct,

immediate or irreparable harm. Requiring "immediate" harm ensures that prior restraint is the last

resort, that there is no time to pursue "less restrictive alternatives." Nebraska Press, 427 U.S. at

571 (Powell, l, concurring).

Importantly, the Pentagon Papers Court articulated this test in the context of speech that

several justices agreed would cause harm to national security. See Pentagon Papers, 403 U.S. at

763. Justice Stewart concurred with the decision despite being "convinced that the Executive was

correct

with .

respect

to

some

of

the

documents

involved, ."

ld. at 730.

Justice White concurred,

expressing confidence that disclosure ''will do substantial damage to public interests." ld. at 731.

Nonetheless, the Supreme Court refused to allow publication to be enjoined. As Justice Stewart

noted, "I cannot say that disclosure of any of [the documents] will surely result in direct,

immediate, and irreparable damage to our Nation or its people. That being so, there can under the

First Amendment be but one judicial resolution of the issues before us." ld. at 730, see also White,

J. concurrence at 732.

Similarly, the Supreme Court in Nebraska Press recognized that impairment of a

defendant's right to a fair trial is a grave harm to an important interest, but required a showing that

prejudicial pUblicity so affected the community that 12 jurors "could not be found." 427 U.S. at

569; ibid. (harm "not demonstrated with the degree of certainty our cases on prior restraint

require. ").

Case No. _ _ __

8
MPA IN SUPPORT OF PETITION TO SET ASIDE NATIONAL SECURITY LEITER AND NONDISCLOSURE REOmREMENT

J
! I

2. The Statute Lacks Necessary Procedural Safeguards

!

1

, i
l

Section 2709(c) also lacks the procedural protections required ofprior restraints. See

I
,li

2 Freedman v. Maryland, 380 U.S. 51, 85 (1965). In Freedman, the Supreme Court articulated three
3

I !
I

core procedural protections that must exist before expression can be conditioned on government 4
permission: (1) any restraint imposed prior to judicial review must be limited to 'a specified brief

j

5

I
, !

period'; (2) any further restraint prior to a final judicial determination must be limited to 'the 6
shortest fixed period compatible with sound judicial resolution'; and (3) the burden of going to

I

7

I

court to suppre.ss speech and the burden ofproof in court must be placed on the government. Doe v.

I ,

8 Mukasey, 549 F. 3d 861, 871 (2d Cir. 2008) (citing Freedman, 380 U.S. at 58-59; FW/PBS, Inc. v.

I
I

9 City o/Dallas, 493 U.S. 215,227 (1990); Thomas v. Chicago Park District, 534 U.S. 316,321
10

I

(2002». Furthermore, any prior restraint scheme mus.t provide narrow, definite and objective

I
I

11 standards to cabin the government's discretion. See, e.g., FW/PBS, 493 U.S. at 222 (recognizing

I
I

12 that a licensing scheme may be unconstitutional because of lack of procedural safeguard or

I
i

13 unbridled discretion).

14 The statute's failure to provide the process protections required of a prior restraint on
15 speech are multiple and manifest. These failures were the central concerns raised by the Second
16 Circuit in Doe v. Mukasey, although, as described further in section (c), infra, the Mukasey court's

17 attempt to save the statute by rewriting key sections and adding in entirely new requirements,

18 simply went to far.

19

a. The NSL Statute Violates the Third Prong of the Freedman Test. 20
The statute violates the third prong ofFreedman in two ways. First, instead ofrequiring the

21 government to go to court to seek permission to suppress speech, section 2709(c) turns the
22 requirement on its head by allowing issUance ofNSLs without judicial review and instead requiring

23 the recipient of an NSL to petition for an order modifying or setting aside the nondisclosure
24 requirement under 18 U.S.C. § 3511(b).
ZS
The effects of this transposition are profound, especially in the NSL context, because the

26 entity with the burden to seek judicial review is not the person whose ·information is sought-it is a
27 third party that may have no interest in challenging the NSL, or may lack the resources or the facts

28

Case No. _ _ __

9 MPA IN SUPPORT OF PETITION TO SET ASIDE NATIONAL SECuRITY LETTER AND NONDISCLOSURE REOUIREMENT

" 1 necessary to challenge the NSL.9 As noted above at page 7, in over half of all NSL violations
2 submitted to the Intelligence Oversight Board, the private entity receiving the NSL either provided

3 more information than requested or turned over information without receiving a valid legal

4 justification from the FBI. 10

5

Second, the statute fails to place the burden on the government when the matter is brought

6 to court and deprives the Court of any meaningful authority to exercise its constitutional oversight

7 duties. Instead, the Court may only modify or set aside the nondisclosure requirement if it finds

8 there is no reason to believe that disclosure may endanger national security, interfere with an

9 investigation or diplomatic relations, or endanger any person. 18 U.S.C. § 3511(b).1l

10

In determining whether the disclosure may endanger national security, interfere with an

11 investigation or diplomatic relations, or endanger any person, the Court is not pennitted to evaluate

12 the facts, but instead is required to blindly accept the FBI's representations: if, at the time ofthe

13 petition, the FBI "certifies that disclosure may endanger the national security of the United States

14 or interfere with diplomatic relations, such certification shall be treated as conclusive unless the

15 court finds that the certification was made in bad faith:" 18 U.S.C. § 351 1(b)(2)-(3). And, of

16 course, there is no procedure for factual review by the Court wherein the Court could even

17 determine whether such certification was made in bad faith. Petitioners agree with the Second

18 Circuit that this presumption of conclusiveness is unconstitutional. Muko.sey, 549 F.3d at 884 (''the

19 conclusive presumption clause of subsections 3511(b)(2) and (b)(3) must be stricken").

20

b. The Statute Violates the FirSt Prong ofFreedman

21

The nondisclosure provisions of the NSL statute also fail Freedman's first prong by failing

22 to provide that the prior restraint lasts only for a "specified briefperiod." The statute instead

23 9 As described further infra at section (c), petitioners agree with the Second Circuit's finding that

24 the statute violated Freedman's third prong. Mukasey; 549 F.3d at 881. But as also described

infra, Petitioners disagree with the Second Circuit's

that the statute survives scrutiny

25 with a judicially invented (but not required) "reciprocal notice procedure," which shifts the burden

26

to the provider to object to the NSL. Mukasey, 549 at 883-84. 10 https://www.eff.orglpageslpattems-misconduct-fbj:-intelligence-violations#ii.

27 II In Mukasey, the Second Circuit also acknowledged this problem, but, again, as described further infra at section (c) improperly rewrote the statute in attempt to avoid the necessary

28 conclusion that the statute is unconstitutional as written.

Case No. _ _ __

10
MPA IN SUPPORT OF PETITION TO SET ASIDE NATIONAL SECURITY LETTER AND NONDISCLOSURE REOUIREMENT

I
)

>{ . 1

. '

i .

i
J

1 imposes an indefinite restraint, subject only to a petition by the provider that can only be brought

i

I
.i

2 annually. 18 U.S.C. §2709(c).12

3

c. Mukasev Found the Same Constitutional Infirmities But Went

Too Far in Rewriting the Statute

J

4

As noted above, the Second Circuit in Mukasey v. Doe held that the statute failed these

1

5

settled constitutional tests. Unfortunately, while acknowledging the problems, and their

6

J

seriousness, the court attempted to save the statute through a radical reconstruction that included

I

7 adding significant provisions that Congress did not. While the court's efforts are understandable-
8

I
I

a court should be chary ofdeclaring statutes unconstitutional-the Mukasey Court went too far in
9 rewriting the statutes to save them from their constitutional defects.
10

For instance, in addressing the Freedman requirement that the government initiate judicial

11

1

review of the gag order, the court held that the statute'was unconstitutional: "in the absence of

I
I

12 ., Government-initiated judicial review, subsection 3511 (b) is not narrowly tailored to confonn to

I ,
!

13 First Amendment procedural standards." Mukasey, 549 F.3d at 881. It then initially recognized
14

I
I
I

that it was "beyond the authority of a .court to 'interpret' or 'revise' the NSL statutes to create the
15 constitutionally required obligation of the Government to initiate judicial review of a nondisclosure
16

requirement." Id. 549 F.3d at 883. Yet the court went on to do just that, determining that if the

17
government were to assume such aD. obligation vollJ!ltarily, sections 2709(c) and 3511(b) would

18

survive constitutional challenge. Id. at 884.

19

A court may construe a statute narrowly, if possible, to uphold it as constitutional. Virginia

20

v. American Booksellers Assn., 484 U.S. 383,397 (1988). A court also may sever parts of a statute

21

that would render it unconstitutional if it is possible to do so while preserving the legislature's

22

original vision, United States v. Booker, 543 U.S. 220, 258-59 (2005), or limit the applications of a

23

statute to those that would be constitutional, United States v. Raines, 362 U.S. 17,20-22 (1960).

24

But a court cannot save a statute by construing it to contain limitations that Congress did

25

not include in the first place. See American Bookseller,s Assn., 484 U.S. at 397. As the Supreme

26

27 12 Again, the Mukasey Court attempted to resolve this First Amendment violation by inventing a complicated timing structure as part of the "reciprocal' notice procedure" that the government could
28 ''voluntarily'' adopt. See infra section (c).

Case No. _ _ __

·11
MPA IN SUPPORT OF PETITION TO SET ASIDE NATIONAL SECURITY LETTER AND NONDISCLOSURE REOUIREMENT

1
j
I

J

1

1

1 Court noted, "this Court 'will not rewrite a ... law to confonn it to constitutional requirements.'"

2 Reno v. ACLU, 521 U.S. 844, 884-85 (1997) (alteration in original) (quotation omitted»; Blount v.

\

3 Rizzi, 400 U;S. 410,419 (1971) (declining to construe a statute to deny administrative order any

1

4 effect until judicial review is completed because "it is for Congress, not this Court, to rewrite the'

, 1

1 ,

5 statute"). 13

I

I

J

6

United States v. Thirty-Seven Photographs, 402 U.S. 363 (1971), a case the Mukasey court

I , j
! ;

7 relied on heavily, is not to the contrary. In that case, the Supreme Court considered the

\

8 constitutionality of 19 U.S.C. § 1305(a), a statute authorizing customs agents to seize obscene

i
I

9 materials at the border. Id. at 366. The statute required the government to seek judicial review of

I ,

10 the seizure, but provided no time limits for the initiation or completion of those proceedings. Id.

, I
I I

11 The Court determined that the lack of time limits threatened to render section 1305(a) wholly

,

I

12 unconstitutional, and so decided to impose time limitS as required by Freedman. Id. at 368-69.

!

13 Critically, the statute's legislative history reflected a strong congressional intent that judicial

14 review be completed promptly. Id. at 370-72. Furthermore, Congress had specifically directed that

15 the entire statute should not be found unconstitutionai ifits application in some cases was found to

16 be unlawful. Id. at 372. Ultimately, the Court did not consider itself to be rewriting the statute at

17 all: "We do nothing in this case but construe [section] l30S(a) in its presentform, fully cognizant

18 that Congress may re-enact it in a new fonn specifying new time limits, upon whose

19 constitutionality we may then be required to pass." Id: at 374 (emphasis added).14

20

The same cannot be said for the Second Circuit's approach in Mukasey. The Mukasey court

21 determined that sections 2709(c) and 3511(b) "are unconstitutional to the extent that they

a

22 nondisclosure requirement without placing on the Government the burden of initiating judicial

23 review of that requirement," and recognized the lack of a "specified brief period" required by

24 13 Congress is in fact considering amendments to the:NSL statute to fix some of the problems

25 identified in Mukasey. See e.g. S. 193, USA PATRIOT ACT Sunset Extension Aot of2011;

available at http://thomas.loc.gov/cgi-binlbdguerylz?d112:SN00193.

26 14 The Supreme Court encountered a similar

in Booker, 543 U.S. 220. In that case,

the Court severed the judicial review provision of tb¢ Sentencing Refonn Act and decided that it

27 should "infer[]" a new standard of review. [d. at 260. The Court considered a three-factor test in

Pierce v. Underwood, 487 U.S. 552 (1988) as well as Congress's "initial and basic senteIicing

28 intent" before settling on an ''unreasonableness'' standard. [d. at 260-64.

Case No. _ _ __

12
MPA IN SUPPORT OF PETmON TO SET ASIDE NATIONAL
SECURITY LEITER AND NONDISCWSURE REOUIREMENT

J
i

i.

1

"'-

I

l
1

1 Freedman's first prong. It then found that it did not have judicial authority to "interpret". or

l

2 "revise" those provisions to impose such a requirement on the government. 549 F.3d at 883.

I

3

Yet instead of taking these observations to their rightful conclusion and requiring Congress

11,

4 to fix the constitutional infirmities in the statute, the court proposed a reciprocal notice procedure,

1

1

5 along with time limits consistent with Freedman, for the government to initiate judicial review of a

I

, I

6 nondisclosure order, explaining:

I

7

lfthe Government uses the suggested reciprocal notice procedure as a means of

I

initiating judicial review, there appears to be nb impediment to the Government's

I
I

8

including notice of a recipient's opportunity to;contest the nondisclosure

requirement in an ·NSL. Ifsuch notice is given,' time limits on the nondisClosure

9

requirement pending judicial review, as reflected in Freedman, would have' to be

applied to make the review procedure constitutional. We would deem it to be within

10

our judicial authority to conform subsection 2109(c)to First Amendment

requirements, by limiting the duration of the riondisclosure requirement, absent a

11

ruling favorable to the Government upon judidjal review, to the 10-day period in

which the NSL recipient decides whether to cqntent the nondisclosure requirement,

12

the 30-period in which the Government consid,ers whether to seek judicial review,

and a further period of 60 days in which a cow;t must adjudicate the merits, unless

13

special circumstances warrant additional time.

14 ld. (emphases added) (citing Thirty-Seven Photographs, 402 U.S. at 373-74). The court then went
15 on to set forth "several options for completing the reciprocal notice procedure," ld. at 884, while

16 noting the process is ultimately a matter of government discretion: ''We leave it to the Government

17 to consider how to discharge its obligation to initiate Judicial review." ld. The Second Circuit

18 concluded:

19

In view of these possibilities, we need not

the entirety ofthe

nondisclosure requirement of subsection 2709(c) or the judicial review provisions of

20

subsection 3511 (b). Although the conclusive presumption clause of subsections

351 1(b)(2) and (b)(3) must be stricken, we invhlidate subsection 2709(c) and the

21

remainder ofsubsection3511(b) only to the exltent that they fail to provide for

Government-initiated

The Government can respond to this partial

22

invalidation ruling by using the suggested reciprocal notice procedure. With this

procedure in place, subsections 2709(c) and 3511(b) would survive First

23

Amendment challenge.

24 ld.

25

The Second Circuit's attempt to save sections 2709(c) and 3511.(b) goes fat beyond cases

26 like Virginia v. American Booksellers Association, 484 U.S. 383, and United States v. Raines, 362
27 u.s. 17, which have limited statutes to avoid constitutional infirmities. A discretionary procedure

28 or limitation voluntarily adopted by the govemmentcannot cure a statute's facial invalidity

Case No.

__

13
MPA IN SUPPORT OF PETITION TO SET ASIDE NATIONAL SECURITY LETTER AND NONDISCLOSURE REOUIREMENT

" .

1 because nothing birids the government to observe the voluntary practice. See, e.g., Stenberg v.
2 Carhart, 530 u.s. 914 (2000) (court is ''without power to adopt a narrowing construction ofa state

3 statute [offered by the government] unless such a construction is reasonable and readily apparent.")

4 (quotation omitted); Seattle Affiliate ofOct. 22nd Coal. to Stop Police Brutality, Repression &

5 Criminalization ofa Generation v. City ofSeattle, 550 F.3d 788, 799 (9th Cir. 20(8) (voluntarily

6 adopted factors regarding the application of city's parade licensing statute did not actually cabin

7 discretion of police unless "'the limits the city claims are implicit in its law [are] made explicit by

8 textual incorporation, binding judicial or administrative construction, or well-established

9 practice. "') (quoting City ofLakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 770 (1988».15

10 .

Second, the court's reliance on Thirty-Seven Photographs was misplaced. The

11 circumstances surrounding sections 2709(c) and 3511(b) are unlike those that the Supreme Court

12 relied upon to impose judicial review in Thirty-Seven Photographs. There is no indication here that

13 Congress contemplated any notice procedure, much lc;ss the reciprocal notice procedure invented

14 by the Second Circuit with complex, specified deadliIies. Nor, as described further infra at section

15 C, is there any indication that Congress intended the NSL statutes to survive in the wake ofany

16 unconstitutional applications in some situations. Congress knows how to write savings provisions,

17 and it did not.

18

The Second Circuit attempted to address these; conspicuous absences by concluding that "if

19 Congress had .understood that First Amendment considerations required the goverrunent to initiate

20 judicial review of a nondjsc1osure requirement and precluded a conclusive certification by the

21 Attorney General," it "would surely have wanted" the.statutes to remain in: force even if certain

22 IS Once the Second Circuit depended on the FBI to voluntarily assume obligations that the court

23 lacked the power to impose by construction, the remainder ofthe decision became an impennissible advisory opinion, because the court declaring the constitutionality of facts not

24 presented in an actual case. See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 219 (1995)

(invalidating scheme allowing for legislative revision 9fjudgments and holding that the judicial 25 power is "to render dispositive judgments," rulings that "decide" cases, "subject to review only by

26

superior courts in the Article III hierarchy"); see also United Pub. Workers ofAm. 'II. Mitchell, 330 U.S. 75, 89 (1947) ("as is well known the federal courts established pursuant to Article III of the

27 Constitution do not render advisory opinions, For adNdication of constitutional issues concrete legal issues, presented in actual cases, not abstractions are requisite" (internal quotation marks

28 omitted».

Case No. _ _ __

14
MPA IN SUPPORT OF PETITION TO SET ASIDE NATIONAL SECURITY LEITER AND NONDISCLOSURE REOUIREMENT

1 provisions were stricken: Mukasey, 549 F.3d at 885. But the court relied on no evidence to support

2 this supposition, unlike the Supreme Court in Thirty-Seven Photographs.

3

The Second Circuit went too far to reinterpret ,sections 2709(c).and 3511(b). They are

4 facially unconstitutional, and their constitutional infirmities cannot be cured by a complex court-

I

5 created judicial review procedure with which the govenunent need only "voluntarily" comply.

6

d. The NSL Statute's Nondisclosure Provision Violates the First

Amendment as It Fails tel Set Forth ''Narrow. Objective. and

\

7

Definite Standards"

the Discretion ofthe FBI

r

8

The non-disclosure provision of 18 U.S.C. § 2709(c) also must fail because it constitutes a

I

9' licensing scheme that vests in executive officers unfet:tered discretion with which to silence

I

10 speakers about govenunent activities. It allows the govenunent to gag a recipient merely on a

I

11 certification that disclosure ''may result [in] a danger to the national security of the United States,

I

12 interference with a criminal, counterterrorism, or counterintelligence investigation, interference 13 with diplomatic relations, or danger to the life or physical safety of any person." 18 U.S.C. §

I

I

14 2709(c). Without any articulable statutory guidance cabining this executive discretion, the statute

15 cannot survive constitutional scrutiny.

16

In Shuttlesworth v. City o/Birmingham, 394 U.S. 147 (1969), the Supreme Court

17 considered a local ordinance that allowed city officials to refuse a parade permit if''tbe public

18 welfare, peace, safety, health, decency, good' order, morals or convenience" so required. Id. 149-

19 50. Because the ordinance gave city officials ''virtually unbridled discretion and absolute power"

20, to deny a permit, the Court found the ordinance unconstitutional, noting that an ordinance that

21 ''makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the
22 uncontrolled will of an official. .. is an unconstitutional censorship or prior restraint upon the

23 enjoyment of those freedoms." Id. at 150-51.

24

Any statutory licensing scheme must necessarily limit the discretion of the censor to

25 "narrow, objective, and definite standards" to protect

the indiscriminate and unlawful

26 deprivation of First Amendment rights. Id. at 150. As 'the Supreme Court observed in Forsyth
27 County, Georgia v. The Nationalist Movement, 505 U.s. 123, 131 (1992), "if the permit scheme

28 involves the appraisal of facts, the exercise ofjudgment and the fonnation of an opinion by the

Case No. _ _ __

15
sm MPA IN SUPPORT OF PETITION TO ASIDE NATIONAL
SECURITY LETTER. AND NONDISCLOSURE REOUIREMENT

J

I

1

<

I

1 licensing authority, the danger of censorship and of abridgment of our precious First Amendment

I

2 freedoms is too great to be permitted."(citations omitted).

3

. The non-disclosure provision of the NSL statute lacks the "narrow, objective, and definite

4 standards" necessary to limit the exercise of executive authority. Rather, it authorizes an FBI

5 . official to prohibit disclosure of an NSL if that official believes-under his or her own criteria-

6 that disclosure "may result" in, for example, "danger'; to national security or interfere with a

7 counterterrorism investigation. This sort ofunfetteredl discretion in an executive branch official to

8 determine whether speech can occur has repeatedly been struck down by both the Supreme Court

I

9 and the Ninth Circuit. In City a/Lakewood, 486 U.S. at 769, the Supreme Court noted: "it is

!

10 apparent that the face of the ordinance itself contains no explicit limits on the mayor's discretion.

I

11 . Indeed, nothing in the law as written requires the mayor to do more than make the statement 'it is 12 not in the public interest' when denying a permit application." In City a/Seattle, 550 F.3d at 803,

I
I

13 the Ninth'Circuit recently confirmed that an "open-ended standard, combined with the absence of

.1
14 a requirement that officials articulate their reasons or an administrative-judicial review process,

i

15 vests the Seattle Chief of Police with sweeping authority ... The First Amendment prohibits

16 placing such unfettered discretion in the hands of licensing officials.".

17

Moreover, the absence of clear standards allows "post hoc rationalizations" and "the use of

18 shifting or illegitimate criteria" that make it difficult for courts to assess the statute's effects on a

19 case-by-case basis. City a/Lakewood, 486 U.S. at 749. This problem is especially serious in the

20 NSL context, where few cases are ever brought by service providers.

21

3. The Non-Disclosure Provision Violates Scmaration of Powers Principles· as

Reviewing Courts Are Precluded From Applying the Appropriate Level of

22

Review Mandated By the First Amendment

23 The non-disclosure provision of the NSL statute also violates separation ofpowers
24 principles, which bar Congress from assigning to the executive branch a power reserved for the
25
judiciary. "It remains a basic principle of our constitutional scheme ·one branch of the
26 Government may not intrude upon the central prerogatives of another." Loving v. United States,
27 517 U.S. 748, 757 (1996). See also Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 177,2 L.Ed.
28

Case No. _ _ __

16
MPA IN SUPPORT OF PETITION TO SET ASIDE NATIONAL SECURITY LETTER AND NONDISCLOSURE REOUIREMENT

1
;J
J,
',I

'i
l

1 issuance on any basis whatsoever, as long as it is not based solely on a U.S. person's First

i

!
1

2 Amendment activities. 18 U.S.C. §§ 2709(b)(1), (b)(2). NSLs are also not the least restrictive 3 means. As mere administrative tools, they may be issued without any outside review. In contrast,

!

I

4 grand jury subpoenas, which can seek the same information, require grand jury approval. Similarly,

!

, 1
j
l

5 court orders, including those issued under the Foreign Intelligence Surveillance Act, at least

l

6 require judicial approval. Even prior versions of the statute were closer to the constitutional

f

7 standard, requiring that the government show "specific and articulable facts" that the information

8 pertained to the actions ofa foreign power or agent ofa foreign power. 18 U.S.C. § 2709(b)

9 (1994). Such language, raising the burden on the government and limiting the basis on which

10 NSLs could be issued, clearly indicates that Congress could have chosen a less

means of

11 effecting the government's interest. "When a plausible, less restrictive alternative is offered to a

12 content-based speech restriction, it is the Government's obligation to prove that the alternative will

13 be ineffective to achieve its goals." Playboy Entm't Group, 529 U.S. at 816.

14

2. The Non-Disclosure Provision Fails Strict Scrutiny

15

The non-disclosure provision of the NSL statute fails strict scrutiny in two different ways.

16 First, as argued above, infra III.A.2., the statute's failure to adhere to the Freedman procedural

17 safeguards means that it is not narrowly tailored. Mukasey, 549 F.3d at 881 ("in the absence of

18 Government-initiated judicial review, subsection 3511(b) is not narrowly tailored to conform to

19 First Amendment procedural standards.... [and] does not survive either traditional strict scrutiny or

20 a slightly less exacting measure of such scrutiny.").

21

Second, the non-disclosure provision authorizes overly long prior restraints. If the Court

22 decides that the prior restraint is justified, it cannot tailor the duration of the prior festraint to the

23 circumstances. Instead, the prior restraint is permanent unless the gagged provider exercises its

24 right to challenge the non-disclosure obligation once a year, when the government mayor may not

25 re-certify that disclosure would cause an enumerated harm. 18 U.S.C. § 3511(b)(3). Even if the .

26 government knows-or the Court would decide, if presented with the pertinent facts-that the

27 restraint on speech is no longer needed or can be modified, the government has no obligation to

28 notify the Court or the provider or otherwise act to lift or modify the restraint. Because

Case No. _ _ __

19
MPA IN SUPPORT OF PETITION TO SET ASIDE NATIONAL SECURITY LETTER AND NONDISCLOSURE REOUIREMENT

r
, ,

1 investigate U.S. persons "solely on the basis of activities protected by the first amendment," 18

1 ,

2 U.S.C. §§ 2709(b)(1), (b)(2), highlights Congress's awareness of the problem.

1

I

I

3

Courts have long recognized protection under the First Amendment for the right to engage

f

4 in anonymous communication - to speak, read, listen, and/or associate anonymously - as

f

5 fundamental to a free society. The Supreme Court has consistently defended'such rights in a
r

!

6 variety of contexts, noting that "[a]nonymity is a shield from the tyranny of the majority ... [that]

I ,

7 exemplifies the purpose [of the First Amendment] to protect unpopular individuals from retaliation

I

8 ... at the hand of an intolerant society." McIntyre v. Ohio Elections Comm 'n, 514 U.S. 334, 357

I

I

i , ,

9 (1995) (holding that an "author's decision to remain anonymous, like other decisions concerning

!
!

10 omissions or additions to the content of a pUblication, is an aspect of the freedom of speech

!

!

11 protected by the First Amendment").

I

I

12

Similarly, the Supreme Court has long held that compelled disclosure ofmembership lists

i

13 and other associational information may constitute an impennissible restraint on freedom of

!

I

14 association. See NAACP v. Alabama, 357 U.S. 449,462 (1958) (compelled identification violated

15 group members' right to remain anonymous; "[i]nviolability ofprivacy in group association may

16 in many circwnstances be indispensable to preservation of freedom of association").

17

Because the First Amendment protects anonymous speech and association, efforts to use

18 the power ofthe courts to pierce such anonymity are subject to heightened scrutiny, requiring the

19 demonstration of a compelling need and a showing that the demand is narrowly tailored. Courts

20 must ''be vigilant ... [and] guard against undue hindrances to ... the exchange of ideas." Buckley

21 v. Am. Constitutional Law Found., 525 U.S. 182, 192 (1999). The Supreme Court has applied such

22 heightened scrutiny in a variety of context in which anonymous association and expression has

23 been implicated. In McIntyre, 514 U.S. at 347, the Court applied "exacting scrutiny" to strike

24 down a statute that banned the distribution of anonymous political expression, finding that the

25 statute was not "narrowly tailored to serve an overriding state interest." In NAACP v. Alabama, 357

26 U.S. at 464·66, the Court overturned a contempt judgment against the NAACP for its refusal to

27 tum over the identities of its Alabama members as required by a state statute, holding that no

28 compelling need for the list had been demonstrated. In Gibson v. Florida Legislative Investigation

Case No, _ _----,-_

21
MPA IN SUPPORT OF PETITION TO SET ASIDE NATIONAL SECURITY LETfER AND NONDISCLOSURE REOUIREMENT

"

1 provisions of a statute in the face of the unconstitutionality of particular elements of it when "it is 2 evident that the legislature would not have enacted those provisions which are within its power,

3 independently of that which is not." Buckley v. Valeo, 424 U.S. 1, 108 (1976) (citation omitted).

