334 F.Supp.2d 471 (2004)
John DOE; American Civil Liberties Union; and American Civil Liberties Union Foundation, Plaintiffs, v.
John ASHCROFT, in his official capacity as Attorney General of the United States; Robert Mueller, in his official capacity as Director of the
Federal Bureau of Investigation; and Marion Bowman, in his official capacity as Senior Counsel to the Federal Bureau of Investigation,
Defendants.
No. 04 Civ. 2614(VM).
United States District Court, S.D. New York.
September 28, 2004.
472*472 473*473 474*474 Ann Beeson, New York, NY, Arthur N. Eisenberg, New York Civil Liberties Union Foundation, New York, NY, Jameel Jaffer, New York, NY, for American Civil Liberties Union, John Doe.
Meredith E. Kotler, New York, NY, for John Ashcroft, Marion Bowman, Robert Mueller.
OPINION
DECISION AND ORDER
MARRERO, District Judge.
TABLE OF CONTENTS
I. INTRODUCTION ........................................................ 474
II. BACKGROUND .......................................................... 476
A. DOE'S RECEIPT OF AN NSL .......................................... 478
B. § 2709 IN GENERAL ................................................ 479
C. LEGISLATIVE HISTORY .............................................. 480
D. NSLs AND OTHER INFORMATION-GATHERING AUTHORITY ................... 484

1. Administrative Subpoenas ...................................... 484
2. Subpoena Authority in the Criminal Context .................... 485
3. Background Rules Governing Disclosure of Stored Electronic Communications ..............................................
487 4. Mail ..........................................................
488 5. Pen Registers and Trap and Trace Devices ......................
488 6. Wiretaps and Electronic Eavesdropping .........................
489 7. Foreign Intelligence Surveillance Act .........................
489
III. SUMMARY JUDGMENT STANDARD ........................................... 491
IV. DISCUSSION .......................................................... 491
A. SECTION 2709, AS DRAFTED, RAISES SERIOUS CONSTITUTIONAL QUESTIONS .......................................
491 B. AS APPLIED HERE, SECTION 2709 LACKS PROCEDURAL PROTECTIONS NECESSARY TO VINDICATE CONSTITUTIONAL RIGHTS ..........................................
494 1. Section 2709 And The Fourth Amendment .........................
494 2. NSLs May Violate ISP Subscribers' Rights ......................
506 C. CONSTITUTIONALITY OF THE NON-DISCLOSURE PROVISION ................
511
V. STAY OF JUDGMENT .................................................... 526
VI. CONCLUSION .......................................................... 526
VII. ORDER ............................................................... 527
I. INTRODUCTION
Plaintiffs in this case challenge the constitutionality of 18 U.S.C. § 2709 ("§ 2709"). That statute authorizes the Federal Bureau of Investigation ("FBI") to compel communications firms, such as internet service providers ("ISPs") or telephone companies, to produce certain customer 475*475 records whenever the FBI certifies that those records are "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities."[1] The FBI's demands under § 2709 are issued in the form of national security letters ("NSLs"), which constitute a unique form of administrative subpoena cloaked in secrecy and

pertaining to national security issues. The statute bars all NSL recipients from ever disclosing that the FBI has issued an NSL.[2]
The lead plaintiff, called "John Doe" ("Doe")[3] for purposes of this litigation, is described in the complaint as an internet access firm that received an NSL. The other plaintiffs are the American Civil Liberties Union ("ACLU") and the American Civil Liberties Union Foundation, which is also acting as counsel to Doe (collectively with Doe, "Plaintiffs"). Plaintiffs contend that § 2709's broad subpoena power violates the First, Fourth and Fifth Amendments of the United States Constitution, and that the non-disclosure provision violates the First Amendment. They argue that § 2709 is unconstitutional on its face and as applied to the facts of this case. Plaintiffs' main complaints are that, first, § 2709 gives the FBI extraordinary and unchecked power to obtain private information without any form of judicial process, and, second, that § 2709's non-disclosure provision burdens speech categorically and perpetually, without any case-by-case judicial consideration of whether that speech burden is justified. The parties have cross-moved for summary judgment on all claims.
For the reasons explained below, the Court grants Plaintiffs' motion. The Court concludes that § 2709 violates the Fourth Amendment because, at least as currently applied, it effectively bars or substantially deters any judicial challenge to the propriety of an NSL request. In the Court's view, ready availability of judicial process to pursue such a challenge is necessary to vindicate important rights guaranteed by the Constitution or by statute. On separate grounds, the Court also concludes that the permanent ban on disclosure contained in § 2709(c), which the Court is unable to sever from the remainder of the statute, operates as an unconstitutional prior restraint on speech in violation of the First Amendment.
The Court's ruling is about the process antecedent to the substance of any particular challenge, and in that vein, it is both narrow and broad. This determination is narrow in two respects. First, although the Court recognizes hypothetically that some aspects of the interpretation of § 2709 as proffered by the Government here may be plausible, the Court's analysis of the legislative record reveals grounds at least as compelling to cast substantial doubt upon such a reading of the statute. Given its strong reservations about the sufficiency of the statutory basis upon which the Government's theory is founded, the Court in the final analysis deems it unnecessary to rule upon Plaintiff's facial challenge to § 2709 on Fourth Amendment grounds.
Second, the Court declines Plaintiffs' invitation to decide the measure of Fourth Amendment protection demanded when 476*476 the Government makes NSL requests generally or in any particular case. The Court decides only that those rights, as well as other rights attaching to protected speech content that may be revealed to the Government as a result of an NSL, are implicated to some extent when an individual receives an NSL, thus necessitating the practical availability of some form of access to the judicial system to challenge the NSL. On the record before it, the Court finds that in practice those rights are substantially curtailed by the manner in which the FBI administers § 2709.
The Court's ruling is broad in that even if § 2709 could be fairly construed in accordance with the Government's proposed reading to incorporate the availability of some judicial review, and putting aside the impairment of Fourth Amendment protections the Court finds countenanced by § 2709 as applied, other structural flaws inherent in the statute as a whole render it invalid on its face. In particular, the Court agrees with Plaintiffs that § 2709(c), the non-disclosure provision, is unconstitutional. In simplest terms, § 2709(c) fails to pass muster under the exacting First Amendment standards applicable here because it is so broad and open-ended. In its all-inclusive sweep, it prohibits the NSL recipient, or its officers, employees, or agents, from revealing the existence of an NSL inquiry the FBI pursued under § 2709 in every case, to any person, in perpetuity, with no vehicle for the ban to ever be lifted from the recipient or other persons affected,

under any circumstances, either by the FBI itself, or pursuant to judicial process. Because the Court cannot sever § 2709(c) from § 2709(a) and (b), the Court grants the remedy Plaintiffs request enjoining the Government from using § 2709 in this or any other case as a means of gathering information from the sources specified in the statute.
Considering the implications of its ruling and the importance of the issues involved, the Court will stay enforcement of its judgment for 90 days, pending appeal or measures by the Government otherwise to address the flaws in the structure and implementation of § 2709 described here.
II. BACKGROUND
Like most of our constitutional law's hardest cases, this dispute is about two fundamental principles: values and limits. It centers on the interplay of these concepts, testing the limits of values and the values of limits where their ends collide.
National security is a paramount value, unquestionably one of the highest purposes for which any sovereign government is ordained. Equally scaled among human endeavors is personal security, an interest especially prized in our system of justice in the form of the guarantee bestowed upon the individual to be free from imposition by government of unwarranted restraints on protected fundamental rights.[4] Efficiency, too, counts as a basic value, though it essentially serves as a tool in the service of other interests. To perform its national security functions properly, government must be empowered to respond promptly and effectively to public exigencies as they arise, and in pursuit of those necessary actions to maintain a reasonable measure of secrecy surrounding its operations and methods.
When pushed to their outer limits, these values may clash, giving rise to another form of interaction among vital societal principles. Inevitably, the resultant forces 477*477 entail, from exercise of the powers assigned to the different branches of government, judgments about how and by whom to resolve which value may have exceeded its designated bounds. This choice is always demanding, and its outcome is not always plain at first sight. But, throughout the ages when the weighing has had to be done, time, wisdom and hard experience, aided by the inherent soundness of our underlying values, have steered resolution on a fairly consistent course. One guiding principle in that path is clearly marked in tried and proved results: that, by definition, efficiency invariably serves as the quickest and most expedient way to get from here to there; but, in the protection of fundamental values, the race is not always to the swiftest or cheapest means. So the Constitution counsels.
On this point, the United States Supreme Court has imparted consistent guidance, drawn on each occasion from adjudications of the some of the most intense crises in the nation's history. Recently, for example, in addressing the reach of the President's authority to combat terrorism, the Supreme Court declared: "We have long ... made clear that a state of war is not a blank check for the President when it comes to the rights of the nation's citizens."[5] This pronouncement echoes other like counsel issued when the Court has been called upon to settle conflicts of equally high moment. In another prominent case in point the Court remarked: "[E]ven the war power does not remove constitutional limitations safeguarding essential liberties."[6]
The Supreme Court's doctrine governing these occasions embodies a value judgment not hard to comprehend in the context of a practical consideration common to most instances in which constitutional tensions affecting individual rights come into play, as is evidenced in the case before this Court. In a sense, the conflict between government efficiency interests and personal liberty is strictly not one among equals. Efficiency is a multi-edged sword; it can cut many ways. Government ordinarily possesses more than one effective means to achieve a given public end. Thus, legitimate

efficiency interests can be accommodated by various alternatives, whether legislative or administrative, generally at the government's disposal. Personal freedoms, on the other hand, are far more unique. As individualized by constitutional ideals to embody our sense of human dignity, decency, and fair play, they attach to each individual by promise of the very government which creates those basic rights and is charged to protect them, and upon whose faithful adherence to their underlying principles and aims their enduring enjoyment depends. By reason of this contingency, individual rights may operate one way, or not at all when their exercise is unduly restricted or prohibited by measures of that constituted authority. Worse still is another risk. Sometimes a right, once extinguished, may be gone for good. Few satisfying means may then be available to truly restore to the particular victim or to the larger society the value of the loss.
One concluding observation cannot be overlooked as a consideration in this case. Between the dispute and its resolution hangs a large reality, here the backdrop against which the actuating events have played out. Call it an atmospheric pressure, a heavy weight that, foglike, has loomed densely over every aspect of these 478*478 proceedings. On September 11, 2001, the United States became the target of a murderous attack of international terrorism, unparalleled in its magnitude, and unprecedented in America's national experience. Losses and remembrances of that violence are still fresh in the minds of the American people. The wounds they suffered from it have not yet healed. The Court is not unmindful of the contextual relevance of those circumstances, serving as they do as impulse for some of the Government concerns and measures that gave rise to this litigation, suffusing the legal theories elaborated in the parties' papers, and stoking the fervor and immediacy animating the arguments urged before the Court.
In consequence, the Court's ruling not only takes due account of the force and poignancy of that history but, as this Court noted on another occasion similarly grounded,[7]represents an expression of several critical implications necessarily flowing from it. First, cases engendering intense passions and urgencies to unencumber the Government, enabling it to move in secrecy to a given end with the most expedient dispatch and versatile means, often pose the gravest perils to personal liberties. As the Supreme Court admonished in connection with another event similarly momentous: it is "under the pressing exigencies of crisis[ ] that there is the greatest temptation to dispense with fundamental constitutional guarantees which, it is feared, will inhibit governmental action."[8] Second, it is these conditions that best put the strength of our principles and convictions to the test, and measure our resolve and commitment to them. Third, it is precisely times like these that demand heightened vigilance, especially by the judiciary, to ensure that, as a people and as a nation, we steer a principled course faithful and true to our still-honored founding values. The high stakes here pressing the scales thus compel the Court to strike the most sensitive judicial balance, calibrating by delicate increments toward a result that adequately protects national security without unduly sacrificing individual freedoms, that endeavors to do what is just for one and right for all.
A. DOE'S RECEIPT OF AN NSL[9]
After receiving a call from an FBI agent informing him that he would be served with an NSL, Doe received a document, printed on FBI letterhead, which stated that, "pursuant to Title 18, United States Code (U.S.C.), Section 2709" Doe was "directed" to provide certain information to the Government.[10] As required by the terms of § 2709, in the NSL the FBI "certif[ied] that the information sought [was] relevant to an authorized investigation to protect against international terrorism 479*479 or clandestine intelligence activities."[11] Doe was "further advised" that § 2709(c) prohibited him, or his officers, agents, or employees, "from disclosing to any person that the FBI has sought or obtained access to information or records under these provisions."[12] Doe was "requested to provide records responsive to [the] request personally" to a designated individual,[13] and to not transmit the records by mail or even mention the NSL in anytelephone conversation.

After a subsequent conversation with the same FBI agent, Doe decided to consult ACLU lawyers. The parties dispute the nature of Doe's exchange with the FBI agent, though it is ultimately immaterial to this motion. Doe contends that the agent gave him permission to speak with an attorney; the agent claims that Doe merely informed the agent that he (Doe) would be consulting an attorney. Doe has not complied with the NSL request, and has instead engaged counsel to bring the present lawsuit.
B. § 2709 IN GENERAL
As stated above, § 2709 authorizes the FBI to issue NSLs to compel communications firms to produce certain customer records whenever the FBI certifies that those records are relevant to an authorized international terrorism or counterintelligence investigation, and the statute also categorically bars NSL recipients from disclosing the inquiry.[14] In relevant part, it states:
(a) 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.
(b) 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 —
(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, 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 480*480 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.
(c) Prohibition of certain disclosure. — No wire or electronic communication service provider, 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.[15]
Subsection (d) limits the FBI's ability to disseminate information collected from an NSL, and subsection (e) requires the FBI to periodically report to Congress about its use of NSLs.[16]
Section 2709 is one of only a handful of statutes authorizing the Government to issue NSLs. The other NSL statutes authorize the Government to compel disclosure of certain financial and credit records which it certifies are relevant to international terrorism or counterintelligence investigations, and to compel disclosure of certain records of current or former government employees who have (or have had) access to classified information.[17] In each case, the NSL statutes categorically bar the NSL recipient or its employees or agents from ever disclosing the Government's inquiry.[18] As stated, NSLs are distinguished from other administrative subpoenas in that NSLs pertain to national

security issues and are cloaked in secrecy. The Court discusses other administrative subpoenas in more detail below in Section I.D.1.
C. LEGISLATIVE HISTORY
Section 2709 was enacted as part of Title II of the Electronic Communications Privacy Act of 1986 ("ECPA"),[19] which sought to "protect privacy interests" in "stored wire and electronic communications" while also "protecting the Government's legitimate law enforcement needs."[20] Congress modeled Title II of the ECPA upon the Right to Financial Privacy Act ("RFPA") of 1978,[21] which espoused similar privacy goals for financial records.[22] The RFPA was "intended to protect the customers of financial institutions from unwarranted intrusion into their records while at the same time permitting legitimate law enforcement activity."[23]
The RFPA was an explicit "response to the Supreme Court decision in United States v. Miller which held that a customer of a financial institution has no standing under the [Fourth Amendment] to contest government access to financial records."[24] 481*481 In passing Title II of the ECPA eight years later, Congress feared that customers of electronic communications services would likewise find little Fourth Amendment protection from Government access to their records, thus creating the need for privacy legislation.[25]
Generally speaking, Title II (as amended) allows the Government to obtain stored electronic communications information without the subscriber's permission only through compulsory process, such as a subpoena, warrant, or court order.[26] Section 2709 is a notable exception to these privacy protections because it permits the FBI to request records upon a mere self-certification — issued to the ISP or telephone company, not to the subscriber or to any court — that its request complies with the statutory requirements.[27] As first enacted, § 2709 required electronic communication service providers to produce "subscriber information," "toll billing records information," or "electronic communication transactional records," upon the FBI's internal certification that (1) the information was "relevant to an authorized foreign counterintelligence investigation" and that (2) there were "specific and articulable facts giving reason to believe that the person or entity to whom the information sought pertains [was] a foreign power or an agent of a foreign power."[28]
Before the ECPA, the FBI had been issuing non-mandatory NSLs to communications providers, who, in most cases, complied voluntarily.[29] However, because carriers in states with strict privacy laws had recently been resisting those requests, the FBI sought to have mandatory, preemptive federal legislation supporting its issuance of NSLs.[30]The Senate Intelligence Committee agreed that federal law should mandate NSL compliance, but the Committee concluded that the FBI's mandatory NSL power should be more limited in scope than what the FBI had been seeking under voluntary NSL arrangements.[31] Whereas communications service providers had been volunteering to produce records which the FBI certified were merely "relevant to FBI counterintelligence activities," the Intelligence Committee's reported version of § 2709 limited the FBI's mandatory authority to "only obtain records where there are specific and articulable facts giving reason to believe that the person or entity to whom the information sought pertains is or may be a foreign power or an 482*482 agent of a foreign power."[32] The Committee stated that it believed that the strict standards of the proposed statute were consistent with both the First and Fourth Amendments and concluded that the "federal courts have not required either a judicial warrant or a probable cause standard for access to telephone subscriber information or toll billing record information."[33] The Court notes, however, that the version of § 2709 considered by the Intelligence Committee did not authorize the FBI to obtain electronic communication transactional records; that provision was added to the statute when it was integrated into the ECPA by the Judiciary Committee.[34]

In 1993, Congress broadened § 2709 by relaxing the required nexus to a foreign power.[35] The amended statute allowed the FBI to obtain records "where: (1) there is a contact with a suspected intelligence officer or a suspected terrorist, or (2) the circumstances of the conversation indicate ... that it may involve spying or an offer of information."[36] The original version of 483*483 the statute had required the FBI to certify that the communications service subscriber whose records were sought was himself a foreign agent or power, thereby preventing the FBI from issuing mandatory NSLs to obtain the records of, for example, persons who merely communicated with foreign agents regarding terrorism or clandestine intelligence information.[37] The Committee recognized that "the national security letter is an extraordinary device" and that "new applications are disfavored," but it "concluded that [the] narrow change in § 2709 to meet the FBI's focused and demonstrated needs was justified."[38]
The next and most recent major revision to § 2709 occurred in October 2001, as part of the USA PATRIOT Act of 2001 ("Patriot Act").[39] In short, the Patriot Act removed the previous requirement that § 2709 inquiries have a nexus to a foreign power, replacing that prerequisite with a broad standard of relevance to investigations of terrorism or clandestine intelligence activities.[40] In hearings before the House Judiciary Committee on September 24, 2001, the Administration submitted the following explanation for the proposed change:
NSL authority requires both a showing of relevance and a showing of links to an "agent of a foreign power." In this respect, [it is] substantially more demanding than the analogous criminal authorities, which require only a certification of relevance. Because the NSLs require documentation of the facts supporting the "agent of a foreign power" predicate and because they require the signature of a high-ranking official at FBI headquarters, they often take months to be issued. This is in stark contrast to criminal subpoenas, which can be used to obtain the same information, and are issued rapidly at the local level. In many cases, counterintelligence and counterterrorism investigations suffer substantial delays while waiting for NSLs to be prepared, returned from headquarters, and served. The section would streamline the process of obtaining NSL authority....[41]
The House Judiciary Committee agreed that "[s]uch delays are unacceptable" and stated in its October 11, 2001, report that 484*484 the Patriot Act would "harmonize[ ]" § 2709 "with existing criminal law where an Assistant United States Attorney may issue a grand jury subpoena for all such records in a criminal case."[42]
D. NSLs AND OTHER INFORMATION-GATHERING AUTHORITY
It is instructive to place the Government's NSL authority in the context of other means by which the Government gathers information of the type covered by § 2709 because Congress (in passing and amending the NSL statutes) and the parties here (in contesting § 2709's constitutionality) have drawn analogies to those other authorities as grounds for or against its validity. The relationship of § 2709 to other related statutes supplies a backdrop for assessing congressional intent and judging the validity of the law on its face and as applied. In addition, an analysis of these analogous information-gathering methods indicates 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 information similar to that which it obtains pursuant to § 2709.
1. Administrative Subpoenas
The most important set of statutes relevant to this case are those authorizing federal agencies to issue administrative subpoenas for the purpose of executing the particular agency's function. Ordinary administrative subpoenas, which are far more common than NSLs, may be issued by most federal agencies, as authorized by the hundreds of applicable statutes in federal law. For example,

the Internal Revenue Service (IRS) may issue subpoenas to investigate possible violations of the tax code,[43] and the Securities Exchange Commission (SEC) may issue subpoenas to investigate possible violations of the securities laws.[44] More obscure examples include the Secretary of Agriculture's power to issue subpoenas in investigating and enforcing laws related to honey research,[45] and the Secretary of Commerce's power to issue subpoenas in investigating and enforcing halibut fishing laws.[46]
There is a wide body of law which pertains to administrative subpoenas generally. According to the Government's central theory in this case, those standing rules would presumably also apply to NSLs, even if not so explicitly stated in the text of the statute. Where an agency seeks a 485*485 court order to enforce a subpoena against a resisting subpoena recipient, courts will enforce the subpoena as long as: (1) the agency's investigation is being conducted pursuant to a legitimate purpose, (2) the inquiry is relevant to that purpose, (3) the information is not already within the agency's possession, and (4) the proper procedures have been followed.[47] The Second Circuit has described these standards as "minimal."[48] Even if an administrative subpoena meets these initial criteria to be enforceable, its recipient may nevertheless affirmatively challenge the subpoena on other grounds, such as an allegation that it was issued with an improper purpose or that the information sought is privileged.[49]
Unlike the NSL statutes, most administrative subpoena laws either contain no provision requiring secrecy, or allow for only limited secrecy in special cases. For example, some administrative subpoena statutes permit the investigating agency to apply for a court order to temporarily bar disclosure of the inquiry, generally during specific renewable increments or for an appropriate period of time fixed by the court, where such disclosure could jeopardize the investigation.[50]
Even absent a particular secrecy statute, someone who, with the intent to obstruct an investigation, alerts the target of an investigation that a subpoena has been issued could theoretically face criminal obstruction of justice charges under a federal statute that imposes criminal sanctions upon any person who, among other things, "corruptly ... endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States."[51]
2. Subpoena Authority in the Criminal Context
In its role as a party to a federal criminal proceeding (including a grand jury proceeding), the Government has broad authority to issue a subpoena to obtain witness testimony or "any books, papers, documents, data, or other objects the subpoena 486*486 designates."[52] Although such subpoenas "are issued in the name of the district court over the signature of the clerk, they are issued pro forma and in blank to anyone requesting them," and the "court exercises no prior control whatsoever upon their use."[53]
The court becomes involved in the subpoena process only if the subpoenaed party moves to quash the request as "unreasonable or oppressive,"[54] or if the Government seeks to compel compliance with the subpoena. The reasonableness of a subpoena depends on the context. For example, to survive a motion to quash, a subpoena issued in connection with a criminal trial "must make a reasonably specific request for information that would be both relevant and admissible at trial."[55] By contrast, a grand jury subpoena is generally enforced as long as there is a "reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury's investigation."[56] Considering the grand jury's broad investigatory power and minimal court supervision, it is accurate to observe, as the Second Circuit did long ago, that "[b]asically the grand jury is a law enforcement agency."[57]

While materials presented in a criminal trial setting are generally public,[58] the federal rules impose stringent secrecy requirements on certain grand jury participants, including the attorneys, court reporters, and grand jurors.[59] Those secrecy rules make no mention of a subpoena recipient or a witness, both of whom are ordinarily free to disclose to anyone the fact that a subpoena was issued or the contents of any information supplied.[60] Some courts have nevertheless permitted the Government to impose a secrecy obligation upon witnesses in cases of compelling need. The Eleventh Circuit, for example, has held that a district court's authority to protect the integrity of grand jury process gave it power to prevent witnesses from disclosing materials prepared for or testimony given in grand jury proceedings.[61] As an exception to this rule, officers of financial institutions and insurance companies face criminal penalties for disclosing, with the intent to obstruct a judicial proceeding, either the fact that a grand jury subpoena has been issued or its contents.[62] More generally, a subpoena recipient 487*487 who, with the intent to obstruct a criminal investigation, alerts the target of an investigation that a subpoena had been issued could theoretically face criminal obstruction of justice charges.[63]
In certain contexts, the Government may issue subpoenas related to criminal investigations even without initiating a formal criminal proceeding. For example, the United States Attorney General is authorized to issue administrative subpoenas, without convening a grand jury, to investigate federal narcotics crimes,[64] racketeering crimes,[65] health care related crimes,[66] and crimes involving the exploitation of children.[67] In each of these instances, the administrative process is governed by the general rules described above, providing safeguards of judicial review.[68]
3. Background Rules Governing Disclosure of Stored Electronic Communications
Title II of the ECPA, in which § 2709 was enacted, sets forth an intricate framework by which electronic communications providers, such as ISPs and phone companies, may be compelled to disclose stored electronic information to the Government. The framework described below operates independently of the rules governing NSLs issued pursuant to § 2709, but may aid with interpretation of § 2709.
The Government may obtain basic subscriber information[69] merely by issuing an authorized administrative subpoena, trial subpoena, or grand jury subpoena, and the Government need not notify the subscriber of the request.[70]
If the Government gives prior notice to the subscriber, or otherwise complies with certain delayed notice procedures,[71] the Government may also subpoena the contents of electronic communications which are either (1) retained on a system for storage purposes (e.g., opened email which remains on an ISP's server), or (2) retained, for more than 180 days, in intermediate or temporary storage (e.g., unopened email on an ISP's server).[72] For 488*488 the Government to obtain the contents of electronic communications kept for 180 days or less in intermediate or temporary storage (e.g., unopened email on an ISP's server), it must obtain a search warrant under Federal Rule of Criminal Procedure 41, or the state equivalent.[73] In other words, the Government would have to appear before a neutral magistrate and make a showing of probable cause.[74] The Government may also obtain a court order requiring an electronic communications service provider to turn over transactional and content information by setting forth "specific and articulable facts showing that there are reasonable grounds to believe that" the information sought is "relevant and material to an ongoing criminal investigation."[75]
The ECPA permits the Government to seek a court order prohibiting the communications provider from revealing the Government's inquiry "for such period as the court deems appropriate" if the court determines that such disclosure, among other things, would result in "destruction of or tampering with evidence" or "seriously jeopardizing an investigation or unduly delaying a trial."[76]

4. Mail
Government law enforcement agencies are authorized to request the Postal Inspector to initiate a so-called "mail cover" to obtain any information appearing on the outside of a particular piece of mail.[77] Among other grounds, the law enforcement agency can obtain a mail cover by "specify[ing] the reasonable grounds to demonstrate the mail cover is necessary" to "[p]rotect the national security" or to "[o]btain information regarding the commission or attempted commission of a crime."[78] There is no requirement that the mail sender or recipient be notified of the mail cover.
The Government must obtain a warrant based upon probable cause to open and inspect sealed mail because the contents of mail are protected by the Fourth Amendment.[79] As the Supreme Court established long ago: "Whilst in the mail, [a person's papers] can only be opened and examined under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one's own household."[80]
5. Pen Registers and Trap and Trace Devices
Pen registers and trap and trace devices record certain electronic communications data indicating the origins and destinations 489*489 of various "dialing, routing, addressing, or signaling information," e.g., the phone numbers dialed to and from a telephone.[81] In criminal investigations, the Government must apply for a court order, renewable in 60-day increments, to install or collect data from such devices, though the standard for issuing such an order is relatively low.[82] The Government need only show that "the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation."[83]
The person owning the communications device is prohibited, unless otherwise directed by court order, from disclosing the fact that a pen register or trap and trace device is in effect.[84]
6. Wiretaps and Electronic Eavesdropping
The Fourth Amendment protects against warrantless Government wiretapping.[85]Federal legislation specifies the procedures by which law enforcement officials may obtain a court order to conduct wiretaps and other forms of electronic eavesdropping.[86]The requirements are rigorous. Among other things, the Government must show that: (1) "there is probable cause for belief that an individual is committing, has committed, or is about to commit" one of a list of enumerated crimes; (2) "there is probable cause for belief that particular communications concerning that offense will be obtained through such interception"; and (3) "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous."[87]Such orders are not available "for any period longer than is necessary to achieve the objective of the authorization," subject to a renewable maximum of 30 days.[88] The communications provider is prohibited from disclosing that a wiretap or electronic surveillance is in place, "except as may otherwise be required by legal process and then only after prior notification" to the appropriate law enforcement authorities.[89]
7. Foreign Intelligence Surveillance Act
The Foreign Intelligence Surveillance Act of 1978 ("FISA") establishes standards for the Government's domestic electronic surveillance of foreign governments and their agents.[90] The Government may conduct such surveillance, even without a court order, as long as the Attorney General certifies, among other things, that: (1) the communications at issue would be "exclusively between or among foreign powers" or involve "the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive

control of a foreign power"; (2) "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party"; and (3) the Government will apply certain so-called "minimization procedures" to limit the possibility of impermissible490*490 collateral surveillance.[91] In such circumstances, the Attorney General may direct the communications provider to cooperate "in such a manner as will protect [the] secrecy" of the surveillance.[92]
To conduct any broader types of surveillance, the Government must obtain a formal order from a special FISA-created court.[93] The application must specify, among other things, the type of surveillance proposed, the facts supporting the Government's belief that the surveillance pertains to a foreign power, and the minimization procedures which would be taken.[94] The Government must also certify "that a significant purpose of the surveillance is to obtain foreign intelligence information" and that the "information cannot reasonably be obtained by normal investigative techniques."[95] Before issuing the surveillance order, the FISA court must find, among other things, that there is "probable cause to believe" that the surveillance target is a foreign power or a foreign agent, that the proposed minimization procedures meet the statutory requirements, and, if the target is a United States person, that the facts in the Government's certification are not clearly erroneous.[96]
FISA surveillance orders are issued only "for the period necessary to achieve [the] purpose" of the application, with an extendable maximum of either 90 days, 120 days, or one year, depending on the nature of the surveillance target.[97] The court's order may direct a communications provider to cooperate "in such a manner as will protect [the] secrecy" of the surveillance.[98]
The FISA also authorizes the Government to apply to the FISA court "for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities...."[99] Such an application need only specify that the inquiry is part of an authorized investigation and in accordance with the appropriate guidelines.[100] Recipients of such an order are prohibited from disclosing to anyone (except those whose assistance is necessary to comply with the subpoena) that the inquiry was made.[101]
Finally, FISA authorizes the Government to apply to the FISA court for a an order, renewable in 90day increments, to install a pen register or trap and trace device as part of "any investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities."[102] The Government need only certify to the court that it will likely obtain information relevant to a proper inquiry.[103] Just as in the criminal context, the person owning the 491*491 communications device is prohibited, unless otherwise directed by court order, from disclosing the fact that a pen register or trap and trace device is in effect.[104]
III. SUMMARY JUDGMENT STANDARD
The Court may grant summary judgment only if "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."[105]Here, the Court concludes that no facts material to the disposition of the case are in dispute and that this case presents pure legal questions ripe for decision on summary judgment.
IV. DISCUSSION

A. SECTION 2709, AS DRAFTED, RAISES SERIOUS CONSTITUTIONAL QUESTIONS
Besides placing in full context the parties' conflicting arguments relating to statutory construction of § 2709, the legislative history and grid cross-referencing other information-gathering laws Congress has enacted is described above in such detail to serve another purpose. The contrast of the statutory scheme reveals some similarities amid striking differences among the laws. It depicts comparable provisions inserted in some legislation but omitted from others; secrecy, enforcement and judicial review rules incorporated more in some laws, less in others; enactments reflecting mere clarifications in some instances, manifestly substance in others; and some overall requirements sometimes overlapping, sometimes at odds.
The large divergence brings to light a substantial quandary affecting the task of judicial interpretation. Are the various differences between § 2709 and other analogous statutes, extensive as the discrepancies are, simply the product of poor or hasty congressional drafting? Are the apparent gaps inadvertent or deliberate, legislative nuances or simply oversight? Or do such diverse textual approaches embody Congress's considered intent to achieve distinct objectives by varying means, while fully cognizant of the similarities among the statutes? Do the conflicts and omissions pertain to details that, as the Government here argues, can be readily filled in by the Court by application of canons of statutory construction? Or, to the contrary, as Plaintiffs contend, do the legislative distinctions implicate provisions far too substantive and fundamental to be reconciled by valid exercise of judicial power?
The very existence of such an intricate matrix of rules codified in separate statutes governing similar multidimensional issues suggests congressional design that this Court hesitates to pass judgment upon if not necessary to a sufficient adjudication of this dispute. The Court does not feel at ease with simply ascribing the disparate legislative treatment of secrecy, enforcement and judicial review procedures in these various enactments to innocuous drafting error, or to distinctions with no discernible purpose. However, the Court cannot fairly infer clear congressional intent in the enactment of § 2709 solely by comparing it with other complex, analogous statutes.[106]
492*492 The NSL statutes, particularly § 2709, present interpretive challenges in at least three respects, the first two of which have a direct bearing on the motions now before the Court. First, while two of the NSL statutes explicitly state that an NSL recipient may disclose the Government's inquiry to persons whose assistance is necessary to comply with the demands of the NSL, the other statutes, including § 2709, appear by their telltale silence on that point, to preclude any disclosures.[107] None of the statutes explain whether consulting an attorney constitutes disclosure, even where an attorney's assistance may be necessary for a recipient to comply with an NSL, and none of the statutes states whether the ban on disclosure may ever be lifted by a court. Second, the statutes contain no explicit provision for the Government to seek judicial enforcement of an NSL against a recipient who refuses to comply, nor is there any provision expressly authorizing an NSL recipient to affirmatively challenge, administratively or judicially, the propriety of an NSL request.[108] Third, there is no explicit provision in the statutes imposing penalties against a person who fails to comply with an NSL.[109]
The absence of clear enforcement mechanisms has led the Chairman of the House Subcommittee on Crime, Terrorism, and Homeland Security to express the concern that the current versions of § 2709 and other NSL statutes may be considered hortatory, and to declare the intent of H.R. 3179, a bill currently in committee, to be to cure that deficiency.[110] Significantly, 493*493 it is precisely the Government's ability to seek judicial enforcement of the subpoena, together with its corollary — the reverse side of the same coin, the ability of the recipient to seek judicial review of the FBI's issuance or enforcement of an NSL — that the Government contends in this case the Court could fairly infer to already exist under current law.[111]

Several bills pending in Congress, including H.R. 3179, demonstrate Congress's and the Government's recognition that the NSL statutes could have been drafted with greater particularity and uniformity. H.R. 3179 would address two of the issues listed above by explicitly providing for judicial enforcement of NSLs and by imposing criminal penalties of up to five years' imprisonment for persons who unlawfully disclose that they have received an NSL.[112]
Also pending in Congress is a bill, H.R. 3037, which would permit the Attorney General to issue NSLs whenever, in his judgment, the information sought would be "relevant or material" to "any investigation concerning a Federal crime of terrorism."[113] That bill avoids all of the interpretive problems associated with § 2709 detailed above. Like H.R. 3179, H.R. 3037 would authorize judicial enforcement and impose penalties upon persons who wrongfully disclosed the Government's inquiry.[114] The bill would also permit an NSL recipient to disclose the inquiry to "those persons to whom such disclosure is necessary in order to comply" with the NSL, and to "an attorney to obtain legal advice."[115]
A third bill now proceeding through the Senate, entitled the "Judicially Enforceable Terrorism Subpoenas Act of 2004,"[116] also provides clarity where § 2709 is now murky. It does so by specifically authorizing the recipient of an administrative subpoena issued pursuant to the proposed statute to consult with an attorney and "those persons to whom such disclosure is necessary in order to comply with the subpoena," and by specifically stating that judicial review is available to enforce or 494*494 modify the subpoena, or to modify the nondisclosure requirement imposed under the statute.[117]
As explained below, even if the Court were to agree with the Government that § 2709 should be read to allow: (1) an NSL recipient to consult with an attorney and others necessary to enable compliance with the letter; and (2) an NSL recipient to challenge, or the Government to enforce, an NSL in court, the Court would still hold that the statute, as currently applied by the FBI, exerts an undue coercive effect on NSL recipients. The form language of the NSL served upon Doe, preceded by an FBI phone call, directed him topersonally provide the information to the FBI, prohibited him, his officers, agents or employees from disclosing the existence of the NSL to anyone, and made no mention of the availability of judicial review to quash or otherwise modify the NSL or the secrecy mandated by the letter. Nor did the FBI inform Doe personally that any such judicial review of the issuance of the NSL or the secrecy attaching to it was available. The Court concludes that, when combined, these provisions and practices essentially force the reasonable NSL recipient to immediately comply with the request. This lack of effective process, at least as applied, entails issues far too fundamental for the Court to read as having been sufficiently addressed in the operation of § 2709 in this case. In the Court's judgment, as further elaborated below, that absence renders § 2709, as applied, unconstitutional, in violation of the Fourth Amendment.
B. AS APPLIED HERE, SECTION 2709 LACKS PROCEDURAL PROTECTIONS NECESSARY TO VINDICATE CONSTITUTIONAL RIGHTS
1. Section 2709 And The Fourth Amendment[118]
The Fourth Amendment prohibits the Government from conducting "unreasonable searches and seizures," which generally means that any search or seizure must be performed pursuant to a valid 495*495 warrant based upon probable cause.[119] As the Second Circuit has declared: "It is fundamental that governmental searches and seizures without warrant or probable cause are per se unreasonable under the Fourth Amendment unless they fall within one of the Amendment's few established and well-delineated exceptions."[120] The Fourth Amendment's protection against unreasonable searches applies to administrative subpoenas, even though issuing a subpoena does not involve a literal physical intrusion or search.[121] In so doing, the Supreme Court explained that

the Fourth Amendment is not "confined literally to searches and seizures as such, but extends as well to the orderly taking under compulsion of process."[122]
However, because administrative subpoenas are "at best, constructive searches," there is no requirement that they be issued pursuant to a warrant or that they be supported by probable cause.[123] Instead, an administrative subpoena needs only to be "reasonable," which the Supreme Court has interpreted to mean that (1) the administrative subpoena is "within the authority of the agency;" (2) that the demand is "not too indefinite;" and (3) that the information sought is "reasonably relevant" to a proper inquiry.[124]
While the Fourth Amendment reasonableness standard is permissive in the context of administrative subpoenas, the constitutionality of the administrative subpoena is predicated on the availability of a neutral tribunal to determine, after a subpoena is issued, whether the subpoena actually complies with the Fourth Amendment's demands. In contrast to an actual physical search, which must be justified by the warrant and probable cause requirements occurring before the search, an administrative subpoena "is regulated by, and its justification derives from, [judicial] process" available after the subpoena is issued.[125]
Accordingly, the Supreme Court has held that an administrative subpoena "may not be made and enforced" by the administrative agency; rather, the subpoenaed party must be able to "obtain judicial review of the reasonableness of the demand prior to suffering penalties for refusing to comply."[126] In sum, longstanding Supreme Court doctrine makes clear that an administrative subpoena statute is consistent with the Fourth Amendment when it is subject to "judicial supervision" and "surrounded by every safeguard of judicial restraint."[127]
Plaintiffs contend that § 2709 violates this Fourth Amendment process-based 496*496guarantee because it gives the FBI alone the power to issue as well as enforce its own NSLs, instead of contemplating some form of judicial review. Although Plaintiffs appear to concede that the statute does not authorize the FBI to literally enforce the terms of an NSL by, for example, unilaterally seizing documents or imposing fines, Plaintiffs contend that § 2709 has the practical effect of coercing compliance.
Specifically, Plaintiffs stress that the statute has no provision for judicial enforcement or review, and that theoretically any judicial review an NSL recipient sought would violate the express terms of the non-disclosure provision. For example, if an NSL recipient thought that an NSL request was unreasonable or otherwise unlawful — because, for instance, the underlying investigation was not duly "authorized," was initiated "solely on the basis of activities protected by the first amendment to the Constitution of the United States," or did not involve "international terrorism or clandestine intelligence activities,"[128] as § 2709 demands — he would have no specific statute under which to challenge the request. More fundamentally, the literal terms of the non-disclosure provision would bar the recipient from even consulting an attorney to file such a challenge. Even if he were to challenge the NSL on his own, the recipient would necessarily have to disclose the fact of the NSL's issuance to the clerk of court and to the presiding judge, again, in violation of the literal terms of the non-disclosure provision.
Rather than dispute the Plaintiffs' interpretation of the relevant constitutional doctrine, the Government's response to these arguments endeavors to heavily repair the statute, essentially by splicing together a string of judicially-sanctioned implications, glosses, or outright patchwork of the various gaps Congress left in the statute, whether inadvertently or purposefully. First, as discussed above, the Government claims that the statute implicitly affords an NSL recipient the opportunity to challenge an NSL on the same terms as would be available to any other subpoena recipient, i.e., to either resist the Government's enforcement action, or to affirmatively file a motion to quash. Second,

the Government reads the statute to implicitly permit disclosure to an attorney in connection with such a challenge. Third, the Government would recognize an additional exception for disclosure to other officers, employees, or agents whose assistance may be reasonably necessary for the recipient to comply with the NSL request.
The path that, according to the Government, would lead to the above "correct" reading of § 2709 is as follows. First, concerning the judicial enforcement issue, § 2709 is conspicuously silent on how the Government's demand for records is to be enforced. Plaintiffs concede that § 2709 does not authorize the FBI to resort to "self-help" in enforcing the statute, thus leaving the possibilities that enforcement falls to either the court system, to no one at all, or, worse yet, to other forms of administrative pressures and extra-legal methods that such congressional silences and statutory lacunae may be prone to invite. Following the Government's theory, it is inconceivable that Congress intended compliance with § 2709 to be a mere courtesy in light of § 2709's mandatory phrases, such as "duty" and "shall comply."[129] The obvious purpose of the 497*497 statute — to obtain important records quickly — would be eviscerated, the argument goes, if an NSL recipient could treat the NSL as if it were a piece of junk mail to be tossed in the trash can and ignored without consequence. Furthermore, courts have long recognized the "sharp distinction between agency power to issue subpoenas and judicial power toenforce them."[130] Accordingly, the Government concludes that it would make sense that an NSL, which is in the family of administrative subpoenas, would follow that ordinary course.
Second, regarding the disclosure issue, the Government points out that the duty the statute imposes upon the NSL recipient to produce information to the FBI falls upon the designated "wire or electronic communication service provider,"[131] which in the typical case is likely to be a corporate entity, as opposed to an individual. Because "a corporation must act through agents,"[132] it is fair to assume that the various agents of a corporation, including its attorneys, would be involved in fulfilling the corporation's duty. The Government thus stresses that nothing in § 2709 suggests that the duty falls uniquely to the individual who happens to be in immediate receipt of the NSL. In this view, in parallel with this collective duty to produce information, by the very terms of the statute the prohibition upon disclosure is also apparently directed at more than one person: "No wire or electronic communication service provider, 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."[133] The statute's reference to officers, employees and agents again suggests that those people (as opposed to merely the individual recipient) would be aware that the NSL was issued, presumably because some of those people could have involvement in fulfilling the request.
Invoking practicalities and common sense, the Government suggests that it would be unable to precisely identify the person within a company who would be capable of complying with the NSL request and thus would expect certain employees or agents, including attorneys, to play a role in gathering the information sought. To illustrate this point, assuming an executive at a telephone company is served with an NSL requesting that he produce detailed records of a particular subscriber, and that, as is likely, the executive is not familiar with the mechanics of sophisticated data retrieval, and that the statute actually barred the recipient's communication with anyone, the executive would be in the impossible position of being incapable of complying with what the law demanded. On this basis, the Government contends that it is doubtful Congress would have intended such a rigid reading of § 2709(c).
The Government notes that its interpretation of § 2709(c) finds at least some support in the legislative history, as well. Congress added NSL authority pertaining to credit records in 1996, and that statute 498*498 explicitly permits disclosure to persons "necessary to fulfill" the NSL request.[134] Congress considered that language as a "clarification" of (as opposed to a substantive

change from) the parallel NSL statutes because "practicalities would dictate that the provision not be interpreted to exclude such disclosure."[135]
Finally, in support of its construction of § 2709, the Government points to two cases that have interpreted wiretap laws to implicitly permit an accused unlawful wiretapper to disclose the contents of the wiretap to his attorneys for the purpose of preparing a defense.[136] Addressing this point, for example, the Sixth Circuit stated that the so-called "defense exception" was a "necessary element of wiretap law."[137] In another case, a district court observed that to construe the wiretapping laws to prevent an accused from using the intercepted communications in his own defense "would be so incompatible with basic notions of fairness in adversary proceedings that it might well raise questions regarding the statute's constitutionality."[138] Closing its argument on this point, the Government concludes that these cases recognize both that disclosures to attorneys are unique and that statutory interpretations producing absurd and unworkable results should be avoided.
The Court accepts that it should recognize a plausible interpretation of § 2709 that would salvage the statute. As the Supreme Court has instructed: "if an otherwise acceptable construction of a statute would raise serious constitutional problems, and where an alternative interpretation of the statute is fairly possible, [courts] are obligated to construe the statute to avoid such problems."[139] Conceivably, these aspects of the Government's construction of § 2709 may be deemed "fairly possible," and thus the ordinary rule for rescuing constitutionally dubious statutes from facial invalidity may come into play at this point. Application of this doctrine here poses severe difficulties, however, because the anchoring of the Government's theory in the legislative scheme is far from clear and convincing, raising tensions with other countervailing principles of statutory interpretation and, more fundamentally, inviting risk to the proper functioning of the judiciary in the separation of powers our nation's governance constitutionally demands. As the Supreme Court has also instructed, the courts "cannot press statutory construction `to the point of disingenuous evasion' even to avoid a constitutional question."[140]
In examining the Government's construction of § 2709, the Court makes several 499*499preliminary observations as backdrop for its strong reservations to endorse it outright, even if in theory that reading were plausible. First, the suggested interpretation does not relate to a reading of particular words or provisions actually expressed in the statute. Rather, it requires listening to the law's "sounds of silence"[141] to decipher the meaning of what is unsaid; in other words, it is about specific terms not contained in § 2709 at all, though expressly provided for in other laws within the family of legislation dealing with government information-gathering in support of national security investigations and general law enforcement. This Court must base its interpretation of the statute primarily in the actual text of the statute, on what the statute explicitly says rather than on what it fails to say.[142] Second, to fully reach and give effect to the Government's proposal entails inserting into the law not just one, but several distinct terms the Government seeks to incorporate by implication: that the statute permits disclosure by the recipient for the purposes of seeking the assistance of counsel; that disclosure is also permitted to other officers, employees and agents; and that judicial process is available either to challenge or to enforce an NSL. Moreover, as will be discussed later, to save the statute the Court would need to go further and rule by similar means that the interpretive stretch does not embrace a vital term the Government's theory expressly rejects: that the nondisclosure ban cannot be categorical and perpetual, and that a mechanism must exist to permit judicial modification of the absolute, indefinite secrecy § 2709(c) imposes. In this respect, the Court must note that the more and the deeper the interstices in a law a judge is called upon to fill, the more what the enterprise demands is not construction of a statute but its emendation by the court, effectively an exercise of judicial legislation in order to repair and rescue the enactment by furnishing through this back channel the missing terms Congress itself did not provide.
More significantly, the Court's interpretation of § 2709, in any faithful observance of the canons of statutory construction, cannot consider that provision strictly in isolation. As made clear above in the

lengthy overview of the rules pertaining to the Government's information-gathering authority, § 2709 does not represent a discrete, stand-alone instance of legislation. Rather, it is but one point in a constellation of other laws, a part and pattern of a larger congressional design generally interrelated by the common purpose of facilitating various forms of investigations and law enforcement proceedings. As is apparent from the statutes' diverse subjects, policy aims and textual differences, however, there is no compelling evidence that Congress has intended to blend the national policy and security interests implicated in the whole body of these laws and to view them all as necessarily demanding a uniform degree of secrecy or procedural safeguards. In this sense, the methods and process Congress has authorized the FBI to undertake in administering NSLs cannot be strictly equated with those traditionally associated with the investigation or prosecution of the ordinary criminal proceeding.
In this case, therefore, the effect of inserting by judicial interpretation the substantial procedural and individual rights 500*500 protections palpably absent from § 2709 — the task the Government would have the Court assume — would be to conform the statute with the requirements of legislation belonging to the same genus, but not altogether the same species, thus essentially converting § 2709 into a mirror image of other laws Congress has enacted or contemplates in which it did see fit to explicitly include the precise terms the Government seeks to engraft onto § 2709 by judicial grace.
The course the Government urges poses several conceptual difficulties for the Court. First, it is at odds with statutory construction principle and caselaw, cited above, dealing with comparable competing interpretations deriving from different statutes.[143] If Congress took affirmative steps to legislate the provisions in question in other statutes, it may have been aware of them and of their implications when it enacted and later amended § 2709 with those standards omitted.
Second, the Government's theory may not be supported by an alternate reading of congressional intent that could reasonably be drawn from the enactment of § 2709. In light of the sensitivity and overarching national priority associated with the purposes of the NSL statutes — international terrorism and counter-intelligence investigations — as well as the gravity of the events that supplied the propelling force and context for the passage and recent amendments of § 2709, one might fairly infer that the absence of any reference to judicial review is the product of Congressional intent. Specifically, § 2709 may convey that Congress meant the statute to serve as a more stringent law enforcement tool, one affording greater investigative powers, leeway and flexibility to the FBI, providing for far more secrecy rather than less, and not necessarily to be substantively or procedurally conflated with related statutes not serving comparably heightened national security concerns. Conversely, for the same reasons and in contradistinction with other information-gathering laws not arising out of national exigencies quite as extreme, the statute could be read to signal Congress's contemplation that less weight be given to protections of personal liberties in conflict with the acute national security interests § 2709 fosters.
Third, for the Court to give effect to the Government's construction in the face of apparently conflicting, or at best very ambiguous legislative designs, would implicate severe concerns over the proper separation of powers. Such a complex and variable statutory scheme renders it extremely difficult for this Court to find that the absence of particular terms from § 2709 was merely inadvertent or non-substantive, or that even if Congress left holes in § 2709 that it took pains to plug in other similar laws, it falls within the legitimate domain of the Court to function as a legislative repair shop entrusted to perform Congress's labors, and fix Congress's purported errors or omissions at the Government's bidding.
No more compelling evidence exists underscoring the Court's quandary than the various remedial proposals now pending in Congress, discussed above, designed to rectify some of the shortcomings of the NSL statutes, including § 2709. Were the Court to accept the Government's

invitation 501*501 to read § 2709 as the Government proposes, the bills under consideration essentially would be rendered largely moot by the measure of this Court's ruling: NSLs would be read to be judicially enforceable, and disclosures to attorneys and other agents that would be authorized by pending bills would be read into the existingstatute. What message would that decision convey to Congress? In effect, such a ruling would risk beating Congress to the punch through the exercise of judicial power, and would signal that Congress would not need to further consider corrective action on this score, since the legislative business and public policy ends Congress had openly contemplated would already have been dispatched by judicial decree. The very articulation of the proposition supplies its answer. It should suffice to state that this is not a task even the most intrepid court should lightly countenance.
Despite these severe reservations, in the final analysis the Court need not resolve Plaintiffs' facial challenge to § 2709 on Fourth Amendment grounds for two reasons. First, even if the Court were to accept that the FBI's authority to issue and enforce NSLs pursuant to § 2709 means what the Government says it means, the Court's inquiry would not end there with a ruling in favor of the Government. Investing those provisions with the reading the Government accords them does not address the Plaintiffs' distinct claim that in practice § 2709 in all or the vast majority of actual cases, by virtue of the statute's unwarranted application by the FBI, operates otherwise. The Court concludes that the operation of § 2709 renders it unconstitutional, notwithstanding that, at least in a theoretical sense, a possible reading of portions of the statute as the Government propounds, through extensive judicial tinkering with its silences, may be posited to withstand a Fourth Amendment facial challenge. In particular, deficiencies in the application of § 2709 pertain to the very core issues — access to legal advice and availability of judicial process to enforce and contest the law — upon which Plaintiffs' Fourth Amendment facial challenge is grounded. Because the Court agrees that those protections are vital to satisfy Fourth Amendment standards, it finds the manner in which § 2709 has been applied unwarranted.
The crux of the problem is that the form NSL, like the one issued in this case, which is preceded by a personal call from an FBI agent, is framed in imposing language on FBI letterhead and which, citing the authorizing statute, orders a combination of disclosure in person and in complete secrecy, essentially coerces the reasonable recipient into immediate compliance. Objectively viewed, it is improbable that an FBI summons invoking the authority of a certified "investigation to protect against international terrorism or clandestine intelligence activities,"[144] and phrased in tones sounding virtually as biblical commandment, would not be perceived with some apprehension by an ordinary person and therefore elicit passive obedience from a reasonable NSL recipient. The full weight of this ominous writ is especially felt when the NSL's plain language, in a measure that enhances its aura as an expression of public will, prohibits disclosing the issuance of the NSL to "any person." Reading such strictures, it is also highly unlikely that an NSL recipient reasonably would know that he may have a right to contest the NSL, and that a process to do so may exist through a judicial proceeding.
502*502 Because neither the statute, nor an NSL, nor the FBI agents dealing with the recipient say as much, all but the most mettlesome and undaunted NSL recipients would consider themselves effectively barred from consulting an attorney or anyone else who might advise them otherwise, as well as bound to absolute silence about the very existence of the NSL. Furthermore, it is doubtful that an NSL recipient, not necessarily a lawyer, would be willing to undertake any creative exercises in statutory construction to somehow reach the Government's proposed reading of § 2709, especially because that construction is not apparent from the plain language of the statute, the NSL itself, or accompanying government communications, and any penalties for non-compliance or disclosure are also unspecified in the NSL or in the statute. For the reasonable NSL recipient confronted with the NSL's mandatory language and the FBI's conduct related to the NSL, resistance is not a viable option.

The evidence in this case bears out the hypothesis that NSLs work coercively in this way. The ACLU obtained, via the Freedom of Information Act ("FOIA"), and presented to the Court in this proceeding, a document listing all the NSLs the Government issued from October 2001 through January 2003. Although the entire substance of the document is redacted, it is apparent that hundreds of NSL requests were made during that period. Because § 2709 has been available to the FBI since 1986 (and its financial records counterpart in RFPA since 1978), the Court concludes that there must have been hundreds more NSLs issued in that long time span. The evidence suggests that, until now, none of those NSLs was ever challenged in any court. First, the Department of Justice explicitly informed the House Judiciary Committee in May 2003 that there had been no challenges to the propriety or legality of any NSLs.[145] Second, the Government's evidence in this case conspicuously lacks any suggestion either that the Government has ever had to resort to a judicial enforcement proceeding for any NSL, or that any recipient has ever resisted an NSL request in such a proceeding or via any motion to quash.[146]
To be sure, the Court recognizes that many other reasons may exist to explain the absence of challenges to NSLs: the communications provider who receives the NSL ordinarily would have little incentive to contest the NSL on the subscriber's behalf; the standard of review for administrative subpoenas similar to NSLs is so minimal that most such NSLs would likely be upheld in court; litigating these issues is expensive; and many citizens may feel a 503*503 civic duty to help the FBI's investigation and thus may willingly comply. Nevertheless, the Court finds it striking that, in all the years during which the FBI has been serving NSLs, the evidence suggests that, until now, no single NSL recipient has ever sought to quash such a directive. The Court thus concludes that in practice NSLs are essentially unreviewable because, as explained, given the language and tone of the statute as carried into the NSL by the FBI, the recipient would consider himself, in virtually every case, obliged to comply, with no other option but to immediately obey and stay quiet.
The Government responds that Doe's arguments on this point are undermined by the very fact that Doe himself consulted an attorney and brought this challenge. The Court disagrees for several reasons. First, so far as the evidence shows, Doe's decision to challenge the NSL is a lone exception in the otherwise consistent record. The constitutional bar marking the limits the Government can permissibly reach in curtailing personal freedoms in the name of national security should not be raised to heights at which all but the most powerfully endowed would feel impelled to remain cowered or content, and none but the well-heeled could stand tall enough to take on a law enforcer's coercive order. If the Court were to take up the Government's invitation and reject Doe's as-applied challenge to the statute until one of the NSL recipients who actually felt intimidated enough by the NSL was moved to bring suit, such a day may never arrive. Moreover, in such a prospect the NSL recipient would presumably have already turned over the requested information to the FBI, further defeating the purpose of subsequent resistance.
Second, the Court finds support for its analysis in caselaw which, in testing the validity of a Government policy or law, recognizes the importance of appreciating its practical effect on a reasonable person, especially as evidenced by the methods and terms the Government employs to convey what it demands and to elicit the desired compliance. InBantam Books, Inc. v. Sullivan,[147] the Rhode Island legislature created an administrative commission to determine whether publications were obscene or objectionable to minors, and where appropriate, to recommend cases to the authorities for prosecution. In accordance with its practice, the commission sent to a book distributor a notice which ordered that the distributor cease disseminating certain publications to minors and which reminded the distributor of the commission's duty to recommend prosecutions to the Attorney General. The notice thanked the distributor for his anticipated cooperation. The Supreme Court found that the commission's practice of informal censorship violated the First Amendment, as incorporated against the states by the Fourteenth Amendment.[148]

Important for purposes of this case, the Supreme Court in Bantam Books deemed it irrelevant that the commission did not have any actual authority to prosecute anyone.[149]The Court recognized that the distributor "was `free' to ignore the Commission's notices, in the sense that his refusal to `cooperate' would have violated no law,"[150] but the Court did not countenance that technical point in light of the realities of the situation:
504*504 People do not lightly disregard public officers' thinly veiled threats to institute criminal proceedings against them if they do not come around.... The Commission's notices, phrased virtually as orders, reasonably understood to be such by the distributor, invariably followed up by police visitations, in fact stopped the circulation of the listed publications ex proprio vigore. It would be naive to credit the State's assertion that these blacklists are in the nature of mere legal advice, when they plainly serve as instruments of regulation independent of the laws against obscenity.[151]
Here, the Court concludes it would be similarly naive to conclude that § 2709 NSLs, given their commandeering warrant, do anything short of coercing all but the most fearless NSL recipient into immediate compliance and secrecy.[152]
In another case along these general lines,[153] the First Circuit considered whether it was proper for the United States Attorney's Office in Puerto Rico to issue to grand jury subpoena recipients letters which stated:
You are not to disclose the existence of this subpoena or the fact of your compliance for a period of 90 days from the date of the subpoena. Any such disclosure could seriously impede the investigation being conducted and, thereby, interfere with the enforcement of the federal criminal law.[154]
The Court held that the letter violated Federal Rule of Criminal Procedure 6, which bars secrecy obligations upon subpoena recipients.[155] The First Circuit explicitly rejected the contention "that the letter did not impose any `obligation' but simply stated the United States Attorney's belief that disclosure would be harmful to the investigation":
The document at issue, after all, is from the United States Attorney's office informing its recipient that a particular course of action could "impede" a criminal investigation "and, thereby, interfere with the enforcement of the federal criminal law." Absent a clear showing to the contrary, we fail to see how a reasonable, law-abiding person who received such a letter would think anything other than that he was being told 505*505 that he was legally obligated not to engage in that course of action.[156]
The First Circuit thus invalidated what was, in practice, an obligation of secrecy, even though the letters at issue did not have the force of law.
Similarly, the Court here concludes that what is, in practice, an implicit obligation of automatic compliance with NSLs violates the Fourth Amendment right to judicial access, even if hypothetically the law were construed to imply such access. In this regard, the Court notes that even stronger grounds exist in the record before this Court to support a finding of coercive effect of the NSLs than was the case of the government agency's letters involved in both Bantam Books and Grand Jury Proceedings. In Bantam Books,the Rhode Island statute at issue made clear that the commission it created had no power to prosecute those who violated the "recommendations" in its letters, and in Grand Jury Proceedings, the Government's ability to require the secrecy sought by the letter at issue was specifically foreclosed by a Federal Rule of Criminal Procedure. By contrast, in issuing the NSL in the form employed here, the FBI's order carried out the express terms of § 2709 and, as the reference to the law reminded the recipient, directed precisely the conduct the statute mandated. An NSL recipient would be unable to learn from the text of § 2709 that the letter was not actually coercive.

