FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IN RE NATIONAL SECURITY LETTER,

UNDER SEAL,

Petitioner-Appellant,

v.

JEFFERSON B. SESSIONS III, Attorney

General,

Respondent-Appellee.

No. 16-16067

D.C. No.

3:11-cv-02173-SI

IN RE NATIONAL SECURITY LETTER,

UNDER SEAL,

Petitioner-Appellant,

v.

JEFFERSON B. SESSIONS III, Attorney

General,

Respondent-Appellee.

No. 16-16081

D.C. No.

3:13-mc-80089-

SI
2 IN RE NATIONAL SECURITY LETTER

IN RE NATIONAL SECURITY LETTER,

UNDER SEAL,

Petitioner-Appellant,

v.

JEFFERSON B. SESSIONS III, Attorney

General,

Respondent-Appellee.

No. 16-16082

D.C. No.

3:13-cv-01165-SI

OPINION

Appeal from the United States District Court

for the Northern District of California

Susan Illston, District Judge, Presiding

Argued and Submitted March 22, 2017

San Francisco, California

Filed July 17, 2017

Before: Sandra S. Ikuta, N. Randy Smith,

and Mary H. Murguia, Circuit Judges.

Opinion by Judge Ikuta
IN RE NATIONAL SECURITY LETTER 3

SUMMARY*

Civil Rights

The panel affirmed the district court’s orders denying

petitions brought by electronic communication service

providers pursuant to 18 U.S.C. § 3511(a) to set aside

information requests and nondisclosure requirements in

National Security Letters issued to them by the Federal

Bureau of Investigation.

A National Security Letter is an administrative subpoena

issued by the FBI to a wire or electronic communication

service provider requiring the provider to produce specified

subscriber information that is relevant to an authorized

national security investigation. 18 U.S.C. § 2709(a). By

statute, a National Security Letter may include a requirement

that the recipient not disclose the fact that it has received such

a request. In this case, recipients of National Security Letters

alleged that the nondisclosure requirement violates their First

Amendment rights. 

The panel held that § 2709(c)’s nondisclosure

requirement imposes a content-based restriction that is

subject to, and withstands, strict scrutiny. The panel further

held that, assuming the nondisclosure requirement was the

type of prior restraint for which the procedural safeguards set

forth in Freedman v. Maryland, 380 U.S. 51 (1965) were

required, the National Security Letters law provided those

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
4 IN RE NATIONAL SECURITY LETTER

safeguards. The panel concluded that the nondisclosure

requirement does not run afoul of the First Amendment.

COUNSEL

Andrew Crocker (argued), Nathan Cardozo, Lee Tien, Kurt

Opsahl, Jennifer Lynch, David Greene, Cindy Cohn, and

Aaron Mackey, Electronic Frontier Foundation, San

Francisco, California; Richard Wiebe, Law Office of Richard

R. Wiebe, San Francisco, California; for PetitionerAppellants.

Lewis S. Yelin (argued), Scott R. McIntosh, and Douglas N.

Letter,Appellate Staff; Brian Stretch, United States Attorney;

Benjamin C. Mizer, Principal Deputy Assistant Attorney

General; Civil Division, United States Department of Justice,

Washington, D.C.; for Respondent-Appellee.

OPINION

IKUTA, Circuit Judge:

In this case, we consider challenges to the

constitutionality of the law authorizing the Federal Bureau of

Investigation (FBI) to prevent a recipient of a national

security letter (NSL) from disclosing the fact that it has

received such a request. 18 U.S.C. § 2709(c). An NSL is an

administrative subpoena issued by the FBI to a wire or

electronic communication service provider which requires the

provider to produce specified subscriber information that is

relevant to an authorized national security investigation. Id.

§ 2709(a). By statute, the NSL may include a requirement
IN RE NATIONAL SECURITY LETTER 5

that the recipient not “disclose to any person that the Federal

Bureau of Investigation has sought or obtained access to

information or records” under the NSL law. Id.