4

Here, there can be only one conclusion: the provisions are not severable. Not only did

5 Congress enact the two sets of provisions together, Congress amended the non-disclosure

6 provisions in an attempt to save the NSL statute (leading to its present fonn) after the initial district

7 court decisions.in the Mukasey litigation held that the non-disclosure provisions were 8 unconstitutional. 16 See Mukasey, 549 F.3d at 866-868. And as Petitioners have shown, the

9 amended non-disclosure provisions were crafted to make it unconstitutionally easy for the FBI to

10 gag providers and unconstitutionallyhard for providets to challenge the gag. Congress's attempt to

11 preserve the FBI's ability to protect the secrecy ofNSLs after multiple judicial invalidations'makes

12 its intent clear, especially when Congress did not include a severability clause.

13

Congress could not have intended the substantive NSL provisions to operate absent the

14 'non-disclosure provisions. Without some secrecy provision, a provider could immediately disclose

15 the fact of the NSL's issuance to the targeted individual or individuals. Even for

16 demands for infonnation from providers that raise no national security concerns, the Stored

17 Communications Act authorizes the'government to obtain judicial non-disclosure orders. 18

18 U.S.C. § 2705(a) (process for delay of notification of existence of government demand); id., §

19 2705(b) (process for preclusion of notice to subject of:government demand). Absent the non-

20 disclosure provisions, however, the NSL statute contains no vehicle that can preserve a more

21 narrowly tailored degree of secrecy consistent with the First Amendment. Accordingly, the

22 substantive NSL provisions cannot be severed from the non-disclosure provisions.

i

23

I

1
1
i

24 16 Doe v. Ashcroft, 334 F.Supp.2d 471, 494-506 (S.D.N.Y.2004), vacated by Doe v. Gonzales 449

I
I

25 F.3d 415 (2nd. Cir., May 23,2006) (finding substantive provisions unconstitutional. The case was

26

vacated because the Reauthorization Act of 2006 made changes to the statute and the case was remanded to address the first amendment issues presented in the revised statute); 'id. at 511-525

27 (finding non-disclosure provision unconstitutional); Doe v. Gonzales, 386 F.Supp.2d 66, 73-75, 82

\

(D.Conn.2005) (finding probability of success that non-disclosure provision was unconstitutional

28 and preliminarily enjoining enforcement).

Case No. _ _ __

23
MPA IN SUPPORT OF PETITION TO SET ASIDE NATIONAL SECURITY LETTER AND NONDISCLOSURE REOUIREMENT

 
 I

I

1 AARONS. DYER (State Bar No. 161798) aaron.dyer@pillsburylaw.com
2 LAUREN M. LEAHY. (State Bar No. 260651)

lauren.leahy@pillsburylaw.com

3 PILLSBURY WINTHROP SHAW PITTMAN LLP

725 South Figueroa Street, Suite 2800

4 Los Angeles, CA 900'.17-5406

Telephone: (213) 488-'7100

5 Facsimile: (213) 629-~033

6 CINDY A COHN (State Bar No. 145997) cindy@eff.org
7 LEE TIEN (State Bar No. 148216) tien@eff.org
8 MATT ZIMMERMAN (State Bar No. 212423) mattz@eff.org
9 MARCIA HOFMANN (State Bar No. 250087)
marcia@eff.org . 10 ELECTRONIC FRONTIER FOUNDATION
454 Shotwell Street 11 San Francisco, CA 94110
Telephone: (415) 436-9333 xl08 12 Facsimile: (415) 43(5-9993

13U-AllO.CD..ells....1.ClL..l!Je11.tlLOJil.f:r..__ _ _ _ _~

14

15

UNITED STATES DISTRICT COURT

16

-

NORTHERN DISTRICT OF CALIFORNIA

No. _ _ _ __

,. 1 22 23 24 25 26 27 28 Case No. _ __
702975909vl·

AND NONDISCLOSURE
REQUIREMENT IMPOSED IN · CONNECTION THEREWITH; MEMORANDUM OF POINTS AND AUTHORITIES
DOCUMENT SUBMITTED UNDER SEAL
PETITION TO SET ASIDE NATIONAL SECURITY LETTER AND NONDISCLOSURE REQUIRMENT 1

\

I

PETITION

2

Petitioner

or

I
i

3 "Petitioner") h~ received a National Security Letter ("NSL") issued by the Federal Bureau of

4 Investigation ("FBI") demanding certai~

~ecords in the Petitioner's possession pursuant

I

5 to 18 U.S.C. § 2709, and prohibiting Petitioner from disclosing the existence of the demand to its

6

or the publiq pursuant to sections 2709(c)(l) and (c)(2).

I

7

Petitioner her~by petitions the Court under 18 U.S.C. §§ 351 l(a) and (b) for an order

8 setting aside both the '.NSL and the nondisclosure requirement imposed in connection with the

\

9 NSL on the following legal grounds, as explained further in the accompanying Memorandum of

10 Points and Authorities, which is incorporated herein by this reference:

I

11

1. The nondisclosure provisions of the NSL statute constitute unconstitutional prior

12. restraints in at least three ways:

13

(a) The statute fails the Pentagon Papers test for national security prior

14 restraints, which requires that disclosure of information will "surely result in direct, immediate

15 and irreparable harm:to our nation or its people."

16

(b) ' The statute fails the procedural requirements for prior restraints first

17 articulated in Freedman v. Maryland by allowing restraints in the absence of court approval and

18 by failing to limit the;: time of the restraints.

19

(c) The nondisclosure provision of the statute fails the requirement of

20 "narrow, objective and definite standards" cabining executive discretion as required by cases

21 such as Shuttleswort-fz v. City ofBirmingham.

22

2. The 11ondisclosure provisions of the NSL statute violate separation of powers by

23 preventing reviewing courts from applying the appropriate level of review mandated by the First

24 Amendment and by'binding a court to treat an FBI certification of harm as "conclusive."

25

3. The statute as a whole, both substantively and in its non-disclosure provision, is a

26 content-based restriction on speech that fails strict scrutiny in at least three ways:

27

28
Case No. _ __
702975909vJ

PETITION TO SET ASIDE NATIONAL SECURITY LETTER AND NONDISCLOSURE REQUIRMENT
2

I

I •

I

'
J
I
·_~i

1

(a) The substantive standards for issuing NSLs fail strict scrutiny both as to

t~ 2 11 - - - -.....·tself and as itsl

~ecause it is not narrowly tailored.

-?

~
I

3

(b) The non-disclosure provision fails strict scrutiny because it is not narrowly

~

4 tailored and because it authorizes overly long prior restraints.

l

5

(c) The judicial review provision of the statute fails strict scrutiny because it

6 limits judicial review ~d excludesl.___ ___.I from mean~gful participation in judicial review,

I

7 unconstitutionally seeking to insulate the NSL from legitimate judicial challenge in violation of

I

8 Legal Services Corp. v. Velasquez:.

I
I

9

4. The NSL statute violates the anonymous speech and associational rights of

10 Americans by requiring identification o~.__ _ _ _ _ _ _ _ _ _ __,F ithout meeting the

I

11 First Amendment tests. on its face violates the associational rights of Americans.

12

5. Even if the statute survives constitutional scrutiny, the government must meet its

13 heavy burden to .demonstrate, rather than simply assert, that its request is relevant to an

14 authorized investigation of the type listed, that disclosure would risk an enumerated harm and

15 that the investigation is not solely based on activities protected by the First Amendment.

16
DATED: May 2, 2oi 1
17 18 19 20 21 22 23 24
25 26

PILLSBURY WINTHROP SHAW PITTMAN LLP AARONS. DYER LAUREN M. LEAHY
ByAf~i: ~ f>tt:;:. l~{iv!L
Cindy A. Cohn Lee Tien Matthew Zimmerman Marcia Hofmann
ELECTRONIC FRONTIER FOUNDATION
454 Shotwell Street San Francisco, CA 94110 Telephone: 415-436-9333 x I08 Facsimile: 415-436-9993
Attorneys for Plaintiff

27
28
Case No. _ __ 702975909vl

PETITION TO SET ASIDE NATIONAL SECURITY LETTER AND NONDISCLOSURE REQUIRMENT
3

 
 I

I

1 AARONS. DYER (State Bar No. 161798) aaron.dyer@pillsburylaw.com
2 LAUREN M. LEAHY. (State Bar No. 260651)

lauren.leahy@pillsburylaw.com

3 PILLSBURY WINTHROP SHAW PITTMAN LLP

725 South Figueroa Street, Suite 2800

4 Los Angeles, CA 900'.17-5406

Telephone: (213) 488-'7100

5 Facsimile: (213) 629-~033

6 CINDY A COHN (State Bar No. 145997) cindy@eff.org
7 LEE TIEN (State Bar No. 148216) tien@eff.org
8 MATT ZIMMERMAN (State Bar No. 212423) mattz@eff.org
9 MARCIA HOFMANN (State Bar No. 250087)
marcia@eff.org . 10 ELECTRONIC FRONTIER FOUNDATION
454 Shotwell Street 11 San Francisco, CA 94110
Telephone: (415) 436-9333 xl08 12 Facsimile: (415) 43(5-9993

13U-AllO.CD..ells....1.ClL..l!Je11.tlLOJil.f:r..__ _ _ _ _~

14

15

UNITED STATES DISTRICT COURT

16

-

NORTHERN DISTRICT OF CALIFORNIA

No. _ _ _ __

,. 1 22 23 24 25 26 27 28 Case No. _ __
702975909vl·

AND NONDISCLOSURE
REQUIREMENT IMPOSED IN · CONNECTION THEREWITH; MEMORANDUM OF POINTS AND AUTHORITIES
DOCUMENT SUBMITTED UNDER SEAL
PETITION TO SET ASIDE NATIONAL SECURITY LETTER AND NONDISCLOSURE REQUIRMENT 1

\

I

PETITION

2

Petitioner

or

I
i

3 "Petitioner") h~ received a National Security Letter ("NSL") issued by the Federal Bureau of

4 Investigation ("FBI") demanding certai~

~ecords in the Petitioner's possession pursuant

I

5 to 18 U.S.C. § 2709, and prohibiting Petitioner from disclosing the existence of the demand to its

6

or the publiq pursuant to sections 2709(c)(l) and (c)(2).

I

7

Petitioner her~by petitions the Court under 18 U.S.C. §§ 351 l(a) and (b) for an order

8 setting aside both the '.NSL and the nondisclosure requirement imposed in connection with the

\

9 NSL on the following legal grounds, as explained further in the accompanying Memorandum of

10 Points and Authorities, which is incorporated herein by this reference:

I

11

1. The nondisclosure provisions of the NSL statute constitute unconstitutional prior

12. restraints in at least three ways:

13

(a) The statute fails the Pentagon Papers test for national security prior

14 restraints, which requires that disclosure of information will "surely result in direct, immediate

15 and irreparable harm:to our nation or its people."

16

(b) ' The statute fails the procedural requirements for prior restraints first

17 articulated in Freedman v. Maryland by allowing restraints in the absence of court approval and

18 by failing to limit the;: time of the restraints.

19

(c) The nondisclosure provision of the statute fails the requirement of

20 "narrow, objective and definite standards" cabining executive discretion as required by cases

21 such as Shuttleswort-fz v. City ofBirmingham.

22

2. The 11ondisclosure provisions of the NSL statute violate separation of powers by

23 preventing reviewing courts from applying the appropriate level of review mandated by the First

24 Amendment and by'binding a court to treat an FBI certification of harm as "conclusive."

25

3. The statute as a whole, both substantively and in its non-disclosure provision, is a

26 content-based restriction on speech that fails strict scrutiny in at least three ways:

27

28
Case No. _ __
702975909vJ

PETITION TO SET ASIDE NATIONAL SECURITY LETTER AND NONDISCLOSURE REQUIRMENT
2

I

I •

I

'
J
I
·_~i

1

(a) The substantive standards for issuing NSLs fail strict scrutiny both as to

t~ 2 11 - - - -.....·tself and as itsl

~ecause it is not narrowly tailored.

-?

~
I

3

(b) The non-disclosure provision fails strict scrutiny because it is not narrowly

~

4 tailored and because it authorizes overly long prior restraints.

l

5

(c) The judicial review provision of the statute fails strict scrutiny because it

6 limits judicial review ~d excludesl.___ ___.I from mean~gful participation in judicial review,

I

7 unconstitutionally seeking to insulate the NSL from legitimate judicial challenge in violation of

I

8 Legal Services Corp. v. Velasquez:.

I
I

9

4. The NSL statute violates the anonymous speech and associational rights of

10 Americans by requiring identification o~.__ _ _ _ _ _ _ _ _ _ __,F ithout meeting the

I

11 First Amendment tests. on its face violates the associational rights of Americans.

12

5. Even if the statute survives constitutional scrutiny, the government must meet its

13 heavy burden to .demonstrate, rather than simply assert, that its request is relevant to an

14 authorized investigation of the type listed, that disclosure would risk an enumerated harm and

15 that the investigation is not solely based on activities protected by the First Amendment.

16
DATED: May 2, 2oi 1
17 18 19 20 21 22 23 24
25 26

PILLSBURY WINTHROP SHAW PITTMAN LLP AARONS. DYER LAUREN M. LEAHY
ByAf~i: ~ f>tt:;:. l~{iv!L
Cindy A. Cohn Lee Tien Matthew Zimmerman Marcia Hofmann
ELECTRONIC FRONTIER FOUNDATION
454 Shotwell Street San Francisco, CA 94110 Telephone: 415-436-9333 x I08 Facsimile: 415-436-9993
Attorneys for Plaintiff

27
28
Case No. _ __ 702975909vl

PETITION TO SET ASIDE NATIONAL SECURITY LETTER AND NONDISCLOSURE REQUIRMENT
3

 
 Case: 3:11-cv-2667 As of: 03/19/2013 05:28 PM PDT 1 of 2
ADRMOP,RELATE
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:11−cv−02667−SI

The United States Department of Justice v. UNDER SEAL Assigned to: Hon. Susan Illston Demand: $0 Cause: 28:1331 Fed. Question
Plaintiff

Date Filed: 06/03/2011 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Plaintiff

The United States Department of Justice

represented by Steven Yale Bressler United States Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, DC 20044 (202) 305−0167 Fax: (202) 616−8470 Email: steven.bressler@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melinda Haag United States Attorney's Office Northern District of California 450 Golden Gate Avenue, 11th Floor San Francisco, CA 94102 (415) 436−6968 Fax: (415) 436−7234 Email: melinda.haag@usdoj.gov ATTORNEY TO BE NOTICED

V. Defendant UNDER SEAL

Date Filed 06/03/2011
06/03/2011 06/03/2011 06/03/2011 06/22/2011

# Docket Text
1 COMPLAINT for Injunctive &Declaratory Relief − [No Summons Issued] against UNDER SEAL [Filing Fee: Waived/Government] Filed by The United States Department of Justice.(tnS) (Filed on 6/3/2011) (mjj2S, COURT STAFF). Modified on 7/18/2011 (mjj2S, COURT STAFF). (Entered: 06/03/2011)
2 *SEALED* ADR SCHEDULING ORDER: Joint Case Management Statement due 9/13/2011 &Initial Case Management Conference set for 9/20/2011 at 10:00 AM.. (tnS) (Filed on 6/3/2011) (Entered: 06/03/2011)
3 *SEALED* UNOPPOSED ADMINISTRATIVE MOTION to File Complaint Under Seal filed by The United States Department of Justice. (tnS) (Filed on 6/3/2011) (Entered: 06/03/2011)
4 *SEALED* ORDER Signed by Judge Richard Seeborg granting re 3 Unopposed Administrative Motion to File Complaint Under Seal. (tnS) (Filed on 6/3/2011) (Entered: 06/03/2011)
5 *SEALED* ORDER RELATING CASE., Related cases: Create association to 3:11−cv−02173−SI *SEALED*.. Signed by Judge Susan Illston on 6/21/2011. (mjj2S, COURT STAFF) (Filed on 6/22/2011) (Entered: 06/29/2011)

Case: 3:11-cv-2667 As of: 03/19/2013 05:28 PM PDT 2 of 2

06/23/2011 07/01/2011 07/01/2011 07/12/2011 07/28/2011
09/15/2011
09/20/2011 09/20/2011 10/02/2011 10/02/2011 10/04/2011 10/04/2011 10/12/2011 10/12/2011

Case reassigned to Hon. Susan Illston. Magistrate Judge Elizabeth D. Laporte no longer assigned to the case. (haS, COURT STAFF) (Filed on 6/23/2011) (Entered: 06/23/2011)
6 *SEALED* Unopposed Administrative MOTION to Partially Unseal the Complaint filed by The United States Department of Justice. (mjj2S, COURT STAFF) (Filed on 7/1/2011) (Entered: 07/01/2011)
7 *SEALED* Proposed Order re 6 Unopposed Administrative MOTION to Partially Unseal the Complaint by The United States Department of Justice. (mjj2S, COURT STAFF) (Filed on 7/1/2011) (Entered: 07/01/2011)
8 *SEALED* Order by Hon. Susan Illston granting 6 Motion to Partially Unseal the Complaint. (mjj2S, COURT STAFF) (Filed on 7/12/2011) (Entered: 07/18/2011)
9 *SEALED* STIPULATION AND ORDER: Defendant's answer or other response to the Complaint be due on or before 10/14/11. Plaintiff reserves its right to seek appropriate relief pursuant to 18 U.S.Clss3511(c) and/or the Federal Rules of Civil Procedure at any time. Signed by Judge Susan Illston on 7/27/11. (ysS, COURT STAFF) (Filed on 7/28/2011) (Entered: 07/28/2011)
10 CLERKS NOTICE: Case Management Conference before Magistrate Judge Laporte set for September 20, 2011 has been taken off calendar as this case is to be heard before Judge Illston. (ysS, COURT STAFF) (Filed on 9/15/2011) (Entered: 09/15/2011)
11 CLERKS NOTICE Initial Case Management Conference set for 10/14/2011 02:30 PM. (tf, COURT STAFF) (Filed on 9/20/2011) (Entered: 09/20/2011)
12 CORRECT CLERKS NOTICE (Attachments: # 1 Standing Order) (tf, COURT STAFF) (Filed on 9/20/2011) (Entered: 09/20/2011)
13 *SEALED* Certificate of Interested Entities by UNDER SEAL identifying UNDER SEAL for UNDER SEAL. (ys, COURT STAFF) (Filed on 10/2/2011) Modified on 10/5/2011 (ysS, COURT STAFF). (Entered: 10/05/2011)
14 *SEALED* CERTIFICATE OF SERVICE by UNDER SEAL re 13 Certificate of Interested Entities (ys, COURT STAFF) (Filed on 10/2/2011) (Entered: 10/05/2011)
15 *SEALED* STIPULATION AND ORDER regarding Initial Disclosures. Signed by Judge Susan Illston on 10/3/11. (ysS, COURT STAFF) (Filed on 10/4/2011) Modified on 10/11/2011 (ysS, COURT STAFF). (Entered: 10/11/2011)
16 *SEALED* STIPULATION AND ORDER regarding defendant's responsive pleading. Signed by Judge Susan Illston on 10/3/11. (ysS, COURT STAFF) (Filed on 10/4/2011) (Entered: 10/11/2011)
17 *SEALED* CLERKS NOTICE Initial Case Management Conference set for 11/18/2011 02:30 PM in Courtroom 10, 19th Floor, San Francisco. (ysS, COURT STAFF) (Filed on 10/12/2011) (Entered: 10/12/2011)
18 *SEALED* JOINT CASE MANAGEMENT CONFERENCE STATEMENT filed by UNDER SEAL. (ysS, COURT STAFF) (Filed on 10/12/2011) (Entered: 10/14/2011)

 
 DNL:SRM:JHLevy

U.S. Department of Justice Civil Division, Appellate Staff 950 Pennsylvania Ave., N.W., Rm: 7231 Washington, D.C. 20530-0001
Tel: (202) 353-0169 Fax: (202) 514-7964

November 6, 2014

Molly C. Dwyer, Clerk of Court United States Court of Appeals for the Ninth Circuit 95 Seventh Street San Francisco, CA 94103-1526 Attn: Susan Soong

RE: In re National Security Letter, Nos. 13-15957, 13-16731, & 13-16732 [Argued before Judges Ikuta, N.R. Smith, and Murguia on October 8, 2014]

Dear Ms. Dwyer:

Oral argument in the above-referenced appeals was held before Judges Ikuta, N.R. Smith, and Murguia on October 8, 2014. Counsel for the NSL recipients in these cases has recently brought to our attention an inadvertent misstatement by government counsel during the rebuttal portion of the argument. We are submitting this letter to correct that error.

The misstatement occurred during a discussion regarding the disclosures that are permitted under the Government’s discretionary enforcement decisions as set forth in a letter from the Deputy Attorney General dated January 27, 2014. That letter, which is attached hereto, states that a company may report in bands of 250 (starting with 0-249) its receipt of total national security processes during a specified period, or, alternatively, in bands of 1000 (starting with 0-999) its receipt of certain individual processes, including NSLs, during such a period. See Gov’t Reply Br. Nos. 13-15957/13-16731, at 23 n.8. In the course of discussing disclosures described in this letter, approximately 49 minutes into the Court’s recording of the argument, government counsel indicated that if a company

discloses that it is in one of these two bands starting with zero, it could publicly discuss the fact that it had received one or more NSLs and could discuss the quality of the specific NSL(s) that it had received.
That suggestion was mistaken. The district court correctly noted that “the NSL nondisclosure provisions . . . apply, without distinction, to both the content of the NSLs and to the very fact of having received one.” ER 21 in No. 13-15957. This has always been the government’s position. See, e.g., Gov’t Opening Br. Nos. 13-15957/13-16731, at 14-15, 29; Gov’t Answering Br. No. 13-16732, at 1314, 27; Gov’t Reply Br. Nos. 13-15957/13-16731, at 11-12, 20, 23. The NSL recipients here have likewise taken the position in this Court that § 2709(c) “permits the FBI to gag recipients about not only the content of the NSL but also as ‘to the very fact of having received one.’” Appellee Answering Brief in No. 1315957/Appellant Opening Brief in No. 13-16731, at 46 (quoting In re Nat’l Sec. Letter, 930 F. Supp. 2d at 1075); Appellant Opening Br. No. 13-16732, at 47 (quoting In re Nat’l Sec. Letter, 930 F. Supp. 2d at 1075). The fact that a company may disclose that it has received 0-249 national security processes or 0-999 NSLs in a given period does not, by itself, allow that company to disclose that it has actually received one or more NSLs; the lower end of these bands was set at 0, rather than 1, in order to avoid such disclosures. A company can, however, disclose that it has actually received NSLs if it employs one of the NSL-specific bands as described in the Deputy Attorney General’s letter starting at 1000 or above.1
1 The Deputy Attorney General’s letter also addresses the disclosure, in bands of 1000, of “[t]he number of customer accounts affected by NSLs.” These disclosures are similar to the banded disclosures of the actual number of NSLs received; a company’s disclosure that 0-999 of its customer accounts were affected by NSLs would not, by itself, allow that company to disclose that it has actually received one or more NSLs, but a company’s disclosure, as described in the Deputy Attorney General’s letter, that 1000 or more of its customer accounts were affected by NSLs would necessarily disclose the receipt of one or more NSLs.
2

We regret this inadvertent inaccuracy and apologize for any confusion that may have been caused. Please bring this letter to the prompt attention of the panel.
Sincerely, /s/ Jonathan H. Levy
Jonathan H. Levy Attorney, Appellate Staff
Civil Division CC: Cindy Cohn (ECF and email)
3

 
 Case: 13-15957, 02/12/2015, ID: 9419739, DktEntry: 91, Page 1 of 2

DNL:SRM:KTAllen

U.S. Department of Justice Civil Division, Appellate Staff 950 Pennsylvania Ave., N.W., Rm: 7325 Washington, D.C. 20530-0001
Tel: (202) 514-5048 Fax: (202) 514-7964
February 12, 2015

Molly C. Dwyer, Clerk of Court United States Court of Appeals for the Ninth Circuit 95 Seventh Street San Francisco, CA 94103-1526
Attn: Susan Soong
RE: In re: Under Seal v. Holder, Nos. 13-15957, 13-16731, & 13-16732 [Argued before Judges Ikuta, N.R. Smith, and Murguia on October 8, 2014]
Dear Ms. Dwyer:
Oral argument in the above-referenced appeals was held before Judges Ikuta, N.R. Smith, and Murguia on October 8, 2014. The government submits this letter under Fed.R.App.P. 28(j) to bring to the Court’s attention a change in policy regarding National Security Letter nondisclosure requirements recently announced by the Office of the Director of National Intelligence (ODNI).
On February 3, 2015, ODNI issued the Signals Intelligence Reform 2015 Anniversary Report (http://icontherecord.tumblr.com/ppd-28/2015/overview). As potentially relevant here, the Report states:
[T]he FBI will now presumptively terminate National Security Letter nondisclosure orders at the earlier of three years after the opening of a fully predicated investigation or the investigation’s close.

Case: 13-15957, 02/12/2015, ID: 9419739, DktEntry: 91, Page 2 of 2
Continued nondisclosure[] orders beyond this period are permitted only if a Special Agent in Charge or a Deputy Assistant Director determines that the statutory standards for nondisclosure continue to be satisfied and that the case agent has justified, in writing, why continued nondisclosure is appropriate. See http://icontherecord.tumblr.com/ppd-28/2015/privacy-civil-liberties#letters. The FBI is in the process of formulating and drafting guidelines for the implementation of the policy described in the Report. Because this process is not yet complete, the potential applicability of the new policy to the NSLs at issue in the above-referenced appeals remains to be determined. We will advise the Court when this additional information becomes available. Thank you for bringing this letter to the prompt attention of the panel.
Sincerely,
/s/ Katherine T. Allen Katherine T. Allen Attorney, Appellate Staff
Civil Division CC: Cindy Cohn (ECF and email)
2

 
 STIJART F. DELERY

Acting Assistant Attorney General

2 MELINDA HAAG

United States Attorney

3 ARTHURR.GOLDBERG

4

Assistant Branch Director STEVEN Y. BRESSLER D.C. Bar No. 482492

5 Senior Counsel

United States Department of Justice

6 Civil Division, Federal Programs Branch

7 P.O. Box 883
8 Washington, D.C. 20044 Telephone: (202) 305-0167
9 Facsimile: (202) 616-8470 10 Email: Steven.Bressler@usdoj.gov

11 Attorneys for the United States Department of Justice

12

IN THE UNITED STATES DISTRICT COURT

13

FOR THE NORTHERN DISTRICT OF CALIFORNIA

14 15 UNITED STATES DEPARTMENT
OF JUSTICE 16
v. 17
18
19
20
21

)

)

FIRST AMENDED COMPLAINT

)

)

CIV. NO. 11-2667

)

)

FILED UNDER SEAL

)

PURSUANT TO

)

18 U.S.C. § 3511(d)

)

AND THIS COURT'S ORDER

)

DATED JULY 8, 2011

)

22

Plaintiff the United States Department of Justice, by its undersigned attorneys, brings this

23 First Amended Complaint pursuant to Federal Rule of Civil Procedure 15 to enforce compliance

24 with a National Security Letter, including compliance with the National Security Letter's

25 information request and its nondisclosure provision, and states as follows:

26

INTRODUCTION

27

1. Counterintelligence and counterterrorism investigations ordinarily must be carried out

28 in secrecy if they are to succeed. Because these investigations are directed at groups or

Uniled Siaies Dep'l 0/Juslice v.
First Amended Complaint for Declaratory and Injunctive Relief

Civ. No. 11-2667 SI

f
I

individuals taking efforts to keep their own activities secret, it is essential that targets not learn

2 that they are the subject of such an investigation. If targets learn that their activities are being

3 investigated, they can be expected to take action to avoid detection or disrupt the government's

4 intelligence gathering efforts. The same concern applies to knowledge about the sources and

5 methods the United States intelligence community may be using to acquire information,

6 knowledge which can be used both by the immediate targets of an investigation and by other

7 terrorist and foreign intelligence organizations. And even after a particular investigation has 8 been completed, information about the government's investigative methods can educate other

9 potential targets about how to circumvent and disrupt future counterintelligence or 10 counterterrorism investigations.