That the form NSL and the FBI's actions were based on a plausible reading of § 2709 does not save these practices from invalidation. In Bantam Books, the Supreme Court nullified the commission's practices without reaching the question of whether the vague and open-ended statute creating the commission was itself constitutional,[157] and inGrand Jury Proceedings, the First Circuit had no occasion to reach constitutional questions because it found that the United States Attorney's Office had violated a Federal Rule of Criminal Procedure.
Recognizing from the preceding discussion the reality that § 2709 effectively keeps § 2709 NSLs out of litigation altogether, the Court concludes that supplying a judicial gloss to § 2709 but failing to address the practical effects of the unparalleled level of secrecy and coercion fostered by the FBI's implementation of the statute would be completely academic. That is the Court is reluctant to fashion a "remedy" which has no effect beyond being printed in the Federal Supplement.
The Court notes that, conceivably, the Government could endeavor to remedy the defects in § 2709 by alerting all NSL recipients as to what the Government now claims is implicit in § 2709 — that they are entitled to consult an attorney and other persons necessary to facilitate compliance, and to move to quash the NSL. However, accepting as implicit in the statute the protections the Government contends may be inferred does not remedy another deficiency that serves as independent grounds for the statute's facial invalidation: the categorical, indefinite non-disclosure provision § 2709(c), which is not amenable to a 506*506 "fairly possible"[158] construction that would save it from invalidation.
The Court explains below why categorical, indefinite, and unreviewable non-disclosure was intended by Congress and why any judicial interpretation intended to save this provision of § 2709, e.g., by requiring judicial determination of the need for secrecy in each case, or by making judicial review available to challenge the categorical ban or speech at particular times, would be entirely unmoored from anything in the text, structure or legislative history of the statute, and would grossly exceed the judicial function. Such a ruling would essentially amount to judicial arrogation of legislative power, an outright statutory re-write, rather than a "fairly possible" statutory construction.[159] On this point, however, the Government's argument defends the statute as drafted, and presumably would oppose a construction that would recognize the availability of judicial review to mitigate the consequences of the permanent non-disclosure mandate. Here, then, is the nub of this case. The Government does not accept that § 2709's non-disclosure provision may be modified by judicial review — nor could it, given the plain text of the statute — and the Court, which deems such an omission from the law fatal, would be unable, for the same reason, to cure it by interpretation.
Accordingly, the Court concludes that § 2709, as applied here, must be invalidated because in all but the exceptional case it has the effect of authorizing coercive searches effectively immune from any judicial process, in violation of the Fourth Amendment. The Court next turns to other reasons that compel the more drastic conclusion that § 2709 must be invalidated on its face. First, however, the Court examines Plaintiffs' arguments that § 2709 violates communications service subscribers' First Amendment rights. It concludes that the absence of meaningful judicial review created by § 2709's coercive implementation may also lead to violations of subscribers' own constitutional rights.
2. NSLs May Violate ISP Subscribers' Rights.
Plaintiffs have focused on the possibility that § 2709 could be used to infringe subscribers' First Amendment rights of anonymous speech and association. Though it is not necessary to precisely define the scope of ISP subscribers' First Amendment rights, the Court concludes that § 2709 may, in a given case, violate a subscriber's First Amendment privacy rights, as well as other legal rights, if judicial review is not readily available to an ISP that receives an NSL. This conclusion buttresses the

Court's holding that, at least as applied, § 2709 does not permit sufficient judicial review to preserve individual subscribers' rights, where impairment of such rights may be implicated by a given NSL.[160]
The Supreme Court has recognized the First Amendment right to anonymous speech at least since Talley v. California,[161] which invalidated a California law 507*507 requiring that handbills distributed to the public contain certain identifying information about the source of the handbills. The Court stated that the "identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression."[162] The Supreme Court has also invalidated identification requirements pertaining to persons distributing campaign literature,[163] persons circulating petitions for state ballot initiatives,[164] and persons engaging in door-to-door religious advocacy.[165]
In a related doctrine, the Supreme Court has held that "compelled disclosure of affiliation with groups engaged in advocacy" amounts to a "restraint on freedom of association" where disclosure could expose the members to "public hostility."[166] Laws mandating such disclosures will be upheld only where the Government interest is compelling.[167]
The Court concludes that such First Amendment rights may be infringed by application of § 2709 in a given case. For example, the FBI theoretically could issue to a political campaign's computer systems operator a § 2709 NSL compelling production of the names of all persons who have email addresses through the campaign's computer systems. The FBI theoretically could also issue an NSL under § 2709 to discern the identity of someone whose anonymous online web log, or "blog," is critical of the Government. Such inquiries might be beyond the permissible scope of the FBI's power under § 2709 because the targeted information might not be relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, or because the inquiry might be conducted solely on the basis of activities protected by the First Amendment. These prospects only highlight the potential danger of the FBI's self-certification process and the absence of judicial oversight.
Other rights may also be violated by the disclosure contemplated by the statute; the statute's reference to "transactional records" creates ambiguity regarding the scope of the information required to be produced by the NSL recipient. If the recipient — who in the NSL is called upon to exercise judgment in determining the extent to which complying materials constitute transactional records rather than content[168] — interprets the NSL broadly as 508*508 requiring production of all e-mail header information, including subject lines, for example, some disclosures conceivably may reveal information protected by the subscriber's attorney-client privilege, e.g., a communication with an attorney where the subject line conveys privileged or possibly incriminating information. Indeed, the practical absence of judicial review may lead ISPs to disclose information that is protected from disclosure by the NSL statute itself, such as in a case where the NSL was initiated solely in retaliation for the subscriber's exercise of his First Amendment rights, as prohibited by § 2709(b)(1)(b)(2). Only a court would be able to definitively construe the statutory and First Amendment rights at issue in the "First Amendment retaliation" provision of the statute, and to strike a proper balance among those interests.
The Government asserts that disclosure of the information sought under § 2709 could not violate a subscriber's rights (and thus demands no judicial process) because the information which a § 2709 NSL seeks has been voluntarily conveyed to the ISP who receives the NSL. According to the Government, an internet speaker relinquishes any interest in any anonymity, and any protected claim to that information, as soon as he releases his identity and other information to his ISP. In support of its position, the Government cites the Supreme Court's holding that, at least in the Fourth Amendment context involving the Government installing a pen register or obtaining bank records,

when a person voluntarily conveys information to third parties, he assumes the risk that the information will be turned over to the Government.[169]
The Court rejects the Government's reasoning. Every court that has addressed the issue has held that individual internet subscribers have a right to engage in anonymous internet speech, though anonymity may be trumped in a given case by other concerns.[170] No court has adopted the Government's argument here that anonymous internet speech or associational activity ceases to be protected because a third-party ISP is in possession of the identifying information.[171]
509*509 Moreover, the Court notes that the implications of the Government's position are profound. Anonymous internet speakers could be unmasked merely by an administrative, civil, or trial subpoena, or by any state or local disclosure regulation directed at their ISP, and the Government would not have to provide any heightened justification for revealing the speaker. The same would be true for attempts to compile membership lists by seeking the computerized records of an organization which uses a third-party electronic communications provider. Considering, as is undisputed here, the importance of the internet as a forum for speech and association, the Court rejects the invitation to permit the rights of internet anonymity and association to be placed at such grave risk.
The Court reaches this conclusion by determining that NSLs issued pursuant to § 2709 may seek information about or indirectly obtained from subscribers that may be protected from disclosure by the First Amendment or other rights-protecting constitutional provisions or statutes. Echoing the Supreme Court's observation that "differences in the characteristics of new media justify differences in the First Amendment standards applied to them,"[172] the Court concludes that even though Smith and Miller might suggest that there is no First Amendment interest at stake in compelling the disclosure by telephone companies and banks of certain transactional information derived from customer records, in deciding this case the Court must take account of the unique features of internet communications that may warrant application of different rules. The Court is persuaded that, for First Amendment purposes, internet records of the type obtained via a § 2709 NSL could differ substantially from transactional bank or phone records.
The evidence on the record now before this Court demonstrates that the information available through a § 2709 NSL served upon an ISP could easily be used to disclose vast amounts of anonymous speech and associational activity. For instance, § 2709 imposes a duty to provide "electronic communication transactional records,"[173] a phrase which, though undefined in the statute, certainly encompasses a log of email addresses with whom a subscriber has corresponded and the web pages that a subscriber visits. Those transactional records can reveal, among other things, the anonymous message boards to which a person logs on or posts, the electronic newsletters to which he subscribes, and the advocacy websites he visits. Moreover, § 2709 imposes a duty on ISPs to provide the names and addresses of subscribers,[174] thus enabling the Government to specifically identify someone who has written anonymously on the internet.[175] As discussed above, given that an 510*510 NSL recipient is directed by the FBI to turn over all information "which you consider to be an electronic communication transactional record,"[176] the § 2709 NSL could also reasonably be interpreted by an ISP to require, at minimum, disclosure of all email header information, including subject lines.
In stark contrast to this potential to compile elaborate dossiers on internet users, the information obtainable by a pen register is far more limited. As the Supreme Court inSmith was careful to note:
[Pen registers] disclose only the telephone numbers that have been dialed — a means of establishing communication. Neither the purport of any communication between the caller and the

recipient of the call, their identities, nor whether the call was even completed is disclosed by pen registers.[177]
The Court doubts that the result in Smith would have been the same if a pen register operated as a key to the most intimate details and passions of a person's private life.
The more apt Supreme Court case for evaluating the assumption of risk argument at issue here is Katz v. United States,[178] the seminal decision underlying both Smith andMiller. Katz held that the Fourth Amendment's privacy protections applied where the Government wiretapped a telephone call placed from a public phone booth.[179]Especially noteworthy and pertinent to this case is the Supreme Court's remark that: "The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a `search and seizure' within the meaning of the Fourth Amendment."[180] The Supreme Court also stated that a person entering a phone booth who "shuts the door behind him" is "surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world," and held that, "[t]o read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication."[181]
Applying that reasoning to anonymous internet speech and associational activity is relatively straightforward. A person who signs onto an anonymous forum under a pseudonym, for example, is essentially "shut[ting] the door behind him,"[182] and is surely entitled to a reasonable expectation that his speech, whatever form the expression assumes, will not be accessible to the Government to be broadcast to the world absent appropriate legal process. To hold otherwise would ignore the role of the internet as a remarkably powerful forum for private communication and association. Even the Government concedes here that the internet is an "important vehicle for the free exchange of ideas and facilitates associations."[183]
To be sure, the Court is keenly mindful of the Government's reminder that the internet may also serve as a vehicle for crime. The Court equally recognizes that 511*511circumstances exist in which the First Amendment rights of association and anonymity must yield to a more compelling Government interest in obtaining records from internet firms. To this end, the Court re-emphasizes that it does not here purport to set forth the scope of these First Amendment rights in general, or define them in this or any other case. The Court holds only that such fundamental rights are certainly implicated in some cases in which the Government may employ § 2709 broadly to gather information, thus requiring that the process incorporate the safeguards of some judicial review to ensure that if an infringement of those rights is asserted, they are adequately protected through fair process in an independent neutral tribunal. Because the necessary procedural protections are wholly absent here, the Court finds on this ground additional cause for invalidating § 2709 as applied.
C. CONSTITUTIONALITY OF THE NON-DISCLOSURE PROVISION
Finally, the Court turns to the issue of whether the Government may properly enforce § 2709(c), the non-disclosure provision, against Doe or any other person who has previously received an NSL. Section 2709(c) states: "No wire or electronic communication service provider, 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."[184]
A threshold question concerning this issue is whether, as Plaintiffs contend, § 2709(c) is subject to strict scrutiny as either a prior restraint on speech or a content-based speech restriction, or whether, as the Government responds, § 2709(c) is subject to the more relaxed judicial review of intermediate scrutiny. The difference is crucial. A speech restriction which is either content-based or which imposes a prior restraint on speech is presumed invalid and may be upheld only if it is "narrowly

tailored to promote a compelling Government interest."[185] If "less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve," then the speech restriction is not narrowly tailored and may be invalidated.[186] Under intermediate scrutiny, a speech restriction may be upheld as long as "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."[187]
The Court agrees with Plaintiffs that § 2709(c) works as both a prior restraint on speech and as a content-based restriction, and hence, is subject to strict scrutiny.[188] First, axiomatically the categorical non-disclosure mandate embodied 512*512 in § 2709(c) functions as prior restraint because of the straightforward observation that it prohibits speech before the speech occurs. As the Supreme Court articulated the threshold inquiry: "The relevant question is whether the challenged regulation authorizes suppression of speech in advance of its expression...."[189] The Government nevertheless maintains that § 2709(c) does not operate as a prior restraint because it does not create a licensing system by which the Government can pick and choose among speakers to restrain. As the Government explains, somewhat cryptically, § 2709(c) "does not authorize any government official to grant a speaker permission to make any particular disclosure. Rather, the statute simply prohibits certain disclosures."[190]
In the Court's judgment, a blanket permanent prohibition on future disclosures is an even purer form of prior restraint than a licensing system in which the speaker may at least potentially obtain government approval and remain free to speak. In fact, a blanket proscription on future speech works identically to the most severe form of a licensing system — one in which no licenses are granted, and the speech at issue is maximally suppressed.
Second, the Court considers § 2709(c) to be a content-based speech restriction. The Court finds particular guidance on this point from Kamasinski v. Judicial Review Council,[191] a case which also figures prominently in addressing the question of whether § 2709(c) survives strict scrutiny. In Kamasinski, the plaintiff challenged certain Connecticut laws mandating that judicial ethics proceedings be kept confidential unless and until the relevant administrative authorities determined that there was probable cause to believe that judicial misconduct had occurred, after which a public hearing would be held. During the investigatory phase, the Connecticut statutes, much like § 2709(c), categorically prohibited witnesses and complainants from even disclosing that an investigation was underway. One purpose of Connecticut's non-disclosure rule (again, much like § 2709(c)) was to protect the integrity of the investigation. The Second Circuit held that the restrictions at issue were "content-based, and that strict scrutiny [was] the correct standard."[192] The Court finds Kamasinski controlling and thus concludes that § 2709(c) functions as a content-based restriction.
The Government nevertheless argues that § 2709(c) is content-neutral because it prohibits certain disclosures irrespective of any particular speaker's views on NSLs, terrorism, or anything else. The Government emphasizes that a "fundamental principle" underlying judicial skepticism of contentbased restrictions is that the Government should not silence "less favored" or "controversial views" while permitting the "views it finds acceptable."[193] Section 2709 does not trigger that concern, the argument goes, because the Government's aim in enforcing § 2709(c) is not to "disagree[ ] with the message,"[194] or to "select which issues are worth discussing or debating 513*513 in public,"[195] but instead to apply a neutral ban on disclosures that are potentially harmful to Government investigations.
The Government's argument is unpersuasive. It fails to recognize that even a viewpoint-neutral restriction can be content-based, if the restriction pertains to an entire category of speech.[196] The Supreme Court has clearly expressed this principle: "The First Amendment's hostility to content-

based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic."[197]Section 2709(c) prohibits any discussion of the first-hand experiences of NSL recipients, and of their officers, employees, and agents, and thus closes off that "entire topic" from public discourse.[198] Those persons are forever barred from speaking to anyone about their knowledge and role in the underlying events pertaining to the issuance of an NSL, however substantively limited or temporally remote that role may be, even at a time when disclosure of the occurrence of the investigation may have ceased to generate legitimate national security concerns and instead may hold historical or scholarly value then bearing relatively greater interest to the general public. The restriction would also categorically bar the recipient and its agents from ever discussing their roles even if other persons may be free to do so — because, for example, the matter may have become public or the FBI itself may have revealed the information or publicly brought the investigation to closure. The absolute and permanent ban on disclosure § 2709(c) commands forecloses an objective weighing of these competing public policy interests by a neutral arbiter even as the relative merits of the respective claims may alter over time.
Moreover, the Government's argument is foreclosed by Kamasinski. In that case, the Connecticut non-disclosure laws were likewise neutral as to the message conveyed by the disclosure and likewise broadly prohibited the mere fact of disclosure. The Second Circuit applied strict scrutiny, as the Court will do here. As stated, § 2709(c) may survive strict scrutiny if it is "narrowly tailored to promote a compelling Government interest,"[199]and there are no "less restrictive alternatives [which] would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve."[200] The Supreme Court has instructed that, in the courts' assessment of these considerations, "[p]recision of regulation must be the touchstone" of the inquiry.[201]
In applying that test, the Court first acknowledges that the Government's interest in protecting the integrity and efficacy of international terrorism and counterintelligence investigations is a compelling one. The Supreme Court has so acknowledged: "This Court has recognized the Government's `compelling interest' in withholding national security information from unauthorized persons in the course of 514*514 executive business."[202] A suspected terrorist or foreign intelligence operative who is alerted that the Government is conducting an investigation may destroy evidence, create false leads, alert others, or otherwise take steps to avoid detection. More generally, such disclosures can reveal the Government's intelligence-gathering methods, from which foreign intelligence operatives or terrorists could learn better how to avoid detection.
Nonetheless, Plaintiffs contend that § 2709(c)'s categorical, perpetual, and automatic ban on disclosure is not a narrowly-tailored means to advance those legitimate public interests. Plaintiffs suggest that a more precisely-calibrated statute, which would equally advance the Government's compelling interests, would prohibit disclosure only on a case-by-case basis, for a limited time, and with prior judicial approval. Without detailing the degree of narrow tailoring which the First Amendment demands with respect to § 2709, the Court concludes that § 2709 is not sufficiently narrow.
The question of how narrow is narrow enough is not amenable to scientific measurement, nor can it be reduced to articulable facile tests. Rather, it depends largely on context and perspective. When focusing only upon the universe of speech to which § 2709(c) pertains, the restriction appears very narrow. A communications provider is prohibited only from disclosing "that the Federal Bureau of Investigation has sought or obtained access to information or records under [§ 2709]."[203] Anything outside this bare fact may be fair game. For example, the NSL recipient may speak freely about his objection to (or support of) the FBI and its NSL power; he may alert his subscribers to the fact that the FBI has NSL authority under § 2709; he may petition Congress to repeal § 2709 altogether; and, other privacy laws aside, he would not be barred by § 2709(c) from disclosing the substance of the information disclosed to the FBI. Furthermore, a third party unaffiliated with the provider who somehow learned from other sources about the issuance of an NSL would not be precluded from

disclosing its existence. Speech restrictions of this general nature — prohibiting the holder of information from a disclosure which could jeopardize a Government investigation — are commonplace in federal law, as discussed above in Section I.D.
Viewed from another perspective, however, the restraint imposed under § 2709(c) is as thorough as is conceivable. The statute permanently prohibits not only the recipient but its officers, employees or agents, from disclosing the NSL's existence to "any person," inevery instance in which an NSL is issued and irrespective of the circumstances prevailing at any given point in time.[204] In this respect, § 2709(c) as well as the other NSL statutes, are uniquely extraordinary. As explained more fully earlier in Section II.D., when the Government conducts a secret investigation, it ordinarily must apply for a court order before restricting third-party participants from revealing the inquiry, and those restrictions are generally temporary.
The Court has been able to locate only three statutory provisions even arguably analogous to the automatic, categorical and permanent scope of the NSL statutes' non-disclosure rules. First, communications firms are categorically barred, unless otherwise ordered by a court, from ever disclosing 515*515 that a pen register or trap and trace device is in effect.[205] Second, communications firms are categorically barred, subject to a similar exception "as may otherwise be required by legal process," from ever disclosing that a wiretap or electronic surveillance is in place.[206] Third, recipients of a subpoena under FISA are categorically prohibited from ever disclosing to any person, "other than those persons necessary to produce" the records sought, that the subpoena was issued.[207]
Furthermore, these provisions are not quite as severe as those contained in the NSL statutes because, with one narrow exception for certain FISA surveillance orders,[208]they apply in contexts in which a court authorizes the investigative method in the first place.[209] Thus, even in these statutes, the silenced party, at least theoretically, would almost always have a forum in which to contest the continuing validity of the non-disclosure obligation or to seek a modified secrecy order.[210] The FISA limits the potential for abuse in yet another way by requiring a clear connection to a foreign power and by sharply limiting the degree to which any United States citizen may be subject to surveillance under a secret FISA order; such protections are not present in § 2709,[211]particularly after the significant broadening of the statute's scope effectuated by the Patriot Act.[212] The NSL statutes, including § 2709(c), thus stand virtually alone in providing for blanket secrecy entirely outside the context of judicial process.
In synthesizing the broad and narrow features of § 2709(c) explained above, and 516*516 in considering how closely those features are tailored to the Government's compelling interests, the Government makes convincing points in showing that it would be consistent with the First Amendment to impose a certain amount of limited secrecy in many cases involving a § 2709 NSL. The Government also persuasively demonstrates how that secrecy, under certain circumstances, might continue for longer periods of time, consistent with the First Amendment. The Court acknowledges those arguments so far as they go, but concludes in the end that the Government cannot cast § 2709 — a blunt agent of secrecy applying in perpetuity to all persons affected in every case — as narrowly-tailored.
The Government first argues, correctly, that courts generally uphold secrecy statutes in connection with official investigations in recognition of two vital considerations: the importance of secrecy and that the secrecy is limited (as here) to facts learned only by virtue of a given person's participation in the proceedings. The Court examines this doctrine in detail to underscore both its relevance and its limits.

The evolution of this doctrine begins with Seattle Times Co. v. Rhinehart.[213] There, the spiritual leader of a religious group sued a newspaper which had run negative stories about him and his members. The trial court issued a protective order to prevent the newspaper from publishing articles about or otherwise disseminating private information it gained only through discovery, and the Supreme Court held that such a discovery restriction was consistent with the First Amendment. The Court reasoned that, because a litigant generally has no First Amendment right to obtain access to such discovery information in the first place, "court control over the discovered information does not raise the same specter of government censorship that such control might suggest in other situations."[214] It was also crucial to the Court's reasoning that the protective order pertained to "only that information obtained through the use of the discovery process," and thus permitted the newspaper to "disseminate the identical information covered by the protective order as long as the information [was] gained through means independent of the court's processes."[215]
The next relevant case, Butterworth v. Smith,[216] distinguished Rhinehart, but, by negative implication, sharpened the theory underlying the doctrine upon which the Government relies here. In that case, a Florida newspaper reporter, who had testified before a grand jury about alleged state corruption, sought a declaratory judgment that he could lawfully publish, after the grand jury term ended, an account of his grand jury testimony. The Supreme Court invalidated Florida's grand jury secrecy law "insofar as the Florida law prohibit[ed] a grand jury witness from disclosing his own testimony after the term of the grand jury has ended."[217] The Court explained that the reasons for grand jury secrecy (e.g., keeping information from the target, preventing witness tampering, protecting an exonerated target from ridicule) were severely diminished by the end of a grand jury term.[218] 517*517 Against that weak interest, the Court explained that the impact on the reporter's free speech rights was "dramatic."[219] Whereas the reporter was previously "free to speak at will" about the topics at issue, his participation in the grand jury proceeding rendered it unlawful under Florida law for him to communicate even the "content, gist, or import" of his testimony.[220] The Court concluded that "the interests advanced by the [relevant] portion of the Florida statute ... are not sufficient to overcome [the reporter's] First Amendment right to make a truthful statement of information he acquired on his own."[221]
The Court distinguished Rhinehart on the ground that the issue in Butterworth involved "respondent's right to divulge information of which he was in possession before he testified before the grand jury, and not information which he may have obtained as a result of his participation in the proceedings of the grand jury."[222] To further mark the bounds of its holding, the Court noted that the "part of the Florida statute which prohibits the witness from disclosing the testimony of another witness remains enforceable under the ruling the Court of Appeals."[223]
In a lone concurrence, Justice Scalia underscored the important distinction between prohibiting the disclosure of information which a witness "kn[ows] before he enter[s] the grand jury room" (the issue then before the Court) and prohibiting "a witness' disclosure of the grand jury proceedings" (an issue not then before the Court).[224] The latter form of prohibition involves "knowledge [the witness] acquires not `on his own' but only by virtue of being made a witness," and "is in a way information of the State's own creation."[225]Justice Scalia suggested that there might be separate and compelling reasons to prohibit disclosing state-created information, but he noted that the issue was "not presented by the narrow question" of the case.[226]
The Second Circuit embraced Justice Scalia's distinction in Kamasinski, cited above.[227]As already stated, Kamasinski rejected a First Amendment challenge to Connecticut's secrecy laws surrounding judicial misconduct inquiries. The Circuit Court explained that the disclosures of a participant in such proceedings fall into three categories: (1) "the substance of an individual's complaint or testimony;" (2) "the complainant's disclosure of the fact that a complaint was filed or the witness' disclosure of the fact that testimony was given;" and (3) "information that the individual learns by interacting with" the other participants.[228] The Second Circuit, citing Justice Scalia's concurrence, held

thatButterworth addressed only the first category of information.[229] As for the latter two categories, the Court held that the "limited ban on disclosure" was justified in light of Connecticut's substantial interests 518*518 in the secrecy of those proceedings.[230]
In an analogous case, the Third Circuit drew the same distinction in determining the extent to which Pennsylvania's confidentiality laws for judicial ethics proceedings were constitutional.[231] The Third Circuit held that, although the First Amendment required that a witness be permitted to reveal his own testimony, Pennsylvania's secrecy requirement was constitutional "insofar as it would prevent a person," including a witness, "from disclosing proceedings taking place before" the reviewing body.[232]
Finally, in Hoffmann Pugh v. Keenan, the housekeeper of John and Patsy Ramsey, whose daughter JonBenet was the victim of a high-profile, unsolved murder, sought a declaration that she could publish an account of her experiences before the grand jury investigating JonBenet's murder, in spite of a Colorado law prohibiting grand jury witnesses from disclosing their testimony.[233] The Tenth Circuit upheld the secrecy requirement, noting that the Colorado statute was careful to "not prohibit disclosure of information the witness already had independently of the grand jury process."[234] The Court stated: "Reading Butterworth in light of Rhinehart, we are convinced a line should be drawn between information the witness possessed prior to becoming a witness and information the witness gained through her actual participation in the grand jury process."[235]
A basic principle emerging from these cases is that laws which prohibit persons from disclosing information they learn solely by means of participating in confidential government proceedings trigger less First Amendment concerns that laws which prohibit disclosing information a person obtains independently. Stated another way, the Government has at least some power to control information which is its "own creation,"[236] and to which there is otherwise "no First Amendment right of access."[237] The theory behind this principle is that, where an individual learns information to which he ordinarily would have no right of access, the individual takes that information subject to the statutory scheme (confidentiality rules included) which made the information available in the first place. As Judge Wilkey of the 519*519 District of Columbia Circuit expressed this concept: "The First Amendment interest of litigants in the dissemination of [materials obtained through discovery] is necessarily qualified or conditioned by the potential restrictions that are part of the system through which the materials have been obtained."[238]
The principle Rhinehart and its progeny represent is directly applicable to the present case in the following way. An NSL recipient or other person covered by the statute learns that an NSL has been issued only by virtue of his particular role in the underlying investigation, and, as the case law demonstrates, it presumptively does little violence to First Amendment values to condition the issuance of an NSL upon the recipient's return obligation of at least some secrecy.
The relevance of this doctrine reaches its limit, however, when the Court considers that the NSL statutes, unlike other legislation cited above, impose a permanent bar on disclosure in every case, making no distinction among competing relative public policy values over time, and containing no provision for lifting that bar when the circumstances that justify it may no longer warrant categorical secrecy. Courts have recognized the significance of these considerations in First Amendment inquiries. In Hoffmann Pugh, for example, the Eighth Circuit explained that Colorado law "provides a mechanism for [the plaintiff] to free herself of the restriction on her disclosure of her grand jury testimony at such time as the investigation is truly closed and the state no longer has a legitimate interest in preserving the secrecy of that testimony."[239] Similarly, the Second Circuit noted in Kamasinski that secrecy rules are only consistent with the First Amendment during the investigatory phase of a judicial ethics proceeding.[240] This feature of § 2709(c) is extraordinary in that the breadth and lasting effects of its reach are uniquely exceptional, potentially compelling

secrecy even under some decidedly non-sensitive conditions or where secrecy may no longer be justifiable under articulable national security needs.
The Government's claim to perpetual secrecy surrounding the FBI's issuance of NSLs, by its theory as advanced here an authority neither restrained by the FBI's own internal discretion nor reviewable by any form of judicial process, presupposes a category of information, and thus a class of speech, that, for reasons not satisfactorily explained, must forever be kept from public view, cloaked by an official seal that will always overshadow the public's right to know. In general, as our sunshine laws and judicial doctrine attest, democracy abhors undue secrecy, in recognition that public knowledge secures freedom.[241] 520*520 Hence, an unlimited government warrant to conceal, effectively a form of secrecy per se, has no place in our open society. Such a claim is especially inimical to democratic values for reasons borne out by painful experience.[242]Under the mantle of secrecy, the selfpreservation that ordinarily impels our government to censorship and secrecy may potentially be turned on ourselves as a weapon of self-destruction. When withholding information from disclosure is no longer justified, when it ceases to foster the proper aims that initially may have supported confidentiality, a categorical and uncritical extension of non-disclosure may become the cover for spurious ends that government may then deem too inconvenient, inexpedient, merely embarrassing, or even illicit to ever expose to the light of day. At that point, secrecy's protective shield may serve not as much to secure a safe country as simply to save face.
The Government does not deny that there are plausible situations in which little or no reason may remain for continuing the secrecy of the fact that an NSL was issued. To cite an example, a case may arise in which the Government's investigation has long since been completed and information about it has become public through Government sources or otherwise, in which the material obtained through an NSL revealed that there was no basis whatsoever to pursue the subject or target of the Government's investigation, or in which the disclosure may have been made by a person in the chain of information, such as an employee or agent of the NSL recipient, who was not informed in any way of the secrecy requirement. Section 2709(c) does not countenance the possibility that the FBI could permit modification of the NSL's no-disclosure order even in those or any other similar situations no longer implicating legitimate national security interests and presenting factual or legal issues that any court could reasonably adjudicate. Bluntly stated, the statute simply does not allow for that balancing of competing public interests to be made by an independent tribunal at any point. In this regard, it is conceivable that "less restrictive alternatives would be at 521*521 least as effective in achieving the legitimate purpose that the statute was enacted to serve."[243]For instance, Congress could require the FBI to make at least some determination concerning need before requiring secrecy, and ultimately it could provide a forum and define at least some circumstances in which an NSL recipient could ask the FBI or a court for a subsequent determination whether continuing secrecy was still warranted.
As mentioned above, pending legislation authorizing broad NSL powers in terrorism cases fully outlines some less restrictive alternatives along these lines.[244] Bills pending in the House and Senate would require the Attorney General to certify, before ordering secrecy, that disclosure would present a "danger to the national security," and the non-disclosure order could later be terminated by the Attorney General or a court, if the danger expires.[245] That such protective procedures were indeed incorporated in somewhat analogous statutes, and are the subject of corrective bills now pending in Congress, confirms some level of congressional recognition that § 2709(c) as now written is severely flawed, and that other means may be available to protect secrecy while still preserving First Amendment rights.[246]
The Government acknowledges that § 2709(c) was intended by Congress to impose a permanent ban on disclosure, but maintains that any less restrictive alternative, such as H.R. 3037, would not be as effective because it would put the Government to an unwelcome choice each time it considered issuing an NSL. That is, the Government would have to weigh the risk of court-ordered

disclosure against the need for the information sought. The Government argues that it should not be discouraged from seeking all relevant information in these highly important and sensitive investigations. This argument, as if using the edge of the hammer to hit the nail, strikes the central point only tangentially. The issue raised by the indefinite secrecy which the § 2709(c) non-disclosure provision countenances has little or nothing to do either with the Government's ability or its reach to freely gather as much information as it deems necessary, assuming the means and safeguards it employs are otherwise proper. The Court discerns no quarrel here on that score. Rather, the question is the Government's need to maintain the secrecy of discrete information, and thus a restriction on freedom of speech, long after the investigation has gathered whatever it needs and the material presumably has been put to its intended purposes. At that point, instances may arise in which the justification for concealment may have attenuated and the rights of both the NSL recipient and the public to disclosure may have correspondingly acquired greater weight and deserve heightened consideration in the balancing of pertinent public values by a neutral arbiter.
Though mindful of the Government's concerns, the Court remains skeptical of 522*522 the contention that a narrower statute could not meet the Government's needs just as effectively. As an initial matter, the Court makes clear that, where a blanket rule swearing everyone concerned to secrecy forever certainly would be the easier and most efficient course for the Government, that is of no moment here. Striking at speech with an all-encompassing prophylactic rule will always demand less Government effort than a more considered, case-by-case approach. Recognizing, as suggested earlier, that the most efficient course does not necessarily equate to the one which is most equitable and protective of fundamental rights, the issue here, therefore, is whether some uniquely exceptional reason in this case compels the categorical preclusive rule of § 2709 to be absolutely essential to effectuating the Government's legitimate interests in some measure of secrecy. Importantly, it is the Government's burden to make that showing.[247] As the Supreme Court has instructed: "When a plausible, less restrictive alternative is offered to a content-based speech restriction, it is the Government's obligation to prove that the alternative will be ineffective to achieve its goals."[248] The Court concludes that the Government has failed to carry its burden to show that the extraordinary scope of § 2709(c) is always necessary.[249]
In response to this standard, the Government's main contention, quite understandably, is that international terrorism and counterintelligence investigations justify more secrecy than other types of investigations. The Court agrees with that basic point so far as it goes. However, under the exacting demands of the First Amendment, the argument does not carry far enough.
The Government correctly states that international terrorism and counterintelligence investigations are generally different from investigations of past crimes in that the latter proceedings usually contemplate a logical endpoint (i.e., trial or hearing) where the Government publicly presents the evidence it has gathered related to allegations of a discrete, past wrongdoing. By contrast, international terrorism and counterintelligence investigations seek to uncover and disrupt future activities of typically large, long-term and expansive conspiracies. So much has been acknowledged by the Supreme Court, which has aptly observed that, in contrast to investigations of" `ordinary crime,"' intelligence surveillance "is often long range and involves the interrelation of various sources and types of information," and that its emphasis "is on the prevention of unlawful activity or the enhancement of the Government's preparedness for some possible future crisis or emergency."[250] Also, the Government often decides to pursue the fruits of international terrorism or counterintelligence 523*523 investigation via interdiction or diplomacy, as opposed to through formal and public criminal processes.[251] In such cases, the Government could theoretically have a much greater interest in continuing secrecy because certain elements of the investigation may remain in place for longer periods of time.[252]
The Court also agrees, insofar as relevant, with the Government's contention that it is sometimes very difficult to determine whether an isolated disclosure implicates national security. International

terrorism and counterintelligence investigations may involve continuously expanding or everchanging players. Hence, determining whether something is sensitive in such a fluid and necessarily broad and indeterminate context may not be simple. As the Supreme Court has observed, "bits and pieces of data may aid in piecing together bits of other information even when the individual piece is not of obvious importance in itself," and thus, "what may seem trivial to the uninformed, may appear of great moment to one who has a broad view of the scene and may put the questioned item of information in its proper context."[253]
Consequently, particular institutional limitations come into play when the judiciary is asked to make such determinations. Ordinarily, judges do not have national security expertise. Nor is the institution of the judiciary well-equipped to understand the sensitivity of an isolated piece of information in the context of the entire intelligence apparatus.[254]As one Circuit Court remarked in addressing this point: "Things that d[o] not make sense to the District Judge would make all too much sense to a foreign counter-intelligence specialist who could learn much about this nation's intelligence-gathering capabilities from what these documents revealed about sources and methods."[255] These institutional concerns explain the well-settled doctrine that courts grant substantial deference to the political branches in national security matters. The Supreme Court has recognized that in cases of "terrorism or other special circumstances" courts might afford "heightened deference to the judgments of the political branches with respect 524*524 to matters of national security."[256]
In this Court's judgment, these authorities persuasively confirm that the Government should be accorded a due measure of deference when it asserts that secrecy is necessary for national security purposes in a particular situation involving particular persons at a particular time. Here, however, the Government cites no authority supporting the open-ended proposition that it may universally apply these general principles to impose perpetual secrecy upon an entire category of future cases whose details are unknown and whose particular twists and turns may not justify, for all time and all places, demanding unremitting concealment and imposing a disproportionate burden on free speech.
In fact, all the cases cited above involved some judicial process pertaining to contemporary circumstances, and, for obvious reasons, the general propositions articulated in those opinions cannot always be tailored to every forthcoming or unforeseen set of facts. Thus, the central flaw in the Government's argument is that it invites the Court to "assume that [§ 2709] will always advance the asserted [Government] interests sufficiently to justify its abridgment of expressive activity."[257] The Court cannot uncritically embrace that proposition because there are undoubtedly circumstances in which the need for secrecy either has expired or simply no longer exists with the same compelling force that once warranted its imposition. Section 2709(c) provides no mechanism to account for or exclude any unjustifiable denial of speech in these cases. Nor has the Government persuasively shown that it cannot provide such safeguards by less burdensome means. As the Sixth Circuit commented, in rejecting the Government's attempt to impose blanket closure upon a wide class of immigration cases, a case-by-case evaluation of the need for secrecy "does not mean that information helpful to terrorists will be disclosed, only that the Government must be more targeted and precise in its approach."[258] The Court cannot, consistent with its constitutional powers, fix the shortcomings of this provision of the statute to make it more "targeted and precise."[259] That is a legislative function. Accordingly, § 2709(c) must be invalidated on its face on this ground.
The Government also makes the independent argument that § 2709(c) pertains to only one of the "few limited areas" of proscribable speech, such as obscenity and threats of violence, "which are `of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest 525*525 in order and morality.'"[260] The Government conceives of an entirely proscribable area of speech covering disclosures which would implicate national security concerns. Without deciding whether such a category should be deemed generally proscribable, the Court rejects the Government's argument as question-begging. For that argument to have any force, the Court would have to assume that § 2709(c) pertains only to disclosures which are invariably and

perpetually harmful to national security, a dubious assumption that is a highly disputed issue in this lawsuit.[261]
Because the Court concludes that § 2709(c) is facially unconstitutional, it must also determine whether the remainder of the statute can be severed from it.[262] "The inquiry into whether a statute is severable is essentially an inquiry into legislative intent."[263]Though the Court is mindful of its duty to save as much of a statute as possible when it finds a portion of it unconstitutional,[264] the 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."[265] The Court concludes here that Congress could not have intended §§ 2709(a) and (b), the provisions authorizing the FBI to issue NSLs seeking information from wire and electronic communication service providers, to operate absent the non-disclosure provisions contained in § 2709(c). As the Court has described above, Congress intended the statute to function as a secret means of gathering information from communications service providers; other, non-secret means of obtaining information are already available to law enforcement officials for procuring the same material covered by § 2709. In addition, the Court recognizes that the NSL regime cannot function in accordance with Congress's intent if the fact of an NSL's issuance could be immediately disclosed to a communications subscriber who is the target of a § 2709 NSL. Absent the secrecy provisions of the invalidated § 2709(c), however, there is no vehicle in the statute to preserve a more narrowly-tailored degree of secrecy necessary to effectuate the important purposes of the statute consistent with First Amendment values. Because "Congress could not have intended 526*526 [§ 2709(c),] a constitutionally flawed provision[,] to be severed from [§§ 2709(a) and (b)] if [§§ 2709(a) and (b) are] incapable of functioning independently,"[266] the Court concludes that §§ 2709(a) and (b) must be invalidated as non-severable from § 2709(c).
V. STAY OF JUDGMENT
Considering the implications of its ruling and the importance of the issues involved, the Court will stay enforcement of its judgment pending appeal, or for the Government otherwise to pursue any alternate course of action, for 90 days. The Court is aware that several material issues in this case involve uncharted legal terrain. The stay will give the Government the opportunity to move this Court, or the Court of Appeals, for whatever appropriate relief it may seek to maintain the confidentiality of any information implicated by the Court's ruling. To this end, the Court is aware that invalidating § 2709(c) on its face may carry the potential to compromise legitimately confidential information. The Court declares unequivocally that it is not its intention to cause any such information to fall into the wrong hands.
The seal governing this case thus remains in effect, with the following exception. Throughout this litigation, the Government has maintained that the Court should conceal the identity of Doe, as well the mere fact that an NSL was issued to Doe (and any other fact which would suggest as much). But, in the course of rendering this decision the Court unavoidably has revealed portions of that information. The Court cannot perceive any compelling basis for continuing to conceal narrow fact of the existence of the NSL. The disclosure amounts to only that, at some unspecified time and place, the Government issued a § 2709 NSL to some unnamed internet firm. Even if not explicitly stated, that much is readily apparent to any interested or discerning observer from the publicly available complaint and other documents on file. The revelation amounts to little more than a statement that the Government has, at some time, made use of a statutory power granted to it — as it manifestly and by its own admission has done on so many other occasions during the life of the statute. Without anything to connect the NSL in this case to the particular NSL recipient involved, and without offering any details about the NSL itself that would help link it to its recipient, the Court concludes that the extent of the additional information disclosed here is negligible, and, in any event, not conceivably harmful to compelling Government interests.[267]

VI. CONCLUSION
To summarize, the Court concludes that the compulsory, secret, and unreviewable production of information required by the FBI's application of 18 U.S.C. § 2709 violates the Fourth Amendment, and that the non-disclosure provision of 18 U.S.C. 527*527 § 2709(c) violates the First Amendment.[268] The Government is therefore enjoined from issuing NSLs under § 2709 or from enforcing the non-disclosure provision in this or any other case, but enforcement of the Court's judgment will be stayed pending appeal, or if no appeal is filed, for 90 days.
VII. ORDER
For the reasons discussed above, it is hereby:
ORDERED that the motion of John Doe, the American Civil Liberties Union, and the American Civil Liberties Union Foundation (collectively, "Plaintiffs") for summary judgment in this case is granted. Defendants John Ashcroft, in his official capacity as Attorney General of the United States, Robert Mueller, in his official capacity as Director of the Federal Bureau of Investigation, and Marion Bowman, in his official capacity as Senior Counsel to the Federal Bureau of Investigation (collectively "Defendants"), are hereby enjoined from issuing national security letters under 18 U.S.C. § 2709, or from enforcing the provisions of 18 U.S.C. § 2709(c); it is further
ORDERED that Defendants' motion to dismiss, or in the alternative, for summary judgment, is denied; it is further
ORDERED that Plaintiffs' motion to exclude Defendants' ex parte affidavit is denied as moot; it is further
ORDERED that the Clerk of Court shall file this Decision and Order on the public docket; and is finally
ORDERED that the Clerk of Court shall enter judgment accordingly but stay enforcement of the judgment pending any appeal, or, if no appeal is filed, for 90 days from the date of this Order.
SO ORDERED.
[1] 18 U.S.C. § 2709.
[2] Id. § 2709(c).
[3] By Order dated May 12, 2004, the Court granted the Government's motion to seal the record of this proceeding so as to preclude the disclosure of Doe's identity and other facts relating to Doe's role in this controversy that might identify Doe or otherwise interfere with the underlying FBI activities giving rise to this case.
[4] See U.S. Const. amend. IV ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated....") (emphasis added).
[5] Hamdi v. Rumsfeld, ___ U.S. ___, ___, 124 S.Ct. 2633, 2650, 159 L.Ed.2d 578 (2004).
[6] Home Building & Loan Ass'n v. Blaisdell, 290 U.S. 398, 426, 54 S.Ct. 231, 78 L.Ed. 413 (1934).

[7] See United States v. Harrell, 207 F.Supp.2d 158, 162 (S.D.N.Y.2002) (Marrero, J.) ("[I]n performing their constitutional mandate, the courts will be called upon to exert particular vigilance to safeguard against excess committed in the name of expediency, to ensure that Americans do not succeed where the terrorists failed, inflicting by their own hand the deeper wrongs to the nation's essence that the September 11 external attacks upon physical structures and innocent people were unable to realize.... In short, the September 11 cases will challenge the judiciary to do September 11 justice, to rise to the moment with wisdom equal to the task, its judgments worthy of the large dimensions that define the best September 11 brought out of the rest of American society.").
[8] Kennedy v. Mendoza-Martinez, 372 U.S. 144, 165, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963).
[9] Only a brief recitation of the most basic facts is provided here, but these details are sufficient alone to resolve the present motions.
[10] Compl. Attach. A.
[11] Id.
[12] Id. (emphasis added).
[13] Id. (emphasis in original). As the Court explains below, under the seal order that will remain in place, the details of any further names, times and places identified in the NSL will remain confidential.
[14] See 18 U.S.C. § 2709.
[15] Id.
[16] See id.
[17] See 12 U.S.C. § 3414 (financial records); 15 U.S.C. §§ 1681u, 1681v (credit records); 50 U.S.C. § 436 (government employee records).
[18] See 12 U.S.C. § 3414(a)(5)(D); 15 U.S.C. §§ 1681u(d), 1681v(c); 50 U.S.C. § 436(b).
[19] See Pub.L. No. 99-508, § 201, 100 Stat. 1848, 1867 (1986).
[20] S.Rep. No. 99-541, at 3 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3557.
[21] Pub.L. No. 95-630, Title XI, 92 Stat. 3641, 3697 (1978).
[22] See H.R. Rep. 95-1383, at 28, reprinted in 1978 U.S.C.C.A.N. 9273, 9305.
[23] Id.
[24] Id. at 28, 1978 U.S.C.C.A.N. at 9306 (citing United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976)).
[25] See S.Rep. No. 99-541, at 3 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3558.
[26] See 18 U.S.C. § 2703.
[27] See 18 U.S.C. § 2709.
[28] 18 U.S.C. § 2709 (1988).
[29] See S.Rep. No. 99-307, at 18-19 (1986). This Senate Intelligence Committee report pertains to the Intelligence Authorization Act for Fiscal Year 1987 ("IAA"), not the ECPA, which originated in the Senate Judiciary Committee and which ultimately produced § 2709. However, the legislative history of the IAA is, in most respects, more detailed and instructive

regarding the meaning of the language that would eventually become enacted as § 2709. The Senate report on the ECPA directs the reader to the legislative history of the IAA for background on other aspects of the statute. See S.Rep. No. 99-541, at 44 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3598. Section 2709 was not enacted as part of the IAA at least partly because the conference committee recognized that it would be enacted as part of the ECPA. See H.R. Conf. Rep. No. 99952, at 30 (1986), reprinted in 1986 U.S.C.C.A.N. 5379, 5390 ("The conferees support such legislation, but decided not to include it in the conference report since it is expected to become law as part of the Electronic Communications Privacy Act.").
[30] See S.Rep. No. 99-307, at 19.
[31] See id. at 19-20.
[32] See id. The version passed under the ECPA deletes the three words "or may be." See 18 U.S.C. § 2709 (1988). The ECPA Senate Report notes, but does not explain, the deletion. See S.Rep. No. 99-541, at 44 (1986),reprinted in 1986 U.S.C.C.A.N. 3555, 3598.
[33] See S.Rep. No. 99-307, at 20 (citing Reporters Comm. for Freedom of the Press v. AT & T, 593 F.2d 1030 (D.C.Cir.1978)).
[34] The Senate report accompanying the ECPA made particular note of this addition: while the version of § 2709 contained in the IAA merely allowed the FBI to obtain telephone subscriber and toll billing information, the version enacted as part of the ECPA added a provision authorizing use of NSLs to gather "electronic communication transactional records." See S.Rep. No. 99-541, at 43-44 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3597-98. The stated purpose of the addition is frankly inscrutable; the report states that the addition "ensures that the FBI has the necessary authority with regard to subscriber information and toll billing information with respect to electronic communication services other than ordinary telephone service." Id. at 44, 1986 U.S.C.C.A.N. at 3598.
[35] See 18 U.S.C. § 2709 (1994).
[36] H.R.Rep. No. 103-46, at 3 (1993), reprinted in 1993 U.S.C.C.A.N. 1913, 1915; see 18 U.S.C. § 2709 (1994). The amended statute permitted the FBI to:
(1) request the name, address, length of service, and toll billing records of a person or entity if the Director (or his designee in a position not lower than Deputy Assistant Director) certifies in writing to the wire or electronic communication service provider to which the request is made that —
(A) the name, address, length of service, and toll billing records sought are relevant to an authorized foreign counterintelligence investigation; and
(B) 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 as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801); and
(2) request the name, address, and length of service of a person or entity if the Director (or his designee in a position not lower than Deputy Assistant Director) certifies in writing to the wire or electronic communication service provider to which the request is made that —
(A) the information sought is relevant to an authorized foreign counterintelligence investigation; and
(B) there are specific and articulable facts giving reason to believe that communication facilities registered in the name of the person or entity have been used, through the services of such provider, in communication with —
(i) an individual who is engaging or has engaged in international terrorism as defined in section 101(c) of the Foreign Intelligence Surveillance Act or clandestine intelligence activities that involve or may involve a violation of the criminal statutes of the United States; or
(ii) a foreign power or an agent of a foreign power under circumstances giving reason to believe that the communication concerned international terrorism as defined in section 101(c) of the Foreign Intelligence Surveillance Act or clandestine intelligence activities that involve or may involve a violation of the criminal statutes of the United States.

18 U.S.C. § 2709(b) (1994).
[37] H.R.Rep. No. 103-46, at 2, 1993 U.S.C.C.A.N. at 1914. In support of the change, the FBI cited to the House Judiciary Committee an occasion in which it intercepted a phone call from an unidentified former U.S. Government employee who offered to provide sensitive intelligence to a foreign nation. See id. According to the FBI, the original version of § 2709 did not provide it with authority to trace the employee's call (and thereby identify him) because the employee was a possible volunteer as a foreign agent, and not himself a foreign agent. See id.
[38] Id. at 2-3, 1993 U.S.C.C.A.N. at 1914-15.
[39] See Pub.L. 107-56, § 505, 115 Stat. 272, 365 (2001). In 1996, Congress clarified that § 2709 requests included both local and long-distance telephone records. See 18 U.S.C. § 2709 (2000); see also S.Rep. No. 104-258, at 22-23, reprinted in 1996 U.S.C.C.A.N. 3945, 3967-68 (explaining the change).
[40] Compare 18 U.S.C. § 2709 (2000) with 18 U.S.C. § 2709 (2000 & Supp.2003).
[41] Administration's Draft Anti-Terrorism Act of 2001: Hearing Before the House Comm. on the Judiciary, 107th Cong. 5758 (2001), available at http://www.house.gov/judiciary/75288.pdf (section-by-section analysis of the Anti-Terrorism Act of 2001).
[42] H.R. Rep. 107-236, at 62 (2001). The only specific objection to the § 2709 revision in the Patriot Act's legislative history came from the Center for Democracy and Technology ("CDT"), which has filed an amicus brief in this case. The CDT stated in written materials to two Senate committees that the section "would greatly increase access to the personal information of consumers or groups who are not agents of foreign powers," and also noted that "the institutions granting access to consumer information would be prohibited from disclosing that information or records had been obtained." Protecting Constitutional Freedoms in the Face of Terrorism: Hearing Before the Subcomm. on the Constitution, Federalism, and Property Rights of the Senate Comm. on the Judiciary, 107th Cong., S. Hrg. 107-610, at 34 (2001) (Statement of Jerry Berman, Executive Director, Center For Democracy and Technology); S. 1448, The Intelligence to Prevent Terrorism Act Of 2001 and Other Legislative Proposals in the Wake of the September 11, 2001 Attacks: Hearing Before the Senate Select Comm. On Intelligence, 107th Cong., S. Hrg. 107-449, at 54 (2001) (same).
[43] See 26 U.S.C. § 7602(a).
[44] See 15 U.S.C. § 78u(b).
[45] See 7 U.S.C. § 4610a(b).
[46] See 16 U.S.C. § 773i(f)(2).
[47] See United States v. Powell, 379 U.S. 48, 57-58, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964); Gimbel v. Fed. Deposit Ins. Corp. (In re Gimbel), 77 F.3d 593, 596 (2d Cir.1996).
[48] See United States v. White, 853 F.2d 107, 111 (2d Cir.1988); see also Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 509, 63 S.Ct. 339, 87 L.Ed. 424 (1943) (stating that courts must enforce administrative subpoenas unless the evidence sought is "plainly ... irrelevant to any lawful purpose of the agency"); United States v. Construction Prods. Research, Inc., 73 F.3d 464, 471 (2d Cir.1996).
[49] See Reisman v. Caplin, 375 U.S. 440, 449, 84 S.Ct. 508, 11 L.Ed.2d 459 (1964).
[50] See 12 U.S.C. § 3409(b) (providing for a court-issued non-disclosure order, in renewable 90-day increments, where an authorized Government agency subpoenas financial records); 15 U.S.C. § 78u(h)(4)(A) (providing for a court-issued nondisclosure order, in renewable 90-day increments, in SEC investigations); 18 U.S.C. § 2705(b) (providing for a court-issued non-disclosure order, "for such period as the court deems appropriate," where an authorized Government agency subpoenas stored electronic records); 18 U.S.C. § 3486(a)(6)(A) (providing for a court-issued non-disclosure order, in renewable 90-day increments, in investigations of health care fraud or crimes involving exploitation of children).
[51] 18 U.S.C. § 1505; cf. United States v. Jeter, 775 F.2d 670 (6th Cir.1985), cert. denied, 475 U.S. 1142, 106 S.Ct. 1796, 90 L.Ed.2d 341 (1986) (concluding that an individual could be convicted under an analogous obstruction of justice statute, 18 U.S.C. § 1503, for revealing the contents of secret grand jury transcripts to targets of the grand jury's investigation).

[52] Fed.R.Crim.P. 17(a), (c)(1) (emphasis added).
[53] In re Grand Jury Proceedings, 486 F.2d 85, 90 (3d Cir.1973); see also Fed R.Crim. P. 17(a) ("The clerk must issue a blank subpoena — signed and sealed — to the party requesting it....").
[54] Fed.R.Crim.P. 17(c)(2).
[55] United States v. R. Enters., Inc., 498 U.S. 292, 299, 111 S.Ct. 722, 112 L.Ed.2d 795 (1991) (citing United States v. Nixon, 418 U.S. 683, 700, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974)).
[56] Id. at 301, 111 S.Ct. 722.
[57] United States v. Cleary, 265 F.2d 459, 461 (2d Cir.1959).
[58] See U.S. Const. amend. VI.
[59] See Fed.R.Crim.P. 6(e).
[60] See id. at (e)(2)(A) ("No obligation of secrecy may be imposed on any person except in accordance with [Rule 6].").
[61] See In re Subpoena to Testify Before Grand Jury, 864 F.2d 1559, 1563-64 (11th Cir.1989); see also In re Grand Jury Subpoena Duces Tecum, 797 F.2d 676, 681-82 (8th Cir.1986) (permitting secrecy order pertaining to grand jury witness upon showing of compelling necessity).
[62] See 18 U.S.C. § 1510(b), (d).
[63] See 18 U.S.C. §§ 1503 (punishing "[w]hoever corruptly ... endeavors to ... impede any grand or petit juror ... [or] the due administration of justice"); 1512(b) (imposing criminal sanctions upon an person who, among other things, "corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to ... hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense....").
[64] See 21 U.S.C. § 876(a).
[65] See 18 U.S.C. § 1968.
[66] See 18 U.S.C. § 3486(a)(1)(A)(i)(I).
[67] See id. § 3486(a)(1)(A)(i)(II).
[68] See 21 U.S.C. § 876(c) (providing for judicial enforcement); 18 U.S.C. § 1968(g) (same); id. § 3486(c) (same).
[69] Basic subscriber information includes: (1) a subscriber's name and (2) address; (3) the subscriber's local and long distance telephone connection records, or records of session times and durations; (4) the subscriber's length of service and types of service he has utilized; (5) any telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and (6) the subscriber's means and source of payment for the service. See 18 U.S.C. § 2703(c)(2).
[70] See 18 U.S.C. § 2703(c)(2)-(3).
[71] See 18 U.S.C. § 2705.
[72] See id. § 2703(a)-(b). This rough description of the complex statutory terrain derives from the Justice Department's thorough analysis of the ECPA. See United States Dep't of Justice, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations 94 (2002), available athttp://www.cybercrime.gov/s&smanual2002.pdf. Courts are not uniform in interpreting the statute's confusing and overlapping definitions. Compare Theofel v. Farey-Jones, 359 F.3d 1066, 1076-77 (9th Cir.2004) (holding that copies of opened emails on ISP servers are in "electronic storage"), with In

re DoubleClick, Inc. Privacy Litig., 154 F.Supp.2d 497, 512 (S.D.N.Y.2001) (stating that only un opened email on an ISP server would be considered in "electronic storage"); see also Fraser v. Nationwide Mut. Ins. Co., 135 F.Supp.2d 623, 633 (E.D.Pa.2001), rev'd in part on other grounds, 352 F.3d 107 (3d Cir.2003) ("The ECPA has been noted for its lack of clarity."). [73] See id. § 2703(a). [74] See Fed.R.Crim.P. 41. [75] 18 U.S.C. § 2703(d). [76] Id. § 2705(b). [77] See 39 C.F.R. § 233.3. [78] See id. § 233.3(e)(2). [79] See Ex parte Jackson, 96 U.S. 727, 733, 24 L.Ed. 877 (1877). [80] Id. [81] See 18 U.S.C. § 3127(3)-(4). [82] See id. § 3123(c). [83] Id. § 3123(a). [84] See 18 U.S.C. § 3123(d)(2). [85] See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). [86] See 18 U.S.C. §§ 2516-18. [87] Id. § 2518(3). [88] Id. § 2518(5). [89] Id. § 2511(2)(a)(ii). [90] See 50 U.S.C. § 1801 et seq. [91] Id. § 1802(a)(1). [92] Id. § 1802(a)(4)(A). [93] See id. §§ 1804-1805. [94] See id. § 1804. [95] Id. § 1804(a)(7). [96] Id. § 1805(a). [97] Id. § 1805(e).

[98] Id. § 1805(c)(2)(B).
[99] 50 U.S.C. § 1861(a).
[100] See id. §§ 1861(b), (c).
[101] See id. § 1861(d).
[102] 50 U.S.C. § 1842(a)(1).
[103] See id. § 1842(c).
[104] 50 U.S.C. § 1842(d)(2)(B)(ii)(I).
[105] Fed.R.Civ.P. 56(c).
[106] See Halverson v. Slater, 129 F.3d 180, 186 (D.C.Cir.1997) ("legislative intent cannot fairly be inferred from different language in two sections of different enactments") (citing Pure Oil Co. v. Suarez, 384 U.S. 202, 206, 86 S.Ct. 1394, 16 L.Ed.2d 474 (1966)); see also Fourco Glass Co. v. Transmirra Prods., Corp., 353 U.S. 222, 77 S.Ct. 787, 1 L.Ed.2d 786 (1957) (holding that the general venue provisions governing federal civil actions, even if reflecting some similarities in the actual usage of some terms, do not carry over into or supplement previously enacted venue rules controlling patent infringement actions). In addition, and as noted above, the EPCA, in which § 2709 was enacted, has previously been "noted for its lack of clarity." Fraser v. Nationwide Mut. Ins. Co., 135 F.Supp.2d 623, 633 (E.D.Pa.2001), rev'd in part on other grounds, 352 F.3d 107 (3d Cir.2003).
[107] Compare 12 U.S.C. § 3414(a)(5)(D) (prohibiting disclosure to "any person") and 15 U.S.C. § 1681v(c) (same)and 18 U.S.C. § 2709(c) (same) with 15 U.S.C. § 1681u(d) (exempting disclosure to "those officers, employees, or agents ... necessary to fulfill the requirement to disclose information ... under this section") and 50 U.S.C. § 436(b) (exempting disclosure to "those officers, employees, or agents of such entity necessary to satisfy a request made under this section").
[108] Compare, e.g., 18 U.S.C. § 2709 with, e.g., 26 U.S.C. § 7604(b) (providing for judicial enforcement of IRS-issued administrative subpoenas) and 15 U.S.C. § 78u(c) (providing for judicial enforcement of SEC-issued administrative subpoenas) and Fed.R.Crim.P. 17(c)(2) (permitting motions to quash subpoenas in criminal cases).
[109] Compare, e.g., 18 U.S.C. § 2709 with, e.g., 26 U.S.C. § 7604(b) (authorizing contempt sanctions for failure to comply with IRS-issued administrative subpoenas) and 15 U.S.C. § 78u(c) (providing penalties of up to one year imprisonment and a $1,000 fine for failure to comply with SEC-issued administrative subpoenas).
[110] See H.R. 3179, The "Anti-Terrorism Intelligence Tools Improvement Act of 2003": Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Security of the House Comm. on the Judiciary, 108th Cong. (2004) ("H.R. 3179 Hg.") (opening statement of Rep. Coble, Chairman, Subcomm. on Crime, Terrorism, and Homeland Security of the House Comm. on the Judiciary):
The current law authorizes the Federal Government to use a National Security Letter, which is basically an administrative subpoena, to make a request for transactional records, such as billing records. These requests must be related to investigations of international terrorism or clandestine intelligence activities. The current law, however, has no mechanism to enforce the requests. Furthermore, the current law provides no penalty for an individual who decides to tip off a target of a terrorism or an intelligence investigation that the Federal government has made a National Security letter request concerning the target.
[111] It should also be noted that the Department of Justice's position in this litigation is inconsistent with the position taken by the FBI in hearings on H.R. 3179. In the May 18, 2004 hearing on H.R. 3179, Thomas J. Harrington, Deputy Assistant Director of the FBI's Counterterrorism Division, told the House subcommittee examining the bill that legislation was necessary to provide the FBI with a means of seeking judicial enforcement of an NSL:
H.R. 3179 also provides for a procedure for judicial enforcement if a recipient of a National Security Letter does not comply with the mandatory request for information.... An example of where this provision would have been helpful is a case where during an investigation into international terrorist activities, analysis revealed that several subjects were using a third party internet service as a potential means of communication. NSLs served on the third party service revealed that an associate of

the subjects registered for the service using a free, web-based email service. NSLs were served on the web-based email service in order to obtain electronic transactional records. The web-based email service has not yet provided the records associated with the request. A judicial enforcement provision, such as the one included in H.R. 3179, would assist by providing a forum to quickly resolve this issue and allow the investigation to move forward more expeditiously.
Id. (statement of Thomas J. Harrington, Deputy Assistant Dir., Counterterrorism Div., FBI).
[112] See H.R. 3179, 108th Cong. § 2 (2003).
[113] Antiterrorism Tools Enhancement Act of 2003, H.R. 3037, 108th Cong. § 3 (2003) (proposed 18 U.S.C. § 2332g(a)).
[114] Id. (proposed 18 U.S.C. § 2332g(c)).
[115] Id. (proposed 18 U.S.C. § 2332g(a)(1)).
[116] See S. 2555, 108th Cong. (2004).
[117] See id. § 2 (proposed 18 U.S.C. § 2332g(d) clarifying the scope of the nondisclosure requirement; proposed 18 U.S.C. § 2332g(e) stating that judicial review is available to modify or set aside the summons or the nondisclosure requirement).
[118] To be clear, the Fourth Amendment rights at issue here belong to the person or entity receiving the NSL, not to the person or entity to whom the subpoenaed records pertain. Individuals possess a limited Fourth Amendment interest in records which they voluntarily convey to a third party. See Smith, 442 U.S. at 742-46, 99 S.Ct. 2577;Miller, 425 U.S. at 44043, 96 S.Ct. 1619. Nevertheless, as discussed below, many potential NSL recipients may have particular interests in resisting an NSL, e.g., because they have contractually obligated themselves to protect the anonymity of their subscribers or because their own rights are uniquely implicated by what they regard as an intrusive and secretive NSL regime. For example, since the definition of "wire or electronic communication service provider," 18 U.S.C. § 2709(a), is so vague, the statute could (and may currently) be used to seek subscriber lists or other information from an association that also provides electronic communication services (e.g., email addresses) to its members, or to seek records from libraries that many, including the amici appearing in this proceeding, fear will chill speech and use of these invaluable public institutions. Fear that § 2709 may be used as a tool to gain sensitive information from libraries has led both houses of Congress to introduce bills intended to exclude libraries from the ambit of § 2709. See S. 1709, Security and Freedom Assured ("SAFE") Act of 2003, 108th Cong. § 5 (2003) (proposing to amend § 2709(a) to state that a "library shall not be treated as a wire or electronic communication service provider for purposes of this section"); H.R. 3352, 108th Cong. § 5 (2003) (same).
[119] See U.S. Const. amend. IV; United States v. Streifel, 665 F.2d 414 (2d Cir.1981).
[120] Streifel, 665 F.2d at 419-20.
[121] See United States v. Morton Salt Co., 338 U.S. 632, 651-52, 70 S.Ct. 357, 94 L.Ed. 401 (1950).
[122] Id.
[123] Gimbel v. Federal Deposit Ins. Corp. (In re Gimbel), 77 F.3d 593, 596 (2d Cir.1996) (internal quotation marks and citation omitted).
[124] Morton Salt Co., 338 U.S. at 652, 70 S.Ct. 357; see also Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 208, 66 S.Ct. 494, 90 L.Ed. 614 (1946) ("The gist of the protection is ... that the disclosure sought shall not be unreasonable.").
[125] United States v. Bailey (In re Subpoena Duces Tecum), 228 F.3d 341, 348 (4th Cir.2000).
[126] See v. City of Seattle, 387 U.S. 541, 544-45, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967); see also Oklahoma Press, 327 U.S. at 217, 66 S.Ct. 494
[127] Oklahoma Press, 327 U.S. at 217, 66 S.Ct. 494.
[128] 18 U.S.C. §§ 2709(b)(1), (b)(2).

[129] 18 U.S.C. § 2709(a). But see H.R. 3179 Hg. (containing statements by a senior FBI official and the Chairman of the House Subcommittee on Crime, Terrorism, and Homeland Security arguing that the current NSL statutes are merely hortatory); supra Part II.C (discussing other indications that Congress did not intend § 2709 to have the meaning ascribed to it by the Government in this case).
[130] United States v. Hill, 694 F.2d 258, 263 (D.C.Cir.1982) (emphasis in original) (collecting cases).
[131] 18 U.S.C. § 2709(a).
[132] United States v. Doe (In re Grand Jury Proceedings), 219 F.3d 175, 183 (2d Cir.2000).
[133] 18 U.S.C. § 2709(c) (emphasis added).
[134] See Pub.L. No. 104-93, 109 Stat. 961 (1996) (codified as amended at 15 U.S.C. § 1681u(d)).
[135] H.R. Conf. Rep. No. 104-427, at 39 (1995), reprinted in 1995 U.S.C.C.A.N. 993, 1001.
[136] See Nix v. O'Malley, 160 F.3d 343 (6th Cir.1998); McQuade v. Michael Gassner Mech. & Elec. Contractors, Inc., 587 F.Supp. 1183 (D.Conn.1984).
[137] Nix, 160 F.3d at 351.
[138] McQuade, 587 F.Supp. at 1190.
[139] INS v. St. Cyr., 533 U.S. 289, 299-300, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (quotation marks and citation omitted); see also Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. and Const. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988) (holding that "every reasonable construction must be resorted to, in order to save a statute from unconstitutionality") (quotation marks and citation omitted).
[140] United States v. Locke, 471 U.S. 84, 96, 105 S.Ct. 1785, 85 L.Ed.2d 64 (1985) (quoting George Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379, 53 S.Ct. 620, 77 L.Ed. 1265 (1933) (Cardozo, J.)).
[141] Simon & Garfunkel, Sounds of Silence (Columbia 1966).
[142] See, e.g., Marvel Characters, Inc. v. Simon, 310 F.3d 280, 290 (2d Cir.2002) ("In interpreting a statute, we look first to the language of the statute itself.").
[143] See Halverson, 129 F.3d at 186 n. 9 ("Caution must be exercised in applying the rule that one statute will be interpreted to correspond to analogous but unrelated statutes for the reason that by way of contrast an inclusion or exclusion may show an intent or convey a meaning exactly contrary to that expressed by analogous legislation.") (quoting 2B Norman J. Singer, Sutherland Stat. Const. § 53.05 (5th ed.1992)).
[144] Compl. Attach. A.
[145] See Letter from Jamie E. Brown, Acting Assistant Attorney General, United States Dep't of Justice, to The Honorable F. James Sensebrenner, Jr., Chairman, Committee on the Judiciary, U.S. House of Representatives 4 (May 13, 2003), available at http:// www.lifeandliberty.gov-/subs/congress/hjcpatriotactcombinedresponses3.pdf (answering Chairman Sensebrenner's question, "Has any litigation resulted from the issuance of these [National Security] letters i.e. challenging the propriety or legality of their use? If so, please describe," as follows: "Answer:There has been no challenge to the propriety or legality of National Security Letters.").
[146] In fact, the evidence suggests that perhaps even the FBI does not actually believe that § 2709 contemplates judicial review. First, as discussed above, a senior FBI official testified before Congress that was no judicial enforcement provision in § 2709. See H.R. 3179 Hg. (statement of Thomas J. Harrington, Deputy Assistant Director, FBI). Second, Plaintiffs have obtained, via a FOIA request, two FBI memoranda concerning implementing and serving NSLs, yet neither memorandum discusses or even mentions the possibility that an NSL recipient could challenge the NSL in court.
[147] 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963).

[148] See id. at 71-72, 83 S.Ct. 631.
[149] See id. at 68-70, 83 S.Ct. 631.
[150] Id. at 68, 83 S.Ct. 631.
[151] Id. at 68-69, 83 S.Ct. 631.
[152] The Court further notes that the coercive practices invalidated in Bantam Books may have never even been challenged if the real parties in interest in the suit, the publishers whose books were taken off the shelves, were unable to learn of the existence of the coercive activities taking place in Rhode Island. In Bantam Books, the distributor who was the target of the challenged coercive letters actually complied with their "recommendations,"see id. at 63, 83 S.Ct. 631, but the publishers whose interests were most directly harmed by the letters learned of the letters and promptly challenged them, see id. at 64, 83 S.Ct. 631 (explaining that publishers gained standing to challenge the censorship letters, even though they never directly received the letters, in part because "the publisher has the greater economic stake [in resisting the letters].... Unless he is permitted to sue, infringements of freedom of the press may often go unremedied.") (citing N.A.A.C.P. v. State of Alabama ex rel. Patterson, 357 U.S. 449, 459, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958)). Section 2709's secrecy provisions, along with the clear terms of the NSL form used by the FBI, affirmatively prohibit the party whose interests are most affected by the NSL — the communications service subscriber(s) whose records are targeted by the NSL — from ever learning about or gaining the ability to challenge the NSL. The secrecy surrounding NSLs thus makes them even less subject to judicial challenge than any non-secret form of coercive government activity.
[153] See In re Grand Jury Proceedings, 814 F.2d 61 (1st Cir.1987).
[154] Id. at 63-64.
[155] See Fed.R.Crim.P. 6(e)(2).
[156] In re Grand Jury Proceedings, 814 F.2d at 64, 70.
[157] See Bantam Books, 372 U.S. at 71, 83 S.Ct. 631 ("The procedures of the Commission are radically deficient.... We hold that the system of informal censorship disclosed by this record violates the Fourteenth Amendment"); id. at 74-75, 83 S.Ct. 631 (Clark, J., concurring) (emphasis added) (noting that the opinion of the Court did not invalidate the Rhode Island statute which appeared to authorize the coercive tactics undertaken by the commission).
[158] St. Cyr, 533 U.S. at 299-300, 121 S.Ct. 2271.
[159] Id.
[160] As discussed above, an ISP may be obligated by contract or other arrangement to assert its subscribers' rights, even if the subscriber herself is unaware of the existence of the NSL and is not able to personally assert her own rights. In addition, associations or other organizations that receive NSLs may have their own independent First Amendment or other interests in protecting their subscribers' information from discovery.
[161] 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960)
[162] Id. at 64, 80 S.Ct. 536.
[163] See McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 341-57, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995).
[164] See Buckley v. American Constitutional Law Found., 525 U.S. 182, 199-200, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999).
[165] See Watchtower Bible & Tract Soc. of New York, Inc. v. Village of Stratton, 536 U.S. 150, 160-69, 122 S.Ct. 2080, 153 L.Ed.2d 205 (2002).
[166] NAACP v. State of Alabama ex rel. Patterson, 357 U.S. 449, 462, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); see also Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 546-558, 83 S.Ct. 889, 9 L.Ed.2d 929 (1963) (reversing contempt sanctions against NAACP official who refused to produce membership list to state investigative

committee); Bates v. City of Little Rock, 361 U.S. 516, 522-26, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960)(reversing convictions of NAACP officials who refused to disclose membership list to local tax officials, as required by municipal ordinance).
[167] Gibson, 372 U.S. at 546, 83 S.Ct. 889; Bates, 361 U.S. at 524, 80 S.Ct. 412.
[168] The NSL itself asks the recipient to provide the Government with "[a]ny other information which you consider to be an electronic communication transactional record," Compl. Attach. A (emphasis added), in addition to information that § 2709 specifically authorizes the FBI to collect, including "the name, address, and length of service of a person or entity." 18 U.S.C. § 2709(b)(2).
[169] See Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (holding that installing a pen register does not violate the Fourth Amendment rights of phone customers); United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) (holding that a bank customer does not have any Fourth Amendment protection against the Government obtaining financial records maintained by a bank).
[170] See, e.g., Doe v. 2TheMart.Com Inc., 140 F.Supp.2d 1088, 1092 (W.D.Wash.2001) ("The right to speak anonymously extends to speech via the Internet."); Columbia Ins. Co. v. Seescandy.Com, 185 F.R.D. 573, 578 (N.D.Cal.1999) (holding that there is a "legitimate and valuable right to participate in online forums anonymously and pseudonymously"); see also id. at 578-79 (establishing circumstances under which a plaintiff may compel disclosure of anonymous internet users' identities where users had allegedly committed tortious acts over the internet); Sony Music Entm't v. Does 1-40, 326 F.Supp.2d 556 (S.D.N.Y.2004) (holding that plaintiff could overcome anonymous internet users' First Amendment right to anonymity, asserted in anonymous users' motion to quash plaintiff's subpoena served on users' ISP, where evidence suggested that users had illegally downloaded plaintiff's music via the ISP's internet service).
[171] Courts have, however, extended the reasoning of Smith and Miller to conclude that internet users have noFourth Amendment right to prohibit disclosure of information they have voluntarily turned over to ISPs. See, e.g.,Guest v. Leis, 255 F.3d 325, 336 (6th Cir.2001) (holding that "plaintiffs ... lack a Fourth Amendment privacy interest in their subscriber information because they communicated it to the systems operators"); United States v. Kennedy, 81 F.Supp.2d 1103, 1110 (D.Kan.2000) (holding that defendant could not "claim to have a Fourth Amendment privacy interest in his subscriber information" because "[w]hen defendant entered into an agreement with Road Runner for Internet service, he knowing[ly] revealed" the information to his ISP).
[172] Red Lion Broad. Co. v. Federal Communications Comm'n, 395 U.S. 367, 386, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969).
[173] 18 U.S.C. § 2709(a).
[174] See id. § 2709(b).
[175] NSLs can potentially reveal far more than constitutionally-protected associational activity or anonymous speech. By revealing the websites one visits, the Government can learn, among many other potential examples, what books the subscriber enjoys reading or where a subscriber shops. As one commentator has observed, the records compiled by ISPs can "enable the government to assemble a profile of an individual's finances, health, psychology, beliefs, politics, interests, and lifestyle." Daniel J. Solove, Digital Dossiers and the Dissipation of Fourth Amendment Privacy, 75 S. Cal. L.Rev. 1083, 1084 (2002).
[176] Compl. Attach. A.
[177] Smith, 442 U.S. at 741, 99 S.Ct. 2577 (quoting United States v. New York Tel. Co., 434 U.S. 159, 167, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977)).
[178] 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
[179] See id. at 353, 88 S.Ct. 507.
[180] Id.
[181] Id. at 352, 88 S.Ct. 507.
[182] Id.

[183] Gov't Mem. of Law at 31.
[184] 18 U.S.C. § 2709(c).
[185] United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000)(applying strict scrutiny to a content-based restriction); see also R.A.V. v. City of St. Paul, 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) ("Content-based regulations are presumptively invalid,"); Bantam Books, 372 U.S. at 70, 83 S.Ct. 631 (holding that prior restraints on speech bear a "heavy presumption" against constitutionality).
[186] See Reno v. ACLU, 521 U.S. 844, 874, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997).
[187] Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 189, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997).
[188] For this reason, the Court does not address Plaintiffs' other grounds for asserting that § 2709(c) is subject to strict scrutiny.
[189] Ward v. Rock Against Racism, 491 U.S. 781, 795 n. 5, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (emphasis omitted).
[190] Gov't Br. at 50.
[191] 44 F.3d 106 (2d Cir.1994).
[192] Id. at 109.
[193] City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48-49, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986) (quotingPolice Dep't of Chicago v. Mosley, 408 U.S. 92, 95-96, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972)).
[194] Ward, 491 U.S. at 791, 109 S.Ct. 2746.
[195] Mosley, 408 U.S. at 96, 92 S.Ct. 2286.
[196] See Consolidated Edison Co. of New York, Inc. v. Public Serv. Comm'n, 447 U.S. 530, 537, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980).
[197] Id.
[198] Id.
[199] Playboy Entm't Group, 529 U.S. at 813, 120 S.Ct. 1878.
[200] Reno v. ACLU, 521 U.S. at 874, 117 S.Ct. 2329.
[201] See NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963).
[202] Department of the Navy v. Egan, 484 U.S. 518, 527, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988).
[203] See 18 U.S.C. § 2709(c).
[204] 18 U.S.C. § 2709(c) (emphasis added).
[205] See 18 U.S.C. § 3123(d)(2) (pertaining to criminal investigations); 50 U.S.C. § 1842(d)(2)(B)(ii)(I) (pertaining to international terrorism and counterintelligence investigations).
[206] See 18 U.S.C. § 2511(2)(a)(ii).