§ 2709(c)(1)(A). Both the information request and the

nondisclosure requirement are subject to judicial review. See

id. § 3511. (Because § 2709 and § 3511 work together, we

refer to them collectively as “the NSL law.”)

Certain recipients of these NSLs claim that the

nondisclosure requirement violates their First Amendment

rights. We hold that the nondisclosure requirement in

18 U.S.C. § 2709(c) is a content-based restriction on speech

that is subject to strict scrutiny, and that the nondisclosure

requirement withstands such scrutiny. Accordingly, we

affirm.

I

We begin by reviewing the statutory framework under

which NSLs are issued. The law authorizing the FBI to send

an information request to a wire or electronic communication

service provider was originally enacted as part of the

Electronic Communications Privacy Act of 1986. Pub. L.

No. 99-508, § 201, 100 Stat. 1848, 1867. The law was

extensively amended in 2006, as part of the USA Patriot

Improvement and Reauthorization Act of 2005. Pub. L. No.

109-177, §§ 115, 116(a), 120 Stat. 192, 211–17 (2006). The

letters received by the recipients here were issued under the

2006 version of the NSL law. Subsequently, Congress

enacted the USA FREEDOM Act of 2015, Pub. L. No. 114-
6 IN RE NATIONAL SECURITY LETTER

23, 129 Stat. 268, which further amended the NSL law

effective June 2, 2015.1

The NSL law is best understood as a form of

administrative subpoena. Congress may authorize federal

agencies to issue administrative subpoenas without court

authorization for any purpose within Congress’s

constitutional power. See Okla. Press Publ’g Co. v. Walling,

327 U.S. 186, 208–09 (1946); see also ICC v. Brimson,

154 U.S. 448, 472–73 (1894), overruled on other grounds by

Bloom v. Illinois, 391 U.S. 194, 198–200 (1968). But while

an agency may issue a subpoena without prior judicial

approval, it must invoke the aid of a federal court to enforce

it. See, e.g., United States v. Sec. State Bank & Trust,

473 F.2d 638, 641–42 (5th Cir. 1973); see also Shasta

Minerals & Chem. Co. v. SEC, 328 F.2d 285, 286 (10th Cir.

1964). The “power to punish is not generally available to

federal administrative agencies,” and so enforcement must be

sought “by way of a separate judicial proceeding.” Shasta

Minerals, 328 F.2d at 286.

Sections 2709 and 3511 follow the statutory framework

typically used to authorize administrative subpoenas. 

Compare 18 U.S.C. §§ 2709, 3511, with, e.g., 21 U.S.C.

§ 876(a). Section 2709 authorizes the FBI to make an

information request to “[a] wire or electronic communication

service provider” for “subscriber information and toll billing

records information, or electronic communication

transactional records in its custody or possession,” and

1 Where necessary to differentiate between the 2006 and 2015

versions of the NSL law, we refer to the former as the “2006 NSL law”

and the latter as the “2015 NSL law.” Unless otherwise noted, a reference

to 18 U.S.C. § 2709 or 18 U.S.C. § 3511 refers to the 2015 NSL law.
IN RE NATIONAL SECURITY LETTER 7

provides that the recipient “shall comply” with the request. 

18 U.S.C. § 2709(a).2In order to issue such a request, the

FBI Director or a sufficiently high-ranking designee of the

Director must “specifically identif[y] a person, entity,

telephone number, or account as the basis for a request,” and

must certify that the “records sought are relevant to an

authorized investigation to protect against international

terrorism or clandestine intelligence activities” and that the

investigation “is not conducted solely on the basis of

activities protected by the first amendment to the Constitution

of the United States.” Id. § 2709(b)(1)–(2).3 The NSL must

2

 18 U.S.C. § 2709(a) provides:

Duty to Provide. — A wire or electronic

communication service provider shall comply with a

request for subscriber information and toll billing

records information, or electronic communication

transactional records in its custody or possession made

by the Director of the Federal Bureau of Investigation

under subsection (b) of this section.