11

2. The

Federal Bureau ofInvestigation ("FBI") is conducting an

12 ongoing, authorized national security investigation. As part of that investigation,

13 2011 the FBI sent defendant

14

a National Security Letter ("NSL") as authorized by statute, 18

15 U.S.C. § 2709, seeking limited and specific information necessary to the investigation which the 16 FBI had and has been unable to obtain elsewhere. An authorized FBI official certified to

17 defendant that disclosure of the fact or contents ofthe

2011 NSL sent to defendant may,

18 inter alia, endanger national security. Moreover, disclosure of the fact or contents ofthe NSL is

19 prohibited by statute, 18 U.S.C. § 2709.

20

3. Defendant has objected to the NSL, including its request for information as well as its

21 nondisclosure requirement. The FBI continues to need the information requested in the NSL to 22 further an ongoing national security investigation. Moreover, as an authorized FBI official has 23 certified, disclosure ofthe fact or contents of the NSL may, inter alia, endanger the national 24 security of the United States. For those reasons, the Department of Justice brings this action for 25 declaratory and injunctive reliefto obtain information necessary to the FBI's investigation, 26 protect the national security, and enforce the law. This Court should enter a declaratory 27 judgment, and enter an injunction to the effect that, the defendant must comply with the NSL it

28

United States Dep't ofJustice v.

Civ. No. 11-2667 SI

2

First Amended Complaint for Declaratory and Injunctive Relief

received and, moreover, that defendant is bound by the nondisclosure provisions of 18 U.S.C.

2 § 2709 and the NSL.

3

JURISDICTION AND VENUE

4

4. The Court has jurisdiction pursuant to 18 U.S.C. § 3511(c), which provides that, when

5 the recipient of an NSL "fail[s] to comply with [the] request for records, a report, or other

6 information," the Attorney General "may invoke the aid of any district court ofthe United States

7 within the jurisdiction in which the investigation is carried on or the person or entity resides,

8 carries on business, or may be found, to compel compliance with the request." The NSL request

9 here included notification and imposition of the nondisclosure requirement. Accord 18 U.S.C.

10 § 2709(c)(2) (among other things, an NSL "notifIies] the person or entity to whom the request is

11 directed of the nondisclosure requirement."). Under section 3511 (c), this Court "may issue an

12 order requiring the person or entity to comply with the request," including its nondisclosure

13 requirement, and failure to obey the order of the Court may be punished as contempt. Id The

14 Court also has jurisdiction under 28 U.S.C. § 1345.

15

5. Venue lies in the Northern District of California pursuant to 18 U.S.C. § 3511 (c) and

16 28 U.S.C. § 1391.

17

PARTIES

18

6. Plaintiff is the United States Department of Justice, an Executive Agency of the

19 United States of America led by the United States Attorney General. The Federal Bureau of

20 Investigation ("FBI") is a law enforcement agency within the Department of Justice.

21

7. Defendant

22

("defendant"), is a

23

with a principal place of business at

24

Defendant

25

26

STATUTORY BACKGROUND

27

8. Title 18 U.S.C. § 2709 authorizes the FBI to issue NSLs in connection with foreign

28 counterintelligence and counterterrorism investigations. The FBI has similar authority to issue

United States Dep't ofJustice v.

Civ. No. 11-2667 SI

3

First Amended Complaint for Declaratory and Injunctive Relief

NSLs under the National Security Act of 1947, the Fair Credit Reporting Act, and the Right to

2 Financial Privacy Act. See 12 U.S.C. §§ 3414(a)(I) and 3414(a)(5); 15 U.S.C. § 1681u, 1681v;

3 50 U.S.C. § 436.

4

9. Subsections (a) and (b) of § 2709 authorize the FBI to request "subscriber

5 information" and "toll billing records information," or "electronic communication transactional

6 records," from wire or electronic communication service providers. In order to issue an NSL, a

7 designated official must certify that the information sought is "relevant to an authorized

8 investigation to protect against international terrorism or clandestine intelligence activities ...."

9 Id. § 2709(b)(I)-(2). When an NSL is issued in connection with an investigation ofa "United

10 States person," the same officials must certify that the investigation is "not conducted solely on

II the basis of activities protected by the first amendment ...." Id.

12

10. To protect the secrecy of counterintelligence and counterterrorism investigations,

13 § 2709(c) permits the placement ofa nondisclosure obligation on an NSL recipient. Section

14 2709(c) prohibits disclosure when a designated FBI official certifies, prior to the issuance of the

15 NSL, that "otherwise there may result a danger to the national security of the United States,

16 interference with a criminal, counterterrorism, or counterintelligence investigation, interference

17 with diplomatic relations, or danger to the life or physical safety of any person." Id.

18 § 2709(c)(I). When such a certification is made, the NSL itself notifies the recipient of the

19 nondisclosure requirement. Id. § 2709(c)(2).

20

II. Tile 18 U.S.C. § 3511 provides for judicial review ofNSLs.

21

12. Section 3511(a) authorizes the recipient of an NSL to petition a district court "for an

22 order modifying or setting aside the request" for information contained in the NSL.

23

13. Section 3511(b) authorizes the recipient of an NSL to petition a district court "for an

24 order modifying or setting aside a nondisclosure requirement imposed in connection with" the

25 NSL. Id. § 3511(b)(I).

26

14. Section 3511(c) authorizes the government to petition a district court for enforcemen

27 of an NSL. Section 3511(c) provides that, when the recipient of an NSL "fail[s] to comply with

28 [the] request for records, a report, or other information," the Attorney General "may invoke the

United States Dep't ofJustice v. First Amended Complaint for D

Civ. No. 11·2667 SI

4

aid of any district court of the United States within the jurisdiction in which the investigation is

2 carried on or the person or entity resides, carries on business, or may be found, to compel

3 compliance with the request." Where a designated official has certified the need for

4 nondisclosure pursuant to 18 U.S.C. § 2709(c), the NSL "request" includes notification and

5 imposition of the nondisclosure requirement. Id. § 2709(c)(2). Pursuant to 18 U.S.C. § 3511(c),

6 a court "may issue an order requiring the person or entity to comply with the request," including

7 its nondisclosure requirement, and failure to obey the order ofthe court may be punished as

8 contempt. Id.

9

15. As the Attorney General informed the Chairman ofthe Senate Judiciary Committee

10 in a letter dated December 9, 2010, since February 2009, all NSLs are required to include a

11 notice that informs recipients ofthe opportunity to contest the nondisclosure requirement throug

12 government-initiated judicial review.

13

16. Since 2009, therefore, in all NSLs issued nationwide that include imposition ofa

14 nondisclosure obligation pursuant to 18 U.S.C. § 2709(c), the FBI has complied with the

15 "reciprocal notice" procedures suggested by the United States Court of Appeals for the Second

16 Circuit in John Doe v. Mu/casey, 549 F.3d 861 (2d Cir. 2008).

17

17. All NSLs issued nationwide that include imposition of a nondisclosure obligation

18 pursuant to 18 U.S.C. § 2709(c), including the

2011 NSL issued to defendant, have

19 informed the recipient that, inter alia, "[i]n accordance with 18 U.S.C. § 3511(a) and (b)(I), you

20 have a right to challenge this letter if compliance would be unreasonable, oppressive, or

21 otherwise unlawful."

22

18. All NSLs issued nationwide that include imposition of a nondisclosure obligation

23 pursuant to 18 U.S.C. § 2709(c), including the

2011 NSL issued to petitioner, have

24 informed the recipient that, inter alia, "[y]ou also have the right to challenge the nondisclosure

25 requirement.... If you wish to make a disclosure that is prohibited by the nondisclosure

26 requirement, you must notify the FBI, in writing, of your desire to do so within 10 calendar days

27 of receipt of this letter." Such NSLs have provided an appropriate address or fax number where

28 such objection may be sent, and stated "[i]fyou send notice within 10 calendar days, the FBI wil

United States Dep't ofJustice v. First Amended Complaint for D

Civ. No. 11-2667 SI

5

initiate judicial proceedings in approximately 30 days in order to demonstrate to a federal judge

2 the need for nondisclosure and to obtain a judicial order requiring continued nondisclosure."

3

19. As the Attorney General further informed the Chairman ofthe Senate Judiciary

4 Committee in the Attorney General's December 9, 2010 letter, the FBI also will ensure that in

5 any case in which an NSL recipient challenges a nondisclosure obligation imposed pursuant to

6 18 V.S.C. § 2709(c), the recipient is notified when compliance with the nondisclosure obligation

7 is no longer required.

8

STATEMENT OF THE CLAIM

9 I. Defendant And Electronic Communication Services

10

20. Defendant

11

12

21. The

that Defendant provides to its

13

14 Defendant

15 II. FBI's Investigation

16

22. During the course of an ongoing, authorized national security investigation, the FBI

17

18

The FBI's

opened a national

19 security investigation to

20

23. The FBI

21

The FBI then determined that

22

The FBI then

23

24

25

24.

26

defendant. Pursuant to 18 V.S.C.

27 § 2709, the FBI served defendant with the

2011 NSL, requesting the

28

United States Dep't ofJustice v.

Civ. No. 11-2667 SI

6

First Amended Complaint for Declaratory and Injunctive Relief

25. The NSL served on Defendant was issued by the

2

under the authority of 18 U.S.C. § 2709. See

2011

3 NSL (attachment A). The

in accordance with 18 U.S.C.

4 § 2709(b), that the information sought was relevant to an authorized investigation to protect

5 against international terrorism or clandestine intelligence activities. [d.

6

26. The NSL, dated

2011, sought

7

8

27. The NSL informed defendant of the prohibition against disclosing the contents ofthe

9 NSL, certifying, in accordance with 18 U.S.C. § 2709(c), that such disclosure could result in an

10 enumerated harm that is related to an "authorized investigation to protect against international

11 terrorism or clandestine intelligence activities."

12

28. The NSL notified defendant that, in accordance with 18 U.S.C. § 3511(a) and (b),

13 defendant had a right to challenge the letter if compliance would be unreasonable, oppressive, or

14 otherwise illegal.

15

29. The NSL also advised that defendant had 10 days to notify the FBI as to whether it

16 desired to challenge the nondisclosure provision.

17 III. Defendant's Refusal To Comply With The National Security Letter

18

30. In a letter sent via electronic mail, dated

2011, defendant, through counsel,

19 advised that it intended to "exercise its rights under 18 U.S.C. § 3511(a) and (b) to challenge the'

20 NSL referenced above, including the nondisclosure provision of the NSL."

21

31. Defendant's

2011 letter also requested an extension oftime in order to

22 consider legal issues regarding the NSL. FBI agreed to extend the due date for compliance with

23 the NSL to

2011.

24

32. On

2011, defendant

25

26

27

28

United States Dep't ofJustice v,

Civ. No. 11-2667 SI

7

First Amended Complaint for Declaratory and Injunctive Relief

33. Defendant's

notified the FBI that

2 defendant does not intend to comply with the NSL's demand for information or its nondisclosure 3 requirement.

4

34. To date, the FBI's

has been unable to

5

The FBI continues to need that

6 information to further an ongoing national security investigation.

7

35. Pursuant to 18 U.S.C. § 35 11 (e), the plaintiff is prepared to make available to the

8 Court ex parte and in camera further evidence supporting the need for nondisclosure of the fact

9 or contents of the NSL to petitioner.

10

36. The NSL nondisclosure requirements were imposed on petitioner consistent with the

11 law, 18 U.S.C. § 2709(c), are fully authorized and in all other respects are proper and entitled to

12 enforcement by this Court.

13

37. The NSL information requests were imposed on petitioner consistent with the law,

14 18 U.S.C. § 2709, are fully authorized and in all other respects are proper and entitled to

15 enforcement by this Court.

16

COUNT ONE - VIOLATION OF 18 U.S.C. § 2709

17

38. Plaintiff incorporates by reference paragraphs 1 through 37 above.

18

39. Defendant's failure to comply with the lawfully issued NSL, including its

19 information request and its nondisclosure requirement, would violate federal law, 18 U.S.C.

20 § 2709. 21 COUNT TWO - FAILURE TO ABIDE BY A VALID NATIONAL SECURITY LETTER;

22

INTERFERENCE WIm THE UNITED STATES' SOVEREIGN INTERESTS

23

40. Plaintiff incorporates by reference paragraphs 1 through 39 above.

24

41. Defendant's failure to comply with the lawfully issued NSL, including its

25 information request and its nondisclosure requirement, would interfere with the United States' 26 vindication of its sovereign interests in law enforcement, counterintelligence, and the protection

27 of national security.

28

United States Dep't ofJustice v.

Civ. No. 11-2667 SI

8

First Amended Complaint for Declaratory and Injunctive Relief

RELIEF REQUESTED

2

WHEREFORE, the United States Department of Justice requests the following relief:

3

1. That this Court enter an Order purs

8 U.S.C. § 3511(c) that petitioner is bound

4 by the provisions of 18 U.S.C. § 2709 and the

2011 NSL to petitioner, including the

5 requirement that petitioner provide the requested information to the FBI and the nondisclosure

6 provisions of 18 U.S.C. § 2709(c) and the NSL.

7

2. That this Court enter an Order pursuant to 18 U.S.C. § 3511(c) affirming that

8 disclosure of the fact or contents of the NSLs to petitioner may result in a danger to the national

9 security of the United States, interference with a criminal, counterterrorism, or

10 counterintelligence investigation, interference with diplomatic relations, or danger to the life or

11 physical safety of a person; and that the petitioner is bound by the nondisclosure provisions of 18

12 U.S.C. § 2709 and the NSLs to petitioner, including the requirement that petitioner not disclose

13 the fact or contents ofthe NSLs to any person (other than those to whom such disclosure is

14 necessary to comply with the request or an attorney to obtain legal advice or legal assistance wit

15 respect to the request).

16

3. That this Court enjoin petitioner, in accordance with 18 U.S.C. §§ 2709(c) and

17 3511 (c), from disclosing to any person (other than those to whom such disclosure is necessary to

18 comply with the request or an attorney to obtain legal advice or legal assistance with respect to

19 the request) that the FBI has sought or obtained access to information or records from petitioner

20 under 18 U.S.C. § 2709.

21

4. That this Court Order petitioner, in accordance with 18 U.S.C. §§ 2709 and 3511(c),

22 to promptly provide to the FBI the information requested in the

2011 NSL.

23

5. That this Court grant the Attorney General such other and further relief as may be just

24 and proper.

25 II

26 II

27 II

28 /1

United States Dep 't ofJustice v.

Civ. No. 11-2667 SI

9

First Amended Complaint for Declaratory and Injunctive Relief

..

'

j

II

Dated: April 18, 2013 2 3 4 5 6 7 8 9 10
11
12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully submitted,
STUART F. DELERY Acting Assistant Attorney General MELINDA HAAG United States Attorney
ARTHUR R. GOLDBERG Assistant Branch Director
lsiSteven Y. Bressler STEVEN Y. BRESSLER D.C. Bar #482492 Senior Counsel U.S. Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, D.C. 20044 (202) 305-0167 (telephone) (202) 646-8470 (facsimile) Steven.Bressler@usdoj.gov
Attorneysfor the Department ofJustice

United States Dep't ofJustice v.

Civ. No. 11-2667 SI

10

First Amended Complaint for Declaratory and Injunctive Relief

 
 'sCIS
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2

3

4

5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE NORTHERN DISTRICT OF CALIFORNIA

7

8 9 IN RE NATIONAL SECURITY LETTER 10 11 _____________________________1 12

No. C 11-2667 SI; Related Case C 11-2173 SI
ORDER GRANTING MOTION TO STAY AND DENYING WITHOUT PREJUDICE MOTION FOR JUDICIAL REVIEW AND ENFORCEMENT OF NATIONAL SECURITY LETTER

13

Now before the Court is defendant's motion to stay proceedings in this case pending the

14 resolution of the government's appeal in the related case of In re NSL, No.3: ll-cv-2173 SI, and the 15 government's motion for judicial review and enforcement of the 2011 NSL. These matters were 16 scheduled for a hearing on August 2, 2013. Pursuant to Civil Local Rule 7-1 (b), the Court determined 17 that these matters are appropriate for resolution without oral argument, and VACATED the hearing. 18 Having considered the papers submitted, the Court finds that it is in the interest ofjudicial efficiency 19 and economy to stay this action pending the resolution of the Ninth Circuit appeal, and accordingly 20 GRANTS defendant's motion and DENIES WITHOUT PREJUDICE the government's motion. 21

22

DISCUSSION

23

Pursuant to the National Security Letter Statute, 18 U.S.C. § 2709, in 2011 the FBI issued

24 a National Security Letter ("NSL") to defendant,1 an electronic communication service provider

25 ("ECSP"), seeking "subscriber information." By certifying, under section 2709(c)(1), that disclosure

26 of the existence of the NSL may result in "a danger to the national security of the United States,

27

28

1 The recipient of the NSL is the petitioner in C 11-2173 SI and the defendant in C 11-2667 SI.

1 interference with a criminal, counterterrorism, or counterintelligence investigation, interference with

2 diplomatic relations, or danger to the life or physical safety of any person," the FBI was able to prohibit

3 defendant from disclosing the existence ofthe NSL. Defendant filed a Petition to SetAside the National

4 Security Letter and Nondisclosure Requirement, pursuant to 18 U.S.C. §§ 3511(a) and (b). In re NSL,

5 C 11-2173 SI. The government opposed the petition and filed a motion to compel compliance with the

6 NSL. The government also filed this lawsuit seeking a declaration that defendant is required to comply

7 with the 2011 NSL.

8

In an order filed March 14,2013, the Court found unconstitutional portions of the NSL statute

9 governing nondisclosure orders issued in conjunction with NSLs. See In re NSL, No. 3:11-cv-2173 SI

10 (March 14, 2013) (finding 18 U.S.C. § 2709(c), 18 U.S.C. §§ 3511(b)(2), (b)(3)) facially

11 unconstitutional). The Court granted the motion to set aside the 2011 NSL, and also stayed the judgment

12 pending appeal. Defendant now seeks a stay of this case pending the resolution of the appeal in In re

13 NSL, No.3: ll-cv-2173 SI. Defendant argues that a stay will promote efficient use ofjudicial resources,

14 prevent unnecessary briefing, and minimize the burden on the parties. The government opposes a stay

15 and seeks to enforce the 2011 NSL.

16

The Court's power to stay proceedings is "incidental to the power inherent in every court to

17 control the disposition ofthe causes on its docket with economy oftime and effort for itself, for counsel,

18 and for litigants." Landis v. North American Co., 299 U.S. 248, 254 (1936). The Court concludes that

19 it is appropriate to stay this case in light ofthe fact that the parallel case ofIn re NSL, No.3: ll-cv-2173

20 SI involving the same 2011 NSL is now pending before the Ninth Circuit. In that appeal, the Ninth

21 Circuit will review this Court's order setting aside the 2011 NSL and determine whether the challenged

22 nondisclosure provisions are, in fact, facially unconstitutional. Given this unusual procedural posture,

23 the Court finds that a stay is in the interest ofjudicial economy and efficiency. The Court further finds

24 that the government will not be harmed by a stay because the government can obtain the information

25 it seeks in the 2011 NSL through other judicially-supervised means, such as by seeking a court order 26

27

28

2

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pursuant to 18 U.S.C. §§ 2703(d), 2705.2

2

Accordingly, the Court GRANTS defendant's motion and STAYS this case until the resolution

3 of the appeal in In re NSL, No.3: 11-cv-2173 SI, and DENIES WITHOUT PREJUDICE the

4 government's motion for judicial review and enforcement of the 2011 NSL. Docket Nos. 26 & 29.

5

6

IT IS SO ORDERED.

7

8 Dated: August 7, 2013 9

SUSANILLSTON United States District Judge

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

2 The Court notes that in another case involving a different recipient ofNSLs, the government

obtained the information sought by an NSL by filing an application pursuant to 18 U.S.C. § 2703(d) in 28 the United States District Court for the Eastern District of Virginia.

3

i," i
f

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UNITED STATES DISTRICT COURT

I
I

FOR THE NORTHERN DISTRICT OF CALIFORNIA

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IN RE: NSL LETTER, Plaintiff,
v.

Case Number: C-II-2667 CERTIFICATE OF SERVICE

I

I

Defendant.
----------------------------~/

I

I

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District

i

Court, Northern District of California.

That on August 7, 2013, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Steven Yale Bressler United States Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, DC 20044

Cindy Ann Cohn Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109
Richard R. Wiebe Law Office Of Richard R. Wiebe One California Street Suite 900 San Francisco, CA 94111
August 7, 2013

Richar~ding, CI~

.. By:

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\

 
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NOS. 13-15957, 13-16731
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNDER SEAL,
PETITIONER-ApPELLEE (No. 13-15957), PETITIONER-ApPELLANT (No. 13-16731), v. ERIC H. HOLDER, JR., Attorney General; UNITED STATES DEPARTMENT OF JUSTICE; and FEDERAL BUREAU OF INVESTIGATION,
RESPONDENT-ApPELLANTS (No. 13-15957), RESPONDENT-ApPELLEES (No. 13-16731)
On Appeal from the United States District Court for the Northern District of California
Case Nos. ll-cv-2173 SI, 13-mc-80089 SI Honorable Susan IIIston, District Judge

APPELLEE UNDER SEAL'S ANSWERING BRIEF IN CASE NO. 13-15957;

APPELLANT UNDER SEAL'S OPENING BRIEF IN CASE NO. 13-16731

Matthew Zimmerman, Esq. Cindy Cohn, Esq. David Greene, Esq. Lee Tien, Esq. Kurt Opsahl, Esq. Jennifer Lynch, Esq. Nathan Cardozo, Esq. Andrew Crocker, Esq. ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 Telephone: (415) 436-9333 Facsimile: (415) 436-9993

Richard R. Wiebe, Esq. LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111 Telephone: (415) 433-3200 Facsimile: (415) 433-6382
Counsel for UNDER SEAL

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CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 26.1 of the Ninth Circuit Rules of Appellate Procedure, Petitioner-Appellant-Appellee makes the following disclosure:
Petitioner-Appellant-Appellee

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TABLE OF CONTENTS
INTRODUCTION ..................................................................................................... 1 STATEMENT OF JURISDICTION .........................................................................2
STATEMENT OF ISSUES .......................................................................................2
STATEMENT OF THE CASE AND FACTUAL BACKGROUND ....................... 3
A. Note Regarding This Brief and the Brief Filed in Related Case No. 13-16732........................................................................................4
B. Appellee's ........................................................................................ 5
C. The District Court's Decision Granting Appellee's Petition in 13-15957............................................................................................... 5
D. The District Court's Decision Denying Appellee's Petition in 13-16731 ............................................................................................... 7
E. The National Security Letter Statutory Framework.............................. 8 F. How NSLs Fit into the Panoply ofInvestigative Tools Available to
the FBI and Law Enforcement. ........................................................... 11
G. The FBI's History of Using (and Misusing) NSLs ............................. 12 H. The Second Circuit's Doe v. Mukasey Decision................................. 16
STANDARD OF REVIEW ..................................................................................... 18
SUMMARY OF ARGUMENT ............................................................................... 18 ARGUMENT .......................................................................................................... 19 I. THE NSL STATUTE'S GAG ORDER PROVISION, SECTION 2709(c),
VIOLATES THE FIRST AMENDMENT BECAUSE IT LACKS THE PROCEDURES REQUIRED FOR PRIOR RESTRAINTS ......................... 19
11

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A. The NSL Statute's Gag Order Provision Authorizes Prior Restraints ............................................................................................. 19
B. The Gag Order Provision Is Unconstitutional Because It Authorizes Prior Restraints Without Including Any of the Procedural Protections Mandated by the First Amendment.. ................................ 21
1. The NSL Statute Violates the First Prong of the Freedman Test Because It Neither Assures That Judicial Review ofNSL Gags Takes Place Nor Limits Pre-Review Gags to "a Specific Brief Period." ............................................................................ 25
2. The NSL Statute Violates the Second Prong of the Freedman Test Because It Does Not Assure a Prompt Final Judicial Decision.................................................................................... 26
3. The NSL Statute Violates the Third Prong ofthe Freedman Test Because It Does Not Place the Burden of Going to Court and the Burden of Proof on the Government.. .......................... 28
4. The Second Circuit and the District Court Agree: Freedman Applies to the NSL Statute, the NSL Statute Conflicts With the First Amendment, and There Is No Possible Constitutional Construction of the NSL Statute............................................... 30
5. The District Court Properly Invalidated the Nondisclosure Provision................................................................................... 31
6. Voluntary Deviations by the FBI from The Procedures Mandated by the NSL Statute Cannot Save the Statute from Unconstitutionality ................................................................... 32
II. THE STANDARDS OF JUDICIAL REVIEW OF THE NONDISCLOSURE REQUIREMENT IN 18 U.S.C. § 3511(b) ARE EXCESSIVELY DEFERENTIAL AND VIOLATE SEPARATION OF POWERS AND DUE PROCESS................................................................ .42
III. THE NSL STATUTE ALSO FAILS TO SATISFY THE SUBSTANTIVE REQUIREMENTS FOR PRIOR RESTRAINTS ........................................ .43
111

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IV. THE NONDISCLOSURE PROVISION VIOLATES THE FIRST AMENDMENT BECAUSE IT IS A CONTENT-BASED RESTRICTION ON SPEECH THAT FAILS STRICT SCRUTINY..................................... .45
V. THE NSL STATUTE FAILS TO SET FORTH "NARROW, OBJECTIVE, AND DEFINITE STANDARDS" GUIDING THE DISCRETION OF THE FBI. ....................................................................................................... 49
VI. THE GAG ORDERS AUTHORIZED BY SECTION 2709(c) ARE MATERIALLY DIFFERENT FROM PERMISSIBLE GAG ORDERS ISSUED IN OTHER CONTEXTS ............................................................... 51
VII. THE NSL STATUTE'S COMPELLED PRODUCTION PROVISION VIOLATES THE FIRST AND FIFTH AMENDMENTS ............................ 53
A. The First Amendment Requires Prior Judicial Review...................... 56
B. The Fifth Amendment Similarly Requires Prior Judicial Review...... 57
VIII. THE UNCONSTITUTIONAL PORTIONS OF THE NSL STATUTE ARE NOT SEVERABLE............................................................................. 58
IX. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN ENJOINING THE GOVERNMENT FROM USING THE NSL STATUTE..................................................................................................... 61
CONCLUSION ....................................................................................................... 65
CERTIFICATE OF COMPLIANCE ...................................................................... 66
CERTIFICATE OF SERVICE ................................................................................ 67

IV

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TABLE OF AUTHORITIES
Federal Cases
Alexander v. United States, 509 U.S. 544 (1993) ..................................................................................... 20
Apple Inc. v. Psystar Corp., 658 F.3d 1150 (9th Cir. 2011) ...................................................................... 63
Arnold v. Morton, 529 F.2d 1101 (9th Cir. 1976) ...................................................................... 39
Ayotte v. Planned Parenthood ofNorthern New England, 546 U.S. 320 (2006) ..................................................................................... 59
Baby Tam & Co., Inc. v. City ofLas Vegas, 154 F.3d 1097 (9th Cir. 1998) ...................................................................... 23
Broadrick v. Oklahoma, 413 U.S. 601 (1973) ..................................................................................... 23
Brown v. Socialist Workers '74 Campaign Comm. (Ohio), 459 U.S. 87 (1982) ....................................................................................... 55
Buckley v. Valeo, 424 U.S. 1 (1976) ......................................................................................... 59
Butterworth v. Smith, 494 U.S. 624 (1990) ..................................................................................... 52
City ofLakewood v. Plain Dealer PubI 'g Co., 486 U.S. 750 (1988) ......................................................................... 37, 38, 39
Commodity Futures Trading Com. v. Schor, 478 U.S. 833 (1986) ..................................................................................... 43
Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004) ........................................ 10, 53, 57, 60

v

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Doe v. Gonzales, 449 F.3d 415 (2d Cir. 2006) ......................................................................... 54
Doe v. Gonzales, 500 F. Supp. 2d 379 (S.D.N.Y. 2007) .......................................................... 47
Doe v. Mukasey, 549 F.3d 861 (2d Cir. 2008) .................................................................. passim
Dole v. Service Employees Union AFL-CIO, Local 280, 950 F.2d 1456 (9th Cir. 1991) ...................................................................... 56
Elrod v. Burns, 427 U.S. 347 (1976) ..................................................................................... 27
Erznoznik v. City ofJacksonville, 422 U.S. 205 (1975) ..................................................................................... 37
Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992) ............................................................................... 38,49
Freedman v. Maryland, 380 U.S. 51 (1965) ................................................................................ passim
FW/PBS, Inc. v. City ofDallas, 493 U.S. 215 (1990) ............................................................................... 22, 57
Gibson v. Fla. Legislative Invest. Comm., 372 U.S. 539 (1963) ............................................................................... 55, 56
Hamdi v. Rumsfeld, 542 U.S. 507 (2004) ..................................................................................... 58
Hoye v. City of Oakland, 653 F.3d 835 (9th Cir. 2011) ........................................................................ 38
In re Nat 'I Sec. Letters, No. 13-1165 (N.D. Cal. Aug. 13, 2013) ....................................................... 41