[207] 50 U.S.C. § 1861(d).
[208] Certain FISA electronic surveillance orders may be obtained where the Attorney General merely certifies that the proposed surveillance meets the statutory requirements. See 50 U.S.C. § 1802(a)(1). In such cases, the blanket secrecy rule would be triggered without any court involvement, much like § 2709(c). By way of some perhaps justifying distinction, the FISA orders are specifically limited to electronic surveillance of foreign governments and their agents, thus arguably not raising the heightened constitutional concerns and protections implicated when investigations involve the activities of United States nationals.
[209] See 18 U.S.C. § 2511 (wiretaps and electronic surveillance); 18 U.S.C. § 3123 (pen registers in criminal investigations); 50 U.S.C. § 1842 (pen registers in international terrorism and counterintelligence investigations); 50 U.S.C. § 1861 (FISA subpoenas).
[210] In fact, the pen register and trap and trace device statutes appear to specifically contemplate that a court could modify the secrecy requirement. See 18 U.S.C. § 3123(d)(2) (stating that the communications firm shall "not disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber, or to any other person, unless or until otherwise ordered by the court") (emphasis added); 50 U.S.C. § 1842(d)(2)(B)(ii)(I) (stating that the communications firm "shall not disclose the existence of the investigation or of the pen register or trap and trace device to any person unless or until ordered by the court") (emphasis added).
[211] See supra Part II.D.7 (discussing the FISA's requirements that any surveillance sought under the chapter be clearly connected to foreign intelligence gathering activities).
[212] See supra Part II.C (explaining the steady expansion of the scope of § 2709 NSL authority since the statute was passed in 1986, culminating in the removal of any required nexus between the information sought by a § 2709 NSL and a "foreign power.")
[213] 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984).
[214] Id. at 32, 104 S.Ct. 2199.
[215] Id. at 34, 104 S.Ct. 2199.
[216] 494 U.S. 624, 110 S.Ct. 1376, 108 L.Ed.2d 572 (1990).
[217] Id. at 626, 110 S.Ct. 1376.
[218] See id. at 632-34, 110 S.Ct. 1376.
[219] Id. at 635, 110 S.Ct. 1376.
[220] Id. (quotation marks omitted).
[221] Id. at 636, 110 S.Ct. 1376.
[222] Id. at 632, 110 S.Ct. 1376.
[223] Id. at 633, 110 S.Ct. 1376 (emphasis in original).
[224] Id. at 636, 110 S.Ct. 1376 (Scalia, J., concurring).
[225] Id.
[226] Id.
[227] See 44 F.3d at 110-11.

[228] Id. at 110 (emphasis in original).
[229] See id. at 110-11.
[230] Id. at 111. The District Court had found that the secrecy rules advanced compelling state interests because they
(1) allowed the [reviewing body] to dispose of frivolous or harassing complaints without lending them credibility; (2) enhanced Connecticut's ability to attract highly qualified judges who might otherwise be deterred from service by the prospect of numerous public complaints being lodged against them; (3) ensured the independence of Connecticut's judiciary by reducing the possibility that judges would be intimidated or influenced by belligerent complainants; (4) encouraged complaints, assistance in investigations, and complete and truthful testimony; (5) allowed the [reviewing body] to informally encourage infirm or incompetent judge to retire prior to a public hearing; and (6) increased the ability of attorneys to monitor the judicial system without engendering the hostility of the judiciary.
Kamasinski, 44 F.3d at 108-09 (citing Kamasinski v. Judicial Review Council, 797 F.Supp. 1083, 1092-93 (D.Conn.1992)).
[231] See First Amendment Coalition v. Judicial Inquiry & Review Bd., 784 F.2d 467 (3d Cir.1986) (en banc).
[232] Id. at 479.
[233] See 338 F.3d 1136 (10th Cir.2003).
[234] Id. at 1139.
[235] Id. at 1140.
[236] Butterworth, 494 U.S. at 636, 110 S.Ct. 1376 (Scalia, J., concurring),
[237] Rhinehart, 467 U.S. at 32, 104 S.Ct. 2199.
[238] In re Halkin, 598 F.2d 176, 206 (D.C.Cir.1979) (Wilkey, J., dissenting) overruled by Rhinehart, 467 U.S. at 32, 104 S.Ct. 2199 (citing Halkin dissent with approval).
[239] 338 F.3d at 1140.
[240] See 44 F.3d at 112.
[241] See, e.g., Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (establishing a presumption of public access to federal agency information subject to limited exceptions); Environmental Protection Agency v. Mink, 410 U.S. 73, 80, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973) ("Without question, [FOIA] is broadly conceived. It seeks to permit access to official information long shielded unnecessarily from public view and attempts to create a judicially enforceable public right to secure such information from possibly unwilling official hands."); United States v. Aguilar,515 U.S. 593, 604 n. 3, 115 S.Ct. 2357, 132 L.Ed.2d 520 (1995) (stating that the Court would read a temporal limitation into a statute punishing disclosure of secret wiretaps in order to avoid "absurd" results); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 572, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) ("People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.").
[242] FOIA itself arose, and was expanded upon, as a result of the nation's distressing experiences with excessive government secrecy. FOIA's 1974 amendments, for example, were adopted after the Watergate break-in, and the cover-up that was allowed to prevail for many months after it occurred, revealed the dangers of allowing any branch of government the unfettered ability to adopt a per se rule protecting information from the public eye. See, e.g., Ray v. Turner, 587 F.2d 1187, 1206-09 (D.C.Cir.1978) (Skelly Wright, J., concurring) (discussing the legislative history of the 1974 amendments to FOIA, and noting that the amendments, which were passed over Presidential veto, were borne out of the nation's experience with Watergate). The recognition that excessive secrecy may damage democratic values is widespread. See, e.g., New York Times Co. v. United States, 403 U.S. 713, 719, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (Black, J., concurring) ("The word `security' is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic. The Framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of the English and Colonial Governments, sought to give this new society strength and security

by providing that freedom of speech, press, religion, and assembly should not be abridged."); Detroit Free Press v. Ashcroft,303 F.3d 681, 683 (6th Cir.2002) ("Democracies die behind closed doors."); National Wildlife Federation v. U.S. Forest Service, 861 F.2d 1114, 1124 (9th Cir.1988) (Pregerson, J., concurring) ("We should all bear in mind that secret government is abhorrent to democratic values.").
[243] Reno v. ACLU, 521 U.S. at 874, 117 S.Ct. 2329.
[244] See H.R. 3037, 108th Cong. § 3 (1st Sess.2003); S. 2555 § 2 (2d Sess.2004).
[245] See H.R. 3037, 108th Cong. § 3 (1st Sess.2003); S. 2555 § 2 (2d Sess.2004).
[246] The Court does not intend to imply that the provisions of H.R. 3037 or S. 2555 establish any constitutional standard. Rather, the Court merely suggests that there are ways to confront the problems in § 2709(c). To echo the Supreme Court: "How or whether [the Government] is to incorporate the required procedural safeguards in the statutory scheme is, of course, for the [Government] to decide. But a model is not lacking." Freedman v. State of Md., 380 U.S. 51, 60, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965).
[247] See Playboy Entm't Group, 529 U.S. at 816, 120 S.Ct. 1878.
[248] Id.
[249] Cf. Button, 371 U.S. at 438, 83 S.Ct. 328 ("Broad prophylactic rules in the area of free expression are suspect."). The Government also argues that the rule survives strict scrutiny because individuals could mount as-applied challenges to the categorical speech ban's constitutionality, but the Court declines to view this theoretical possibility as a means of saving the statute's constitutionality when all sides agree that Congress intended a permanent, prophylactic ban on speech, and where First Amendment doctrine governing prophylactic speech bans views the bans themselves as suspect, regardless of their application to a theoretical case.
[250] See United States v. U.S. Dist. Court., 407 U.S. 297, 322, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972).
[251] See H.R. Conf. Rep. 104-427, at 35-36 (1995), reprinted in 1995 U.S.C.C.A.N. 983, 997-98 ("Many counterintelligence investigations never reach the criminal stage but proceed for intelligence purposes or are handled in diplomatic channels.") (pertaining to NSL statute for credit records).
[252] The Court observes here that the distinction invariably between international terrorism and counterintelligence operations on one hand, and criminal investigations on the other, is not always as sharp as the Government contends. Terrorism cases, for example, are sometimes prosecuted under federal criminal laws in federal courts. In those cases, the Government's investigations must take place with all the attendant openness rules governing the criminal process. Moreover, there are undoubtedly elaborate and long-term criminal conspiracies — espionage and international drug rings, for example — which do not necessarily carry out terrorism as such. Investigating those criminal conspiracies would likely involve highly-sensitive investigative methods, and would implicate secrecy concerns similar to those characteristic of an international terrorism investigation.
[253] CIA v. Sims, 471 U.S. 159, 178, 105 S.Ct. 1881, 85 L.Ed.2d 173 (1985) (quotation marks, citation, and alterations omitted).
[254] See North Jersey Media Group, Inc. v. Ashcroft, 308 F.3d 198, 219 (3d Cir.2002) (agreeing with Government's contention that, "given judges' relative lack of expertise regarding national security and their inability to see the mosaic, [judges] should not entrust to them[selves] the decision whether an isolated fact is sensitive enough to warrant closure")
[255] United States v. Yunis, 867 F.2d 617, 623 (D.C.Cir.1989).
[256] Zadvydas v. Davis, 533 U.S. 678, 696, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001); Egan, 484 U.S. at 530, 108 S.Ct. 818 ("[C]ourts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.") Of course, a court should not embrace these principles to the point of abdicating its constitutional duties. As the Sixth Circuit accurately observed, the Government's invocation of executive deference may have profound implications if adopted without reservation:

The Government could use its `mosaic intelligence' argument as a justification to close any public hearing completely and categorically, including criminal proceedings. The Government could operate in virtual secrecy in all matters dealing, even remotely with `national security,' resulting in a wholesale suspension of First Amendment rights.
Detroit Free Press v. Ashcroft, 303 F.3d 681, 709 (6th Cir.2002).
[257] Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 803 n. 22, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984) (emphasis added).
[258] Detroit Free Press, 303 F.3d at 692-93.
[259] Id.
[260] R.A.V., 505 U.S. at 382, 112 S.Ct. 2538 (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942)).
[261] Because the Court determines that § 2709(c) is invalid for the reasons discussed above, the Court declines to address Plaintiffs' additional contention that § 2709(c) is unconstitutionally vague and overbroad.
[262] See, e.g., Denver Area Educ. Telecomm. Consortium, Inc. v. F.C.C., 518 U.S. 727, 767, 116 S.Ct. 2374, 135 L.Ed.2d 888 (1996) (engaging in severability analysis after concluding that a provision of a statute violated the First Amendment).
[263] Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 191, 119 S.Ct. 1187, 143 L.Ed.2d 270 (1999).
[264] "[A] court should refrain from invalidating more of the statute than is necessary.... `[W]henever an act of Congress contains unobjectionable provisions separable from those found to be unconstitutional, it is the duty of this court to so declare, and to maintain the act in so far as it is valid.'" Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684, 107 S.Ct. 1476, 94 L.Ed.2d 661 (1987) (quoting Regan v. Time, Inc., 468 U.S. 641, 652, 104 S.Ct. 3262, 82 L.Ed.2d 487 (1984) (plurality opinion)).
[265] Buckley v. Valeo, 424 U.S. 1, 108, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (quoting Champlin Refining Co. v. Corporation Comm'n, 286 U.S. 210, 234, 52 S.Ct. 559, 76 L.Ed. 1062 (1932)).
[266] Alaska Airlines, 480 U.S. at 684, 107 S.Ct. 1476.
[267] At a conference with the parties on September 10, 2004, in preparation for drafting this opinion, the Court advised the parties of the practical difficulties of maintaining the broad scope of the seal order in light of the Court's need to openly discuss all the relevant facts and its inability to elide vital information in a coherent ruling. The Government, following internal consultations, subsequently informed the Court and Plaintiffs that it would express no objection to a modification of the seal order to take account of the Court's concerns. Along related lines, Plaintiffs' motion to exclude the Government's ex parte affidavit, dated August 6, 2004, is rendered moot because the information presented in that affidavit has no bearing on the Court's judgment.
[268] Because the Court has granted Plaintiffs' motion for summary judgment on other grounds, the Court declines to address Plaintiffs' alternative argument that the statute violates the Fifth Amendment by failing to provide notice to persons to whom the records pertain.

 
 640  F.Supp.2d  517  (2009)
John  DOE  and  American  Civil  Liberties  Union,  Plaintiffs,
v.
Eric  HOLDER,  in  his  official  capacity  as  Attorney  General  of  the  United  States et  al.,  Defendants.
No.  04  Civ.  2614(VM). United  States  District  Court,  S.D.  New  York.
August  5,  2009. Ann  Beeson,  Arthur  Nelson  Eisenberg,  New  York  Civil  Liberties  Union,  Jameel  Jaffer,  Melissa Goodman,  Sharon  M.  518*518  McGowan,  American  Civil  Liberties  Union  Foundation,  New  York, NY,  for  Plaintiffs. Meredith  Eve  Kotler,  Wilson  Sonsini  Goodrich  &  Rosati,  Jeffrey  Stuart  Oestericher,  U.S. Attorney's  Office,  Ronald  Marc  Daignault,  Jenner  &  Block  LLP,  New  York,  NY,  for  Defendants.
DECISION  AND  ORDER
VICTOR  MARRERO,  District  Judge. Following  remand  of  this  matter  from  the  Second  Circuit  Court  of  Appeals,[1]defendants  (the "Government")  made  an  ex  parte,  in  camera  filing  under  seal  consisting  of  a  classified  sworn Declaration  dated  June  16,  2009  (the  "Declaration"),[2]made  by  a  Supervisory  Special  Agent  of the  Federal  Bureau  of  Investigation  ("FBI")  located  at  the  FBI  Headquarters.  The  Declaration  was submitted  in  support  of  the  Government's  assertion  that  a  continuing  need  exists  for non-­disclosure  of  the  National  Security  Letter  (the  "NSL")  at  issue  in  this  litigation.  Plaintiffs  ACLU and  John  Doe  (collectively,  "Plaintiffs")  filed  a  motion  seeking  disclosure  of  the  Declaration  or,  in the  alternative,  for  an  unclassified  summary  of  the  Declaration.  The  Court  held  a  telephone conference  with  the  parties  on  July  15,  2009,  during  which  Plaintiffs  consented  to  the  Court scheduling  an  ex  parte  conference  with  the  Government  to  discuss  the  Declaration  and  the Court's  in  camera  review  of  it. Following  an  in  camera  review  of  the  Declaration,  the  Court  held  an  ex  parte  conference  with  the Government  on  July  22,  2009.  Present  were  representatives  of  the  United  States  Attorney's

Office  and  of  the  FBI  who  have  knowledge  of  the  matters  involved  the  underlying  litigation  and  the issues  still  in  dispute. The  Court  questioned  the  Government's  representatives  about  the  security,  law  enforcement and/or  good  faith  basis  for  the  classifications  assigned  to  various  paragraphs  of  the  Declaration, and  about  the  Government's  arguments  in  favor  of  non-­disclosure  of  the  Declaration  to  the Plaintiffs.  On  the  basis  of  its  review,  and  the  satisfactory  explanations  presented  by  the Government  to  the  Court's  inquiries,  the  Court  is  persuaded  that  the  Declaration  describes  an ongoing  authorized  investigation  to  protect  against  international  terrorism  or  clandestine intelligence  activities,  18  U.S.C.  §  2709(b),  that  disclosure  of  the  Declaration  may  result  in  an enumerated  harm  as  defined  in  18  U.S.C.  §  2709(c)(1),  and  therefore  the  Government  has proffered  sufficient  grounds  to  support  a  finding  that  the  Declaration  in  its  entirety  should  not  be disclosed  to  Plaintiffs  at  this  time. In  accordance  with  the  Court's  request  at  the  ex  parte  conference,  the  Government  submitted  to the  Court,  ex  parte,  in  camera,  an  unclassified  summary  and  a  redacted  version  of  the Declaration  and  a  deletion  code  key  explaining  the  justifications  for  each  of  the  redactions.
ORDER
For  the  reasons  stated  above,  it  is  hereby ORDERED  that  motion  (Docket  No.  168)  of  plaintiffs  herein  for  an  order  directing  disclosure  of  a declaration  dated  June  16,  2009  (the  "Declaration")  filed  ex  parte,  in  camera  and  under  seal  by defendants  (the  "Government")  on  June  17,  2009  containing  classified  information  relating  to  this action,  or  in  the  alternative,  for  an  519*519unclassified  summary  of  the  Declaration,  is  granted  in part  and  denied  in  part;;  and  it  is  hereby ORDERED  that  the  Government  disclose  to  plaintiffs  the  unclassified  summary  and  redacted version  of  the  Declaration  and  the  deletion  key  submitted  to  the  Court  by  the  Government  by letter  dated  August  3,  2009. SO  ORDERED.
[1]  The  Circuit  Court's  decision  is  reported  as  Doe  v.  Mukasey,  549  F.3d  861  (2d  Cir.2008). [2]  The  Declaration  was  filed  with  the  Court's  Security  Officer  or  Designee.  The  Court's  only  copy  of  the  Declaration  is  stored  in the  Court's  secure  room  with  access  to  it  limited  to  persons  granted  appropriate  security  clearance.

 
 665  F.Supp.2d  426  (2009)
John  DOE,  American  Civil  Liberties  Union,  and  American  Civil  Liberties  Union Foundation,  Plaintiffs,
v.
Eric  HOLDER,  in  his  official  capacity  as  Attorney  General  of  the  United  States et  al.,  Defendants.
No.  04  Civ.  2614(VM). United  States  District  Court,  S.D.  New  York.
October  20,  2009. 428*428  Jameel  Jaffer,  Arthur  Nelson  Eisenberg,  Sharon  M.  McGowan,  Ann  Beeson,  American Civil  Liberties  Union  Foundation,  New  York,  NY,  for  Plaintiffs. Meredith  Eve  Kotler,  Wilson  Sonsini  Goodrich  &  Rosati,  Jeffrey  Stuart  Oestericher,  U.S. Attorney's  Office,  Ronald  Marc  Daignault,  Jenner  &  Block  LLP,  New  York,  NY,  for  Defendants.
DECISION  AND  ORDER
VICTOR  MARRERO,  District  Judge. Plaintiffs  John  Doe  ("Doe"),  the  American  Civil  Liberties  Union  and  the  American  Civil  Liberties Union  Foundation  (collectively,  "Plaintiffs")  filed  a  motion  for  partial  summary  judgment  under Federal  Rule  of  Civil  Procedure  56  ("Rule  56")  seeking  a  declaratory  judgment  that  the nondisclosure  provisions  of  18  U.S.C.  §  2709(c)  and  §  3511(b)  are  unconstitutional  on  their  face and  as  applied.  Defendants  Alberto  Gonzales,[1]  Robert  Mueller,  and  Valerie  E.  Caproni (collectively,  the  "Government")  cross-­moved  for  dismissal  of  the  complaint  or,  in  the  alternative, summary  judgment. By  Decision  and  Order  dated  September  6,  2007,[2]  this  Court  granted  in  part  and  denied  in  part Plaintiffs'  motion  for  summary  judgment,  and  denied  the  Government's  cross-­motion  for dismissal  or  summary  judgment.  The  Government  appealed  and  the  Second  Circuit  Court  of Appeals,  by  order  of  December  15,  2008,[3]  affirmed  in  part,  reversed  in  part,  and  remanded  for further  proceedings.  On  remand,  this  Court  will  reconsider  the  parties'  cross-­motions  in  light  of the  Second  Circuit's  decision.

The  discrete  issue  presently  before  this  Court  is  whether  the  Government  is  justified  in continuing  to  require  nondisclosure  of  a  National  Security  Letter  ("NSL")  issued  to  Doe.  Following remand,  the  Government  submitted  an  ex  parte,  in  camera  filing  under  seal,  consisting  of  a classified  sworn  Declaration  (the  "Declaration"),[4]  429*429  dated  June  16,  2009,  made  by  a Supervisory  Special  Agent  of  the  Federal  Bureau  of  Investigation  ("FBI").  The  Declaration  was submitted  in  support  of  the  Government's  assertion  that  a  continuing  need  exists  for nondisclosure  of  the  NSL  issued  to  Doe.  By  Order  dated  August  5,  2009,  this  Court  directed  the Government  to  disclose  to  Plaintiffs  an  unclassified  summary  and  redacted  version  of  the Declaration.  The  parties  then  filed  submissions  in  support  of  and  in  opposition  to  continuation  of the  NSL  nondisclosure  requirement.  For  the  reasons  discussed  below,  the  Government's  motion for  summary  judgment  is  GRANTED  in  part  and  the  Plaintiffs'  motion  for  partial  summary judgment  is  DENIED  in  part.  The  Court  finds  that  the  Government  has  carried  its  burden  and  that continuation  of  the  nondisclosure  requirement  imposed  on  Plaintiffs  is  justified.
I.  BACKGROUND
A.  FACTUAL  BACKGROUND
The  Second  Circuit's  decision  in  John  Doe,  Inc.  sets  forth  all  of  the  relevant  facts,  familiarity  with which  is  assumed.  See  549  F.3d  at  864-­70.  As  described  by  the  Second  Circuit,  in  February 2004  the  FBI  delivered  the  NSL  at  issue  to  Doe.  The  NSL  directed  Doe  "to  provide  the  [FBI]  the names,  addresses,  lengths  of  service  and  electronic  communication  transactional  records  ...  for [a  specific]  email  address."  The  letter  certified  that  the  information  sought  was  relevant  to  an authorized  investigation  to  protect  against  international  terrorism  or  clandestine  intelligence activities  and  advised  Doe  that  the  law  prohibits  disclosure  "to  any  person  that  the  FBI  has sought  or  obtained  access  to  information  or  records  under  these  provisions."  (Declaration  of Melissa  Goodman,  dated  August  21,  2009,  Ex.  B.)  Attached  to  the  letter  was  a  list  of  information ("NSL  Attachment")  that  Doe  was  required  to  disclose  to  the  Government.
B.  PROCEDURAL  HISTORY
Plaintiffs  initially  brought  this  case  in  2004,  challenging  the  constitutionality  of  18  U.S.C.  §  2709 ("§  2709"),  amended  by  the  USA  Patriot  Act  (the  "Patriot  Act"),  Pub.L.  No.  107-­56,  115  Stat.  272 (Oct.  26,  2001).  Section  2709  was  originally  enacted  as  part  of  Title  II  of  the  Electronic

Communication  Privacy  Act  of  1986,  Pub.L.  No.  99-­508,  §  201,  100  Stat.  1848,  1867-­68  (1986), and  governs  the  issuance  of  NSLs  by  the  FBI  to  wire  and  electronic  communication  service providers.  Subsection  2709(c),  as  it  existed  in  2004,  imposed  a  nondisclosure  requirement prohibiting  electronic  communication  service  providers  from  revealing  receipt  of  an  NSL. In  Doe  v.  Ashcroft,  334  F.Supp.2d  471,  511-­25  (S.D.N.Y.2004)  ("Doe  I"),  this  Court  ruled  that  § 2709  was  unconstitutional  on  its  face,  and  that  the  nondisclosure  requirement  of  §  2709(c)  was unconstitutional  under  the  First  Amendment  as  an  unjustified  prior  restraint  and  content-­based restriction  on  speech.  While  the  Government's  appeal  of  Doe  I  was  pending,  Congress amended  §  2709(c)  to  require  nondisclosure  only  upon  certification  by  senior  FBI  officials  that "otherwise  there  may  result  a  danger  to  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."  See  USA  Patriot  Improvement and  Reauthorization  Act  of  2005,  §§  115,  116(a),  Pub.L.  No.  109-­177,  120  Stat.  192,  211-­14 (Mar.  9,  2006)  (the  "Reauthorization  Act").  In  the  Reauthorization  Act,  Congress  also  added several  provisions,  codified  at  18  U.S.C.  §  3511  ("§  3511"),  relating  to  judicial  review  of  NSLs  and NSL  nondisclosure  430*430requirements.[5]  The  Second  Circuit  remanded  the  case  to  this  Court for  reconsideration  in  light  of  these  amendments. Following  subsequent  cross-­motions  for  summary  judgment,  on  September  6,  2  007,  in  Doe  v. Gonzales  ("Doe  II"),  this  Court  ruled  that  §  2709(c)  is  not  narrowly  tailored  in  scope  or  duration and  thus  violates  the  First  Amendment,  and  that  §  3511  violates  the  constitutional  principles  of checks  and  balances  and  separation  of  powers.  See  500  F.Supp.2d  379,  419-­25 (S.D.N.Y.2007).  On  appeal  of  this  Court's  decision  in  Doe  II,the  Second  Circuit  determined  that §§  2709  and  3511  (collectively,  the  "NSL  statutes")  could  pass  constitutional  muster  if  certain procedural  requirements  were  met.  SeeJohn  Doe,  Inc.,  549  F.3d  at  883-­85.  The  Second  Circuit thus  remanded  the  case  to  this  Court  for  review  of  the  nondisclosure  requirement  as  applied  to Doe.
C.  SECOND  CIRCUIT  DECISION
In  John  Doe,  Inc.  the  Second  Circuit  set  forth  the  standard  for  judicial  review  of  an  NSL nondisclosure  requirement.  The  Circuit  Court,  interpreting  the  NSL  statutes  in  light  of  the  need  to balance  Executive  Branch  discretion  regarding  national  security  with  First  Amendment  interests, found  that  courts  should  uphold  a  nondisclosure  requirement  only  upon  an  an  "adequate demonstration"  by  the  Government  that  "a  good  reason  exists  reasonably  to  apprehend  a  risk  of

an  enumerated  harm...  linked  to  international  terror  or  clandestine  intelligence  activities."  Id.  at 882. The  Second  Circuit  declined  to  categorize  nondisclosure  requirements  as  prior  restraints  or content-­based  restrictions  on  speech,  but  found  that  §  2709(c)  implicates  First  Amendment interests  because  it  is  a  restraint  on  expression  conditioned  on  governmental  permission.  Id.  at 876-­78.  Subsection  2709(c)  provides  that  the  recipient  of  an  NSL  is  prohibited  from  disclosing  "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."  Where expression  is  conditioned  on  governmental  permission,  the  Supreme  Court  has  established three  procedural  safeguards:  (1)  any  restraint  imposed  prior  to  judicial  review  must  be  limited  to "a  specified  brief  period";;  (2)  any  further  restraint  prior  to  a  final  judicial  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.  See  Freedman  v.  Maryland,  380  U.S.  51,  58-­59,  85  S.Ct.  734,  13  L.Ed.2d  649 (1965);;  John  Doe,  Inc.,549  F.3d  at  871  (citing  FW/PBS,  Inc.  v.  City  of  Dallas,  493  U.S.  215,  227, 110  S.Ct.  596,  107  L.Ed.2d  603  (1990)). To  satisfy  the  procedural  safeguards  required  by  the  First  Amendment,  the  Second  Circuit established  a  two-­step  process  for  judicial  review  of  NSL  nondisclosure  requirements:  (1)  the Government  must  initiate  review  by  a  district  court  of  the  lawfulness  of  a  nondisclosure requirement;;[6]  and  (2)  the  Government  has  the  431*431burden  of  showing  a  "good  reason"  to believe  that  disclosure  may  result  in  a  harm  related  to  an  authorized  investigation  to  protect against  international  terrorism  or  clandestine  intelligence  activities.  John  Doe,  Inc.,  549  F.3d  at 881.  To  demonstrate  a  "good  reason,"  the  Government  must  "provide  a  court  with  some  basis  to assure  itself  (based  on  in  camera  presentations  where  appropriate)  that  the  link  between disclosure  and  risk  of  harm  is  substantial."  To  satisfy  its  burden,  the  Government  must  provide more  than  a  conclusory  assurance  that  a  likelihood  of  harm  exists.  Id. The  Second  Circuit  limited  the  types  of  harm  upon  which  the  Government  can  rely  to  justify  an NSL  nondisclosure  requirement.  Subsection  3511(b)(2)  authorizes  district  courts  to  modify  or set  aside  a  nondisclosure  order  "if  it  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."  However,  after  John  Doe,  Inc.,  to  uphold  a  nondisclosure  order,  a district  court  must  find  that  "disclosure  may  result  in  an  enumerated  harm  that  is  related  to  an

authorized  investigation  to  protect  against  international  terrorism  or  clandestine  intelligence activities."  Id.  at  875.
D.  PARTIES'  CONTENTIONS
The  Government  contends  that  its  Declaration  "demonstrates  that  a  danger  to  the  national security,  as  well  as  interference  with  a  criminal,  counterterrorism,  or  counterintelligence investigation,  could  easily  result  from  disclosure  of  the  NSL."  (Memorandum  of  Law  in Opposition  to  Plaintiffs'  Motion  to  Lift  the  Nondisclosure  Requirement  of  the  National  Security Letter  (the  "Government  Memo"),  dated  September  11,  2009,  at  3).  The  Government's arguments  are  further  elaborated  upon  in  its  classified  Declaration,  and  thus  largely  cannot  be detailed  here.  The  Declaration  provides  information  on  the  underlying  investigation,  the  contents of  the  challenged  NSL,  and  the  Government's  argument  regarding  why  disclosure  of  the  NSL could  tip  off  the  target  of  an  ongoing  investigation  as  well  as  other  individuals  who  are  under investigation.  (Unclassified  Summary  of  Classified  FBI  Declaration  ("Unclassified  Declaration"), dated  July  29,  2009.) Plaintiffs  contend  that  the  Government  has  failed  to  justify  continuation  of  the  nondisclosure order.  Relying  on  the  Government's  Unclassified  Declaration,  Plaintiffs  argue  that  the Government  has  not  carried  its  burden  of  showing  that  the  link  between  disclosure  and  risk  of harm  is  substantial.  (Plaintiffs'  Memorandum  in  Opposition  to  Continuation  of  the  NSL  Gag  Order (the  "Pis.'  Mem."),  dated  August  21,  2009,  at  9).  In  support,  Plaintiffs  assert  that  disclosure  of  the NSL  would  reveal  nothing  about  the  scope  or  content  of  the  FBI's  years-­old  investigation.  Id. Alternatively,  Plaintiffs  contend  that  the  Government  has  failed  to  justify  continuation  of  the nondisclosure  order  as  to  John  Doe's  identity  as  an  NSL  recipient.  Plaintiffs  argue  that  even  if  the nondisclosure  order  should  not  be  lifted  entirely,  lifting  the  order  as  to  John  Doe's  identity  would provide  the  Government's  target  "with  limited  information  at  best."  Id.  at  11-­12. Lastly,  Plaintiffs  contend  that  the  Government  has  failed  to  carry  its  burden  as  to  continued nondisclosure  of  the  NSL  Attachment.  Plaintiffs  argue  that  the  NSL  Attachment,  which  set  out the  specific  categories  of  information  subject  to  disclosure432*432  by  Doe,  is  of  public  concern and  provides  "unique  and  concrete  evidence  of  the  FBI's  abuse  of  the  NSL  power."  (Pis.'  Mem. at  13-­14.)

II.  DISCUSSION
A.  LEGAL  STANDARD
In  connection  with  a  Rule  56  motion,  "[s]ummary  judgment  is  proper  if,  viewing  all  the  facts  of  the record  in  a  light  most  favorable  to  the  non-­moving  party,  no  genuine  issue  of  material  fact remains  for  adjudication."  Samuels  v.  Mockry,  77  F.3d  34,  35  (2d  Cir.1996)  (citing  Anderson  v. Liberty  Lobby,  Inc.,  477  U.S.  242,  247-­50,  106  S.Ct.  2505,  91  L.Ed.2d  202  (1986)).  The  role  of  a court  in  ruling  on  such  a  motion  "is  not  to  resolve  disputed  issues  of  fact  but  to  assess  whether there  are  any  factual  issues  to  be  tried,  while  resolving  ambiguities  and  drawing  reasonable inferences  against  the  moving  party."  Knight  v.  U.S.  Fire  Ins.  Co.,  804  F.2d  9,  11  (2d  Cir.1986). The  moving  party  bears  the  burden  of  proving  that  no  genuine  issue  of  material  fact  exists  or that,  due  to  the  paucity  of  evidence  presented  by  the  non-­movant,  no  rational  jury  could  find  in favor  of  the  non-­moving  party.  See  Gallo  v.  Prudential  Residential  Servs.,  L.P.,  22  F.3d  1219, 1223-­24  (2d  Cir.1994).
B.  NONDISCLOSURE  OF  THE  NSL
The  discrete  issue  before  this  Court  on  remand  is  whether  the  Government  is  justified,  pursuant to  §§  2709(c)  and  3511(b),  in  continuing  to  impose  a  nondisclosure  requirement  on  Plaintiffs  as to  the  NSL  at  issue.  On  the  basis  of  an  in  camera  review  of  the  Government's  classified Declaration,  this  Court  finds  that  there  is  no  genuine  issue  of  material  fact  as  to  whether  the Government's  justification  meets  the  standard  set  forth  by  the  Second  Circuit.  The  Court  is persuaded  that  the  Government  has  demonstrated  that  a  good  reason  exists  to  believe  that disclosure  may  result  in  a  harm  related  to  an  authorized  ongoing  investigation  to  protect  against international  terrorism  or  clandestine  intelligence  activities.  Also,  as  required  by  John  Doe,  Inc., the  Government  has  demonstrated  to  the  satisfaction  of  the  Court  that  the  link  between disclosure  and  the  risk  of  harm  is  substantial. Plaintiffs  contend  that  even  if  the  Government  can  satisfy  its  burden  as  to  non-­disclosure  of  the NSL,  there  is  no  continuing  need  for  non-­disclosure  of  John  Doe's  identity.  The  Court  disagrees. Plaintiffs'  contention  that  revealing  John  Doe's  identity  would  "add  only  the  most  marginal information  about  the  government's  investigation,"  (Pis.'  Memo  at  12),  is  not  persuasive.  The Court  finds,  on  the  basis  of  its  in  camera  inspection  of  the  Declaration,  that  there  is  a  reasonable

likelihood  that  knowledge  of  Doe's  identity  could  inform  the  Government's  target  that  he  or  she  is still  under  active  investigation.  This  result  would  be  even  more  likely  if  this  Court  were  to  partially lift  the  NSL's  nondisclosure  requirement.  The  outcome  of  such  a  course  would  be  to  identify  an active  investigation  as  requiring  continuing  nondisclosure  while  simultaneously  providing information  that  could  be  useful  to  the  Government's  target.  The  Supreme  Court,  in  upholding non-­disclosure  of  intelligence  information  by  the  Central  Intelligence  Agency  under  apposite circumstances,  has  cautioned  that  "bits  and  pieces"  of  data  "may  aid  in  piecing  together  bits  of other  information  even  when  the  individual  piece  is  not  of  obvious  importance  in  itself."  CIA  v. Sims,  471  U.S.  159,  178,  105  S.Ct.  1881,  85  L.Ed.2d  173  (1985).  The  Court  therefore  finds  that the  Government  has  carried  its  burden  as  to  the  nondisclosure  of  Doe's  identity. Finally,  Plaintiffs  seek  disclosure  of  the  NSL  Attachment,  arguing  that  it  demonstrates  abuse  of the  FBI's  NSL  power  and  433*433  is  a  matter  of  public  concern.  The  Government  opposes  this request  on  the  grounds  that  disclosure  of  the  NSL  Attachment  is  being  raised  for  the  first  time  in this  litigation  and  is  not  within  the  scope  of  the  present  proceeding.  (Government  Memo  at  7.)  For the  purposes  of  this  motion,  the  Court  treats  the  NSL  Attachment  as  part  of  the  NSL  issued  to Doe  and  thus  denies  Plaintiffs'  motion  to  lift  the  nondisclosure  requirement  as  to  the  NSL Attachment.  Plaintiff  has  not  identified  any  authority  to  support  its  contention  that  the  NSL Attachment  should  be  considered  separately.  Nor  does  the  Court  find  any  reason  to disaggregate  the  NSL  into  component  parts.
C.  FIRST  AMENDMENT
The  Court  notes  that  this  ruling  does  not  constitute  a  permanent  bar  on  the  NSL's  disclosure. See  John  Doe,  Inc.,  549  F.3d  at  883-­84  (stating  that  NSL  nondisclosure  requirement  is  subject to  annual  challenges  as  provided  by  §  3511(b));;  Doe  v.  Gonzales,  449  F.3d  415,  422  (2d  Cir. 2006)  ("A  permanent  ban  on  speech  seems  highly  unlikely  to  survive  the  test  of  strict  scrutiny, one  where  the  government  must  show  that  the  statute  is  narrowly  tailored  to  meet  a  compelling government  interest.")  (Cardamone,  J.,  concurring)  (citing  Ashcroft  v.  ACLU,  542  U.S.  656, 665-­66,  124  S.Ct.  2783,  159  L.Ed.2d  690  (2004)).  As  articulated  by  the  Second  Circuit  in  John Doe,  Inc.,and  previously  by  this  Court  in  Doe  I  and  Doe  II,  NSL  non-­disclosure  orders  implicate First  Amendment  interests  fundamental  to  our  Constitution.  The  First  Amendment  requires  that  a nondisclosure  order  be  maintained  only  as  long  as  it  is  "narrowly  tailored  to  promote  a compelling  Government  interest,"  John  Doe,  Inc.  549  F.3d  at  878(quoting  United  States  v. Playboy  Entm't  Group,  529  U.S.  803,  813,  120  S.Ct.  1878,  146  L.Ed.2d  865  (2000)),  and  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."[7]  Id.  (quoting  Reno  v.  ACLU,  521  U.S. 844,  874,  117  S.Ct.  2329,  138  L.Ed.2d  874  (1997)).  Subsection  3511(b)  provides  that  NSL recipients  can  challenge  the  nondisclosure  requirement  annually.  Plaintiffs  therefore  possess  the right  to  challenge  the  nondisclosure  order  again  in  the  future  if  it  remains  necessary  to  do  so.  As provided  by  the  Second  Circuit,  in  the  event  subsequent  challenges  are  raised,  the  standards and  burden  of  proof  articulated  in  John  Doe,  Inc.  will  apply.  See  549  F.3d  at  883-­84.
III.  ORDER
For  the  reasons  stated  above,  it  is  hereby ORDERED  that  motion  (Docket  No.  178)  of  plaintiffs  John  Doe  ("Doe"),  the  American  Civil Liberties  Union,  and  the  American  Civil  Liberties  Union  Foundation  (collectively,  "Plaintiffs")  to  lift the  nondisclosure  requirement  of  the  National  Security  Letter  issued  to  Doe  is  DENIED. Defendants  Eric  Holder,  in  his  official  capacity  as  Attorney  General  of  the  United  States,  Robert Mueller,  in  his  official  capacity  as  Director  of  the  Federal  Bureau  of  Investigation,  and  Valerie  E. Caproni,  in  her  official  capacity  as  General  Counsel  to  the  Federal  Bureau  of  Investigation (collectively,  "Defendants")  are  hereby  permitted  to  enforce  the  nondisclosure  provisions  of  18 U.S.C.  §  2709(c)  and  18  U.S.C.  434*434  §  3511(b)  as  applied  to  the  National  Security  Letter issued  to  Doe;;  and  it  is  further ORDERED  that  motion  (Docket  No.  134)  of  plaintiffs  for  partial  summary  judgment  is  DENIED  in part;;  and  it  is  further ORDERED  that  motion  (Docket  No.  144)  of  defendants  for  summary  judgment  is  GRANTED  in part;;  and  it  is  finally ORDERED  that  the  Clerk  of  Court  is  directed  to  file  this  Decision  and  Order  on  the  public docket,  withdraw  any  other  pending  motions  and  close  this  case. SO  ORDERED.
[1]  Plaintiff's  action  was  brought  against  Alberto  Gonzales  in  his  then  official  capacity  as  Attorney  General  of  the  United  States. Because  Eric  Holder  is  now  the  Attorney  General  of  the  United  States,  and  because  Plaintiff  brings  no  individual  capacity  claims against  Alberto  Gonzales,  Eric  Holder  has  been  substituted  as  defendant  for  Alberto  Gonzales  pursuant  to  Fed.R.Civ.P.  25(d)(1). [2]  This  Decision  and  Order  is  available  at  Doe  v.  Gonzales,  500  F.Supp.2d  379  (S.D.N.Y.  2007). [3]  The  Second  Circuit's  decision  is  available  at  John  Doe,  Inc.  v.  Mukasey,  549  F.3d  861  (2d  Cir.2008)  ("John  Doe,  Inc."). [4]  The  Declaration  was  filed  with  the  Court's  Security  Officer  or  Designee.  The  Court's  only  copy  of  the  Declaration  is  stored  in the  Court's  secure  room  with  access  to  it  limited  to  persons  granted  appropriate  security  clearance. [5]  Subsection  3511(a)  provides  that  an  NSL  recipient  can  petition  a  federal  district  court  "for  an  order  modifying  or  setting  aside the  request,"  which  the  court  "may"  grant  "if  compliance  would  be  unreasonable,  oppressive,  or  otherwise  unlawful."  18  U.S.C.  § 3511(a).  Additionally,  under  §  3511(b),  an  NSL  recipient  can  petition  a  federal  district  court  for  an  order  setting  aside  or  modifying a  nondisclosure  requirement. [6]  Although  John  Doe,  Inc.  provides  that  the  Government  is  obliged  to  initiate  judicial  review  of  a  nondisclosure  requirement,

here,  the  Second  Circuit  has  determined  that  the  obligation  is  waived  because  judicial  review  has  already  been  initiated  before this  Court.  549  F.3d  at  885. [7]  In  John  Doe,  Inc.,  the  Second  Circuit  panel  did  not  reach  agreement  as  to  whether  the  NSL  statutes  should  be  examined  under a  strict  scrutiny-­standard  or  under  a  standard  that  is  "not  quite  as  exacting  a  form  of  scrutiny."549  F.3d  at  878  (internal  quotation omitted).  Nevertheless,  the  Second  Circuit  found  that  the  disagreement  had  no  bearing  on  the  standard  of  review  applicable  on remand.

 
 703 F.Supp.2d 313 (2010)
John DOE, American Civil Liberties Union, and American Civil Liberties Union Foundation, Plaintiffs,
v.
Eric HOLDER, in his official capacity as Attorney General of the United States et al., Defendants.
No. 04 Civ. 2614 (VM). United States District Court, S.D. New York.
March 18, 2010. 314*314 Ann Beeson, Arthur Nelson Eisenberg, New York Civil Liberties Union, Jameel Jaffer, Melissa Goodman, Sharon M. McGowan, Laurence Michael Schwartztol, American Civil Liberties Union Foundation, New York, NY, for Plaintiff. Meredith Eve Kotler, Wilson Sonsini Goodrich & Rosati, Jeffrey Stuart Oestericher, U.S. Attorney's Office, Ronald Marc Daignault, Jenner & Block LLP, New York, NY, for Defendants.
DECISION AND ORDER
VICTOR MARRERO, District Judge. Plaintiffs John Doe ("Doe"), the American Civil Liberties Union and the American 315*315Civil Liberties Union Foundation (collectively, "Plaintiffs") filed a motion for partial summary judgment under Federal Rule of Civil Procedure 56 ("Rule 56") seeking a declaratory judgment that the nondisclosure provisions of 18 U.S.C. § 2709(c) (" § 2709(c)") and § 3511(b) ("§ 3511(b)") are unconstitutional on their face and as applied. Defendants Eric Holder, Robert Mueller, and Valerie E. Caproni (collectively, the "Government") cross­moved for dismissal of the complaint or, in the alternative, summary judgment. By Decision and Order dated September 6, 2007,[1] the Court granted in part and denied in part Plaintiffs' motion for summary judgment, and denied the Government's cross­motion for dismissal or summary judgment. The Government appealed and the Court of Appeals for the Second Circuit, by order of December 15, 2008,[2] affirmed in part, reversed in part, and remanded for further proceedings. On remand, the Court considered the parties' cross­motions,

addressing whether the Government was justified in continuing to require nondisclosure of the National Security Letter ("NSL") issued to Doe, including the Attachment (the "Attachment") appended to it. The parties submitted papers in support of and in opposition to continuation of the Government's NSL nondisclosure requirement. By Decision and Order dated October 20, 2009, the ("October 2009 Order") the Court granted in part the Government's motion for summary judgment and denied in part Plaintiffs' motion for partial summary judgment.[3] In so ruling, the Court found that the Government had carried its burden of demonstrating that continuation of the requirement imposed on Plaintiffs not to disclose the NSL and its Attachment was justified. Plaintiffs then moved for partial reconsideration of the October 2009 Order insofar as it pertained to the Attachment. By Order dated December 23, 2009, the Court invited the parties to further address the matter at oral arguments scheduled for January 15, 2010. Subsequently to the hearing, on February 18, 2010 the Court conducted an ex parte in camera review of the Attachment with the Government and two representatives of the FBI, Special Agent Paul Abbate, and Charles Marciano of the Office of the General Counsel. Plaintiffs argue that the NSL's nondisclosure requirement as authorized by the Court was insufficiently narrowly tailored to safeguard the Government's interests in secrecy as it applied to the Attachment. Specifically, Plaintiffs contend that the Government has not provided adequate explanation to justify suppressing the Attachment as necessary to national security interests or to protect an ongoing investigation of terrorist activity. To the contrary, Plaintiffs maintain that disclosure of the Attachment would serve the public interest in understanding the type of personal records the FBI has sought to obtain through NSLs, and thus to inform congressional and public debate on the subject. In response, the Government submitted a Declaration (the "Declaration") of Arthur M. Cummings II ("Cummings"), Executive Assistant Director of the National 316*316 Security Branch of the Federal Bureau of Investigation ("FBI"). Cummings states that the duties of his office entail supervision and control over the FBI's National Security files and records. In that capacity he declares his view that unauthorized disclosure of sensitive information contained in the NSL at issue, including the Attachment, would risk revealing sensitive information sought by the FBI in conducting national security investigations, as well as the methods and techniques used by the FBI in the course of such work. Moreover, Cummings asserts that disclosure of the Attachment may cause the target of the NSL to change behavior when dealing with internet service providers, such as by giving false information to conceal the target's true identity or intentions. Finally, Cummings declares that the effects of disclosure of the types of information and specific

items the FBI considers important in seeking to identify account holders or their computer use or access would compromise not only the current FBI investigation involving the NSL and target in this case but future probes as well, thus potentially hampering Government efforts to address national security threats. The discrete issue now before the Court is whether the Government is justified, pursuant to §§ 2709(c) and 3511(b), in continuing to impose a nondisclosure requirement on Plaintiffs as to the Attachment. On the basis of review of the Declaration and other papers submitted by the parties, the oral argument at the Court's hearing on the matter, and the Court's ex parte conference with the Government for in camera review of the Attachment, the Court grants in part and denies in part Plaintiffs' request. The Court concludes that some items requested in the Attachment relate to two categories of information that should be disclosed; (1) material within the scope of information that the NSL statute identifies as permissible for the FBI to obtain through use of NSLs, and (2) material that the FBI has publicly acknowledged it has previously requested by means of NSLs. These categories, insofar as specifically itemized in the Attachment, include the name, address, telephone number, account number, email address and billing information of the subscriber. The Court is not persuaded that disclosure of these two categories of information would raise a substantial risk that any of the statutorily enumerated harms would occur. Accordingly, the Court directs the Government to lift its nondisclosure requirement as it applies to those items of the Attachment. As to the remainder of the Attachment, the Court is persuaded that the Government has demonstrated that good reason exists to believe that disclosure of the information withheld plausibly could harm an authorized ongoing investigation to protect against international terrorism or clandestine intelligence activities. Also, the Court finds that the Government has demonstrated to the satisfaction of the Court that the link between disclosure and the risk of harm is substantial. See John Doe, 549 F.3d at 881. Plaintiffs contend that there is no continuing need for nondisclosure of the entire Attachment because it would reveal only marginal information about the Government's investigation. Further, they argue that the Government's suppression justification proffered here is constitutionally deficient because: the FBI has already publicly revealed its interest in some of the types of records it has sought in this case, such as existing transaction/activity logs and email header information; disclosure of the Attachment would not impart anything about the FBI's current NSL practices; and the FBI's concerns are grounded entirely 317*317 on conclusory or speculative risk of harms that might occur. The Court disagrees.

The Court is persuaded, based on Cummings's Declaration and the Government's written submissions and representations at the Court's in camera review of the Attachment, that the Government has sufficiently met its burden under § 2709(c). Specifically, the Court finds that the Government has demonstrated a reasonable likelihood that disclosure of the Attachment in its entirety could inform current targets of law enforcement investigations, including the particular target of the Government's ongoing inquiry in this action, as well as, potentially, future targets, as to certain types of records and other materials the Government seeks through national security investigations employing NSLs. The Government has made a plausible showing that public access to such information could provide knowledge about current FBI activities as well as valuable insights into the agency's investigative methods that could produce the harms the NSL statute sought to safeguard against. For instance, disclosure of the Attachment could risk providing information useful to the Government's targets of the pending investigation that could prompt changes in their behavior to prevent detection, or signal that particular targets remain under active surveillance. Thus, the Court is satisfied that the information sought by the Attachment does not entail undue impairment of First Amendment rights or other unwarranted abusive practice on the part of the FBI. Plaintiffs dismiss the Government's concerns as either conclusory or entirely speculative, or as unfounded fears grounded on no more than what theoretically may happen in the future. However, considering the context of national security and an ongoing investigation involving suspected terrorist activities, the Court finds the Government's justification entitled to deference in this proceeding. The Supreme Court, in upholding nondisclosure of intelligence information by the Central Intelligence Agency under analogous circumstances, has recognized that risks of what "may" happen have bearing upon and may be factored in resolving government claims for nondisclosure, cautioning that "bits and pieces of data may aid in piecing together bits of other information even when the individual piece is not of obvious importance in itself," CIA v. Sims, 471 U.S. 159, 178, 105 S.Ct. 1881, 85 L.Ed.2d 173 (1985)(emphasis added). The Supreme Court's observation in Sims reflects practical wisdom drawn from everyday experience. Individuals intent on carrying out illegal activities often manage to remain outside the reach of the law, one step ahead of the police and forearmed by resourceful monitoring of the information the government gathers through law enforcement methods and technologies. By common sense analogy, were John Dillinger handed pieces of the bank's blueprints showing directions to the vault, he very well "may" or "could" find his way to the spot marked "X," or if tipped that the cops have staked lookouts at the scene, he "might" avoid the job altogether. To reasonably demonstrate the likelihood of that deduction would not demand giant leaps of

conjecture. Yet, under Plaintiffs' theory in the case at hand, any risk of future harm from compelled disclosure of police surveillance information under these circumstances would be dismissed as purely speculative and unjustified. Consequently, to show that the projected law enforcement concerns are genuine essentially would require that at least some clues about the police's surveillance plans be revealed first and then wait and see whether the feared harm does indeed materialize. The Court finds no thing in 318*318 First Amendment doctrine; or in logic, reason or practical experience, that would compel such an outcome. Accordingly, the Court finds that the Government has carried its burden as to the nondisclosure of portions of the Attachment.
ORDER
For the reasons stated above, it is hereby ORDERED that motion (Docket No. 185) of plaintiffs John Doe ("Doe"), the American Civil Liberties Union, and the American Civil Liberties Union Foundation (collectively, "Plaintiffs") to lift the nondisclosure requirement of the National Security Letter ("NSL") Attachment issued to Doe is GRANTED in part and DENIED in part. Eric Holder, in his official capacity as Attorney General of the United States, Robert Mueller, in his official capacity as Director of the Federal Bureau of Investigation, and Valerie E. Caproni, in her official capacity as General Counsel to the Federal Bureau of Investigation (collectively, "Defendants") are hereby permitted to enforce the nondisclosure provisions of 18 U.S.C. § 2709(c) and 18 U.S.C. § 3511(b) as applied to parties of the NSL Attachment with the exception of the disclosures authorized herein; and it is further ORDERED that the Clerk of Court is directed to file this Decision and Order on the public docket, withdraw any other pending motions and close this case. SO ORDERED.
[1] This Decision and Order is available at Doe v. Gonzales, 500 F.Supp.2d 379 (S.D.N.Y. 2007). [2] The Second Circuit's decision is available at John Doe, Inc. v. Mukasey, 549 F.3d 861 (2d Cir.2008). [3] The October 2009 Order is available at Doe v. Holder, 665 F.Supp.2d 426 (S.D.N.Y.2009).

 
 317 F.Supp.2d 488 (2004)
John DOE and American Civil Liberties Union, Plaintiffs,
v.
John ASHCROFT, in his official capacity as Attorney General of the United States; Robert Mueller, in his official capacity as Director of the Federal Bureau of Investigation; and Marion Bowman, in his official capacity as Senior Counsel
to the Federal Bureau of Investigation, Defendants.
No. 04 Civ. 2614(VM). United States District Court, S.D. New York.
May 12, 2004. 489*489 Arthur N. Eisenberg, New York Civil Liberties Union Foundation, Jameel Jaffer, New York
City, for Plaintiffs.
DECISION AND ORDER
MARRERO, District Judge. The complaint in this case challenges the constitutionality of a statute authorizing the Government to obtain certain intelligence­related information in the possession of communications service providers and prohibiting those providers from disclosing the Government's inquiry. See 18 U.S.C. 2709. This Decision and Order sets forth a procedure by which documents in this case may be filed.
I. BACKGROUND
The American Civil Liberties Union ("ACLU") and a second plaintiff, referred to as "John Doe" for the purposes of this litigation, challenge the constitutionality of 18 U.S.C. § 2709, which authorizes the Federal Bureau of Investigation ("FBI") to obtain certain information from "wire or electronic communication service provider[s]." The FBI may obtain information from those sources only if it certifies in writing 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). Such requests and certifications are made, as the statute prescribes, in the form of National Security Letters ("NSLs"). Communications service providers that receive NSLs are prohibited from disclosing the FBI's requests. See 18 U.S.C. § 2709(c). The parties' cross­motions for summary judgment on this matter will be fully briefed in July. The ACLU initially filed this lawsuit under seal to avoid penalties for violating the non­disclosure provision — a provision which the ACLU contends violates the First Amendment. The Court, by Judge Thomas Griesa sitting in Part I, granted the sealing order requested by the ACLU. The parties then agreed to publicly file redacted versions of the complaint and the motion to file the complaint under seal. The parties memorialized that agreement in a proposed Order, which the Court signed without change on April 28, 2004. The stipulated Order also directs that all future documents shall be filed under seal, unless the Court directs otherwise. Immediately after the redacted complaint became public, the ACLU issued a 490*490 press release which revealed, among other things, the briefing schedule for the summary judgment motion. The Government requested that the ACLU remove the briefing schedule from its website because, according to the Government, that information was subject to the sealing order. The Government conceded that it would have agreed to such an innocuous disclosure, but it took issue with the fact that the ACLU had disclosed sealed information unilaterally. That dispute marked the beginning of an intense debate between the parties as to the proper method of publicly filing documents in this case. In spite of previously moving to seal the case and agreeing to a broad sealing order, the ACLU moved to unseal the case entirely based upon the First Amendment right of access to the courts. The ACLU suggested that any dispute about redactions could be addressed on a document­by­document basis via stipulations or motions. The Government responded that unsealing the case would be unnecessary and inappropriate in light of certain enforcement concerns the Government has expressed. The Government also pointed out that any filing procedure must allow the Government to review disclosures before they are filed publicly; otherwise, any subsequent seal would be meaningless. The Court held a conference with the parties in hopes that they could reach an agreement which would forestall full­blown motion practice on the issue. As the Court advised the parties, motion practice on such a procedural dispute would be ill­advised for several reasons. First, it would likely require the Court to address the merits of the case prematurely, i.e., before the summary judgment briefing is complete. The ACLU's motion raises a question as to whether there is a public right of access to material arguably within the scope of the challenged non­disclosure provision. Resolving that procedural question depends in large part on the merits of this case — whether that provision is or is not constitutional — but not vice versa. Thus, at least while the

logically prior question on the merits is pending and the statute is presumed constitutional, it would be inappropriate to allow the parties to shoehorn the merits of the dispute into a procedural motion. Second, such motion practice might require the Court to issue a ruling involving constitutional questions, even though that ruling would likely make little difference as to the ultimate disclosures in this case. The parties' generally agree as to which categories of facts should be kept under seal, at least for now: those implicating the non­disclosure provision (whose constitutionality is at issue) and those implicating sensitive intelligence information. They disagree only as to the procedure by which the Court (or the parties by agreement) should make those determinations. Finally, full­blown motion practice on this tangential issue will necessarily involve more filings and thus more contentious disputes as to the proper redactions on those filings themselves. As evidence of this snowball effect, the Court notes that the bulk of the documents filed in this case pertain to the issue of how to file documents in this case. At the conclusion of the conference, the Court directed the parties to submit an agreed­upon order to govern the filing of documents on the public docket. When the parties notified the Court that they could not agree, the Court directed the parties to submit their proposed orders. The Court has considered those proposals, along with the other materials in this case, from which the Court makes the following findings. Those findings form the basis of the Order which will govern future filings, 491*491 and hopefully return the focus of this case to its substantive merits.
II. DISCUSSION
Documents filed with the Court may be sealed only "if specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest." In re New York Times Co., 828 F.2d 110, 117 (2d Cir.1987) (internal quotation marks and citations omitted);[1] see also Press­Enterprise Co. v. Superior Court, 478 U.S. 1, 13­14, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986). In this case, there are two related values which necessitate the limited sealing which the Court will order: (1) the underlying statute's non­disclosure provision and (2) the national security concerns related to the possibility of disclosing sensitive intelligence activities conducted by law enforcement agents. First, the federal statute at issue makes it unlawful to disclose that the FBI has sought information under the statute. See 18 U.S.C. § 2709(c). The requirement of non­disclosure has no exceptions or time limit. See id. Some limited closure is required to ensure that the parties do

not run afoul of that provision, directly or inadvertently. Of course, the Court recognizes that the ACLU contends that this provision violates the First Amendment, and the Court will address that issue promptly when the summary judgment briefs are fully submitted. For now, however, the Court must presume that the statute is constitutional. See I.N.S. v. Chadha, 462 U.S. 919, 944, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983).[2] Second, the Government has asserted that certain elements of this lawsuit implicate other sensitive Government concerns which might be revealed through this litigation, even if unintentionally. That assertion is unsurprising because the statute at issue requires the FBI to certify in writing that the information sought in an NSL is "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities." 18 U.S.C. § 2709(b). The ACLU has not alleged otherwise and has in fact explicitly stated to the Court that it would be careful in that regard. In absence of dispute between the parties on this basic point, the Court considers it unnecessary to address this matter further at this time. The Court believes that above­mentioned values, although weighty, can be addressed with only a minimal amount of closure. In fact, the Court notes that the public docket currently contains a record of relatively few redactions. The public filings reveal the essential nature of this lawsuit, and the essential nature of this 492*492 very dispute concerning the closure of the lawsuit. In keeping with that record of openness, the Court sets forth a procedure below by which the public will have timely access to all the non­sensitive information in this lawsuit. Without repeating the details here in narrative form, the Court will describe a few features which illustrate the exceptionally narrow scope of the sealing procedure. First, the Order sets forth certain categories of filings which can be immediately filed on the public docket. Importantly, matters related to the central allegation in this lawsuit — that 18 U.S.C. § 2709 is unconstitutional on its face — fall outside the seal. Second, the public docket will include a redacted version or a brief description of any document filed within one or two business days of the filing of a sealed version of that document. Considering the broad scope of what is outside the seal and the narrow scope of what is sealed, the Court anticipates that the redactions will be relatively few. Third, to the extent disputes arise regarding redactions, the Court has set forth a procedure by which those disputes can be resolved expeditiously, either by the parties themselves, or, failing their agreement, by the Court. Fourth, that procedure puts the burden on the Government to quickly justify each particular redaction under the exacting First Amendment standards applicable. Finally, if the ACLU indeed prevails on its claim that the non­disclosure provision is unconstitutional, then most (if not all) of the sealed information will be eventually revealed. By the same token, if the Government is correct that the non­disclosure

provision is constitutional, the Court's procedures will have merely served to enforce a valid statute.
III. ORDER
For the reasons stated, it is hereby: ORDERED that the motion of the American Civil Liberties Union to unseal this case is granted in part and denied in part, as described herein.
1. Except as provided in paragraph 4, all documents in this action shall be filed in the first instance under seal.
2. On the date of any filing, the parties shall confer and endeavor to agree upon a proposed redacted version of the document for filing on the public docket. The filing party shall then submit to the opposite party for verification a version of the document containing all redactions which either party proposes. Once verified and agreed upon, that document as redacted shall be filed on the public docket. The discussions, verification, and public filing mentioned above shall be completed by the end of the business day following the date of the initial sealed filing. With respect to merits briefing, the time period shall be two business days.
3. In the event there are disputed redactions, the proponent of any disputed redaction shall, within two business days following any filing under paragraph 2, write a letter to the Court explaining the specific and compelling reasons why those disputed portions of the filing should be redacted. The opposite party shall have two business days within which to respond by letter. With respect to merits briefing, each party shall have four business days, instead of two. Those letters shall be filed under seal, with proposed redacted versions. As appropriate, the Court will then direct the parties to file the original redacted version, or a revised redacted version of the document and the letters.
493*493 4. Any document which is limited to the following information is not subject to the procedures of the preceding paragraphs and may be filed on the public docket:
a. the ACLU's facial constitutional challenge to 18 U.S.C. § 2709 and any attendant discussion which is limited to purely legal issues and which does not reference any factual allegations;
b. ministerial or scheduling matters that do not otherwise reference any material subject to this

sealing Order;
c. pro hac vice motions.
It is finally
ORDERED that the Clerk of Court file this Decision and Order on the public docket.
SO ORDERED.
[1] Although New York Times involved records in a criminal case, the Second Circuit has cited this holding in civil cases as well. See United States v. Amodeo, 44 F.3d 141, 146 (2d Cir.1995); accord In re Continental Illinois Secs. Litig., 732 F.2d 1302, 1308 (7th Cir.1984) ("[T]he policy reasons for granting public access to criminal proceedings apply to civil cases as well."). [2] In New York Times, the Second Circuit held that District Courts must make case­specific findings to justify a closure, as opposed to merely referencing general policy concerns of secrecy expressed in a sealing statute.See 828 F.2d at 115. On this point, New York Times is distinguishable both on its facts and its procedural posture. The sealing statute at issue in that case prohibited disclosing certain wiretapped information except upon a showing of good cause; the statute at issue here does not contain any exceptions. More importantly, the First Amendment question was squarely presented for final resolution in the motion to unseal at issue New York Times,whereas, here, the Court is merely making a procedural ruling regarding the propriety and orderliness of addressing the First Amendment questions in this case. This Decision and Order will not affect the Court's resolution of the more fundamental First Amendment issues on the merits of the case.