3

 18 U.S.C. § 2709(b) provides:

Required Certification. — The Director of the Federal

Bureau of Investigation, or his designee in a position

not lower than Deputy Assistant Director at Bureau

headquarters or a Special Agent in Charge in a Bureau

field office designated by the Director, may, using a

term that specifically identifies a person, entity,

telephone number, or account as the basis for a request

—

(1) request the name, address, length of service, and

local and long distance toll billing records of a person

or entity if the Director (or his designee) certifies in

writing to the wire or electronic communication service

provider to which the request is made that the name,
8 IN RE NATIONAL SECURITY LETTER

include notice of the availability of judicial review under 18

U.S.C. § 3511. Id. § 2709(d).

The NSL law contemplates that in some cases, a

recipient’s disclosure of the fact that it has received an FBI

request for specific information may result in one of four

enumerated harms: “(i) a danger to the national security of

the United States; (ii) interference with a criminal,

counterterrorism, or counterintelligence investigation; (iii)

interference with diplomatic relations; or (iv) danger to the

life or physical safety of any person.” Id. § 2709(c)(1)(B).4

address, length of service, and toll billing records

sought are relevant to an authorized investigation to

protect against international terrorism or clandestine

intelligence activities, provided that such an

investigation of a United States person is not conducted

solely on the basis of activities protected by the first

amendment to the Constitution of the United States; and

(2) request the name, address, and length of service of

a person or entity if the Director (or his designee)

certifies in writing to the wire or electronic

communication service provider to which the request is

made that the information sought is relevant to an

authorized investigation to protect against international

terrorismor clandestine intelligence activities, provided

that such an investigation of a United States person is

not conducted solely upon the basis of activities

protected by the first amendment to the Constitution of

the United States.

4

 18 U.S.C. § 2709(c)(1)(B) provides:

Certification. — The requirements of subparagraph (A)

shall apply if the Director of the Federal Bureau of

Investigation, or a designee of the Director whose rank

shall be no lower than Deputy Assistant Director at
IN RE NATIONAL SECURITY LETTER 9

If the FBI Director or a sufficiently high-ranking designee of

the Director issues a certification “that the absence of a

prohibition of disclosure under this subsection may result” in

one of these harms, id., and the government gives the

recipient notice of the availability of judicial review pursuant

to § 3511, see id. § 2709(d)(2), the government may prohibit

the recipient from disclosing that it has received the NSL, see

id. § 2709(c)(1)(A),5 subject to such judicial review.

Bureau headquarters or a Special Agent in Charge of a

Bureau field office, certifies that the absence of a

prohibition of disclosure under this subsection may

result in —

(i) a danger to the national security of the United States;

(ii) interference with a criminal, counterterrorism, or

counterintelligence investigation;

(iii) interference with diplomatic relations; or

(iv) danger to the life or physical safety of any person.

5

 18 U.S.C. § 2709(c)(1)(A) provides:

In general. — If a certification is issued under

subparagraph (B) and notice of the right to judicial

review under subsection (d) is provided, no wire or

electronic communication service provider thatreceives

a request under subsection (b), or officer, employee, or

agent thereof, shall disclose to any person that the

Federal Bureau of Investigation has sought or obtained

access to information or records under this section.
10 IN RE NATIONAL SECURITY LETTER

There are three statutory exceptions to the nondisclosure

requirement. See id. § 2709(c)(2).6 First, a recipient “may

6

 18 U.S.C. § 2709(c)(2) provides:

(A) In general. — A wire or electronic communication

service provider that receives a request under

subsection (b), or officer, employee, or agent thereof,

may disclose information otherwise subject to any

applicable nondisclosure requirement to —

(i) those persons to whom disclosure is necessary in

order to comply with the request;

(ii) an attorney in order to obtain legal advice or

assistance regarding the request; or

(iii) other persons as permitted by the Director of the

Federal Bureau of Investigation or the designee of the

Director.

(B) Application. — A person to whom disclosure is

made under subparagraph (A) shall be subject to the

nondisclosure requirements applicable to a person to

whom a request is issued under subsection (b) in the

same manner as the person to whom the request is

issued.