VI

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In re Nat 'I Sec. Letter, 930 F. Supp. 2d 1064 (N.D. Cal. 2013) ................................................ passim
Internet Specialties W, Inc. v. Milon-DiGiorgio Enters., Inc., 559 F.3d 985 (9th Cir. 2009) ........................................................................ 18
Landmark Communications v. Virginia, 435 U.S. 829 (1978) ..................................................................................... 43
Lemons v. Bradbury, 538 F.3d 1098 (9th Cir. 2008) ...................................................................... 18
MacDonald v. Safir, 26 F. Supp. 2d 664 (S.D.N.Y. 1998) ............................................................ 23
Marbury v. Madison, 5 U.S. 137 (1803) ......................................................................................... 31
Mathews v. Eldridge, 424 U.S. 319 (1976) ..................................................................................... 58
McGehee v. Casey, 718 F.2d 1137 (D.C. Cir 1983) .................................................................... 53
McIntyre v. Ohio Elections Comm 'n, 514 U.S. 334 (1995) ..................................................................................... 55
McKinney v. Alabama, 424 U.S. 669 (1976) ..................................................................................... 57
Mistretta v. United States, 488 U.S. 361 (1989) ..................................................................................... 43
NAA CP v. Alabama, 357 U.S. 449 (1958) ............................................................................... 55, 56
Nat 'I Fed'n ofIndep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) ........................................................................... 31,61

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Nebraska Press Ass 'n v. Stuart, 427 U.S. 539 (1976) ..................................................................... 3, 19,21,44
New York Times v. United States, 403 U.S. 713 (1971) ..................................................................................... 44
Organizationfor a Better Austin v. Keefe, 402 U.S. 415 (1971) ..................................................................................... 43
Perry v. L.A. Police Dep't, 121 F.3d 1365 (9th Cir. 1997) ...................................................................... 48
R.A. V v. City ofSf. Paul, 505 U.S. 377 (1992) ..................................................................................... 46
Reno v. A CL U, 521 U.S. 844 (1997) ..................................................................................... 46
Roberts v. Us. Jaycees, 468 U.S. 609 (1984) ..................................................................................... 56
Sandpiper Village Condominium Ass 'n, Inc. v. Louisiana-Pacific Corp., 428 F.3d 831 (9th Cir. 2005) ........................................................................ 18
Santa Monica Food Not Bombs v. Santa Monica, 450 F.3d 1022 (9th Cir. 2006) ................................................................ 38, 39
Seattle Coal. Stop Police Brutality v. City ofSeattle, 550 F.3d 788 (9th Cir. 2008) ........................................................................ 50
Seattle Times v. Rhinehart, 467 U.S. 20 (1984) ................................................................................. 51,52
Shuttlesworth v. City ofBirmingham, 394 U.S. 147 (1969) ................................................................................. 3,49
Snepp v. United States, 444 U.S. 507 (1980) ..................................................................................... 53

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Steele v. Bulova Watch Co., 344 U.S. 280 (1952) ..................................................................................... 62
Texas v. Johnson, 491 U.S. 397 (1989) ..................................................................................... 47
Thomas v. Anchorage Equal Rights Commission, 220 F.3d 1134 (9th Cir. 2000) (en bane) ...................................................... 34
Thomas v. Chicago Park District, 534 U.S. 316 (2002) ..................................................................................... 22
Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) ..................................................................................... 48
United States v. Aguilar, 515 U.S. 593 (1995) ..................................................................................... 49
United States v. AMC Entertainment, Inc., 549 F.3d 760 (9th Cir. 2008) ............................................................ 62, 63, 64
United States v. Frandsen, 212 F.3d 1231 (lIth Cir. 2000) .................................................................... 23
United States v. Fulbright, 105 F.3d 443 (9th Cir. 1995)........................................................................ 49
United States v. Mendoza, 464 U.S. 154 (1984) ..................................................................................... 64
United States v. Navarro- Vargas, 408 F.3d 1184 (9th Cir. 2005) ...................................................................... 52
United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000) ..................................................................................... 46
United States v. Thirty-Seven (37) Photographs, 402 U.S. 363 (1971) ............................................................................... 34, 35

IX

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United States v. Windsor, 133 S. Ct. 2675 (2013) ........................................................................... 31,36
Village ofHoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982) ..................................................................................... 38
Walters v. Reno, 145 F.3d 1032 (9th Cir. 1998) ...................................................................... 18
Ward v. Rock Against Racism, 491 U.S. 781 (1989) ..................................................................................... 38 Federal Statutes
12 U.S.C. § 3414 ...................................................................................................... 8 15 U.S.C. § 1681 ...................................................................................................... 8 18 U.S.C. § 2703 ........................................................................................ 11,41,56 18 U.S.C. § 2709 ...................................................... ....................................... passim 18 U.S.C. § 3511 ...................................................... ....................................... passim 50 U.S.C. § 1861 .............................................................................................. 11,56 50 U.S.C. § 3162 ...................................................................................................... 8
Federal Rules Fed. R. Crim. P. 17 ................................................................................................. 56
Constitutional Provisions
U.S. Const., amend. r....................................................................................... passim
U.S. Const., amend. V ............................................................................ 4, 53, 57,65

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Legislative Materials
S. Rep. No. 99-307 (1986).......................................................................... 35, 59,61
USA PATRIOT Act Sunset Extension Act of2011, S. 193, 112th Congo (2011). 37
Other Authorities
Department of Justice, Office of Inspector General, A Review ofthe Federal Bureau ofInvestigation's Use ofExigent Letters and Other Informal Requests for Telephone Records (2010) ............................................................ 12, 13, 14, 15
Department of Justice, Office of the Inspector General, A Review ofthe FBI's Use ofNational Security Letters: Assessment ofCorrective Actions and Examination ofNSL Usage in 2006 (2008) ....................................... 10, 13, 14,24
Department of Justice, Office of the Inspector General, A Review ofthe Federal Bureau ofInvestigation's Use ofNational Security Letters (2007) ... 10, 12, 13, 14
Gov. Notice, Nos. Misc 13-03, 13-04, 13-05, 13-06, 13-07 (FISA Ct. Jan. 27, 2014) ..................................................................................................................... 16
Liberty and Security in a Changing World: Report and Recommendations from the President's Review Group on Intelligence and Communications Technologies (20 13) ....................................................................................... 11, 15
The Principles, Reform Government Surveillance, http://www.reformgovernmentsurveillance.com/ ................................................ 15

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INTRODUCTION "The teaching of our cases is that ... only a judicial determination in an adversary proceeding [of the lawfulness of a prior restraint] ensures the necessary sensitivity to freedom of expression ... "
Freedman v. Maryland, 380 U.S. 51, 58 (1965). The statutes governing National Security Letters ("NSLs"), 18 U.S.C.
§§ 2709, 3511 (hereinafter collectively the "NSL statute"), empower the FBI, without prior judicial authorization, to both demand customer records directly from Internet and telecommunication providers and to issue permanent gag orders that prevent the recipients from disclosing anything about the government's demand.
This unprecedented grant of authority to the FBI is unconstitutional on several grounds. The district court, like the Second Circuit before it, correctly held that the power to issue such gag orders offends the First Amendment because it authorizes the FBI to directly impose content-based prior restraints on speech and then insulates that Executive action from any kind of meaningful judicial review. Similarly, the statute authorizes the FBI to acquire potentially First Amendment protected information from NSL recipients without any obligation for a court to evaluate whether such actions are warranted. Whatever the scope of Congress' constitutional authority to grant investigatory powers to the FBI, it may not go so far as to effectively prevent both the courts and the individual whose First

1

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Amendment rights may be implicated from challenging the FBI's exerCIse of power.
The district court's decision striking down 18 U.S.c. §§ 2709(c), 3511(b)(2) and (b)(3) as unconstitutional-and enjoining the future use of NSLs and enforcement of NSL gags-should be affirmed. STATEMENT OF JURISDICTION
Petitioner-Appellee-Appellant "Under Seal" (hereafter "Appellee") agrees with the government's statement ofjurisdiction. STATEMENT OF ISSUES
1. Whether 18 U.S.c. § 2709(c), which allows the FBI to gag the recipient of a National Security Letter without any judicial determination, violates the First Amendment because it lacks the procedural protections for prior restraints required by Freedman v. Maryland, 380 U.S. 51 (1965).
2. Whether section 2709(c)'s nondisclosure provision violates the First Amendment because it is a content-based restriction that is not narrowly tailored and does not meet strict scrutiny.
3. Whether the standards of judicial review in 18 U.S.C. § 3511(b) for NSL nondisclosure orders are excessively deferential and therefore violate separation of powers and due process.

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4. Whether section 2709(c) violates the First Amendment because it authorizes the issuance of prior restraints that are not necessary to further a governmental interest of the highest magnitude. See Nebraska Press Ass 'n v. Stuart, 427 U.S. 539, 562 (1976).
5. Whether section 2709(c) violates the First Amendment because it fails to set forth narrow, objective and definite standards guiding the FBI's discretion as required by Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969).
6. Whether section 2709(c) violates the First Amendment because it authorizes the FBI to obtain information about potentially protected anonymous association and expression without any requirement for prior court approval.
7. Whether the district court abused its discretion in enjoining the FBI from issuing NSLs or enforcing NSL nondisclosure orders given the unconstitutionality of the NSL statute.
STATEMENT OF THE CASE AND FACTUAL BACKGROUND This is a consolidated appeal of two related actions involving Appellee. In
the first action, the district court struck down the NSL statute as facially unconstitutional, staying enforcement of its order pending this appeal. In re Nat 'I Sec. Letter, 930 F. Supp. 2d 1064 (N.D. Cal. 2013) (ER 7-30). The second action

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was a subsequent petition by Appellee to set aside additional NSLs; it was denied by the district court, which opted to defer future rulings on the facial unconstitutionality of the NSL statute until this Court had reviewed its initial decision. ER 3.
A. Note Regarding This Brief and the Brief Filed in Related Case No. 13-16732.
Also filed today is the opening appellate brief in related case No. 13-16732, filed by undersigned counsel on behalf of another NSL recipient who brought a similar challenge to the same NSL statute. While the cases raise most of the same issues (and would ordinarily be consolidated), the challenged NSL provisions at issue also prevent the respective petitioners from learning each other's identity or any information about their respective cases; for similar reasons, the government has not consented to the filing of a combined brief. Accordingly, to streamline the process as best possible, undersigned counsel is today filing nearly identical briefs on behalf of each client but separately and under seal in each case. The only material differences between the briefs, aside from the discussion of each petitioner's specific facts and procedural history, is that Appellee here additionally affirmatively challenges the NSL "compelled production" authority on First and Fifth Amendment grounds and defends the scope of the injunction issued by the district court. See pages 53-58, 61-65.

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B. Appellee's Appellee is a provider of long distance and mobile phone servIces.

C. The District Court's Decision Granting Appellee's Petition in 13-15957.
In 2011, Appellee received a National Security Letter from the FBI directing
Appellee "to provide to the Federal Bureau of Investigation (FBI) all subscriber
information, limited to name, address, and length of service, for all services provided to or accounts held by the named subscriber and/or subscriber of the

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named account" (the "15957 NSL"). ER 115, 117. The NSL prohibited Appellee from disclosing information about the NSL or its petition to Appellee's affected customer, to most of Appellee's employees and staff, to the press, to members of the public, and to members of Congress.
On May 2, 2011, Appellee filed a petition asking the district court to set aside the NSL, arguing that the statute was unconstitutional on its face and as applied. Nearly two years later, on March 14, 2013, the district court granted the petition to set aside the 15957 NSL declaring the statute to be facially unconstitutional. In re Nat 'I Sec. Letter, 930 F. Supp. 2d at 1074-75. The court held that the gag provision of the statute was unconstitutional because it failed to comport with the prior restraint procedural safeguards identified by the Supreme Court in Freedman v. Maryland by failing to require the government to initiate judicial review promptly. Id. The district court also found that the FBI's gag authority under the statute was a content-based restriction that failed strict scrutiny as "the government has not shown that it is generally necessary to prohibit recipients from disclosing the mere fact of their receipt of NSLs," id. at 1076, and "because [the review provisions] ensure that nondisclosure continues longer than necessary to serve the national security interests at stake." Id. Third, the court struck down the statutorily mandated standard of review of the gag provision found in 18 U.S.c. § 3511(b) and (c) on separation of powers and First Amendment

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grounds, holding that "the statute impermissibly attempts to circumscribe a court's

ability to review the necessity of nondisclosure orders." Id. at 1077. Fourth, the

court found that the gag provision was not severable from the statute and that

therefore both the gag authority and the underlying authority to issue NSLs must

be struck down. Id. at 1081. The court ultimately enjoined the government "from

issuing NSLs under § 2709 or from enforcing the nondisclosure provision in this or

any other case," staying the injunction pending this appeal. Id.

D. The District Court's Decision Denying Appellee's Petition in 13-16731.

In

2013,

Appellee

received two additional NSLs from the FBI (collectively, the "16731 NSLs").

ER 74. The NSLs demanded subscriber records regarding certain customers and

included a similar nondisclosure requirement to the one included with the 15957

NSL, preventing it from discussing the demand publicly. Id.

Appellee thereafter filed a second petition, asking the same district court to

set aside these newer NSLs on the same grounds. The district court, proceeding

with caution, abstained from applying its prior ruling to Appellee's new petition,

stating: "Whether the challenged nondisclosure provisions are, in fact, facially

unconstitutional will be determined in due course by the Ninth Circuit." ER 2.

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The Court denied Appellee's petition and granted the government's cross-petition to enforce the NSLs. ER 5.
E. The National Security Letter Statutory Framework. The NSL statute invoked here (18 U.S.C. § 2709), and NSL statutes generally, are relatively recent legislative creations that grant the FBI unprecedented powers to obtain on its own, in secret and without any prior judicial oversight, customer records as part of international terrorism and counterintelligence investigations. The first NSL statutes were passed in 1986, authorizing the compelled disclosure of bank customer records (as part of the Right to Financial Privacy Act (RFPA)) and records regarding telecommunications subscribers (as part of the Electronic Communications Privacy Act (ECPA)). See 12 U.S.C. § 3414(a)(5)(A) (1986); 18 U.S.c. § 2709 (1986). Today, five statutory provisions authorize the FBI to issue NSLs to a range of recipients to obtain a variety of types of user information.2 Section 2709 grants two primary powers to the FBI: (1) authority on the FBI's own certification to compel the production of certain customer information it decides is relevant to a national security investigation; and (2) authority to directly
2 See 18 U.S.C. § 2709 (telecommunications providers), 12 U.S.C. § 3414 (financial institutions), 15 U.S.C. §§ 1681u, v (consumer credit agencies), and 50 U.S.C. § 3162 (financial institutions, consumer credit agencies, travel agencies).
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Impose indefinite gags on NSL recipients, preventing them from publicly disclosing anything about the NSL, even that they have received one. Both powers are currently exercised without any mandatory court oversight, with only limited oversight coming if an NSL recipient-i. e., the service provider and not the target-petitions a district court for review.
Prior to the passage of the USA PATRIOT Act in 2001, NSL statutory authority, while still suffering from the fundamental infirmities discussed here, was relatively limited in scope, only allowing issuance by senior FBI officials and only upon a self-certification that: "there are specific and articulable facts giving reason to believe that the person or entity to whom the information sought pertains is a foreign power or an agent of a foreign power ...." 18 U.S.C. § 2709(b) (1996).
Section 505 of the PATRIOT Act, however, significantly broadened the NSL statute. First, NSLs could be issued by a Special Agent in Charge of any FBI field office. 18 U.S.C. § 2709(b) (2001). Second, rather than being available for the compelled production of records related to foreign powers or their agents, the revised statute allows the collection of any records "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities." Id. Third, instead of self-certif)ring that "specific and articulable" facts

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exist, the Special Agent need only self-certifY that the information is "relevant" to an authorized investigation. Id. 3
No explicit statutory mechanism by which a recipient could challenge the FBI's NSL authority existed until the NSL statutes were amended in 2006. Newlyadded 18 U.S.c. § 3511(a) authorized petitions by NSL recipients to modifY or set aside an underlying request for records under section 2709 "if compliance would be unreasonable, oppressive, or otherwise unlawful." 18 U.S.c. § 3511(b) authorizes petitions to modifY or set aside a gag under section 2709 under certain conditions and under a standard requiring deference to the FBI's certifications. The right to challenge the scope of a section 2709 gag as articulated in section 3511 (b) is conditional, imposing timing limitations about when such challenges can be brought as well as the degree of deference that must be given to FBI certifications. See 18 U.S.c. §§ 3511(b)(2), (3).

3 Not surprisingly, FBI NSL demands surged from about 8,500 NSL requests in

2000, the year before NSL requirements were loosened by the USA PATRIOT

Act, to more than 56,000 NSL requests in 2004 alone. Between 2003 and 2006,

the FBI issued a total of 191,180 NSL requests. By 2006, 60% of these requests

related to investigations of U.S. persons, and "the overwhelming majority" sought

telephone billing records, electronic and phone subscriber information, and

electronic communications transactional records. Department of Justice, Office of

the Inspector General, A Review of the Federal Bureau of Investigation's Use of

National

Security

Letters

120

(2007),

available

at

http://www.usdoj.gov/oig/special/s0703b/final.pdf ("2007 OIG Report");

Department of Justice, Office of the Inspector General, A Review of the FBI's Use

ofNational Security Letters: Assessment of Corrective Actions and Examination of

NSL Usage in 2006 107-108 (2008), available at

http://www.usdoj.gov/oig/special/s0803b/final.pdf(''2008 OIG Report").

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F. How NSLs Fit into the Panoply of Investigative Tools Available to the FBI and Law Enforcement.
The FBI and other law enforcement and intelligence officials have a broad range of alternative investigative tools permitting them to obtain the same records the FBI sought here, such as grand jury subpoenas, court orders under 18 U.S.c. § 2703(d), administrative subpoenas, criminal trial subpoenas, and (as the government maintains) orders issued under Section 215 of the PATRIOT Act, 50 U.S.C. § 1861. Indeed, the government has demonstrated the viability of such alternatives already, as discussed below at 40-41.
The fundamental difference between NSLs and these alternatives is that "NSLs such as the ones authorized by § 2709 provide fewer procedural protections to the recipient than any other information-gathering technique the Government employs to procure [similar] information ...." Doe v. Ashcroft, 334 F. Supp. 2d 471, 484-491 (S.D.N.Y. 2004) (describing in detail the structural differences between NSLs and other processes), vacated sub nom. Doe v. Gonzales, 449 F.3d 415 (2d Cir. 2006). See also Liberty and Security in a Changing World: Report and Recommendations from the President's Review Group on Intelligence and Communications Technologies 91-93 (2013) ("President's Review Grp.,,)4 (noting that other investigative tools have independent judicial check and/or allow a target
4 Available at http://www.whitehouse. gov/sites/default/files/docs/20 13 -1212_rg_final_report. pdf.
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to challenge them in court). Of all similar investigatory tools relied upon by the FBI to investigate criminal and national security-related matters by means of obtaining customer records from third party intermediaries, NSL statutes alone create a process whereby the Executive can self-issue both demands for customer information and accompanying nondisclosure requirements without any prior judicial involvement or giving the ultimate target of an investigation the ability to contest the underlying information request him or herself.
G. The FBI's History of Using (and Misusing) NSLs. Appellee's concern about the NSL statute's inclusion of a permanent, extrajudicial gag is based in part on the well-documented history of FBI abuse of NSLs. As part of the reauthorization of the USA PATRIOT Act in 2006, Congress directed the Department of Justice Inspector General ("IG") to investigate and report on the FBI's use of NSLs. In three reports issued between 2007 and 2010, the IG documented the agency's systematic and extensive misuse of NSLs.5 The Inspector General concluded that, left to itself to ensure that legal limits were respected, "the FBI used NSLs in violation of applicable NSL statutes, Attorney General Guidelines, and internal FBI policies." 2007 OIG Report 124.

5 2007 OIG Report; 2008 OIG Report; Department of Justice, Office of Inspector General, A Review of the Federal Bureau of Investigation's Use of Exigent Letters and Other Informal Requests for Telephone Records (2010), available at http://www.justice.gov/oig/specialis1001r.pdf ("2010 OIG Report").
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The 10 reports and Congressional testimony demonstrated severe, and largely unreported, problems:
• Between 2003 and 2006, the FBI's intelligence violations included improperly authorized NSLs, factual misstatements in the NSLs, improper requests under NSL statutes, and unauthorized information collection through NSLs. 2007 010 Report 66-67; 2008 010 Report 138-143; 2010 010 Report 2-4.
• The FBI's improper practices included requests for information based on First Amendment protected activity. 2010010 Report 6,89-122.
• The FBI has used "after-the-fact," blanket NSLs to "cover" original, informal, and indeed illegal requests for information. The 010 noted these blanket NSLs did "not cure any prior violations" and were "ill-conceived, legally deficient, contrary to FBI policy, and poorly executed." 2010010 Report 168, 184.
• Despite a requirement to report all violations, the OIO's review of 2003-05 investigative files at four FBI field offices revealed that 22% contained one or more possible violations that had never been reported, representing an overall possible violation rate of 7.5 percent. 2007 010 Report 78, 84; 2008 010 Report 76.
• The FBI issued hundreds of NSLs for "community of interest" or "calling circle" information to obtain multiple toll records in response to an individual NSL without the knowledge or approval of authorized NSL signers and
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without any determination that the telephone numbers were relevant to authorized national security investigations. 2010 010 Report at 60, 75-76. Between 2004 and 2009, this method was used to review 10,070 telephone numbers at a single communications service provider. Id. at 61.
• Between March 11,2003, and December 16,2005, at least 739 NSLs-requesting approximately 3,000 telephone numbers-were signed by unauthorized personnel. 2010010 Report 2.
• After violations had been brought to the FBI's attention, the 10 expressed concern that the FBI's attitude toward these matters "diminishes their seriousness and fosters a perception that compliance with FBI policies governing the FBI's use of its NSL authorities is annoying paperwork." 2008 010 Report 100.
• The 010 reports linked much of the FBI's NSL abuse problem to a lack of oversight, both outside and within the agency. 2010 010 Report 213-14, 219,279-85. The 010 determined in 2007 that the FBI failed to report as required nearly 4,600 NSL requests to Congress between 2003 and 2005, almost all of which were issued under section 2709. 2007010 Report 33.
• The 010 reports indicate that telecommunications employees who processed NSLs did not request separate legal process for community-of-interest records requests, the scope of which expanded exponentially to include people
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with whom contacts of targets were themselves in contact. 2010 OIG Report 59. The reports also indicate that in over half of all NSL violations submitted to the Intelligence Oversight Board, the NSL recipient either provided more information than requested or turned over information without receiving a valid legal justification from the FBI. Id. at 70.
The FBI's NSL practices continue to be of matter of public concern. In December 2013, the President's Review Group on Intelligence and Communications Technologies noted that the FBI continues to issue an average of 60 NSLs per day. See President's Review Grp. at 93. The Review Group recommended several limitations on the Bureau's NSL authority to better protect the privacy and civil liberties of Americans. These included restrictions on the issuance of and application of the non-disclosure provision ofNSLs; a requirement for judicial approval prior to the issuance of an NSL, absent "genuine emergency;" and public reporting-both by the government and NSL recipients-of the number of requests made, the type of information produced, and the number of individuals whose records have been requested. Id. at 26, 92-93, 122-23, 128.
A wide and growing range of telecommunications and technology companies have echoed the concerns of the Review Group,6 indicating a growing
6 See, e.g., The Principles, Reform Government Surveillance, http://www.reformgovernmentsurveillance.com/(coalition formed by AOL, Apple, Facebook, Google, LinkedIn, Microsoft, Twitter, and Yahoo calling on the
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frustration at their inability to communicate to their customers how often the government orders it to disclose customer information and on what legal basis.7
In its opening brief, the government asserts that it has "scrupulously"
followed the suggestions for self-imposed restrictions outlined by the Second
Circuit in Doe v. Mukasey, 549 F.3d 861 (2d Cir. 2008), since that decision was
issued, and that the statutory requirement of FBI self-certification "ensures that
these nondisclosure requirements are not being imposed unnecessarily."
Government's Opening Brief at 21, 41-42 ("Gov. Brief"). However, the
government has not presented any evidence to support its contention about the
"necessity" of NSLs it issued since the Mukasey decision or their legality and no
subsequent independent investigation of the FBI's use ofNSLs has occurred.
H. The Second Circuit's Doe v. Mukasey Decision. The district court's conclusion that the NSL statute is unconstitutional is in
fact in agreement with the Second Circuit's similar conclusion in Doe v. Mukasey,
government to "allow companies to publish the number and nature of government demands for user information"). 7 In response to petitions in the Foreign Intelligence Surveillance Court ("FISA Ct" or "FISC") by several technology companies, the Justice Department recently announced a voluntary agreement that will allow these "and other similarly situated companies" to report either (l) the number of NSLs they have received in bands of 1000, starting with 0-999 or (2) the number of all "national security process [sic] received" in bands of 250. See Gov. Notice, Nos. Misc 13-03, 13-04, 13-05, 13-06, 13-07 (FISA Ct. Jan. 27, 2014), available at http://www.uscourts.gov/uscourts/courts/fisc/misc-13 -03 -04-05-06-07-notice140127.pdf.
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the only decision in which a circuit court has considered the constitutionality of the NSL statute. The Mukasey court first found that the gag order provisions constituted prior restraints, although not of the "typical" variety, and were content based. Mukasey, 549 F.3d at 876. Second, the Mukasey court determined that the NSL statute was subject to the procedural requirements of Freedman v. Maryland and that the statute failed to satisfY those requirements because it does not obligate the government to initiate government review of NSL nondisclosure orders. Id. at 877-81. The Mukasey court also noted that (unlike in this case) "the Government has conceded that strict scrutiny is the applicable standard." Id. at 878. Finally, like the district court here, the Second Circuit held that the statutory standards of review "are unconstitutional to the extent that, upon such review, a governmental official's certification that disclosure may endanger the national security of the United States or interfere with diplomatic relations is treated as conclusive." Id. at 884. As discussed further below, the Mukasey court went on to include an advisory opinion about whether future hypothetical changes in government conduct might remedy the statute's unconstitutionality, a proposal which the district court here rejected. But the Second Circuit unequivocally concluded that the nondisclosure provisions of NSL statute as currently written are unconstitutional.