 
 500 F.Supp.2d 379 (2007)
John DOE, American Civil Liberties Union, and American Civil Liberties Union Foundation, Plaintiffs,
v.
Alberto GONZALES, in his official capacity as Attorney General of the United States; Robert Mueller, in his official capacity as Director of the Federal Bureau
of Investigation; and Valerie E. Caproni, in her official capacity as General Counsel to the Federal Bureau of Investigation, Defendants.
No. 04 Civ. 2614(VM). United States District Court, S.D. New York.
September 6, 2007.
384*384 OPINION DECISION AND ORDER
MARRERO, District Judge. TABLE OF CONTENTS PAGE
I. INTRODUCTION ......................................................................385
385*385
II. BACKGROUND ........................................................................387 A. SECTION 2709 ..................................................................387 B. DOE I .........................................................................388 C. THE REVISED NONDISCLOSURE PROVISION ...........................................388 D. THE FBI'S USE OF NSLs .........................................................389 E. PLACING NSLs ISSUED UNDER § 2709 IN CONTEXT ...................................392 1. Administrative Subpoenas ..................................................392 2. Pen Registers, Wiretaps, and Foreign Intelligence Surveillance ............392 3. Secrecy in Grand Jury Proceedings .........................................394

III. DISCUSSION ........................................................................395 A. STANDARD OF REVIEW ............................................................396 B. STANDING ......................................................................396 C. STRICT SCRUTINY ...............................................................396 D. PROCEDURAL SAFEGUARDS .........................................................399 1. The Freedman Safeguards ...................................................399 2. Application of Freedman ...................................................401 3. The NSL Statute Fails to Satisfy Freedman .................................405 E. DISCRETION ....................................................................406 F. PRESCRIBING THE STANDARD OF JUDICIAL REVIEW ...................................409 1. Congress Cannot Legislate a Standard of Review at Odds with First Amendment Jurisprudence .................................................409 a. Historical Context of Checks and Balances and Separation of Powers ..............................................................409 b. Application of the Principles Separation of Powers ....................411 c. Prospective Concerns ..................................................413 2. The Review Prescribed by § 3511(b) Does Not Comport with First Amendment Jurisprudence .................................................416 G. NARROW TAILORING ..............................................................419 H. SCOPE OF 18 U.S.C. §§ 3511(d) AND 3511(e) .....................................422 1. Closure of Hearings and Sealing of Records ................................422 2. Consideration of Ex Parte and In Camera Evidence ..........................423 I. SEVERANCE .....................................................................424
IV. CONCLUSION ........................................................................425
V. STAY OF JUDGMENT ..................................................................425
VI. ORDER .............................................................................425

I. INTRODUCTION
Plaintiffs John Doe, American Civil Liberties Union, and American Civil Liberties Union Foundation (collectively, "Plaintiffs") initially brought this case in 2004, challenging the constitutionality of 18 U.S.C. § 2709, amended by the USA Patriot Act (the "Patriot Act"), Pub.L. No. 107­56, 115 Stat. 272 (Oct. 26, 2001) (" § 2709"). Section 2709 was originally enacted as part of Title II of the Electronic Communication Privacy Act of 1986 ("ECPA"), Pub.L. No. 99­508, § 201, 100 Stat. 1848, 1867­68 (1986), and governs the issuance of National Security Letters ("NSLs") by the Federal Bureau of Investigation ("FBI") to wire and electronic communication service providers ("ECSPs"). This Court, in a lengthy decision dated September 28, 2004, granted Plaintiffs' motion for summary judgment and declared § 2709 unconstitutional on its face, under the First and Fourth Amendments. See Doe v. Ashcroft, 334 F.Supp.2d 471 (S.D.N.Y.2004) ("Doe I"). "Considering the implications of its ruling and the importance of the issues involved," 386*386 the Court stayed enforcement of its judgment pending appeal. See id. at 526. Shortly after this Court's decision, a court in the District of Connecticut enjoined the Government from enforcing the nondisclosure requirement of § 2709(c) insofar as it prevented the plaintiff in that case from revealing its identity as a recipient of an NSL, holding that § 2709(c) failed to satisfy strict scrutiny because it was not narrowly tailored to serve a compelling state interest. See Doe v. Gonzales, 386 F.Supp.2d 66, 82 (D.Conn.2005) ("Doe II"). While appeals in Doe I and Doe II were pending, Congress passed the USA Patriot Improvement and Reauthorization Act of 2005, Pub.L. No. 109­477, 120 Stat. 192 (Mar. 9, 2006) (the "Reauthorization Act."). The Reauthorization Act effectuated substantial changes to § 2709 and added several provisions relating to judicial review of NSLs which were codified at 18 U.S.C. § 3511 ("§ 3511").[1] As a result of these amendments, the Second Circuit remanded the Doe I appeal to enable this Court, if the parties were to continue the litigation in light of the amendments to the statute, to consider the validity of the revised § 2709(c) and the new procedures codified in § 3511. See Doe v. Gonzales, 449 F.3d 415, 419 (2d Cir.2006).[2] Plaintiffs filed a second amended complaint and have moved for summary judgment,[3]seeking a declaratory judgment that the amended nondisclosure provision of § 2709(c) and § 3511(b) are unconstitutional on their face and as applied under the First Amendment and the principle of separation of powers, and that § 3511(d) and (e) are unconstitutional on their face under the First and Fifth Amendments. Defendants Alberto Gonzales, Robert Mueller, and Valerie E. Caproni[4]

(collectively, the "Government") have cross­moved for dismissal of the complaint or, in the alternative, summary judgment. Having reviewed the briefs submitted by the parties, as well as the briefs submitted by 387*387 amicus curiae in support of Plaintiffs' motion,[5] and having heard oral arguments, the Court finds that several aspects of the revised nondisclosure provision of the NSL statute violate the First Amendment and the principle of separation of powers. The Court therefore holds that §§ 2709(c) and 3511(b) are facially unconstitutional. However, the statutory provisions governing hearings, proceedings, and judicial review of evidence related to a challenge to an NSL, §§ 3511(d) and (e) respectively, are constitutional. Accordingly, Plaintiffs' motion for summary judgment is GRANTED in part and DENIED in part, and the Government's cross­motion for dismissal or summary judgment is DENIED.
II. BACKGROUND
A. SECTION 2709 The FBI is authorized by § 2709 to issue NSLs requesting a range of information about an ECSP's subscribers and their telephone or internet activity. Section 2709(a) states that an ECSP "shall comply" with a request for "subscriber information and toll billing records information, or electronic communication transactional records" made by the FBI. 18 U.S.C. § 2709(a). Section 2709(b) requires that, in order for the FBI to request "the name, address, length of service, and local and long distance toll billing records" of a person or entity, the Director of the FBI, or his designee, must certify that such information is "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities."[6] 18 U.S.C. § 2709(b). As the Court noted in Doe I, "the statute's reference to `transactional records' creates ambiguity regarding the scope of the information required to be produced by the NSL recipient." 334 F.Supp.2d at 507. That ambiguity is compounded because the NSL directs the recipient to determine for itself whether any information it maintains regarding the target of the NSL "may be considered . . . to be an electronic communication transaction record" in accordance with § 2709, but not "contents" of communications within the meaning of 18 U.S.C. § 2510(8).[7] Such information might include the "to," "from," "date," and "time" fields of all emails sent or received, activity logs indicating dates and times that the target accessed the internet, the contents of queries made to search engines, and histories of websites visited. See generallyJonathan Zittrain, Searches and Seizures in a Networked World, 119 Harv. L.Rev. F. 83 (2005). Information requested by NSLs issued pursuant to § 2709 can also reveal the identity of an

internet user associated with a certain email address, Internet Protocol address,[8] or screen name. 388*388 B. DOE I Although familiarity with the Court's decision in Doe I is presumed, a brief review of that decision is useful in order to emphasize the conclusions the Court previously reached in this action, as well as to put in proper context the deficiencies in the prior version of § 2709 that Congress attempted to remedy in enacting the substantial revisions embodied in the Reauthorization Act. Prior to the Reauthorization Act, as read by this Court, § 2709(c)[9] prohibited "the NSL recipient, or its officers, employees, or agents, from revealing the existence of an NSL inquiry the FBI pursued under § 2709 in every case, to any person, in perpetuity, with no vehicle for the ban to be lifted from the recipient or other person affected, under any circumstances, either by the FBI itself, or pursuant to judicial process." Doe I, 334 F.Supp.2d at 476. Consequently, the Court concluded that § 2709 "violate[d] the Fourth Amendment because, at least as applied, it effectively bar[red] or substantially deter[red] any judicial challenge to the propriety of an NSL request." Id. at 475. Moreover, § 2709's "all­inclusive sweep" failed to "pass muster under the exacting First Amendment standards" the Court found to be applicable. Id. at 476. The Court concluded that § 2709(c) was a prior restraint, reasoning that "axiomatically the categorical nondisclosure mandate embodied in § 2709(c) functions as a prior restraint because of the straightforward observation that it prohibits speech before it occurs." Id. at 511­12; see also Doe II, 386 F.Supp.2d at 73 ("Section 2709(c) unquestionably prohibits speech in advance of it having occurred."). Moreover, the Court held that § 2709(c) was a content­based restriction on speech in that it "prohibits any discussion of the firsthand experiences of NSL recipients" and thus closes off "that `entire topic' from public discourse." Doe I, 334 F.Supp.2d at 513 (citations omitted). As a prior restraint and a content­based restriction on speech, the provision was subject to strict scrutiny. The Court pointed out that there likely existed less restrictive alternatives available to the government that would be as effective in achieving the purpose of the NSL statute.See id. at 520­21. The Court went on to acknowledge that while the blanket prohibition against disclosure in § 2709(c) could not be justified, "the Government should be accorded a due measure of deference when it asserts that secrecy is necessary for national security purposes in a particular situation involving particular persons at aparticular time." Id. at 524 (emphasis in original). The Court held that the nondisclosure provision of § 2709 was unconstitutional on its face, and because the Court could not sever § 2709(c) from the remainder of the statute, the Court

enjoined the government from using § 2709 in any case as a means of gathering information. Id. at 525­26. C. THE REVISED NONDISCLOSURE PROVISION As indicated above, while the Government's appeals were pending before the Second Circuit, Congress enacted the Reauthorization Act. The Government contends that the revised § 2709(c) and the newly enacted § 3511 directly addresses 389*389 the concerns raised by this Court in its Doe I decision and rectifies any constitutional deficiencies. Instead of a categorical, blanket prohibition on disclosure with respect to the issuance of any NSL, § 2709(c) now calls for a case­by­case determination of the need for a nondisclosure order to accompany an NSL. Specifically, the statute provides that a recipient of an NSL is barred from disclosing that the FBI "has sought or obtained access to information or records" under the NSL statute if the Director of the FBI, or his designee, "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" (here collectively referred to as the "Enumerated Harms"). 18 U.S.C. § 2709(c)(1). The newly enacted § 3511 provides an opportunity for judicial review of NSLs. Section 3511(a) explicitly allows the recipient of an NSL to petition a United States district court "for an order modifying or setting aside the request," which the court "may" grant "if compliance would be unreasonable, oppressive, or otherwise unlawful." 18 U.S.C'. § 3511(a). Additionally, under § 3511(h), an NSL recipient may seek an order modifying or setting aside a nondisclosure requirement. If a petition to modify or set aside the nondisclosure requirement is filed within one year of the NSL request, the reviewing court may grant such relief only if it fords that "there is no reason to believe" disclosure "may result" in one or more of the Enumerated Harms. 18 U.S.C. § 3511(b)(2). Moreover, if one of several authorized senior FBI officials "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. If the petition to modify or set aside the nondisclosure requirement is filed one year or more after the NSL request was issued, the FBI must either terminate the nondisclosure requirement or re­certify that disclosure may result in one of the Enumerated Harms, in which case the court could grant the petition only in accordance with the standards described above. See 18 U.S.C. § 3511(b)(3). Additionally, if the court denies the petition, the NSL recipient is precluded from filing

another petition for one year. See id. As § 3511 now explicitly permits challenges to NSLs, Plaintiffs do not renew their Fourth Amendment challenge. However, Plaintiffs contend that the amendments do not cure the statute's First Amendment deficiencies, and that it remains an unconstitutional prior restraint and a content­based restriction on speech because it (1) fails to provide constitutionally mandated procedural safeguards, (2) invests the FBI with unbridled discretion to suppress speech, (3) forecloses reviewing courts from applying a constitutionally mandated standard of review, and (4) authorizes the issuance of nondisclosure orders that are not narrowly tailored. As the Second Circuit vacated this Court's prior decision in light of the Reauthorization Act, the Court must now consider whether the nondisclosure provision, with the judicial review now contemplated, still runs afoul of the First Amendment. For the reasons set forth below, the Court finds that it does. D. THE FBI'S USE OF NSLs Doe I detailed the history of NSLs and the revisions embodied in the Patriot Act which expanded their usefulness as an investigatory tool. See 334 F.Supp.2d at 390*390 480­85. The Patriot Act expanded the government's authority to use NSLs under the four existing NSL statutes[10] and created a fifth category of NSLs.[11] However, at the time that Doe I was decided, little was publicly known about how NSLs were being used by' the FBI under the new relaxed standards required for issuance after the Patriot Act. As part of the Reauthorization Act, Congress directed the Department of Justice, Office of the Inspector General ("OIG"), to review the "effectiveness and use, including any improper or illegal use, or national security letters issued by the Department of Justice." See Pub.L. No. 109­177, § 119. In March, 2007, the OIG issued its first public report pursuant to this statute, entitled "A Review of the Federal Bureau of Investigation's Use of National Security Letters" (the "OIG Report" ).[12] The OIG Report addresses the FBI's use of NSLs for calendar years 2003 through 2005. The OIG Report confirms that the Patriot Act transformed NSLs into a much more frequently employed investigatory tool. Specifically, it states that "the FBI issued approximately 8,500 NSL requests in CY 2000, the year prior to passage of the Patriot Act. After the Patriot Act, according to FBI data, the number of NSL requests increased to approximately 39,000 in 2003, approximately 56,000 in 2004, and approximately 47,000 in 2005."[13] (OIG Report 120.) While the number of NSL requests issued under each separate NSL provision is not publicly available, the report does indicate that "the overwhelming majority of the NSL requests sought telephone toll billing records information, subscriber information (telephone or e­mail), or electronic

communication transactional records" under § 2709. (Id. 36­37.) In considering these statistics, it is important to distinguish between "NSLs" and "NSL requests" — a single NSL may contain multiple requests for information. (See id. 120.) The OIG Report specifies that "the 39,000 NSL requests in 2003 were contained in approximately 12,000 letters, and the 47,000 requests in 2005 were contained in approximately 19,000 letters." (Id.) According to the OIG Report, there are three main reasons for the dramatic increase in the number of NSL requests issued starting in 2003. (See id. 45.) First, the Patriot Act eliminated the requirement that an NSL be issued only if "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) (2000). Instead, the information must currently 391*391 satisfy only the lower standard of being "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities." 18 U.S.C. § 2709(b). Second, whereas previously an NSL had to be approved by a senior FBI official at FBI headquarters, NSLs can now be authorized by Special Agents in Charge at FBI field offices. As a result, approval is no longer a lengthy process, and generally takes only two to five days. (See OIG Report 25.) Third, in 2003, the Attorney General issued revised guidelines governing the use of NSLs in FBI national security investigations (the "NSI Guidelines"). The revised NSI Guidelines permit NSLs to be issued during preliminary investigations; under the prior NSI Guidelines, they could be issued only during full investigations.[14] (See OIG Report 40.) The OIG Report concludes that "[t]aken together, these three expansions of the FBl's [NSL] authorities resulted in significantly greater use" of NSLs. (Id. 45). FBI officials describe NSLs as "indispensable investigative tools that serve as building blocks in many counterterrorism and counterintelligence investigations." (Id. xlvi.) In particular, the most important use of § 2709 NSLs, as described by FBI officials, is "to support FISA applications for electronic surveillance, physical searches, or pen register/trap and trace orders." (Id. 48.) NSLs are also important in that they assist the FBI in collecting information sufficient to eliminate concerns about investigative subjects and close national security investigations with a greater degree of confidence. (See id. 44.) Moreover, often the target of an NSL is not necessarily the main target of an investigation, and an NSL thus serves as a key tool in allowing the FBI to follow leads. As the OIG Report notes, "[f]or example, if the response to an NSL for toll billing records on the subject's telephone number identifies a telephone number that the subject contacted frequently during a time period relevant to the investigation, the FBI may issue another NSL requesting subscriber information for that telephone number." (Id. 118.) While the OIG Report provides helpful background on how NSLs are actually used by the FBI,

Plaintiffs emphasize that the report also details significant misuse of NSLs by the FBI, which Plaintiffs claim supports their argument that the statute, in its current form, is too susceptible to abuse to survive First Amendment scrutiny. Specifically, the OIG Report found that in addition to significantly under­reporting the number of NSL requests issued, the FBI: (1) under­reported violations arising from the use of NSLs; (2) sought information not permitted by the statute; (3) issued NSLs without proper authorization; (4) issued over 700 "exigent letters" requesting the type of information covered by § 2709 without following the process for obtaining an NSL; and (5) repeatedly failed to properly adhere to the FBI's own internal documentation requirements for the approval of an NSL. (See id. 66­107.) In summary, while noting the significant challenges and major structural changes the FBI was facing during the period covered and the lack of any misuse rising to the level of criminal misconduct,392*392 the OIG Report nonetheless concluded that "the FBI used NSLs in violation of applicable NSL statutes, Attorney General Guidelines, and internal FBI policies." (Id.124.) E. PLACING NSLs ISSUED UNDER § 2709 IN CONTEXT As discussed at length in Doe I, the issuance of NSLs under § 2709 is just one of many investigatory tools the government uses to gather information. See 334 F.Supp.2d at 484­91. The Government stresses, as it did in Doe I arguments, that the nondisclosure provision in the revised § 2709 is not unique in requiring secrecy in the context of confidential investigations. However, a review of those other investigatory tools reveals that, in comparison to statutes which allow for the imposition of secrecy in other contexts, the revised § 2709, even with the limited judicial review contemplated in § 3511, remains a very broad and substantially onerous secrecy provision. 1. Administrative Subpoenas Several federal statutes authorizing administrative subpoenas, for example, "permit the investigating agency to apply for a court order to temporarily bar disclosure of the inquiry, generally during specific renewable increments or for an appropriate period of time fixed by the Court, where such disclosure could jeopardize the investigation." Id.at 485 (citing 12 U.S.C. 3409(b), 15 U.S.C. 78u(h)(4)(A), 18 U.S.C. 2705(b), and 18 U.S.C. 3486(a)(6)(A)). Significantly, these provisions generally both place the burden on the government to seek a court­issued nondisclosure order and specifically contemplate a time limit on any secrecy imposed. See id. 2. Pen Registers, Wiretaps, and Foreign Intelligence Surveillance In Doe I, the Court noted that there were only three federal statutes "arguably analogous", to § 2709 in terms of the breadth of its nondisclosure rules. See id. at 514­15. The Court stated:

First, communications firms are categorically barred, unless otherwise ordered by a court, from ever disclosing that a pen register or trap and trace device is in effect. Second, communications firms are categorically barred, subject to a similar exception "as may otherwise be required by legal process," from ever disclosing that a wiretap or electronic surveillance is in place. Third, recipients of a subpoena under FISA are categorically prohibited from ever disclosing to any person, "other than those persons necessary to produce" the records sought, that the subpoena was ever issued.
Id. Addressing this point, the Government emphasizes that these three statutes — 18 U.S.C. 3123(d)(2) (pen registers), 18 U.S.C. 2511(2)(a)(ii) (wiretaps), and 50 U.S.C. 1861(d) (Foreign Intelligence Surveillance Act ("FISA") subpoenas) — "permit the government to preserve the secrecy of its investigations by prohibiting disclosure by non­government actors, automatically and with no special procedural protections." (Gov't Opp. 20.) Thus, the Government argues, the "NSL statute, which explicitly permits judicial review, provides more procedural protection than the long­standing wiretap and pen register statutes, in which nondisclosure is automatic `unless or until ordered by the court,' the only procedure for judicial review is ex parte and does not require the government to justify non­disclosure, and the statute sets forth no standard or time limit for lifting the prohibition on disclosure." (Id. 21.) 393*393 However, the Court's observation in Doe I highlights what still remains a relevant and critical distinction between these provisions and § 2709 those statutes generally "apply in contexts in which a court authorizes the investigative method in the first place," 334 F.Supp.2d at 515, and indeed provide for judicial review safeguards not only prior to surveillance, but also after is has concluded. The lone exception is that certain FISA surveillance orders may be obtained solely based on a certification by the Attorney General that the surveillance meets the statutory requirements. See id. at 515 n. 208 (noting that this exception may be justified because "the FISA orders are specifically limited to electronic surveillance of foreign governments and their agents" and consequently do not implicate the First Amendment rights of American citizens).[15] Thus, while a telephone company may be prohibited from disclosing the existence of a wiretap on one of its customers, that wiretap can not be legally installed in the first instance without an Article III judge determining, pursuant to application by the government, and in advance of the restraint on constitutional rights, that there is "probable cause" for the government to believe both that the target of the wiretap is engaged in illegal activity and that the wiretap will assist in obtaining communications concerning that activity, and also that the government has demonstrated to the court's satisfaction that normal investigative procedures have failed or are

unlikely to succeed.See 18 U.S.C. § 2518(3). The standard for obtaining a pen register or trap­and­trace device is less rigorous.[16] See 18 U.S.C. § 3123(a) (simply requiring certification from a law enforcement official that information sought would be "relevant to an ongoing criminal investigation"). Clearly, the lower standard reflects that installation of a pen register or trap­and­trace device on an individual's phone is far less intrusive than a wiretap which allows law enforcement access to the contents of the target's communications. Nevertheless, installation of a pen register or trap­and­trace device does require judicial review and a showing of relevance to an ongoing investigation. Moreover, both surveillance tools place durational limits on their use. Wiretaps are generally limited to no more than thirty­day periods, after which the government must apply for an extension. See 18 U.S.C. § 2518(5). Pen registers and trapand­trace devices are limited to sixty­day periods, after which the government must apply for an extension. See 18 U.S.C. § 3121(c). Significantly, with respect to wiretaps, once the wiretap intercept has concluded, an additional judicial safeguard goes into effect. Within ninety days the issuing judge "shall cause to be served . . . an inventory" which notifies the targets of the wiretap (and possibly others) of the occurrence of the surveillance, unless the government makes an ex parte showing of good cause that the serving of the inventory 394*394 should be postponed. See 18 U.S.C. § 2518(8)(d). The wiretap and pen register statutes do not specify precisely when the restriction on disclosure by the communications provider terminates. With respect to wiretaps, the communications provider is prohibited from disclosing "the existence of any interception or surveillance, except as otherwise required by law and only after prior notification of law enforcement authorities. See 18 U.S.C. § 2511(2)(a)(ii). As for pen registers, "the person owning or leasing the line or other facility" to which the device is attached may not disclose the "the existence of the device or "the existence of the investigation "unless and until otherwise ordered by the court." See 18 U.S.C. § 3123(d). The wording of both statutes, and in particular their use of the phrase "the existence of," implies that communications providers might be free to discuss wiretaps and pen registers, as well as their knowledge of underlying criminal investigations, after those investigations are completed. After that time, the government presumably has no interest in prohibiting the communications provider from revealing its role in the investigation, and it is unlikely that a permanent ban on disclosure could be justified under the First Amendment. 3. Secrecy in Grand Jury Proceedings Federal Rule of Criminal Procedure 6(e) governs secrecy in grand jury proceedings. The "federal rules impose stringent secrecy requirements on certain grand jury participants, including the attorneys, court reporters, and grand jurors." Doe I, 334 F.Supp.2d at 486. However, witnesses

called before the grand jury are not under an obligation of secrecy. See In re Grand Jury, 490 F.3d 978, 985 (D.C.Cir.2007) Millie theory of grand jury secrecy is that the witness is guaranteed against compulsory disclosure, the privilege must therefore be that of the witness, and rests upon his consent.") (citations omitted). The majority of states follow the approach of the federal rules and generally exempt witnesses from grand jury secrecy obligations. See 1 S. Beale & W. Bryson, Grand Jury Law and Practice 5.5 (2d ed.2006). Several states, however, do impose some secrecy obligations on grand jury witnesses. See id. ("[T]en [states] impose an obligation of secrecy on witnesses, but exempt communications between the witness and his attorney; and three impose an obligation of secrecy on witnesses without such an exemption."). The secrecy governing grand jury proceedings is justified by its function, which is to "inquire into all information that might possibly bear on its investigation until it has identified an offense or has satisfied itself that none has occurred." United States v. R. Enterprises, Inc., 498 U.S. 292, 297, 111 S.Ct. 722, 112 L.Ed.2d 795 (1991). Thus, the grand jury "can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not." United States v. Morton Salt Co., 338 U.S. 632, 642­43, 70 S.Ct. 357, 94 L.Ed. 401 (1950). The secrecy of the proceedings ensures that witnesses feel free to testify fully and frankly, that those under investigation are not tipped off to the proceeding, and that those exonerated by the grand jury are not publicly embarrassed. See In re Grand Jury Subpoena, Judith Miller,No. 04­3138, 3139, 3140, 2007 WL 1855055, at *2, (D.C.Cir.2007) (citations omitted). Because grand jury secrecy provisions are justified by the government's need to keep its investigations confidential, their duration is generally limited to the term of the grand jury or the period of investigation. See, e.g., Butterworth v. Smith, 494 U.S. 624, 626, 110 S.Ct. 1376, 108 L.Ed.2d 395*395 572 (1990) ("We hold that insofar as the Florida law prohibits a grand jury witness from disclosing his own testimony after the term of the grand jury has ended, it violates the First Amendment to the United States Constitution."); Hoffmann­Pugh v. Keenan, 338 F.3d 1136, 1137 (10th Cir. 2003)(upholding Colorado grand jury secrecy statute that "precludes the witness from divulging her testimony even after the term of the grand jury has ended if the investigation of the crime continues.").
III. DISCUSSION
As the Court observed in Doe I, this case presents novel issues involving both the security of the nation and the rights of citizens under the First Amendment. The government's use of NSLs to

obtain private information about activities of individuals using the internet is a matter of the utmost public interest. As the OIG Report evenhandedly documents, the NSL serves as a critical tool to enable the government to perform investigations and law enforcement functions vital to the nation's safety and security. But, as powerful and valuable as it may be as a means of surveillance, and as crucial the purpose it serves, the NSL nonetheless poses profound concerns to our society, not the least of which, as reported by the OIG, is the potential for abuse in its employment. Through the use of NSLs, the government can unmask the identity of internet users engaged in anonymous speech in online discussions. It can obtain an itemized list of all of the emails sent and received by the target of the NSL, and it can then seek information on individuals communicating with that person. It may even be able to discover the websites an individual has visited and queries submitted to search engines. In light of the seriousness of the potential intrusion into the individual's personal affairs and the significant possibility of a chilling effect on speech and association — particularly of expression that is critical of the government or its policies — a compelling need exists to ensure that the use of NSLs is subject to the safeguards of public accountability, checks and balances, and separation of powers that our Constitution prescribes. Accordingly, the issue now before the Court is not whether, or under what circumstances, the government should possess the authority to issue NSLs. Rather, the more fundamental question is the extent of the authority that the First Amendment allows the government to exercise in keeping its use of NSLs secret, insofar as such secrecy inhibits freedom of speech. The Court's review of First Amendment jurisprudence yields two primary conclusions. First, the government's use of nondisclosure orders must be narrowly­tailored on a case­by­case basis. That is, a nondisclosure order may not be broader in either scope or duration than the degree of secrecy required to serve the government's interest in protecting national security. Second, the nondisclosure orders must be subject to meaningful judicial review. To conform to prevailing constitutional norms as read by this Court, taking into account the unique latitude and added flexibility national security needs demand under ordinary circumstances, as well as the practicalities of surveillance work before a target is adequately identified, in issuing an NSL the government must either affirmatively terminate the nondisclosure requirement or bear the burden of justifying to a court why continued secrecy is necessary within a reasonable period of time after the FBI issues an NSL containing a nondisclosure order. Additionally, and in many ways most troubling, this Court finds that the standard of review the Reauthorization Act directs that the courts must apply when a 396*396nondisclosure order is challenged, offends the fundamental constitutional principles of checks and balances and

separation of powers. Independent of the First Amendment deficiencies identified by the Court, the deferential standard of review imposed on reviewing courts by § 3511(b) fails not only because it creates too great a danger that constitutionally protected speech will be suppressed, but more fundamentally because it reflects an attempt by Congress and the executive to infringe upon the judiciary's designated role under the Constitution. To conform with § 3511(b) as drafted, a court reviewing a nondisclosure order must apply not the standard of review the judge determines is mandated by constitutional law, but an overly deferential standard imposed by Congress. It is axiomatic that in our system of government it is the province of the courts to say what the law is. When Congress attempts to curtail or supersede this role, it jeopardizes the delicate balance of powers among the three branches of government and endangers the very foundations of our constitutional system. Thus, for this reason as well, § 3511(b) fails. A. STANDARD OF REVIEW Plaintiffs have moved for summary judgment, pursuant to Fed.R.Civ.P. 56(c), and the Government has cross­moved to dismiss, pursuant to Fed.R.Civ.P. 12(b), or in the alternative, for summary judgment. In considering a motion to dismiss, the "court may only rely on the factual allegations set forth in the complaint itself and not on additional matters asserted in affidavits, exhibits or other papers submitted in conjunction with the motion." See Friedl v. City of New York, 210 F.3d 79, 83­84 (2d Cir.2000). Because both sides have submitted affidavits and other materials, the Government's motion must be considered a motion for summary judgment. See id. at 83. The Court may grant summary judgment only if it finds that "there is no genuine issue as to any material fact and that the moving, party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c). Here, the Court concludes that no facts material to the disposition of the case are in dispute and that this case presents only legal questions appropriate for decision on summary judgment. B. STANDING Plaintiffs assert a facial and as­applied challenge to § 2709 and § 3511. "It is well established that in the area of freedom of expression an overbroad regulation may be subject to facial review and invalidation, even though its application in the case under consideration may be constitutionally unobjectionable." Forsyth County, Georgia v. The Nationalist Movement, 505 U.S. 123, 129, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992). This rule applies because "the very existence of some broadly written laws has the potential to chill the expressive activity of others not before the Court." Id. As the Supreme Court has observed, "[m]any persons, rather than undertake the considerable burden (and sometimes risk) of vindicating their rights through

case­by­case litigation, will choose simply to abstain from protected speech — harming not only themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas." Virginia v. Hicks, 539 U.S. 113, 119, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003). Consideration of the Plaintiffs' facial challenge is appropriate here because, as detailed below, the statutory provisions at issue are broadly written and certainly have the potential to suppress constitutionally protected speech. C. STRICT SCRUTINY The Court's analysis begins by noting that for the same reasons articulated 397*397 in Doe I, see 334 F.Supp.2d at 511­13, the nondisclosure provision of the revised § 2709, like its predecessor, embodies both a prior restraint and a content­based restriction on speech. The nondisclosure provision of the amended § 2709 still acts as a prior restraint because it still prohibits speech before it occurs. See id. at 511­12; see alsoDoe II, 386 F.Supp.2d at 73. In granting the FBI authority to certify that an NSL recipient cannot disclose to any person information about receipt of the NSL, and in including this prescription in the actual NSL letter issued, the amended § 2709(c) "authorizes suppression of speech in advance of its expression." Ward v. Rock Against Racism, 491 U.S. 781, 795 n. 5, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989); see alsoAlexander v. United States, 509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993) ("The term prior restraint is used to `describe administrative and judicial ordersforbidding certain communications in advance of the time that such communications are to occur.'") (quoting M. Nimmer, Nimmer on Freedom of Speech § 4.03, at 4­14 (1984)) (emphasis added in Alexander). Additionally, the amended § 2709(c) continues to act as a content­based restriction on speech. In Doe I, the Government argued that § 2709(c) was not a content­based restriction because it prohibited disclosure irrespective of a speaker's viewpoint. See334 F.Supp.2d at 512. The Court disagreed, finding that although the pre­Reauthorization Act § 2709(c) was neutral with respect to viewpoint, it nonetheless functioned as a content­based restriction because it closed off an "entire topic" from public discourse. See id. at 513 ("`The First Amendment's hostility to content­based regulation extends not only to restrictions of particular viewpoints, but also to prohibition of public discussion of an entire topic.'") (quoting Consolidated Edison Co. of New York v. Public Serv. Comm'n, 447 U.S. 530, 537, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980)). The nondisclosure requirement of the revised § 2709(c) continues to close off discussion of an entire topic. Prohibiting an NSL recipient from discussing anything about the NSL it received, including even the mere fact of receipt, means that "the first­hand experiences of NSL recipients," id. at 513, are completely excluded from the public debate. Likewise, the Doe II court, which also found § 2709(c) to be a content­based restriction, stated that it had "the practical impact of

silencing individuals with a constitutionally protected interest in speech and whose voices are particularly important to an ongoing, national debate about the intrusion of governmental authority into individual lives." 386 F.Supp.2d at 75. Indeed, Plaintiffs indicate that as a result of the nondisclosure requirement enforced in this case, they have been precluded from fully contributing to the national debate over the government's use of surveillance tools such as NSLs, perhaps most particularly consequential in inhibiting their ability to speak and inform public discourse on the issue during Congress's consideration of the Reauthorization Act. Presumably, Congress's intention in amending 2709(c) to allow the FBI to certify on a case­by­case basis whether nondisclosure is necessary was to more narrowly tailor the statute to reduce the possibility of unnecessary curtailment of speech. Unfortunately, one necessary consequence of the resulting discretion now afforded the FBI is that the amended 2709(c) creates the risk not only that an "entire topic" of public debate will be foreclosed, but also the risk that the FBI might engage in actual viewpoint discrimination. By now allowing the FBI to pick and choose which NSL recipients are prohibited from discussing the receipt of an NSL, conceivably the FBI can engage in viewpoint discrimination 398*398 by deciding to certify nondisclosure when it believes the recipient may speak out against the use of the NSL and not to require nondisclosure when it believes the recipient will be cooperative. Thus, the statute has the potential to "contravene the fundamental principle that underlies [the Supreme Court's] concern about `content­based' speech regulations: that `government may not grant the use of a forum to people whose views if finds acceptable, but deny use to those wishing to express less favored or more controversial views.'" City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48­49, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986)(quoting Police Dep't of Chicago v. Mosley, 408 U.S. 92, 95­96, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972)). The Government's position is that the FBI's discretion does not create the opportunity for viewpoint discrimination because the prohibition on nondisclosure is premised not on the content of any expected speech but on the circumstances of the counterterrorism or counterintelligence investigation, which may require secrecy in order to preserve the integrity of the investigation. Although this response suggests a relevant point, the Government's alleged concern solely with the effect of speech rather than the speech itself does not render 2709(c) any more content­neutral. See Forsyth County, 505 U.S. at 134, 112 S.Ct. 2395 ("Listeners' reaction to speech is not a content­neutral basis for regulation."). As a prior restraint and content­based restriction, the amended statute is hence subject to strict scrutiny. See Doe I, 334 F.Supp.2d at 511. The Government indicates that, although it reserves the issue of the appropriate level of scrutiny for appeal, it does not argue this issue in light of the Court's prior determination in Doe I. (See Gov't Opp. 11.)

The statute can survive strict scrutiny only if it is "narrowly tailored to promote a compelling government interest," United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000), and 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, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997). Any restriction on speech which is content­based and acts as a prior restraint is presumed unconstitutional, and the government bears the burden of demonstrating that the provision satisfies strict scrutiny. See R.A.V. v. City of St. Paul,505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) ("Content based restrictions are presumptively invalid."); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963) ("Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.");Playboy Entm't Group, 529 U.S. at 816, 120 S.Ct. 1878 ("When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions."). As Doe I also acknowledged, the government's asserted interest in seeking to impose a gag on NSL recipients — protecting the nation's security by preventing terrorism — is certainly compelling in appropriate circumstances. See 334 F.Supp.2d at 513 ("[T]he Government's interest in protecting the integrity of international terrorism and counterintelligence investigations is a compelling one."); see also Haig v. Agee, 453 U.S. 280, 307, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981) ("It is `obvious and unarguable' that no governmental interest is more compelling than the security of the Nation.") (quoting Aptheker v. Secretary of State, 378 U.S. 500, 509, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964)); Detroit Free Press v. Ashcroft, 303 F.3d 399*399 681, 706 (6th Cir.2002)("The Government certainly has a compelling interest in preventing terrorism ").[17]Thus, the Court must consider whether § 2709(c), in light of the judicial review now afforded by § 3511(b), constitutes a sufficiently narrowly tailored means of advancing the government's compelling interest in national security. As was the case with the Court's initial decision, fundamentally this ruling is "about theprocess antecedent to the substance of any particular challenge." Id. at 475 (emphasis in original). Thus, the Court first considers whether the process relating to the issuance and review of an NSL requiring nondisclosure is sufficiently narrowly tailored to ensure that First Amendment rights are not unnecessarily abridged. When a statute confers discretion on government officials to suppress speech, as § 2709(c) does, that discretion must be reasonably limited by objective criteria. See Thomas v. Chicago Park Dist., 534 U.S. 316, 324, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002). Moreover, the government must exercise its discretion within a system that allows for "procedural safeguards designed to obviate the dangers of a censorship system." Freedman v.

Maryland, 380 U.S. 51, 58, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). Such safeguards must include an opportunity for meaningful judicial review. Finally, even where the government has demonstrated a compelling interest justifying the restriction of expression, any such restriction must be narrowly tailored both in scope and duration. As detailed below, the nondisclosure provision of § 2709(c), even with the safeguard of the judicial review afforded by § 3511(b), prescribes a process that is constitutionally deficient under the First Amendment in several respects. D. PROCEDURAL SAFEGUARDS Plaintiffs contend that the NSL nondisclosure provision, 2709(c), constitutes a "paradigmatic licensing scheme," in that "the FBI is invested with the discretion to determine, on a case­by­case basis, whether a gag order should be issued with respect to any given NSL." (Memorandum of Law in Support of Motion for Partial Summary Judgment ("Pls.' Mem."), dated Sept. 8, 2006, at 11.) Plaintiffs argue that § 2709(c) is therefore unconstitutional because it fails to provide the requisite procedural safeguards set forth by the Supreme Court in Freedman. 1. The Freedman Safeguards Freedman involved a Maryland motion picture censorship statute that made it unlawful to exhibit a motion picture prior to obtaining the approval of the Maryland State Board of Censors (the "Board"), which was empowered to bar the exhibition of any film that it considered "obscene" or that, in its opinion, tended to "debase or corrupt morals or incite to crimes." 380 U.S. at 52 & nn. 2­3, 85 S.Ct. 734. Under the statute, a film exhibitor was required to submit the film to the Board for approval prior to showing it, and the exhibitor could appeal a disapproval to a Maryland state court. The Freedman Court held that such a system "avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system." Id. at 58, 85 400*400 S.Ct. 734 (emphasis added). It particular, the Supreme Court held that the following safeguards are required: (1) any restraint in advance of judicial review may be imposed only for "a specified brief period," (2) any further restraint prior to "a final judicial determination on the merits" must be limited to "the shortest fixed period compatible with sound judicial resolution," and (3) the burden of going to court to suppress the speech and the burden of proof once in court must rest on the censoring government. Id. at 58­59, 85 S.Ct. 734. The Supreme Court held the Maryland statute unconstitutional because it placed no time limits on a determination by the Board, gave no assurance of prompt judicial review, and placed the burden of challenging the Board's determination on the exhibitor rather than the government. See id. at 59­60, 85 S.Ct. 734. The Court recognized 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."Id. at 57­58, 85 S.Ct. 734. Additionally, the "exhibitor's stake in any one picture may be insufficient to warrant a protracted and onerous course of litigation." Id. at 59, 85 S.Ct. 734. Consequently, the Supreme Court concluded that without adequate procedural safeguards ensuring prompt judicial review, "the censor's determination may in practice be final." Id. at 58, 85 S.Ct. 734. As a preliminary matter, this Court finds that § 2709(c) does constitute a form of licensing. In Doe I, the Government argued that the prior version of § 2709(c) did not create a licensing scheme in which the FBI had discretion to pick and choose among speakers to restrain. See 334 F.Supp.2d at 512. The Court commented that such a system "works identically to the most severe form of a licensing system — one in which no licenses are granted." Id. (emphasis in original); see also Doe II, 386 F.Supp.2d at 74 ("The suppression of speech here is broader than any licensing scheme. It constitutes a categorical prohibition on the use of any fora for speech, on all topics covered by § 2709(c), as contrasted with a licensing scheme, which limits only a particular forum."). The current version of § 2709(c) does grant the FBI discretion to determine which disclosures it believes must be restricted. Specifically, as outlined above, the FBI may issue a nondisclosure order when the Director of the FBI, or his designee, certifies that disclosure of the NSL "may result" in one of the Enumerated Harms. See 18 U.S.C. § 2709(c)(1). The addition of this discretion to the revised § 2709(c) scheme transforms it from a "blanket proscription on future speech," Doe I,334 F.Supp.2d at 512, to a system in which the FBI, based on its own case­by­case assessment, now has broad discretion to grant some NSL recipients permission to disclose certain information pertaining to their receipt of an NSL and to deny others that freedom. Determining that § 2709(c) embodies a form of licensing, however, does not end the inquiry as to whether the procedural safeguards set forth in Freedman must apply to it. Since Freedman, the Supreme Court has addressed a broad range of licensing systems, and it has decided, on a case­by­case basis, whether Freedman's procedural protections are required to validate the licensing at issue. See, e.g., Thomas, 534 U.S. at 322, 122 S.Ct. 775 (Freedman inapplicable to licensing scheme that represented a content­neutral time, place, and manner regulation of the use of a public forum);KW/PBS v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 401*401 L.Ed.2d 603 (first twoFreedman safeguards applicable to city ordinance regulating sexually oriented businesses); Riley v. Nat'l Fed'n of the Blind of North Carolina, Inc., 487 U.S. 781, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988) (Freedman safeguards applicable to professional licensing

statute); National Socialist Party of Am. v. Village of Skokie, 432 U.S. 43, 97 S.Ct. 2205, 53 L.Ed.2d 96 (1977) (Freedman safeguards applicable to a state court injunction prohibiting a parade); Blount v. Rizzi, 400 U.S. 410, 91 S.Ct. 423, 27 L.Ed.2d 498 (1971) (Freedman safeguards applicable to statute permitting Postmaster General to block letters and payments related to the sale of allegedly obscene materials). As these cases illustrate, Freedman has been applied in diverse contexts. There is no basis justifying a conclusion that Freedman is limited to cases involving obscenity or sexually­oriented expression, as the Government suggests, or that it is somehow not applicable to cases that involve national security. (See Gov't Opp. 19.) 2. Application of Freedman With respect to § 2709(c), the first and second Freedman protections, which require the availability of expeditious judicial review and that any restraint prior to judicial review must be brief, are satisfied by the procedures set forth in § 3511(b) as it relates to NSL recipients. That provision permits an NSL recipient to petition a court for an order modifying or setting aside a nondisclosure requirement. The nondisclosure prohibition is mandated as part of the NSL itself, and the recipient may challenge that restriction at any time after receipt of the NSL. In Beal v. Stern, the Second Circuit held that "prompt access to judicial review in state courts" would satisfy the first twoFreedman protections. 184 F.3d 117, 129 (2d Cir.1999). This conclusion holds true with respect to judicial review in federal courts as well. The third Freedman safeguard, the requirement that the government bear the burden both of initiating judicial review and, once in court, of justifying the prior restraint, is not satisfied by § 3511(b), which places the burden of challenging the nondisclosure order on the NSL recipient. The question for the Court, therefore, is whether, on the premise that Freedman applies to the statutory design of § 2709, the First Amendment requires that the third Freedman procedural safeguard govern the validity of § 2709(c). Specifically, the Court must determine whether, as Plaintiffs argue, the reasoning and analysis underlying the Freedman decision apply with equal force in this context, or whether, as the Government counters, the form and scope of the First Amendment harm as well as the compelling national security interests at issue differ so substantially that this procedural protection is not demanded in this case. Comparing the licensing scheme embodied in § 2709(c) with that at issue inFreedman, many shared characteristics are apparent. Both statutes give an agency of the executive branch broad discretion to restrict a particular category of speech, on a case­by­case basis, based solely on its content. The decision to limit speech is made by the government agent prior to any judicial determination as to whether the restriction is constitutional. Although the context of the public

exhibition of motion pictures differs substantially from the asserted national security interests entailed in the disclosure of an NSL, both situations present a serious risk of unconstitutionally restricting speech. Importantly, both licensing schemes involve the inherent danger that the government agency might be "less responsive than a 402*402 court . . . to the constitutionally protected interests in free expression," Freedman, 380 U.S. at 57­58, 85 S.Ct. 734, as well as the substantial likelihood that the censored party — in this case the ECSP — will not have an adequate incentive to challenge the nondisclosure order in court. As in Freedman, "[b]ecause the censor's business is to censor," 380 U.S. at 57, 85 S.Ct. 734, the ultimate concern is that, in the absence of adequate procedural safeguards, the licensing determination "may in practice be final," id. at 58,85 S.Ct. 734, resulting in a broad de facto power to censor constitutionally protected speech. Two essential considerations distinguish the licensing scheme at issue here from that in Freedman. First, Freedman addressed a system aimed at discerning obscene films, which presumably would not be entitled to First Amendment protection, from those that the Board viewed as "moral and proper," id. at 52 n. 2, 85 S.Ct. 734. In contrast, here the speech in question — information regarding the government's monitoring of its citizens' activities, especially when the actions surveilled encompass legitimate expression — is a central concern of the First Amendment. See Gentile v. State Bar ofNevada, 501 U.S. 1030, 1034, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991) ("There is no question that speech critical of the exercise of the State's power lies at the very center of the First Amendment."); Butterworth, 494 U.S. at 632, 110 S.Ct. 1376 ("[I]nformation relating to alleged governmental misconduct [is] speech which has traditionally been recognized as lying at the core of the First Amendment."). The risk of investing the FBI with unchecked discretion to restrict such speech is that government agents, based on their own self­certification, may limit speech that does not pose a significant threat to national security or other compelling governmental interest. See New York Times v. United States, 403 U.S. 713, 727 n. *, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) ("[T]here is no question but that the material sought to be suppressed is within the protection of the First Amendment; the only question is whether, notwithstanding that fact, its publication may be enjoined for a time because of the presence of an overwhelming national interest.") (Brennan, J., concurring). If the Supreme Court found theFreedman safeguards necessary even in the narrow context of potentially unprotected expression encompassed by obscenity restrictions, logically the safeguards are all the more appropriate in ensuring that core political speech is not suppressed in the absence of a compelling government interest. Second, Freedman involved what the Government refers to as "the classic form of licensing

censorship" (Gov't Opp. 17), in which an individual proposes to communicate certain ideas or expressions of that person's own creation, and a governmental agency then passes judgment on whether the individual should be restricted from speaking to others about the prohibited subject. In the context of § 2709(c), the information that is encompassed by the restriction on its communication is that the FBI has served the NSL on the recipient. The recipient acquires this information only through its interaction with the government and, not having created or initiated the information, has no prior intent to communicate it. The Government argues on this basis that § 2709(c) is "a far cry from the pure form of prior­restraint censorship addressed in Freedman." (Gov't Opp. 18.) Accordingly, the Government contends that § 2709(c) requires none of the procedural safeguards outlined in Freedman. The question for the Court, therefore, is whether the fact that government is the source of the information at issue mandates that communication of that information 403*403 by other persons be subject to less First Amendment protection. In Doe I, the Court addressed this question by reviewing a line of cases involving secrecy provisions relating to grand jury proceedings and judicial misconduct hearings. See 334 F.Supp.2d at 516­19. Those cases demonstrate that, in analyzing the validity of certain secrecy statutes under the First Amendment, courts have distinguished information speakers learned by virtue of participation in a government investigation from information they obtained independently. Seattle Times Co. v. Rhinehart involved the right of a newspaper to publish confidential information that it had gained through discovery in a civil litigation and that was subject to a protective order issued by the trial court. See 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984). The Supreme Court held that the protective order did not violate the First Amendment, reasoning that the newspaper had acquired the information "only by virtue of the trial court's discovery processes," and that it had "no First Amendment right of access to information." Id. at 32, 104 S.Ct. 2199. Accordingly, the Court applied intermediate scrutiny in light of its conclusion that "continued court control over the discovered information does not raise the same specter of government censorship that such control might suggest in other situations." Id. The Supreme Court shed further light on its Rhinehart holding in United States v. Aguilar, 515 U.S. 593, 115 S.Ct. 2357, 132 L.Ed.2d 520 (1995). Likening the newspaper's situation to that of government officials in sensitive confidential positions, the Court noted: "As to one who voluntarily assumed a duty of confidentiality, governmental restrictions on disclosure are not subject to the same stringent standards that would apply to efforts to impose restrictions on unwilling members of the public." Id. at 606, 115 S.Ct. 2357. An NSL recipient, on the contrary, does notvoluntarily assume a duty of confidentiality; that duty is unilaterally imposed on him by

the FBI. Furthermore, as the Doe II court emphasized, an order prohibiting the "use of material a civil litigant has requested in discovery . . . differs greatly from a law barring disclosure of the use of the government's authority to compel disclosure of information." 386 F.Supp.2d at 75. In Butterworth, the Court held that a Florida grand jury secrecy statute violated the First Amendment insofar as it "prohibit[ed] a grand jury witness from disclosing his own testimony after the term of the grand jury has ended." 494 U.S. at 626, 110 S.Ct. 1376. Justice Scalia, concurring, emphasized that the case before the Court presented only the issue of prohibiting a grand jury witness "from making public what he knew before he entered the grand jury room," as opposed to prohibiting "disclosure of the grand jury proceedings, which is knowledge he acquires not `on his own' but only by virtue of being made a witness." Id. at 636, 110 S.Ct. 1376. In Kamasinski v. Judicial Review Council, the Second Circuit applied this distinction in a First Amendment challenge to a Connecticut statute that prohibited certain disclosures related to judicial misconduct hearings held by the state's Judicial Review Council ("JRC"). See 44 F.3d 106 (2d Cir.1994). The Kamasinski Court held that the restrictions at issue were content­based and that strict scrutiny therefore applied — "the challenged regulations must be necessary to serve a compelling state interest and be narrowly drawn to serve that end." Id. at 109. The Circuit Court then enumerated three categories of information potentially subject to the statute: (1) "the substance of an individual's 404*404 complaint or testimony," (2) "the complainant's disclosure of thefact that a complaint was filed, or the witness's disclosure of the fact that testimony was given," and (3) "information that an individual learns by interacting with the JRC, such as information gained by hearing the testimony of other witnesses or comments made by members of the JRC." Id. at 110 (emphasis in original). Recognizing that each of these categories of information "involves differing First Amendment interests," the Circuit Court considered them separately under the strict scrutiny standard. Id. It held that prohibition of the first category of information would clearly violate the First Amendment, but that the state had sufficiently compelling interests to justify a limited ban on disclosure of the latter two categories for the duration of the initial investigatory phase of the proceedings. See id. at 110­12. In Doe I, the Court concluded from its analysis of these cases that "laws which prohibit persons from disclosing information they learn solely by means of participating in confidential government proceedings trigger less First Amendment concerns than laws which prohibit disclosing information a person obtains independently." Id. at 518. This statement simply reflects that, as Kamasinski illustrates, a restriction on information acquired by way of a confidential government investigation is more likely to satisfy strict scrutiny in light of two unique considerations inherent in those proceedings: the compelling government interest in keeping ongoing investigations

secret, and the safeguard that the restraint is necessarily narrowly tailored to curtail the minimum of speech. See id. at 516 ("[C]ourts generally uphold secrecy statutes in connection with official investigations in recognition of two vital considerations: the importance of secrecy and that the secrecy is limited . . . to facts learned only by virtue of a given person's participation in the proceeding."). The Court's remark is not meant to suggest, however, that a restriction on such speech is subject to anything less than strict scrutiny — or, as the Government here felicitously phrases it, "a less stringent application of strict scrutiny." (Gov't Opp. 27.) In the present case, therefore, the decision as to whether the third Freedman safeguard is required must not be made on the basis that the speech that the NSL statute restricts is worthy of less than full constitutional protection, but rather on a determination of whether that safeguard is essential to preventing unwarranted restrictions on speech. In clarifying the applicability and scope of the third Freedman safeguard, an examination of the Supreme Court's decision in FW/PBS is instructive. In FW/PBS, the Supreme Court examined a Dallas ordinance that imposed on sexually oriented businesses an onerous set of inspections, which were required whenever ownership changed hands or the business applied for the annual renewal of its permit. See 493 U.S. at 225, 110 S.Ct. 596. As was the case of the licensing scheme in Freedman, the ordinance placed no time limitation on the city governing completion of the inspections. The Supreme Court held that the first two Freedman safeguards must apply to the ordinance. See id. at 228, 110 S.Ct. 596. With respect to the third Freedman safeguard, however, a plurality of the Court[18]distinguished the ordinance at issue on the ground that the city did not 405*405 engage in direct censorship of particular speech, but simply reviewed the qualifications of the license applicants — "a ministerial action that is not presumptively invalid." Id. at 229, 110 S.Ct. 596. The plurality also noted that, unlike in Freedman, the license applicant, whose business depended on obtaining a license, had a strong incentive to challenge an unfavorable determination in court. Because of these two differences, the plurality concluded that "the First Amendment does not require that the city bear the burden of going to court to effect the denial of a license application or that it bear the burden of proof once in court." Id. at 230, 110 S.Ct. 596. A number of circuit courts, including the Second Circuit, have interpreted FW/PBS as limiting the application of the third Freedman safeguard to "those situations in which `the censor engaged in direct censorship of particular expressive material,' " and not where the government does "`not exercise discretion by passing judgment on the content of any protected speech.'" MacDonald v. Safir, 206 F.3d 183, 195 (2d Cir.2000) (quoting FW/PBS, 493 U.S. at 229, 110 S.Ct. 596); see also N.W. Enterprises Inc. v. City of Houston, 352 F.3d 162, 199 (5th Cir.2003); MacDonald v.

City of Chicago, 243 F.3d 1021, 1035­36 (7th Cir.2001); Ward v. County of Orange,217 F.3d 1350, 1354­55 (11th Cir. 2000); Steakhouse, Inc. v. City of Raleigh, 166 F.3d 634, 640­41 (4th Cir.1999). This analysis supports a determination that the thirdFreedman safeguard should apply to a review of § 2709(c). As discussed above, and determined in both Doe I and Doe II, the NSL nondisclosure provision embodies a content­based prior restraint on speech, in that the FBI decides in advance to restrict certain speech of the recipient — the issuance and receipt of a particular NSL — based solely on its content. Unlike the city authority in FW/PBS, in issuing a nondisclosure order, the FBI does not make its determination based strictly on the characteristics or qualifications of the NSL recipient; nor could its decision be described as merely a routine "ministerial action." The FW/PBS decision also supports application of the third Freedman safeguard in evaluating the constitutionality of § 2709(c) here on the ground that an NSL recipient — an ECSP — will generally lack the incentive to challenge the nondisclosure order in court — as noted by the Supreme Court in Freedman. See 380 U.S. at 59, 85 S.Ct. 734. Such a challenge would be time consuming and financially burdensome, and, unlike the situation in FW/PBS, the NSL recipient's business does not depend on overturning the particular form of restriction on its speech. That NSL recipients generally have little or no incentive to challenge nondisclosure orders is suggested by empirical evidence. Although the FBI issued 143,074 NSL requests from 2003 to 2005 alone[19] (See OIG Report 36), the most recent year for which figures have been released, only two challenges have been made in federal court since the original enactment of the statute in 1986. See Doe I, 334 F.Supp.2d at 502 ("The evidence suggests that, until now, none of those NSLs was ever challenged in any court."); Doe II, 386 F.Supp.2d at 74 n. 6. The Court is not aware of any additional challenges to an NSL gag order that have been made since the statute was revised to allow for challenges pursuant to § 3511. 3. The NSL Statute Fails to Satisfy Freedman In light of these considerations, the Court concludes that the third Freedman 406*406procedural safeguard does apply to judicial review of the NSL statute. Accordingly, it is the government that must bear the burden of going to court to suppress the speech and that must bear the burden of proof once in court. Section 2709(c) grants broad discretion to the FBI to completely restrict constitutionally protected speech on the basis of its content, and it places the burden of challenging this restriction in court solely on the NSL recipient — a party that, in the overwhelming majority of cases, lacks any real incentive to do so. The combination of these factors makes it likely that the FBI would possess broad, unchallenged, and "in practice . . . final" power, Freedman,380 U.S. at 58, 85 S.Ct. 734, to restrict a wide band of protected speech — a

result prohibited by the Constitution. As Justice Brennan wrote in his FW/PBS concurrence, "Mistakes are inevitable; abuse is possible. In distributing the burdens of initiating judicial proceedings and proof, we are obliged to place them such that we err, if we must, on the side of speech, not on the side of silence." 493 U.S. at 241­42, 110 S.Ct. 596. That the government bears the burden of justifying the need for nondisclosure to a court does not mean that the FBI must obtain the approval of a court prior to issuing an NSL with a nondisclosure order. In light of the first two Freedman protections, the FBI may issue a temporary nondisclosure order on its own in accordance with the standards set forth in § 2709(c), provided that, within a reasonable and brief period of time, it must either notify the NSL recipient that the order is no longer in effect, or justify to a court the need for a continued period of nondisclosure. This observation does not imply, however, that an NSL recipient may not, at any time, also petition a court to modify or set aside a nondisclosure order, but simply that the burden can not be placed solely on the recipient to do so. Allowing the FBI to issue nondisclosure orders for a limited period of time prior to any judicial oversight balances the strong First Amendment concerns at issue with the FBI's need to act quickly in conducting counterterrorism investigations. This balance also takes into account that, as described in the OIG Report, the FBI is now using NSLs as an information­gathering tool in the preliminary phase of its investigations. It allows the FBI measured discretion, sufficient but not greater than necessary, to issue NSLs with nondisclosure orders, without demanding that it immediately be required to produce evidence substantiating its assertion that disclosure might endanger national security. E. DISCRETION Plaintiffs argue that § 2709(c) violates the First Amendment because the standard governing the issuance of nondisclosure orders provides the FBI with unbridled discretion to suppress speech. Plaintiffs assert that a scheme that invests executive officers with such broad discretion to suppress speech is unconstitutional even if it otherwise affords adequate procedural safeguards. (See Pls.' Mem. 21 (citing FW/PBS, 493 U.S. at 226, 110 S.Ct. 596).) In Shuttlesworth v. City of Birmingham, the Supreme Court considered 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" required that the permit be denied. 394 U.S. 147, 149­50, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969). Finding that the ordinance gave city officials "virtually unbridled discretion and absolute power" to deny a permit, the Court found the ordinance unconstitutional. Id. at 150, 89 S.Ct. 935. The Court 407*407 held that an ordinance that "makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent

upon the uncontrolled will of an official . . . is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms." Id. at 150­51, 89 S.Ct. 935. Accordingly, courts are generally skeptical of licensing schemes that grant extensive or undefined discretion to government officials. See Forsyth County, 505 U.S. at 131, 112 S.Ct. 2395 ("If the permit scheme involves the appraisal of 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); City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 769, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988) ("It is apparent that the face of the ordinance itself contains no explicit limits on the mayor's discretion. Indeed, nothing in the law as written requires the mayor to do more than make the statement `it is not in the public interest' when denying a permit application."); Safir, 206 F.3d at 192 (the statute, "which allows the Commissioner to deny a permit if he believes the parade `will be disorderly in character or tend to disturb the public peace,' . . . appear[s] to afford the Commissioner exactly the sort of discretion that has been found to violate the First Amendment."); Nichols v. Village of Pelham Manor, 974 F.Supp. 243, 251 (S.D.N.Y.1997) (invalidating statute that allowed Chief of Police to deny license based on considerations of "health, comfort and convenience of the residents"). These cases make clear that any statute that provides officials with discretion to potentially suppress speech through a license must also contain "narrow, objective and definite standards to guide the licensing authority." Shuttlesworth, 394 U.S. at 150, 89 S.Ct. 935. Plaintiffs argue that § 2709, by allowing an FBI official to prohibit disclosure of an NSL if that official believes disclosure "may result" in any one of the Enumerated Harms, including "a danger to the national security of the United States," fails to provide such narrow, objective and definitive standards. Plaintiffs argue that a standard based on "a danger to national security," among other potential harms, is simply not susceptible to an objective test. They contend that the term "national security" is inherently vague, and they point out that it has been used in the past to "cloak many questionable executive practices." (Reply in Support of Plaintiffs' Motion for Partial Summary Judgment and Opposition to the Government's Motion to Dismiss or for Summary Judgment ("Pls.' Reply"), dated Dec. 15, 2006, at 17.) Additionally, Plaintiffs express concern that there is no objective criteria to guide the FBI in determining what level of threat is sufficient to require nondisclosure of the NSL. (See Pls.' Reply 18 ("How significant must a threat be before it is deemed to `endanger' one of the specified government interests? Is any non­negligible threat sufficient? Is even a negligible threat sufficient?") (emphasis in original)). Indeed, the Supreme Court has indicated that "[t]he danger to political dissent is acute where the

Government attempts to act under so vague a concept as the power to protect `domestic security.' Given the difficulty in defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent."United States v. United States District Court, 407 U.S. 297, 314, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); see also New York Times, 403 U.S. at 719, 91 S.Ct. 2140 ("The word `security' is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in 408*408 the First Amendment.") (Black, J. and Douglas, J., concurring). The invitation to abuse of discretion, Plaintiffs contend, is compounded by the breadth of discretion conferred on the FBI; the FBI, without any prior independent review, merely needs to certify that disclosure "may" result in any one of the Enumerated Harms. Cf. New York Times, 403 U.S. at 725­26, 91 S.Ct. 2140 ("The entire thrust of the Government's claim throughout these cases has been that publication of the material sought to be enjoined `could,' or `might,' or `may' prejudice the national interest in various ways. But the First Amendment tolerates absolutely no prior judicial restraints of the press predicated upon surmise or conjecture that untoward consequences may result.") (Brennan, J., concurring). Plaintiffs' arguments are not without merit. Without doubt, § 2709(c) confers broad discretion to the FBI to accompany NSLs with nondisclosure orders — it may do so upon certification that disclosure of the NSL "may" result in any of the several Enumerated Harms. In particular, the Court agrees that a standard relating to endangering "national security" is susceptible to very broad interpretation. However, the Court is not persuaded that the FBI's discretion under § 2709(c) is so unrestrained as to rise to the level of a constitutional infirmity. While the Court recognizes that the standard is broadly phrased, it is also mindful of the limitations of language to capture the fine lines distinguishing the permissible from the proscribed, and the legitimate exercise of government discretion from the infringement on protected rights. As the Second Circuit has observed, "`[p]erfect clarity and precise guidance have never been required even of regulations that restrict expressive activity,' and `flexible' standards granting `considerable discretion' to public officials can pass constitutional muster."Field Day, LLC v. County of Suffolk, 463 F.3d 167, 179 (2d Cir.2006) (quoting Ward v. Rock Against Racism, 491 U.S. at 794, 109 S.Ct. 2746). That the rubric of "national security" has been abused on occasion does not imply that the Court should presume the language of "national security" in § 2709(c) necessarily affords unfettered discretion to the FBI likely to result in abuse. Despite past abuses, it remains "well­settled doctrine that courts grant substantial deference to the political branches in national security matters." Doe I, 334 F.Supp.2d at 523; see alsoZadvydas v. Davis, 533 U.S. 678, 696, 121 S.Ct.

2491, 150 L.Ed.2d 653 (2001) (courts may afford "heightened deference to the judgments of the political branches with respect to matters of national security"). The context of counterterrorism investigations requires that the FBI have a degree of discretion in using NSLs to gather information about the targets of investigations and others who may be involved peripherally. Deference by courts to executive determinations of threats to "national security" exists in part because evaluating such threats is not a precise science, and some flexibility is necessary in making such determinations in the first instance. Thus, the Court is convinced that requiring further tailoring of the discretionary standard of § 2709(c) would be unlikely to offer significant benefits to First Amendment concerns and could lead to "regulations that are so tightly worded that the flexibility needed for administration is lacking." Safir, 206 F.3d at 191. As the Court stated in Doe I, "[t]he high stakes here pressing the scales . . . compel the Court to strike the most sensitive judicial balance, calibrating by delicate increments toward a result that adequately protects national security without 409*409 unduly sacrificing individual freedoms." 334 F.Supp.2d at 478. In striking this balance, the Court finds that the FBI's discretion in certifying a need for nondisclosure of an NSL is broad but not inappropriately so under the circumstances. As detailed elsewhere in this opinion, the best protection against abuse of the FBI's discretion in certifying nondisclosure is to ensure that such discretion is checked by meaningful and reasonably expeditious judicial review. F. PRESCRIBING THE STANDARD OF JUDICIAL REVIEW As the Court has already made clear, judicial review of the Reauthorization Act's nondisclosure requirement is subject to strict scrutiny. Section 3511(b) allows a reviewing court to modify or set aside the nondisclosure requirement of an NSL issued under § 2709 only "if it finds that there is no reason to believe that disclosure" will lead to one of the Enumerated Harms. 18 U.S.C. 3511(b)(2). Moreover, if an authorized Justice Department or FBI 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. The Court agrees with Plaintiffs that this standard is plainly at odds with First Amendment jurisprudence which requires that courts strictly construe content­based restrictions and prior restraints to ensure they are narrowly tailored to advance a compelling government interest. A court reviewing a statute implicating the First Amendment must review that statute in accordance with First Amendment doctrine.See Blount, 400 U.S. at 420, 91 S.Ct. 423 (provision which required a district court to "grant the relief sought by the Postmaster General upon a showing merely of `probable cause'" did not "satisfy the demands of the First

Amendment," which required more meaningful judicial review). 1. Congress Cannot Legislate a Standard of Review at Odds with First Amendment Jurisprudence
a. Historical Context of Checks and Balances and Separation of Powers
Because the discussion of the next point addresses elementary issues that are already very well known, an introductory note may be in order to explain the reason for what may seem like unnecessary rehashing. In fact, some things broadly familiar are so self­evident that they should not need to be said, for at times the axiomatic annoys or embarrasses by tedious repetition. Yet, sometimes we are compelled to recite the obvious again because on occasion, counter to even the most constant refrain of the same theme, the message still goes unnoticed, or inadequately considered, perhaps ignored. For instance, the proscription against impermissible entry upon another person's land, while universally accepted, and despite the posting of prominent "No Trespass" signs, fails to stop all intrusions. Whatever the reason, when the risks and the valuables at stake are high enough, some reiteration of the plain and simple may be justifiable, because there comes a point at which the encroachment poses clear, serious danger, and prudence and self­protection then counsel us to take the greater precautions called for by the occasion, which may mean erecting a clearer demarcation of the boundaries, or placing additional, more distinct or sharper warnings. In this spirit, what follows is a reminder of a crucial concept often repeated in this country's history and jurisprudence. When the Founders designed our constitutional410*410 democracy, they divided the government into three branches. Each part of it was assigned distinct functions with corresponding powers. Each segment was separate but coequal. Yet, while independent of the others, the workings of each were integrated as a whole. In the interest of securing the stability and endurance of the unified structure, the roles designated for each branch were designed to serve distinct purposes, both as control and as sentry: to govern over the subjects and functions that fell within its domain, and to guard against threats, internal as well as external, to what each was uniquely charged to protect. See City of Boerne v. Flores, 521 U.S. 507, 535­36, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) ("Our national experience teaches that the Constitution is preserved best when each part of the Government respects both the Constitution and the proper actions and determinations of the other branches."). Hence, in the plan of the Constitution, Congress was expressly authorized to write the laws, and

in furtherance of that task was granted control over the national purse. The president was empowered to enforce the law and protect the national security, and to those ends bestowed command over the armed forces. And to the judiciary was delegated a duty that, on balance, was perhaps the most delicate responsibility of all: the power to say what, in the last analysis, the law is — an authority that entails ensuring that the Constitution, as interpreted by the courts, remains the supreme law of the land. See Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 177, 2 L.Ed. 60 (1803)(declaring that "it is emphatically the province and duty of the judicial department to say what the law is."); see also The Federalist, No. 78 (Hamilton). In exercising that role as final arbiter of the structure and content of the law as it derives from the Constitution, though the judiciary cannot levy taxes or raise armies, the courts were entrusted as guardians of another vital national resource: the fundamental rights and liberties of the people. The success of judicial protection under this mandate depends upon ensuring that at all times the governmental system functions as ordered, that each branch remains within its proper contours in performing the duties assigned to it, and that none encroaches upon the provinces conferred upon the others. To these ends, the Constitution erected interlocking barriers in the form of checks and balances embodied in various provisions. For, the Framers, manifesting both the concerns that motivated the governmental blueprint they drafted, and the genius and wisdom of their unique plan, realized that absent such critical separations, the system would face constant peril in the event all power were concentrated, whether by delegation, accretion, or arrogation, in the same hands. That prospect, in the Founders' fears, amounted to a license for abuse of power and potential tyranny, dangers likely to be paid for with the liberties of a free people. In this essential tenet, in maintaining the delicate checks and balances and separation of powers among its constituent branches at all times, rests the integrity and survival of our nation's form of government. To guarantee that lasting stability demands that each branch honors its own bounds of authority, and those of the others. The courts of course cannot legislate or administer executive offices. By the same token, Congress and the executive must abide by the rule of law, in times of domestic tranquility and of national crisis, in war and in peace. As the Supreme Court recognized early in our constitutional history, the measure and adjustment of the proper balance of governmental 411*411 power is a unique obligation of the judiciary. In the words of Chief Justice Marshall: "[T]he courts were designed to be an intermediate body between the people and the legislative, in order, among other things, to keep the latter within the limits assigned to their peculiar authority. The interpretation of the laws is a proper and peculiar province of the courts." Marbury, 5 U.S. (1 Cranch) at 178; see also Hamdi v. Rumsfeld, 542 U.S. 507, 536, 124

S.Ct. 2633, 159 L.Ed.2d 578 (2004) ("We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens."); Home Bldg. & Loan Ass'n v. Blaisdell,290 U.S. 398, 426, 54 S.Ct. 231, 78 L.Ed. 413 (1934) ("[E]ven the war power does not remove constitutional limitations safeguarding essential liberties."); Er parte Milligan,71 U.S. (4 Wall.) 2, 120­21, 18 L.Ed. 281 (1866). b. Application of the Principles Separation of Powers Against this backdrop of history and constitutional premises, § 3511(b) is invalid because it does not reflect full account of these controlling principles and the long­standing national experience from which their force derives. That provision amounts to a significant congressional incursion, one with profound implications, into exclusive jurisdictional ground the Constitution reserves for the judiciary's role in our government. Of greatest concern, the law encroaches onto what is perhaps the most consequential authority the courts possess: the sole power to judge how to take the proper measure of the validity of a statute as aligned against the precepts of the Constitution itself, and to that end decide what constitutional rule of law must apply to guide that crucial test. Thus, this aspect of the Reauthorization Act, however legitimate and compelling the national interests it otherwise embodies, fails a test of recognition, insofar as it breaches the proper constitutional limits drawn for our government by the concepts of separation and balance of power. In this respect, the statute overlooks a potential risk, weighty in its far­reaching implications. All could be lost of the judiciary's most vital function, and hence of the individual freedoms of Americans, if the courts were to cede fundamental decisional power to Congress, and were Congress in turn empowered to override the courts in laying down the law that governs constitutional review of legislation or of an action of the executive. Moving from the general to the particulars, the Court finds that the standard of review prescribed in § 3511(b) is sharply at odds with the standard of review the Supreme Court has explicitly held is required to assess the conformance of a statute with the strictures of the First Amendment. Congress cannot legislate a constitutional standard of review that contradicts or supercedes what the courts have determined to be the standard applicable under the First Amendment for that purpose. See Dickerson v. United States, 530 U.S. 428, 437, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000) ("Congress may not legislatively supersede our decisions interpreting and applying the Constitution."); Marbury, 5 U.S. (1 Cranch) at 177 ("It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act."). The Government argues that the standard set forth in § 3511 is merely a codification of the deferential standard of review applied by courts to executive determinations to prohibit disclosure

of information in the interest of national security. The Government points out that in Doe I this 412*412 Court specifically acknowledged that deference. See334 F.Supp.2d at 523. But even while acknowledging that the Government should be accorded a due measure of deference when it asserts that secrecy is necessary for national security, the Court in Doe I nonetheless applied strict scrutiny to the nondisclosure provision of § 2709. The Court begins with the observation that a distinguishing factor between the review standard codified in § 3511(b) and cases of national security deference cited by the Government — and this Court in Doe — generally involve the courts voluntarilycrediting an invocation of national security and voluntarily deferring to the executive in a particular instance. Thus, in those cases, judicial deference and restraint was self­imposed, in the courts' own recognition of their lack of expertise in assessing highly sensitive matters under the particular circumstances of the case before them. Here, § 3511(b) mandates when and how deference should be accorded. Congress has in effect prescribed to the judiciary the standard of review a court must apply in assessing the validity of a government restriction on First Amendment rights in every case and every circumstance arising under the statute, thereby transforming judicial deference into subservience to executive judgments. It is well settled by many years of judicial interpretation of the First Amendment that a statute which constitutes a prior restraint on speech or a content­based restriction on speech must be strictly construed, meaning that it must be narrowly tailored to advance a compelling government interest. That is what the judiciary has said the constitutional law is on this vital principle. Congress, even as an accommodation to the executive branch on matters of national security, cannot say that that constitutional standard is something else. That is precisely what § 3511 attempts to do insofar as it decrees the standard of review and level of deference the judiciary must accord to the executive in adjudicating a challenged restriction on protected speech. The Supreme Court's decision in Dickerson and City of Boerne are both instructive on this point. In Dickerson, the Supreme Court held that Congress could not legislatively alter the Supreme Court's previously established and well­known Miranda rights. SeeMiranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). As theDickerson Court explained, in Miranda it had "laid down `concrete constitutional guidelines for law enforcement agencies and courts to follow" to ensure a criminal suspect's Fifth Amendment right against self­incrimination was not violated. 530 U.S. at 435, 120 S.Ct. 2326. Miranda meant that even if a criminal suspect in custody voluntarily made statements during an interrogation, those statements ordinarily could not be used against that individual if no Miranda warnings had been provided. Two years after Miranda, Congress enacted a statute effectively dispensing with theMiranda warnings and requiring only

that a statement be voluntary to be admissible.Id. at 435, 120 S.Ct. 2326 (the statute at issue was 18 U.S.C. § 3501). The Supreme Court in Dickerson, finding that the Miranda decision did announce a "constitutional rule," concluded that Congress could not legislatively supersede such a rule. Id. at 437, 86 S.Ct. 1602. Similarly, in City of Boerne, the Supreme Court considered the constitutionality of legislation which required courts to apply strict scrutiny when challenges were brought against neutral, generally applicable laws under the Free Exercise Clause of the First Amendment. The Supreme Court had previously stated that such laws could be applied to religious practices even 413*413 when government officials could not point to a compelling interest supporting the challenged law. See 521 U.S. at 512­13, 117 S.Ct. 2157 (referring to Employment Div., Dep't of Human Res. of Ore. v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990)). Thus, the Supreme Court found Congress had exceeded its authority, holding that "[w]hen the Court has interpreted the Constitution, it has acted within the province of the Judicial Branch. . . . When the political branches of the Government act against the background of a judicial interpretation of the Constitution already issued, it must be understood that in later cases and controversies the Court will treat its precedents with the respect due them under settled principles, including stare decisis, and contrary expectations must be disappointed." Id. at 536, 117 S.Ct. 2157. What these cases make clear is that when the judiciary has established a "constitutional rule," such as requiring that any prior restraint or content­based restriction on speech be narrowly tailored to support a compelling government interest, the courts must respect and apply such previously established rules in reviewing a challenge to a government curtailment of constitutionally protected expression, even if Congress and the executive branch urge otherwise.
c. Prospective Concerns
Having found that in adopting the Reauthorization Act's standard of review provision Congress impermissibly crossed over its jurisdictional bounds under the letter of the Constitution, the Court deems it appropriate at this point to identify the specific dangers to to form of government that it finds deeply problematic in respect of the statute under the spirit of the Constitution as well, and that potentially lurk in the shadows of the law if the encroachment were allowed to stand. For § 3511 raises grave concerns not just for what it is, but for what it could become if not effectively checked. Under these circumstances, a court should present the clearest and most instructive articulation of the pertinent law, offering guidance not only as to what is wrong with the particular statute under judicial consideration in the light of constitutional imperatives but also of potential

pitfalls, as viewed from all relevant perspectives. As drafted, § 3511(b) could serve as a precedential step toward the development of a much larger and more fearsome vehicle for legislative or executive intrusion into the business of the courts. Conceivably, what might commence as an innocent legislative step over a blurry line in the dark, could later stretch into a means of farther and more detrimental invasion of the courts' prerogatives — the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values. The pernicious consequences which that prospect could trigger cannot be overstated, or lightly discounted. If Congress were able not only to enact the substance of legislation, but also to prescribe the precise corresponding rule telling the courts what level of scrutiny to apply in properly gauging the constitutionality of the statute's application in practice, the barriers against government abuse that the principles of separation and balance of powers were designed to erect could be severely compromised, and may eventually collapse, with consequential diminution of the judiciary's function, and hence potential dire effects to individual freedoms. In that event, the courts' exercise of judicial review could effectively be reduced to that of a mere mouthpiece of the legislature. And with the courts so enervated, Congress would possess what would amount to 414*414 a self­regulated means, by way of a back door when it so elected, to decide that the Constitution means whatever Congress says it means. Any piece of legislation could then be equipped, as a standard feature, with its own brand of judicial review of Congress's choosing, which could be styled to make the validation of the law foolproof. Once embarked on such a course, how far the legislative limits may be pushed before they go too far and the harms become intolerable is uncertain. More certain is that few of the possible outcomes are likely to end happily. What would deter the legislative branch, dispensing with niceties and formalities altogether, from eventually superseding the standards of review the courts have devised for application in deciding First Amendment disputes — the concept of strict scrutiny, for example, — and formulating its own rules to govern such judicial oversight? These concerns may be readily dismissed as protesting too much, as conjuring a remote, unduly alarmist parade of horrors. But those who are inclined, for the risk of the moment, to give chance a chance by wagering against the improbable, should consult history for its guidance as to what the roll of the dice may hold in predictable situations. The past is long, and so is the future we want to protect. But too often memory is short. The pages of this nation's jurisprudence cry out with compelling instances illustrating that, called upon to adjudicate claims of extraordinary assertions of executive or legislative or even state power, such as by the high degree of deference to the executive that the Government here contends § 3511(b) demands of

the courts, when the judiciary lowers its guard on the Constitution, it opens the door to far­reaching invasions of liberty. See, e.g., Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944); Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896). These examples, however few in number, loom large in proportions of the tragic ill­effects felt in the wake of the courts' yielding fundamental ground to other branches of government on the constitutional role the judiciary must play in protecting the fundamental freedoms of the American people. Viewed from the standpoint of the many citizens who lost essential human rights as a result of such expansive exercises of governmental power unchecked by judicial rulings appropriate to the occasion, the only thing left of the judiciary's function for those Americans in that experience was a symbolic act: to sing a requiem and lower the flag on the Bill of Rights. To cite the teaching of one case, in 1944 the Supreme Court, amidst public passions wartime aroused, and under the mantle of national security and military expediency, endorsed the president's exercise of unilateral authority to relocate all Americans of Japanese descent (but not those of other nations also at war with the United States) to internment camps for the duration of the hostilities. See Korematsu, 323 U.S. at 216­18, 65 S.Ct. 193. Later, that ruling was much regretted not only for what it represented as a retreat from the judiciary's constitutional function in safeguarding American liberties and democratic principles, but for the potentially deleterious precedent it set of the courts' bowing unjustifiably to extraordinary actions of the other branches of the government. See Korematsu v. United States, 584 F.Supp. 1406, 1420 (N.D.Cal.1984)("As historical precedent [Korematsu] stands as a constant caution that in times of war or declared military necessity our institutions must be vigilant in protecting constitutional guarantees. It stands as a caution that in times of distress the shield of military necessity and national security must not be 415*415 used to protect governmental actions from close scrutiny and accountability."). Indeed, just eight years after Korematsu, the president, invoking the same theory of inherent power, national defense, and military exigency that prevailed in Korematsu,sought to nationalize the nation's steel mills in order to avert a strike by steelworkers.See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 582­83, 72 S.Ct. 863, 96 L.Ed. 1153 (1952). But, by contrast, on that occasion the Supreme Court was not deferential to a comparably extraordinary claim of unbounded executive power that would have trampled upon the principle of separation of powers. While Youngstown Sheet concerned executive encroachment on Congress's authority under the Constitution, the separation of powers principle the Supreme Court reaffirmed applies with equal force in this context as well "The Founders of this Nation entrusted [the power to say what the law is under the Constitution to the courts] alone in both good times and bad times. It

would do no good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice." Id. at 589, 72 S.Ct. 863. As Doe I noted, the Court recognized the "heavy weight" of September 11, 2001, "a murderous attack of international terrorism, unparalleled in its magnitude, and unprecedented in America's national security," that looms over this proceeding. See334 F.Supp.2d at 477­78. Its effect is still felt and acknowledged by this Court, which sits just a few blocks from where the World Trade Center towers fell. The Court is also mindful of the executive's need to meet new threats to national security with new and ever more effective means of detecting and stopping those perils. Indeed, since September 11, 2001 the executive has sought additional ways of securing the nation, which is its prerogative, including efforts at expanding its surveillance powers. However, new methods of protecting and combating threats that result in asserted expansions of executive power underscore the courts' concerns of the dangers in suffering any infringement on their essential role under the Constitution.[20] The Constitution was designed so that the dangers of any given moment would never suffice as justification for discarding fundamental individual liberties or circumscribing the judiciary's unique role under our governmental system in protecting those liberties and upholding the rule of law.[21] It is the judiciary's independent 416*416 function to uphold the Constitution even if to do so may mean curtailing Congress's efforts to confer greater freedom on the executive to investigate national security threats. 2. The Review Prescribed by § 3511(b) Does Not Comport with First Amendment Jurisprudence The Government attempts to minimize or dismiss the separation of powers concern raised by § 3511(b) by insisting that the provision is not at odds with strict scrutiny. The cases cited by the Government do not support its assertion that the standard of review mandated by § 3511(b) is simply a codification of case law on the substantial deference courts afford the executive in matters of national security in which the information sought to be suppressed is of the government's own creation. First, the majority of the cases cited by the Government deal with the Executive's right to refuse to disclose information sought under the Freedom of Information Act ("FOIA"). See, e.g., CIA v. Sims, 471 U.S. 159, 179, 105 S.Ct. 1881, 85 L.Ed.2d 173 (1985) (the decisions of the CIA director not to disclose FOIA requested information "worthy of great deference given the magnitude of the national security interests and potential risks at stake"); Center for Nat'l Sec. Studies v. U.S. Dep't of Justice, 331 F.3d 918, 928 (D.C.Cir.2003) ("[T]he government's top counterterrorism officials are well­suited to" determine the harm that could result from disclosing certain FOIA requested information, and "the judiciary is in an extremely poor position to second­guess the executive's judgment in this area of national security."). But judicial review in

the FOIA context of a statutorily created right to obtain information of public interest, where it is the disclosure sought by private persons of records created or maintained by the government that is at stake, is not analogous to the imperatives of judicial review in the context of prohibitions imposed by the government on the private speech that is implicated under § 2709. As the Doe II court stated, the Plaintiffs'"desire here is to exercise their First Amendment rights, which distinguishes this case from those in which an individual seeks disclosure of information . . . pursuant to FOIA. Here, [Plaintiffs] seek to vindicate a constitutionally guaranteed right; they do not seek to vindicate a right created, and limited, by statute." 386 F.Supp.2d at 78. In McGehee v. Casey, 718 F.2d 1137 (D.C.Cir.1983), also cited by the Government in support of its deference argument, the plaintiff sought to publish a manuscript of his experiences as a CIA officer. The court emphasized that the "difference between seeking to obtain information and seeking to disclose information already obtained raises McGehee's constitutional interests in this case above the constitutional interests held by a 417*417 FOIA claimant." Id. at 1147. The court in McGehee made clear that because First Amendment rights were implicated, it required the court to go beyond the FOIA standard of review. The McGehee court held that while courts should "defer to CIA judgment as to the harmful results of publication, they mast nevertheless satisfy themselves from the record, in camera or otherwise, that the CIA in fact had good reason to classify, and therefore censor, the materials at issue. Accordingly, the courts should require that CIA explanations justify censorship with reasonable specificity, demonstrating a logical connection between the deleted information and the reasons for classification." Id. at 1148. Thus, in McGehee, where the plaintiff had voluntarily signed an agreement before joining the CIA that barred him from revealing classified information without prior approval, even though the court afforded substantial deference to the CIA's determinations, it still required a far more substantive showing to warrant restriction of private speech than the "no reason to believe" and conclusive, absent bad faith, certification standards of § 3511(b). While the Court acknowledges that it is entirely appropriate for the judiciary, in the proper exercise of judicial power, to defer to executive determinations that a specific disclosure of sensitive information may result in a specific harm to national security interests, that is not the end of the analysis, but merely the beginning. Because the First Amendment is implicated, a reviewing court must still satisfy itself that the harm asserted by the government justifies the curtailment of the specific individual liberties implicated. Although the Executive's tasks "include the protection of national security and the maintenance of the secrecy of sensitive information, the judiciary's tasks include the protection of individual rights." Id. at 1149. The standard of review required by § 3511(b) impermissibly ties the judiciary's hands by requiring a reviewing

court to effectively end its analysis as long the court finds a reason — any reason — to believe disclosure "may" lead to one of the Enumerated Harms. The Government seems to argue here that the Court is still free to conduct a thorough analysis consistent with strict scrutiny because the "no reason to believe" standard merely sets forth the fact­finding inquiry a reviewing court must undertake when considering a request to modify or set aside a nondisclosure order. Thus, the Government emphasizes that the determination as to whether one of the Enumerated Harms "may" result from disclosure of the NSL still rests with the reviewing court. See18 U.S.C. § 3511(b)(2) (the court may modify or set aside the nondisclosure order "if itfinds there is no reason to believe disclosure" may lead to one of the Enumerated Harms) (emphasis added). Consequently, the Government argues that a reviewing court still has the freedom and the duty to satisfy itself whether in a particular case withholding disclosure of information about an NSL is necessary to avoid one of the Enumerated Harms. Presumably, the Government envisions § 3511(b) functioning similar to judicial review of FOIA requests where the court will uphold the government's claim of exemption, as the District of Columbia Circuit declared in one case:
`on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.' The test is not whether the court personally agrees in full with the CIA's evaluation of the danger — rather, the issue is whether on the whole record the 418*418 Agency's judgment objectively survives the test of reasonableness, good faith, specificity, and plausiblity in this field of foreign intelligence in which the CIA is expert and given by Congress a special role.
Gardels v. CIA, 689 F.2d 1100, 1104­05 (D.C. Cir.1982). The Court has already acknowledged that national security is a compelling interest justifying nondisclosure in certain situations, and to the extent § 3511(b) explicitly identifies it as such, the statute can not be declared unconstitutional for this reason alone. The statute fails constitutional strict scrutiny, however, because it requires the court to blindly credit a finding that there "may" be a reason — potentially any conceivable and not patently frivolous reason — for it to believe disclosure will result in a certain harm. On this analysis, the statute thus contemplates an even less rigorous factual inquiry than is prescribed in the FOIA context, where the government's assertion of potential harm must pass the more demanding statutory test that it be reasonable, specific, and plausible. See id. Even if the Court were to construe § 3511(b) to require that the "reason" why the Government

asserts disclosure "may" result in an Enumerated Harm be plausible, reasonable, and specific, .the strict scrutiny analysis required by the First Amendment still demands more. In applying strict scrutiny, whether, as articulated by the government and discerned by the court, a reason to believe exists that disclosure may result in one of the Enumerated Harms in a particular case does not necessarily mean that nondisclosure is warranted. In that circumstance, the court is still compelled to balance the potential harm against the particular First Amendment interest raised by a particular challenge. In further support of its assertion that the deference codified in § 3511(b) is appropriate, the Government also cites to North Jersey Media Group, Inc. v. Ashcroft,308 F.3d 198 (3d Cir.2002). There, the Third Circuit held that closure of "special interest" deportation hearings involving Immigration and Naturalization Service detainees with alleged connections to terrorism does not violate the First Amendment right of access. The Third Circuit concluded
We are keenly aware of the dangers presented by deference to the executive branch when constitutional liberties are at stake, especially in times of national crisis, when those liberties are likely in greatest jeopardy.On balance, however, we are unable to conclude that openness plays a positive role in special interest deportation hearings at a time when our nation is faced with threats of such profound and unknown dimension.
Id. at 220 (emphasis added). As already noted, the Court's task here is also to balance the need for the secrecy and efficiency the executive requires with the need to protect individual liberties. Although emphasizing the deference given to the executive branch on matters of national security, the Third Circuit did note that it deferred "only to the executive insofar as it is expert in matters of national security, not constitutional liberties." Id. at 219 n. 15. While the Third Circuit concluded that judicial deference on national security issues involved in that case balanced in favor of allowing First Amendment restrictions on access to deportation proceedings, here the Court believes the "no reason to believe" standard of review, if applied to a challenge of an NSL, prohibits a court from ensuring that the appropriate balance between competing public interests is reached. 419*419 As the Sixth Circuit noted in Detroit Free Press, 303 F.3d at 692­93, in reaching a conclusion opposite to that of the Third Circuit in North Jersey Media Group: "While we sympathize and share the Government's fear that dangerous information might be disclosed in some of these hearings, we feel that the ordinary process of determining whether closure is warranted on a case­by­case basis sufficiently addresses their concerns. Using this stricter standard does not mean that information helpful to terrorists will be disclosed, only that the

Government must be more targeted and precise in its approach." Similarly, a court reviewing the need for nondisclosure of an NSL must be free to make a determination on a case­by­case basis, and it must be free to do so applying the strict standards required by First Amendment jurisprudence as construed and applied by the courts, rather than the excessively deferential and inflexible rule Congress enacted in § 3511 at the behest of the Executive. In an analogous context, the Fourth Circuit noted, in rejecting the government's argument that national security interests preclude the application of strict scrutiny with respect to the First Amendment right of access to judicial documents, that it was "troubled by the notion that the judiciary should abdicate its decisionmaking responsibility to the executive branch whenever national security concerns are present. . . . A blind acceptance by the courts of the government's insistence on the need for secrecy . . . would impermissibly compromise the independence of the judiciary and open the door to possible abuse." In re Washington Post Co., 807 F.2d 383, 391­92 (4th Cir.1986). This Court is similarly troubled by the suggestion that even though First Amendment rights are implicated, its ability to review a government restriction on speech is limited to situations where there is "no reason to believe" that disclosure may result in one of the Enumerated Harms. Such a review deprives the judiciary of its ability to properly balance the government's compelling national security interests against the First Amendment rights of persons affected by the nondisclosure requirement. More problematic still, while the "no reason to believe" standard impermissibly constrains the Court's First Amendment review, the requirement that the Court credit the government's invocation of national security as conclusive absent evidence of bad faith eviscerates any meaningful judicial review, as it clearly equates to an uncritical acceptance of the government's insistence of the need for secrecy. In requiring the Court to accept the government's certification as conclusive, § 3511(b) effectively allows the government to determine the constitutionality of its own actions, leaving only the difficult to prove and narrow issue of the existence of "bad faith" to the judiciary. As the Supreme Court has previously noted in the Fourth Amendment context, "those charged with . . . investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. . . . [U]nreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech." United States District Court, 407 U.S. at 317, 92 S.Ct. 2125 (emphasis added). For the reasons discussed, a standard of review which eliminates any meaningful check on executive discretion to suppress protected speech offends both the First Amendment and the basic constitutional principle of separation of powers. G. NARROW TAILORING

Section 2709(c) prohibits an NSL recipient from "disclos[ing] to any person 420*420 . . . that the [FBI] has sought or obtained access to information or records under this section." This nondisclosure provision contains no time limit. Plaintiffs argue that § 2709(c) violates the First Amendment by allowing the issuance of nondisclosure orders that are not narrowly tailored — either in scope or duration — to a compelling government interest. The Court addressed this issue at length in Doe I with respect to the prior version of § 2709(c). It stated that although nondisclosure may be justified under certain circumstances, the government must show "that secrecy is necessary for national security purposes in a particular situation involving particular persons at a particular time." Doe I, 334 F.Supp.2d at 524 (emphasis in original). The Court concluded that "the Government cannot cast § 2709 — a blunt agent of secrecy applying in perpetuity to all persons affected in every case — as narrowly­tailored." Id. at 516. The revised provision incorporates case­by­case analysis in the determination as to whether nondisclosure of a particular NSL is necessary under the circumstances, but it continues to authorize nondisclosure orders that permanently restrict an NSL recipient from engaging in any discussion related to its receipt of the NSL. As the Court explained in Doe I,
Section 2709(c) prohibits any discussion of the first­hand experiences of NSL recipients, and of their officers, employees, and agents, and thus closes off that "entire topic" from public discourse. Those persons are forever barred from speaking to anyone about their knowledge and role in the underlying events pertaining to the issuance of an NSL, however substantively limited or temporally remote that role may be, even at a time when disclosure of the occurrence of the investigation may have ceased to generate legitimate national security concerns and instead may hold historical or scholarly value then bearing relatively greater interest to the general public.
Id. at 513 (citation omitted). The Government asserts that the scope of the nondisclosure order is "as narrow as can reasonably be expected, and prohibits only minimal disclosure."[22] (Gov't Opp. 33­34.) To the contrary, NSL recipients are effectively barred from engaging in any discussion regarding their experiences and opinions related to the government's use of NSLs. For example, an NSL recipient cannot communicate to anyone indefinitely that it received an NSL, the identity of the target, the type of information that was requested and/or provided, general statistical information such as the number of NSLs it received in the previous month or year, its opinion as to whether a particular NSL was properly issued in accordance with the applicable criteria, or perhaps even

its opinion about the use of NSLs generally (e.g., whether NSLs are being used legitimately, whether their use may be stifling speech, whether the government may be abusing its power under the statute, etc.). Clearly, these various potential statements range widely both in their possible threat to national security and in their value to the national debate about the government's activities. Particularly when a prior restraint on speech may continue for an extended period of time, narrow tailoring requires that the scope of that nondisclosure be decided on a case­by­case basis. 421*421 It is perhaps telling that, in justifying the need for the nondisclosure provision of the NSL statute, the Government relies entirely on the possible harms to national security or diplomatic relations that could result from the disclosure of a particular NSL — i.e., revealing that a named individual was the target, of an NSL. (See Szady Decl. ¶¶ 19­33; Gov't Opp. 34.) Arguably, guarding the secrecy of that particular detail may be defensible as promoting national security interests in a given case. The Government, however, provides no support for its argument that the much broader nondisclosure still permitted by § 2709(c) in all other circumstances serves a compelling government interest. The potentially broad effect of the nondisclosure order is demonstrated in the present case. Asserting a risk to national security, the Government has invoked the nondisclosure order to attempt to prevent Plaintiffs from publically disclosing through their court filings a wide range of information, such as statements disclosing the mere fact that the FBI issued an NSL to an unspecified internet service provider ("ISP"), the general type of information about its clients that the ISP in question maintains, the kinds of services the ISP provides to its clients, and, most troubling to the Court, statements critical of the way that the government uses NSLs and expressing concern that free expression and association might be chilled. (See Third Declaration of Ann Beeson, dated Sept. 7, 2006, ¶¶ 19, 14, 15, 23­27; Pls.' Mem. 13­14.) Additionally, it is worth noting that, in response to Plaintiffs' Motion to Set Aside Request for Records, the FBI has withdrawn its NSL request in this case. (SeeOestericher Decl. ¶ 3.) Essentially, the FBI has conceded that the information that it would obtain by way of the NSL at issue is no longer relevant to an international terrorism investigation, but it continues to assert that any disclosure otherwise related to the NSL would endanger national security. (See Certification of Robert S. Mueller III, dated Oct. 30, 2006, attached as Ex. 1 to Oestericher Decl.) With respect to duration, it is hard to conceive of any circumstances that would justify a permanent bar on disclosure. See Doe v. Gonzales, 449 F.3d at 422 ("A permanent ban on speech seems highly unlikely to survive the test of strict scrutiny, one where the government must show that the statute is narrowly tailored to meet a compelling government interest.")

(citing Ashcroft v. ACLU, 542 U.S. at 665­66, 124 S.Ct. 2783and Kamasinski, 44 F.3d at 109) (Cardamone, J., concurring); cf. Capital Cities Media, Inc. v. Toole, 463 U.S. 1303, 1304­06, 103 S.Ct. 3524, 77 L.Ed.2d 1284 (1983). Once disclosure no longer poses a threat to national security, there is no basis for further restricting NSL recipients from communicating their knowledge of the government's activities. International terrorism investigations might generally last longer than run­of­the­mill domestic criminal investigations, but they do not last forever. And, even while an investigation continues, the disclosure regarding the issuance of a particular NSL might not necessarily endanger that investigation. As Judge Cardamone wrote in his concurrence in Doe v. Gonzales:
The government's urging that an endless investigation leads logically to an endless ban on speech flies in the face of human knowledge and common sense: witnesses disappear, plans change or are completed, cases are closed, investigations terminate. Further, a ban on speech and a shroud of secrecy in perpetuity are antithetical to democratic concepts and do not fit comfortably with the fundamental rights guaranteed American citizens. Unending secrecy of actions 422*422 taken by government officials may also serve as a cover for possible official misconduct and/or incompetence.
449 F.3d at 422 (Cardamone, J., concurring). In addition to the permanent duration of the nondisclosure order contained in the NSL, § 3511(b)(3) provides: "If the court denies a petition for an order modifying or setting aside a nondisclosure requirement under this paragraph, the recipient shall be precluded for a period of one year from filing another petition to modify or set aside such nondisclosure requirement." Plaintiffs argue, correctly, that this aspect of the statute is not narrowly tailored because it may call for the period of nondisclosure to extend substantially beyond the time that national security necessitates. For example, the statute contains no requirement that the government act affirmatively and promptly to terminate the nondisclosure order when public knowledge of the NSL no longer poses a threat to national security, or indeed, as occurred in Doe II, when the information the government seeks to maintain secret is ascertained and disclosed by third parties through legitimate means. The Government again points to grand jury secrecy statutes and the nondisclosure requirements of related investigative tools — wiretaps, pen registers, and administrative subpoenas — and contends that case­by­case analysis with respect to the scope and duration of nondisclosure is not required in those contexts. But, as discussed at length above, these contexts differ substantially from present one; in particular, they all involve prior judicial oversight and limited

duration. H. SCOPE OF 18 U.S.C. §§ 3511(d) AND 3511(e) In amending the NSL statute, Congress added two provisions intended to guide reviewing courts with respect to decisions to close hearings, seal documents, or review evidence ex parte and in camera. Upon review, the Court finds each section constitutional, provided that the attendant language as interpreted by the Court preserves the traditional role of the court in carefully examining the extent to which closure, sealing, and limited evidentiary access by the defendant is necessary. 1. Closure of Hearings and Sealing of Records The amended statute provides that "[i]n all proceedings under this section, subject to any right to an open hearing in a contempt proceeding, the court must close any hearing to the extent necessary to prevent an unauthorized disclosure of a request for records, a report, or other information made to any person or entity under § 2709(b)." 18 U.S.C. § 3511(d). It further states that "[p]etitions, filings, records, orders, and subpoenas must . . . be kept under seal to the extent and as long as necessary to prevent the unauthorized disclosure of a request for records." Id. Plaintiffs initially challenged this provision on First Amendment grounds. They voiced concern regarding the construction of this statute, focusing on the extent to which closure and sealing was to be employed "to the extent necessary to prevent an unauthorized disclosure." Id. Such language, they argued, permitted the executive branch, rather than courts, to dictate whether proceedings were closed or documents sealed; they also claimed that the wording absolved the government of compliance with the First Amendment requirement of articulating a compelling interest for either closure or sealing of public records, and failed to narrowly tailor such actions to that government interest. (See Pls.' Mem. 34.) The Government then expressed 423*423 its view that the statute permitted closure and sealing only "to the extent necessary to prevent a violation of the nondisclosure requirement" in connection with a challenge to an NSL and that the Government would be guided and limited accordingly. (See Gov't Opp. 37.) Subsequent briefing by the parties indicated agreement on a proper interpretation of the provision, i.e., that § 3511(d) requires closure and sealing of relevant information only to the extent necessary to prevent violation of a nondisclosure provision. Such an interpretation in no way displaces the role of the court in determining, in each instance, the extent to which documents need to be sealed or proceedings closed and does not permit the scope of such a decision to made unilaterally by the government. (See Pls.' Reply 23; Reply Memorandum of Law in Opposition to Plaintiffs' Motion for Partial Summary Judgment and in Support of the Government's Motion to Dismiss or for Summary Judgment ("Gov't Reply"), dated Feb. 5, 2007, at 25.); see also Nixon v. Warner

Communications, Inc., 435 U.S. 589, 599, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978) ("[T]he decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case."); Huminski v. Corsones, 396 F.3d 53, 85 (2d Cir.2005) ("[T]he district court should determine whether, under the circumstances of the case, the prejudice to the compelling interest overrides the qualified First Amendment right of access."); In re The New York Times, 828 F.2d 110, 116 (2d Cir.1987) (noting that sealing and closure decisions are not automatic and require careful consideration by the trial court). In that the statute, read in this light, avoids reaching constitutional right of access concerns, the Court finds this interpretation of § 3511(d) to be consistent with the First Amendment. See Jones v. United States, 526 U.S. 227, 239, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999); see alsoUnited States v. Gonzalez, 420 F.3d 111, 124 (2d Cir.2005); Allstate Ins. Co. v. Serio,261 F.3d 143, 149­50 (2d Cir.2001). 2. Consideration of Ex Parte and In Camera Evidence The statute also provides that "[i]n all proceedings under this section, 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." 18 U.S.C. § 3511(e). In a partial resolution of Plaintiffs' challenge to this provision, both parties agreed that such language neither "requires the Court to accord any particular weight to the government's evidence," nor "strip[s] the district court of its inherent authority to determine that a matter submitted need not remain under seal." (Gov't Opp. 47.) Plaintiffs, however, further argue that narrow construction of this provision is necessary to comport with due process and would expressly include the reviewing court's authority to, among other things, reject ex parte evidence if necessary, assess independently whether information is properly classified, and craft alternatives to mitigate the unfairness of secret evidence. (See Pls.' Reply 28.) At this juncture, it is sufficient to simply reiterate that the Court's authority to assess what process is due on a case­by­case basis is undisturbed by the language of § 3511(e). Plaintiffs note the availability of specific alternatives to total secrecy with respect to submission of documents deemed classified by the government. See United States v. Abuhamra, 389 F.3d 309, 321 (2d Cir.2004) (requiring "substitute disclosure"); Naji v. Nelson, 113 F.R.D. 548, 553 (N.D.Ill.1986) (requiring government424*424 to disclose non­classified portions of withheld documents); Ass'n for Reduction of Violence v. Hall, 734 F.2d 63, 68 (1st Cir.1984) (ordering redaction or summary of privileged materials if necessary). The Government asserts that national security interests will likely trump such alternatives in most cases. See Snepp v. United States,444 U.S. 507, 509 n. 3, 100 S.Ct. 763, 62 L.Ed.2d 704 (1980); Weberman v. NSA, 668

F.2d 676, 678 (2d Cir.1982); National Council of Resistance of Iran v. Dep't of State,251 F.3d 192, 207 (D.C.Cir. 2001). Neither view is entitled to unequivocal endorsement because a district court's assessment of competing interests will necessarily depend on the facts presented by each case. See Weberman, 668 F.2d at 678 (denying plaintiff access to an in camera affidavit that may have disclosed existence of an NSA telegram intercept); Naji, 113 F.R.D. at 552 (noting, in an immigration proceeding, that ex parte evidence can only be used to decide a case on the merits in "the most extraordinary of circumstances"); In re Guantanamo Detainee Cases, 344 F.Supp.2d 174, 175 (D.D.C.2004) (permitting review of sensitive evidence through issuance of a protective order); see also Huminski, 396 F.3d at 85. In that § 3511(e) neither restricts the ability of a district court to take all necessary measures required to safeguard the due process rights of a party in instances where evidence may be submitted in camera or ex parte, nor constrains the role of the district court in appropriately balancing those needs against a potentially compelling interests, this section of the statute, as written, does not violate the Fifth Amendment and remains intact. I. SEVERANCE In Doe I, the Court concluded that § 2709(c), which it found facially unconstitutional, could not be severed from the remainder of the statute. See 334 F.Supp.2d at 525­26. The Court is faced with essentially the same issue here, having found § 2709(c) facially unconstitutional. In deciding whether a statute is severable, the Court must strive "to save as much of a statute as possible when it finds a portion of it unconstitutional," while striking 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.'" Id (citing Alaska Airlines v. Brock, 480 U.S. 678, 684, 107 S.Ct. 1476, 94 L.Ed.2d 661 (1987) and quoting Buckley v. Valeo, 424 U.S. 1, 108, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976)). In Doe I, the Court concluded that "Congress intended the statute to function as a secret means of gathering information from communications service providers," and therefore "Congress could not have intended §§ 2709(a) and (b), the provisions authorizing the FBI to issue NSLs seeking information from wire and electronic communication service providers, to operate absent the non­disclosure provisions contained in § 2709(c)." Id. (emphasis in original). The Court finds no changes in the revisions of § 2709 that would justify a reversal of its previous determination. Accordingly, the Court concludes that §§ 2709(a) and (b) must be invalidated as non­severable from § 2709(c). Finally, the Court notes that § 3511 legislates the judicial review procedures governing all NSLs, not just those issued under § 2709. See 18 U.S.C. § 3511(a), (b) (allowing judicial review by the

recipient of an NSL issues under § 2709(b), "Section 626(a) or (b) of the Fair Credit Reporting Act, Section 114(a)(5)(A) of the Right Financial Privacy Act, or Section 802(a) of the National Security Act."). Thus, some aspects of § 3511 may have a 425*425 viable function even if § 2709 is struck down. The Court acknowledges that in finding the standard of review set forth in § 3511(b) to be unconstitutional, the ruling directly implicates these other NSL statutes. Moreover, in declaring the nondisclosure provision in § 2709(c) unconstitutional the Court recognizes that its decision indirectly implicates the constitutionality of the other NSL statutes, in so far as the Reauthorization Act provided similar nondisclosure provisions in those other NSL provisions. Those other NSL provisions, however, are not before the Court in this case. For this reason, the Court need not address whether § 3511(b) is severable from the rest of § 3511. Section 3511(b) can be severed from the remainder of § 3511 "if what is left is fully operative as a law." Buckley v. Valeo, 424 U.S. at 108­09, 96 S.Ct. 612. Evaluating whether the remainder of § 3511 is capable of fully operating as a law would require an inquiry into the other NSL provisions for which § 3511 functions as the mechanism for judicial review, which the Court declines to do in this case.[23]
IV. CONCLUSION
For the reasons stated above, the Court concludes that § 2709(c) is unconstitutional under the First Amendment because it functions as a licensing scheme that does not afford adequate procedural safeguards, and because it is got a sufficiently narrowly tailored restriction on protected speech. Because the Court finds that § 2709(c) cannot be severed from the remainder of the statute, the Court finds the entirety of § 2709 unconstitutional. Additionally, the Court concludes that § 3511(b) is unconstitutional under the First Amendment and the doctrine of separation of powers.
V. STAY OF JUDGMENT
As it did in Doe I, in light of the implications of its ruling and the importance of the issues involved, the Court will stay enforcement of its judgment pending appeal, or for the Government otherwise to pursue any alternate course of action, for 90 days. The stay is intended to give the Government the opportunity to move this Court, or the Court of Appeals, for whatever appropriate relief it may seek to maintain the confidentiality of any information implicated by the Court's ruling.

VI. ORDER
For the reasons discussed above, it is hereby
ORDERED that the motion of John Doe, the American Civil Liberties Union, and the American
Civil Liberties Union Foundation (collectively, "Plaintiffs") for summary judgment in this case is
GRANTED in part and DENIED in part. Defendants Alberto Gonzales, in his official capacity as
Attorney General of the United States, Robert Mueller, in his official capacity as Director of the
Federal Bureau of Investigation, and Valerie E. Caproni, in her official capacity as General
Counsel to the Federal Bureau of Investigation (collectively "Defendants"), are hereby enjoined
from issuing national security letters under 18 U.S.C. § 2709, or from enforcing the provisions of
18 U.S.C.426*426 § 2709(c) and 18 U.S.C. § 3511(b); it is further
ORDERED that Defendants' motion to dismiss, or in the alternative, for summary judgment, is
DENIED; it is further
ORDERED that the Clerk of Court shall file this Decision and Order on the public docket; and is
finally
ORDERED that the Clerk of Court shall enter judgment accordingly but stay enforcement of the
judgment pending any appeal, or, if no appeal is filed, for 90 days from the date of this Order.
The Clerk of Court is directed to close this case.
SO ORDERED.
[1] Congress made further changes to § 2709(c) in the USA Patriot Act Additional Reauthorizing Amendments Act of 2006, Pub.L. No. 109­178, 120 Stat. 278 (March 9, 2006). Specifically, this act amended § 2709(c)(4), which requires NSL recipients to inform the FBI of anyone to whom they disclosed having received the NSL, with the exception of counsel, and it added § 2709(f), which excludes libraries from the definition of wire or electronic communications service providers. [2] The Second Circuit decision was a consolidated appeal of this Court's decision and Doe II. Because the Government indicated on appeal that in light of the Reauthorization Act, it would not oppose disclosure of plaintiff's identity as an NSL recipient in Doe II, the Second Circuit dismissed Doe II on mootness grounds. See Doe v. Gonzales, 449 F.3d at 421. [3] Plaintiffs framed their present motion as one for partial summary judgment, seeking a ruling that the nondisclosure provisions of § 2709(c) and the secrecy provisions of § 3511 are unconstitutional on their face and as applied. Separately, Plaintiffs also seek to set aside the demand for records issued to John Doe pursuant to 18 U.S.C. § 3511(a). (See Petition to Set Aside Demand for Records, dated September 8, 2006.) The Government, however, has indicated it no longer seeks to enforce the underlying NSL. (See Declaration of Jeffrey Oestericher ("Oestericher Decl."), dated Nov. 7, 2006, ¶ 3.) Thus, it appears to the Court that resolution of the instant motions fully dispose of the case. [4] Pursuant to Fed.R.Civ.P. 25(d)(1), although Marion Bowman is the party named in the complaint in her official capacity as FBI Senior Counsel, because she has retired and been replaced by Valerie Caproni, General Counsel to the FBI, "the officer's successor is automatically substituted as a party." (See Memorandum of Law in Opposition to Plaintiff's Motion for Partial Summary Judgment and in Support of the Government's Motion to Dismiss or for Summary Judgment ("Gov't Opp."), dated November 8, 2006, at 1 n. 1.) [5] See Memorandum of Law of Amicus Curiae The Association of the Bar of the City of New York in Support of Plaintiffs' Motion for Partial Summary Judgment ("ABCNY Amicus Brief"), dated September 29, 2006; Brief of Amici Curiae American Library Association, American Booksellers Foundation for Free Expression, American Association of Publishers, Inc., Freedom to Read Foundation and Pen American Center in Support of Plaintiffs' Motion for Partial Summary Judgment and to Set Aside Demand for Records ("Libraries, Bookstores, Publishers and Writers Amici Brief"), dated September 29, 2006. [6] Section 2709(b) does not make clear whether any certification by the FBI is required with respect to a request for "electronic

communication transactional records." [7] 18 U.S.C. § 2510(8) defines "contents" as "any information concerning the substance, purport, or meaning" of a communication. [8] An Internet Protocol address, or "IP address," is a unique number corresponding to a particular computer accessing the internet. [9] Prior to the Reauthorization Act, § 2709(c) read in full: "No wire or electronic communication service provider, 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." 18 U.S.C. § 2709(c) (2004). [10] In addition to § 2709, which expanded the use of NSLs under the ECPA, the USA Patriot Act amended: Section 1114(a)(5) of the Right to Financial Privacy Act, 12 U.S.C. § 3414(a)(5) (permits FBI to obtain financial records); Section 626 of the Fair Credit Reporting Act, 15 U.S.C. § 1681u (permits FBI and certain other agencies to obtain a limited amount of information about an individual's credit history); Section 802 of the National Security Act, 50 U.S.C. § 436 (allows FBI to request information related to investigation of improper disclosure of classified information). [11] Section 627 of the Fair Credit Reporting Act, 15 U.S.C. § 1681v, allows the FBI to obtain full credit reports and all other consumer information in a consumer reporting agency's files. [12] By letter dated March 26, 2007, Plaintiffs submitted the OIG Report for the Court's consideration. [13] The OIG Report notes, however, that the total number of NSL requests were underreported by the FBI. The OIG estimated that "approximately 8,850 NSL requests, or 6 percent of NSL requests issued by the FBI during this period, were missing from the database." (OIG Report 34.) [14] Prior to 2003, the NSI Guidelines authorized two levels of investigative activity — preliminary inquiries and full investigations. (OIG Report 16­17.) NSLs were not authorized for use in preliminary inquiries, unless prior approval was obtained from the Attorney General or FBI Director. (Id.) The NSI Guidelines authorize three levels of investigations — threat assessments, preliminary investigations, and full, investigations. (Id.) The NSI Guidelines do not permit the FBI to use NSLs during a threat assessment but do permit the use of NSLs during a preliminary investigation. (Id.) [15] The Court notes that new legislation signed by President Bush on August 4, 2007 appears to expand the government's ability to conduct surveillance of American citizens under FISA without a warrant. See James Risen, Bush Signs Law to Widen Reach for Wiretapping, N.Y. Times, Aug. 6, 2007, at Al. Warrantless surveillance of phone calls and emails are authorized under the new legislation if the target is "reasonably believed" to be overseas, even if the target is communicating with an American citizen in the United States. Id. [16] As explained in Doe I, pen registers and trap­and­trace devices record certain electronic communications data indicating the origins and destinations of various "dialing, routing, addressing, or signaling information," e.g. the phone numbers dialed to and from a telephone. See 18 U.S.C. § 3123(c); 334 F.Supp.2d at 488­89. [17] Because the government's asserted basis for issuing the nondisclosure order in this case is national security, the Court limits its analysis to that governmental interest. The Court does not address whether the other Enumerated Harms listed in § 2709(c), such as "interference with diplomatic relations," constitute sufficiently compelling governmental interests under the circumstances. [18] FIN/PBS was decided by plurality opinion. Three Justices concluded that only the first two Freedmansafeguards applied, three Justices concluded that all three Freedman safeguards applied, and three Justices concluded that Freedman was inapposite. [19] The OIG Report indicates that the "overwhelming majority" of these NSL requests were issued under § 2709. (OIG Report 36­37.) [20] For example, shortly after September 11, 2001, "President Bush authorized the NSA to begin a counter­terrorism operation that has come to be known as the Terrorist Surveillance Program (`TSP") . . . the TSP includes the interception (i.e. wiretapping), without warrants, of telephone and email communications where one party to the communication is located outside of the United States and the NSA has `a reasonable basis to conclude that one party to the communication is a member of al Qaeda [or associated with al Qaeda].'" ACLU v. NSA, Nos 06­2095, 06­2140, 2007 WL 1952370, at (6th Cir. July 6, 2007). Significantly, while the Sixth Circuit dismissed the ACLU's constitutional challenge to the TSP on standing grounds, the District Court below concluded that the warrantless wiretapping allowed by the TSP violated, among other statutes and constitutional provisions, both the First Amendment and the separation of powers doctrine. See ACLU v. NSA, 438 F.Supp.2d 754, 775­79 (E.D.Mich. 2006). Also of note, once the TSP became public, the Attorney General advised Congress that "any electronic surveillance that was occurring as part of the [TSP] will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court." See ACLU v. NSA, 493 F.3d at 651 n. 4. [21] Illustrative is Hamdan v. Rumsfeld, ___ U.S. ___, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006), where the Supreme Court struck down the military commissions established by executive order to try suspected terrorists. The Supreme Court rejected the broad assertion of executive power upon which the President asserted the authority to establish the commissions and concluded that "in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction." Id. at 2798. The facts of Hamdan highlight the importance of a vigilant judiciary in ensuring our

constitutional values even when national security concerns are great. See Neal Kumar Katyal, Comment Hamdan v. Rumsfeld: The Legal Academy Goes to Practice, 120 Harv. L.Rev. 65, 122 (2006) (in Hamdan, the Supreme Court "said something profound about America. A man with a fourth­grade education from Yemen, accused of conspiring with one of the world's most evil men, sued the most powerful man in the nation (if not the world), took the case to the highest court in the land, and won. The Court's profound commitment to the rule of law is a beacon for other countries around the world. . . . In no other country would such a thing be possible.") [22] The Government, however, previously described § 2709(c) as a "broad non­disclosure requirement." (Declaration of David W. Szady ("Szady Decl."), dated June 28, 2004, ¶ 18.) [23] The Court notes that § 3511(a), which addresses challenges to the underlying NSL, states that a court "may modify or set aside the request if compliance would be unreasonable, oppressive, or otherwise unlawful." 18 U.S.C. § 3511(a). This provision is certainly capable of being read, in the absence of § 3511(b), to include requests to modify or set­aside any nondisclosure requirements imposed by other NSL statutes if the nondisclosure requirement is found to be unlawful, in which case the remainder of § 3511 is at least capable of fully operating as a law.

 
 Doe v. Ashcroft, Not Reported in F.Supp.2d (2005)

2005 WL 4684237 Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
John DOE and American Civil Liberties Union, Plaintiffs, v.
John ASHCROFT, in his official capacity as Attorney General of the United States; Robert Mueller, in his official capacity as Director of the Federal Bureau of Investigation; and Marion Bowman, in his official capacity as Senior Counsel
to the Federal Bureau of Investigation, Defendants.
No. 04 Civ. 2614(VM). | Jan. 25, 2005.
Opinion

MARRERO, J.

ORDER

*1 Upon consent of the parties, it is hereby:
ORDERED that Plaintiffs may file documents on the public docket that reflect undisputed alterations to the redactions previously approved by the parties or the Court.
While no prior permission from the Court shall be necessary for documents reflecting these undisputed alterations to be publicly filed, the parties are directed to follow the procedures outlined in paragraph two of the Court’s Order dated May 12, 2004, and reported at 317 F.Supp.2d 488, 492 (S.D.N.Y.2004), in order to ensure that the publicly-filed versions of the redacted documents actually reflect agreed-upon alterations. The Court shall stay adjudication of any dispute over alterations to the redactions it has previously approved pending resolution of the Government’s appeal of the Court’s Decision and Order dated September 28, 2004, and reported at 334 F.Supp.2d 471 (2004). Such stay, however, shall not prejudice any remedy that Plaintiffs may seek before the United States Court of Appeals for the Second Circuit related to the Court’s prior sealing determinations.
SO ORDERED.
	  

1

 
 Case 1:04-cv-02614-VM Document 227 Filed 04/15/14 Page 1 of 4

UNITED STATES DISTRlCT COURT SOUTHERN DISTRICT OF NEW YORK.
----------------------------------------------------------- x JOHN DOE, INC.; JOHN DOE; AMERlCAN CIVIL LIBERTIES UNION; and AMERlCAN
CIVIL LIBERTIES UNION FOUNDATION,
Plaintiffs,

04 Civ. 2614 (VM)

v.
ERlC HOLDER, JR., in his official capacity as Attorney General ofthe United States; JAMES B. COMBY, in his official capacity as Director of the Federal Bureau of Investigation; and JAMES A. BAKER, in his official capacity as General Counsel of the Federal Bureau of Investigation,

Stipulation and Order Modifying July 30, 2010, Judgment of Dismissal

Defendants. I 

----------------------------------------------------------- x 

WHEREAS, in 2004, the Federal Bureau of Investigation (the "FBI") delivered anational
security letter (the "Doe NSL") issued under 18 U.S.c. § 2709 to plaintiffJohn Doe, Inc., and its then-president, plaintiff John Doe. Pursuant to 18 U.S.c. § 2709, the Doe NSL sought certain information from its recipients.· The Doe NSL included a page titled "Attachment," further specifying the information being sought (the "Attachment"). The Doe NSL further notified its recipients that 18 U.S.C. § 2709 prohibited its recipients from disclosing the fact that the FBI had sought or obtained access to information or records under that statute.

WHEREAS, plaintiffs John Doe, Inc., and John Doe refused to comply with the Doe NSL, and filed this action, challenging the Doe NSL, against defendants (the "government") in this Court on or about Apri16, 2004. By Decision and Order entered September 6,2007, this Court granted in part and denied in part plaintiffs' motion for summary judgment, and denied the government's cross-motion for dismissal or summary judgment. The government appealed, and the Court ofAppeals for the Second Circuit, by opinion dated December 15, 2008, affirmed in part, reversed in part, and remanded the case for further proceedings.

WHEREAS, on ~mand, this Court considered the parties' cross-motions addressing whether the government was justified in continuing to impose a nondisclosure obligation on plaintiffs with respect to certain aspects ofthe Doe NSL.

WHEREAS, by Decision and Order dated October 20, 2009, this Court granted in part the government's motion for summary judgment and denied in part plaintiffs' motion for partial

Pursuant to Fed. R. Civ. P. 25(d), the names of public officers have been automatically substituted for their predecessors.
1

Case 1:04-cv-02614-VM Document 227 Filed 04/15/14 Page 2 of 4

summary judgment. By Decision and Order entered March 18, 2010, the Court granted in part . and denied in part plaintiffs' motion for partial reconsideration.

WHEREAS, in particular, the March 18, 2010, Decision and Order considered the nondisclosure obligation as it related to the Attachment, directing the government to disclose certain information in the Attachment but also concluding that the nondisclosure obligation could continue to apply to other portions of the Attachment. In accordance with this order, the government provided plaintiffs with. a redacted version of the Attachment (the "Redacted Attachment"), which is now in the public domain.
WHEREAS, plaintiffs appealed the March 18, 2010, Decision and Order, then later 
 withdrew the appeal.. 


WHEREAS, by Stipulation and Order entered by the Court on July 30, 2010, plaintiffs and the government agreed to dismiss this action, and to partially set aside, but partially retain, the nondisclosure obligation set forth in 18 U.S.C. § 2709 as it pertains to the Doe NSL.

WHEREAS, due to changed circumstances, the FBI no longer believes that the nondisclosure ofinformation in the Doe NSL-with the exception of non-public information in the Attachment-is necessary to prevent against 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 that is related to an authorized investigation to protect against international terrorism or clandestine intelligence activities.

WHEREAS, this Court has the authority to modifY the July 30, 2010, Stipulation and Order

pursuant to Fed. R. Civ. P. 60(b), and the parties consent to such modification upon the terms set

forth below.

.

NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between 
 the parties, as follows: 


1. The nondisclosure obligation set forth in 18 U.S.C. § 2709 continues to apply to the 
 Attachment to the Doe NSL, except insofar as the information in the Attachment has already 
 been made public in the Redacted Attachment. 


2. Except as provided in paragraph 1 of this Stipulation and Order, the nondisclosure .obligation set forth in 18 U.S.C. § 2709, as it pertains to the Doe NSL, is no longer in' effect.

3. Nothing in this Stipulation and Order affects whatever rights plaintiffs John Doe and John Doe, Inc., may have to petition in the future under 18 U.S.c. § 3511(b) or any other provision of law for an order modifYing or setting aside the nondisclosure requirement left in place by this Stipulation and Order.

4. This Stipulation constitutes the entire agreement of the parties, and no prior 
 statement, representation, agreement, or understanding, oral or written, will have any force or 
 effect 


2

Case 1:04-cv-02614-VM Document 227 Filed 04/15/14 Page 3 of 4

Dated: New Haven, Connecticut
April Jt., 2014

MEDIA FREEDOM AND

INFORMATION ACCESS CLINIC,

YALE LAW SCHOOL

Attorney for Plaintiffs John Doe and

BY:~

i6NA

M. MANES

P.O. Box 208215

New Haven, Connecticut 06520

Telephone: 203.432.9387

E-mail: jonathan.manes@Yale.edu

Dated:

New York, New York April II 2014

PREET BHARARA United States Attorney for the Southern District ofNew York Attorney for Defendants
BY:~CE

86 Chambers Street New York, New York 10007 Telephone: 212.637.2703 E-mail: benjamin.torrance@usdoj.gov

SO ORDERED.

3 


Case 1:04-cv-02614-VM Document 227 Filed 04/15/14 Page 4 of 4 U.S. Department of Justice
United States Attorney Southern District o/New York

By hand

86 Chambers Street New York. New York 10007
April 11,2014

ffi1[ APR 15 Z~4~][Q)
CHAMBERS OF JUDGE MARRERO

The Honorable Victor Marrero United States District Judge United States Courthouse 500 Pearl Street New York, New York 10007

Re: Doe v. Holder, 04 Civ. 2614 CVM)

Dear Judge Marrero:

The parties to the above-named case have entered into the enclosed stipulation to modifY this Court's prior order. We respectfully request that the Court so-order the stipulation.

Respectfully,

Enc!. cc:

PREET BHARARA United States Attorney
BY:~~ JAMIN H. TORRANCE Assistant United States Attorney Telephone: 212.637.2703 Fax: 212.637.2702 E-mail: benjamin.torrance@usdoj.gov
Anjali Motgi & Jonathan Manes, by email

 
 Case: 1:04-cv-2614 As of: 10/20/2016 08:54 PM EDT 1 of 21
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:04−cv−02614−VM

CLOSED

John Doe, et al v. John Ashcroft, et al Assigned to: Judge Victor Marrero Related Cases: 1:07−cv−06097−VM
1:14−cv−09763−VM
Similar Case: 1:08−cv−03584−VM
Case in other court: U.S.C.A. 2nd Cir., 05−02352 Cause: 18:2709 Counterintelligence access to telephone toll and transactional records
Plaintiff

Date Filed: 04/06/2004 Date Terminated: 03/18/2010 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

John Doe TERMINATED: 04/13/2005

represented by Melissa Goodman American Civil Liberties Union Foundation (NYC) 125 Broad Street 18th Floor New York, NY 10004 (212)549−2622 Fax: (212)549−2629 Email: mgoodman@nyclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jameel Jaffer American Civil Liberties Union Foundation (NYC) 125 Broad Street 18th Floor New York, NY 10004 (212) 549−7814 Fax: (212) 549−2629 Email: jjaffer@aclu.org ATTORNEY TO BE NOTICED

Plaintiff American Civil Liberties Union

represented by Ann Beeson 125 Broad Street 18th Floor New York, NY 10004 (212) 549−2500 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Arthur Nelson Eisenberg New York Civil Liberties Union 125 Broad Street, 17th floor New York, NY 10004 (212) 607−3300 Fax: (212) 607−3318 Email: arteisenberg@nyclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jameel Jaffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:04-cv-2614 As of: 10/20/2016 08:54 PM EDT 2 of 21

Melissa Goodman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sharon M. McGowan American Civil Liberties Union Foundation (NYC) 125 Broad Street 18th Floor New York, NY 10004 (212) 549−2500 LEAD ATTORNEY

Laurence Michael Schwartztol American Civil Liberties Union Foundation (NYC) 125 Broad Street 18th Floor New York, NY 10004 (212) 519−7849 Fax: (212) 549−2680 Email: lschwartztol@aclu.org ATTORNEY TO BE NOTICED

Plaintiff
American Civil Liberties Union Foundation

represented by Ann Beeson (See above for address) LEAD ATTORNEY

Jameel Jaffer (See above for address) LEAD ATTORNEY

Melissa Goodman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sharon M. McGowan (See above for address) LEAD ATTORNEY

Arthur Nelson Eisenberg (See above for address) ATTORNEY TO BE NOTICED

Laurence Michael Schwartztol (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
John Ashcroft in his official capacity as Attorney General of the United States

represented by Meredith Eve Kotler Wilson Sonsini Goodrich &Rosati(NYC) 1301 Avenue of the Americas 40th Floor New York, NY 10019 (212) 497−7703 Fax: 212.999.5899 Email: mkotler@cgsh.com LEAD ATTORNEY

Case: 1:04-cv-2614 As of: 10/20/2016 08:54 PM EDT 3 of 21

ATTORNEY TO BE NOTICED

Defendant
Marion Bowman in his official capacity as Senior Counsel to the Federal Bureau of Investigations

Defendant
Alberto Gonzales in his official capacity as Attorney General of the United States

represented by Jeffrey Stuart Oestericher U.S. Attorney's Office, SDNY (86 Chambers St.) 86 Chambers Street 3rd Floor New York, NY 10007 212−637−2698, 2703 Fax: 212−637−2730 Email: Jeffrey.Oestericher@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Robert Mueller in his official capacity as Director of the Federal Bureau of Investigation

represented by Jeffrey Stuart Oestericher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
American Association of Publishers, Inc.

represented by Ronald Marc Daignault Polsinelli PC 900 Third Avenue, 21st floor New York, NY 10022 212−684−0199 Fax: 212−684−0197 Email: rdaignault@polsinelli.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
American Booksellers Foundation for Free Expression

represented by Ronald Marc Daignault (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus American Library Association

represented by Ronald Marc Daignault (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Freedom to Read Foundation, Inc.

represented by Ronald Marc Daignault (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Pen American Center

represented by Ronald Marc Daignault (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:04-cv-2614 As of: 10/20/2016 08:54 PM EDT 4 of 21

Date Filed 04/28/2004
04/28/2004 04/28/2004 05/10/2004
05/12/2004 05/13/2004
05/13/2004 05/14/2004
05/14/2004 05/14/2004 05/14/2004
05/14/2004 05/14/2004

# Docket Text
8 ORDER, It is ordered that the aboved captioned action shall be exempt from electronic case filing. It is further ordered that the above captioned action is unsealed to the following extent. All documents that have been filed in this case shall remain under seal. The following documents shall be filed on the public docket in redacted form: redacted complaint and redacted motion to file the complaint under seal. Copies of those two redacted documents, which are to be filed on the public docket in redacted form only, are annexed. This order shall be filed on the public docket. All other documents that are to be filed in this case shall be filed under seal, unless otherwise ordered by the court. (Signed by Judge Victor Marrero on 4/28/04) (wv, ) (Entered: 04/28/2004)
9 COMPLAINT against John Ashcroft, Marion Bowman, Robert Mueller. Document filed by American Civil Liberties Union.(laq, ) (Entered: 04/28/2004)
10 MOTION for Leave to File Case Under Seal. Document filed by American Civil Liberties Union. (laq, ) (Entered: 04/28/2004)
18 ORDER; having considered plaintiffs' unopposed motion for leave to exceed page limitations contained in Rule II(C) of the Individual Practices of United States Judge Victor Marrero and finding good cause therefore, it is Ordered that the motion shall be and hereby is granted; and that plaintiff's memorandum in support of their motion for summary judgment be filed on May 17, 2004, and shall not exceed forty pages. (Signed by Judge Victor Marrero on 5/10/04) (djc, ) (Entered: 05/14/2004) (Entered: 09/29/2004)
15 DECISION AND ORDER. Setting forth a procedure by which documents in this case may be filed. The Clerk of the Court to file this Decision and Order on the public docket (Signed by Judge Victor Marrero on 5/12/04) (yv, ) (Entered: 05/12/2004)
19 ORDER that the motion shall be and hereby is granted; that plaintiffs' memorandum in support of their motion for summary judgment to be filed on 5/17/04, shall not exceed forty (40) pages. (Signed by Judge Victor Marrero on 5/10/04) "Copies Faxed By Chambers" (jco, ) Modified on 5/14/2004 (jco, ). (Entered: 05/14/2004)
27 ORDER, that the annexed redacted documents shall be filed on the public docket in redacted form, and shall be described on the docket as further set forth herein. (Signed by Judge Victor Marrero on 5/7/04) (tp, ) (Entered: 05/24/2004)
22 ENDORSED LETTER addressed to Judge Marrero from Meredith Kotler dated 5/12/04: the Clerk of Court is directed to file in the public docket for this case the attached letter in redacted form, from the Govt to the Court, dated 5/12/04. (Signed by Judge Victor Marrero on 5/13/04) copies sent by chambers.(cd, ) (Entered: 05/17/2004)
23 Letter addressed to Judge Marrero from Merdith Kotler dated 5/12/04: fld govt's redacted letter re plntfs' request, as per doc #22. Document filed by John Ashcroft.(cd, ) (Entered: 05/17/2004)
24 ORDER: Amici's motion for leave to file an amicus brief and Amici's motion for leave to file an amicus brief and amicus brief be unsealed and filed on the public docket are BOTH GRANTED. Supporting documents attached. (Signed by Judge Victor Marrero on 5/13/04) (db, ) (Entered: 05/18/2004)
25 ORDER. The annexed redacted documents shall be filed on the public docket in redacted form, and shall be described on the docket as follows: (1) Letter dated 5/6/04 (2) Letter dated 5/7/04 (3) Letter dated 5/7/04. This Order shall be filed on the public docket (Signed by Judge Victor Marrero on 5/13/04) (yv, ) (Entered: 05/18/2004)
114 LETTER DATED 5/6/04 (yv, ) (Entered: 08/22/2005)
115 LETTER DATED 5/7/04 (yv, ) (Entered: 08/22/2005)

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05/14/2004 05/21/2004 05/21/2004 05/24/2004 05/24/2004 05/25/2004
05/25/2004 05/25/2004 05/25/2004
05/25/2004 06/15/2004 07/07/2004
07/07/2004 07/07/2004 07/07/2004

116 LETTER DATED 5/7/04 (yv, ) (Entered: 08/22/2005)
28 ORDER that the redacted documents attached to this order shall be registered on the public docket with the captions as further set forth in this order. (Signed by Judge Victor Marrero on 5/21/04) (dle, ) (Entered: 05/25/2004)
29 ORDER that the redacted documents attached to this Order shall be registered on the public docket with the following captions set forth in this Order. (Signed by Judge Victor Marrero on 5/21/04) (jco, ) (Entered: 05/25/2004)
30 BRIEF of Electronic Frontier Foundation, at al., as Amicus Curiae in Support of Plaintiffs John Doe and American Civil Liberties Union's Motion for Summary Judgment. (tp, ) (Entered: 05/25/2004)
35 MOTION for Ann Beeson to Appear Pro Hac Vice. AFFIDAVIT of Jameel Jaffer in Support attached. Document filed by American Civil Liberties Union. (ps, ) (Entered: 05/26/2004)
31 ENDORSED LETTER addressed to Judge Victor Marrero from Mark Schneider dated 5/21/04 re: counsel for plaintiff request that their submissions be filed publicly. Motion granted. The request of the American Library Association. Freedom to Read Foundation and American Booksellers Foundation for free expression to file an amicus brief in support of plaintiffs' motion for summary judgment is approved. (Signed by Judge Victor Marrero on 5/24/04) (dle, ) (Entered: 05/26/2004)
32 Memorandum of Law in support of unopposed motion for leave to file amicus curiae brief in support of plaintiffs' motion for summary judgment. Document filed by American Civil Liberties Union. (dle, ) (Entered: 05/26/2004)
33 Brief of Amici Curiae American Library Association, Freedom to Read Foundation and American Booksellers Foundation for Free Expression in support of plaintiffs' motion for summary judgment. Document filed by American Civil Liberties Union.(dle, ) (Entered: 05/26/2004)
34 MEMO ENDORSEMENT on Unopposed Motion for Leave to File Amicus Curiae brief in support of plaintiffs motion fo summary judgment. Application GRANTED. The Clerk of the Court is directed to file the Amicus Curiae brief in the record of this case. (Signed by Judge Victor Marrero on 5/24/04) Copies Faxed by Chambers.(db, ) (Entered: 05/26/2004)
36 ORDER, that the annexed redacted documents shall be filed on the public docket in redacted form, and shall be described on the docket as furhter set forth herein. (Signed by Judge Victor Marrero on 5/21/04) (tp, ) (Entered: 06/02/2004)
39 ENDORSED LETTER addressed to Judge Victor Marrero from Meredith E. Kotler dated 6/4/04; re: The Government's Cross−Motions due by 6/28/2004. The Government's Responses due by 6/28/2004. (Signed by Judge Victor Marrero on 6/7/04) (sac, ) (Entered: 06/16/2004)
43 ORDER that the annexed redacted documents shall be filed on the public docket in redacted form, and shall be described on the docket as follows: Notice of Motion, dated 6/28/04; statement pursuant to local civil rule 56.1(b), dated 6/28/04; memorandum of law in opposition to plaintiffs' motion for summary judgment and in support of the Government's Cross−Motion to Dismiss the complaint or for summary judgment, dated 6/28/04; that this Order shall be filed on the public docket. So Ordered. (Signed by Judge Victor Marrero on 7/6/04) (jco, ) (Entered: 07/12/2004)
44 MOTION for an Order to Dismiss. Document filed by John Ashcroft, Marion Bowman, Robert Mueller. (jco, ) (Entered: 07/12/2004)
45 MEMORANDUM OF LAW in opposition to plaintiffs' motion for summary judgment and in Support re: 44 MOTION to Dismiss. Document filed by John Ashcroft, Marion Bowman, Robert Mueller. (jco, ) (Entered: 07/12/2004)
46 RULE 56.1 STATEMENT. Document filed by John Ashcroft, Marion Bowman, Robert Mueller. (jco, ) (Entered: 07/12/2004)

Case: 1:04-cv-2614 As of: 10/20/2016 08:54 PM EDT 6 of 21

07/08/2004
07/20/2004
07/20/2004 07/30/2004
08/06/2004 08/06/2004 08/06/2004 08/06/2004 08/06/2004 08/12/2004 08/12/2004 08/12/2004 08/12/2004

47 ENDORSED LETTER addressed to Judge Marrero from Meredith Kotler dated 6/24/04: the Govt may submit a combined opposition and cross motion brief not to exceed 70 pages. The Court is pursuaded that such late date is warranted in light of the combined filing and the uniqueness of the case. Plntf shall be accorded similar leeway in connection with its remaining submissions. (Signed by Judge Victor Marrero on 6/25/04) (cd, ) (Entered: 07/13/2004)
48 ORDER, that the redacted version of the Government's Memorandum of Law in Opposition to Plaintiffs' Motion for Summary Judgment and in Support of the Government's Cross−Motion to Dismiss the Complaint or for Summary Judgment, filed 6/30/04, shall be removed from the public docket and returned to the Government; the annexed redacted version ofthe Government's Memorandum of Law in Opposition to Plaintiffs' Motion for Summary Judgment and in Support of the Government's Cross−Motion to Dismiss the Complaint or for Summary Judgment shall be filed on the public docket; this Order shall be filed on the public docket. (Signed by Judge Victor Marrero on 7/13/04) `.(ae, ) (Entered: 07/28/2004)
49 MEMORANDUM OF LAW in Opposition to Plaintiffs' Motion for Summary Judgment and in Support of The Government's Cross−Motion to Dismiss the Complaint or for Summary Judgment. Document filed by John Ashcroft, Marion Bowman, Robert Mueller. (ae, ) (Entered: 07/28/2004)
51 ORDER: plaintiffs unopposed motion for leave to exceed page limitations contained in Rule II(C) is GRANTED. Plaintiffs reply in support of plaintiffs motion for summary judgment and oppositionto the government's cross−motion to dismiss the complaint or for summary judgment to be filed on 7/30/04, shall not exceed sixty (60) pages. (Signed by Judge Victor Marrero on 7/28/04) (db, ) (Entered: 08/03/2004)
52 ORDER...that the redacted documents attached to this Order shall be registered on the public docket with the following captions, etc. (Signed by Judge Victor Marrero on 8/5/04) (rag, ) (Entered: 08/09/2004)
53 REPLY MEMORANDUM OF LAW (REDACTED) in Support of Plaintiffs' Motion for Summary Judgment and Opposition to the Government's Cross−Motion to Dismiss the Complaint or for Summary Judgment re: 52 Order. Document filed by American Civil Liberties Union, John Doe. (rag, ) (Entered: 08/09/2004)
54 SUPPLEMENTAL DECLARATION and Exhibits in Support of Plaintiffs' Motion for Summary Judgment and in Opposition to the Government's Cross−Motion to Dismiss the Complaint or for Summary Judgment (REDACTED) re: 52 Order. Document filed by American Civil Liberties Union, John Doe. (rag, ) (Entered: 08/09/2004)
55 PLAINTIFFS' RULE 56.1 STATEMENT. (REDACTED) re: 52 Order Document filed by American Civil Liberties Union, John Doe. (rag, ) (Entered: 08/09/2004)
56 MOTION (REDACTED) Exclude Ex Parte Declaration Filed in Support of the Government's Cross−Motion to Dismiss the Complaint or for Summary Judgment. re: 52 Order Document filed by American Civil Liberties Union, John Doe. (rag, ) (Entered: 08/09/2004)
58 ORDER...that the redacted documents attached to this Order shall be registered on the public docket with the following captions, etc. (Signed by Judge Victor Marrero on August 2004) (rag, ) (Entered: 08/13/2004)
59 MOTION (REDACTED) for Summary Judgment. re: 58 Order Document filed by American Civil Liberties Union, John Doe. (rag, ) (Entered: 08/13/2004)
60 STATEMENT OF UNDISPUTED FACTS (REDACTED) in Support re: 59 MOTION for Summary Judgment.. re: 58 Order Document filed by American Civil Liberties Union, John Doe. (rag, ) (Entered: 08/13/2004)
61 MEMORANDUM OF LAW (REDACTED) in Support re: 56 MOTION Exclude Ex Parte Declaration Filed in Support of the Government's Cross−Motion to Dismiss the Complaint or for Summary Judgment. re: 58 Order. Document filed by American Civil Liberties Union, John Doe. (rag, ) (Entered: 08/13/2004)

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08/12/2004 08/16/2004 09/01/2004 09/10/2004 09/10/2004 09/10/2004 09/14/2004 09/29/2004
09/29/2004 09/30/2004
10/15/2004 11/12/2004