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STANDARD OF REVIEW This Court's review of a district court's ruling on a pennanent injunction
involves analysis of "factual, legal, and discretionary components." Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir. 1998). Factual findings are reviewed for "clear error." Lemons v. Bradbury, 538 F.3d 1098, 1102 (9th Cir. 2008). Legal conclusions are reviewed de novo. Sandpiper Village Condominium Ass 'n, Inc. v. Louisiana-Pacific Corp., 428 F.3d 831, 840 (9th Cir. 2005). A district court's decision to grant a pennanent injunction is reviewed for abuse of discretion. Internet Specialties W., Inc. v. Milon-DiGiorgio Enters., Inc., 559 F.3d 985, 993 (9th Cir. 2009). SUMMARY OF ARGUMENT
The district court's judgment decision in No. 13-15957 finding the NSL statute unconstitutional should be affinned. The NSL gag orders are unconstitutional prior restraints on speech. Moreover, the underlying authority to compel the production of potentially protected customer records without any court oversight violates the First Amendment as well as related procedural due process requirements in that they remove the traditional checks on Executive intrusion into First Amendment protected infonnation-i.e., the ability of the interested party whose infonnation is sought to challenge the demand directly or at minimum the

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need for pnor court approval. It also correctly determined that the statute improperly constrained the appropriate judicial review standard.
The district court was correct in declaring the statute to be facially unconstitutional and non-severable. The district court was also correct in determining that the facial constitutional deficiencies in the NSL process could not be cured by a voluntary "reciprocal notice" procedure as the statute did not require it; in any event, the voluntary procedure still would not solve the First Amendment procedural flaws in the statute. Moreover, the district court's subsequent inconsistent decision in No. l3-16731 to forego applying its prior holding that the NSL statute is facially unconstitutional cannot be sustained. This Court should affirm the district court's holding in No. l3-15957, reverse the district court's holding in No. l3-16731, and uphold the injunction barring the FBI from issuing future NSLs or enforcing any NSL gag order. ARGUMENT I. THE NSL STATUTE'S GAG ORDER PROVISION,
SECTION 2709(c), VIOLATES THE FIRST AMENDMENT BECAUSE IT LACKS THE PROCEDURES REQUIRED FOR PRIOR RESTRAINTS.
A. The NSL Statute's Gag Order Provision Authorizes Prior Restraints.
A prior restraint on free speech is "the most serious and the least tolerable infringement on First Amendment rights." Nebraska Press Ass 'n, 427 U.S. at 559.

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For this reason, the Supreme Court has imposed stringent procedural and substantive restrictions on them.
The statute's gag order provision authorizes the government to prevent NSL recipients from disclosing that they have received an NSL or anything about their interaction with the government. Because the statute prevents recipients from speaking in the first instance rather than imposing a penalty after they have spoken, the gags are prior restraints. Alexander v. United States, 509 U.S. 544, 550 (1993) ("The term prior restraint is used 'to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.'... [O]rders that actually forbid speech activities ... are classic examples of prior restraints.") (citation omitted, emphasis original).
The government argues that the gag orders are not prior restraints but "are instead, a common type of regulation that subjects a very narrow type of disclosure to sanction after the fact." Gov. Brief at 49. The government is wrong. The statute explicitly authorizes the FBI to require that an NSL recipient not speak. 18 U.S.c. § 2709(c)(1) ("no [NSL recipient] ... shall disclose ... that the Federal Bureau of Investigation has sought or obtained access to information or records under this section"); see also In re Nat'l Sec. Letter, 930 F. Supp. 2d at 1071; Mukasey, 549 F.3d at 876. Thus, although the NSL gag orders allow for
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punishment "after the fact," they undeniably take effect before the act of speaking, which is the touchstone in assessing whether a penalty on speech is a prior restraint. Indeed, the NSL issued to Appellee clearly states that "Title 18 U.S.C. § 2709(c) (1) and (2) prohibits you, or any officer, employee, or agent of yours, from disclosing this letter ...." ER 118.
Gag orders are routinely treated as prior restraints. See, e.g., Nebraska Press, 427 U.S. at 529 (analyzing temporary gag order for purposes of empanelling a jury to be a prior restraint). Accordingly, prior restraints authorized by section 2709(c) must satisfY both the procedural and substantive requirements mandated by the First Amendment. They satisfY neither.
B. The Gag Order Provision Is Unconstitutional Because It Authorizes Prior Restraints Without Including Any of the Procedural Protections Mandated by the First Amendment.
The district court correctly held that section 2709(c) lacks the procedural protections required of prior restraints set forth by the Supreme Court in Freedman v. Maryland and is thus facially unconstitutional. See In re Nat 'I Sec. Letter, 930 F. Supp. 2d at 1074-75. In Freedman v. Maryland, the Supreme Court stated that any administrative scheme to require governmental permission before one can speak must have built into it three core procedural protections that emphasize the necessity ofjudicial review: (1) any restraint imposed prior to judicial review must be limited to "a specified brief period"; (2) any restraint prior to a final judicial

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determination must be limited to "the shortest fixed period compatible with sound judicial resolution"; and (3) the burden of going to court to suppress speech and the burden of proof in court must be placed on the government. Freedman, 380 U.S. at 58-59.
Thus a statute must obligate the government to seek court approval for any administratively-imposed gag order, it must obligate the government to do so promptly if it wants the gag to be in effect prior to judicial review, and it must guarantee that the court will issue a final determination promptly. Id.; see also Mukasey, 549 F.3d at 879; FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 227 (1990); Thomas v. Chicago Park District, 534 U.S. 316, 321 (2002).
Every court that has evaluated the NSL statute has faulted it for failing to satisfY the Freedman procedures, including the Second Circuit in Doe v. Mukasey. Specifically, the Second Circuit determined that by allowing the executive branch to unilaterally gag NSL recipients "who had no interaction with the Government until the Government imposed its nondisclosure requirement upon it," the NSL statute must meet the procedural requirements set forth in Freedman v. Maryland. Mukasey, 549 F.3d at 877-81. The district court here independently reached the same conclusion. In re Nat 'I Sec. Letter, 930 F. Supp. 2d at 1073-74.
The government's arguments that Freedman does not apply and that the statute may be upheld even if its requirements are not met are incorrect. The
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government first fundamentally misconstrues the nature of the Supreme Court's Freedman holding, confusing the impact of a statute failing to comply with the Freedman procedural requirements with the separate approach to evaluating overbreadth challenges. See Gov. Brief at 44-48. In order to make a facial challenge, a Freedman challenger need not demonstrate that there "are no conceivable set of facts where the application of the particular government regulation might or would be constitutional," United States v. Frandsen, 212 F.3d 1231, 1236 (1Ith Cir. 2000) (citing Freedman, 380 U.S. at 58-60), but rather that the statute lacks "adequate procedural safeguards necessary to ensure against undue suppression of protected speech." Baby Tam & Co., Inc. v. City of Las Vegas, 154 F.3d 1097, 1100 (9th Cir. 1998); see also MacDonald v. Safir, 26 F. Supp. 2d 664, 674 n.14 (S.D.N.Y. 1998) (noting that the overbreadth analysis established in Broadrick v. Oklahoma, 413 U.S. 601 (1973) and its progeny "is simply not an accurate statement of the law with respect to Freedman challenges."). The Freedman procedural requirements are binary-they either exist on a statute's face or they do not-and their absence cannot be cured through case-by-case analysis and by voluntary compliance with nonstatuory limitations.
The government can cite no authority to support its novel Freedman contention-that a prior restraint statute that fails to incorporate the Freedman requirements can be upheld because challengers cannot additionally satisfY the

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burdens of an overbreadth challenge-because no other such authority exists. This is because the Freedman Court was concerned about different hanns than overbreadth, chiefly ensuring the prompt, affinnative role of the judiciary when administrative prior restraints are threatened. Indeed, Freedman itself directly contradicts the government's argument. The Freedman Court explicitly stated that the procedural requirements it articulated were separate from and in addition to those related to First Amendment overbreadth challenges: "[W]e have no occasion to decide whether the vice of overbroadness infects the Maryland statute ...." Freedman, 380 U.S. at 56. Notwithstanding the fact that the Maryland statute was not found to be overbroad, the Freedman Court struck it down based on its failure to include the necessary procedural requirements.
The government next makes the unsupportable claim that Freedman does not apply because the concerns underlying other speech licensing schemes are not present here. Gov. Brief. at 48-5l. The government claims that, unlike the government film evaluators in Freedman, the FBI is not biased toward issuing gag orders. But the OIG reports indicate that the FBI issues gag orders nearly 97% of the time it issued NSLs. 2008 OIG Report 124. And throughout its brief the government acknowledges that most of its investigations "must be carried out in secrecy if they are to succeed." Gov. Brief at 8. See also, e.g., ER 103 (Redacted, Unclassified Declaration of FBI Assistant Director Mark F. Giuliano ("Giuliano
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Decl.") ~ 9). Clearly, the FBI prefers secrecy. And although there are occasions in which such secrecy may be required, in order to ensure that the FBI's preference is not substituted for an actual need for secrecy in each case where it imposes a gag, Freedman requires that nondisclosure decision not be the FBI's alone.
The government finally asserts that Freedman does not apply because the gag the FBI issues only reaches "information provided by the Government." Gov. Brief at 50. This is false: the gag prevents the recipient from discussing more than the fact of the NSL; it cannot describe its own experience in receiving and responding to the NSL, and its objections to that experience. But, even if it were true that the gag only reached information provided in the NSL itself, this would be irrelevant. Unlike the cases in which Freedman has been found inapplicable, as both the district court and the Mukasey court observed, the gag prevents the NSL recipient from discussing a circumstance that has been thrust upon it unwillingly. In re Nat'l Sec. Letter, 930 F. Supp. 2d at 1071-72; Mukasey, 549 F.3d at 877.
The Freedman requirements apply in full to the NSL statute. 1. The NSL Statute Violates the First Prong of the Freedman Test Because It Neither Assures That Judicial Review of NSL Gags Takes Place Nor Limits Pre-Review Gags to "a Specific Brief Period."
The gag order scheme fails Freedman's first prong-that any restraint imposed prior to judicial review must be limited to "a specified brief period, to either issue a license or go to court to restrain" the speech in question. 380 U.S.
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at 59. This limitation is important because without it the government can use the unlimited duration of the gag to effectively avoid judicial review by imposing the burden of seeking judicial review on the recipient.
The NSL statute permits an imposition of a gag of indefinite duration, with no requirement whatsoever that the government ever seek court approval, something the government concedes. Gov. Brief at 53 ("this latter mechanism is not contained within the four comers of the statute"). This is inconsistent with the Freedman Court's admonition that a potential speaker must be "assured" by the statute that a censor "will, within a specified briefperiod, either issue a license or go to court to restrain" the speech at issue is wholly absent from the NSL statute. Freedman, 380 U.S. at 59 (emphasis added). See also In re Nat 'I Sec. Letter, 930 F. Supp. 2d at 1073.
2. The NSL Statute Violates the Second Prong of the Freedman Test Because It Does Not Assure a Prompt Final Judicial Decision.
The gag order scheme also fails Freedman's second prong-that the scheme in question "must ... assure a prompt final judicial decision." Freedman, 380 U.S. at 59. This second requirement reflects the Supreme Court's concern that "unduly onerous" procedural requirements that drive up the time, cost, and uncertainty of judicial review of speech licensing schemes discourage the exercise of protected First Amendment rights. Id. at 58.

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A lengthy and protracted process of judicial determination, which leaves the gag order in place in the interim and potentially comes after the value of speaking about the issues gagged has diminished, "would lend an effect of finality to the censor's determination" that the gag order is valid. Id. As the Supreme Court has recognized in a variety of contexts, the deprivation of First Amendment rights, for even a limited period of time, causes a significant constitutional injury. See Elrod V. Burns, 427 U.S. 347, 373 (1976).8
The Supreme Court has not specified precisely how quickly a final judicial decision must come, but it did conclude that it had to be faster than the four months for an initial judicial review and six months for appellate review as had occurred in Freedman. 380 U.S. at 55, 61. By contrast, in the current case, with no statutory limitations to the contrary, the district court issued its opinion over 15 months after the hearing on the petition. Moreover, notwithstanding that order, the gag remains in effect, 34 months and counting since the filing of the petition. Whatever constitutes the outer counters of a "prompt" final judicial determination, such limits must be both brief and finite. The NSL statute provides neither.9
8 The government incorrectly states that Appellee has not alleged a violation of the second prong, but that is not true; Appellee expressly challenged it in No. 1316731. SER59. 9 The Second Circuit in Mukasey properly recognized that the NSL statute did not contain any such limitation and opined that to be constitutional any judicial proceeding evaluating the appropriateness of an NSL "would have to be concluded within a prescribed time, perhaps 60 days." Mukasey, 549 F.3d at 879.
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3. The NSL Statute Violates the Third Prong of the Freedman Test Because It Does Not Place the Burden of Going to Court and the Burden of Proof on the Government.
The NSL statute also violates the third Freedman prong-that "the burden of going to court to suppress speech and the burden of proof in court must be placed on the government"-in two ways. See Mukasey, 549 F.3d at 871 (citing Freedman, 380 U.S. at 58-59).
First, instead of requiring the government to go to court to seek permission to suppress speech, section 2709(c) requires the recipient of an NSL to initiate judicial review by petitioning for an order modifYing or setting aside the nondisclosure requirement. 18 U.S.c. § 3511(b).
Second, the NSL statute fails to place the burden of justifYing the need for the gag order on the government when the matter is actually brought to court; indeed, the statute deprives that court of any meaningful authority to exercise its constitutional oversight duties. Instead, a court may only modifY the nondisclosure requirement if it finds there is "no reason to believe that disclosure may endanger the national security of the United States, interfere with a[n] ... investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person." 18 U.S.C. § 3511(b)(2). And where senior FBI or DO] officials certifY the need for the gag order, the court has even less discretion: a court is not

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permitted to evaluate the facts, but instead is required to blindly accept the FBI's representatI•ons. 10
As the district court held below, these attempts to shift the burden to the NSL recipient violates the third Freedman prong. In re Nat 'I Sec. Letter, 930 F. Supp. 2d at 1077 ("as written, the statute impermissibly attempts to circumscribe a court's ability to review the necessity of nondisclosure orders."); see also Mukasey, 549 F.3d at 883.
That the statute allows for the recipient to initiate judicial review in some situations thus does not cure this defect, contrary to the government's assertion. See Gov. Brief at 52. One of the Supreme Court's explicit goals behind imposing the Freedman requirements was to counteract the self-censorship that occurs when would-be speakers are unwilling or unable to initiate judicial review themselves. Freedman, 380 U.S. at 59.

10 If, at the time of the petition, the FBI "certifies that disclosure may endanger the national security of the United States or interfere with diplomatic relations, such certification shall be treated as conclusive unless the court finds that the certification was made in bad faith." 18 U.S.C. § 3511(b)(2). There is no procedure for factual review whereby the court could determine whether such certification was made in bad faith.
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4. The Second Circuit and the District Court Agree: Freedman Applies to the NSL Statute, the NSL Statute Conflicts With the First Amendment, and There Is No Possible Constitutional Construction of the NSL Statute.
There is no conflict between the statutory and constitutional interpretation of the district court and the Second Circuit in Mukasey regarding the nondisclosure provision, only a disagreement on the question of remedy. Both courts concluded that the Freedman standard governs the NSL statute, that the NSL statute conflicts with the First Amendment because it violates the third Freedman prong, and that there was no limiting construction of the NSL statute that could save it.
Importantly, the Second Circuit was unequivocal that there was no possible construction that could save the nondisclosure provision of the NSL statute: "We deem it beyond the authority of a court to 'interpret' or 'revise' the NSL statutes to create the constitutionally required obligation of the Government to initiate judicial review of a nondisclosure requirement." Mukasey, 549 F.3d at 883. Thus, the government misreads Mukasey when it asserts that the Second Circuit "found that the provisions [i.e., sections 2709(c) and 3511(b)] are also susceptible to a different reasonable interpretation that renders them constitutional." Gov. Brief at 24.
The district court here agreed with the Second Circuit's view of section 2709(c): "The statutory provisions at issue-as written, adopted and amended by Congress in the face of a constitutional challenge-are not susceptible

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to narrowing or conforming constructions to save their constitutionality." In re Nat 'I Sec. Letter, 930 F. Supp. 2d at 1080. That conclusion is correct because, as the court noted, the "multiple inferences required to save the provisions at issue are not only contrary to evidence of Congressional intent, but also contrary to the statutory language and structure of the statutory provisions actually enacted by Congress." Id.
5. The District Court Properly Invalidated the Nondisclosure Provision.
Because the nondisclosure provision is unconstitutional, the district court had no choice but to invalidate them. This rule is as old as Marbury v. Madison and its application is as recent as the Supreme Court's invalidation of the Defense of Marriage Act and its partial invalidation of the Affordable Care Act. "[A] law repugnant to the constitution is void." Marbury v. Madison, 5 U.S. l37, 180 (1803). "[T]here can be no question that it is the responsibility of this Court to enforce the limits on federal power by striking down acts of Congress that transgress those limits." Nat 'I Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2579-80 (2012) (citing Marbury); see United States v. Windsor, 133 S. Ct. 2675 (20l3) (invalidating Defense of Marriage Act).
The district court here followed its constitutional duty and declared the nondisclosure provision unconstitutional in No. 13-15957. In re Nat 'I Sec. Letter,

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930 F. Supp. 2d at 1067. However, its failure to do so again in No. 13-16731 must,
for these same reasons, be reversed.
6. Voluntary Deviations by the FBI from The Procedures Mandated by the NSL Statute Cannot Save the Statute from Unconstitutionality.
The government contends that it has cured the unconstitutionality of the
nondisclosure provisions of the NSL statute by adopting new notice procedures for
NSLs-procedures that are not required by the NSL statute. This contention lacks
merit and should be rejected. II
First, critically, even if the voluntary adoption of the Mukasey's court's
suggested reciprocal notice procedure was appropriate (which it is not), it could not
cure the statute's unconstitutionality because it still fails the Freedman
requirements. Not only does the reciprocal notice process still not mandate that the
II The government, citing the district court, maintains that Appellee has conceded that if the NSL statute contained the Mukasey reciprocal notice provisions, it would satisfY the Freedman requirements. Gov. Brief at 33-34; ER 13. This is not the case, as the exchange at oral argument on which the government apparently relies demonstrates. Appellee's point was that only an amended statute that strictly complied with all three Freedman requirements would be constitutional. In response to a question from the court about whether the statute would still be unconstitutional after a congressional amendment incorporating the reciprocal notice procedure, Appellee's counsel stated, "I don't think so ... To put the burden on the government, to make sure that the government is the moving party and it is not left to the recipient of an NSL and the period of time in which the Court has[,] ... if Congress had built those three Friedman [sic] steps in, then I think that would solve the infirmity that we've raised in our petition." SER 16. (Tr. 10: 1324). Counsel later stated, "[T]he Mukasey court, I strongly believe that it did not comply with the requirements of Friedman [sic]." SER 18 (Tr. 12: 1).
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FBI obtain a judicial evaluation of its NSL gags, the proposed process does
nothing to ensure prompt judicial review and thereby cabin the length of a
challenged gag, a failure highlighted by the nearly two-year delay between
Appellee's initial filing and the district court's eventual decision to strike down the
statute and set the NSL aside.
In any event, even if the voluntarily-adopted procedures in some way
mitigated the constitutional shortcomings, the government is incorrect in
suggesting that such non-statutory limitations can be grafted onto the NSL process.
The Mukasey court, as noted, held that it was "beyond the authority of a court to
'interpret' or 'revise' the NSL statutes to create the constitutionally required
obligation of the Government to initiate judicial review of a nondisclosure
requirement." Mukasey, 549 F.3d at 883. But after concluding that no saving
construction was possible, it went on to speculate in dicta that if the government
were to change its practices and adopt a hypothetical "reciprocal-notice" provision,
that "perhaps" would mitigate the unconstitutionality of the statute:
The Government could inform each NSL recipient that it should give the Government prompt notice, perhaps within ten days, in the event that the recipient wishes to contest the nondisclosure requirement. Upon receipt of such notice, the Government could be accorded a limited time, perhaps 30 days, to initiate a judicial review proceeding to maintain the nondisclosure requirement, and the proceeding would have to be concluded within a prescribed time, perhaps 60 days. In accordance with the first and second Freedman safeguards, the NSL could inform the recipient that the nondisclosure requirement would remain in effect during the entire interval of the recipient's decision
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whether to contest the nondisclosure requirement, the Government's prompt application to a court, and the court's prompt adjudication on the merits. The NSL could also inform the recipient that the nondisclosure requirement would remain in effect if the recipient declines to give the Government notice of an intent to challenge the requirement or, upon a challenge, if the Government prevails in court. Id. at 879 (citation omitted). The Mukasey court went on to assert that if the government were to voluntarily adopt this hypothetical procedure, the Second Circuit could then impose time limits on the process, including imposing time limits on district courts nationwide mandating when they must act. Id. at 883. As its liberal use of the future conditional tense demonstrates, the Mukasey court's speculation was an impermissible advisory opinion, for there was no case or controversy before the Second Circuit regarding the hypothetical reciprocalnotice procedure, which the government at that point had never proposed, much less implemented. The Second Circuit erred in issuing this advisory opinion. A federal court's "role is neither to issue advisory opinions nor to declare rights in hypothetical cases, but to adjudicate live cases or controversies consistent with the powers granted the judiciary in Article III of the Constitution." Thomas v. Anchorage Equal Rights Commission, 220 F.3d 1134, 1138 (9th Cir. 2000) (en banc). The district court properly rejected the authority relied upon by the Mukasey Court in its attempt to remedy the unconstitutionality it found in the NSL statute. United States v. Thirty-Seven (37) Photographs, for example (the primary
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authority relied upon by the Mukasey court but not discussed by the government here), involved a pre-Freedman statute for which there was extensive legislative history recognizing the need for and desirability of prompt judicial review of a prior restraint. This allowed the Court to conform the statutory language to the subsequently-articulated Freedman First Amendment requirements. 402 U.S. 363, 370 (1971). Here, by contrast, there is no evidence that Congress intended for NSL recipients to enjoy the protections mandated by Freedman. Indeed, the Mukasey court concluded that a limiting construction that would make the statute constitutional was impossible. Mukasey, 549 F.3d at 883. As the district court rightly found, "in amending and reenacting the statute as it did, Congress was concerned with giving the government the broadest powers possible to issue NSL nondisclosure orders and preclude searching judicial review of the same." In re Nat'l Sec. Letter, 930 F. Supp. 2d at 1080. Congress was fully aware of the mandates of the Freedman Court, articulated over 20 years before the NSL statute was first passed and over 40 years before the latest amendments to the statute were passed. The legislative history confirms what is clear on the statute's face: Congress' objective in enacting the NSL statute was to mandate access to information sought by law enforcement, not in any way to ensure that procedural checks were robust. See S. Rep. No. 99-307, at 3 (1986) ("[T]he Committee focused careful attention on the following major intelligence requirements: ... The

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provision of timely and focused information in support of U. S. military operations and diplomacy worldwide."). With neither statutory language nor legislative history upon which to base a limiting construction, the statute's facial unconstitutionality is fatal.
Appellee is aware of no other instance where a court has found a statute unconstitutional and incapable of being saved by a limiting construction and yet has gone on to suggest that the government can continue to exercise the powers granted to it by the unconstitutional statute if it disregards the procedures Congress mandated in the statute and simply invents new ones. Indeed, for the Executive and the courts to combine to make an end run around the statute that Congress enacted, as has now occurred with the FBI's adoption of the Mukasey court's suggestion, raises grave separation of powers questions. Windsor, 133 S. Ct. at 2688 ("[W]hen Congress has passed a statute and a President has signed it, it poses grave challenges to the separation of powers for the Executive at a particular moment to be able to nullifY Congress' enactment solely on its own initiative and without any determination from the [Supreme] Court."). The Constitution does not permit the Executive and the courts to substitute different procedures for those that Congress enacted. The invented procedures suggested by the Mukasey court and

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subsequently adopted by the FBI are a usurpation of congressional authority over the NSL statutory scheme. 12
The government argues nonetheless that the "reciprocal notice" procedure saves the statute from facial invalidity, because the procedure has been "accepted. .. and fully implemented" by the FBI and is therefore a "wellunderstood and uniformly applied practice... that has virtually the force of a judicial construction." Gov. Brief at 53 (quoting City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 770 n.11 (1988». However, the cases in which the Supreme Court has considered an established government practice as a limitation on a statute under facial attack do not support the government's position.
First, fundamentally, the "well-established practice" doctrine only applies where the statute is "fairly susceptible" to a narrowing construction. City of Lakewood, 486 U.S. at 770 & n.11 (citing Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975». This is because the well-established practice simply functions as a narrowing construction. As the district court and the Mukasey court both held,

12 Congress has explicitly considered amendments to the NSL statute to fix some of the Freedman deficiencies identified by the Mukasey court and later by the district court, but no amendments have thus far been passed. See, e.g., USA PATRIOT ACT Sunset Extension Act of 2011, S. 193, 112th Congo (2011), available at http://www.govtrack.us/congress/bills/112/s 193/text (last visited January 28, 2014) (Section 6(b): mandating a 30-day deadline by which the government must apply for a court order to enforce an NSL and gag and compelling a district court to "rule expeditiously" on such an application).
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the NSL statute is not susceptible to any such limiting construction. In re Nat'l Sec. Letter, 930 F. Supp. 2d at 1080.
Second, the "well-established practice" doctrine described in City of Lakewood applies to First Amendment challenges to state statutes. 486 U.S. at 770. For reasons of federalism, federal courts are bound by a state court's authoritative construction of the statute. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n.5 (1982). By extension, federal courts defer to the practice of a state agency or municipal authority that is so "well-established" that it has attained "the force of a [state] judicial construction." City of Lakewood, 486 U.S. at 770 n.ll ("the state law is read in light of' well-established practice) (emphasis added); see also, e.g., Forsyth County v. Nationalist Movement, 505 U.S. 123, 131 (1992) (considering county's "authoritative constructions of the [county] ordinance"); Ward v. Rock Against Racism, 491 U.S. 781, 795-96 (1989) ("federal court must . . . consider any limiting construction that a state court or enforcement agency has proffered.") (internal quotations and citations omitted). The cases cited by the government, Hoye v. City of Oakland, 653 F.3d 835 (9th Cir. 2011) and Santa Monica Food Not Bombs v. Santa Monica, 450 F.3d 1022 (9th Cir. 2006), involve challenges to city ordinances. It points to no authority in which this doctrine has been applied to the allegedly well-established practice of a federal agency administering a federal

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statute as opposed a state or local law. See Arnold v. Morton, 529 F.2d 1101, 1104 (9th Cir. 1976) (stating that in regard to allegedly well-established practice of Secretary of the Interior, "[a]dministrative practice is no authority when that practice is contrary to law.").
Third, the policy underlying these cases does not support reading the reciprocal-notice procedure as a narrowing construction on the NSL statute. In City of Lakewood, the Court explained that unless an administrative policy is so well-established as to be binding, reading it into a statute would require "the very presumption that the doctrine forbidding unbridled discretion disallows," namely that an official entrusted with discretion will act according to constitutional requirements. 486 U.S. at 770 (citing Freedman); cf Santa Monica, 450 F.3d at 1035 (finding that Administrative Instruction was adopted by the city and was "binding on the City's enforcement staff' and "is therefore properly viewed as ... [an] authoritative interpretation").
Here, by contrast, the district court correctly found that the government's commitment to reciprocal notice was "voluntary" and therefore "not sufficient to demonstrate the existence of ... an agency's 'authoritative construction.'" In re Nat 'I Sec. Letter, 930 F. Supp. 2d at 1073. For this reason, even if the FBI had adopted reciprocal notice as a formal policy, "the fact that the statute is facially deficient ... presents too great a risk of potential infringement of First Amendment

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rights to allow the FBI to side-step constitutional review ...." Id. at 1074. The government makes no argument to the contrary, pointing only to an FBI declaration indicating what the FBI has voluntarily "implemented" but to nothing that would legally bind its behavior. See Gov. Brief at 11; ER 48-50.
The Freedman deficiencies that remain with the FBI's post-Mukasey NSL practices do not raise merely theoretical concerns. In both related cases now before this Court, the FBI did not commit to seeking judicial review and did not in fact file an affirmative request for judicial review until after Appellee had filed its own challenge to the statute. The Freedman requirement would be meaningless if it could be satisfied by the government's rushing to court after a would-be-speaker had itself already done so, as happened here; one of the Supreme Court's explicit goals behind imposing the Freedman requirements was to counteract the selfcensorship that occurs when would-be speakers are unwilling or unable to initiate judicial review themselves. Freedman, 380 U.S. at 59.
And indeed, the government's own behavior in the No. 13-16732 appeal gives lie to the government's assertion that its purported adoption of the Mukasey "reciprocal notice procedure guarantees prompt initiation of judicial review by the government." Gov. Brief at 53. In 13-16732, a separate NSL recipient filed a similar petition to set aside two NSLs. Instead of the government moving forward with its "guarantee" to solicit court review for the NSL gag, the FBI withdrew the

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NSL and filed an ex parte application for the information in the District Court for the Eastern District of Virginia pursuant to 18 U.S.c. 2703(d). See In re Nat'/ Sec. Letters, No. 13-1165, slip op. at 1 n.1 (N.D. Cal. Aug. 13, 2013), on appeal as No. 13-16732. 13 That the government may unilaterally impose a non-judicial gag on an NSL recipient that it need not justifY before an Article III court until the recipient indicates that it should, and then withdraws the NSL before it must justifY its behavior before that court, raises precisely the kinds of concerns about arbitrariness and chilling effects that the Freedman Court was concerned about. In 13-16732 (and perhaps with other such NSL challenges that remain secret), the "orphan" gag-now detached from the underlying NSL request-remains in effect. Given the disincentives already in place in the NSL statute, the chances that an NSL gag would ever receive judicial review are already vanishingly small. The FBI's practice of issuing NSLs and then revoking them in some circumstances when they are actually contested plainly exacerbates the constitutional infirmities further. The "voluntary" nature of the NSL process-leaving all manner of discretion in the hands of the FBI-is precisely the problem.