62 DECLARATIONS AND EXHIBITS (REDACTED) in Support re: 59 MOTION for Summary Judgment.. re: 58 Order Document filed by American Civil Liberties Union, John Doe. (rag, ) (Entered: 08/13/2004)
63 ORDER granting 35 Motion for Ann Beeson to Appear Pro Hac Vice . (Signed by Judge Victor Marrero on 8/16/2004) (jsa, ) (Entered: 08/17/2004)
CASHIERS OFFICE REMARK on 63 Order on Motion to Appear Pro Hac Vice in the amount of $25.00, paid on 08/30/04, Receipt Number 518595. (gm, ) (Entered: 09/01/2004)
67 ORDER; that the redacted document atached to this Order shall be filed on the public docket and shall be described as: Reply Memorandum of Law in Support of the Governments Cross−Motion to Dismiss the Complaint or for Summary Judgment. (Signed by Judge Victor Marrero on 9/7/2004) (jp, ) (Entered: 09/13/2004)
68 REPLY MEMORANDUM OF LAW in Support re: 59 MOTION for Summary Judgment.. Document filed by John Ashcroft, Marion Bowman, Robert Mueller. (jp, ) (Entered: 09/13/2004)
Minute Entry for proceedings held before Judge Victor Marrero : Interim Pretrial Conference held on 9/10/2004. (sac, ) (Entered: 09/20/2004)
Minute Entry for proceedings held before Judge Victor Marrero : Interim Pretrial Conference held on 9/14/2004. (dle, ) (Entered: 09/21/2004)
69 MEMORANDUM AND OPINION # 90699...ORDERED that the motion of John Doe, the ACLU, and the American Civil Liberties Union Foundation for summary judgment in this case is granted. Defendants John Ashcroft, in his official capacity as Attorney General of the U.S., Robert Mueller, in his official capacity as Director of the FBI, and Marion Bowman, in his official capacity as Senior Counsel to the FBI, are hereby enjoined from issuing national security letters under 18 U.S.C. 2709, or from enforcing the provisions of 18 U.S.C. 2709, or from enforcing the provisions of 18 U.S.C. 2709(c); it is further ORDERED that defendants' motion to dismiss, or in the alternative, for summary judgment, is denied, it is further ORDERED that Plaintiffs' motion to exclude Defendants' ex parte affidavit is denied as moot;... it is further ORDERED that the Clerk of Court shall enter judgment accordingly but stay enforcement of the judgment pending any appeal, or, if no appeal is filed, or 90 days from the date of this Order. re: 59 MOTION for Summary Judgment. filed by John Doe, American Civil Liberties Union, 44 MOTION to Dismiss. filed by John Ashcroft, Robert Mueller, Marion Bowman, 56 MOTION Exclude Ex Parte Declaration Filed in Support of the Government's Cross−Motion to Dismiss the Complaint or for Summary Judgment. filed by John Doe, American Civil Liberties Union., Motions terminated: (Signed by Judge Victor Marrero on 9/28/04) (rag, ) (Entered: 09/29/2004)
Transmission to Judgments and Orders Clerk. Transmitted re: 69 Memorandum &Opinion,,,,,, Terminate Motions,,,,,, to the Judgments and Orders Clerk for preparation of Judgment. (rag, ) (Entered: 09/29/2004)
70 CLERK'S JUDGMENT granting plaintiffs' motion for summary judgment, enjoining defendants from issuing national security letters under 18 U.S.C. ? 2709, or from enforcing the provisions of 18 U.S.C. ? 2709(c), denying defendants' motion to dismiss, or in the alternative, for summary judgment, denying plaintiffs' motion to exclude defendants' ex parte affidavit as moot, and staying enforcement of the judgment pending any appeal, or, if no appeal is filed, for 90 days from the date of the Opinion (90699) dated September 28, 2004. (Signed by J. Michael McMahon, clerk on 9/30/04) (ml, ) (Entered: 09/30/2004)
Mailed notice of Right to Appeal to Attorney(s) of Record: Ann Beeson, Arthur N. Eisenberg, Jameel Jaffer, Meredith E. Kotler. (snu, ) (Entered: 10/15/2004)
71 ENDORSED LETTER addressed to Judge Victor Marrero from Jeffrey Olstericher dated 11/11/04 re: granting the Gov'ts requests for an extension of time to 11/22/04 to respond to plaintiff's motion for leave to file certain docuemnts on the public docket. (Signed by Judge Victor Marrero on 11/12/04) (pl, ) (Entered: 11/19/2004)

Case: 1:04-cv-2614 As of: 10/20/2016 08:54 PM EDT 8 of 21

11/19/2004 11/19/2004 11/23/2004 11/24/2004 12/27/2004 01/25/2005
01/25/2005 02/01/2005 02/02/2005 02/02/2005 04/07/2005 04/11/2005

72 ENDORSED LETTER addressed to Judge Marrero from Ann Beeson dated 11/5/2004 re: The Government is directed to respond by 11/5/2004 to the request set forth in plaintiff's motion herein. (Signed by Judge Victor Marrero on 11/8/2004) (jsa, ) (Entered: 11/23/2004)
Set Deadlines/Hearings: Responses due by 11/5/2004 (jsa, ) (Entered: 11/23/2004)
80 NOTICE OF APPEAL from 69 Memorandum &Opinion, Terminate Motions,,,,,,,,,,, 70 Clerk's Judgment,,. Document filed by John Ashcroft, Robert Mueller, Marion Bowman. Copies of Notice of Appeal mailed to Attorney(s) of Record: Jameel Jaffer, Ann Beeson, Sharon McGowan. (USA NO FEE DUE) (pr, ) (Entered: 02/02/2005)
74 ENDORSED LETTER addressed to Judge Victor Marrero from Jeffrey Oestericher dated 11/22/04; re: request granted, the time for the Government to respond to plaintiffs' motion for leave to file certain document herein is extended as follows: Responses due by 11/23/2004; Replies due by 12/3/2004. (Signed by Judge Victor Marrero on 11/22/04) (sac, ) (Entered: 11/29/2004)
76 SCHEDULING ORDER: Plaintiff supplemental brief due by 1/7/2005Supplemental Responses due by 1/18/2005 Supplemental Replies due by 1/24/2005. These supplemental briefs shall be filed under seal pending disposition of plaintiff's motion (Signed by Judge Victor Marrero on 12/22/2004) (jsa, ) (Entered: 12/29/2004)
77 ORDER; that plaintiffs may file documents on the public docket that reflect undisputed alterations to the reactions previously approved by the parties or the Court. While no prior permission from the Court shall be necessary for documents reflecting these undisputed alterations to be publicly filed, the parties are directed to follow the procedures outlined in paragraph two of the Court's Order dated 5/12/04, and reported at 317 F. Supp. 2d 488, 492 (S.D.N.Y. 2004), in order to ensure that the publicly−filed versions of the redacted documents actually reflect agreed−upon alterations. The Court shall stay adjudication of any dispute over alterations to the redactions it has previously approved pending resolution of the Government's appeal of the Court's Decision and Order dated 9/28/04. Such stay, however, shall not prejudice any remedy that Plaintiffs may seek before the U.S. Court of Appeals for the Second Circuit related to the Court's prior sealing determination. (Signed by Judge Victor Marrero on 1/24/05) (pl, ) (Entered: 02/01/2005)
78 ORDER...the annexed documents, employing the public docket caption for this cse, were erroneously filed under seal. The Clerk of the Court is hereby ordered to file the attached documents on the public docket, and to describe them on the docket as follows: 1) Notice of Appeal, dated 11/23/04; 2) Order authorizing public filing of Notice of Appeals, dated 11/24/04. (Signed by Judge Victor Marrero on 1/24/05) "copies faxed by chambers".(rag, ) (Entered: 02/01/2005)
79 ORDER...(Duplicate Original) It is ORDERED that the annexed document, employing the public docket caption, shall be filed on the pbulic docket and shall be described on the docket as follows: 1) Notice of Appeal, dated 11/23/04. It is further ORDERED that this Order shall be filed on the public. (Signed by Judge Victor Marrero on 11/24/04) (rag, ) (Entered: 02/01/2005)
Transmission of Notice of Appeal to the District Judge re: 80 Notice of Appeal,. (pr, ) (Entered: 02/02/2005)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 80 Notice of Appeal,. (pr, ) (Entered: 02/02/2005)
81 USCA SCHEDULING ORDER as to 80 Notice of Appeal, filed by John Ashcroft, Robert Mueller, Marion Bowman, USCA Case Number 05−0570−cv. Roseann B. MacKechnie, Clerk USCA. Certified: 3/24/05. Appeal Record due by 5/17/2005. Appellant Brief due by 5/24/2005. Appellee Brief due by 7/25/2005. (tp, ) (Entered: 04/07/2005)
83 ORDER on plaintiffs' motion for leave to file under seal be granted. (Signed by Judge Thomas P. Griesa on 4/11/05) (jco, ) (PLACED ON PUBLIC DOCKET PER ORDER DATED 4/12/05). (Entered: 04/14/2005)

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04/13/2005
04/13/2005
04/13/2005 04/13/2005
04/13/2005 04/13/2005 04/13/2005 04/13/2005 04/13/2005 04/13/2005 04/13/2005 04/13/2005
04/13/2005
04/13/2005

82 ORDER The Clerk of Court is directed to place each of the attached documents on the public docket. Each document shall be separately numbered and discribed, and each shall bear the following caption on the docket sheet: (PLACED ON PUBLIC DOCKET PER ORDER DATED 4/12/05). So Ordered. (Signed by Judge Victor Marrero on 4/12/05) (jco, ) (Entered: 04/14/2005)
84 AMENDED COMPLAINT amending 9 Complaint against John Ashcroft, Robert Mueller, Marion Bowman.Document filed by American Civil Liberties Union Foundation, American Civil Liberties Union. Related document: 9 Complaint filed by American Civil Liberties Union.(PLACED ON PUBLIC DOCKET PER ORDER DATED 4/12/05).(jco, ) (Entered: 04/14/2005)
85 NOTICE of Initial Conference. (jco, )(PLACED ON PUBLIC DOCKET PER ORDER DATED 4/12/05). (Entered: 04/14/2005)
86 LETTER addressed to Judge Victor Marrero from Meredith E. Kotler dated 4/19/04 re: Counsel on behalf of the parties write to inform the Court that the Government contemplates moving to dismiss the complaint or, in the alternative, for summary judgement in its favor, in lieu of answering. (jco, ) (PLACED ON PUBLIC DOCKET PER ORDER DATED 4/12/05). (Entered: 04/14/2005)
87 MOTION to Unseal Case. Document filed by American Civil Liberties Union Foundation, American Civil Liberties Union.(PLACED ON PUBLIC DOCKET PER ORDER DATED 4/12/05). (jco, ) (Entered: 04/14/2005)
88 MEMORANDUM OF LAW in Support re: 87 MOTION to Unseal Case. Document filed by American Civil Liberties Union Foundation, American Civil Liberties Union.(PLACED ON PUBLIC DOCKET PER ORDER DATED 4/12/05). (jco, ) (Entered: 04/14/2005)
89 RULE 56.1 STATEMENT. Document filed by American Civil Liberties Union Foundation, American Civil Liberties Union.(PLACED ON PUBLIC DOCKET PER ORDER DATED 4/12/05). (jco, ) (Entered: 04/14/2005)
90 MEMORANDUM OF LAW in Support re: 59 MOTION for Summary Judgment. Document filed by American Civil Liberties Union Foundation, American Civil Liberties Union.(PLACED ON PUBLIC DOCKET PER ORDER DATED 4/12/05). (jco, ) (Entered: 04/14/2005)
91 RULE 56.1(a) STATEMENT. Document filed by John Ashcroft, Robert Mueller, Marion Bowman. (jco, ) (Entered: 04/14/2005)
92 DECLARATION of Meredith Kotler. Document filed by John Ashcroft, Robert Mueller, Marion Bowman.(PLACED ON PUBLIC DOCKET PER ORDER DATED 4/12/05). (jco, ) (Entered: 04/14/2005)
93 SECOND DECLARATION of Ann Beeson. Document filed by American Civil Liberties Union Foundation, American Civil Liberties Union.(PLACED ON PUBLIC DOCKET PER ORDER DATED 4/12/05). (jco, ) (Entered: 04/14/2005)
94 LETTER addressed to Judge Victor Marrero from Meredith E. Kotler dated 4/26/04 re: Counsel for Government writes to propose the following briefing schedule: plaintiffs' summary judgment motion to be filed by 5/17/04; opposition due 6/7/04; reply papers 6/28/04; Gov't reply papers in support of its motion 7/19/04. (jco, ) (PLACED ON PUBLIC DOCKET PER ORDER DATED 4/12/05). (Entered: 04/14/2005)
95 LETTER addressed to Judge Victor Marrero from Meredith E. Kotler dated 4/29/04 re: Counsel for The Government writes this letter to request that the Court direct the ACLU to remove immediately from its website any mention of the briefing schedule in this case, and the language describing the specific information requested in the challenged NSL. (jco, ) (PLACED ON PUBLIC DOCKET PER ORDER DATED 4/12/05). (Entered: 04/14/2005)
96 LETTER addressed to Judge Victor Marrero from Meredith E. Kotler dated 4/30/04 re: The Government writes to submit that the ACLU's motion to generally lift the seal in this case at this time is inappropriate. If the Court will entertain the ACLU's motion to unseal, the Government respectfully requests that is be given ten

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04/13/2005 04/13/2005 04/13/2005 04/13/2005 04/13/2005 04/13/2005 04/13/2005
04/13/2005 04/13/2005
04/13/2005 04/13/2005

business days, until 5/14/04, to respond to the motion, as provided by Local Civil Rule 6.1(b). PLACED ON PUBLIC DOCKET PER ORDER DATED 4/12/05).(jco, ) (Entered: 04/14/2005)
97 LETTER addressed to Judge Victor Marrero from Jameel Jaffer dated 4/30/04 re: Counsel writes in response to the Government's 4/30/04 letter in the matter to clarify what appears to be a point of confusion. (PLACED ON PUBLIC DOCKET PER ORDER DATED 4/12/05).(jco, ) (Entered: 04/14/2005)
98 LETTER addressed to Judge Victor Marrero from Ann Beeson dated 5/6/04 re: The ACLU respectfully asks the Court to enter an order amended the sealing order and adopting the ACLU disclosure proposal. (jco, ) (PLACED ON PUBLIC DOCKET PER ORDER DATED 4/12/05). (Entered: 04/14/2005)
99 LETTER addressed to Judge Victor Marrero from Judge Meredith E. Kotler dated 5/7/04 re: Counsel for defendant writes to respond to the last paragraph of plaintiff's 5/6/04 letter to the Court. (PLACED ON PUBLIC DOCKET PER ORDER DATED 4/12/05).(jco, ) (Entered: 04/14/2005)
100 LETTER addressed to Judge Victor Marrero from Meredith E. Kotler dated 5/7/04 re: Government writes to sumbit tha the enclosed proposal (as described in a proposed Order and in correspondence to the ACLU) should govern future disclosures in this case. (jco, ) (PLACED ON PUBLIC DOCKET PER ORDER DATED 4/12/05). (Entered: 04/14/2005)
101 LETTER addressed to Judge Victor Marrero from Meredith E. Kotler dated 5/12/04 re: Government writes to request that the redactions remain, except as proposed in this letter. (PLACED ON PUBLIC DOCKET PER ORDER DATED 4/12/05).(jco, ) (Entered: 04/14/2005)
102 LETTER addressed to Judge Victor Marrero from Ann Beeson dated 5/14/04 re: Counsel for plaintiffs submit this letter in response to the government's letter of 5/12/04. Document filed by American Civil Liberties Union Foundation, American Civil Liberties Union. (PLACED ON PUBLIC DOCKET PER ORDER DATED 4/12/05).(jco, ) (Entered: 04/14/2005)
103 LETTER addressed to Judge Victor Marrero from Ann Beeson dated 5/25/04 re: Counsel for plaintiff write to inform the Court that plaintiff American Civil Liberties Union Foundation (ACLU) inadvertently disclosed five words that are subject to the Court's sealing order. Document filed by American Civil Liberties Union. (PLACED ON PUBLIC DOCKET PER ORDER DATED 4/12/05).(jco, ) (Entered: 04/14/2005)
104 LETTER addressed to Judge Victor Marrero from Meredith E. Kotler dated 5/27/04 re: Government writes in support of the disputed redactions sought. (PLACED ON PUBLIC DOCKET PER ORDER DATED 4/12/05).(jco, ) (Entered: 04/14/2005)
105 LETTER addressed to Judge Victor Marrero from Ann Beeson dated 6/2/04 re: Counsel for plaintiffs write in response to the Government's letter in support of disputed redacations in plaintiffs' summary judgment pleadings. Document filed by American Civil Liberties Union Foundation, American Civil Liberties Union. (PLACED ON PUBLIC DOCKET PER ORDER DATED 4/12/05).(jco, ) (Entered: 04/14/2005)
106 LETTER addressed to Judge Victor Marrero from Meredith E. Kotler dated 6/24/04 re: The Government respectfully submits this letter to request an extension of the Court's 25−page limit for the Government's memorandum of law to be filed on 6/28/04. (jco, ) (PLACED ON PUBLIC DOCKET PER ORDER DATED 4/12/05) (Entered: 04/15/2005)
107 LETTER addressed to Judge Victor Marrero from Jemeel Jaffer dated 6/24/04 re: Counsel for plainitffs write to respond to the Government's request for an extension to the page limitation for the Government's memo. of law to be filed on June 28. Document filed by American Civil Liberties Union Foundation, American Civil Liberties Union.(jco, ).(PLACED ON PUBLIC DOCKET PER ORDER DATED 4/12/05) (Entered: 04/15/2005)

Case: 1:04-cv-2614 As of: 10/20/2016 08:54 PM EDT 11 of 21

04/13/2005 04/13/2005 04/13/2005 04/13/2005 04/13/2005 04/25/2005 05/26/2006
05/30/2006 07/28/2006
08/02/2006 08/03/2006
08/03/2006 08/30/2006

108 LETTER addressed to Judge Victor Marrero from Meredith E. Kotler dated 8/10/04 re: The Government writes to request that its time to write in support of disputed redactions in plaintiffs' recently−filed papers be extended until 8/25/04. Plaintiffs oppose this request. (PLACED ON PUBLIC DOCKET PER ORDER DATED 4/12/05)(jco, ) (Entered: 04/15/2005)
109 LETTER addressed to Judge Victor Marrero from Ann Beeson dated 8/11/04 re: Counsel for plaintiffs writes this letter to clarify the record with respect to certain assertions in defendants' letter of August 10th to the Court requesting the extension. (PLACED ON PUBLIC DOCKET PER ORDER DATED 4/12/05)(jco, ) (Entered: 04/15/2005)
110 LETTER addressed to Judge Victor Marrero from Meredith E. Kotler dated 8/25/04 re: The Government writes in support of the disputed redactions. (PLACED ON PUBLIC DOCKET PER ORDER DATED 4/12/05)(jco, ) (Entered: 04/15/2005)
111 LETTER addressed to Jeffrey S. Oestericher from Ann Beeson dated 9/3/04 re: Counsel for plaintiffs write to reguarding redactions.(PLACED ON PUBLIC DOCKET PER ORDER DATED 4/12/05) (jco, ) (Entered: 04/15/2005)
112 LETTER addressed to Judge Victor Marrero from Ann Beeson dated 8/31/04 re: Counsel for plaintiffs write in response to The Government's letter of 8/25/04. Document filed by American Civil Liberties Union Foundation, American Civil Liberties Union.(PLACED ON PUBLIC DOCKET PER ORDER DATED 4/12/05)(jco, ) (Entered: 04/15/2005)
113 Appeal Record Sent to USCA (Index). Notice that the Original index to the record on Appeal for 80 Notice of Appeal, filed by John Ashcroft, Robert Mueller, Marion Bowman, USCA Case Number 05−0570, 3 Copies of the index, Certified Clerk Certificate and Certified Docket Sheet were transmitted to the U.S. Court of Appeals. (tp, ) (Entered: 04/26/2005)
117 MANDATE of USCA (Certified Copy) as to 80 Notice of Appeal, filed by John Ashcroft,, Robert Mueller,, Marion Bowman, USCA Case Number 05−0570−cv. Ordered, Adjudged and Decreed that the judgment of the District Court is VACATED, and the case REMANDED for further proceedings. Roseann B. MacKechnie, Clerk USCA. Issued As Mandate: 5/23/2006. (nd, ) (Entered: 05/30/2006)
Transmission of USCA Mandate/Order to the District Judge re: 117 USCA Mandate,. (nd, ) (Entered: 05/30/2006)
123 (DUPLICATE ORIGINAL) SECOND AMENDED COMPLAINT amending 9 Complaint against Marion Bowman(in his official capacity as Senior Counsel to the Federal Bureau of Investigations), Alberto Gonzales, Robert Mueller(in his official capacity as Director of the Federal Bureau of Investigation).Document filed by American Civil Liberties Union Foundation, American Civil Liberties Union. Related document: 9 Complaint filed by American Civil Liberties Union,.(ae, ) (Entered: 08/07/2006)
124 REDACTED MOTION for Leave to File to file second amended complaint for declaratory and injunctive relief.. (jmi, ) (Entered: 08/08/2006)
121 ENDORSED LETTER addressed to Judge Victor Marrero from Jameel Jaffer dated 7/31/06. ENDORSEMENT: Request GRANTED. The briefing schedule with regard to the motion for summary judgment herein is authorized as set forth herein; motion papers submitted by 9/8/06: Response 10/6/06: reply 10/20/06. If a cross motion is filed it shall be made on 10/6/06 response 10/20/06; reply 11/3/06. So Ordered. (Signed by Judge Victor Marrero on 8/2/06) (js, ) (Entered: 08/04/2006)
122 NOTICE OF APPEARANCE by Melissa Goodman on behalf of American Civil Liberties Union Foundation, John Doe, American Civil Liberties Union (djc, ) (Entered: 08/04/2006)
125 ENDORSED LETTER addressed to Judge Victor Marrero from Jameel Jaffer dated 8/29/06 re: counsel for plaintiff requests leave to exceed page limitations cotained i Rule II (B). Request granted. Plaintiff's have leave to file a brief in

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08/31/2006 09/12/2006
09/21/2006 09/26/2006
09/26/2006 09/26/2006 09/26/2006 09/26/2006 09/29/2006
09/29/2006 09/29/2006

connection with their motion for summary judgment herein. This exceeds the limitations the court's Individual Practices, said brief not to exceed 50 pages. Dfts' response may be of equal length. Any reply shall not exceed 20 pages. (Signed by Judge Victor Marrero on 8/29/06) (dle, ) (Entered: 08/31/2006)
126 MOTION for leave to exceed page limitations contained in Rule II(B). Document filed by American Civil Liberties Union Foundation, American Civil Liberties Union. (djc, ) (Entered: 09/05/2006)
MEMO ENDORSEMENT on re: 126 MOTION for leave to exceed page limitations contained in Rule II(B) filed by American Civil Liberties Union Foundation, American Civil Liberties Union. ENDORSEMENT: Request Granted. Plaintiffs herein are authorized to submit a brief in connection with their motion for summary judgment which may exceed the page limitations in the Court's Individual Practices, but shall not total more than 50 pages. Defendant's response may similarly exceed the limitation. Any reply shall not exceed 20 pages. So Ordered. (Signed by Judge Victor Marrero on 9/11/2006) (lb, ) (Entered: 09/13/2006)
127 ENDORSED LETTER addressed to Judge Victor Marrero from Ronald M. Daignault dated 9/20/2006 re: proposed filing date of 9/29/2006. ENDORSEMENT: Request Granted. The organizations referral to above are authorized to submit a brief as amici curiae in this case. So Ordered. (Signed by Judge Victor Marrero on 9/21/2006) (lb, ) (Entered: 09/22/2006)
128 ENDORSED LETTER addressed to Judge Victor Marrero from Michael J. Garcia dated 9/22/06 re: Request that the Court memo endorse this letter to indicate to the Clerk of the Court that the redacted version may be filed. ENDORSEMENT: Request GRANTED. Plintiff's are authorized to file the redacted version of their papers with regard to their motion for summary judgment therein. Defendants redacted response may similarly be filled as well as any reply. (Signed by Judge Victor Marrero on 9/25/06) (js, ) (Entered: 09/27/2006)
134 REDACTED MOTION for Summary Judgment. Document filed by American Civil Liberties Union Foundation, American Civil Liberties Union. (jco, ) (Entered: 10/11/2006)
135 REDACTED MEMORANDUM OF LAW in Support re: 134 MOTION for Summary Judgment. Document filed by American Civil Liberties Union Foundation, American Civil Liberties Union. (jco, ) (Entered: 10/11/2006)
136 REDACTED DECLARATION and EXHIBITS in Support re: 134 MOTION for Summary Judgment. Document filed by American Civil Liberties Union Foundation, American Civil Liberties Union. (jco, ) (Entered: 10/11/2006)
137 REDACTED RULE 56.1 STATEMENT. Document filed by American Civil Liberties Union Foundation, American Civil Liberties Union. (jco, ) (Entered: 10/11/2006)
129 MEMORANDUM OF LAW in Support re: 126 MOTION for leave to exceed page limitations contained in Rule II(B). in Support of Plaintiffs' Motion for Partial Summary Judgment and Plaintiffs' Petition to Set Aside Demand for Records. Document filed by American Association of Publishers, Inc., American Booksellers Foundation for Free Expression, American Library Association, Freedom to Read Foundation, Inc., Pen American Center. (Daignault, Ronald) (Entered: 09/29/2006)
130 NOTICE OF APPEARANCE by Ronald Marc Daignault on behalf of American Association of Publishers, Inc., American Booksellers Foundation for Free Expression, American Library Association, Freedom to Read Foundation, Inc., Pen American Center (Daignault, Ronald) (Entered: 09/29/2006)
131 ENDORSED LETTER addressed to Judge Victor Marrero from Stephen Kass dated 9/27/06 re: counsel requests in lieu of filing a formal motion, prmission to submit an amicus brief on that date. Request granted. The Association of The Bar of the City of New York is authorized to file a brief as amicus curiae in this action. No motionshall be necessary for this purpose. (Signed by Judge Victor Marrero on

Case: 1:04-cv-2614 As of: 10/20/2016 08:54 PM EDT 13 of 21

09/29/2006
10/13/2006 10/13/2006 11/30/2006 11/30/2006 11/30/2006 11/30/2006 11/30/2006 12/07/2006 12/13/2006
01/23/2007
02/02/2007
02/02/2007 02/27/2007

9/27/06) (dle, ) (Entered: 10/02/2006)
132 MEMORANDUM OF LAW in Support re: 59 MOTION for Summary Judgment.. Document filed by American Civil Liberties Union Foundation, American Civil Liberties Union, American Association of Publishers, Inc., American Booksellers Foundation for Free Expression, American Library Association, Freedom to Read Foundation, Inc., Pen American Center. (jmi, ) (Entered: 10/03/2006)
138 (REDACTED) MEMORANDUM OF LAW in Support re: 134 MOTION for Summary Judgment.. Document filed by American Civil Liberties Union Foundation, American Civil Liberties Union. (ae, ) (Entered: 10/18/2006)
139 (REDACTED) RULE 56.1 STATEMENT. Document filed by American Civil Liberties Union Foundation, American Civil Liberties Union. (ae, ) (Entered: 10/18/2006)
144 MOTION for an order dismissing the complaint for failure to state a claim upon which relief can be granted or in the alternative, granting summary judgment in favor of the government, purs. to FRCP 12(b)(6) and 56. Document filed by Alberto Gonzales, Robert Mueller. (dle, ) (Entered: 12/11/2006)
145 DECLARATION of Jeffrey Oestericher. Document filed by Alberto Gonzales, Robert Mueller. (dle, ) (Entered: 12/11/2006)
146 RULE 56.1 STATEMENT. Document filed by Alberto Gonzales, Robert Mueller. (dle, ) (Entered: 12/11/2006)
147 RULE 56.1 (a) STATEMENT. Document filed by Alberto Gonzales, Robert Mueller. (dle, ) (Entered: 12/11/2006)
148 MEMORANDUM OF LAW in Opposition to plaintiffs' 134 MOTION for Summary Judgment. Document filed by Alberto Gonzales, Robert Mueller. (dle, ) (Entered: 12/11/2006)
143 MOTION for Leave to File to excees page limitations contained in rules II (B). Document filed by American Civil Liberties Union Foundation, American Civil Liberties Union. (jmi, ) (Entered: 12/11/2006)
149 MEMO ENDORSEMENT on re: 143 MOTION for Leave to File. filed by American Civil Liberties Union Foundation, American Civil Liberties Union; So Ordered. Request Granted. Plaintiff are authorized to submit a brief of up to 35 pages in response to the motion for summary judgment herein. (Signed by Judge Victor Marrero on 12/11/06) (pl, ) (Entered: 12/14/2006)
153 ENDORSED LETTER addressed to Judge Marrero from Jeffrey Cestericher dated 1/19/07 re: submission of redacted version of plaintiff's reply papers in support of the motion for summary jdugment and in opposition to the Government's cross−motion to dismiss or for summary judgment. In order to allow the parties to file the redacted version of plaintiff's papers on the public docket, the parties requests that the Court memo endorse this letter to indicate to the clerk of the court that the redacted version may be filed. The Clerk of Court is directed to accept for filing the recacted version of the reply paeprs to the motion for summary judgment herein.. (Signed by Judge Victor Marrero on 1/23/07) (djc) (Entered: 01/24/2007)
155 (REDACTED VERSION−see 153 Order) REPLY MEMORANDUM OF LAW in Support of Motion for Partial Summary Judgment and in Opposition to the Government's Motion to Dismiss or for Summary Judgment. Document filed by American Civil Liberties Union Foundation, American Civil Liberties Union. (db) (Entered: 02/06/2007)
156 (REDACTED VERSION−see 153 Order)RULE 56.1(b) STATEMENT. Document filed by American Civil Liberties Union Foundation, American Civil Liberties Union. (db) (Entered: 02/06/2007)
158 REPLY MEMORANDUM OF LAW in Opposition to plaintiffs' motion for partial summary judgment and in Support of the Government's motion to dismiss or for Summary judgment. Document filed by Marion Bowman, Alberto Gonzales, Robert Mueller. (dfe) (Entered: 02/28/2007)

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05/02/2007 09/06/2007
09/06/2007 09/06/2007 09/07/2007
09/07/2007 09/25/2007 11/05/2007 11/05/2007 11/05/2007 11/05/2007 12/06/2007
05/27/2009

159 MEMO ENDORSEMENT on motion for Ann Beeson to withdraw as counsel for plaintiffs. So Ordered. motion granted. Atty. Ann Beeson may withdraw as counsel to plaintiffs herein. (Signed by Judge Victor Marrero on 5/1/07) (pl) (Entered: 05/04/2007)
160 OPINION DECISION AND ORDER #95142, denying re: 144 MOTION to Dismiss, filed by Alberto Gonzales, Robert Mueller; granting in part and denying in part 134 MOTION for Summary Judgment, filed by American Civil Liberties Union, American Civil Liberties Union Foundation. The Clerk of Court shall file this Decision and Order on the public docket. The Clerk of Court shall enter judgment accordingly but stay enforcement of the judgment pending any appeal, or, if no appeal is filed, for 90 days from the date of this Order. The Clerk of Court is directed to close this case. (Signed by Judge Victor Marrero on 9/6/07) (cd) Modified on 9/6/2007 (Espinell, Antonia). (Entered: 09/06/2007)
Transmission to Judgments and Orders Clerk. Transmitted re: 160 Memorandum &Opinion,,, to the Judgments and Orders Clerk. (cd) (Entered: 09/06/2007)
161 TRANSCRIPT of proceedings held on 8/15/07 before Judge Victor Marrero. (jbe) (Entered: 09/06/2007)
162 CLERK'S JUDGMENT That for the reasons stated in the Court's Opinion Decision and Order dated September 6, 2007, plaintiffs motion for summary judgment is granted in part and denied in part; defendants are enjoined from issuing national security letters under 18 U.S.C. § 2709, or from enforcing the provisions of 18 U.S.C. § 2709(c)and 18 U.S.C. §3511(b); defendants motion to dismiss, or in the alternative, for summary judgment is denied; and the enforcement of the judgment is stayed pending any appeal, or, if no appeal is filed, for 90 days from the date of the Opinion Decision and Order dated September 6, 2007; accordingly, the case is closed. (Signed by J. Michael McMahon, clerk on 9/7/07) (ml) (Entered: 09/07/2007)
Mailed notice of Right to Appeal re: 162 Clerk's Judgment, to Attorney(s) of Record: Ann Beeson, Ronald Marc Daignault, Arthur N. Eisenberg, Melissa Goodman, Jameel Jaffer, Meredith Eve Kotler, Sharon M. McGowan, Jeffrey Stuart Oestericher. (tve) (Entered: 09/25/2007)
163 TRANSCRIPT of proceedings held on 8/15/07 before Judge Victor Marrero. (jbe) (Entered: 09/25/2007)
164 NOTICE OF APPEAL from 162 Clerk's Judgment. Document filed by Peter d. Keisler, Robert Mueller, and Valerie E. Caproni. Copies mailed to attorney(s) of record: American Civil Liberties Union Foundation. (tp) (Entered: 11/05/2007)
Appeal Remark as to 164 Notice of Appeal filed by Robert Mueller. NO FEE. A.U.S.A. (tp) (Entered: 11/05/2007)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 164 Notice of Appeal. (tp) (Entered: 11/05/2007)
Transmission of Notice of Appeal to the District Judge re: 164 Notice of Appeal. (tp) (Entered: 11/05/2007)
165 Appeal Record Sent to USCA (Index). Notice that the Original index to the record on Appeal for 164 Notice of Appeal filed by Robert Mueller USCA Case Number 07−4943−cv, 3 Copies of the index, Certified Clerk Certificate and Certified Docket Sheet were transmitted to the U.S. Court of Appeals. (tp) (dt). (Entered: 12/06/2007)
166 ENDORSED LETTER addressed to Judge Victor Marrero from Jeffrey Oestericher dated 5/22/2009 re: The Government respectfully requests that the Court approve the following schedule: Government's papers in support of the continuing need for nondisclosure of the National Security Letter due 6/17/2009; plaintiffs' papers in response due on 7/1/2009. ENDORSEMENT: Request GRANTED. The briefing schedule with regard to the motion for an order of nondisclosure herein is extended as set forth herein: motion papers submitted by 6−17−09; response 7−1−09. SO ORDERED. (Signed by Judge Victor Marrero on 5/26/2009) (tve) (Entered: 05/27/2009)

Case: 1:04-cv-2614 As of: 10/20/2016 08:54 PM EDT 15 of 21

06/18/2009 06/24/2009 06/24/2009 06/25/2009
06/29/2009
07/08/2009 07/08/2009 07/13/2009 07/15/2009 07/22/2009 08/05/2009
08/11/2009

167 DECLARATION of Jeffrey Oestericher. Document filed by John Ashcroft, Marion Bowman, Alberto Gonzales, Robert Mueller. (mbe) (Entered: 06/19/2009)
168 MOTION for Disclosure of government's Ex Parte filing or, in the alternative, to require the government to produce an unclassified summary. Document filed by American Civil Liberties Union Foundation, American Civil Liberties Union.(mbe) (Entered: 06/25/2009)
169 MEMORANDUM OF LAW in Support re: 168 MOTION for Disclosure of government's Ex Parte filing or, in the alternative, to require the government to produce an unclassified summary. Document filed by American Civil Liberties Union Foundation, American Civil Liberties Union. (mbe) (Entered: 06/25/2009)
170 ENDORSED LETTER addressed to Judge Victor Marrero from Melissa Goodman dated 6/24/09 re: Counsel submits a courtesy copy of the following documents, which were filed with the clerk's office on 6/24/09 (1) Plaintiffs' Motion for Disclosure of Government's Ex Parte Filing or, in the Alternative, to Require the Government to Produce an Unclassified Summary; and (2) Plaintiffs' Memorandum in Support of the same motion. ENDORSEMENT: The Government is directed to respond by 6/30/09 to the motion of plaintiff set forth above., Set Deadlines/Hearing as to 168 MOTION for Disclosure:( Responses due by 6/30/2009) (Signed by Judge Victor Marrero on 6/25/09) (tro) (Entered: 06/26/2009)
171 ENDORSED LETTER addressed to Judge Victor Marrero from Jeffrey Oestericher dated 6/26/09 re: I write respectfully to request an eight−day extension, from June 30, 2009 to July 8, 2009, to respond to Plaintiffs' Motion for Disclosure of Government's Ex Parte Filing or, in the Alternative, to Require the Government to Produce an Unclassified Summary. ENDORSEMENT: Request Granted. The Governments time to respond to plaintiffs for disclosure of Government's Ex parte Filing or extended to 7−8−9. (Signed by Judge Victor Marrero on 6/26/09) (pl) (Entered: 06/29/2009)
172 MEMORANDUM OF LAW in Opposition re: 168 MOTION for Disclosure.. Document filed by John Ashcroft, Marion Bowman, Alberto Gonzales, Robert Mueller. (pl) (Entered: 07/09/2009)
173 DECLARATION of Brenda L. Heck authorized in writing by the Assistant Director, Security Division, FBI, to make classification decisions. Document filed by John Ashcroft, Marion Bowman, Alberto Gonzales, Robert Mueller. (pl) (Entered: 07/09/2009)
174 REPLY MEMORANDUM OF LAW in Support re: 168 MOTION for Disclosure of government's Ex Parte filing or, in the alternative, to require the government to produce an unclassified summary. Document filed by American Civil Liberties Union Foundation, American Civil Liberties Union. (mbe) (Entered: 07/14/2009)
Minute Entry for proceedings held before Judge Victor Marrero: Status Conference held on 7/15/2009. Judge informed the parties that he intends to hold an ex parte conference with the government. Plaintiffs consented. (tro) (Entered: 07/17/2009)
Minute Entry for proceedings held before Judge Victor Marrero: Telephone Status Conference held on 7/22/2009. Ex parte conference held with government. (tro) (Entered: 07/28/2009)
175 DECISION AND ORDER: For the reasons stated above, it is hereby ORDERED that motion (Docket No. 168) of plaintiffs herein for an order directing disclosure of a declaration dated June 16, 2009 (the "Declaration") filed ex parte, in camera and under seal by defendants (the "Government") on June 17, 2009 containing classified information relating to this action, or in the alternative, for an unclassified summary of the Declaration, is granted in part and denied in part; and it is hereby ORDERED that the Government disclose to plaintiffs the unclassified summary and redacted version of the Declaration and the deletion key submitted to the Court by the Government by letter dated August 3, 2009. (Signed by Judge Victor Marrero on 8/5/2009) (jfe) (Entered: 08/05/2009)
176 ENDORSED LETTER addressed to Judge Victor Marrero from Jeffrey Destericher dated 8/10/2009 re: The parties respectfully request that plaintiffs'

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08/14/2009 09/10/2009
09/16/2009 09/18/2009
09/21/2009 09/24/2009 10/20/2009
11/06/2009 11/12/2009

response papers be due on August 21, 2009 and that defendants' reply papers be due on September 11, 2009 in connection with plaintiffs' challenge to the continuing need for non−disclosures of the National Security letter served upon plaintiff Doe. ENDORSEMENT: Request GRANTED. The briefing schedule with regard to the challenging the non−disclosure of the NSL herein is extended as set forth herein response 8/21/09, reply 9/11/09. So ordered. (Signed by Judge Victor Marrero on 8/11/2009) (jfe) (Entered: 08/11/2009)
177 NOTICE OF APPEARANCE by Laurence Michael Schwartztol on behalf of American Civil Liberties Union Foundation, American Civil Liberties Union (mro) (Entered: 08/18/2009)
178 ENDORSED LETTER addressed to Judge Victor Marrero from Benjamin H. Torrance dated 9/9/2009 re: AUSA writes to inform the Court that enclosed with this letter are redacted copies of the plaintiff's memorandum of law and 2 declarations filed on 8/21/2009 and that one set of these papers are courtesy copies and requests that the other set be filed on the public docket. ENDORSEMENT: Request GRANTED. The Clerk of Court is directed to file the documents attached hereto in the public docket of this action, constituting plaintiffs; opposition to continuation of the NSL's Gag Order. SO ORDERED. (Signed by Judge Victor Marrero on 9/9/2009) (tve) (Entered: 09/10/2009)
179 SEALED DOCUMENT placed in vault.(jri) (Entered: 09/16/2009)
180 ENDORSED LETTER addressed to Judge Victor Marrero from Jeffrey Oestericher dated 9/16/2009 re: The parties respectfully request that the Court memo endorse this letter to indicate to the Clerk of the Court that the redacted version may be filed. ENDORSEMENT: Request GRANTED. The Clerk of Court is directed to file the redacted version of the Government's Opposition to Plaintiff's motion to lift the Nondisclosure Requirement of the NSL herein in the public docket of this case. So Ordered. (Signed by Judge Victor Marrero on 9/17/2009) (jfe) (Entered: 09/18/2009)
181 MANDATE (Duplicate) of USCA (Certified Copy) as to 164 Notice of Appeal filed by Robert Mueller USCA Case Number 07−4943−cv. Ordered, Adjudged and Decreed that the judgment of the District Court is AFFIRMED in part, VACATED in part and REMANDED in part for further proceedings in accordance with the opinion of this Court. Catherine O'Hagan Wolfe, Clerk USCA. Issued As Mandate: 3/11/2009. (nd) Modified on 9/24/2009 (nd). (Entered: 09/24/2009)
Transmission of USCA Mandate/Order to the District Judge re: 181 USCA Mandate,. (nd) (Entered: 09/24/2009)
182 ORDER: For the reasons stated above, it is hereby ORDERED that motion (Docket No. 178) of plaintiffs John Doe ( "Doe" ), the American Civil Liberties Union, and the American Civil Liberties Union Foundation (collectively, "Plaintiffs") to lift the nondisclosure requirement of the National Security Letter issued to Doe is DENIED. Defendants Eric Holder, in his official capacity as Attorney General of the United states, Robert Mueller, in his official capacity as Director of the Federal Bureau of Investigation, and Valerie E. Caproni, in her official capacity as General Counsel to the Federal Bureau of Investigation (collectively, "Defendants") are hereby permitted to enforce the nondisclosure provisions of 18 U.S.C. § 2709(C) and 18 U.S.C. § 3511(b) as applied to the National Security Letter issued to Doe; and it is further ORDERED that motion (Docket No. 134) of plaintiffs for partial summary judgment is DENIED in part; and it is further ORDERED that motion (Docket No. 144) of defendants for summary judgment is GRANTED in part; and it is finally ORDERED that the Clerk of Court is directed to file this Decision and Order on the public docket, withdraw any other pending motions and close this case. (Signed by Judge Victor Marrero on 10/20/2009) (jpo) (Entered: 10/20/2009)
183 SEALED DOCUMENT placed in vault.(nm) (Entered: 11/06/2009)
184 ENDORSED LETTER addressed to Judge Victor Marrero from Benjamin H. Tarrance dated 11/10/09 re: Counsel enclose a redacted copy of the plaintiffs' motion for reconsideration and memorandum of law dated 11/3/09 and request that it be filed on the public docket. ENDORSEMENT: Request GRANTED. The Clerk of Court is directed to file in the public record of this action the plaintiffs' motion

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11/12/2009 11/18/2009 11/23/2009
12/01/2009 12/28/2009
01/08/2010 01/15/2010 01/20/2010
01/20/2010 01/20/2010 01/27/2010 02/05/2010 02/09/2010

for reconsideration dated 11/3/09 with the redacted version of the NSL Attachment. (Signed by Judge Victor Marrero on 11/12/09) (tro) (Entered: 11/12/2009)
185 PLAINTIFFS' MOTION for Partial Reconsideration of this Court's 10/20/09 Order. *Redacted Memorandum in Support of Plaintiffs' Motion for Partial Reconsideration of this Court's 10/20/09 Order attached hereto. Document filed by American Civil Liberties Union Foundation, American Civil Liberties Union. *Docketed pursuant to [D.E. 184]. (tro) (Entered: 11/12/2009)
186 SEALED DOCUMENT placed in vault.(nm) (Entered: 11/18/2009)
187 ENDORSED LETTER addressed to Judge Victor Marrero from Jeffrey Oestericher dated 11/19/09 re: counsel requests that the Court direct that the enclosed Memorandum of Law be filed on the public docket. ENDORSEMENT: Request Granted. The Clerk of Court is directed to enter in the public record of this matter the Government's Memorandum of Law in Opposition to plaintiff's motion for partial reconsideration of this Court's October 20, 2009 Order. (Signed by Judge Victor Marrero on 11/20/09) (djc) (Entered: 11/23/2009)
188 REPLY MEMORANDUM OF LAW in Support re: 185 PLAINTIFFS' MOTION for Partial Reconsideration of this Court's 10/20/09 Order. Document filed by American Civil Liberties Union Foundation, American Civil Liberties Union. (mbe) (Entered: 12/02/2009)
189 MEMO ENDORSEMENT on 185 PLAINTIFFS' MOTION FOR PARTIAL RECONSIDERATION OF THIS COURT'S OCTOBER 20, 2009 ORDER. ENDORSEMENT: Request GRANTED. A status conference herein is scheduled for 1/15/2010 at 2:00 pm to address the matter described above by Plaintiffs. The Court will hear any further arguments the parties may have for the record in in connection with the instant motion. (Signed by Judge Victor Marrero on 12/23/2009) (jpo) Modified on 1/5/2010 (jpo). (Entered: 12/28/2009)
190 MOTION for Laurence M. Schwartztol to Withdraw as Attorney. Document filed by American Civil Liberties Union Foundation.(mbe) (Entered: 01/15/2010)
Minute Entry for proceedings held before Judge Victor Marrero: Motion Hearing held on 1/15/2010 re: [Motion for Reconsideration. Government to file documents by 1/18; plaintiff to respond by 1/22. (mro) (Entered: 01/28/2010)
191 ENDORSED LETTER addressed to Judge Victor Marrero from Melissa Goodman dated 1/19/10 re: counsel for plaintiff write respectfully to request a brief extension of time to file their brief in response to the government's Memorandum of Law in Opposition to Plaintiff's Motion to Lift the Nondisclosure Requirement as to the Attachment to the National Security Letter provided to plaintiffs today. Plaintiffs' brief's currently due on Friday, January 22, 2010. We respectfully request that the time be extended to Wednesday, January 27, 2010. ENDORSEMENT: Request Granted. The time for plaintiff to respond to the Government's opposition to plaintiff's motion to left the non disclosure of the attachment to the National Security Letter herein is extended to 1/27/10. (Signed by Judge Victor Marrero on 1/19/10) (pl) Modified on 1/20/2010 (pl). (Entered: 01/20/2010)
192 MEMORANDUM OF LAW (Redacted) in Opposition to Plaintiff's to Lift the Nondisclosure Requirement as to the Attachment to the National Security Letter. Document filed by John Ashcroft, Marion Bowman, Alberto Gonzales, Robert Mueller. (mro) (Entered: 01/20/2010)
193 DECLARATION (Redacted)of Arthur M. Cummings II, Executive Assistant Director. (mro) (Entered: 01/20/2010)
194 SEALED DOCUMENT placed in vault.(nm) (Entered: 01/28/2010)
195 MEMORANDUM OF LAW in Opposition to FBI's continued Suppression of the contents of the NSL Attachment. Document filed by American Civil Liberties Union Foundation, American Civil Liberties Union. (mro) (Entered: 02/08/2010)
196 ENDORSED LETTER: addressed to Judge Victor Marrero from Jeffrey Oestericher dated 2/8/2010 re: Counsel for Government requests that the in camera conference scheduled for Wednesday, February 10, 2010 be adjourned until a date

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03/18/2010
03/19/2010 03/29/2010 03/29/2010 05/17/2010 05/19/2010 05/19/2010 05/19/2010
07/01/2010 07/29/2010

next week that is convenient for the Court. ENDORSEMENT: request Granted. The in camera ex parte conference herein is adjourned to 2/18/2010 at 2:30 p.m. So Ordered. (Signed by Judge Victor Marrero on 2/8/2010) (js) (Entered: 02/09/2010)
197 DECISION AND ORDER: For the reasons stated above, it is hereby ORDERED that motion (Docket No. 185) of plaintiffs John Doe ("Doe"), the American Civil Liberties Union, and the American Civil Liberties Union Foundation (collectively, "Plaintiffs") to lift the nondisclosure requirement of the National Security Letter ("NSL") Attachment issued to Doe is GRANTED in part and DENIED in part. Eric Holder, in his official capacity as Attorney General of the United States, Robert Mueller, in his official capacity as Director of the Federal Bureau of Investigation, and Valerie E. Caproni, in her official capacity as General Counsel to the Federal Bureau of Investigation (collectively, "Defendants") are hereby permitted to enforce the nondisclosure provisions of 18 U.S.C. § 2709(c) and 18 U.S.C. § 35ll(b) as applied to parties of the NSL Attachment with the exception of the disclosures authorized herein; and it is further ORDERED that the Clerk of Court is directed to file this Decision and Order on the public docket, withdraw any other pending motions and close this case. (Signed by Judge Victor Marrero on 3/17/2010) (jpo) (Entered: 03/18/2010)
198 SEALED DOCUMENT placed in vault.(nm) (Entered: 03/19/2010)
199 SEALED DOCUMENT placed in vault.(jri) (Entered: 03/29/2010)
200 SEALED DOCUMENT placed in vault.(jri) (Entered: 03/29/2010)
201 NOTICE OF APPEAL from 182 Order, Terminate Motions, 197 Order, Terminate Motions. Document filed by American Civil Liberties Union Foundation, John Doe, American Civil Liberties Union. Filing fee $ 455.00, receipt number E 904250. (js) (Entered: 05/19/2010)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 201 Notice of Appeal. (js) (Entered: 05/19/2010)
Transmission of Notice of Appeal to the District Judge re: 201 Notice of Appeal. (js) (Entered: 05/19/2010)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 176 Endorsed Letter, Set Motion and RRDeadlines/Hearings, 182 Order, Terminate Motions, 153 Endorsed Letter, 170 Endorsed Letter, Set Motion and RRDeadlines/Hearings, 130 Notice of Appearance, filed by American Library Association, American Booksellers Foundation for Free Expression, American Association of Publishers, Inc., Pen American Center, Freedom to Read Foundation, Inc., 196 Endorsed Letter, Set Deadlines/Hearings, 165 Appeal Record Sent to USCA − Index, 184 Endorsed Letter, 160 Memorandum &Opinion, 171 Endorsed Letter, Set Scheduling Order Deadlines, 185 MOTION for Reconsideration. filed by American Civil Liberties Union, American Civil Liberties Union Foundation, 175 Order on Motion for Disclosure, 129 Memorandum of Law in Support of Motion, filed by American Library Association, American Booksellers Foundation for Free Expression, American Association of Publishers, Inc., Pen American Center, Freedom to Read Foundation, Inc., 197 Order, Terminate Motions, 201 Notice of Appeal filed by John Doe, American Civil Liberties Union, American Civil Liberties Union Foundation, 181 USCA Mandate, 180 Endorsed Letter, 166 Endorsed Letter, Set Motion and RRDeadlines/Hearings, 178 Endorsed Letter, 187 Endorsed Letter, 191 Endorsed Letter, Set Scheduling Order Deadlines, 189 Order, Set Deadlines/Hearings, Terminate Motions, were transmitted to the U.S. Court of Appeals. (js) (Entered: 05/19/2010)
202 SEALED DOCUMENT placed in vault.(cb) (Entered: 07/01/2010)
203 TRUE COPY ORDER of USCA as to 201 Notice of Appeal filed by John Doe, American Civil Liberties Union, American Civil Liberties Union Foundation USCA Case Number 10−2052....that the appeal is hereby WITHDRAWN pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 07/28/2010. (nd) (Entered: 07/29/2010)

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07/30/2010
08/26/2010 08/26/2010 08/26/2010 08/26/2010 08/26/2010 08/26/2010 09/03/2010 09/03/2010 09/03/2010 09/07/2010 09/13/2010 09/23/2010
09/23/2010 09/28/2010
11/08/2010

204 STIPULATION AND ORDER OF DISMISSAL OF ACTION: This action shall be, and hereby is, dismissed with prejudice pursuant to Rule 41(a)(2) of the F.R.C.P. Plaintiffs hereby agree that they will not reinstate their appeal from this Court's 10/20/09 and 3/18/2010 Decisions and Order (Docket No. 10−2052), and as further set forth in this Order. (Signed by Judge Victor Marrero on 7/30/2010) (tro) (Entered: 07/30/2010)
205 MOTION for Attorney Fees. Document filed by American Civil Liberties Union.(mbe) (Entered: 08/27/2010)
206 MEMORANDUM OF LAW in Support re: 205 MOTION for Attorney Fees. Document filed by American Civil Liberties Union Foundation. (mbe) (Entered: 08/27/2010)
207 DECLARATION of Jameel Jaffer. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (mbe) (Entered: 08/27/2010)
208 DECLARATION of Alexa Kolbi−Molinas. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (mbe) (Entered: 08/27/2010)
209 SECOND DECLARATION of Melissa Goodman. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (mbe) (Entered: 08/27/2010)
210 DECLARATION of Arthur N. Eisenberg. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation. (mbe) (Entered: 08/27/2010)
211 DECLARATION of Charles S. Sims in Support re: 205 MOTION for Attorney Fees. Document filed by American Civil Liberties Union Foundation. (mbe) (Entered: 09/07/2010)
212 FORTH DECLARATION of Ann Beeson. Document filed by American Civil Liberties Union Foundation. (mbe) (Entered: 09/07/2010)
214 FOURTH DECLARATION of Nicholas Merrill. Document filed by American Civil Liberties Union Foundation. (mbe) (Entered: 09/07/2010)
213 DECLARATION of Sharon M. McGowan. Document filed by American Civil Liberties Union Foundation. (mbe) (Entered: 09/07/2010)
Minute Entry for proceedings held before Judge Victor Marrero: Telephone Conference held on 9/13/2010. Parties to consult and confer and inform the Court of status by 9/27/10. Additional conference to be held thereafter. (mro) (Entered: 09/22/2010)
215 MANDATE of USCA (Certified Copy) as to 201 Notice of Appeal filed by John Doe, American Civil Liberties Union, American Civil Liberties Union Foundation USCA Case Number 10−2052....that the appeal is hereby WITHDRAWN pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 09/22/2010. (nd) (Entered: 09/23/2010)
Transmission of USCA Mandate/Order to the District Judge re: 215 USCA Mandate,. (nd) (Entered: 09/23/2010)
216 ENDORSED LETTER addressed to Judge Victor Marrero from Melissa Goodman dated 9/27/10 re: Pursuant to this Court's order at the telephone conference held on September 13, 2010, plaintiffs' counsel submits this letter on behalf of both parties to apprise the Court of the status of the parties' negotiations with respect to plaintiffs' pending attorney's fees motion. ENDORSEMENT: Request GRANTED. The parties are directed to submit by 11−19−10 an update on the status of their efforts to reach a settlement of the attorneys fees motion now pending. SO ORDERED. ( Status Report due by 11/19/2010.) (Signed by Judge Victor Marrero on 9/27/10) (jmi) Modified on 10/7/2010 (jmi). (Entered: 09/28/2010)
Minute Entry for proceedings held before Judge Victor Marrero: Telephone Conference held on 11/8/2010. Parties to submit proposed briefing second circuit

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11/16/2010 11/16/2010 11/22/2010
12/14/2010
12/22/2010 12/22/2010
12/23/2010 12/23/2010 02/28/2011

remand of plaintiff's application for appellate fees. (mbe) (Entered: 11/15/2010)
217 ORDER of USCA (Certified Copy) as to 164 Notice of Appeal filed by Robert Mueller USCA Case Number 07−4943−cv. IT IS HEREBY ORDERED that the joint motion to remand to the District Court plaintiffs−appellees' motion for attorneys' fees under the Equal Access to Justice Act, is GRANTED. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 11/15/2010. (nd) (Entered: 11/16/2010)
218 MOTION for Attorney Fees. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(mro) (Entered: 11/16/2010)
219 ENDORSED LETTER addressed to Judge Victor Marrero from Jeffrey Oestericher dated 11/22/10 re: counsel to defendants write with consent of plaintiffs' counsel to provide a brief update and propose a briefing schedule in connection with plaintiffs' pending motion for attorney's fees pursuant to the Equal Access to Justice Act. ENDORSEMENT: Request GRANTED. The briefing schedule with regard to the motion for attorney's fees herein is extended as set forth herein: response − 12/15/10; reply − 2/15/11; (Responses due by 12/15/2010, Replies due by 2/15/2011.) (Signed by Judge Victor Marrero on 11/22/10) (djc) (Entered: 11/23/2010)
220 ENDORSED LETTER addressed to Judge Victor Marrero from Jeffrey Oestericher dated 12/13/10 re: Request for the following revised schedule (re: motion for attorneys fees): Defendants response due 12/23/10; Plaintiffs' reply due 2/23/11. ENDORSEMENT: Request GRANTED. The briefing schedule with regard to the motion for attorneys fees herein is extended as set forth herein; response 12/23/10; reply 2/23/11. SO ORDERED. Set Deadlines as to 205 MOTION for Attorney Fees. 218 MOTION for Attorney Fees: (Responses due by 12/23/2010, Replies due by 2/23/2011.) (Signed by Judge Victor Marrero on 12/13/10) (db) (Entered: 12/14/2010)
221 MOTION for Melissa Goodman to Withdraw as Attorney. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation.(Goodman, Melissa) (Entered: 12/22/2010)
222 ENDORSED LETTER addressed to Judge Victor Marrero from Preet Bharara dated 12/22/10 re: I am writing pursuant to Your Honor's Individual Rules of Practice respectfully to request a thirteen page extension of the page limit (to permit a thirty−eight page brief) in connection with the submission of the Government's opposition to plaintiffs' motion for attorney's fees pursuant to the Equal Access to Justice Act. ENDORSEMENT: Request granted. The page limitations provision of the Court's Individual Practices is modified to authorize the Government to file a brief not to exceed 38 pages in connection with the motion for attorney's fees herein. So ordered. (Signed by Judge Victor Marrero on 12/22/10) (rjm) (Entered: 12/22/2010)
223 MEMORANDUM OF LAW in Opposition re: 218 MOTION for Attorney Fees. Document filed by John Ashcroft, Marion Bowman, Alberto Gonzales, Robert Mueller. (cd) (Entered: 12/29/2010)
224 AFFIDAVIT of James Schratz in Support re: 223 Memorandum of Law in Opposition to Motion. Document filed by John Ashcroft, Marion Bowman, Alberto Gonzales, Robert Mueller. (cd) (Entered: 12/29/2010)
225 STIPULATION AND ORDER OF SETTLEMENT OF EAJA FEES MOTION: It is hereby Stipulated and agreed that Defendants shall pay to the American Civil Liberties Union Foundation the sum of $225,000 in attorney's fees and litigation costs, pursuant to 28 U.S.C. § 2412(d), which sum Plaintiffs and their counsel agree to accept in full satisfaction of any claim for attorneys' fees and costs that Plaintiffs have incurred to date for services performed in connection with this action. In consideration of the payment obligation set forth in this paragraph, plaintiffs hereby release the United States, its agencies, departments, officers, employees, servants and agents, including the Defendants herein, from any claims for attorney's fees, costs, and expenses of any kind and however denominated relating to services heretofore performed in connection with this action. (Signed by Judge Victor Marrero on 2/28/2011) (jfe) (Entered: 02/28/2011)

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08/30/2011 04/15/2014

226 SEALED MATERIALS DISPOSED: Document(s) 194 were disposed since no party retrieved the material(s) within 30 days of the date indicated. The sealed record(s) were destroyed on 08/30/2011.(mps) (Entered: 08/30/2011)
227 STIPULATION AND ORDER MODIFYING JULY 30, 2010, JUDGMENT OF DISMISSAL: The nondisclosure obligation set forth in 18 U.S.C. § 2709 continues to apply to the Attachment to the Doe NSL, except insofar as the information in the Attachment has already been made public in the Redacted Attachment; except as provided in paragraph 1 of this Stipulation and Order, the nondisclosure obligation set forth in 18 U.S.C. § 2709, as it pertains to the Doe NSL, is no longer in effect; nothing in this Stipulation and Order affects whatever rights plaintiffs John Doe and John Doe, Inc., may have to petition in the future under 18 U.S.c. § 3511(b) or any other provision of law for an order modifying or setting aside the nondisclosure requirement left in place by this Stipulation and Order; this Stipulation constitutes the entire agreement of the parties, and no prior statement, representation, agreement, or understanding, oral or written, will have any force or effect. (Signed by Judge Victor Marrero on 4/15/2014) (tn) (Entered: 04/15/2014)

 
 -·

In Reply, Ple:asc Refer lO

PiloNo.

·

U.S.. nepartment of Justice Federal Buteau of Investigation
2004

Under the authority of Executive Order 12333, dated December 4, 1981, and pursuant to Title 18, United States Code (U.S~C.), Section 2709 {as amended, October 26, 2001), you are hereby directed to provide the Federal Bureau of Investiga~ion (FBI} the names, addresses, lengths of service and electronic communication transactional records, to include ~xiating transaction/aotivi.ty loge and all e-mail header information {not to include message content and/or subject fields), for the belqw-
li~ted email address:

In accordance with Title lS, u~s.c., section 27.09(b)., l certify that the information sought is relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, and that such an inveatigat~on 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~

You are further advised that·Title 18, u.s.c., Section
2709{o), prohibits any officer, employee or agent of yours from disclosing to any person that the FSI ha& sought or obtained access to information or records under the~e provisions.

You are requested to provide request p§rsonally to a representative
• • •of the FBI. Any quest should be directed only to security consideratipns, you .through the mail nor disclose the any telephone conversation.

s request
·Due to
records of this request in

Your cooperation in this matter is greatly appreciated. Sincerely, Marion S. Bowman Senior Counsel National Security ~ffairs Office of the General Counsel
2

MAR-25-2010 17:21

US ATTORNEY'S OFFICE

212 P.03

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be -c e1Mt¥ora1c c:n:••\11\icatior& t~•••ot1Dbal J:aao%4 in

acoordanae with Title 18, United states COde, Section

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electronic communioation transactional record

We are not requesting, artcl "you should. not provide, inf~tion pursuant to thia requeat that would diaclo•e the content o~ any eleetronio cOMmUnigation ad definaa in ~itle 18, united Statee Code, Section
2510(8). 111

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 UNITED STATES D!STRJCT COURT SOUTilERN DISTRJCT OF NEW YORJ(

.

UNION; and

AMERJCAN CIVIL LIBERTIES UNlON FOUNDATION,

IIAMENDED COMPLA!l'<"T FOR DECLARATORY AND INJUNCTIVE

I RELIEF

Plaintiffs)

I

v.

l 04 Civ. 2614 (VM)

JOHN ASHCROFT, in his official capacity as

I I FILED UNDER SEAL

Attorney General of the United States;

ROBERT MUELLER, in his official capacity i

as Director of the Federal Bureau of

\

Investigation; and MARION E. BOWMAN, in

his official capacity as Senior Counsel to the

Federal Bureau oflnvestigation,

Defendants.

1.

Junerican Civil Liberties

Union (ACLU), and the American Civil Liberties Union Foundation (ACLUF) challenge the

constitutionality of 18 U.S.C. § 2709, a statute that authorizes the Federal Bureau of

lnvestigation (FBI) to dema..tld the disclosme of constitutionally protected and other sensitive

i.Tlforrnation held by "elecrronic-communication service providers.n See 18 U.S.C. § 2709

("Section 2709"), as amended by the USA PATRJOT Act, Pub. L. 107-56, 115 Stat. 272 (Oct

26, 2001) ("Patriot Act'l In its cunent fonn, Section2709 allows the FBI to issue such

demands in the fonn ofNational Security Leners (NSLs)wi1.hout obtaining prior judicial

approval; vvithout demonstrating a compelling need to justify the disc1ormre of constitutionally

protected information; and without specifying any means by which the recipient can contest the:-

demand's validity. Section 2709 also permanently gags those served with NSLs from disclosing

to any other person that the FBI sought or obtained infonnation from them. 2. An agent of defendant FBI served an NSL on plainti~
The NSL directed~o disc;loS<rthe>~>une; and other sensitive information relating to one of~lients. T h e - -

· · ! N B L , a copy of which is attached hereto, fails to specify any means by whicllllfllllltan

challenge the validity of the FBI's demand. It also prohibi~d "any officer, employee

or agent" o-:·from ''disclosing to any person" that the FBI has sought information. To

avoid vioLating the gag provision, plaintiffs have ftled this Complaint under seaL

3. Plaintiffs submit thai Section 2709 is unconstitutional on its face and that the

is invalid. Plaintiffs further submit that the gag provision is

unconstitutionally vagu.e, overbroad, and imposes an unla\\ful prior restraint on speech.

Plaintiffs seek a declaration that Section 2709 violates the First, Fourth, and Fifth.A.mendments;
a de~laration that the~~SL is invalid'; an injunction prohibiting the FBI from

seeking to enforce

· and an injunction prohibiting the FBI's further use of

Section 2709 against plaintiffs or others.

JTJRISDICTION A_ND VENUE

4. Thi's case arises under the United States Constitution and the laws of the United

States and presents a federal question liD.der Article Ill of the United States Constitution and 23

U .S.C. § 1331. The Court has authority to grant declaratory and injunctive relief pursuant to the

Declaratory Judgment Act, 28 U.S.C. § 2201, et seq. TI1e Court has authority to award costs and

attorneys' fees under 28 U.S.C. § 2412. Venue is proper in this disui.ct under 28 U.S.C.

§ 139l(e).

2

PARTIES

5, Plaintiff-s an lnt6met access and consulting business incorporated and

located i~resident

The FBl senred

the~SL

1c•pa.:ity as President o f . , tiiiJues on

its own behalf and on behalf of its clients.

6. Plaintiff ACLU is a nationwide, non-profit, non-partisan organization with more

than 400,000 members dedicated to the constitutional principles of liberty and equality. The

ACLU is a 50l(c)(4) organization. The ACLU's activities inciude lobbying Congress on

le.gislation that affects civil liberties, analyzing and educating the public about such legislation,

and mobilizing ACLU members and activists to lobby their legislators to protect civil rights and

civil liberties. The ACLU sues on its own behalf and on behalf of its members.

7. Plaintiff ACLUF is a 501 (c)(3) organization that educates the public about civil

liberties and that employs lawyers who provide legal representa1.ion free of charge in cases involving civil liberties. As counsel to:~d privy to the information contained in the

. lavp'ers employed by plaintiff ACLUF are subject to Section 2709's gag

provision.

8. Defendant Attorney General .John Ashcroft heads the United States Depanmentof

Justice (DOJ), which is the agency of the United States govermnent responsible for enforcement

of federal criminal laws and domestic intelligence investigations. Defendant Attomey Genera!

John Ashcroft has ultimate authority for supervising all of the operations and functions of the

DOJ. The DOJ includes the FBI, the agency authorized to use the law challenged in this case.

'_,

9. Defenciant Robert Mueller is the Director of the FBI and is responsible for supervising all of that agency's operations. The FBI is the agency authorized to use the law challenged in this case.
1d: Defendant Marion E. Bo\Vlllrud~enlor Counsel, National Security Affairs, in the
FBI's Office of the General Counsel.. Defendant Marion E. Bowm:m signed
NSL. STATUTORY LANGUAGE AT ISSUE
11. Section 2709 is part of the Electronic Communications Privacy Act (ECPA),
which Congress enacted h~ 1986. See Pub. L. 99-508, Title II,§ 201 [a], 100 Stat. 1867 (Oct.21, 1986) (codified as 18 U.S.C. § 2510, et seq.).
12. In its current fonn) Section 2709 authorizes the FBI to issue NSLs ordering
"electronic communication service providers" (ECSPs) to disclose "subscriber information," "toll billing records informa1ion," and "electronic communication transactional records" upon a . ceJtification that the information sought is "'relevant to an authorized investigation to protect
against international ierrorisrn or clandestine· intelligence activities." 18 U.S.C. § 2709.
13. An "electrollic communication service" is <;any service which provides to users thereof the ability to send or receive \Vire or electronic communications." Jd. § 251 0(15).
14. Section 2709 empowers the FBI to order the disclosure of a wide variety of sensitive and constirutionally protected information, iDcluding the identity of a person w}Jo has engaged in anonymous speech on the Internet. See id. § 2709(b).
15. Section 2709 docs 110t requi_re the FBI to meet a probable cause or individualized suspicion requirement of any kind before issuing an NSL.
4

16. Section 2709 does not require the FBI to obtain judicial authorization before
issuing an NSL.
17. Section 2709 does not specify any means by which the recipient of an NSL can challenge ihe letter's validity,
18. Section 2709 does not require the FBI to provide prior, contemporaneous, or post· deprivation notice to an individual whose information is demanded pursuant to an NSL served on
a third party, even if the information is constitutiona11y protected.
19. Section 2709 does not restriCt the FBI's use of the information obtained through the issuance .ofNSLs. The information may be stored electronically and used for iarge-scale data mining operations.
20. Section 2709 includes a gag provjsion that prohibits a person served with an NSL from disclosing to any otbt:.r person that the FBI has sought or obtcined records. See 18 U.S.C.
§ 2709(c) ("No wire or electronic communication service provider, or officer, employee, or agent thereof) shall disclose to any person that the [FBI] has sou-ght or obt.ained acce:ss to information or records under· this section.").
21. The gag provision, which on its face prohibits even consultation with counsel, applies in ev~ case, whether or not the government can demonstrate a need for secrecy. See id.
22. Tne gag provision is indefinite and persists long after nny legitimate need for secrecy has expired. See id.
23. As originally enacted, Section 2709 could be used only against people suspected of espionage. The original provision permitted 'the FBI to issue an NSL only if it could certify
that (i) the information sought was relevant to an authorized foreign counterimellig:ence
5

investigation; and (ii) there. were specific and articulable facts giving reason to believe that the subject of the NSL was a foreign power or foreign agent. See 18 U .S.C. § 2709 (1988).
24, ln 1993, Congress relaxed the individualized suspicion requirement. lt authorized the FBI to issue an NSL if it could certify that (i) the information sought was reievant to an authorized foreign counterintelligence investigation; and (H) there were specif1c and articulable facts giving reason to believe that either (a) the subject of the NSL was a foreign power or foreign agent, or (b) the suhject had communicated with a pen.:on engaged in international
terrorism or with a foreign agent or power "under circumstances giving reason to believe tl1at the
communication concerned international terrorism." See Pub. L. 103-142, 107 Stat. 1491 (Nov.
17, 1993). 25. In adopting the 1993 amendments, Congress recognized that "the national
security letter is an extraordina.i)' device," as it is "(e)xernp1 from the judicial scrutiny no:rrnaBy required for compulsory process'' See H.Rep. i03-46 (Mar. 29, 1993).
26. In 2001~ through the Patriot Act, Congress further expanded Section 2709 by del.eting the individualized suspicion requirement altogether. See Pub. L. 107-56, Title V, §50S(a), 115 Stat. 365 (Oct. 26, 200i).
27. As a result of the Patriot Act, the FBI may now use NSLs to obtain sensitive information about innocent individuals 'who have no cmmection to espionage or terrorism. See i8 U.S.C. § 2709(b).
FACTUAL BACKGROUJ\'D 28. The Internet is a uniquely democratic public fomm and a medium through wbich any individual can broadcast h_is or her message to millions of other people all over the world.
6

29. A variety offor-proiit and not-for-profit entities enable mdividuals to access and communicate over the Int..~et. Such entities are "electronic communication service providers" because they provide individuals \''•lith the ability to se11d or receive electronic communications.. Such entities include. not only what are commonly lmown as "1nternet service providers," but
also universities, businesses, public interest organizations, and libraries.
30. Electronic communication service providers maintain records relating to their subscribers and clients. Such records may include the date the subscriber's account was opened or closed; the screen names associated with the subscriber's account; records relating to merchandise bought or sold; billing infonnatiOD, including a credit card or bank account number;
other e-mail addresses associated wit.'t tbe subscriber; Internet Protocol (IP) numbers assigned to
the account; website information registered to the account; and the Uniform Resource Locator (URI,) assigned to the account
31, Electronic communication service providers may ako have records indicating a subscriber's name, address, and telephone number.
32. Many of those who communicate over the Internet do so anonymously or pseudonymously. This is particularly true of those who engage in political speecll.
33. Debate ou the Internet is uniquely unhthibited and robust because participants can easily remain anonymous or pseudonymous if they choose.
34. Those Internet speakers who prefer to communicate anonymously are motivat~d by a variety of concerns. They may prefer anonymity because they fear retaliation or reprisal;
because the su~jects they d.iscuss are embarrassing, sensitive, or con1.roversial; because they do not want to disclose personal facts about themselves; vr because they fear that read.ers would
7

otherwise disniiss their speech because of their race or religion or because of some other reason unrelated to the content of the speech.
35. Many of those who engage in anonymous or pseudonymous speech on the Internet would engage in self~censorship if they were not confident that their anonymity could be preserved.
36. ~san Intemet access and con5u1ting business located and incorporate.
37. ~rovides a number of Internet related services for its clients. For example, it provides space on tbe Web so that clients can post their OWl'l sites and stare electronic files. •
provides clients with e~mail accounts. In some cases, it provides clients with the abllity to access the internet.
38. ~as both paying and non-paying clients. 39. ~ossess_es a 'Wide array of sensitive information about its clients. With respect to any particular cJient,-may possess the client's name, address and telephone number; a log tracking visitors to the clieni's website; the client's customer list; the client's
electronic communications; and the client's bank account and credii card numbers.
40. Some of-clients communicate anonymously or pseudonymously. 41. Some ot~iiems are individuals and political associatious.that engage in controversial political speech. 42. -~sures its clients that tl1e security of their information is its first priority. ~·eb site states,

43. Some of-clients maintain accounts wi~peci:Qca11y because of

-commitment to security.