13 Available in the excerpts of record accompanying appeal number 13-16732. 41

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II. THE STANDARDS OF JUDICIAL REVIEW OF THE NONDISCLOSURE REQUIREMENT IN 18 U.S.C. § 3511(b) ARE EXCESSIVELY DEFERENTIAL AND VIOLATE SEPARATION OF POWERS AND DUE PROCESS. Even if judicial review of the gags takes place, the district court rightly
concluded that the applicable provisions of sections 3511(b)(2) and (3) fail to meet
the requirements of the Constitution. Sections 3511(b)(2) and (3) prevent
independent review and instead impose an extremely deferential standard of
review. Specifically, the statute allows the court to dissolve the agency's gag order
only if the court:
finds that there is no reason to believe that disclosure may endanger the national security of the United States, interfere with a criminal, counterterrorism, or counterintelligence investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person. 18 U.S.c. §§ 3511(b)(2), (3) (emphasis added). The statute further requires that if
anyone of a long list of government officials so certifies, "such certification shall
be treated as conclusive unless the court finds that the certification was made in
bad faith." Id. The district court correctly observed that "the Court can only
sustain nondisclosure based on a searching standard of review, a standard
incompatible with the deference mandated by Sections 3511(b) and (c)." In re
Nat'/ Sec. Letter, 930 F. Supp. 2d at 1077. The Second Circuit in Mukasey similarly rejected this deferential review standard, highlighting the separation of
powers concerns: "The fiat of a governmental official, though senior in rank and
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doubtless honorable in the execution of official duties, cannot displace the judicial obligation to enforce constitutional requirements." Mukasey, 549 F.3d at 882-83. 14
As the Supreme Court has noted, "Deference to a legislative finding cannot limit judicial inquiry when First Amendment rights are at stake." Landmark Communications v. Virginia, 435 U.S. 829, 843 (1978). Ultimately, here, by limiting the Court, the NSL statute "impermissibly threatens the institutional integrity of the Judicial Branch" in violation of separation of powers. Mistretta v. United States, 488 U.S. 361, 383 (1989) (quoting Commodity Futures Trading Com. v. Schor, 478 U.S. 833, 851 (1986)). III. THE NSL STATUTE ALSO FAILS TO SATISFY THE
SUBSTANTIVE REQUIREMENTS FOR PRIOR RESTRAINTS. In addition to the procedural requirements of Freedman, a prior restraint must be justified on substantive grounds and will be invalid unless it survives the most exacting scrutiny. "Any prior restraint on expression comes to [a court] with a heavy presumption against its constitutional validity" and "carries a heavy burden of showing justification." Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971) (internal quotation marks omitted).
14 The government argues for the first time on appeal that the district court impermissibly struck down the statute based on a legal standard not at issue here: the conclusiveness of an NSL certification submitted by a senior official. Gov. Brief at 59. Even if this argument could be raised for the first time here, the government ignores the excessive deference required as to its lowered certification standard. In re Nat'I Sec. Letter, 930 F. Supp. 2d at 1078.
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To pass constitutional muster, prior restraints must be necessary to further a governmental interest of the highest magnitude. See Neb. Press Ass'n, 427 U.S. at 562. The prior restraint will be necessary only if: (1) the harm to the governmental interest will definitely occur; (2) the harm will be irreparable; (3) no alternative exists for preventing the harm; and (4) the prior restraint will actually prevent the harm. See id.
This exacting scrutiny applies even if the asserted governmental interest is national security. In the Pentagon Papers case, New York Times v. United States, 403 U.S. 713 (1971), the Supreme Court, in a briefper curiam decision, found that the United States' request for an injunction preventing the New York Times and Washington Post from publishing the contents of a classified study of U.S. policy towards Vietnam was an impermissible prior restraint; the government had not overcome the "heavy presumption" against the constitutionality of a prior restraint on speech and failed to carry its "heavy burden of showing justification for the imposition of such a restraint." Id. at 714. Justice Stewart, joined by Justice White, faulted the government for not demonstrating that disclosure of the information will "surely result in direct, immediate, and irreparable damage to our Nation or its people." 403 U.S. at 730 (Stewart, J. joined by White, J., concurring).
The gag order imposed on Appellee fails to meet this exacting scrutiny because the government did not need to prove that it is "necessary." Nebraska

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Press, 427 U.S. at 562. Although Appellee is not privy to the specific facts presented in camera to the district court, the statute only required the government to show that the harm to national security "may" occur, whereas the prior restraint test requires that it "must" occur.
Nor did the statute require the government to prove that the harm caused by Appellee's disclosure of the mere fact that it had received an NSL would be irreparable. Because the government has disputed that the prior restraint test applies at all and because the statute does not require it, it would be surprising if the government submitted evidence to satisfy the test. Lastly, the gag order of unlimited duration is highly unlikely to be the only alternative for preventing the harm to national security; a time-limited gag order is one obvious alternative. IV. THE NONDISCLOSURE PROVISION VIOLATES THE FIRST
AMENDMENT BECAUSE IT IS A CONTENT-BASED RESTRICTION ON SPEECH THAT FAILS STRICT SCRUTINY. The district court also correctly held that the statute is unconstitutional for the independent reason that section 2709(c) is a content-based restriction on speech that does not meet the requirements of strict scrutiny. See In re Nat'/ Sec. Letter, 930 F. Supp. 2d at 1075 ("as content-based restrictions on speech, the NSL nondisclosure provisions must be narrowly tailored to serve a compelling governmental interest."). Indeed, while it does not do so here, the government has previously "conceded that strict scrutiny is the applicable standard" for a review of

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the nondisclosure provision, a concession adopted by the Second Circuit in its evaluation of the statute. Mukasey, 549 F.3d at 878.
Under the strict scrutiny standard, the gag order provision is "presumptively invalid." R.A. V v. City of St. Paul, 505 U.S. 377, 382 (1992) ("content-based regulations are presumptively invalid"). To survive strict scrutiny review, the government must show that a restriction on free speech is "narrowly tailored to promote a compelling Government interest." United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000). This narrow tailoring requires that the restriction on speech directly advance the governmental interest, that it be neither overinclusive nor underinclusive, and that there be no less speechrestrictive alternatives to advancing the governmental interest. Id.; see also Reno v. ACLU, 521 U.S. 844, 874 (1997).
As the district court held, the gag provIsIon fails strict scrutiny. The provIsIon IS overinclusive because it impermissibly permits the FBI to gag recipients about not only the content of the NSL but also as "to the very fact of having received one." In re Nat 'I Sec. Letter, 930 F. Supp. 2d at 1075. As the district court noted:
[T]he government has not shown that it is generally necessary to prohibit recipients from disclosing the mere fact of their receipt of NSLs. The statute does not distinguish-or allow the FBI to distinguish-between a prohibition on disclosing mere receipt of an NSL and disclosing the underlying contents. The statute contains a

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blanket prohibition: when the FBI provides the required certification, recipients cannot publicly disclose the receipt of an NSL. Id. at 1076. The gag provision is also overinclusive in that it authorizes overly long prior restraints. Even if the Court decides that the prior restraint is justified in a particular case, it cannot tailor the duration of the prior restraint to the circumstances. As the district court held, "[b]y their structure . . . the review provisions are overbroad because they ensure that nondisclosure continues longer than necessary to serve the national security interests at stake." Id.; see also Doe v. Gonzales, 500 F. Supp. 2d 379, 421 (S.D.N.Y. 2007)). Moreover, there are obvious alternatives that would be equally effective in protecting the government's national security interests. The gag order could be authorized only when the disclosure of the fact of the NSL would be reasonably likely to, as opposed to potentially, endanger national security. The government does not argue that the statute satisfies strict scrutiny. Rather, it argues that strict scrutiny does not apply at all because the statute is content-neutral and thus subject only to intermediate scrutiny. Gov. Brief at 31. The government is incorrect. The statute aims to suppress speech of a specific content-the fact of the NSL-and it aims to suppress it precisely because it fears the communicative impact of that speech. See Texas v. Johnson, 491 U.S. 397, 412 (1989). "As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content-
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based. By contrast, laws that confer benefits or impose burdens on speech without reference to the ideas or views expressed are in most instances content neutral." Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 643 (1994) (citations omitted).
The government's assertion that a statute may be content neutral "even when a statute in fact 'refer[s] to the content of speech'" is of no import here. Gov. Brief at 31 (quoting Perry v. L.A. Police Dep't, 121 F.3d 1365, l369 (9th Cir. 1997)). To the extent the government's assertion is true, it is limited to those situations where the government's goal is unrelated to the suppression of the speech. Here, the very reason the government wants to gag NSL recipients is because it does not want the public to learn the information it seeks to suppress. There is no other reason for the gag. 15
The government's assertion that "strict scrutiny does not always apply even when a statute regulates speech based on its effects" is also incorrect. Gov. Brief at 31-32. The cases relied on by the government did not find that the restrictions at issue were content neutral. Rather, they rejected strict scrutiny for entirely different reasons, reasons that are not present here.

15 Perry itself is inapposite. At issue in Perry was an ordinance that this Court reviewed under the standard for content-neutral speech restrictions because the original ordinance, as opposed to a later amendment, made "no reference to content." Perry, 121 F.3d at 1365.
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In United States v. Aguilar, 515 U.S. 593 (1995), a federal judge was convicted of disclosing the existence of an expired wiretap order. It was the defendant's status as a judge who had voluntarily taken an oath of confidentiality that led the court to apply a less stringent scrutiny; the court affirmed that strict scrutiny would have applied if the government sought to restrict the speech of "unwilling members of the public" as Appellee is here. Id. at 606.
And in United States v. Fulbright, 105 F.3d 443, 452 (9th Cir. 1995), this Circuit evaluated a First Amendment overbreadth challenge to a law that punished the filing of "false" documents. The court declined to apply strict scrutiny only because it found that "no legitimate free speech interest is implicated." Id. V. THE NSL STATUTE FAILS TO SET FORTH "NARROW,
OBJECTIVE, AND DEFINITE STANDARDS" GUIDING THE DISCRETION OF THE FBI. Even apart from the foregoing limitations, the First Amendment generally requires that any governmental action that restrains speech be governed by "narrow, objective, and definite" standards; the absence of such standards raises the prospect that governmental officials can discriminate against disfavored viewpoints. Shuttlesworth, 394 U.S. at 149-50 (rejecting a local ordinance that allowed city officials to refuse a parade permit if "the public welfare, peace, safety, health, decency, good order, morals or convenience" so required). See also Forsyth County, 505 U.S. at l31 ("[l]fthe permit scheme involves the appraisal of

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facts, the exercise of judgment, and the formation of an opinion by the licensing authority, the danger of censorship and of abridgment of our precious First Amendment freedoms is too great to be permitted." (citations omitted)); Seattle Coal. Stop Police Brutality v. City of Seattle, 550 F.3d 788, 803 (9th Cir. 2008) ("The First Amendment prohibits placing such unfettered discretion in the hands of licensing officials ....").
Section 2709(c) allows the government to gag a recipient merely on a certification that 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." 18 U.S.C. § 2709(c) (emphasis added). This language leaves the decision entirely in the subjective judgment of the FBI official issuing the NSL and reserves no meaningful ability for a court to evaluate whether the official acted lawfully, regardless of any degree of deference that is appropriate. Without any articulable statutory guidance cabining this executive discretion, allowing a gag to issue merely upon an official's statement merely that harm may occur is insufficient to survive constitutional scrutiny.

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VI. THE GAG ORDERS AUTHORIZED BY SECTION 2709(c) ARE MATERIALLY DIFFERENT FROM PERMISSIBLE GAG ORDERS ISSUED IN OTHER CONTEXTS. Attempting to justify the NSL gag orders, the government asserts that they
are analogous to gag orders issued in other contexts, such as in certain court proceedings and where government employees who have agreed to secrecy requirements are prohibited from disclosing certain information. See Gov. Brief at 35. But these analogies only highlight the constitutional flaws in the NSL nondisclosure requirement.
As the Mukasey court observed, section 2709(c) gag demands are significantly different from gags discussed by the government because they are "imposed at the demand of the Executive Branch under circumstances where secrecy might or might not be warranted, depending on the circumstances alleged to justify such secrecy." Mukasey, 549 F.3d at 877. Section 2709(c) also has different underlying policy rationales and contains no temporal limitation. Id.
As the government notes, the Supreme Court has approved gag orders, in the form of protective orders, which are imposed on those who obtain information through pretrial discovery. See, e.g., Seattle Times v. Rhinehart, 467 U.S. 20 (1984). But as noted above, the 2709(c) gag orders prevent the NSL recipient from discussing circumstances that have been thrust upon it unwillingly. Mukasey, 548 F.3d at 877. In contrast, the protective order in Seattle Times addresses the

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particular concerns raised where a party to litigation, by its own efforts, seeks out and acquires information through civil discovery. The availability of that information is thus a product solely of "legislative grace." Seattle Times, 467 U.S. at 21.
Nor are the gag orders attached to grand jury subpoenas analogous. As the Supreme Court has recognized, a grand jury witness can only be prevented from communicating information he learned "as a result of his participation in the proceedings of the grand jury." Butterworth v. Smith, 494 U.S. 624, 632 (1990). But a grand jury witness could not be gagged from disclosing the fact of her subpoena or testimony. Id. at 636-37 (Scalia, 1., concurring). See In re Nat 'I Sec. Letter, 930 F. Supp. 2d at 1072; Mukasey, 549 F.3d at 877. Moreover, the gag orders issued in the grand jury context originate from the court. See, e.g., United States v. Navarro- Vargas, 408 F.3d 1184, 1199 (9th Cir. 2005) (documenting the historical operation of the grand jury, noting that it is "an appendage of the court" and "subject to the supervision of a judge"). Unlike NSL gag orders, they are not unilaterally imposed by the Executive on its own authority.
Nor are nondisclosure agreements enforced against governmental employees analogous. The subjects of these gags voluntarily agreed to silence themselves, contractually waiving their First Amendment rights; their validity is wholly dependent on the voluntary agreement between the government and its employees.

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See Snepp v. United States, 444 U.S. 507, 511 (1980) (employment agreement constituted "special trust" between employee and government); McGehee v. Casey, 718 F.2d 1137, 1141 (D.C. Cir 1983) (secrecy agreement as condition of employment). See also In re Nat 'I Sec. Letter, 930 F. Supp. 2d at 1078; Mukasey, 549 F.3d at 877 (rejecting the analogy). VII. THE NSL STATUTE'S COMPELLED PRODUCTION PROVISION
VIOLATES THE FIRST AND FIFTH AMENDMENTS. Separate from the unconstitutionality of the gag provision, the underlying 18 U.S.C. § 2709 authority given to the FBI to compel the production of records is also unconstitutional as a violation of the First and Fifth Amendments. While not all of the information sought pursuant to NSLs enjoys constitutional protection, some clearly does. NSL authority, for example, would on its face permit the FBI to unilaterally obtain non-public information such as the network of people who organized an anti-government rally through the use of cell phones or who belong to a particular religious sect, with no judicial oversight to ensure "that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States," or that the investigation was not simply a pretext. 18 U.S.c. § 2709(b).16 See, e.g., Doe v. Ashcroft, 334 F. Supp. 2d at 509 ("[Section] 2709 imposes a duty
16 Nor is it clear that the statute provides sufficient constitutional protections since it only prohibits investigations based "solely" on activities protected by the First Amendment.
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on ISPs to provide the names and addresses of subscribers, thus enabling the Government to specifically identifY someone who has written anonymously on the internet.").
Although the statute permits the FBI to compel protected records from any covered communications provider,

to the FBI without a court having the opportunity to put the FBI's conclusory rationale to any test.
Investigations that "intrude[] into the area of constitutionally protected rights of speech, press, association and petition" are subject to heightened First
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Amendment scrutiny. Gibson v. Fla. Legislative Invest. Comm., 372 U.S. 539, 546 (1963). Courts have long recognized protection under the First Amendment for the right to engage in anonymous communication-to speak, read, listen, and/or associate anonymously-as fundamental to a free society. The Supreme Court has consistently defended such rights in a variety of contexts, noting that "[a]nonymity is a shield from the tyranny of the majority ... [that] exemplifies the purpose [of the First Amendment] to protect unpopular individuals from retaliation ... at the hand of an intolerant society." McIntyre v. Ohio Elections Comm 'n, 514 U. S. 334, 342 (1995) (holding that an "author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment").
Similarly, the Supreme Court has long held that compelled disclosure of membership lists and other associational information may constitute an impermissible restraint on freedom of association. See NAACP v. Alabama, 357 U.S. 449, 462 (1958) (compelled identification violated group members' right to remain anonymous; "inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association"); Brown v. Socialist Workers 74 Campaign Comm. (Ohio), 459 U.S. 87, 91-92 (1982) ("The right to privacy in one's political associations and beliefs will yield only to a 'subordinating interest of the State [that is] compelling,' and then only if there is a

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'substantial relation between the information sought and [an] overriding and compelling state interest."') (citing NAACP, Gibson) (internal citations omitted)).
Because the First Amendment protects anonymous speech and association, efforts to pierce such anonymity are subject to heightened scrutiny, requiring the demonstration of a compelling need and a showing that the demand is narrowly tailored. Roberts v. Us. Jaycees, 468 U.S. 609, 623 (1984); Dole v. Service Employees Union AFL-CIO, Local 280, 950 F.2d 1456, 1462 (9th Cir. 1991). However, a court must perform this exacting scrutiny. Without any such mandatory and independent check, First Amendment rights have no meaningful opportunity for vindication.
A. The First Amendment Requires Prior Judicial Review. The structure of the statute ensures that in all but the most rare cases, the constitutional interests of the subscriber will never be considered by a court. As described above, unlike other mechanisms compelling an individual or entity to disclose information to the government, NSLs may be issued without any court involvement. See Fed. R. Crim. P. 17 (grand jury subpoena); 18 U.S.C. § 2703(d) order; 50 U.S.c. § 1861 (USA PATRIOT section 215 order). Unlike administrative subpoenas and other comparable investigative authorities, NSL demands are almost always accompanied by a gag order that prevents the person whose information is being sought from contesting the

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production. See, e.g., Ashcroft, 334 F. Supp. 2d at 485. As a result, those persons whose First Amendment associational rights are threatened must rely on independent third parties, their telecommunications service providers, to assert their rights.
This is constitutionally problematic for at least two reasons. First, although some third parties have standing to bring First Amendment claims on behalf of their associates, that third-party standing does not eliminate the requirement that the individuals have access to the court as well. See, e.g., McKinney v. Alabama, 424 U.S. 669, 675-76 (1976). Second, the entity served with the NSL certainly has no duty and ordinarily lacks the incentive or ability to assert vigorously the First Amendment rights of its subscribers. Id. 17 Compare, e.g., FW/PBS, 493 U.S. at 218 (discussing incentives to challenge administrative decision in city ordinance) with Ashcroft, 334 F. Supp. 2d at 502 (discussing lack of incentives in pre-2006 version of the NSL statute).
B. The Fifth Amendment Similarly Requires Prior Judicial Review.
For the same reasons, the compelled production provision also violates the Fifth Amendment's procedural due process rights because there is no meaningful
17 DO] statistics bear this out. Based on the OIG reports mandated by Congress as part of the 2006 amendments, it is known that the FBI issues a high volume of NSLs every year: nearly 200,000 NSLs were issued in the period between 2003 and 2006 alone. Yet this challenge is one of only seven that are publicly known ever to have been filed, representing a tiny fraction of the total NSLs issued.
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process by which the First Amendment and privacy interests of NSL targets (i.e., subscribers using NSL recipients' telecommunications services) may be protected from FBI overreach.
Under Mathews v. Eldridge, 424 U.S. 319 (1976), the adequacy of process is determined by weighing "the private interest that will be affected by the official action" against the government's asserted interest, "including the function involved" and the burdens the government would face in providing greater process. 424 U.S. at 335. Although a national security interest might be relevant to this balancing, it does not eliminate the need for it. See Hamdi v. Rums/eld, 542 U.S. 507, 530 (2004) (noting the need to balance that interest against the interest of those whose liberty was erroneously or otherwise incorrectly curtailed). By eliminating the need for judicial review and placing the ability to challenge NSLs solely in the hand of service providers who likely have little incentive or information to do so, the NSL statute violates the due process rights of recipients' subscribers. VIII. THE UNCONSTITUTIONAL PORTIONS OF THE NSL STATUTE
ARE NOT SEVERABLE. Because sections 2709(c) and 3511(b) are unconstitutional, the Court must-as did the district court-invalidate the statutory scheme as a whole because these provisions are not severable. See In re Nat 'I Sec. Letter, 930 F. Supp. 2d at 1081. Severability "is essentially an inquiry into legislative intent." Ayotte v.
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Planned Parenthood of Northern New England, 546 U.S. 320, 330 (2006) (question is whether "the legislature [would] have preferred what is left of its statute to no statute at all"). A court must strike down additional provisions of a statute in the face of the unconstitutionality of particular elements of it when "it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not ...." Buckley v. Valeo, 424 U.S. 1, 108 (1976) (citation omitted).
Here, there can be only one conclusion: the provisions are not severable. The legislative history is clear. The Senate Intelligence Committee in 1986, for example, noted that the new NSL gag authority would "ensure[]" that "no" recipient would "disclose to anyone" that it had received an NSL, and flatly that "[t]he effective conduct of FBI counterintelligence activities requires such nondisclosure." S. Rep. 99-307, at 21 (1986). Not only did Congress enact the two sets of provisions together, in 2006 Congress amended the nondisclosure provisions in an attempt to save the NSL statute, leading to its present form, after the initial district court decisions in the Mukasey litigation held that the nondisclosure provisions were unconstitutional. See In re Nat 'I Sec. Letter, 930 F. Supp. 2d at 1081; Mukasey, 549 F.3d at 866-68. Congress' attempt to preserve the FBI's ability to protect the secrecy of NSLs after multiple judicial invalidations

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makes its intent clear, especially when Congress did not include a severability
clause. As the district court observed:
The Court also finds that the unconstitutional nondisclosure provisions are not severable. There is ample evidence, in the manner in which the statutes were adopted and subsequently amended after their constitutionality was first rejected in Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004) and Doe v. Gonzales, 386 F. Supp. 2d 66 (D. Conn. 2005), that Congress fully understood the issues at hand and the importance of the nondisclosure provisions. Moreover, it is hard to imagine how the substantive NSL provisions-which are important for national security purposes-could function if no recipient were required to abide by the nondisclosure provisions which have been issued in approximately 97% of the NSLs issued.
930 F. Supp. 2d at 1081.
Tellingly, this fact is borne out even by the government's own declaration in
this case. In his declaration, Assistant Director of the FBI's Counterintelligence
Division Robert Anderson, Jr., indicated that only in "highly unusual"
circumstances would the provisions not operate together:
By definition, the information sought through an NSL is relevant to an ongoing investigation of international terrorism or clandestine intelligence activities. Thus, only under highly unusual circumstances such as where the investigation is already overt is an NSL sought without invoking the nondisclosure provision. In the vast majority of cases, the investigation is classified and thus disclosure of receipt of an NSL and the information it seeks would seriously risk on of the statutory harms ...
ER 46. That the government can offer no other context in which a gag would not
accompany an NSL except where those "who understand the importance of
nondisclosure in this context to preventing terrorism" may voluntary gag
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themselves shows the illusory nature of the government's argument. Gov. Brief at 62. Indeed, the legislative history plainly indicates that Congress considered NSL authority to be distinct from the kind of informal agreement described by the government. See, e.g., S. Rep. 99-307, at 19 (1986) ("The new mandatory FBI [NSL] authority for counterintelligence access to records is in addition to, and leaves in place, existing non-mandatory arrangements for FBI access based on voluntary agreement of communications common carriers."). IX. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN
ENJOINING THE GOVERNMENT FROM USING THE NSL STATUTE. After declaring the NSL statute unconstitutional, the district court enjoined the FBI from issuing NSLs or enforcing the statute's gag provision. In re Nat'l Sec. Letter, 930 F. Supp. 2d at 1081. It acted well within its discretion in doing so. When a court finds that a statute is unconstitutional, it is obligated to declare it void. Sebelius, 132 S. Ct. at 2579-80. The district court fulfilled that obligation here. As a matter of course, courts typically follow a declaration of a statute's unconstitutionality with an injunction against the statute's enforcement. Indeed, it is difficult to imagine circumstances in which it would be an abuse of discretion to enjoin the government from exercising powers granted to it by an unconstitutional statute, and it certainly was not an abuse of discretion here.

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The government objects that the district court's nationwide injunction creates a conflict with the Second Circuit's Mukasey decision. It argues that the injunction should have been limited to barring only use of the NSL statute against Appellee, and in any event should not have extended beyond the Ninth Circuit. Gov. Brief at 63. Neither argument has merit.
As this Court has held, "[0]nce a court has obtained personal jurisdiction over a defendant, the court has the power to enforce the terms of the injunction outside the territorial jurisdiction of the court, including issuing a nationwide injunction." United States v. AMC Entertainment, Inc., 549 F.3d 760, 770 (9th Cir. 2008) (citing Steele v. Bulova Watch Co., 344 U.S. 280, 289 (1952) ("the District Court in exercising its equity powers may command persons properly before it to cease or perform acts outside its territorial jurisdiction."». There is no dispute that the government is properly before the court.
The general rule provides an exception-as a matter of comity, not jurisdiction-for cases where "injunctive relief . . . would cause substantial interference with another court's sovereignty" because it would "negate something that has already been determined in adversary proceedings" in another circuit. Id. at 772 (emphasis added). In AMC Entertainment, there was a conflict between the Fifth and Ninth Circuits' rulings on the merits of the legal question at issue-how certain federal regulations should be properly interpreted. Because of a direct

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conflict with the Fifth Circuit's interpretation of the regulations, this Court limited the district court's injunction to exclude the Fifth Circuit from its nationwide scope. Id. at 770-74; cf id. at 774-81 (Wardlaw, J. dissenting on this interference finding, collecting cases allowing nationwide injunctions); see Apple Inc. v. Psystar Corp., 658 F.3d 1150, 1161 (9th Cir. 2011) (finding AMC Entertainment exception inapplicable where no conflicting legal rulings).
Here, however, there is no interference with, much less negation of, either the Second Circuit's legal rulings or its injunction. First, there is no conflict between the district court and the Second Circuit on the merits question of the NSL statute's unconstitutionality. Both courts found the statute unconstitutional. They differed only in the remedy they imposed.
Second, there is no conflict between the injunctions. The district court here imposed the following injunction: "The Government is therefore enjoined from issuing NSLs under § 2709 or from enforcing the nondisclosure provision in this or any other case." In re Nat'l Sec. Letter, 930 F. Supp. 2d at 1081. The Second Circuit, after also holding the NSL statute unconstitutional because it lacked the review provisions required by the First Amendment, enjoined the government in the following terms: "As a result of this ruling, we modify the District Court's injunction by limiting it to enjoining FBI officials from enforcing the

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nondisclosure requirement of section 2709(c) in the absence of Government-
initiated judicial review." Mukasey, 549 F.3d at 885.
The Second Circuit's injunction does not mandate or prohibit any future
conduct by the government defendants that conflicts with the district court's order
here. The district court's injunction here is broader here because it prohibits the
FBI from issuing NSLs or enforcing the nondisclosure provision, but nothing the
FBI is required to do under the district court's injunction conflicts with what the
Second Circuit's injunction requires them to do. They can obey both without
breaching either. Thus, this is not a case of clashing injunctions where defendants
are subject to conflicting statements of what the law is from two different courts, as was the case in AMC Entertainment. IS
Finally, given the district court's (and the Second Circuit's) holding that the
NSL statute is facially unconstitutional because it fails to require the government
to initiate judicial proceedings, broad relief is entirely appropriate. The
government's alternative of imposing on every NSL recipient the burden of
bringing repeated piecemeal litigation to repeatedly reestablish the facial
IS The government also asserts that United States v. Mendoza holds that injunctive relief extending beyond a Circuit's boundaries '''thwart[s] the development of important questions of law by freezing the first final decision rendered on a particular legal issue.'" Gov. Brief at 63 (quoting Mendoza, 464 U.S. 154, 160 (1984)). Not so. Mendoza was a nonmutual collateral estoppel case, not a case about whether a district court may issue a nationwide injunction against enforcement of an unconstitutional statute, and the quoted language is referring to the effect of applying nonmutual collateral estoppel against the government.
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unconstitutionality of the NSL statute makes no sense. Constitutional litigation

should not be a roulette wheel that the government gets to spin endlessly in hopes

of a better result.

CONCLUSION The district court's judgment in No. 13-15957 should be affirmed and the

district court's judgment in No. l3-16731 should be reversed. For the foregoing

reasons, the nondisclosure provision of NSL statute is unconstitutional because it

fails to require the government to initiate judicial proceedings, because its judicial

review standards are excessively deferential, and because it is a prior restraint that

is not narrowly tailored. Because the nondisclosure and judicial review provisions

are not severable from the rest of the statute, the NSL statute as a whole is invalid.

Moreover, the statute violates the First and Fifth Amendments as it authorizes the

FBI to potentially violate the anonymous speech and associational rights of

telecommunications subscribers without any oversight by the judicial branch.

Dated: February 28, 2014

Respectfully submitted,
lsi Matthew Zimmerman Matthew Zimmerman, Esq. Cindy Cohn, Esq. David Greene, Esq. Lee Tien, Esq. Kurt Opsahl, Esq. Jennifer Lynch, Esq. Nathan D. Cardozo, Esq. Andrew Crocker, Esq.

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ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109
Richard R. Wiebe, Esq. LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111
Counsel for UNDER SEAL

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CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS AND TYPE STYLE REQUIREMENTS PURSUANT TO FED. R. APP. P. 32(a)(7)(C)

Pursuant to Fed. R. App. P. 32(a)(7)(C), I certifY as follows:

1. Appellees' Opening Brief complies with the type-volume limitation of

Fed. R. App. P. 32(a)(7)(B) and Circuit Rule 28-4 because this brief contains

15,396 words, excluding the parts of the brief exempted by Fed. R. App.

P. 32(a)(7)(B)(iii); and

2. This brief complies with the typeface requirements of Fed. R. App.

P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this

brief has been prepared in a proportionally spaced typeface using Microsoft

Word 2011 for Mac, the word processing system used to prepare the brief, in

14 point font in Times New Roman font.

Dated: February 28, 2014

By: lsi Matthew Zimmerman Matthew Zimmerman

Counsel for UNDER SEAL

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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Clerk of the

Court for the United States Court of Appeals for the Ninth Circuit by using the

appellate CM/ECF system on February 28, 2014.

I certify that all participants in the case are registered CM/ECF users and

that service will be accomplished by the appellate CM/ECF system.

Dated: February 28, 2014

By: lsi Matthew Zimmerman Matthew Zimmerman

Counsel for UNDER SEAL

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NOS. 13-15957, 13-16731
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNDER SEAL,
PETITIONER-APPELLEE (No. 13-15957), PETITIONER-APPELLANT (No. 13-16731), V. LORETTA E. LYNCH, Attorney General; UNITED STATES DEPARTMENT OF JUSTICE; and FEDERAL BUREAU OF INVESTIGATION,
RESPONDENTS-APPELLANTS (No. 13-15957), RESPONDENTS-APPELLEES (NO. 13-16731)
On Appeal from the United States District Court for the Northern District of California
Case Nos. 11-cv-2173 SI, 13-mc-80089 SI Honorable Susan Illston, District Judge

APPELLEE/APPELLANT UNDER SEAL’S SUPPLEMENTAL BRIEF RE USA FREEDOM ACT FILED UNDER SEAL

Cindy Cohn, Esq. David Greene, Esq. Lee Tien, Esq. Kurt Opsahl, Esq. Jennifer Lynch, Esq. Nathan Cardozo, Esq. Andrew Crocker, Esq. ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 Telephone: (415) 436-9333 Facsimile: (415) 436-9993

Richard R. Wiebe, Esq. LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111 Telephone: (415) 433-3200 Facsimile: (415) 433-6382
Counsel for UNDER SEAL

Case: 13-15957, 07/06/2015, ID: 9599779, DktEntry: 99, Page 2 of 20
TABLE OF CONTENTS INTRODUCTION .................................................................................................... 1 AMENDMENTS TO THE NSL STATUTE............................................................ 2 ARGUMENT............................................................................................................ 4
I. The District Court’s Opinion and the Prior Briefs on Appeal Demonstrate That the Amended NSL Statute Remains Unconstitutional. .................................................................................. 4 A. The Amendments Do Not Address Numerous Constitutional Infirmities Already Briefed and Argued to This Court.............. 4 B. Even Where USA FREEDOM Does Address Constitutional Defects Identified by the District Court, It Fails to Cure Them. 7 1. The amended NSL statute continues to lack the procedural requirements for prior restraints required by Freedman v. Maryland. ................................................... 7 2. The judicial review provisions in the amended NSL statute remain excessively deferential. ............................ 9
II. This Court Can – and Should – Rule on the Amended Statute Now Without Remanding the Case to the District Court ........................... 10
CONCLUSION....................................................................................................... 14
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TABLE OF AUTHORITIES
Federal Cases Am.-Arab Anti-Discrimination Comm. v. Reno,
70 F.3d 1045 (9th Cir. 1995) ........................................................................ 12 Beck v. City of Upland,
527 F.3d 853 (9th Cir. 2008) ........................................................................ 11 Doe v. Mukasey,
549 F.3d 861 (2d Cir. 2008) .................................................................. passim Dream Palace v. Cnty. of Maricopa,
384 F.3d 990 (9th Cir. 2003) ........................................................................ 13 Elrod v. Burns,
427 U.S. 347 (1976) ..................................................................................... 12 Fed. Ins. Co. v. Union Pac. R.R. Co.,
651 F.3d 1175 (9th Cir. 2011) ...................................................................... 13 Freedman v. Maryland,
380 U.S. 51 (1965) ............................................................................. 1, 7, 8, 9
In re NSL, 930 F. Supp. 2d 1064 (N.D. Cal. 2013)................................................. passim
Kimes v. Stone, 84 F.3d 1121 (9th Cir. 1996) ........................................................................ 11
New York Times Co. v. United States, 403 U.S. 713 (1971) ............................................................................... 12, 13
Northeastern Fla. Chapter of Assoc.’d Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656 (1993).......................................................... 11, 12
Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) ................................................................................... 5
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Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969) ....................................................................................... 5
Singleton v. Wulff, 428 U.S. 106 (1976) ..................................................................................... 10
Thompson v. Runnels, 705 F.3d 1089 (9th Cir. 2013) ...................................................................... 13
United States v. Ameline, 400 F.3d 646 (9th Cir. 2005) on reh’g en banc, 409 F.3d 1073 (9th Cir. 2005)......................................... 12
United States v. Kaczynski, 551 F.3d 1120 (9th Cir. 2009) ...................................................................... 13
United States v. Winslow, 962 F.2d 845 (9th Cir. 1992) ........................................................................ 13 Federal Statutes
18 U.S.C. § 2709........................................................................................... 1, 2, 5, 7 18 U.S.C. § 3511.............................................................................................. passim
Constitutional Provisions U.S. Const., amend. I .................................................................................. 1, 5, 7, 12 U.S. Const., amend. V .............................................................................................. 7
Legislative Materials Pub. L. 114-23 § 502 ........................................................................................ 2, 4, 6 Pub. L. 114-23, § 603 ............................................................................................... 4 Pub. L. 114-23, § 604 ........................................................................................... 5, 6 USA FREEDOM Act of 2015, Pub. L. 114-23, 129 Stat. 268 (2015) ............ passim
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INTRODUCTION The two National Security Letter (“NSL”) recipients who are parties to the consolidated appeals 13-15957, 13-16731 and 13-16732 submit this supplemental brief in response to this Court’s order of June 3. The NSL statute remains unconstitutional because the amendments to 18 U.S.C. § 2709 and 18 U.S.C. § 3511, enacted as part of the USA FREEDOM Act of 2015, Pub. L. 114-23, 129 Stat. 268 (2015), do not alter the fundamental scheme that was invalidated by the district court. In re NSL, 930 F. Supp. 2d 1064 (N.D. Cal. 2013). First, the amendments are entirely silent about several elements of the statute that the district court found unconstitutional and that are already fully briefed in this appeal. Second, the most significant revision to the statute is simply to codify the “reciprocal notice” procedure suggested by the Second Circuit in Doe v. Mukasey, 549 F.3d 861 (2d Cir. 2008). As the NSL recipients have already briefed at length, this procedure does not meet the requirements of the First Amendment set forth in Freedman v. Maryland, 380 U.S. 51 (1965). Because the recipients continue to be gagged and because the amendments simply codify a practice that the parties have already briefed, the recipients
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respectfully ask this Court to proceed to resolve the merits of this appeal and rule that the statute, even as slightly revised, remains unconstitutional.
AMENDMENTS TO THE NSL STATUTE On June 2, Congress passed the USA FREEDOM Act, which amends the NSL statute in part but leaves its operation essentially the same. As before, the FBI can issue a request for records under § 2709(b) to a wire or electronic communication service provider and can bar the recipient from disclosing the fact that it has received an NSL. 18 U.S.C. § 2709(c)(1), amended by Pub. L. 114-23 § 502(a). As before, in order to issue this gag order, an FBI official must in the first instance merely certify that without a gag, one of several enumerated harms “may result.” Id. As before, this gag order is not subject to judicial review unless the recipient takes action. 18 U.S.C. § 3511(b)(1)(A), amended by Pub. L. 114-23 § 502(g). And, with only slight modification, a district court reviewing a gag order is limited to determining whether there is “reason to believe” one of the statutory harms “may result” without the gag. Id. § 3511(b)(3). The most significant revision to the NSL statute created by USA FREEDOM does not mark a change in the FBI’s practice at all. The amendments merely codify the “reciprocal notice” procedure suggested by the Second Circuit in Mukasey, a
2

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procedure the government has previously represented that it voluntarily followed for every NSL it has issued since Mukasey. Under the amendments, in addition to allowing the recipient to file a petition to set aside the gag order previously found in § 3511, the statute now also provides that “if a recipient . . . wishes to have a court review a nondisclosure requirement imposed in connection with the request or order, the recipient may notify the Government[.]” § 3511(b)(1)(A). The government must then file a petition to enforce the gag order within 30 days, § 3511(b)(1)(B), although the statute does not require the gag to automatically dissolve if the government fails to do so. If the recipient seeks judicial review through either of these avenues, the court must “rule expeditiously.” § 3511(b)(1)(C).
The amendments also slightly alter the evidence presented to a court reviewing a gag order and the standard the court applies. On review, the government must now support its certification with a “statement of specific facts” indicating that without a gag, an enumerated harm “may result.” § 3511(b)(2). However, the reviewing court is not directed to weigh this statement of facts. Rather, the court need only determine that “that there is reason to believe” an enumerated harm “may result” without a gag, § 3511(b)(3). The statute previously directed the court to set aside the gag if “there [was] no reason to believe” that disclosure would cause an enumerated harm.
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Finally, Congress also included a requirement that the Attorney General adopt unspecified procedures for periodically reviewing gag orders for new NSLs, Pub. L. 114-23, § 502(f), and codified the executive branch’s limitations on recipients’ reporting of broadly aggregated numbers of NSLs they have received, id. § 603(a).
ARGUMENT I. The District Court’s Opinion and the Prior Briefs on Appeal
Demonstrate That the Amended NSL Statute Remains Unconstitutional. A. The Amendments Do Not Address Numerous Constitutional
Infirmities Already Briefed and Argued to This Court. As described above, the amendments leave intact the NSL statutory scheme that the district court found unconstitutional. Similarly, the amendments do not resolve or address many of the constitutional deficiencies the NSL recipients presented on appeal. These include: 1. The NSL statute continues to authorize prior restraints, because it allows the government to bar a recipient from speaking in the first instance. In re NSL, 930 F. Supp. 2d at 1071; Recipient’s First Br. at 20, Nos. 13-15957 & 1316731.1
1 For brevity, citations are to recipients’ briefs in Nos. 13-15957, 13-16731. The same arguments can be found in the recipient’s briefs in No. 13-16732, except where noted otherwise.
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2. The gag order provision still fails to meet the substantive requirements for prior restraints under the First Amendment. As before, the amended § 2709 only requires that the government certify that an enumerated harm “may result” absent a gag, not that the gag is “necessary” to preventing this harm. Recipient’s First Br. at 44.
3. The “may result” standard in § 2709 remains boundless and inherently subjective. The statute still does not set forth “narrow, objective, and definite standards” guiding the discretion of the FBI, as required by the First Amendment. Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51 (1969); Recipient’s First Br. at 49-50; Recipient’s Second Br. at 17-18.
4. In addition, as the district court held, the gag order provision remains a content-based restriction on speech that fails strict scrutiny. In re NSL, 930 F. Supp. 2d at 1075, Recipient’s First Br. at 45-46.2 In particular, the amendments do not address the overinclusiveness of NSL gag orders, which bar recipients from disclosing the mere fact that they have received an NSL. The government may point to § 604 of the USA FREEDOM Act, which codifies the executive branch’s
2 The Supreme Court recently endorsed the recipients’ argument that a law is content-based if it “applies to particular speech because of the topic discussed or the idea or message expressed.” Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227 (2015). Laws are also considered content-based if they “cannot be justified without reference to the content of the regulated speech, or that were adopted by the government because of disagreement with the message [the speech] conveys.” Id. (internal quotation marks and citations omitted).
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limitations on recipients’ reporting of NSLs they have received in broad aggregated bands. However, as previously discussed in the briefing and at oral argument, this blanket rule is not narrowly tailored, because it does not require the government to employ less speech-restrictive means, such as allowing recipients to report the mere fact they have received an NSL. Under § 604, recipients must still include “0” in the lowest reporting band, so they are effectively gagged from reporting complete and honest transparency reports. See Gov. Ltr. to the Court, Dkt. No. 86 (Nov. 6, 2014).
5. The NSL statute continues to authorize gags of indefinite duration, another example of the lack of narrow tailoring. As the district court explained, “[n]othing in the statute requires . . . the government to rescind the non-disclosure order once the impetus for it has passed.” 930 F. Supp. 2d at 1076. In USA FREEDOM, Congress directed the Attorney General to adopt unspecified procedures to review “at appropriate intervals” to determine whether gags issued under the revised statute are still supported. Pub. L. 114-23, § 502(f). However, the statute does not specify that these future administrative procedures will require the government to employ less speech-restrictive means, nor will they ensure that gags persist no “longer than necessary.” In re NSL, 930 F. Supp. 2d at 1076. In addition, the statute does not require the Attorney General to apply these procedures to
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NSLs issued before the passage of USA FREEDOM, as with the NSLs at issue here, as well as hundreds of thousands of others.
6. The amendments do not alter the compelled production provision in § 2709(b). The recipient in 13-15957 and 13-16731 continues to challenge this provision as authorizing disclosure of information without prior judicial review in violation of the First and Fifth Amendments. Recipient’s First Br. at 56-58.
7. The amendments do not address the severability of the gag order provisions from the rest of the statute. This omission adds additional support to recipients’ argument that these provisions are not severable.
The district court’s ruling that the NSL statute is unconstitutional can rest on each of these grounds alone. This Court can thus affirm that ruling without any further consideration of USA FREEDOM.
B. Even Where USA FREEDOM Does Address Constitutional Defects Identified by the District Court, It Fails to Cure Them. 1. The amended NSL statute continues to lack the procedural requirements for prior restraints required by Freedman v. Maryland.
Recipients’ arguments already presented to this Court that the reciprocal notice procedure fails to meet the Freedman requirements apply to the “new” procedure as well:
1. The new procedure does not require the government to initiate judicial review as required by Freedman. 380 U.S. at 58-59. This procedure still requires
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the recipient to be the first mover by notifying the government of its desire for judicial review. Recipient’s First Br. at 28-29, 32-33. If the recipient does nothing, the gag order remains in place. This is the very same backward burden that the Supreme Court found impermissible in Freedman. 380 U.S. at 57-58.
2. The new procedure still does not require that pre-review gags be limited to a “specified brief period.” Id. at 59. Rather, the statute continues to authorize gags of indefinite duration: when the recipient exercises the notice provision, the statute directs the government to initiate review within 30 days, but the gag does not dissolve if the government fails to do so.
3. The revised statute still does not require a reviewing court to issue a “prompt final judicial decision,” Freedman, 380 U.S. at 59, but instead says that it must “rule expeditiously.” Congress declined to include a specified time frame for this review, disregarding the Mukasey court’s suggestion of “a prescribed time, perhaps 60 days.” 549 F.3d at 879 (emphasis added). Congress had some outerlimit guidance here in that the Supreme Court made clear that the four months for initial review and six months for appellate review in Freedman was not fast enough, 380 U.S. at 55, yet it failed to include any specific time frame.
4. The revised standards for reviewing a gag order still fail to place the proper burden of proof on the government. Id. at 58-59. Now, the gag may be deemed appropriate if “there is reason to believe” an enumerated harm may result.
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The defect here is that the government still need only prove the barest possibility of harm. The amendment is a cosmetic change, replacing the previous provision that allowed the district court to set aside a gag if “there is no reason to believe” an enumerated harm might result. Either way, the standard is below the constitutional threshold.
Moreover, this standard still does not require the government to “bear any specific burden of proof, in terms of the showing necessary to justify the nondisclosure order.” In re NSL, 930 F. Supp. 2d at 1075. The requirement that the government now introduce a “statement of specific facts” in support of its gag order certification is not conclusive, since the court’s review of the gag need not even take this statement of facts into account.3
2. The judicial review provisions in the amended NSL statute remain excessively deferential.
As discussed above, the amended § 3511(b) introduces a small change in the standard applied by a court reviewing a gag order, such that the court is directed to enforce the gag if “there is reason to believe” the enumerated harms “may result.” Even assuming that this change grants the court more leeway, the revised statute
3 Moreover, because the revised statute codifies the reciprocal notice procedure suggested by the Second Circuit in Mukasey, this Court need not now determine whether the FBI’s voluntary adoption of this procedure is a “well-established practice” for the purposes of a facial challenge.
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plainly does not provide for the “searching” standard of review required by the district court. In re NSL, 930 F. Supp. 2d at 1077; Recipient’s First Br. at 42-43.4 II. This Court Can—and Should—Rule on the Amended Statute Now
Without Remanding the Case to the District Court. To avoid any further delay and exacerbated constitutional injuries, the Court can and should resolve the legality of the gags now and not remand the issues to the district court. The NSL recipients in this case have been gagged for years, unable to speak about their receipt of NSLs. In fact, as a result of the gags, they were barred from fully engaging in the debate on the very statute now at issue in these cases, despite their distinct and important perspective on the government’s use of NSLs. They could not directly discuss their experiences with their elected representatives as those legislators considered amendments to the NSL statute. This inability to engage in core political speech compounded an injury now ongoing for over four years in 13-15957 and over two years in 13-16731 and 1316732. This Court has discretion to decide these issues without a remand. Singleton v. Wulff, 428 U.S. 106, 120-21 (1976). As explained above, USA FREEDOM has not materially changed most of the issues in this appeal. But even with respect to issues that are somewhat altered, any of the following circumstances will support
4 The amendments remove the conclusive certification provision in § 3511 that the recipients have challenged.
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resolution by this Court: “(1) to prevent a miscarriage of justice; (2) when a change in law raises a new issue while an appeal is pending; and (3) when the issue is purely one of law.” Kimes v. Stone, 84 F.3d 1121, 1126 (9th Cir. 1996) (internal quotation marks omitted).
Although only one of the three circumstances need be satisfied, each applies here.
Change in law. As the Supreme Court has held, courts retain jurisdiction after an amendment to a challenged statute where the amended statute “disadvantages [the plaintiff] in the same fundamental way” and where “[t]he gravamen of [the plaintiff’s] complaint” remains the same. See Northeastern Florida Chapter of Assoc.’d Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 662 (1993). This Court has addressed the applicability of new legal frameworks or standards to pending cases for the first time on appeal, without remanding. See, e.g., Beck v. City of Upland, 527 F.3d 853 (9th Cir. 2008). Beck resolved the question of whether an arrest had been retaliatory, despite the announcement of a new legal standard during appellate briefing. In so doing, it relied upon considerations of judicial efficiency because “it ha[d] already been four years since Beck’s arrest and three years since this case was filed.” Id. at 868-69. Similarly, in United States v. Ameline, 400 F.3d 646 (9th Cir. 2005) on reh’g en banc, 409 F.3d 1073 (9th Cir. 2005), this Court held that it had authority to
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consider sua sponte defendant’s Sixth Amendment challenge to his sentence even though the issue was not raised below, given that a new decision had “worked a sea change in the body of sentencing law.”5 Id. at 652 (internal quotation marks and citation omitted).
Here, as in Northeastern Florida, the amended statute remains constitutionally flawed—and the NSL recipients remain constitutionally injured— in “the same fundamental way” and the gravamen of their challenge to their gags remains the same. 508 U.S. at 662.
Miscarriage of justice. Remanding for further proceedings would only further prolong an already intolerably long prior restraint. See Am.-Arab AntiDiscrimination Comm. v. Reno, 70 F.3d 1045, 1058 (9th Cir. 1995) (noting “the duration of a trial is an ‘intolerably long’ period during which to permit the continuing impairment of First Amendment rights.”) (internal citation omitted). The loss of the right to speak, “for even minimal periods of time, unquestionably” constitutes a significant and irreparable injury. Elrod v. Burns, 427 U.S. 347, 373 (1976). Just as the Supreme Court held in its seminal Pentagon Papers decision, the prior restraint here “violate[s] the First Amendment—and not less so because that restraint was justified as necessary to afford the courts an opportunity to
5 On rehearing en banc, the Court held that limited remand was required to determine whether Booker error was harmful. Ameline, 409 F.3d at 1073.
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examine the claim more thoroughly.” New York Times Co. v. United States, 403 U.S. 713, 727 (1971) (Brennan, J., concurring).
Purely legal question. Finally, the question presented—the constitutionality of the challenged gags under the amended statute—is purely one of law for which the parties need not supplement the factual record. Nor will the Court’s consideration of the question here on appeal in any way prejudice the parties. Indeed, the legal issues presented under the amended statute are the very same legal issues presented by the original statute. These issues have been fully addressed by both parties, and as outlined above, the amendments have not resolved the statute’s unconstitutionality. This Court has numerous times considered purely legal issues on appeal under similar circumstances. See, e.g., Fed. Ins. Co. v. Union Pac. R.R. Co., 651 F.3d 1175, 1178 (9th Cir. 2011); Dream Palace v. Cnty. of Maricopa, 384 F.3d 990, 1005 (9th Cir. 2003); United States v. Kaczynski, 551 F.3d 1120, 1124 (9th Cir. 2009); Thompson v. Runnels, 705 F.3d 1089, 1100 (9th Cir. 2013); United States v. Winslow, 962 F.2d 845, 849 (9th Cir. 1992).
For each of these three reasons, independently, this Court should exercise its discretion to address the legality of the gags under the amended statute now on appeal.
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CONCLUSION

For the reasons described above, the NSL statute as amended by the USA

FREEDOM Act remains unconstitutional and should be struck down.

Dated: July 6, 2015

Respectfully submitted,

/s/ Kurt Opsahl Kurt Opsahl, Esq. Cindy Cohn, Esq. David Greene, Esq. Lee Tien, Esq. Jennifer Lynch, Esq. Nathan D. Cardozo, Esq. Andrew Crocker, Esq. ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109

Richard R. Wiebe, Esq. LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111

Counsel for UNDER SEAL

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CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS AND TYPE STYLE REQUIREMENTS PURSUANT TO FED. R. APP. P. 32(a)(7)(C) Pursuant to Fed. R. App. P. 32(a)(7)(C), I certify as follows: 1. Appellee/Appellant Under Seal’s Supplemental Brief Re: USA FREEDOM Act complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) and Circuit Rule 28-4 because this brief contains 3,059 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii); and 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2011 for Mac, the word processing system used to prepare the brief, in 14 point, Times New Roman font.

Dated: July 6, 2015

By: /s/ Kurt Opsahl Kurt Opsahl Counsel for UNDER SEAL

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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Clerk of the

Court for the United States Court of Appeals for the Ninth Circuit by using the

appellate CM/ECF system on July 6, 2015.

I certify that all parties in the cases are registered CM/ECF users and that

service will be accomplished by the appellate CM/ECF system.