44, FBI

President of plaintiff

• .on or about

that the FBI would be serving an NSL on

1/1111 Agent~lid not describe the substance of the letter.

45. Agen~elivered an NSL to~resident of plaintiff·

--on or

The letter, which is

on FBI

letterhead and ~igned by :Marion E. Bowman, Senior Counsell National Security .Affairs, Office

of the General Counsel. 46. The letter states t'.nat~s "hereby directed to provide t'.ne [FBI] t'.ne names,

addresses, lengths of service and electronic communication transactional records~

47. The l,etter "includes a certirication that "the information sought is relevant to an

authorized investigation to prot~ct against intenational terrorism or clandestine intelligence

activities."

48. The letter states, "You arefllrther advised t'.nat Title 18, U.S. C., Section 2709(c),

prohibits any officer, employee or agent of yours from disclosing to any person that the FBI has

sought or obtained acces¥ to information or records under these provisions.~)

49. The letter further states, "You are requested to provide records responsive to this

request personall'{ to ~representative

FBI. Any questions

you have regarding this request should be directed only to

9

securi;,.-y considerations: you should neither send the records through the mail nor disclose the substance of this request in any telephone conversation." (Emphasis in original.)

51. The~SL does not spe~ify any procedure by wbich. . . .tcan

an. challenge the validity of the NSL.

52.

Agen-.,.,hethe~ould consult a lawyer

business partners about the~SL. Agen~·stated t h a t -..Could

do so.

53. On or

Agent-1cft a voicemail

ll1qlliring about the status of_-·compliance with

54. On or about

a voicemail for Agent. . . .

requesting. that ap.y questions about the~SL be directed t~legal counsel.

55. Section 2709(c) has prevented plaint1ff~om disclosing information about

and this lawsuit to the subject of the NSL

10

56. Section 2709(c) has prevented plaintiffJIIrfrom disclosing infonnation about 1.he~SL and this lawsuit to -clients.
57. Section 2709(c.) has prevented plaintiff~om disclosing infomlation about

the

and this lawsuit to other ECSPs and from soliciting their advice about

how to respond to

58. Section 2709(c) has prevented plaimiifjlltrom disclosing information about

and this lawsuit to the press and public.

59. Section 2709(c) has prevented plaintiff ACLUF from disclosing information

about

and this lawsuit to the press and public.

60. Section 2709(c) has prevented plaintiff ACLU from disclosing information about the ~SL and this. lawsuit to ilic ACLU's members and to the press and public.

61. Nomithstanding widespread public concern about the Patriot Act, the Departmem

of Justice has relcas~d very litd_e information about the implementation and use of new

surveill.ance powers. See, e.g., Amy Goldstein, Fierce Fight Over Secrecy, Sr::ope nfLcnv; Amid
ll"'f Rights Debate, Law Cloaks Data on Its [mpact, Washington \ost (Sept 8, 2003) (noting

debate about the Patriot Act "is playing out in a near-to~l information vacuum").

62. The Department of Justice has refused to disclose aggregate statistics indicating

tbe number oftimes t.'IJ.at ~ew surveillance provisions have been used since the passage of the

Patriot Act.

63. The Dep.artment of Justice has refused to disclose the number of times that tbe

FBI has invoked Section 2709 since the passage of the Patriot Act.

64. ln response, to a Freedom of Information Act request submitted hy the ACLU and

other organizations in August 2002, the FBI released a document titled "Transactional Records

11

NSLs Since 10/26/2001 ,"which appears to list the ECPA NSLs issued between October 26,

2001, and January 21, 2003. The five~page list is almost entirely redacted.

65. In part because of the secrecy surrounding the government's implementation and

use of new surveillance powerst the Patriot Act has been the subject of extraordinary public

controversy.

66. Section 505 of the Patriot Act, which amended Section 2709, has been the subject

of particular concern and criticism. See, e.g., Editorial, Too Much Power, \VashiD_gton Post (Jan.
"
4, 2004) ("The use of ~national. security letiers' is not new, but in light of new authorities

provided the FBI in the USA Patriot Act, Congress should be finding ways to curtail their use,

not expand it.'}

67. The disclosure of infonnation about the government's use of Section 2709 would

infonn pubiic debate about the Patriot Act and allow the public to better understand the nature

and necessity of new surveillance powers.

CAUSES OF ACTION

68.

violates the First .1'\.mendment by prohibiting plaintiffs

from disclosing to any other person that the FBJ has sought or obtained information with nn

NSL. 69.

Th~SL violates the First AmendiDcnt by ordering th~ disclosure.

of consthutionally protected infonnation.

70.

violates the Fifth Amendment because it is

unconstitutionally vague.

.L'

71. Section 2709 violates the First Amendment by categorically and permanently

prohibiting any person from disdosing to any other person that the FBI has sought or obtained

information with an NSL

72. Section 2709 violates the First Amendment by authorizing the FBl to order the

disclosure of constitutionally protected information without demon.'ltrating a compelling need for

the information or taiioring the demand to the need.

73. Section 2709 violates the First and Fourth Amendments by failing to specify any

mechanism tlu-ough which the recipient of an NSL can challenge the letter)s validity.

74. Section 2709 violates the First, Fourth, and Fifth Amendments by authorizing the

FBI to order the disclosure of constitutionally protected information without providing prior

notice to individuals whose infOrmation is disclosed or requiring the government to justify the

non-provision of notice on a case-by~case basis.

75. Section 2709 violates the Fifth Amendment because it is unconstitutionally vague.

PRAYER FOR RELIEF

WHEREFORE Plaintiffs respectfully request that the Court:

1. Declare that Section 2709 violates the First, Fourth, and fjfth .Amendments to the

United States Constitution.

2.

Permanently enjoin defendants from seeking to enforce

OT

from penalizing plaintiffs for failing to comply >Nith it.

3. Permanently enjoin defendants fron1 using Section 2709 against plaintiffs or any

other person or entity.

4. Award piaintiffs fees and costs.

5.

Grant such other and further relief as the Court deems just and proper.

13

May 13, 2004

submitted,
l E AJ'lN BE ON (AB-2082)
SHARON McGOWAN (SM-5846) National Legal Department American Civil Liberties Union Foundation 125 Broad Street, 18~ Floor New York, NY 10004 (212) 549-2500
ARTHUR N. EISENBERG (AE-2012) New York Civil Libt>.:rties Union Foundation 125 Broad Street New York, NY 10004

14

 
 449  F.3d  415  (2006)
John  DOE  I,  John  Doe  II,  American  Civil  Liberties  Union,  American  Civil Liberties  Union  Foundation,  Plaintiffs-­Appellees,
v.
Alberto  GONZALES  (In  Official  Capacity  as  Attorney  General),  Robert  S.  Mueller III  (In  Official  Capacity  as  Director  of  the  Federal  Bureau  of  Investigation), Marion  E.  Bowman  (In  Official  Capacity  as  Senior  Counsel  of  the  Federal Bureau  of  Investigation),  John  Roe,  Defendants-­Appellants.
Docket  Nos.  05-­0570-­CV(L),  05-­4896-­CV(CON). United  States  Court  of  Appeals,  Second  Circuit.
Argued:  November  2,  2005. Decided:  May  23,  2006.
416*416  417*417  Douglas  N.  Letter  (Robert  D.  McCallum,  Jr.,  Acting  Deputy  Attorney  General, Peter  D.  Keisler,  Assistant  Attorney  General,  Gregory  G.  Katsas,  Deputy  Assistant  Attorney General,  Scott  R.  McIntosh,  Department  of  Justice  Attorney,  Washington  DC;;  David  N.  Kelly, United  States  Attorney  for  the  Southern  District  of  New  York,  Jeffrey  Oestericher,  Assistant United  States  Attorney,  New  York,  NY;;  Kevin  J.  O'Connor,  United  States  Attorney  for  the  District of  Connecticut,  William  Collier,  Lisa  E.  Perkins,  Assistant  U.S.  Attorneys,  Hartford,  CT,  on  the brief)  Department  of  Justice,  Civil  Division,  Appellate  Section,  Washington  DC,  for Defendants-­Appellants. Jameel  Jaffer  &  Ann  Beeson  (Melissa  Goodman,  American  Civil  Liberties  Union  Foundation,  New York,  NY;;  Arthur  N.  Eisenberg,  New  York  Civil  Liberties  Union  Foundation,  New  York,  NY;;  Annette M.  Lamoreaux,  American  Civil  Liberties  Union  of  Connecticut  Foundation,  Hartford,  CT,  on  the brief)  American  Civil  Liberties  Union  Foundation,  New  York,  NY,  for  Plaintiffs-­Appellees. Bettina  B.  Plevan  (Stephen  L.  Kass,  Samantha  Klein,  Ethan  I.  Strell,  Carter  Ledyard  &  Milburn LLP,  New  York,  NY,  Sarah  Netburn,  Emery  Celli  Brinckerhoff  &  Abady  LLP,  New  York,  NY,  of counsel),  Association  of  the  Bar  of  the  City  of  New  York,  New  York,  NY,  for  Amicus  Curiae

Association  of  the  Bar  of  the  City  of  New  York  in  support  of  Plaintiffs-­Appellees. Daniel  Mach  &  Theresa  A.  Chmara  (Brian  Hauck,  Amy  L.  Tenney,  on  the  brief)  Jenner  &  Block LLP,  Washington  DC,  for  Amici  Curiae  American  Association  of  University  Professors,  American Booksellers  Foundation  for  Free  Expression,  American  Library  Association,  Association  of American  Publishers,  Freedom  to  Read  Foundation,  and  Pen  American  Center  in  support  of Plaintiffs-­Appellees. Meredith  Fuchs  (Marc  Rotenberg,  Marcia  Hofmann,  Electronic  Privacy  Information  Center, Washington  DC,  on  the  brief)  National  Security  Archive,  Washington,  DC,  for  Amici  Curiae National  Security  Archive,  Project  on  Government  Secrecy  of  the  Federation  of  American Scientists,  Electronic  Privacy  Information  Center,  and  National  Whistleblower  Center  in  support of  Plaintiffs-­Appellees. Lee  Tien  (Kurt  B.  Opsahl,  Kevin  S.  Bankston,  on  the  brief)  Electronic  Frontier  Foundation,  San Francisco,  CA,  for  Amicus  Curiae  Electronic  Frontier  Foundation  in  support  of Plaintiffs-­Appellees. Before  CARDAMONE,  McLAUGHLIN,  B.D.  PARKER,  Circuit  Judges. Judge  CARDAMONE  concurs  in  the  judgment  of  the  Court,  and  files  a  separate  concurring opinion. PER  CURIAM. This  consolidated  appeal  calls  on  us  to  consider  18  U.S.C.  §  2709,  a  statute  that  governs  the Federal  Bureau  of  Investigation's  (FBI)  issuance  of  National  Security  Letters  (NSLs)  to  wire  or electronic  communication  service  providers.  An  NSL  is  an  administrative  subpoena  that  allows the  418*418  FBI  to  gain  access  to,  inter  alia,"subscriber  information  .  .  .  or  electronic communication  transactional  records"  held  by  internet  service  providers,[1]  when  this  information is  "relevant  to  an  authorized  investigation  to  protect  against  international  terrorism  or  clandestine intelligence  activities.  .  .  ."  18  U.S.C.  §§  2709(a)  &  (b)(2).  John  Does  I  and  II  are  internet  service providers  who  received  NSLs  and  commenced  proceedings  in  the  Southern  District  of  New  York and  the  District  of  Connecticut  (respectively)  challenging  the  constitutionality  of  §  2709. Section  2709  was  originally  enacted  as  part  of  Title  II  of  the  Electronic  Communication  Privacy Act  of  1986  ("ECPA"),  Pub.L.  No.  99-­508,  §  201,  100  Stat.  1848,  1867-­68  (1986),  and  was amended  in  1993  and  1996.  See  generally  FBI  Access  to  Telephone  Records,  Pub.L.  No. 103-­142,  §  1,  107  Stat.  1491,  1491-­92  (1993);;  Intelligence  Authorization  Act  for  Fiscal  Year  1997, Pub.L.  No.  104-­293,  §  601(a),  110  Stat.  3461,  3469  (1996).  Shortly  after  the  terrorist  attacks  of

September  11,  2001,  however,  Congress  again  amended  §  2709  by  means  of  Title  V,  Section 505  of  the  Uniting  and  Strengthening  America  by  Providing  Appropriate  Tools  Required  to Intercept  and  Obstruct  Terrorism  Act  of  2001  ("USA  Patriot  Act"),  Pub.L.  107-­56,  115  Stat.  272, 365  (Oct.  26,  2001). Both  the  Southern  District  of  New  York  in  Doe  v.  Ashcroft  ("Doe  I"),  334  F.Supp.2d  471 (S.D.N.Y.2004),  and  the  District  of  Connecticut  in  Doe  v.  Gonzales  ("Doe  II"),386  F.Supp.2d  66 (D.Conn.  2005),  ruled  on  the  constitutionality  of  §  2709  (as  amended  by  the  USA  Patriot  Act). However,  while  this  appeal  was  pending,  Congress  passed  the  USA  Patriot  Improvement  and Reauthorization  Act  of  2005,  Pub.L.  No.  109-­177,  120  Stat.  192  (Mar.  9,  2006)  (the "Reauthorization  Act"  or  the  "Act").  This  Act  dramatically  altered  §  2709,  and  added  several  new procedures  codified  at  18  U.S.C.  §  3511,  which  now  govern  judicial  review  of  the  FBI's  requests for  information  through  NSLs.  In  light  of  the  significant  changes  to  §  2709  in  the  Reauthorization Act,  this  Court  issued  an  order  on  March  15,  2006  requesting  supplemental  letter  briefs  from  the parties  on  the  impact  of  the  Reauthorization  Act  on  this  case. Having  reviewed  the  Government's  Letter  Brief  dated  March  29,  2006  ("Gov't  Ltr.  Br."),  the Plaintiffs'  Letter  Brief  dated  April  7,  2006  ("Pls.Ltr.Br."),  and  the  Government's  Reply  Letter  Brief dated  April  18,  2006  ("Gov't  Reply  Ltr.  Br."),  we  dispose  of  Doe  I  and  Doe  II  as  follows. I.  Doe  I,  No.  05-­0570 In  Doe  I,  on  cross-­motions  for  summary  judgment,  the  Southern  District  of  New  York  held  that the  then-­applicable  version  of  §  2709  was  unconstitutional  as  applied  to  John  Doe  I  under  the Fourth  Amendment  because  it  was  denied  pre-­enforcement  judicial  review.  Doe  I,  334 F.Supp.2d  at  494-­511.  The  Southern  District  of  New  York  also  held  that  the  permanent nondisclosure  requirement  (also  known  as  the  "gag  order"  provision)  of  the  then-­applicable version  of  §  2709(c)  was  unconstitutional  on  its  face  under  the  First  Amendment  because  it operated  as  a  content-­based  prior  restraint  on  speech  that  was  not  sufficiently  narrowly  tailored to  achieve  a  compelling  governmental  interest.  Doe  I,  334  F.Supp.2d  at  511-­26. The  Reauthorization  Act  has  substantially  shifted  the  legal  footing  on  which  Doe  Istands.  The parties  agree  that  the  Reauthorization  Act's  provisions  apply  retroactively  419*419  to  NSLs  issued before  the  Reauthorization  Act.  See  Gov't  Ltr.  Br.  at  2-­3;;  Pls.  Ltr.  Br.  at  1.  Because  the Reauthorization  Act  added  provisions  permitting  NSL  recipients  to  challenge  the  issuance  of NSLs  in  court,  see  18  U.S.C.  §  3511(a),  John  Doe  I  no  longer  presses  Fourth  Amendment claims  on  this  appeal,  see  Pls.  Ltr.  Br.  at  2  n.  2;;  see  also  Gov't  Reply  Ltr.  Br.  at  1.  Therefore,  we

deem  them  abandoned,  rendering  this  portion  of  the  appeal  moot.  Accordingly,  we  vacate  the Fourth  Amendment  portion  of  the  Southern  District  of  New  York  Opinion  in  Doe  I.  SeeRussman v.  Bd.  of  Educ.,  260  F.3d  114,  122  (2d  Cir.2001)  ("In  general,  where  the  appellee  has  caused  the case  to  become  moot,  we  vacate  the  district  court's  judgment  to  prevent  the  appellee  from insulating  a  favorable  decision  from  appellate  review."). The  new  §  2709(c)  now  explicitly  allows  an  NSL  recipient  to  talk  with  an  attorney  "to  obtain  legal advice  or  legal  assistance  with  respect  to  the  request."  18  U.S.C.  §  2709(c)(1);;  see  Gov't  Ltr.  Br. at  2.  The  Reauthorization  Act  also  added  procedures  for  the  judicial  review  of  the  terms  and conditions  of  nondisclosure  imposed  on  a  recipient  of  an  NSL.  See  18  U.S.C.  §  3511(b). However,  Plaintiffs  argue  that  the  revised  version  of  §  2709(c),  as  amended  and  supplemented by  the  Reauthorization  Act,  still  violates  John  Doe  I's  First  Amendment  rights.  See  Pls.  Ltr.  Br.  at 2-­4.  The  Government  responds  that  the  Reauthorization  Act  and  the  new  procedures  found  in  18 U.S.C.  §  3511  solve  the  purported  First  Amendment  problems  that  the  nondisclosure  provisions of  the  prior  version  of  §  2709(c)  had  raised.  See  Gov't  Ltr.  Br.  at  3-­4. We  do  not  believe  that  it  would  be  prudent  to  resolve  these  novel  First  Amendment  issues  as  a part  of  this  appeal.  Therefore,  we  also  vacate  the  First  Amendment  portion  of  Doe  I,  and  we remand  this  case  so  that  the  Southern  District  of  New  York,  in  the  first  instance,  can  address  the First  Amendment  issues  presented  by  the  revised  version  of  §  2709(c),  and  the  Reauthorization Act's  new  procedures  and  standards  for  judicial  review  found  at  18  U.S.C.  §  3511.  On  remand, the  district  court  will,  as  appropriate,  have  the  opportunity  to  receive  amended  pleadings,  request new  briefs,  conduct  oral  argument,  and,  in  due  course,  furnish  its  views  on  the  constitutionality  of the  revised  version  of  §  2709(c)  and  the  Reauthorization  Act.  See,  e.g.,  Lewis  v.  Cont'l  Bank Corp.,  494  U.S.  472,  482,  110  S.Ct.  1249,  108  L.Ed.2d  400  (1990)  ("[I]n  instances  where  [  ] mootness  is  attributable  to  a  change  in  the  legal  framework  governing  the  case,  and  where  the plaintiff  may  have  some  residual  claim  under  the  new  framework  that  was  understandably  not asserted  previously,  our  practice  is  to  vacate  the  judgment  and  remand  for  further  proceedings in  which  the  parties  may,  if  necessary,  amend  their  pleadings  or  develop  the  record  more fully.").[2] II.  Gonzales  v.  Doe  II,  No.  05-­4896 In  Doe  II,  on  a  motion  for  preliminary  injunction,  the  District  of  Connecticut  enjoined  the Government  from  enforcing  the  gag  order  imposed  on  John  Doe  II  under  §  2709(c)  insofar  as  it prevented  John  Doe  II  from  revealing  its  identity  as  a  recipient  of  an  NSL.  In  granting  its  motion

for  a  preliminary  injunction,  the  District  of  Connecticut  held  that  John  Doe  II  had  demonstrated 420*420  irreparable  harm  from  the  suppression  of  its  speech,  and  a  likelihood  of  success  on  the merits  that  §  2709(c)  violated  John  Doe  II's  First  Amendment  rights  as  a  content-­based,  prior restraint  on  speech.  SeeDoe  II,  386  F.Supp.2d  at  72-­82. In  light  of  the  Reauthorization  Act,  the  Government  now  asserts  that  John  Doe  II  should  move  in the  District  of  Connecticut,  under  the  new  procedures  in  18  U.S.C.  §  3511(b),  for  a  modification of  the  terms  of  its  §  2709(c)  non-­disclosure  requirements  so  that  it  can  reveal  its  identity.  See Gov't  Ltr.  Br.  at  5.  The  Government  has  represented  to  us  that  it  will  not  oppose  such  a  motion. See  id.  The  Government  also  contends  that  once  the  District  of  Connecticut  allows  disclosure  of John  Doe  II's  identity,  this  appeal  will  become  moot.  The  Government  argues  that,  at  that  point, we  should  then  dismiss  the  appeal  in  Doe  II,  and  vacate  the  District  of  Connecticut's  preliminary injunction  opinion  rather  than  leave  it  unreviewed  on  appeal.  See  id.(citing  United  States  v. Munsingwear,  Inc.,  340  U.S.  36,  71  S.Ct.  104,  95  L.Ed.  36  (1950)).  The  Government's  proposals for  the  handling  of  Doe  II  are  flawed  for  two  reasons. First,  the  District  of  Connecticut  cannot  entertain  a  motion  under  the  Reauthorization  Act  and  18 U.S.C.  §  3511(b)  before  this  Court  issues  its  mandate.  In  other  words,  we  must  act  first  and return  this  case  to  the  District  of  Connecticut,  which  could  then  entertain  motions  from  John  Doe II,  if  necessary  or  appropriate.  See  Ostrer  v.  United  States,  584  F.2d  594,  598  (2d  Cir.1978) ("The  effect  of  the  mandate  is  to  bring  the  proceedings  in  a  case  on  appeal  in  our  Court  to  a close  and  to  remove  it  from  the  jurisdiction  of  this  Court,  returning  it  to  the  forum  whence  it came.");;  see  also  United  States  v.  Rivera,  844  F.2d  916,  921  (2d  Cir.1988)  ("Simply  put, jurisdiction  follows  the  mandate."). Second,  it  is  the  government's  burden,  "as  the  party  seeking  relief  from  the  status  quo  of  the  [  ] judgment  [below],  to  demonstrate  .  .  .  equitable  entitlement  to  the  extraordinary  remedy  of vacatur."  U.S.  Bancorp  Mortgage  Co.  v.  Bonner  Mall  Partnership,  513  U.S.  18,  26,  115  S.Ct. 386,  130  L.Ed.2d  233  (1994).  In  considering  whether  or  not  vacatur  of  a  lower  court  opinion  is warranted  when  a  case  becomes  moot  on  appeal,  we  look  to  the  "the  nature  and  character  of the  conditions  which  have  caused  the  case  to  become  moot."  Id.  at  24,  115  S.Ct.  386  (internal quotation  marks  omitted).  If  the  case  has  become  moot  due  to  circumstances  unattributable  to any  of  the  parties  or  from  the  unilateral  action  of  the  party  who  prevailed  in  the  district  court, vacatur  is  usually  warranted.  See  id.  at  23,  115  S.Ct.  386.  However,  when  "the  party  seeking relief  from  the  judgment  below  caused  the  mootness  by  voluntary  action,"  id.  at  24,  115  S.Ct.

386,  vacatur  is  usually  not  warranted. Given  the  concession  of  the  Government  (the  Appellant  in  both  Doe  I  and  Doe  I)  on  appeal  that John  Doe  II  can  disclose  its  identity,  the  Government  no  longer  opposes  the  relief  granted  by  the District  of  Connecticut  in  its  preliminary  injunction  ruling.  Thus,  the  Government  has  effectively rendered  this  appeal  moot  by  its  own  voluntary  actions.  See  Gov't  Ltr.  Br.  at  5.  This  voluntary forfeiture  of  review  means  that  the  Government  has  failed  to  meet  its  burden  of  demonstrating that  it  is  entitled  to  vacatur  of  the  District  of  Connecticut's  preliminary  injunction  ruling.  See Russman,260  F.3d  at  122. Even  though  the  Government's  concession  on  appeal  that  it  will  not  oppose  the  revelation  of John  Doe  II's  identity  is  dispositive,  we  nonetheless  feel  obligated  to421*421  address  the Government's  concerns  about  leaving  the  District  of  Connecticut's  "unreviewed  ruling  of unconstitutionality  on  the  books."  Gov't  Ltr.  Br.  at  5.  As  the  Supreme  Court  explained  in  U.S. Bancorp  Mortgage  Co.  v.  Bonner  Mall  Partnership,  supra,
[j]udicial  precedents  are  presumptively  correct  and  valuable  to  the  legal  community  as  a  whole. They  are  not  merely  the  property  of  private  litigants  and  should  stand  unless  a  court  concludes that  the  public  interest  would  be  served  by  a  vacatur.  Congress  has  prescribed  a  primary  route, by  appeal  as  of  right  and  certiorari,  through  which  parties  may  seek  relief  from  the  legal consequences  of  judicial  judgments.  To  allow  a  party  who  steps  off  the  statutory  path  to  employ the  secondary  remedy  of  vacatur  as  a  refined  form  of  collateral  attack  on  the  judgment would—quite  apart  from  any  considerations  of  fairness  to  the  parties—disturb  the  orderly operation  of  the  federal  judicial  system.
513  U.S.  at  26-­27,  115  S.Ct.  386  (internal  quotation  marks  and  citations  omitted). Therefore,  in  light  of  the  Government's  concession  on  appeal  that  John  Doe  II  can  reveal  its identity—as  was  required  by  the  District  of  Connecticut's  preliminary  injunction  ruling—a  simple dismissal  of  Doe  II  on  mootness  grounds  is  appropriate.
CONCLUSION
For  the  forgoing  reasons,  Gonzales  v.  Doe  I,  No.  05-­0570,  is  hereby  VACATED,  and  the  case REMANDED  for  further  proceedings  on  whether  the  new  version  of  18  U.S.C.  §  2709(c),  as revised  and  supplemented  by  the  Reauthorization  Act  and  18  U.S.C.  §  3511,  violates  the  First

Amendment  either  on  its  face  or  as  applied  to  John  Doe  I.  Gonzales  v.  Doe  II,  No.  05-­4896,  is hereby  DISMISSED  as  moot.  The  mandate  for  these  two  consolidated  cases  shall  issue forthwith. CARDAMONE,  Circuit  Judge,  Concurring: I  concur  in  the  judgment  of  the  court.  I  write  separately  to  address  an  argument  the  government continues  to  press  notwithstanding  the  recent  amendments  to  18  U.S.C.  §  2709(c).  The question  previously  before  us  was  whether  subsection  (c),  which  imposed  a  permanent  ban  on speech,  ran  afoul  of  the  First  Amendment.  The  Reauthorization  Act  has  altered  the  functioning and  perhaps  the  scope  of  §  2709(c)'s  gag  provision,  and  that  is  why  we  are  remanding  the  New York  case  (Doe  I)  for  further  proceedings  and  dismissing  the  Connecticut  case  (Doe  II).  Yet,  in its  recent  letter  briefings  to  the  panel,  the  government  perseveres,  insisting  that  a  permanent  ban on  speech  is  permissible  under  the  First  Amendment.  This  issue  warrants  comment,  especially because  I  suspect  that  a  perpetual  gag  on  citizen  speech  of  the  type  advocated  so  strenuously by  the  government  may  likely  be  unconstitutional. Prior  to  the  passage  of  the  Reauthorization  Act  the  government  sought  enforcement  of  18  U.S.C. §  2709  (as  amended  by  the  USA  Patriot  Act),  and  specifically  §  2709(c),  the  nondisclosure provision  at  the  heart  of  the  two  appeals.  Section  2709(c)  provided  that  no  recipient  of  a  National Security  Letter  (NSL)  "shall  disclose  to  any  person"  that  they  received  such  a  letter.  18  U.S.C.  § 2709(c)  (2000).[3]  By  its  terms  the  statute  permanently  prohibited  a  recipient  from  ever  disclosing the  422*422  fact  of  having  received  an  NSL.  See  Butterworth  v.  Smith,  494  U.S.  624,  626,  110 S.Ct.  1376,  108  L.Ed.2d  572  (1990)  (finding  similarly  worded  statute  as  permanently  prohibiting disclosure  of  grand  jury  testimony).  The  government,  while  conceding  the  permanent  bar, nonetheless  declared  that  §  2709's  non-­disclosure  provision  was  fully  consistent  with  the  First Amendment.  Such  a  proposition  should  be  greeted  with  a  healthy  dose  of  judicial  skepticism.  A permanent  ban  on  speech  seems  highly  unlikely  to  survive  the  test  of  strict  scrutiny,  one  where the  government  must  show  that  the  statute  is  narrowly  tailored  to  meet  a  compelling  government interest.  SeeAshcroft  v.  ACLU,  542  U.S.  656,  665-­66,  124  S.Ct.  2783,  159  L.Ed.2d  690 (2004);;Kamasinski  v.  Judicial  Review  Council,  44  F.3d  106,  109  (2d  Cir.1994)  (applying  strict scrutiny  to  Connecticut  judicial  investigation  gag  statute). It  seems  to  me  that  courts  resolve  the  tension  between  the  government's  interest  in  maintaining the  integrity  of  its  investigative  process  and  the  First  Amendment  in  favor  of  the  government  so long  as  the  ban  on  disclosure  is  limited.  The  cases  also  hold  that  a  ban  on  speech  is  not

constitutionally  permissible  once  the  investigation  ends.  For  instance,  the  Supreme  Court  in Butterworth  teaches  that  a  "permanent  ban  on  disclosure  of  [a  witness's]  own  testimony  once  a grand  jury  has  been  discharged"  violates  the  First  Amendment.  494  U.S.  at  632,  110  S.Ct.  1376. Similarly  inKamasinski,  we  "conclude[d]  that  [a]  limited  ban  on  disclosure  of  the  fact  of  filing  or the  fact  that  testimony  was  given  does  not  run  afoul  of  the  First  Amendment."  44  F.3d  at  111 (emphasis  added).  But,  we  further  held  that  "the  ban  on  disclosure  is  constitutional  only  so  long as  the  [government]  acts  in  its  investigatory  capacity."  Id.at  112. The  government  advanced  the  "mosaic  theory"  as  one  of  the  reasons  to  support  a  permanent ban  on  speech.  That  theory  envisions  thousands  of  bits  and  pieces  of  apparently  innocuous information,  which  when  properly  assembled  create  a  picture.  At  bottom  the  government's assertion  is  simply  that  antiterrorism  investigations  are  different  from  other  investigations  in  that they  are  derivative  of  prior  or  concurrent  investigations.  Thus,  permanent  non-­disclosure  is necessary  because,  implicitly  in  the  government's  view,  all  terrorism  investigations  are permanent  and  unending. The  government's  urging  that  an  endless  investigation  leads  logically  to  an  endless  ban  on speech  flies  in  the  face  of  human  knowledge  and  common  sense:  witnesses  disappear,  plans change  or  are  completed,  cases  are  closed,  investigations  terminate.  Further,  a  ban  on  speech and  a  shroud  of  secrecy  in  perpetuity  are  antithetical  to  democratic  concepts  and  do  not  fit comfortably  with  the  fundamental  rights  guaranteed  American  citizens.  Unending  secrecy  of actions  taken  by  government  officials  may  also  serve  as  a  cover  for  possible  official  misconduct and/or  incompetence. Moreover,  with  regard  to  having  something  be  secret  forever,  most  Americans  would  agree  with Benjamin  Franklin's  observation  on  our  human  inability  to  maintain  secrecy  for  very  long.  He wrote  "three  may  keep  a  secret,  if  two  of  them  are  dead."  Benjamin  Franklin,  Poor  Richard's Almanack  8  (Dean  Walley  ed.,  Hallmark  1967)  (1732).  In  fact,  what  happened  in  the  Connecticut case  bears  out  Franklin's  astute  observation.  While  striving  to  keep  the  identities  of  the Connecticut  plaintiffs  secret,  the  government  inadvertently  revealed  their  identities  through  public court  filings.  This  revelation  was  widely  reported  in  the  media.  Thus,  the  423*423  case  assumed the  awkward  posture  where  the  identities  of  the  Connecticut  plaintiffs  were  published,  yet  the government  continued  to  insist  that  the  Connecticut  plaintiffs  may  not  identify  themselves  and that  their  identities  must  still  be  kept  secret.  This  is  like  closing  the  barn  door  after  the  horse  has already  bolted.

Since  the  passage  of  the  Reauthorization  Act,  the  government  asserts  that  we  should  vacate  the District  of  Connecticut's  preliminary  injunction  rather  than  leaving  it  unreviewed  on  appeal.  See per  curiam,  supra  at  7-­8.  To  me,  the  government's  request  for  vacatur  in  the  Connecticut  case  is not  surprising,  but  right  in  line  with  the  pervasive  climate  of  secrecy.  It  sought  to  prevent,  through §  2709(c),  the  Doe  plaintiffs  from  ever  revealing  that  they  were  subjects  of  an  NSL,  effectively keeping  that  fact  secret  forever.  Then,  by  requesting  vacatur  of  the  decision  below,  the government  attempts  to  purge  from  the  public  record  the  fact  that  it  had  tried  and  failed  to  silence the  Connecticut  plaintiffs. While  everyone  recognizes  national  security  concerns  are  implicated  when  the  government investigates  terrorism  within  our  Nation's  borders,  such  concerns  should  be  leavened  with common  sense  so  as  not  forever  to  trump  the  rights  of  the  citizenry  under  the  Constitution.  Cf. Hamdi  v.  Rumsfeld,  542  U.S.  507,  536,  124  S.Ct.  2633,  159  L.Ed.2d  578  (2004)  ("[A]  state  of war  is  not  a  blank  check  for  the  President  when  it  comes  to  the  rights  of  the  Nation's  citizens."). As  Justice  Black  wrote  in  NewUnited  States  v.  Washington  Post  Co.;;  York  Times  Co.,  403  U.S. 713,  91  S.Ct.  2140,  29  L.Ed.2d  822  (1971):  "The  word  `security'  is  a  broad,  vague  generality whose  contours  should  not  be  invoked  to  abrogate  the  fundamental  law  embodied  in  the  First Amendment.  The  guarding  of  military  and  diplomatic  secrets  at  the  expense  of  informed representative  government  provides  no  real  security  for  our  Republic."  Id.  at  719,  91  S.Ct.  2140 (Black,  J.,  concurring). Although  I  concur  in  the  per  curiam  that  declines  to  resolve  the  novel  First  Amendment  issue before  us  on  this  appeal,  that  does  not  mean  I  think  that  issue  unworthy  of  comment.  Hence,  this concurrence.
[1]  An  internet  service  provider,  commonly  referred  to  as  an  "ISP",  is  a  company  that,  inter  alia,furnishes corporations  and  individual  consumers  with  access  to  the  internet. [2]  Because  the  Reauthorization  Act  fundamentally  changed  the  nature  of  the  First  Amendment  claims  in  this  case, we  do  not  believe  that  this  panel's  retention  of  jurisdiction  by  means  of  a  Jacobsonremand  would  be  appropriate here.  See  generally  United  States  v.  Jacobson,  15  F.3d  19,  21-­22  (2d  Cir.1994). [3]  The  new  §  2709(c)  (as  amended  by  the  Reauthorization  Act)  contains  this  language  modified  by  additional language.

 
 T..TNITED STATES DISTRlCT COURT SOUTHERN DISTRICT OF NEW YORK

AMERICAN CIVIL LIBERTIES UNION; and AMERICAN CIVIL LIBERTIES t.JNION FOlJNDATION,
Plaintiffs,
v.

MOTION FOR LEAVE TO FILE
SECOND AMENDED COMPLAINT FOR DECLARATORY AND
INJUNCTIVE REUEF

ALBERTO GONZALES, in his official capacity as Attorney General of the United States; ROBERT MUELLER, in his official
capacity as Director of the Federal Bureau of
Investigation; and MARION E. BOWMAN, in his official capacity as Senior Counsel to the Federal Bureau of!nvestigation,

04 Civ. 2614 (VM)
FILED UNDER SEAL

Defendants.

MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

-lillllllillllll!lllllllllll and plain1:iffs•

lilllllllllalillllll!l•/unerican

Civil Liberties Union ("ACLU"), and American Civil Liberties Union Foundation
the ("ACLUF") request leave to file attached Second Amended Complaint.

Plaintiffs filed the original Complaint in this action in April2004 and an

Amended Complaint in May 2004. The Amended Complaint challenged the

constitutionality of lll U.S.C. § 2709, as amended by the USA PATRJOT Act, Pub. L.

107-56, !15 Stat. 272 (Oct. 26, 200!) ("the NSL statute"), and challenged the validity of

a National Security Letter ("NSL") issued under that statute. In September 2004, this

Court invalidated the statute on its face. See Doe v. Ashcroft, 334 F.Supp.2d 471

JUL -27-2006 12: 06PM FA><: 212

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PAGE:003 R=96%

(S.D.N.Y. 2004). Tile government appealed the decision and oral argument was heard by

the Second Circuit in November 2005.

•'· Before the Second Circuit issulild a decision, Congress substantially amended tbe

challenged law. See USA PAlRlOT Improvement and Reauthorizaiion Act of2005,

Pub. L. 109-177, 120 Stat !95 (Mar. 9, 2006) ("PIRA"); USA PATRlOT Act Additional

Reautborizing Amendments Act of2006, Pub. L. 109-178, 120 Stat. 278 (Mar. 9, 2006)

("ARAA"). In May 2006, therefore, tbe Second Circuit remanded the case to this Court

"to receive amended pleadings, request new briefs, conduct oral argument, and, in due

course, furnish its views on the constitutionality" of the amended NSL statute. Doe v.

Gonzales, 449 F.3d 415 (2d Cir. 2006). The Second Amended Complaint that plaintiffs

now seek leave to file challenges the constitutionality of the NSL statute as amended by

the PIRA and ARAA.

Jeffrey Oestericher, coll!lsel for defendants, has infomted plaintiffs' counsel that

defendants do not oppose the filing of the Second fu'11ended Complaint ln accordance

1ll

i

-'

f/1

witb procedures set forth by this Court in Doe v. Ashcroft, 317 F.Supp.2d 488 (S.D.N.Y.

2004), plaintiffs are filing this Motion and the attached Second Amended Complaint

under seal. Plaintiffs intend to confer with defendants to ensure that public versions of

these documents are filed within one business day, as the Court's procedures require.

-27-2006 12: 06Pr1 FAX: 212

ID:RCLU

PAGE:004 R=96%

-· ~-- ----· -- --

UNITED STATES DlSTRlCT COURT SOUTHERN DlSTRlCT OF NEW YORK

,'\ ',

.

'

.

AMERICAN CIVIL

LIBERTIES UNION; and AMERlCAN CIVIL SECOND AMENDED COMPLAINT

LIBERTIES UNION FOUNDATION,

FOR DECLARATORY AND

I INJUNCTIVE RELIEF

Plainiiffs,

V.

04 Civ. 26!4 (VM)

1\LBERT,O GONZALES, in his official capacity as Attorney General of the United States; ROBERT MUELLER, in his official capacity as Director of the Federal Bureau of Investigation; and MARlON E. BOWMAN, in his official capacity as Senior Counsel to the Federal Bureau ofinvestigation,

Defendllllts.

SECOND AMEN"DED COMPLAINT FOR DECLARATORY AND INJUNCTIVE REUEF

L

American

Liberties Union ("ACLU"), and American Civil Liberties Union Foundation ("ACLUF")

i\l.lenge 1he constitutionality of the gag and secrecy provisions of 18 U.S. C. §§ 2709 and 351 1

lOllectiivel.y, "the NSL statute"), which authorize the FBI to impose a broad and effectively

permanent non-disclosure obligation on those served with national security letters ("NSLs"). Ser;

18 U.S.C. §§ 2709 & 3511, asamendedbytheUSAPATRIOT Act, Pub, L. 107-56,115 Stat

272 (Oct. 26, 2001) ("Patriot Act"); by the USA PATRIOT Improvement a11d Reauthorization

Act of2005, Pub, L. 109-!77, 120 Stat. 195 (Mar. 9, 2006) ("PIRA"); and by the USA

PATRIOT Act Additional Reauthorizing Amendments Act of2006, Pub. L. l 09-178, !20 Stat.

278 (Mar. 9, 2006) ("ARAA"),

12:06PM FRX:212

ID:ACLU

PAGE:005 R=96%

2. An agent of defendant Federal Bureau oflnvestigation ("FBI") served an NSL on
The NSL directe~o disclose the

and other sensitive information relating to on.~

NSL also referenced the NSL statute's gag provisions, then codified

18 U.S.C. § 2709(c), and expressly prohibiited

"any officer, employee or agent" of

"disclosing to any person" that the FBI had sought information from it.

3. Although

was served more than two years ago, plaintiffs

remain subject to the gag provisions today. To avoid violating the gag provisions, plaintiffs have

filed this Amended Complaint \lllder seaL

4. Plaintiffs filed the original Complaint in this case in April 2004 and an Amended

Complaint in May 2004, The Amended Complaint challenged the NSL statute, as then codified

in 18 U.S.C. § 2709, under the First, Fourth, and Fifth Amendments, and challenged the validity

In September 2004, this Court invalidated the statute. See Doe v.

;um:ent. was heard by the Secot1d Circuit in November 200:5. Before the Second Circuit issued decision, however, Congress enacted the PIRA and ARAA, substantially runending the challenged law. In May 2006, the Second Circuit remanded the case to this Court "to receive runended pleadings, request new briefs, conduct oral a:rgum.ent, and, in due course, furnish its views on the constitutionality" of the amended NSL statute. Doe v. Gonzales, 449 F.3d 415 (2d Cir. 2006).
5. The PIRA and ARA.A runendmentsrem.edied some of the NSL statute's defects but rendered other defects more severe. In its current form., the NSL statute invests the FBI with authority to issue gag orders prohibiting :.JSL recipients from disclosing that the FBI has sought

-27-2005 12: 05PI·i FAX: 212

2
ID:ACLU

··~·-:·-'.·'
PAGE:005 R=%% '

or obtained information from them. The gag orders are issued by the FBl unilaterally, without

prior judicia! review. While the statute permits NSL recipients to challenge gag orders in court,

i'e·vie·wirJg courts are permitted to modify or vacate such orders only in extraordinary

eil:crnnsianc:es, at;d in some contexts they are statutorily required to defer to the FBI's

determination that secrecy is necessary.

6. For these reasons and others set forth below, plaintiffs seek, inter alia, a

declaration that the NSL statute's gag and secrecy provisions are unconstitutional on their face

and as applied; a declaration that

is unconstitutional; an injunction

prohibiting the FBI from seeking to enforce the gag and secrecy provisions against plaintiffs or others; ~md an injunction preventing the FBI from seeking to enforce th~SL

JURISDICTION AND VENUE

7. This case arises under the United States Constitution and the laws of the United

and presents a federal question under Article Ill of the United States Constitution and 2S

§ 1331. The Court has authority to grant declaratory and injunctive relief pursuant to the

Declaratory Judgment Act, 28 U.S. C. § 2201, et seq. The Court has authority to award costs and

attorneys' fees under 28 U.S.C. § 24 !2. Venue is proper in this district under 28 U.S.C.

§ l391(e).

PARTIES

8. At the time

was served, p!ainti-was a."! operating

Internet access and consulting business incorporated and located ·

JUL-27-2006 12:06PM FAX:212

3
ID:ACLU

PRGE:007 R=96%

9.

subject to the NSL statute's gag provisions for more t.IJ.an two years an.ernains subject

to those provisions today.

]0. Plaintiff ACLU is a nationwide, non-profit, non-partisan organization v.ith more

than 500,000 members dedicated to the const:tutional principles ofliberty and equality. The

ACLU is a 501 (c)(4) organization. The ACLU's activities include lobbying Congress on

legislation that affects civil liberties and analyzing and educating the public about such

legislation. The ACLU sues on its own behalf and on bel:.alf of its members.

l]. Plaintiff ACLUF is a SOl (c)(3) organh:ation that educates the public about civil

!iberties rmd employs lawyers who provide legal representation free of charge in cases involving

As counsel

privy to the information contained in the

lawyers employed by plaintiff ACLUF have been subject to the NSL

statute's gag provisions for more than two years and remain subject to those provisions today.

12. Defendant Attorney General Alberto Gonzales heads the United States

Department of Justice (DOJ), which is the agency of the United States government responsible

for enforcement of federal criminal laws and domestic intelligence investigations. Defendant

Attorney General Alberto Gonzales bas ultimate authority for supervising all of the operations

a.""Jd functior1s of the DOJ. The DOJ includes the FBI, the agency authorized to use the law

challenged in this case.

13. Defendant Robert Mueller is the Director of the FB! and is responsible for

'""'""'-~all of that agency's operations. The FBl is the agency authorized to use the law

""""''"'u in this case.

,JUL-27-2006 12:06PM FAX:212

4
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PAGE:008 R=96%

14. Defendant Marion E. Bowman is Senior Collllsel, National Security Affairs, in the FBI's Office of the General Counsel. Defendant Marion E. Bowman signed
NSL. STATUTORY LANGUAGE AT ISSUE The NSL Statute
15. The NSL statute was enacted as part of the Electronic Communications Privacy Act (ECPA), which Congress enacted in 1986. See Pub. L 99-508, Title II,§ 20l[a], 100 Stat. l 867 (Oct 2!, 1986)(codified as 18 U.S.C. § 2510, etseq.).
16. In its current fonn, the NSL statute authorizes the FBI to issue NSLs ordering lectronic communication service provider[s]" to disclose "subscriber information," "toll billing records infonnation," and "electronic commu..rlication transactional records" upon a certification that the information sought is "relevant to an authorized investigation to protect against international terrorism or clandestine imelligence activities." 18 U.S.C. § 2709(a) & (b}(l).
17. An "electronic communication service" is "any service which prvvides to users thereof the ability to send or receive wire or electronic communications." ld. § 2510(15).
18. As originally enacted, the NSL statute could be used only against people suspected of espionage. The original provision permitted the FBI to issue an NSL only if it could certify that (i) the information sought was relevant to an authorized foreign
.nterintelligence inv>l.\stigation; and (ii) there were specific and articulable facts giving reason ,eli<~ve that the subject of the NSL was a foreign power or foreign agent See 18 U.S.C.
19. L'11993, Congress extended the reach ofthe statute. l! authorized the FBI to issue an NSL if it could certify that (i) the information sought was relevant to an authorized foreign

'i 27-2006 12: 07PM FAX: 212

5
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PRGE:009 R=96%

.. ·-' ~·~ '''. ~·
counterintelligence investigation; and (ii) there were speciftc and articulable facts giving reason to believe that either (a) the subject o:fthe NSL was a foreign power or foreign agent, or (b) the subject had communicated with a person engaged in international terrorism or with a foreign agent or power "under circumstances giving reason to believe that the commlllJication concerned intemationalterrorism." Pub.L.l03-142, 107Stat.l49! (Nov.l7, 1993).
20, In 2001, through the Patriot Act, Congress extended the reach of the NSL statute by deleting the individualized suspicion requirement altogether. See Pub. L 107-56, Title , § 505(a), 115 Stat. 365 (Oct. 26, 2001). As a result of the Patriot Act, the FBI may now use to obtain sensitive information about innocent individuals who have no connection to espionage or tettorism. See 18 U.S.C. § 2709(b),
21. The NSL statute does not require the FBI to seekjudlcial review before issuing an NSL. However, after the decision of this Court in Doe v. Ashcroft, 334 F.Supp.2d 471 (S.D,N.Y. 2004), Congress amended the statute to permit those served v.rith NSLs to "petition for an order modifying or setting aside the request" 18 U.S.C. § 35ll(a). lfthe recipient of an NSL files such a petition, tile reviewing court may modify or set aside the NSL "if compliance would be umeasonable, oppressive, or otherwise unlawful." ld.
22. Under the amended statute, the FBI may affirmatively seek judicial enforcement NSL by "invok[ing] the aid of "any district court of the United States within tile ll'is·dicltion in which the invesligatlon is carried on or the person or entity [served with the NSL] resides, carries on business, or may be found." Jd, § 3511 (c). lf a court issues an order requiring compliance with an NSL, non-compliance may be punished by the court as contempt !d.
23. The NSL statute permits the FBI to disseminate information obtained through NSLs with the approval of the Attomey General. ld. § 2709(d). Nothing in the statute forecloses

12:07PM FRX:212

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the Attorney General from authorizing dissemination to other government agencies, to private entities, or to foreign intelligence services.
The Gag and Secrecy Provisions 24 In its current form, the NSL statute authorizes the Director of the FBI or his

25. To impose such an order, the Director or his designee must "certify" that, absent the non-disclosure obligation, "there may result a danger to the national security of the United States, interference with a criminal, counterterrorism, or counterintelligence invesiigation, interference with diplomatic relations, or danger to the life or physical safety of any person." Jd. § 2709(c)(l).
26. lfthe Director ofthe FBI ot his designee so certifies, the recipient of the NSL is prohibited from "disdos[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
to the request) that the [FBI] has sought or obtained access to information or records [the NSL statute]." !d. 27. The gag order is imposed by the FBI Lll1ilaterally, without prior judicial review. While the statute requires a "certification" that the gag is necessary, the certification is not examined by anyone outside the executive branch. No judge considers, before the gag order is imposed, whether secrecy is necessary or whether the gag order is narrowly tailored. 28. The gag provisions permit the recipient of an NSL to petition a court "for an order modifYing or setting a;;ide a noadisclosure requirement" !d. § 351 1(b)(1 ). However, in the case ofa petition filed "within one year of the request for records," the reviewing court may m<Jdify

12:07PM FAX:212

7 ID:ACLU

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or set aside the nondisclosure requirement only if it finds that there is "no reason to believe that disclosure may endanger the national security of the United States, interfere with a criminal, ,coluntert;~rr()rism, or counterintelligence investigation, interfere with diplomatiC relations, or
;tdang(~rthe life or physical safety of auy person." !d. § 35ll(b)(2) (emphases added). If~·~m'~' if a designated senior government official certifies that "disclosure may endanger the national security of the United States or interfere with diplomatic relations," the certification must be "treated as conclusive unless the court finds that the certification was rnade in bad faith." !d.
29. In the case of a petition filed under § 3511 (b)(l) "one year or mote after the request for records," the FBI Director or his designee must either terminate the non-disclosure obligation within 90 days or recertify that disclosure may result in one of the enumerated harms. !d.§ 35ll(b)(3). If the FBI recertifies that disclosure may be hannful, however, the reviewing
is required to apply the same extraordinarily deferential standards it applies to petitions within one year. Id. If the recertification is made by a designated senior official, the :iifi,cation must be "treated as conclusive unless the court finds that the recertification was made in bad faith." Id.
30. Those who violate gag orders issued under the NSL statute may be subject to criminal penalties. See 18 U.S.C. § !510(e) ("Whoever, having been notified of the applicable disclosure prohibitions or confidentiality requirements of [the NSL statute] ... knowingly and with the intent to obstmct an investigation or judicial proceeding violates such prohibitions or requirements applicable by law to such person shall be imprisoned for not more than t1ve years, fined under this title, or both.").

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- · ' · - - ,_,~ ' ' ' ·~·"·~· ~
31. The PIRA and ARAA require that challenges to NSLs (and to gag orders >so'"'"''u with NSLs) be hew:d in extraordinary secrecy. A reviewing court is required to "close
hew:ing to the extent necessw:y to prevent an unauthorized disclosure of a request for records." Id, § 35ll(d). The court is required to keep filings under seal "to the extent and as long as necessary to prevent the unauthorized disclosure of a request for records." ld.
32. The reviewing court is also required, "upon request of the government," to "review ex parte and in camera any government submission or portions thereof, which may include classified information." Id. § 35ll(e).
FACTUAL BACKGROUND

33,

1Int.emet access and

,.,u,nrr<to business located and incorporated i~rovided a number ofInternet

services for its clients. For exw:nple, it provided space on the Web so that clients could

· post their own sites and store electronic files.

It

provided clients with e-mail accounts. In some cases, it provided clients with the ability to

access the Internet

34.

President of plaintiff

info~t the FB! would be serving an NSL on

'resideJnt of plaintiff on FBI

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terh.ead and signed by Marion E. Bowman, Senior Counsel, National Security Affairs, Office

of the General Counsel.

36. The letter stated

is "hereby directed to provide the [FBI) the names,

37. The letter included a certification that "the information sought is relevant to an authorized investigation to protect against international terrorism or clandestine intelligence

The letter stated, "You are furtheradvised that Title 18, U.S.C., Section2709(c),

"'hi1~it.< any officer, employee or agent of yours from disclosing to any person that the FBI has

sought or obtained access to information or records under these provisions."

39. The letter further stated, "You are requested to provide records responsive to this

request nersonally to a representative of

the FBI. Any questions

you have regarding this request should be directed only to

Due to

security considerations, you should neither send 1he records through the mail nor disclose the

substance of this request in any telephone conversation." (Emphasis in original.)

40.

JLJ,_-27-2006 12:07PM FAX:212

10 ID:ACLU

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4!. business partners about
so. 42. On or

consult a lawyer and.

43. On or

a voicemail for rc~<cm •

requesting that any questions about

be directed t o . . , legal counseL

The April 2004 Complaint

44.

ACLU, and ACLUF filed the original Complaint in this action in

April2004 and an Amended Complaint in May 2004. The Amended Complaint challenged the

NSL statute ur1der the First, Fourth, and Fifth Amendments. It also challenged the

constitutionality

45. In September 2004, this Court invalidated the statute on its face. See Doe v.

334 F.Supp.2d 471 (S.D.N.Y. 2004). The Court wrote, "[T]he compulsory, secret, and

wie;wa.bleproduction of information required by the FBI's application ofl8 U.S.C. § 2709

violates the Fourth Amendment, and ... the non-disclosure provision of 18 U.S.C. § 2709(c)

violates the First Amendment." The Court enjoined the government from issuing NSLs under l 8

U.S, C. § 2709 "or from enforcing the non-disclosure provision in this or any other case." Id

The Court stayed enforcement of the judgment pending appeal.

!l ID:RCLU

PAGE: 015 R=97%

46. The government appealed the decision and oral argument was heard by the Second Circuit in November 2005. Before the Second Circuit issued. a decision, however,
Congress enacted the PIRA and ARAA. In May 2006, therefore, the Second Circuit remanded
the case to this Court "to receive amended pleadings, request new briefs, conduct oral argument,
in due course, furnish its views on the constitutionality" of the amended NSL statute. See v. Gonzales, 449 F.3d 4!5 (2d Cir. 2006).

47.

the gag provisions for more thm two years and they remain subject to them today.

48. The gag provisions have prevented plaintiffs from disclosing information about

to the subject of the NSL, to

clients, to the ACLU's

members, and to the press and public.

49. At various times since plaintiffs commenced t.'lis action, the govenm1omt has

invoked the gag provisions to prevent plaintiffs from disclosing the mere fact that, at some

seeks; and from

concerns." At one point the government relied on the gag provisions to insist that plaintiffs

redact, from a letter to be filed on the public docket, a quotation from a Supreme Court opinion.

50. The gag provisions have prevented plaintiff..,rom participating in public

debate about the Patriot Act.

I Ill unique experience with the Act's surveillance

provisions, the gag provisions prevented. .from speaking publicly about.experience and

from petitioning legislators to chemge the law.

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12 ID:ACLU

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51. The gag provisions sile:nc<~d

the time.oice would have been most

valuable to public debate. Congress debated the reauthorization oftlJe Patriot Act between the

fall of 2005 and the spring of 2006; then, as now, the gag provisions nrevented

aosmg information about this lawsuit and

52. The gag provisions undermined plaintiffACLU's capacity to petition Congress

for changes to the Patriot Act. During the reauthorization debate, legislators asked the ACLU for

specific examples of Patriot Act abuses. The gag provisions prevented the ACLU from

disclosing details about this lawsuit and about

53. On July 5, 2006, counsel for defendants stated to counsel for plaintiffs that the

FBI continues to regard plaintiffs as subject to a non·disclosyxe obligation.

54. In November 2005, the Washington Post reported that the FBI now issues more

than 30,000 NSLs every year. See Barton Gellman, The FBI's Secret Scrutiny: In Hunt for

"rtll"L~ts. Bureau Examines Records ofOrdinary Americans, Washington Post (Nov. 6, 2005).

2006, the Justice Department disclosed that in the preceding year the FBI had issued

than 9,200 NSLs seeking detailed information about more than 3,500 U.S. citizens or legal

residents, not including demands that sought only "subscriber information." See Dan Eggen, FBI

Sought Data on Thousands in '05, Washington Post (May 2, 2006).

CAUSES OF ACTION

55. The NSL statute, on its face and as applied through

violates the First Amendment by investing the FBI with the authority to suppress speech without

meaningful judicial review and by failing to require that gag orders issued under the statute be

narrowly tailored to a compelling government interest.

JUL-27-2006 12:08PM FAX:212

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56. The NSL statute, on its face and as applied through

the principle of separation of powers by effectively transferring to the executive branch

authority to detennine whether speech should or should not be suppressed.

57. The NSL statute, on its face and as applied through

violates the First and Fifth Amendments by requiring courts that review non-disclosure orders

and challenges to NSLs to close hearings and seal judicial documents even where there is no

compelling need for secrecy.

58. The NSL statute, on its face and as applied through

violates the First and Fifth Amendments by requiring courts that review non-disclosure orders

and challenges to NSLs to review goverrunent filings ex parte and in camera upon the

~9.Y<orrunerrt's request

59.

violates the First and Fourth Amendments by improperly

andmg infonnation that is constitutionally protected and irrelevant to any ongoing

PRII.YER FOR RELIEF

WHEREFORE Plaintiffs respectfully request that the Court:

1. Declare that 18 U.S.C. §§ 2709(c) and 35ll(b) are unconstitutional under the

First Amendment and the principle of separation of powers.

2. Declare that 18 U.S.C. §§ 35ll(d) and (e) are unconstitutional under the First and

Fifth Amendments.

3. Declare that the

is unconstitutional under the First, Fourth,

and Fifth Amendments, and under the principle of separaiion of powers.

JUL-27-2005 12:08PM FAX:212

14 ID:ACUJ

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4. Permanently enjoin defendants from seeking to enforce

or

from penalizing plaintiffs for failing to comply with it.

5. Pem1anently enjoin defendants from using J8 U.S.C. §§ 2709(c) and 351l(b), (d),

and (e) against plaintiffs or any other person or entity.

6. Award plaintiffs fees and costs.

7. Grant such other and further relief as the Court deems just and proper.

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July 24, 2006

submitted,
J EL AFFER (JJ-4653) A E SON (AB-2082) MELI A GOODMAN (MG- 7844) National Legal Department A-'l:lerican Civil Liberties Union Foundation 125 Broad Street, 18m Floor New York, NY 10004 (2!2) 549-2500
ARTHUR N. EISENBERG (AE-2012) New York Civil Liberties Union Foundation 125 Broad Street New York, NY 10004

FAX:212

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 07-4943-cv John Doe Inc., et al. v. Mukasey, et al.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 2008

Heard: August 27, 2008

Decided: December 15, 2008

Docket No. 07-4943-cv

- - - - - - - - - - - - - - - - - - - - - - - - - JOHN DOE, INC., JOHN DOE, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION,
Plaintiffs-Appellees,

v.

MICHAEL B. MUKASEY, in his official capacity as U.S. Attorney General of the United States, ROBERT MUELLER, in his official capacity as Director of the Federal Bureau of Investigation, VALERIE E. CAPRONI, in her official capacity as General Counsel of the Federal Bureau of Investigation,
Defendants-Appellants. - - - - - - - - - - - - - - - - - - - - - - - - - -

Before: NEWMAN, CALABRESI, and SOTOMAYOR, Circuit Judges.