Dated: July 6, 2015

By: /s/ Kurt Opsahl Kurt Opsahl Counsel for UNDER SEAL

16

 
 Case: 13-15957, 07/06/2015, ID: 9599731, DktEntry: 97, Page 1 of 20
Nos. 13-15957, 13-16731, 13-16732 ______________________________________________________________________
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ____________________
IN RE NATIONAL SECURITY LETTER, ____________________
UNDER SEAL,
Petitioners-Appellants (Nos. 13-16731, 13-16732), Petitioner-Appellee (No. 13-15957)
v.
LORETTA E. LYNCH, Attorney General; UNITED STATES DEPARTMENT OF JUSTICE; FEDERAL BUREAU OF INVESTIGATION,
Respondents-Appellees (Nos. 13-16731, 13-16732), Respondents-Appellants (No. 13-15957) ____________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ____________________
GOVERNMENT’S SUPPLEMENTAL BRIEF Filed Under Seal
____________________
BENJAMIN C. MIZER Principal Deputy Assistant Attorney General
DOUGLAS N. LETTER SCOTT R. MCINTOSH KATHERINE TWOMEY ALLEN (202) 514-5048 Attorneys, Appellate Staff Civil Division, Room 7325 United States Department of Justice 950 Pennsylvania Ave., NW
Washington, DC 20530

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TABLE OF CONTENTS Page(s)
INTRODUCTION .....................................................................................................1 STATUTORY BACKGROUND...............................................................................2 A. The Act’s Amendments To 18 U.S.C. § 3511(b)............................................2 B. The Act’s Amendments To 18 U.S.C. § 2709.................................................4 C. Other Provisions Of The Act ...........................................................................5 ARGUMENT .............................................................................................................7 I. THE USA FREEDOM ACT REINFORCES THE FACIAL
CONSTITUTIONALITY OF THE NONDISCLOSURE PROVISIONS OF 18 U.S.C. §§ 2709 AND 3511..........................................7 A. The Amended Statute Is Constitutional Under Freedman....................8 B. The Amended Standard Of Review Is Constitutional.........................10 C. The Nondisclosure Requirements Satisfy Strict Scrutiny...................12 II. THE NSL NONDISCLOSURE PROVISIONS ARE CONSTITUTIONAL AS APPLIED IN THESE CASES.............................13 CONCLUSION ........................................................................................................15 CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES

Cases:

Page(s)

Freedman v. Maryland, 380 U.S. 51 (1965)..................................................................................................8

John Doe, Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008) .......................................................1, 2, 3, 4, 9, 10, 13

Lorillard v. Pons, 434 U.S. 575 (1978)..............................................................................................11

Microsoft Corp. v. i4i Ltd. Partnership, 131 S. Ct. 2238 (2011)..........................................................................................10

Mills v. United States, 742 F.3d 400 (9th Cir. 2014) ................................................................................14

Thomas v. Chicago Park Dist., 534 U.S. 316 (2002)................................................................................................8

United States v. Lincoln, 277 F.3d 1112 (9th Cir. 2002) ..............................................................................11

Statutes: The USA FREEDOM Act of 2015,
Pub. L. No. 114-23, 129 Stat. 268 ..........................................................................2 The USA FREEDOM Act of 2015, § 502(f)(1) ..................................................6, 13 The USA FREEDOM Act of 2015, § 502(f)(1)(A)...................................................6 The USA FREEDOM Act of 2015, § 603(a)...........................................................12 18 U.S.C. § 2709....................................................................................................1, 7 18 U.S.C. § 2709(b)(1)...............................................................................................4
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18 U.S.C. § 2709(c) ...........................................................................................2, 5, 8 18 U.S.C. § 2709(c)(1)(A) .....................................................................................5, 9 18 U.S.C. § 2709(c)(2)(A)(iii) .................................................................................13 18 U.S.C. § 2709(d)(1)...............................................................................................5 18 U.S.C. § 2709(d)(2)...........................................................................................5, 9 18 U.S.C. § 3511....................................................................................................1, 8 18 U.S.C. § 3511(b) ..........................................................................................passim 18 U.S.C. § 3511(b)(1)(A).....................................................................................2, 9 18 U.S.C. § 3511(b)(1)(B) .....................................................................................2, 9 18 U.S.C. § 3511(b)(1)(C) .....................................................................................3, 9 18 U.S.C. § 3511(b)(2).............................................................................3, 10, 11, 15 18 U.S.C. § 3511(b)(3).............................................................................4, 10, 11, 12 50 U.S.C. § 1874(a) .................................................................................................12 50 U.S.C. § 1874(a)(1)(A) .........................................................................................7 50 U.S.C. § 1874(a)(2)(A) .........................................................................................7 50 U.S.C. § 1874(a)(3)(A) .........................................................................................7 50 U.S.C. § 1874(a)(4)(A) .........................................................................................7 50 U.S.C. § 1874(c) .................................................................................................13 Legislative Materials: H.R. Rep. No. 114-109 (2015).............................................................3, 4, 5, 6, 7, 12
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INTRODUCTION In John Doe, Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008), the Second Circuit identified procedures by which the NSL nondisclosure provisions of 18 U.S.C. §§ 2709 and 3511 may be applied in a constitutional manner. In the proceedings below, the district court agreed that the Doe procedures satisfy the requirements of the First Amendment. See 13-15957 ER 3; 13-16732 ER 13. The court nevertheless held that the NSL statute was facially unconstitutional because the Doe procedures were not codified in the statute. See 13-15957 ER 20-21. On appeal, the NSL recipients’ primary argument was likewise that the statute itself did not contain the Doe procedures. See 13-15957 Br. 21-41; 13-16732 Br. 22-42. That is no longer the case. The USA FREEDOM Act of 2015 revises the NSL nondisclosure provisions to codify the procedures outlined in Doe. The Act also revises the NSL nondisclosure provisions in other respects that further accommodate First Amendment interests. In particular, the Act directs the Attorney General to establish procedures to require the review at appropriate intervals of nondisclosure requirements issued pursuant to amended § 2709 and the termination of such requirements if the facts no longer support nondisclosure. In light of these amendments, there are no plausible grounds for challenging the facial constitutionality of the NSL nondisclosure provisions. And because it is undisputed that the government has abided by the Doe procedures since 2009,

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including in these cases, the provisions are likewise constitutional as applied. STATUTORY BACKGROUND
The two key statutory provisions at issue in this case are 18 U.S.C. §§ 2709(c) and 3511(b). The USA FREEDOM Act of 2015, Pub. L. No. 114-23, 129 Stat. 268 (hereafter “the USA FREEDOM Act” or “the Act”), revises both provisions. The Act also amends other statutory provisions relevant to these appeals.
A. The Act’s Amendments To 18 U.S.C. § 3511(b) Section 502(g) of the USA FREEDOM Act revises the terms of 18 U.S.C. § 3511(b) to codify the reciprocal notice procedure for NSL nondisclosure requirements that the Second Circuit found constitutional in John Doe, Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008), and that the government has been following since 2009. As amended by the Act, 18 U.S.C. § 3511(b)(1)(A) provides an NSL recipient with two alternative means to obtain judicial review of a nondisclosure requirement: by filing a petition for judicial review or by notifying the government. 18 U.S.C. § 3511(b)(1)(A). If the recipient notifies the government that it wishes to have a court review a nondisclosure requirement, the government must apply for a nondisclosure order within thirty days thereafter. Id. § 3511(b)(1)(B). The Act calls on the district court to “rule expeditiously,” and if the court determines that
2

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the requirements for nondisclosure are met, it shall “issue a nondisclosure order that includes conditions appropriate to the circumstances.” Id. § 3511(b)(1)(C).
These provisions are designed to codify the procedure that the Second Circuit identified as constitutional in Doe, 549 F.3d at 879, 883-84, and that the government has been following since 2009. The House Committee Report states that Section 502 of the Act “corrects the constitutional defects in the issuance of NSL nondisclosure orders found by the Second Circuit Court of Appeals in Doe v. Mukasey, 549 F.3d 861 (2d. Cir. 2008), and adopts the concepts suggested by that court for a constitutionally sound process.” H.R. Rep. No. 114-109, at 24 (2015). The option for the recipient to notify the government “is intended to ease the burden on the recipient in challenging the nondisclosure order.” Id.
Under the amended terms of § 3511(b), the government’s application for a nondisclosure order must include a certification from a specified government official that contains “a statement of specific facts” indicating that the absence of a prohibition on disclosure may result in enumerated harms. 18 U.S.C. § 3511(b)(2). Consistent with the statutory interpretation adopted by the Second Circuit at the government’s suggestion in Doe, 549 F.3d at 875-76, the Act expressly places the burden of persuasion on the government, stating that the district court shall issue a nondisclosure order if it determines “that there is reason to believe” that the
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absence of a nondisclosure order may result in one of the enumerated harms. 18 U.S.C. § 3511(b)(3).
In further accordance with Doe, 549 F.3d at 884, the Act modifies § 3511(b) by repealing the provision (formerly in § 3511(b)(2)-(3)) that gave conclusive effect to good-faith certifications by specified officials of certain harms. See H.R. Rep. No. 114-109, at 24 (“This section repeals a provision stating that a conclusive presumption in favor of the government shall apply where a high-level official certifies that disclosure of the NSL would endanger national security or interfere with diplomatic relations.”). The Act also repeals the provision (formerly in § 3511(b)(3)) under which an NSL recipient who unsuccessfully challenged a nondisclosure requirement a year or more after the issuance of the NSL was obligated to wait one year before again seeking judicial relief.
B. The Act’s Amendments To 18 U.S.C. § 2709 The USA FREEDOM Act also amends 18 U.S.C. § 2709(b) and (c) and adds new subsection (d). Section 501(a) of the Act amends 18 U.S.C. § 2709(b)(1) to authorize NSLs only when a specified FBI official “us[es] a term that specifically identifies a person, entity, telephone number, or account as the basis for [the NSL].” As the House Report explains, this section prohibits the use of NSL authorities “without
4

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the use of a specific selection term as the basis for the NSL request,” and “specifies that for each NSL authority, the government must specifically identify the target or account.” H.R. Rep. No. 114-109, at 24.
Section 502(a) of the Act replaces the former provisions of 18 U.S.C. § 2709(c) with new provisions. As revised by the Act, § 2709(c) now expressly requires the government to provide the NSL recipient with notice of the right to judicial review in order for the prohibition on disclosure to apply, thus further codifying Doe’s reciprocal notice procedure. Id. § 2709(c)(1)(A). Apart from this change, the new terms of § 2709(c) impose largely the same substantive requirements as former § 2709(c).
Finally, the Act adds § 2709(d), which provides that an NSL or a nondisclosure requirement accompanying an NSL shall be subject to judicial review under § 3511 and that an NSL shall include notice of the availability of judicial review. 18 U.S.C. § 2709(d)(1)-(2); see H.R. Rep. No.14-109, at 25.
C. Other Provisions Of The Act The USA FREEDOM Act also adds two new provisions that are relevant here. First, Section 502(f) of the Act requires the Attorney General to adopt procedures to require “the review at appropriate intervals” of nondisclosure requirements issued pursuant to amended § 2709 “to assess whether the facts
5

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supporting nondisclosure continue to exist.” USA FREEDOM Act § 502(f)(1)(A). The procedures must provide for “the termination of such a nondisclosure requirement if the facts no longer support nondisclosure,” and the NSL recipient must be notified that the requirement has been terminated. See id. § 502(f)(1)(B)(C). The Act directs the Attorney General to adopt such procedures within 180 days1 and to submit the procedures to the Judiciary Committees of the Senate and the House. See id. § 502(f)(1)-(2). The House Committee Report states that these procedures are “based upon nondisclosure reforms proposed by President Obama in January 2014,” and notes that the Director of National Intelligence announced a policy in response to the President’s direction as part of the Signals Intelligence Reform 2015 Anniversary Report. H.R. Rep. No. 114-109, at 24-25. The government notified this Court of that announcement in its Rule 28(j) letter filed on February 12, 2015. See 13-16731 Dkt. No. 89; 13-16732 Dkt. No. 80.
Second, § 603(a) of the Act establishes a statutory mechanism for NSL recipients to make public disclosures of aggregated (“band”) data about the national security process, including NSLs, that they receive. See USA FREEDOM Act § 502(f)(1). For example, a person subject to a nondisclosure order
1 One hundred and eighty days from the date of enactment is November 29, 2015. 6

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accompanying an NSL may publicly release a semiannual report that, among other things, aggregates the number of NSLs the person was required to comply with in bands of 1000, starting with 0-999, 50 U.S.C. § 1874(a)(1)(A), or in bands of 500, starting with 0-499, id. § 1874(a)(2)(A), or the total number of all national security process received in bands of 250, starting with 0-249, id. § 1874(a)(3)(A), or an annual report of, among other things, the total number of all national security process received in bands of 100, starting with 0-99, id. § 1874(a)(4)(A). The House Committee Report states that this provision is “modeled on” the mechanism previously implemented by the government on a discretionary basis in January 2014—“which allowed for companies to publicly report data concerning government requests for customer information.” H.R. Rep. No. 114-109, at 26-27. The government’s mechanism for aggregated data disclosures was discussed at oral argument and was the subject of the government’s letter dated November 6, 2014. See 13-16732 Dkt. No. 75; 13-15957 Dkt. No. 86.
ARGUMENT I. THE USA FREEDOM ACT REINFORCES THE FACIAL
CONSTITUTIONALITY OF THE NONDISCLOSURE PROVISIONS OF 18 U.S.C. §§ 2709 AND 3511 The USA FREEDOM Act’s amendments remove any doubt about the facial constitutionality of the NSL nondisclosure provisions in 18 U.S.C. §§ 2709 and
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3511. As we explained in our initial briefs, even in their original form, those provisions satisfied the procedural safeguards in Freedman v. Maryland, 380 U.S. 51 (1965), because the FBI has carried them out in strict accord with the procedures the Second Circuit found constitutionally sufficient in Doe. See 1315957 US Br. 52-55, 13-16732 US Br. 49-53.2 The USA FREEDOM Act’s amendments now codify those procedures. The district court recognized that the statutory nondisclosure provisions would be constitutional if Congress enacted the Doe procedures into law. The statutory amendments also make clear that that the NSL provisions incorporate a constitutionally adequate standard of judicial review and that the NSL nondisclosure requirements satisfy strict scrutiny.
A. The Amended Statute Is Constitutional Under Freedman As amended by the Act, 18 U.S.C. §§ 2709(c) and 3511(b) satisfy each of the three procedural requirements outlined in Freedman: (1) any administrative restraint that precedes judicial review must be brief; (2) expeditious judicial review must be available; and (3) the government must bear the burden of initiating judicial review and the burden of proof in court. 380 U.S. at 58-60; see Thomas v. Chicago Park Dist., 534 U.S. 316, 321 (2002). 2 For reasons discussed in our earlier briefs, the Freedman requirements are inapplicable, see 13-15957 US Br. 48-52; 13-16732 Br. 45-49, but this Court need not reach that issue because the statute clearly satisfies the Freedman standard.
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First, the administrative restraint that precedes judicial review is brief. The government must notify the NSL recipient of the availability of judicial review when it issues the NSL. See 18 U.S.C. § 2709(c)(1)(A); see also id. § 2709(d)(2). The NSL recipient may initiate judicial review immediately upon receipt of the NSL by filing a petition for review. 18 U.S.C. § 3511(b)(1)(A). Alternatively, the recipient may immediately notify the FBI that it wishes to challenge the nondisclosure requirement, in which case the government must initiate judicial review within thirty days. Id. § 3511(b)(1)(A)-(B).
Second, the amended terms of § 3511(b) make expeditious judicial review available. Amended § 3511(b) specifies that the district court must “rule expeditiously” on a petition by an NSL recipient or an application by the government. 18 U.S.C. § 3511(b)(1)(C).
Third, amended § 3511(b) assigns the government the burden of initiating judicial review as well as the burden of persuasion in court. As just noted, the government must initiate judicial review upon the NSL recipient’s request. 18 U.S.C. § 3511(b)(1)(A)-(B). The amended statute also places the burden of persuasion in court on the government. Even before the recent amendments, the burden of persuasion rested with the government, as the Second Circuit held in Doe. See 549 F.3d at 875. But the Act amends the relevant statutory language to
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make the allocation of the burden more clear. Previously, the statute provided that a court could set aside or modify a nondisclosure requirement when the court found that “there is no reason to believe” that disclosure may result in one of the enumerated harms. 18 U.S.C. § 3511(b)(2)-(3) (2012). As amended, the statute provides that a court shall issue a nondisclosure order or extension thereof if the court finds that “there is reason to believe” that disclosure may result in one of the enumerated harms. 18 U.S.C. § 3511(b)(3) (emphasis added). This new language places the onus on the government to make the requisite showing.
B. The Amended Standard Of Review Is Constitutional The amended statute’s standard of judicial review is constitutional. As we explained in our initial briefing, the Second Circuit in Doe properly interpreted the standard of review in § 3511(b) as requiring the government “to persuade a district court that there is a good reason to believe that disclosure may risk one of the enumerated harms, and that a district court, in order to maintain a nondisclosure order, must find that such a good reason exists.” Doe, 549 F.3d at 875-76 (emphasis added); see 13-15957 US Br. 56-58; 13-16732 US Br. 53-55. Congress left Doe’s interpretation of the “standard of proof” (Microsoft Corp. v. i4i Ltd. Partnership, 131 S. Ct. 2238, 2245 (2011)) undisturbed when it revised § 3511(b), changing the statutory language only by bringing it into closer
10

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alignment with Doe’s holding regarding the burden of persuasion. “Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change.” Lorillard v. Pons, 434 U.S. 575, 580 (1978). For example, in United States v. Lincoln, this Court observed that it had previously interpreted a statutory definition of “victim” as including the United States, so when Congress amended that definition and did not exclude the United States, this Court “inferred that Congress adopted the judiciary’s interpretation.” 277 F.3d 1112, 1114 (9th Cir. 2002). So too here. By not changing the standard of proof, Congress implicitly ratified Doe’s interpretation of the standard of proof. Further underscoring the evidentiary showing the government must make, 18 U.S.C. § 3511(b)(2) now explicitly requires the government’s application for a nondisclosure order to include a certification from a specified government official that contains “a statement of specific facts” showing that the absence of a prohibition on disclosure may result in an enumerated harm.
The district court also found the standard for judicial review unconstitutional because it allowed certain certifications by certain senior officials to be “conclusive” in judicial proceedings in the absence of bad faith. See 13-15957 ER 24; 18 U.S.C. § 3511(b)(2)-(3) (2012). The amended statute eliminates this
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provision, see 18 U.S.C. § 3511(b)(3); H.R. Rep. No. 114-109, at 24, and thereby eliminates the district court’s constitutional concern.
C. The Nondisclosure Requirements Satisfy Strict Scrutiny As we explained in our initial briefs, the NSL nondisclosure requirements are not prior restraints and should be analyzed under intermediate scrutiny. See 13-15957 US Br. 31-33, 48-52; 13-15957 US Reply 19-22; 13-16732 US Br. 2831, 45-49. But, as we argued, even if strict scrutiny applies, the NSL nondisclosure requirements satisfy strict scrutiny because they are narrowly tailored to serve a compelling government interest. See 13-15957 US Br. 27-30; 13-15957 US Reply 22-26; 13-16732 US Br. 25-28. The district court identified two respects in which it regarded the scope of the nondisclosure requirement as unduly broad, both of which Congress has addressed in the amended statute. First, the district court stated that in some instances a recipient may be able to disclose the fact that it had received an NSL without risking any of the statutory harms. 13-15957 ER 21-22. The statutory amendments alleviate this concern by codifying and expanding the procedure by which NSL recipients may publicly disclose aggregated band data about the number of NSLs and other national security process they have received. See USA Freedom Act § 603(a); 50 U.S.C. § 1874(a). Furthermore, the amendments allow
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the government to agree to other disclosures in certain circumstances. See 50 U.S.C. § 1874(c); 18 U.S.C. § 2709(c)(2)(A)(iii).
Second, the district court stated that in some instances the statute could result in NSL nondisclosure requirements that continue in force “longer than necessary to serve the national security interests at stake.” 13-15957 ER 23. The Second Circuit noted in Doe that the judicial review provisions in § 3511(b) already enabled courts to modify or set aside a nondisclosure requirement that is no longer necessary. 549 F.3d at 884 n.16. Congress has now gone further by directing the Attorney General to adopt procedures for periodically reviewing nondisclosure requirements issued pursuant to amended § 2709 to assess whether the facts supporting nondisclosure continue to exist. See USA FREEDOM Act § 502(f)(1). Moreover, Congress has removed the provision that precluded certain NSL recipients from challenging a nondisclosure requirement more than once per year. See id. These changes minimize the possibility that NSL nondisclosure requirements will remain in effect after the need for them has lapsed. II. THE NSL NONDISCLOSURE PROVISIONS ARE
CONSTITUTIONAL AS APPLIED IN THESE CASES The district court did not reach the as-applied challenge in Nos. 13-15957, and it rejected the as-applied challenges in Nos. 13-16731 and 13-16732. On
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appeal in Nos. 13-16731 and 13-16732, the NSL recipients’ sole argument against enforcement of the NSLs is the supposed facial invalidity of the entire statutory scheme. The NSL recipients have thus waived on appeal any as-applied claims. See, e.g., Mills v. United States, 742 F.3d 400, 409 n.9 (9th Cir. 2014) (legal theories not specifically and distinctly argued in opening brief are waived). Accordingly, the as-applied challenges are not properly before this Court.
In any event, the as-applied challenges fail. As explained in our initial briefing, the NSL recipients received the procedures specified in Doe, the district court applied the standard of review as interpreted in Doe, and these NSL nondisclosure requirements are narrowly tailored to serve the compelling government interest in counterterrorism and counterintelligence.
Insofar as these cases are ongoing, the amended standard of judicial review and certification requirement in § 3511(b) apply. The district court did not reach the merits of the nondisclosure requirement in No. 13-15957, but the new procedures will apply on remand if this Court finds the statute constitutional. The district court enforced the NSL nondisclosure orders in Nos. 13-16731 and 1316732, applying the prior version of the statute as interpreted in Doe. See 1315957 ER 3-5; 13-16732 ER 13-14. The judicial review standard the district court applied is the same standard that is in the amended statute. And while the
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requirement that the government’s certification contain “a statement of specific

facts” indicating that the absence of a prohibition on disclosure may result in

enumerated harms, 18 U.S.C. § 3511(b)(2), was not then in effect, the detailed

information the government provided to support the nondisclosure order

effectively satisfies that requirement, and the district court found that information

sufficient to satisfy the standard of proof. See 13-15957 ER 4; 13-16732 ER 13-

14. Accordingly, no remand is required in Nos. 13-16731 and 16732.

CONCLUSION

For the foregoing reasons, in Nos. 13-16731 and 13-16732, the district

court’s decision enforcing the NSLs should be affirmed. In No. 13-15957, the

district court’s decision holding the NSL statute unconstitutional and the

accompanying injunction should be reversed, and the case should be remanded for

further proceedings under 18 U.S.C. § 3511(b).

Respectfully submitted,

BENJAMIN C. MIZER Principal Deputy Assistant Attorney General

JULY 2015

DOUGLAS N. LETTER SCOTT R. MCINTOSH KATHERINE TWOMEY ALLEN Attorneys, Appellate Staff, Civil Division United States Department of Justice 950 Pennsylvania Ave., NW Washington, DC 20530
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CERTIFICATE OF SERVICE I hereby certify that on July 6, 2015, I filed under seal the foregoing Government’s Supplemental Brief using the Court’s ECF system. Parties to the case (but not amici) who are registered CM/ECF users will be served by the appellate CM/ECF system.
/s/ Katherine Twomey Allen KATHERINE TWOMEY ALLEN

 
 CINDY A. COHN (SBN 145997)

cindy@eff.org 2 KURT OPSAHL (SBN 191303)

3

kurt@eff.org MATTHEW ZIMMERMAN (SBN 212423)

4 mattz@eff.org JENNIFER LYNCH (SBN 240701)

5 j lynch@eff.org

NATHAN D. CARDOZO (SBN 259097) 6 nate@eff.org

ELECTRONIC FRONTIER FOUNDATION 7 454 Shotwell Street

8 San Francisco, CA 94110 Telephone: (415) 436-9333

9 Facsimile: (415) 436-9993

10 RICHARD R. WIEBE (SBN 121156) twiebe@bermanesq.com
11 LAW OFFICE OF RICHARD R. WIEBE I California Street, Suite 900
12 San Francisco, CA 94111 Telephone: (415) 433-3200
13 Facsimile: (415) 433-6382
14 Attorneys for Defendant

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APR 1 F\ 2013

15

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF ALIFORNIA

17 SAN FRANCISCO DIVISION

18 )

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) Case No. 11 -cv-2667 S l

)

Plaintiff,

) STIPULATION AND (PROPOSEDI

v.

) O RD R R CARDING DE ENDANT'S

22

) RESPON IVE PLEADING

WORKING ASSETS FUNDING SERVICE, )

23 INC./CREDO MOBILE, INC.,

) FILED UNDER AL PURSUANT T THE

) COURT' RD RDA DJ ULY 8 20 11

24

)

Defendant.

) Hon. Susan lllsto n

25

)

Courtroom

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19

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h

Floor

)

26

27

ORIGINAL

28

Case No. C 11-2667 SI

STIPULATION REGARD I G DEFENDANT'S RESPONSI V - P A DIN

CINDY A. COHN (SBN 145997)

cindy@eff.org 2 KURT OPSAHL (SBN 191303)

3

kurt@eff.org MATTHEW ZIMMERMAN (SBN 212423)

4 mattz@eff.org JENNIFER LYNCH (SBN 240701)

5 jlynch@eff.org NATHAN D. CARDOZO (SBN 259097)

6 nate@eff.org

ELECTRONIC FRONTIER FOUNDATION 7 454 Shotwell Street

8 San Francisco, CA 94110 Telephone: (415) 436-9333

9 Facsimile: (415) 436-9993

10 RICHARD R. WIEBE (SBN 121156) rwiebe@bermanesq.com
11 LAW OFFICE OF RICHARD R. WIEBE 1 California Street, Suite 900
12 San Francisco, CA 94111 Telephone: (415) 433-3200
13 Facsimile: (415) 433-6382

14 Attorneys for Defendant

I
APR 1 5 2013
'lNG )URT ·.JFO

15 UNITED STATES DISTRICT COU RT

16 NORTHERN DISTRICT OF CALIFORNIA

17 SAN FRANCISCO DJVIS ION

18 )

19

)

THE UNITED STATES DEPARTMENT OF )

20 JUSTICE,

) Case No. I 1-cv-2667 Sl

)

21

Plaintiff,

) STIPULATION AN D IPROPO EDI

v.

) ORDER REGARDI NG DEFEN DANT'S

22

) RESPONSIVE P LEADI NG

WORKING ASSETS FUNDING SERVICE, )

23 INC./CREDO MOBILE, INC.,

) FILED UNO R AL PUR ANT TO THE

) COURT' ORDER DATED JULY 8, 2011

24

)

Defendant.

) Hon. u an ll lston

25

) Courtroom I0, 19'11 Floor

)

26

27

OR1GINAL

28

Case No. C 11-2667 SI

STIPULATION REGARD! G DEFENDANT'S RESPONSI E PLEADI G

...

Plaintiff THE UNITED STATES DEPARTMENT OF JUSTICE ("Plaintiff') and

2 Defendant WORKING ASSETS FUNDING SERVICE, INC./CREDO MOBILE, INC.

3 ("Defendant" or "CREDO") hereby stipulate pursuant to Civil Local Rule 6-1(a) that Defendant's

4 answer or other response to the Complaint is due by Aprill8, 2013.

5 DATED: April 3, 2013
6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

ELECTRONIC FRONTIER FOUNDATION
By~- Matthe iffimerman -
CINDY A. COHN LEE TIEN MATTHEW ZIMMERMAN MARCIA HOFMANN JENNIFER LYNCH NATHAN CARDOZO Electronic Frontier Foundation 454 Shotwell Street San Francisco, CA 94110 Telephone: 415-436-9333 Facsimile: 415-436-9993
Attorneys for Defendant WORKING ASSETS FUNDING SERVICE, INC./
CREDO MOBILE, INC.
U.S. DEPARTMENT OF JUSTICE
By /s Steven Bressler Steven Y. Bressler
TONY WEST Assistant Attorney General MELINDA HAAG United States Attorney ARTHUR R. GOLDBERG SANDRA M. SCHRAIBMAN Assistant Branch Directors STEVEN Y. BRESSLER Trial Attorney

25

U.S. Department ofJustice

Civil Division, Federal Programs Branch

26

P.O. Box 883

27

Washington, D.C. 20044

(202) 514-4781 (telephone)

28

(202) 318-7609 (fax)

Case No. C I 1-2667 SI

2
STIPULATION REGARDING DEFENDANT'S RESPONSIVE PLEADING

.

Attorneys for Plaintiff U.S. DEPARTMENT OF JUSTICE
2
DECLARATION 3

4

I, Matthew Zimmerman, hereby declare as follows :

5

I. On March 14, 2013, this Court granted CREDO'S Petition to Set Aside National

6 Security Letter in the related case of In Re National Security Letter, No. 11-2173. The above-

7 captioned case, No. 11-2667, was stayed by stipulation (signed by this Court on October 3, 2011)

8 pending the resolution the government's parallel motion to compel in No. 11-2173.

9

2. The extension of Defendant's responsive pleading deadline will have no other effect

10 on any scheduled matter in this case.

11

3. I have obtained the concurrence in the filing of this document from the other

12 signatory listed above.

13

I declare under penalty of perjury that the foregoing declaration is true and correct.

14

Executed this 4th day of April, 2013, in New York, NY.

15

By u-~~-

16

MatthewZ'!lleflmin

17 IT IS SO ORDERED.
18

19 20

Dated: -------~1~'~(\'__,_/..:..).;.._/__

21

By: ---=-=---~...,.-----.,~~ Hon. Susan Illston United States District Judge

22

23

24

25

26

27

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Case No. C 11-2667 Sl

3
STIPULATION REGARDING DEFENDANT'S RESPONSIVE PLEADING

. .

CERTIFICATE OF SERVICE

1

2

I, Stephanie Shattuck, certify that on April 4, 2013, pursuant to prior agreement of

3 the parties, I caused the following documents:

4

5 to be served electronically on the government's counsel, Steven Y. Bressler,
6 Steven.Bressler@usdoj .gov.
7 I declare under penalty of perjury that the foregoing is true and correct. Executed
8 on April 4, 2013, at San Francisco, California.
9

10

11

12

13

14

15

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17

18

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27 28

Case No. C 11 -2667 Sl

CERTIFICATE OF SERVICE