Appeal by the Government from the September 7, 2007, judgment of

the United States District Court for the Southern District of New York

(Victor Marrero, District Judge), in litigation concerning First

Amendment challenges to the constitutionality of statutes governing

the issuance and judicial review of National Security Letters

(“NSLs”), 18 U.S.C. §§ 2709, 3511(b), which request records from

providers of wire or electronic communication services. The judgment,

stayed on appeal, enjoins FBI officials from (1) issuing NSLs under

section 2709, (2) enforcing the nondisclosure requirement of
subsection 2709(c), and (3) enforcing the provision for judicial
review of the nondisclosure requirement contained in subsection
3511(b).
The Court of Appeals construes the statutes to avoid some
constitutional challenges, rules that subsections 2709(c) and 3511(b)
are unconstitutional to the extent that they impose a nondisclosure
requirement on NSL recipients without placing on the Government the
burden of initiating judicial review of such a requirement, rules that
subsections 3511(b)(2) and (b)(3) 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, modifies
the district court’s injunction by limiting it to enjoining FBI
officials from enforcing the nondisclosure requirement of section
2709(c) in the absence of Government-initiated judicial review, and
remands for a hearing.
Affirmed in part, reversed in part, and remanded.
Gregory G. Katsas, Asst. Atty. General, Washington, D.C. (Jeffrey S. Bucholtz, Acting Asst. Atty. General, Jonathan F. Cohn, Deputy Asst. Atty. General, Douglas N. Letter, Scott R. McIntosh, U.S. Department of Justice, Washington, D.C.; Michael J. Garcia, U.S. Atty., Jeffrey Oestericher, Benjamin H. Torrance, Asst. U.S. Attys., New York, N.Y., on the
-2-

brief), for Defendants-Appellants.
Jameel Jaffer, New York, N.Y. (Melissa Goodman, L. Danielle Tully, American Civil Liberties Union Foundation, New York, N.Y.; Arthur N. Eisenberg, New York Civil Liberties Union Foundation, New York, N.Y., on the brief), for PlaintiffsAppellees.
(Claire E. Coleman, Brune and Richard LLP, New York, N.Y.; Peter Barbur, Ass’n of the Bar of the City of New York, N.Y., submitted a brief for amicus curiae The Ass’n of the Bar of the City of New York, in support of Plaintiffs-Appellees.)
(Meredith Fuchs, National Security Archive, George Washington University, Washington, D.C.; Marcia Hofmann, Electronic Frontier Foundation, San Francisco, Cal., submitted a brief for amici curiae National Security Archive and Electronic Frontier Foundation, in support of Plaintiffs-Appellees.)
(Theresa A. Chmara, Brian Hauck, Anne E. Ralph, Jenner & Block LLP, Washington, D.C., for amici curiae American Library Ass’n, et al., in support of PlaintiffsAppellees.)
JON O. NEWMAN, Circuit Judge.
This appeal concerns challenges to the constitutionality of
statutes regulating the issuance by the Federal Bureau of
Investigation (“FBI”) of a type of administrative subpoena generally
known as a National Security Letter (“NSL”) to electronic
communication service providers (“ECSPs”). See 18 U.S.C. §§ 2709, 3511
(collectively “the NSL statutes”). ECSPs are typically telephone
-3-

companies or Internet service providers. An NSL, in the context of this appeal,1 is a request for information about specified persons or entities who are subscribers to an ECSP and about their telephone or Internet activity. Primarily at issue on this appeal are challenges to the provisions (1) prohibiting the recipient from disclosing the fact that an NSL has been received, see 18 U.S.C. § 2709(c), and (2) structuring judicial review of the nondisclosure requirement, see id. § 3511(b).
These challenges arise on an appeal by the United States from the September 7, 2007, judgment of the District Court for the Southern District of New York (Victor Marrero, District Judge), enjoining FBI officials from (1) issuing NSLs under section 2709, (2) enforcing the nondisclosure requirement of subsection 2709(c), and (3) enforcing the provisions for judicial review of the nondisclosure requirement contained in subsection 3511(b).2 See Doe v. Gonzales, 500 F. Supp. 2d 379 (S.D.N.Y. 2007) (“Doe II”). The District Court ruled that subsections 2709(c) and 3511(b) are unconstitutional on First Amendment and separation-of-powers grounds, see id. at 405-06, 411-13,
1For authority to issue NSLs in other contexts, see 12 U.S.C. § 3414(a)(5) (financial 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 disclosure of classified information).
2All references to sections are to those in the current version of Title 18, unless otherwise indicated.
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416-22, and that subsection 2709(c) could not be severed from section
2709, see id. at 424-25.
We agree that the challenged statutes do not comply with the
First Amendment, although not to the extent determined by the District
Court, and we also conclude that the relief ordered by the District
Court is too broad. We therefore affirm in part, reverse in part, and
remand for further proceedings.
Background
The parties. The Plaintiffs-Appellees are an Internet service
provider (John Doe, Inc.), the provider’s former president (John Doe),
the American Civil Liberties Union (“ACLU”), and the American Civil
Liberties Union Foundation (“ACLUF”).3 The Defendants-Appellants are
3There is some slight confusion as to the status of John Doe, Inc., and John Doe in this litigation, but the confusion has no bearing on any of the issues or the resolution of this appeal. The captions of the District Court’s first and second opinions list John Doe as a plaintiff, but do not list John Doe, Inc., see Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004) (“Doe I”), and Doe II, 500 F. Supp. 2d 379, and there is no reference to John Doe, Inc., in either opinion. The first opinion states that John Doe is “an internet access firm.” Doe I, 334 F. Supp. 2d at 475. The second opinion does not indicate whether John Doe is the corporation or its former president. The second opinion grants in part the motion “of John Doe.” See Doe II, 500 F. Supp. 2d at 425. However, the Plaintiffs’ second amended complaint lists as parties both the corporation and the former president, and the briefs filed in this Court by all parties include John Doe, Inc., and John Doe in the captions as the Plaintiffs-Appellees. We will assume that both the corporation and its former president have been and continue to be Plaintiffs-Appellants, and they are so identified (by pseudonyms) in the caption of this appeal.
-5-

the Attorney General, the Director of the FBI, and the General Counsel of the FBI, all sued in their official capacities.
The NSL. In February 2004, the FBI delivered the NSL at issue in this litigation to John Doe, Inc. The letter directed John Doe, Inc., “to provide the [FBI] the names, addresses, lengths of service and electronic communication transactional records, to include [other information] (not to include message content and/or subject fields) for [a specific] email address.” The letter certified that the information sought was relevant to an investigation against international terrorism or clandestine intelligence activities and advised John Doe, Inc., that the law “prohibit[ed] any officer, employee or agent” of the company from “disclosing to any person that the FBI has sought or obtained access to information or records” pursuant to the NSL provisions. The letter also asked that John Doe provide the relevant information personally to a designated FBI office.
Section 2709 (2004 version). Section 2709 was originally enacted in 1986 as part of Title II of the Electronic Communication Privacy Act of 1986, Pub. L. No. 99-508, § 201, 100 Stat. 1848, 1867-68 (1986). It was amended in 1993 by Pub. L. No. 103-142, 107 Stat. 1491 (1993), in 1996 by Pub. L. No. 104-293, 110 Stat. 3461 (1996), and in 2001 by the USA Patriot Act, Pub. L. No. 107-56, 115 Stat. 272, 365 (2001).
-6-

Subsection 2709(a) imposes a duty on ECSPs to comply with
requests for specified information about a subscriber, and subsection
2709(b) authorizes the Director of the FBI and other FBI officials to
request specified information about a subscriber from ECSPs. The
texts of subsections 2709(a) and (b), as they existed in 2004, when
this lawsuit was filed (the current versions are unchanged) are set
out in the margin.4 Subsection 2709(c), as it existed in 2004, imposed
4Subsection 2709(a) provides:
(a) 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.
18 U.S.C. § 2709(a).
The statute was not intended to require disclosure of the content of electronic communications. See S. Rep. No. 99-541, at 44 (1986), as reprinted in 1986 USCCAN 3598.
Subsection 2709(b) provides:
(b) 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 –
(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, address, length of service, and toll billing records sought are relevant to an authorized investigation to protect
-7-

a blanket nondisclosure requirement prohibiting an ECSP from
disclosing receipt of an NSL. The text of subsection 2709(c), as it
existed in 2004 (it has since been changed), is set out in the margin.5
The lawsuit and the District Court’s first decision. The
Plaintiffs filed this lawsuit in April 2004 and an amended complaint
in May 2004. They contended that section 2709 violated the First and
Fourth Amendments by authorizing the FBI to compel the disclosure of
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.
18 U.S.C. § 2709(b).
5Subsection (c), in 2004, provided:
(c) Prohibition of certain disclosure. No wire or electronic communication service provider, 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.
18 U.S.C. § 2709(c) (2000).
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private records relating to constitutionally protected speech and association; they also contended that the nondisclosure requirement of subsection 2709(c) violated the First Amendment by permanently barring NSL recipients from disclosing that the FBI had sought or obtained information from them.
On the Plaintiffs’ motion for summary judgment, the District Court ruled primarily that section 2709 (presumably the disclosure requirements of subsections 2709(a) and (b)) was unconstitutional under the Fourth Amendment because it authorized “coercive searches effectively immune from any judicial process,” Doe v. Ashcroft, 334 F. Supp. 2d 471, 494-506 (S.D.N.Y. 2004) (“Doe I”), and that the nondisclosure requirement of subsection 2709(c) was unconstitutional under the First Amendment because it was an unjustified prior restraint and a content-based restriction on speech, see id. at 51125. Nearly one year later, a District Court in Connecticut preliminarily enjoined enforcement of the nondisclosure requirement of subsection 2709(c), finding a probability of success on the claim that subsection 2709(c) was unconstitutional under the First Amendment because it was an unjustified prior restraint and content-based restriction. See Doe v. Gonzales, 386 F. Supp. 2d 66, 73-75, 82 (D. Conn. 2005) (“Doe CT”).
Amendments to the NSL statutes. While appeals in Doe I and Doe CT were pending, Congress amended the NSL statutes in two respects.
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See USA Patriot Improvement and Reauthorization Act of 2005, §§ 115, 116(a), Pub. L. No. 109-177, 120 Stat. 192, 211-14 (Mar. 9, 2006) (“the Reauthorization Act”), amended by USA Patriot Act Additional Reauthorizing Amendments Act of 2006, § 4(b), Pub. L. No. 109-178, 120 Stat. 278, 280 (Mar. 9, 2006) (“Additional Reauthorization Act”), codified at 18 U.S.C.A. § 2709(c) (West Supp. 2008). First, although leaving intact subsections 2709(a) and (b), requiring compliance with NSLs, Congress amended the nondisclosure prohibition of subsection 2709(c) to require nondisclosure only upon certification by senior FBI officials that “otherwise 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.” Id. § 2709(c)(1) (“the enumerated harms”).6 The Reauthorization Act amended subsection 2709(c) by replacing the single paragraph of former subsection 2709(c) with four subdivisions, the fourth of which was amended by the Additional Reauthorization Act. We consider below the text of amended subsection 2709(c), which is set
6There is an exception to the disclosure prohibition for those to whom disclosure is necessary to comply with the NSL or for an attorney, see 18 U.S.C. § 2709(c)(1), but these persons become subject to the nondisclosure requirement, see id. § 2709(c)(3).
-10-

out in the margin.7 Second, in the Reauthorization Act, Congress
7Subsection 2709(c), as amended by the Additional Reauthorization Act, provides:
(c) Prohibition of certain disclosure.– (1) If 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, certifies that otherwise 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, no wire or electronic communications service provider, or officer, employee, or agent thereof, shall disclose 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 under this section. (2) The request shall notify the person or entity to whom the request is directed of the nondisclosure requirement under paragraph (1). (3) Any recipient disclosing to those persons necessary to comply with the request or to an attorney to obtain legal advice or legal assistance with respect to the request shall inform such person of any applicable nondisclosure requirement. Any person who receives a disclosure under this subsection shall be subject to the same prohibitions on disclosure under paragraph (1). (4) 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 this section shall identify to the Director or such designee the person to whom such disclosure will be made or to whom such disclosure was made prior to the request, except that nothing in this section shall require a person to inform the Director or such designee of the identity of an attorney to whom disclosure was made or will be made to obtain legal advice or legal assistance with respect to the request under subsection (a).
-11-

added provisions for judicial review, now codified in section 3511, to
permit the recipient of an NSL to petition a United States district
court for an order modifying or setting aside the NSL, see 18 U.S.C.A.
§ 3511(a) (West Supp. 2008), and the nondisclosure requirement, see
id. § 3511(b). The NSL may be modified if “compliance would be
unreasonable, oppressive, or otherwise unlawful.” Id. § 3511(a). The
nondisclosure requirement, which prohibits disclosure by the NSL
recipient of the fact that the FBI has sought or obtained access to
the requested information, may be modified or set aside, upon a
petition filed by the NSL recipient, id. § 3511(b)(1), if the district
court “finds that there is no reason to believe that disclosure may
endanger the national security of the United States” or cause other of
the enumerated harms (worded slightly differently from subsection 2709(c)(1)), see id. § 3511(b)(2), (3).8 The nondisclosure requirement
18 U.S.C.A. § 2709(c) (West Supp. 2008).
The only change made by the Additional Reauthorization Act was to clarify in subdivision (4) of subsection 2709(c) that the recipient of an NSL need not notify the FBI of “the identity of an attorney to whom disclosure was made or will be made to obtain legal advice or legal assistance with respect to the request under subsection (a),” id., while the original version of subdivision (4) had stated that “in no circumstance shall a person be required to inform the Director or such designee that the person intends to consult an attorney to obtain legal advice or legal assistance.” Id. (Historical and Statutory Notes).
8Subsection 3511(b)(2) applies to petitions filed within one year of the issuance of an NSL. A companion provision, subsection 3511(b)(3), using identical terms, applies to petitions filed more
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further provides that if the Attorney General or senior governmental
officials certify that disclosure may endanger the national security
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. The text of section 3511 is set out in
the margin.9
than one year after issuance of an NSL.
9As amended by the Additional Reauthorization Act, section 3511 provides:
(a) The recipient of a request for records, a report, or other information 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 Security Act of 1947 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.
(b)(1) The recipient of a request for records, a report, or other information 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 Security Act of 1947, may petition any court described in subsection (a) for an order modifying or setting aside a nondisclosure requirement imposed in connection with such a request.
(2) If the petition is filed within one year of the request for records, a report, or other information 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 Security Act of 1947, the
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court may modify or set aside such a nondisclosure requirement if it 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. If, at the time of the petition, the Attorney General, Deputy Attorney General, an Assistant Attorney General, or the Director of the Federal Bureau of Investigation, 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 such department, agency, or instrumentality, 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.
(3) If the petition is filed one year or more after the request for records, a report, or other information 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 Security Act of 1947, the Attorney General, Deputy Attorney General, an Assistant Attorney General, or 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, or in the case of a request by a department, agency, or instrumentality of the Federal Government other than the Federal Bureau of Investigation, the head or deputy head of such department, agency, or instrumentality, within ninety days of the filing of the petition, shall either terminate the nondisclosure requirement or re-certify 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. In the event of re-certification, the court may modify or set aside such a nondisclosure requirement if it finds that there is no reason to believe
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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. If the recertification that disclosure may endanger the national security of the United States or interfere with diplomatic relations is made by the Attorney General, Deputy Attorney General, an Assistant Attorney General, or the Director of the Federal Bureau of Investigation, such certification shall be treated as conclusive unless the court finds that the recertification was made in bad faith. If the court denies a petition for an order modifying or setting aside a nondisclosure requirement under this paragraph, the recipient shall be precluded for a period of one year from filing another petition to modify or set aside such nondisclosure requirement.
(c) 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 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.
(d) In all proceedings under this section, subject to any right to an open hearing in a contempt proceeding, the court must close any hearing to the extent necessary to prevent an unauthorized disclosure of 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 Security Act of 1947.
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The first appeal. On the Government’s appeals in Doe I and Doe
CT, this Court remanded Doe I for further consideration in light of
the amendments to the NSL statutes, and dismissed Doe CT as moot in
light of the Government’s withdrawal of its objection to disclosure of
the identity of the NSL recipient in that case. See Doe v. Gonzales,
449 F.3d 415, 421 (2d Cir. 2006).
Withdrawal of the NSL. On November 7, 2006, the Government
informed the District Court in the pending case that it was no longer
seeking to enforce the request for information contained in the NSL
that had been sent to John Doe with respect to information from John
Doe, Inc. See Doe II, 500 F. Supp. 2d at 386 n.3.
The District Court’s second decision. On September 6, 2007, the
District Court issued its second opinion, ruling, on cross-motions for
Petitions, filings, records, orders, and subpoenas must also be kept under seal to the extent and as long as necessary to prevent the unauthorized disclosure of 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 Security Act of 1947.
(e) In all proceedings under this section, 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.
18 U.S.C.A. § 3511 (West Supp. 2008).
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summary judgment, that, despite the amendments to the NSL statutes, subsections 2709(c) and 3511(b) are facially unconstitutional, see id. at 387, and that the Defendants-Appellants are enjoined from issuing NSLs under section 2709 and enforcing the provisions of subsections 2709(c) and 3511(b), see id. at 425-26.10 The Court stayed enforcement of its judgment pending appeal. See id. at 426.
In a careful and comprehensive opinion the District Court viewed the “fundamental question” to be “the extent of the authority that the First Amendment allows the government to exercise in keeping its use of NSLs secret, insofar as such secrecy inhibits freedom of speech.” Id. at 395. The Court began its analysis by reaffirming its conclusion from Doe I that the nondisclosure requirement of subsection 2709(c), despite amendment, remains “a prior restraint and a contentbased restriction on speech,” id. at 397, subject to “strict scrutiny,” id. at 398. The analysis then proceeded in several steps.
First, the Court, applying strict scrutiny and acknowledging that national security is a compelling state interest, ruled that the nondisclosure provisions invested executive officials with broad
10The Court rejected the Plaintiffs’ challenge to the constitutionality of the provisions authorizing courtroom closure for proceedings under section 3511, see 18 U.S.C. § 3511(d), and requiring a district court, upon the Government’s request, to review ex parte and in camera Government submissions that may include classified information, see id. § 3511(e). See Doe II, 500 F. Supp. 2d at 422-24. The Plaintiffs-Appellees have not taken a cross-appeal to challenge these rulings.
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discretion to censor speech but failed to provide necessary procedural safeguards. See id. at 399-406. Specifically, the Court, applying the teaching of Freedman v. Maryland, 380 U.S. 51 (1965), a motion picture licensing case, held that the nondisclosure provisions impermissibly placed the burden of initiating judicial review on the NSL recipient. See Doe II, 500 F. Supp. 2d at 405-06. However, the Court rejected the Plaintiffs’ argument that the nondisclosure provisions invested executive officers with unbridled discretion to suppress speech in violation of Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969). See Doe II, 500 F. Supp. 2d at 406-09.
Second, the Court, relying on Dickerson v. United States, 530 U.S. 428, 437 (2000), and City of Boerne v. Flores, 521 U.S. 507, 535-36 (1997), ruled that subsection 3511(b) violates the First Amendment and the principle of separation of powers because it prescribes a judicial review procedure and a standard of review inconsistent with First Amendment strict scrutiny requirements. Doe II, 500 F. Supp. 2d at 411-19.
Finally, the Court ruled that the nondisclosure provisions violate the First Amendment because they permit the FBI to issue nondisclosure orders that are not narrowly tailored in scope or duration. See id. at 419-22. Specifically, the Court noted that the nondisclosure provisions close off a broad spectrum of speech at the core of the First Amendment--political criticism--and that the statute
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contains “no requirement that the government act affirmatively and promptly to terminate the nondisclosure order” if the need for secrecy dissipates. See id. at 422.
The Court then ruled that the unconstitutional portions of the statute were not severable from the remainder of the statute. See id. at 424-25. Specifically, the Court reasoned that because secrecy was integral to the statutory scheme that Congress envisioned, it would not have wanted the NSL statute to operate without the nondisclosure provisions. It therefore invalidated section 2709 in its entirety. See id. at 425.
Discussion The validity of the NSL issued to John Doe, Inc., is no longer at issue because the Government has withdrawn it, but the prohibition on disclosing receipt of the NSL remains. We therefore consider only the Government’s challenges to the District Court’s rulings with respect to the nondisclosure requirement, although to the extent that the nondisclosure requirement encounters valid constitutional objections, we will consider the provisions authorizing issuance of NSLs in connection with the issue of severance. I. Applicable Principles
The First Amendment principles relevant to the District Court’s rulings are well established, although their application to the statutory provisions at issue requires careful consideration. A
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judicial order “forbidding certain communications when issued in advance of the time that such communications are to occur” is generally regarded as a “prior restraint,” Alexander v. United States, 509 U.S. 544, 550 (1993) (emphasis and internal quotation marks omitted), and is “the most serious and the least tolerable infringement on First Amendment rights,” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976). “Any prior restraint on expression comes to [a court] with a heavy presumption against its constitutional validity,” Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971) (internal quotation marks omitted), and “carries a heavy burden of showing justification,” id. A content-based restriction is subject to review under the standard of strict scrutiny, requiring a showing that the restriction is “narrowly tailored to promote a compelling Government interest.” United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000).
Where expression is conditioned on governmental permission, such as a licensing system for movies, the First Amendment generally requires procedural protections to guard against impermissible censorship. See Freedman, 380 U.S. at 58. Freedman identified three procedural requirements: (1) any restraint imposed prior to judicial review must be limited to “a specified brief period”; (2) any further restraint prior to a final judicial determination must be limited to “the shortest fixed period compatible with sound judicial resolution”;
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and (3) the burden of going to court to suppress speech and the burden of proof in court must be placed on the government. See id. at 58-59 (numbering and ordering follows Supreme Court’s discussion of Freedman in FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 227 (1990)); Thomas v. Chicago Park District, 534 U.S. 316, 321 (2002).
Once constitutional standards have been authoritatively enunciated, Congress may not legislatively supercede them. See Dickerson, 530 U.S. at 437. “When the political branches of the Government act against the background of a judicial interpretation of the Constitution already issued, it must be understood that in later cases and controversies the Court will treat its precedents with the respect due them under settled principles, including stare decisis, and contrary expectations must be disappointed.” City of Boerne, 521 U.S. at 536.
The national security context in which NSLs are authorized imposes on courts a significant obligation to defer to judgments of Executive Branch officials. “[C]ourts traditionally have been reluctant to intrude upon the authority of the Executive in . . . national security affairs,” Department of Navy v. Egan, 484 U.S. 518, 530 (1988), and the Supreme Court has acknowledged that terrorism might provide the basis for arguments “for heightened deference to the judgments of the political branches with respect to matters of national security,” Zadvydas v. Davis, 533 U.S. 678, 696 (2001).
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The last set of principles implicated by the Plaintiffs’ constitutional challenges concerns the somewhat related issues of judicial interpretation of unclear statutes, judicial revision of constitutionally defective statutes, and judicial severance of constitutionally invalid provisions from otherwise valid provisions. It is well established that courts should resolve ambiguities in statutes in a manner that avoids substantial constitutional issues. See Crowell v. Benson, 285 U.S. 22, 62 (1932); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348 (1936) (Brandeis, J., concurring).
Less clear is the authority of courts to revise a statute to overcome a constitutional defect. Of course, it is the province of the Legislative Branch to legislate. But in limited circumstances the Supreme Court has undertaken to fill in a statutory gap arising from the invalidation of a portion of a statute. The Court did so in United States v. Thirty-Seven Photographs, 402 U.S. 363 (1971). Considering a statute authorizing customs agents to seize obscene materials, see 19 U.S.C. § 1305(a), the Court noted that the statute lacked time limits on initiating and completing judicial proceedings, see Thirty-Seven Photographs, 402 U.S. at 368, limits constitutionally required by Freedman, 380 U.S. at 58, Teitel Film Corp. v. Cusack, 390 U.S. 139, 141 (1968), and Blount v. Rizzi, 400 U.S. 410, 417 (1971). After ruling that “the reading into [subsection 1305(a)] of the time limits required by Freedman is fully consistent with its legislative
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purpose,” Thirty-Seven Photographs, 402 U.S. at 370, the Court imposed a 14-day limit on the initiation of judicial proceedings and a 60-day limit on their completion, see id. at 373-74.11
More recently, the Court encountered another statutory revision issue in United States v. Booker, 543 U.S. 220 (2005). After ruling in its remedy opinion that the Court’s constitutionally required invalidation of the mandatory nature of the Sentencing Guidelines required excision of 18 U.S.C. § 3742(e), the judicial review provision of the Sentencing Reform Act, see Booker, 543 U.S. at 25860, the Court considered whether to “infer,” id. at 260, primarily from other statutes, a judicially created standard of review. The Court did so, selecting, based on “related statutory language, the structure of the statute, and the sound administration of justice,” id. at 260-61 (internal quotation marks omitted), “a reasonableness standard of review,” id. at 262 (internal quotation marks omitted).
Our Court has also revised statutory provisions to avoid or overcome constitutional defects. In Lee v. Thornton, 538 F.2d 27 (2d Cir. 1976), after invalidating provisions for seizure of vehicles for
11The Court explained that it had lacked the authority to impose missing time limits in state statutes invalidated in Freedman and Teitel, see Thirty-Seven Photographs, 402 U.S. at 369, and could not have remedied the absence of constitutionally required judicial review procedures in Blount because the statute had been enacted after the relevant Executive Branch officer had explicitly opposed inclusion of a judicial review provision, id. at 369-70.
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lack of procedural due process, see id. at 32-33, we required action on petitions for mitigation or remission within 24 hours and required a probable cause hearing within 72 hours, see id. at 33. In United States v. Monsanto, 924 F.2d 1186 (2d Cir. 1991) (in banc), we inserted into a post-indictment hearing procedure a requirement for reconsideration of probable cause in connection with a restraint on pretrial disposition of assets. See id. at 1198-1202. See generally Eubanks v. Wilkinson, 937 F.2d 1118, 1122-25 (6th Cir. 1991) (collecting cases where courts have either revised or declined to revise statutory language).
Closely related to the issue of whether a court should revise a statute to avoid or overcome a constitutional defect is the issue of whether to sever the unconstitutional portion of a statute or invalidate an entire statute or even an entire statutory scheme. In general, the choice, as stated by the Supreme Court, depends on whether “the legislature [would] have preferred what is left of its statute to no statute at all.” Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320, 330 (2006). The Court has also cautioned that “[u]nless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.” Buckley v. Valeo, 424 U.S. 1, 108 (1976) (internal quotation marks omitted).
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The Court recently applied this approach to severance in Booker. After ruling that the mandatory nature of the Sentencing Guidelines was unconstitutional, the Court had to consider whether to invalidate the entire Guidelines system or to excise two provisions, 18 U.S.C. §§ 3553(b)(1) and 3742(e), and leave the remainder of the Sentencing Reform Act intact. See Booker, 543 U.S. at 258. Concluding that Congress would have wanted to maintain the Sentencing Guidelines even if they were advisory, rather than mandatory, the Court elected to excise subsections 3553(b)(1) and 3742(e). See id.
II. The Parties’ Contentions With these principles in mind, we turn to the parties’ basic contentions. From the Plaintiffs’ standpoint, the nondisclosure requirement of subsection 2709(c) presents a straightforward contentbased prior restraint that must be tested against all the substantive and procedural limitations applicable to such an impairment of expression. In their view, the nondisclosure requirement is contentbased because it proscribes disclosure of the entire category of speech concerning the fact and details of the issuance of an NSL, see Consolidated Edison Co. of New York v. Public Service Commission, 447 U.S. 530, 537 (1980), and it is a prior restraint in the literal sense that it is imposed before an NSL recipient has an opportunity to speak, see Alexander, 509 U.S. at 550. From these premises, the Plaintiffs conclude that subsection 2709(c) is unconstitutional under
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strict scrutiny review because it prohibits disclosure in circumstances not narrowly tailored to a compelling governmental interest and operates as a licensing scheme without the procedural requirement of placing on the Government the burden of initiating judicial review and sustaining a burden of proof. The Plaintiffs also challenge subsection 3511(b) on the grounds that (1) the judicial review provisions do not require the Government to initiate judicial review and to sustain a burden of proof and (2) certification of certain risks by senior governmental officials is entitled to a conclusive presumption (absent bad faith). These aspects of subsection 3511(b) are alleged to violate First Amendment procedural standards and the separation of powers.
The Government responds that, to whatever extent the nondisclosure requirement can be considered a content-based prior restraint, it is subject to less rigorous scrutiny than those imposed on more typical First Amendment claimants who wish to speak or parade in public places, distribute literature, or exhibit movies. The Government points out that the nondisclosure requirement arises not to suppress a pre-existing desire to speak, but only as a result of governmental interaction with an NSL recipient. In the Government’s view, the nondisclosure requirement survives a First Amendment challenge on the same rationale that has permitted secrecy requirements to be imposed on witnesses before grand juries, see
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Hoffmann-Pugh v. Keenan, 338 F.3d 1136, 1140 (10th Cir. 2003); In re Subpoena to Testify Before Grand Jury Directed to Custodian of Records, 864 F.2d 1559, 1564 (11th Cir. 1989), and judicial misconduct proceedings, see Kamasinski v. Judicial Review Council, 44 F.3d 106 (2d Cir. 1994); First Amendment Coalition v. Judicial Inquiry and Review Board, 784 F.2d 467, 478-79 (3d Cir. 1986) (in banc), and on a person or entity that acquired sensitive material through pretrial discovery, see Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984).
III. The Interpretation of the NSL Statutes In assessing these contentions, we need to interpret the nondisclosure requirements before ruling on their constitutionality. As set forth above in notes 7 and 9, subsection 2709(c) specifies what senior FBI officials must certify to trigger the nondisclosure requirement, and subsection 3511(b) specifies, in similar but not identical language, what a district court must find in order to modify or set aside such a requirement. Senior FBI officials must certify that in the absence of a nondisclosure 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 physical safety of any person.” 18 U.S.C. § 2709(c)(1). Upon challenge by an NSL recipient, a district court may modify or set aside a nondisclosure requirement “if it finds that there is no reason
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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. § 3511(b)(2).
These provisions present three issues for interpretation: (1) what is the scope of the enumerated harms? (2) what justifies a nondisclosure requirement? and (3) which side has the burden of proof?
The enumerated harms. The first issue concerns the scope of the language identifying the enumerated harms. It is the risk of these harms that senior FBI officials must certify in order to impose the nondisclosure requirement. These harms are “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). The last phrase is particularly troublesome. It could extend the Government’s power to impose secrecy to a broad range of information relevant to such matters as ordinary tortious conduct, based on the risk of “danger to the physical safety of any person.” A secrecy requirement of such broad scope would present highly problematic First Amendment issues. However, this potential reach of the nondisclosure requirement can be reined in if all the enumerated harms are keyed to the same standard that governs
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information sought by an NSL, i.e., “relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities.” Id. § 2709(b)(1), (2).
At oral argument, the Government wisely urged us to avoid this problem by construing the scope of the enumerated harms in light of the purposes for which an NSL is issued. We readily accept that view of the nondisclosure requirement, thereby at least narrowing, though not eliminating, the First Amendment issues. Thus, we will adjudicate the constitutionality of the nondisclosure requirement in subsection 2709(c) by construing this requirement to apply only when senior FBI officials certify that disclosure may result in an enumerated harm that is related to “an authorized investigation to protect against international terrorism or clandestine intelligence activities.” Id.
The required showing. The second issue concerns what must be shown to maintain a nondisclosure requirement upon judicial review. A district court, considering a challenge filed within one year of the issuance of an NSL, is authorized to modify or set aside a nondisclosure requirement “if it finds that there is no reason to believe that disclosure may” risk one of the enumerated harms. 18 U.S.C. § 3511(b)(2). At oral argument, the Government took the position that “reason” in the quoted phrase means “good reason.” We accept this common-sense understanding of subsection 3511(b)(2). Cf. McGehee v. Casey, 718 F.2d 1137, 1148 (D.C. Cir. 1983) (“[C]ourts
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. . . must . . . satisfy themselves . . . that the CIA in fact had good reason to classify, and therefore censor, the materials at issue.”). We take a similar view of the identical language in subsection 3511(b)(3), governing a challenge filed more than one year after issuance of an NSL.
Moreover, a reason will not qualify as “good” if it surmounts only a standard of frivolousness. We understand the statutory requirement of a finding that an enumerated harm “may result” to mean more than a conceivable possibility. The upholding of nondisclosure does not require the certainty, or even the imminence of, an enumerated harm, but some reasonable likelihood must be shown. The Government acknowledges that “while the ‘reason to believe’ standard in subsection 3511(b) unquestionably contemplates a deferential standard of review, in no way does it foreclose a court from evaluating the reasonableness of the FBI’s judgments.” Reply Br. for Appellants at 9.
The burden of proof. The third issue concerns the burden of proof applicable to the finding contemplated by subsection 3511(b)(2). Does this provision mean that, in order to have a district court modify or set aside a nondisclosure requirement, an ECSP must persuade a court that there is no good reason to believe that disclosure may risk one of the enumerated harms, or that, in order to maintain a nondisclosure requirement, the Government must persuade a court that there is a good
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reason to believe that disclosure may risk one of the enumerated harms? As the Government acknowledged at oral argument, subsection 3511(b) is silent as to the burden of proof. The Government also acknowledged at oral argument that these provisions should be understood to place on the Government the burden 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 modify or set aside a nondisclosure order, must find that such a good reason exists, rather than find the negative, i.e., that no good reason exists to believe that disclosure may risk one of the enumerated harms. We agree.
Under the principles outlined above, we are satisfied that we may accept the Government’s concessions on all three matters of statutory interpretation without trenching on Congress’s prerogative to legislate. See Thirty-Seven Photographs, 402 U.S. at 368-70; Monsanto, 924 F.2d at 1198-1202; Lee, 538 F.2d at 33. We will therefore construe subsection 2709(c)(1) to mean that the enumerated harms must be related to “an authorized investigation to protect against international terrorism or clandestine intelligence activities,” 18 U.S.C. § 2709(b)(1), (2), and construe subsections 3511(b)(2) and (3) to place on the Government the burden to persuade a district court that there is a good reason to believe that disclosure may result in one of the enumerated harms, and to mean that
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a district court, in order to modify or set aside a nondisclosure order, must find that such a good reason exists.
IV. Constitutionality of the NSL Statutes (a) Basic approach. Turning to the First Amendment issues with respect to the NSL statutes as thus construed, we believe that the proper path to decision lies between the broad positions asserted by the parties. Although the nondisclosure requirement is in some sense a prior restraint, as urged by the Plaintiffs, 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. Cf. Seattle Times, 467 U.S. at 33 (noting that prohibition on disclosure of material obtained through pretrial discovery was “not the kind of classic prior restraint that requires exacting First Amendment scrutiny”).12 And although the nondisclosure requirement is triggered by the content of a category of information, that category, consisting of the fact of receipt of an NSL and some related details, is far more limited than the broad categories of information that have
12We note that none of the decisions discussing the appropriateness or limits of grand jury secrecy has referred to a nondisclosure requirement in that context as a prior restraint. See also McGehee, 718 F.2d at 1147 (noting that neither the CIA’s classification of portions of a former employee’s proposed book as top secret nor a court order rejecting a First Amendment challenge “constitutes a prior restraint in the traditional sense”).
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been at issue with respect to typical content-based restrictions. Cf. Consolidated Edison, 447 U.S. at 537.
On the other hand, we do not accept the Government’s contentions that the nondisclosure requirement can be considered to satisfy First Amendment standards based on analogies to secrecy rules applicable to grand juries, judicial misconduct proceedings, and certain interactions between individuals and governmental entities. The justification for grand jury secrecy inheres in the nature of the proceedings. As the Supreme Court has noted, such secrecy serves several interests common to most such proceedings, including enhancing the willingness of witnesses to come forward, promoting truthful testimony, lessening the risk of flight or attempts to influence grand jurors by those about to be indicted, and avoiding public ridicule of those whom the grand jury declines to indict. See Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211, 218-19 (1979).
Although these interests do not warrant a prohibition on disclosure of a witness’s own testimony after the term of the grand jury has ended, see Butterworth v. Smith, 494 U.S. 624, 630-36 (1990), they generally suffice to maintain grand jury secrecy against First Amendment claims to divulge information a witness obtained through participation in the grand jury process. See Hoffman-Pugh, 338 F.3d at 1139-40. Unlike the grand jury proceeding, as to which interests in secrecy arise from the nature of the proceeding, the nondisclosure
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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.
The Government’s analogy to permissible limitations on disclosures in connection with judicial misconduct proceedings also fails to justify the nondisclosure requirement of subsection 2709(c). We considered First Amendment challenges to nondisclosure requirements imposed with respect to judicial misconduct proceedings in Kamasinski. Initially, we noted the interests in confidentiality in such proceedings that the Supreme Court had identified in Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978). See Kamasinski, 44 F.3d at 110. These interests are: “(1) encouraging the filing of complaints; (2) protecting judges from unwarranted complaints; (3) . . . avoiding premature announcement of groundless complaints; and (4) facilitating the work of the commission by giving it flexibility to accomplish its mission through voluntary retirement or resignation of offending judges.” Id.; see Landmark, 435 U.S. at 835-37. Again, unlike the context of subsection 2709(c), these considerations inhere in the nature of judicial misconduct proceedings. In Kamasinski, we ruled that disclosure of the substance of an individual’s complaint could not be prohibited, see 44 F.3d at 110, but that the First Amendment permitted prohibition of disclosure of the fact that an
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individual had filed a complaint or had testified, and of information gained through interaction with the misconduct commission, see id. at 111. We noted, however, that these prohibitions were justified in part by their cessation once the commission had determined whether or not there was probable cause that judicial misconduct had occurred. See id. at 112. That temporal limitation, important in the balance of governmental versus free speech interests, is absent from the nondisclosure requirement of subsection 2709(c).
The Government’s analogy to certain interactions between an individual and governmental entities is also unavailing. The Government seeks to enlist cases involving classification of former CIA employees’ information as top secret, see United States v. Snepp, 897 F.2d 138 (4th Cir. 1990), and United States v. Marchetti, 466 F.2d 1309 (4th Cir. 1972), and a prohibition on disclosure of information obtained by a litigant through court-ordered discovery, see Seattle Times, 467 U.S. 20. We fail to appreciate the analogy between the individuals or the entity seeking disclosure in those cases and John Doe, Inc., who had no interaction with the Government until the Government imposed its nondisclosure requirement upon it.
The nondisclosure requirement of subsection 2709(c) is not a typical prior restraint or a typical content-based restriction warranting the most rigorous First Amendment scrutiny. On the other hand, the Government’s analogies to nondisclosure prohibitions in
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other contexts do not persuade us to use a significantly diminished standard of review. In any event, John Doe, Inc., has been restrained from publicly expressing a category of information, albeit a narrow one, and that information is relevant to intended criticism of a governmental activity. See Gentile v. State Bar of Nevada, 501 U.S. 1030, 1034 (1991) (“There is no question that speech critical of the exercise of the State’s power lies at the very center of the First Amendment.”); Landmark, 435 U.S. at 838 (“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.”) (internal quotation marks omitted).
The panel is not in agreement as to whether, in this context, we should examine subsection 2709(c) under a standard of traditional strict scrutiny or under a standard that, in view of the context, is not quite as “exacting” a form of strict scrutiny, Seattle Times, 467 U.S. at 33. Ultimately, this disagreement has no bearing on our disposition because, as we discuss below, the only two limitations on NSL procedures required by First Amendment procedural standards would be required under either degree of scrutiny. We note that, for purposes of the litigation in this Court, the Government has conceded that strict scrutiny is the applicable standard.
(b) Strict scrutiny. Under strict scrutiny review, the Government
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must demonstrate that the nondisclosure requirement is “narrowly tailored to promote a compelling Government interest,” Playboy Entertainment, 529 U.S. at 813, and 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). Since “[i]t 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) (internal quotation marks omitted), the principal strict scrutiny issue turns on whether the narrow tailoring requirement is met, and this issue, as the District Court observed, essentially concerns the process by which the nondisclosure requirement is imposed and tested, see Doe II, 500 F. Supp. 2d at 399.
With subsections 2709(c) and 3511(b) interpreted as set forth above, see Part III, supra, two aspects of that process remain principally at issue: the absence of a requirement that the Government initiate judicial review of the lawfulness of a nondisclosure requirement and the degree of deference a district court is obliged to accord to the certification of senior governmental officials in ordering nondisclosure.13
13The Plaintiffs challenged the nondisclosure requirement on the ground that the discretion vested in senior FBI officials in determining whether to issue an NSL was unconstitutionally broad, see Shuttlesworth, 394 U.S. 147. The District Court rejected this claim.
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(i) Absence of requirement that the Government initiate judicial review. The Plaintiffs alleged, and the District Court agreed, that the third Freedman procedural requirement applies to the NSL statutes, requiring the Government to initiate judicial review of its imposition of a nondisclosure requirement. See Freedman, 380 U.S. at 58-59.
The Government advances several arguments why the third Freedman safeguard should not apply to judicial review of the nondisclosure requirement. First, the Government contends that it would be unduly burdened if it had to initiate a lawsuit to enforce the nondisclosure requirement in the more than 40,000 NSL requests that were issued in 2005 alone, according to the 2007 report of the Inspector General of the Department of Justice (“OIG Report”).14 See Doe II, 500 F. Supp. 2d at 390. Related to this argument is the point, advanced in the Government’s brief to distinguish Freedman, that “there is no reason

See Doe II, 500 F. Supp. 2d at 406-09. In this Court, the Plaintiffs renewed this argument only in footnotes. Under the circumstances, we deem the issue forfeited on appeal. See United States v. Restrepo, 986 F.2d 1462, 1463 (2d Cir. 1993) (“We do not consider an argument mentioned only in a footnote to be adequately raised or preserved for appellate review.”).

14An unclassified version of the OIG Report, formally titled “A

Review of the Federal Bureau of Investigation’s Use of National

Security

Letters,”

is

available

at

<http://www.usdoj.gov/oig/special/s0703b/final.pdf>, last visited Oct.

20, 2008. An unclassified version of a follow-up 2008 OIG Report,

formally titled “A Review of the FBI’s Use of National Security

Letters: Assessment of Corrective Actions and Examination of NSL Usage

in

2006,”

is

available

at

<http://www.usdoj.gov/oig/special/s0803b/final.pdf>, last visited Oct.

20, 2008.

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to believe that most recipients of NSLs wish to disclose that fact to anyone.” Br. for Appellants at 33.
Instead of determining whether, as the Government contends, a burden of initiating litigation can prevent application of the third Freedman procedural safeguard, we consider an available means of minimizing that burden, use of which would substantially avoid the Government’s argument. 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 whether to contest the nondisclosure requirement, the Government’s prompt application to a court, and the court’s prompt adjudication on the merits. See Freedman, 380 U.S. at 58. 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
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prevails in court. If the Government is correct that very few NSL recipients have any interest in challenging the nondisclosure requirement (perhaps no more than three have done so thus far), this “reciprocal notice procedure” would nearly eliminate the Government’s burden to initiate litigation (with a corresponding minimal burden on NSL recipients to defend numerous lawsuits). Thus, the Government’s litigating burden can be substantially minimized, and the resulting slight burden is not a reason for precluding application of the third Freedman safeguard.
The Government’s second argument for not applying Freedman’s third safeguard relies on an attempt to analogize the nondisclosure requirement in NSLs to nondisclosure requirements imposed in the context of pre-existing interaction with a governmental activity. Unlike the movies subject to licensing in Freedman, which were created independently of governmental activity, the information kept secret by an NSL, the Government contends, is “information that the recipient learns by (and only through) his participation in the [G]overnment’s own investigatory processes.” Br. for Appellants at 31. Although the governmental interaction distinction has validity with respect to the litigant obtaining discovery material in Seattle Times and the former CIA employees seeking to disclose sensitive material in Marchetti and Snepp, we think it has no application to an ECSP with no relevant governmental interaction prior to receipt of an NSL. The recipient’s
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“participation” in the investigation is entirely the result of the Government’s action. The Government also relies on analogies to secrecy requirements in grand jury and judicial misconduct proceedings, analogies we have previously rejected. See Part IV(a), supra.
Third, the Government seeks to avoid Freedman’s third requirement on the ground that the risk of administrative error “is significantly smaller under [sub]section 2709(c) than under licensing schemes like the one in Freedman.” Br. for Appellants at 33. Although the risk of error may be smaller, it remains sufficient to require a judicial review procedure that conforms to Freedman. The OIG Report concluded that “‘the FBI used NSLs in violation of applicable NSL statutes, Attorney General Guidelines, and internal FBI policies.’” Doe II, 500 F. Supp. 2d at 392 (quoting OIG Report at 124).
Fourth, the Government points out that the Supreme Court did not apply the third Freedman requirement to the licensing scheme that was challenged in FW/PBS, which concerned licenses for sexually oriented businesses. However, the distinctions with Freedman noted by the Court in FW/PBS point in favor of applying the third Freedman requirement to subsection 2709(c). First, the Court noted that the licensing authority was not “passing judgment on the content of any protected speech,” but was performing the “ministerial action” of “review[ing] the general qualifications of each license applicant.”
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FW/PBS, 493 U.S. at 229. Under subsection 2709(c), however, the Government is exercising discretion to prohibit disclosure of speech on a topic of significant public concern. Second, the Court noted that the license applicant in FW/PBS had “every incentive” to initiate a judicial challenge to a license denial because the license was “the key to the applicant’s obtaining and maintaining a business,” id. at 229-30, a greater incentive than the movie distributor had in Freedman, “where only one film was censored,” id. at 229. The typical NSL recipient, by contrast, who runs a business that is in no sense dependent on revealing the receipt of an NSL, has little if any incentive to initiate a court challenge in order to speak publicly about such receipt. FW/PBS does not provide a basis for ignoring the third Freedman requirement.
We acknowledge, however, that the nondisclosure requirement of subsection 2709(c) is not facially a licensing scheme of the sort at issue in Freedman. Unlike an exhibitor of movies, John Doe, Inc., did not intend to speak and was not subject to any administrative restraint on speaking prior to the Government’s issuance of an NSL. Nevertheless, once the NSL arrived, John Doe, Inc., did wish to speak publicly about it and was prohibited from doing so by an administrative order. Freedman’s third requirement cannot be disregarded simply because subsection 2709(c) does not impose a traditional licensing scheme.
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The availability of a minimally burdensome reciprocal notice procedure for governmental initiation of judicial review and the inadequacy of the Government’s attempts to avoid the third Freedman safeguard persuade us that this safeguard, normally required where strict scrutiny applies, must be observed. Therefore, in the absence of Government-initiated judicial review, subsection 3511(b) is not narrowly tailored to conform to First Amendment procedural standards. We conclude, as did the District Court, see Doe II, 500 F. Supp. 2d at 401-06, that subsection 3511(b) does not survive either traditional strict scrutiny or a slightly less exacting measure of such scrutiny.
(ii) Deference to administrative discretion. The Plaintiffs contended, and the District Court agreed, that the judicial review contemplated by subsection 3511(b) authorizes a degree of deference to the Executive Branch that is inconsistent with First Amendment standards. Although acknowledging that “national security is a compelling interest justifying nondisclosure in certain situations,” id. at 418, the District Court faulted the review provision in several respects. First, the Court stated that the statute “requires the court to blindly credit a finding that there ‘may’ be a reason-potentially any conceivable and not patently frivolous reason--for it to believe disclosure will result in a certain harm.” Id. Our construction of the statute, however, avoids that concern. As indicated above, see Part III, supra, we interpret subsection 3511(b)
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to place on the Government the burden to show a “good” reason to believe that disclosure may result in an enumerated harm, i.e., a harm related to “an authorized investigation to protect against international terrorism or clandestine intelligence activities,” 18 U.S.C. § 2709(b)(1), (2), and to place on a district court an obligation to make the “may result” finding only after consideration, albeit deferential, of the Government’s explanation concerning the risk of an enumerated harm.
Assessing the Government’s showing of a good reason to believe that an enumerated harm may result will present a district court with a delicate task. While the court will normally defer to the Government’s considered assessment of why disclosure in a particular case may result in an enumerated harm related to such grave matters as international terrorism or clandestine intelligence activities, it cannot, consistent with strict scrutiny standards, uphold a nondisclosure requirement on a conclusory assurance that such a likelihood exists. In this case, the director of the FBI certified that “the disclosure of the NSL itself or its contents may endanger the national security of the United States.” To accept that conclusion without requiring some elaboration would “cast Article III judges in the role of petty functionaries, persons required to enter as a court judgment an executive officer’s decision, but stripped of capacity to evaluate independently whether the executive’s decision is
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correct.” Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 426 (1995). In showing why disclosure would risk an enumerated harm, the
Government must at least indicate the nature of the apprehended harm and provide a court with some basis to assure itself (based on in camera presentations where appropriate) that the link between disclosure and risk of harm is substantial.15 As the Government acknowledges, “Nothing in [subs]ection 3511(b) would require a district court to confine judicial review to the FBI’s necessarily unelaborated public statement about the need for nondisclosure. The provisions in [subs]ections 3511(d) and (e) for ex parte and in camera review provide a ready mechanism for the FBI to provide a more complete explanation of its reasoning, and the court is free to elicit such an explanation as part of the review process.” Reply Br. for Appellants at 10 n.4.
We have every confidence that district judges can discharge their review responsibility with faithfulness to First Amendment considerations and without intruding on the prerogative of the Executive Branch to exercise its judgment on matters of national security. Such a judgment is not to be second-guessed, but a court must receive some indication that the judgment has been soundly
15The Government sought to amplify its grounds for nondisclosure in a classified declaration submitted ex parte to the District Court and made available for our in camera review. This declaration will be available to the District Court on remand.
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reached. As the Supreme Court has noted in matters of similar gravity, the Constitution “envisions a role for all three branches when individual liberties are at stake.” Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004).
The District Court’s second reason for considering the judicial review procedure of subsection 3511(b) deficient was a perceived preclusion of a court’s authority, when presented with a “plausible, reasonable, and specific” enumerated harm, to balance “the potential harm against the particular First Amendment interest raised by a particular challenge.” Doe II, 500 F. Supp. 2d at 418. We see no deficiency in this regard. The balance sought by the District Court is an important aspect of judicial review of prior restraints. See, e.g., New York Times Co. v. United States, 403 U.S. 713 (1971). That is why we have interpreted the statutory standard to permit a nondisclosure requirement only upon an adequate demonstration that a good reason exists reasonably to apprehend a risk of an enumerated harm, and have expressly read the enumerated harms as being linked to international terrorism or clandestine intelligence activities. As a result of this interpretation, the balance sought by the District Court is now inherent in the statutory standard. A demonstration of a reasonable likelihood of potential harm, related to international terrorism or clandestine intelligence activities, will virtually always outweigh the First Amendment interest in speaking about such a
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limited and particularized occurrence as the receipt of an NSL and will suffice to maintain the secrecy of the fact of such receipt.
The District Court’s third objection to the judicial review procedure is far more substantial. The Court deemed inconsistent with strict scrutiny standards the provision of subsections 3511(b)(2) and (b)(3) specifying that a certification by senior governmental officials that disclosure may “endanger the national security of the United States or interfere with diplomatic relations . . . shall be treated as conclusive unless the court finds that the certification was made in bad faith.” 18 U.S.C. § 3511(b)(2). See Doe II, 500 F. Supp. 2d at 419. We agree.
There is not meaningful judicial review of the decision of the Executive Branch to prohibit speech if the position of the Executive Branch that speech would be harmful is “conclusive” on a reviewing court, absent only a demonstration of bad faith. To accept deference to that extraordinary degree would be to reduce strict scrutiny to no scrutiny, save only in the rarest of situations where bad faith could be shown. Under either traditional strict scrutiny or a less exacting application of that standard, some demonstration from the Executive Branch of the need for secrecy is required in order to conform the nondisclosure requirement to First Amendment standards. The fiat of a governmental official, though senior in rank and doubtless honorable in the execution of official duties, cannot displace the judicial
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obligation to enforce constitutional requirements. “Under no circumstances should the Judiciary become the handmaiden of the Executive.” United States v. Smith, 899 F.2d 564, 569 (6th Cir. 1990).
V. Remedy To recapitulate our conclusions, we (1) construe subsection 2709(c) to permit a nondisclosure requirement only when senior FBI officials certify that disclosure may result in an enumerated harm that is related to “an authorized investigation to protect against international terrorism or clandestine intelligence activities,” (2) construe subsections 3511(b)(2) and (b)(3) 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, (3) construe subsections 3511(b)(2) and (b)(3) to mean that the Government satisfies its burden when it makes an adequate demonstration as to why disclosure in a particular case may result in an enumerated harm, (4) rule that subsections 2709(c) and 3511(b) are unconstitutional to the extent that they impose a nondisclosure requirement without placing on the Government the burden of initiating judicial review of that requirement, and (5) rule that subsections 3511(b)(2) and (b)(3) 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.
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Implementing these conclusions requires us to apply the principles of judicial interpretation and limited revision of statutes and consider the related issue of severance discussed in Part I, supra. We are satisfied that conclusions (1), (2), and (3) fall within our judicial authority to interpret statutes to avoid constitutional objections or conform to constitutional requirements. Conclusions (4) and (5) require further consideration.
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. However, the Government might be able to assume such an obligation without additional legislation. As we discussed in Part IV(b)(i), supra, the Government’s concern about the potentially substantial burden of initiating litigation can be readily alleviated by use of the reciprocal notice procedure we have suggested.
If the Government uses the suggested reciprocal notice procedure as a means of initiating judicial review, there appears to be no impediment to the Government’s including notice of a recipient’s opportunity to contest the nondisclosure requirement in an NSL. If such notice is given, time limits on the nondisclosure requirement pending judicial review, as reflected in Freedman, would have to be applied to make the review procedure constitutional. We would deem it
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to be within our judicial authority to conform subsection 2709(c) to
First Amendment requirements, by limiting the duration of the
nondisclosure requirement, absent a ruling favorable to the Government
upon judicial review, to the 10-day period in which the NSL recipient
decides whether to contest the nondisclosure requirement, the 30-day
period in which the Government considers whether to seek judicial
review, and a further period of 60 days in which a court must
adjudicate the merits, unless special circumstances warrant additional
time. See Thirty-Seven Photographs, 402 U.S. at 373-74 (imposing time
limits to satisfy constitutional requirements). If the NSL recipient
declines timely to precipitate Government-initiated judicial review,
the nondisclosure requirement would continue, subject to the
recipient’s existing opportunities for annual challenges to the nondisclosure requirement provided by subsection 3511(b).16 If such
an annual challenge is made, the standards and burden of proof that we
have specified for an initial challenge would apply, although the
16The District Court ruled that those opportunities were constitutionally flawed because they unduly prolonged the duration of the nondisclosure requirement, see Doe II, 500 F. Supp. 2d at 421-22. We are satisfied, however, that, once the Government has initiated judicial review and prevailed on the merits, limiting an NSL recipient to annual opportunities thereafter to terminate the nondisclosure requirement does not violate First Amendment procedural requirements. The 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.
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Government would not be obliged to initiate judicial review. In those instances where an NSL recipient gives notice of an
intent to challenge the disclosure requirement, the Government would have several options for completing the reciprocal notice procedure by commencing such review. First, it is arguable that the Government can adapt the authority now set forth in subsection 3511(c) for the purpose of initiating judicial review. That provision authorizes the Attorney General to “invoke the aid of any [relevant] district court” in the event of “a failure to comply with a request for . . . information made to any person or entity under section 2709(b)” or other provisions authorizing NSLs. 18 U.S.C. § 3511(c). Since an NSL includes both a request for information and a direction not to disclose that the FBI has sought or obtained information, an NSL recipient’s timely notice of intent to disclose, furnished in response to notice in an NSL of an opportunity to contest the nondisclosure requirement, can perhaps be considered the functional equivalent of the “failure to comply” contemplated by subsection 3511(c). Second, the Government might be able to identify some other statutory authority to invoke the equitable power of a district court to prevent a disclosure that the Government can demonstrate would risk harm to national security. Third, and as a last resort, the Government could seek explicit congressional authorization to initiate judicial review of a nondisclosure requirement that a recipient wishes to challenge.
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We leave it to the Government to consider how to discharge its obligation to initiate judicial review.
In view of these possibilities, we need not invalidate the entirety of the nondisclosure requirement of subsection 2709(c) or the judicial review provisions of subsection 3511(b). Although the conclusive presumption clause of subsections 3511(b)(2) and (b)(3) must be stricken, we invalidate subsection 2709(c) and the remainder of subsection 3511(b) only to the extent that they fail to provide for Government-initiated judicial review. The Government can respond to this partial invalidation ruling by using the suggested reciprocal notice procedure. With this procedure in place, subsections 2709(c) and 3511(b) would survive First Amendment challenge.
These partial invalidations of subsections 2709(c) and 3511(b) oblige us to consider the issue of severance. The District Court, understandably unaware of the narrowing interpretations we have made, invalidated the entirety of subsection 2709(c) and the entirety of subsection 3511(b). See Doe II, 500 F. Supp. 2d at 424. Then, concluding that Congress would not have wanted the NSL authorization contained in subsections 2709(a) and (b) to stand in the absence of a nondisclosure requirement, it invalidated the entirety of section 2709. Id. As a result of these rulings, the court enjoined FBI officials from issuing NSL letters under section 2709, enforcing the nondisclosure requirement of subsection 2709(c), and enforcing the
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provisions for judicial review of the nondisclosure requirement contained in subsection 3511(b). With the NSL statutes now construed to avoid some of the Plaintiffs’ constitutional challenges and partially invalidated to render the statutes constitutional, we disagree that section 2709 and subsection 3511(b) must be stricken and their enforcement enjoined.
We have 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. 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. See Br. for Appellants at 60-61. A fortiori, authority to issue NSLs should be preserved in view of the limiting constructions and limited invalidations we have ordered. We therefore sever the conclusive presumption language of subsection 3511(b) and leave intact the remainder of subsection 3511(b) and the entirety of section 2709 (with Government-initiated judicial review
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required). As a result of this ruling, we modify the District Court’s injunction by limiting it to enjoining FBI officials from enforcing the nondisclosure requirement of section 2709(c) in the absence of Government-initiated judicial review.17
There remains for consideration the issue of the procedure to be followed with respect to judicial review of the nondisclosure requirement with respect to the NSL issued to John Doe, Inc. Although we have ruled that the Government is obliged to initiate judicial review of a nondisclosure requirement, it would be pointless to dismiss the pending litigation and direct the Government to start anew. With judicial review already initiated in the District Court and the constitutionality of the disclosure requirement salvaged by the statutory interpretations and partial invalidations we have ordered, the sounder course is to remand so that the Government may have an opportunity to sustain its burden of proof and satisfy the constitutional standards we have outlined for maintaining the disclosure requirement. See 28 U.S.C. § 2106.
Conclusion Accordingly, for all the foregoing reasons, subsections 2709(c)
17With the Government having withdrawn its request for the information originally sought by the NSL issued to John Doe, Inc., and our severance ruling having retained the entirety of section 2709, we need not consider the constitutionality of using NSLs to request information.
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and 3511(b) are construed in conformity with this opinion and partially invalidated only to the extent set forth in this opinion, the injunction is modified as set forth in this opinion, and the judgment of the District Court is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
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 Doe v. Gonzales, 546 U.S. 1301 (2005)

127 S.Ct. 1 Supreme Court of the United States
John DOE et al. v.
Alberto R. GONZALES, Attorney General, et al.
No. 05A295. | Oct. 7, 2005.
Synopsis Background: Entity with library records, having received National Security Letter (NSL) from Federal Bureau of Investigation (FBI) demanding disclosure of alleged constitutionally protected information, sued Attorney General, alleging that Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act’s (Patriot Act) prohibition against disclosure of its receipt of NSL amounted to unconstitutional prior restraint. The United States District Court for the District of Connecticut, 386 F.Supp.2d 66, Hall, J., granted entity’s motion for preliminary injunction barring enforcement of challenged provision. The United States Court of Appeals for the Second Circuit granted government’s motion to stay injunction pending expedited appeal. Entity filed emergency application to Circuit Justice to vacate stay order.
Holding: The United States Supreme Court, Justice Ginsburg, sitting as single justice, held that vacatur of stay was unwarranted, given expediting of appeal in Court of Appeals.
Application denied.
Opinion, 546 U.S. 1301, 126 S.Ct. 1, 163 L.Ed.2d 22, superseded.
Opinion
**1 Justice GINSBURG, Circuit Justice.
*1302 This is an emergency application to vacate an order entered by the United States Court of Appeals for the Second Circuit staying a preliminary injunction entered by the United States District Court for the District of Connecticut. The applicants—a member of the American Library Association referred to herein as “John Doe,” the

American Civil Liberties Union, and the American Civil Liberties Union *1303 Foundation—brought suit in district court, alleging that the nondisclosure provision set forth in 18 U.S.C. § 2709(c) violates their First Amendment right to freedom of speech. The District Court granted the applicants’ motion for a preliminary injunction against enforcement of § 2709(c). A panel of the Second Circuit granted the Government’s motion to stay the District Court’s judgment pending an expedited appeal. The same panel denied the applicants’ subsequent motion to vacate the stay in light of changed circumstances. In view of the character of the constitutional issue presented and the expedited schedule ordered by the Court of Appeals, I deny the application and grant the parties’ accompanying motions for leave to file under seal.
Section 2709, as amended by the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (hereinafter **2 Patriot Act), authorizes the Federal Bureau of Investigation (FBI) to “request the name, address, length of service, and local and long distance toll billing records of a person or entity” if the FBI asserts in writing 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) (2000 ed., Supp. II). The provision authorizes the FBI to issue such requests to “electronic communication service providers.” § 2709(a) (2000 ed.). In this case, the FBI requested information under this Section in the form of a “National Security Letter” (NSL). At issue in this case is § 2709(c), which prohibits the recipient of an NSL from disclosing that fact. Ibid. (prohibiting “disclos[ure] to any person that the [FBI] has sought or obtained access to information or records under this section”). The current debate over renewal of the Patriot Act has spawned eight bills, currently pending before the Senate and the House of Representatives, proposing various amendments and revisions to § 2709.
*1304 John Doe received an NSL demanding that it disclose “any and all subscriber information, billing information[,] and access logs of any person or entity” associated with a specified Internet Protocol (IP) address during a specified period. The NSL tracked the language of § 2709 and included the admonition that Doe was not to disclose that the FBI had sought or obtained information from it. Doe brought suit in district court, alleging that the gag imposed by § 2709(c) is an unlawful prior restraint on speech that is causing irreparable harm by preventing Doe’s effective participation in the current debate—both in Congress and among the public—regarding proposed revisions to the Patriot Act.
1

Doe v. Gonzales, 546 U.S. 1301 (2005)
The District Court granted Doe’s motion for a preliminary injunction, holding that Doe demonstrated a substantial likelihood of success on the merits and irreparable harm in the absence of the relief sought. Emergency Application to Vacate Stay, App. B, p. 9 (hereinafter Application). The court determined that, as a “categorical prohibition on the use of any fora for speech, on all topics covered by § 2709(c),” the gag provision is a prior restraint and a content-based restriction on free speech. Id., at 12–13. The District Court therefore concluded that the prohibition on disclosure is permissible only if it satisfies strict scrutiny. Id., at 13. In its strict-scrutiny analysis, the court considered two Government interests the gag provision might serve: the Government’s general interest in national security and its particular interest in conducting effective counterterrorism investigations. Id., at 15. While the District Court acknowledged the Government’s general interest in protecting national security and its expertise in the area of counterterrorism, ibid., that court found “nothing in the record” (which included classified and other sealed ex parte submissions) suggesting that *1305 the Government has a compelling interest in preventing disclosure of Doe’s identity. Id., at 17, and nn. 7–8.
The Government’s argument invoked a “mosaic theory”: Although Doe’s identity “may appear innocuous by itself, it could still be significant to a terrorist organization when combined with other information available to it.” Id., at 18. The District Court acknowledged that federal courts have credited the mosaic concept in the Freedom of Information Act (FOIA) context, but it noted that the instant case is distinguishable in this respect: “Th[e] difference between seeking to obtain information and seeking to disclose information already obtained raises [the plaintiffs’] constitutional interests in this case above **3 the constitutional interests held by a FOIA claimant.” Id., at 19 (quoting McGehee v. Casey, 718 F.2d 1137, 1147 (C.A.D.C.1983)). In any event, the court held, “the defendants’ conclusory statements that the mosaic argument is applicable here, absent supporting facts, would not suffice to support a judicial finding to that effect.” Application, App. B, at 19–20. The District Court noted in this regard that it had asked counsel for the Government at oral argument if he could confirm that there was, in fact, a “mosaic” in this case—i.e., whether there are in fact other pieces of information that, when combined with Doe’s identity, would hinder the investigation. Counsel could not so confirm. Id., at 20.
The District Court did not “question that national security can be a compelling state interest, or that non-disclosure of [an] NSL recipient’s identity could, in some circumstances, serve that interest.” Ibid. It found,

however, that the Government failed to show a compelling interest in preventing disclosure in this case:

“Based on the foregoing, including the sealed portion about Doe, and what Doe is, the nature and extent of *1306 information about the NSL that has already been disclosed by the defendants, and the nature and extent of the information that will not be disclosed, this court concludes that ... the government has not demonstrated a compelling interest in preventing disclosure of the recipient’s identity.” Ibid. (footnote omitted).

The District Court concluded that, “[e]specially in a

situation like the instant one, where the statute provides

no judicial review of the NSL or the need for its

non-disclosure provision, ... the permanent gag provision

... is not narrowly drawn to serve the government’s

broadly claimed compelling interest of keeping

investigations secret.” Id., at 22–23. The court also

appraised § 2709(c) as “overbroad as applied with regard

to the types of information that it encompasses.” Id., at

23. It found § 2709(c)’s ban “particularly noteworthy” in

light of the fact that proponents of the Patriot Act have

“consistently relied on the public’s faith [that the

Government will] apply the statute narrowly....” Id., at 26

(quoting Remarks of Attorney General John Ashcroft,

Protecting Life and Liberty (Memphis, Tenn., Sept. 18,

2003)),

available

at

http://www.usdoj.gov/archive/ag/speeches/2003/091803

memphisremarks.htm (as visited Oct. 7, 2005, and

available in Clerk of Court’s case file) (characterizing as

“hysteria” fears of the Executive’s abuse of the increased

access to library records under the Patriot Act and stating

that “the Department of Justice has neither the staffing,

the time[,] nor the inclination to monitor the reading

habits of Americans. No offense to the American Library

Association, but we just don’t care.”).

Having thus concluded that § 2709(c) fails strict scrutiny, the court granted the applicants’ motion for preliminary injunctive relief, but stayed its ruling until September 20, 2005, to give the Government the opportunity to “file an expedited appeal and submit an application for a stay pending appeal.” Application, App. B, at 29. The Government did just that, and on September 20 the Court of Appeals granted the Government’s motion:

*1307 “Although there is a question as to the likelihood of [the Government’s] success on the merits and some injury to [the applicants] if a stay is granted, the [Government has] demonstrated that [it] will suffer irreparable harm and the public interest [will be] significantly injured if a stay is not granted. The balance of harms tilts in favor of [the Government]. Mohammed v. Reno, 309 F.3d 95, 100 (C.A.2 2002).

2

Doe v. Gonzales, 546 U.S. 1301 (2005)
This appeal **4 is hereby expedited and the following briefing schedule is in effect: [The Government’s] brief shall be filed no later than September 27, 2005; [the applicants’] brief shall be filed no later than October 4, 2005; [the Government’s] reply brief shall be filed no later than October 10, 2005.” Id., App. D.
Shortly after the Court of Appeals entered the stay, the parties learned that, through inadvertence, Doe’s identity had been publicly available for several days on the District Court’s Web site and on PACER, the electronic docket system run by the Administrative Office of the United States Courts. Id., App. F., at 3–5 (decl. of Melissa Goodman). The parties also learned that the media had correctly reported Doe’s identity on at least one occasion. See, e.g., Cowan, Librarians Must Stay Silent in Patriot Act Suit, Court Says, N.Y. Times, Sept. 21, 2005, at B2. The applicants immediately moved to vacate the stay in light of this information. The Court of Appeals denied the motion, “on the ground that the additional circumstances relied upon by [the movants] do not materially alter the balance of harms....” Application, App. E. The applicants then filed the instant emergency application, urging me, in my capacity as Circuit Justice, to vacate the stay and thereby allow Doe to contribute its first-hand account to the ongoing debate regarding proposed revisions to the Patriot Act.
In support of their plea for an immediate order lifting the stay, the applicants stress that Doe seeks only to confirm its identity as the recipient of an NSL. It does not seek to *1308 disclose the content of the NSL, nor does it seek to disclose the date on which it was received. They point out that, in another case bearing the same name involving a facial challenge to § 2709, the Government argued that courts should consider the constitutionality of the gag provision on a case-by-case basis, “granting relief where—but only where—it can be shown that the compelling governmental interest[s] underlying the non-disclosure requirement are not in jeopardy.” Id., App. B, at 18, quoting Defendants–Appellants’ Reply Brief 25, in Gonzales v. Doe, No. 05–0570 (CA2 filed Feb. 3, 2005) (on appeal from Doe v. Ashcroft, 334 F.Supp.2d 471 (S.D.N.Y.2004)). That is precisely what the District Court did here. The applicants underscore this anomaly:
	  

Doe—the only entity in a position to impart a first-hand account of its experience—remains barred from revealing its identity, while others who obtained knowledge of Doe’s identity—when that cat was inadvertently let out of the bag—may speak freely on that subject.
Although the applicants’ arguments are cogent, I have taken into account several countervailing considerations in declining to vacate the stay kept in place by the Second Circuit pending its disposition of the appeal. I am mindful, first, that “interference with an interim order of a court of appeals cannot be justified solely because [a Circuit Justice] disagrees about the harm a party may suffer.” Certain Named and Unnamed Non-Citizen Children v. Texas, 448 U.S. 1327, 1330–1331, 101 S.Ct. 12, 65 L.Ed.2d 1151 (1980) (Powell, J., in chambers). Respect for the assessment of the Court of Appeals is especially warranted when that court is proceeding to adjudication on the merits with due expedition. The principal briefs have been filed and I anticipate that the Court of Appeals will hear argument promptly and render its decision with appropriate care and dispatch.
Also weighing in favor of keeping the stay in effect pending the full airing the Second Circuit has ordered, the District Court held unconstitutional—as applied to **5 the facts of *1309 this case—a provision of an Act of Congress. A decision of that moment warrants cautious review. Further, the Government points out that the redacted version of the complaint, prepared in consultation with the Government, identifies Doe as a member of the American Library Association. “The American Library Association,” the Government footnotes, “lobbies Congress on behalf of its members and is free to note that one of those members has been served with an NSL.”
In sum, the applicants have not shown cause so extraordinary as to justify this Court’s intervention in advance of the expeditious determination of the merits toward which the Second Circuit is swiftly proceeding.
	  

3

 
 11/6/2016

National Security Letter Recipient Can Speak Out For First Time Since FBI Demanded Customer Records From Him
Published on American Civil Liberties Union (https://www.aclu.org)

National Security Letter Recipient Can Speak Out For First Time Since FBI Demanded Customer Records From Him [1]

FBI Partially Lifts Gag Order In ACLU Case
FOR IMMEDIATE RELEASE CONTACT: (212) 549-2666; media@aclu.org [2]
NEW YORK – The FBI has partially lifted a gag it imposed on American Civil Liberties Union client Nicholas Merrill in 2004 that prevented him from disclosing to anyone that he received a national security letter (NSL) demanding private customer records. Merrill, who received the NSL as the president of an Internet service provider (ISP), can now reveal his identity and speak about his experience for the first time since receiving the NSL. The ACLU and New York Civil Liberties Union filed a lawsuit challenging the NSL statute and the gag order on behalf of Merrill (then called John Doe) in April 2004, which resulted in numerous court rulings finding the NSL statute unconstitutional. Merrill was the first person ever to challenge an NSL in court.
"After six long years of not being able to tell anyone at all what happened to me – not even my family – I'm grateful to finally be able to talk about my experience of being served with a national security letter," said Merrill. "Internet users do not give up their privacy rights when they log on, and the FBI should not have the power to secretly demand that ISPs turn over constitutionally protected information about their users without a court order. I hope my successful challenge to the FBI's NSL gag power will empower others who may have received NSLs to speak out."
NSLs are secret record demands the FBI issues to obtain access to personal customer records from ISPs, libraries, financial institutions and credit reporting agencies without court approval or even suspicion of wrongdoing. Because the FBI can gag NSL recipients to prohibit them from disclosing anything about the record demands they receive, the FBI's use and potential abuse of the NSL power has been shrouded in excessive secrecy. While the NSL served on Merrill stated that he was prohibited from telling anyone about it, he decided to challenge the demand in court because he believed that the FBI was ordering him to turn over constitutionally protected information about one of his clients. Because of the FBI-imposed gag, Merrill was prohibited from talking about the NSL or revealing his identity and role in the lawsuit until today, even though the FBI abandoned its demand for records from Merrill more than three years ago.
In December 2008, the Second Circuit Court of Appeals, ruling in Merrill's case, found that some of the NSL statute's gag provisions were unconstitutional because they wrongly placed the burden on NSL recipients to challenge gag orders, narrowly limited judicial review of gag orders and required courts to defer entirely to the executive branch. The appeals court sent the case back to the U.S. District Court for the Southern District of New York and ordered the government to justify the constitutionality of the gag on Merrill. On July 30, the parties reached a settlement in the case. As part of that settlement, the FBI agreed that Merrill could now identify himself as the John Doe NSL recipient.

https://www.aclu.org/print/node/15948

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11/6/2016

National Security Letter Recipient Can Speak Out For First Time Since FBI Demanded Customer Records From Him

"We are thrilled that Nick will finally be able to speak out about why he took the courageous step of challenging the FBI's NSL power. Thanks to Nick's actions, courts have now recognized the need for judicial oversight of the government's dangerous NSL gag power," said Melissa Goodman, staff attorney with the ACLU National Security Project. "But even though this case has resulted in significant improvements to NSL procedures, innocent Americans' private records remain too vulnerable to secret and warrantless data collection by the FBI. At a minimum, the FBI should have to show individual suspicion before it issues an NSL for an individual's personal information and invades Americans' right to privacy and free speech on the Internet."

While misuse and abuse of the NSL power has been widely documented, the Obama administration is now seeking to expand the statute to allow the FBI to demand even more records without court approval. In July, the Obama administration proposed to expand the statute to allow the FBI to get Americans' Internet activity records without court approval or even suspicion of wrongdoing.

In 2009, Congressmen Jerrold Nadler (D-NY) and Jeff Flake (R-AZ) reintroduced the National Security Letters Reform Act, aimed at reigning in abuse of the power. The ACLU has called on Congress to reform the remaining constitutional defects of the NSL gag power and reject Obama proposals to expand the NSL statute.

In addition to Goodman, attorneys on the case are Jameel Jaffer of the national ACLU and Arthur Eisenberg of the NYCLU.

More information about the case is available online at: www.aclu.org/national-security/doe-vholder [3]

© 2015 ACLU

Source URL: https://www.aclu.org/news/national-security-letter-recipient-can-speak-out-first-time-fbi-demandedcustomer-records-him#comment-0
Links [1] https://www.aclu.org/news/national-security-letter-recipient-can-speak-out-first-time-fbi-demanded-customerrecords-him [2] mailto:media@aclu.org [3] https://www.aclu.org/national-security/doe-v-holder

https://www.aclu.org/print/node/15948

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