(C) Notice. — Any recipient that discloses to a person

described in subparagraph (A) information otherwise

subject to a nondisclosure requirement shall notify the

person of the applicable nondisclosure requirement.

(D) Identification of disclosure recipients. — At the

request of the Director of the Federal Bureau of

Investigation or the designee of the Director, any

person making or intending to make a disclosure under

clause (i) or (iii) of subparagraph (A) shall identify to

the Director or such designee the person to whom such
IN RE NATIONAL SECURITY LETTER 11

disclose information otherwise subject to any applicable

nondisclosure requirement” to “those persons to whom

disclosure is necessary in order to comply with the request.” 

Id. § 2709(c)(2)(A)(i). Second, the recipient may disclose

such information to “an attorney in order to obtain legal

advice or assistance regarding the request.” Id.

§ 2709(c)(2)(A)(ii). Third, if the recipient wants to provide

the information to other individuals, it may do so if it obtains

the permission of the FBI Director or the designee of the

Director. Id. § 2709(c)(2)(A)(iii). The recipient must also

inform those persons receiving the information that they are

subject to the same nondisclosure requirement applicable to

the initial recipient, id. § 2709(c)(2)(C).

As is typical in the administrative subpoena context,

§ 2709 does not contain any penalty provision either for

failure to comply with the information request or for failure

to comply with the nondisclosure requirement. Only a court

has authority to enforce the information request or the

nondisclosure requirement. See id. § 3511. If a recipient fails

to comply with an information request, the government “may

invoke the aid” of a district court “to compel compliance with

the request.” Id. § 3511(c).7 The court may “issue an order

disclosure will be made or to whom such disclosure

was made prior to the request.

7

 18 U.S.C. § 3511(c) provides:

In the case of a failure to comply with a request for

records, a report, or other information made to any

person or entity under section 2709(b) of this title,

section 626(a) or (b) or 627(a) of the Fair Credit

Reporting Act, section 1114(a)(5)(A) of the Right to

Financial Privacy Act, or section 802(a) of the National
12 IN RE NATIONAL SECURITY LETTER

requiring the person or entity to comply with the request,”

and “[a]ny failure to obey the order of the court may be

punished by the court as contempt thereof.” Id.

Alternatively, the recipient of an NSL may petition the

district court “for an order modifying or setting aside the

request,” and the district court may do so “if compliance

would be unreasonable, oppressive, or otherwise unlawful.” 

Id. § 3511(a).8

Whenever a nondisclosure requirement under § 2709(c)

is imposed on a recipient, the recipient may challenge the

requirement in one of two ways. First, the recipient may “file

a petition for judicial review in any court described in

Security Act of 1947, the Attorney General may invoke

the aid of any district court of the United States within

the jurisdiction in which the investigation is carried on

or the person or entity resides, carries on business, or

may be found, to compel compliance with the request. 

The court may issue an order requiring the person or

entity to comply with the request. Any failure to obey

the order of the court may be punished by the court as

contempt thereof. Any process under this section may

be served in any judicial district in which the person or

entity may be found.

8

 18 U.S.C. § 3511(a) provides, in relevant part:

The recipient of a request for records, a report, or other

information under section 2709(b) of this title . . . may,

in the United States district court for the district in

which that person or entity does business or resides,

petition for an order modifying or setting aside the

request. The court may modify or set aside the request

if compliance would be unreasonable, oppressive, or

otherwise unlawful.
IN RE NATIONAL SECURITY LETTER 13

[§ 3511(a)].” Id. § 3511(b)(1)(A).9 Second, the recipient

“may notify the Government” that it desires judicial review,

id., in which case “[n]ot later than 30 days after the date of

receipt of a notification [from the recipient], the Government

shall apply [to the district court] for an order prohibiting”

disclosure, id. § 3511(b)(1)(B). The government’s

application for a nondisclosure order (or for an extension of

9

 18 U.S.C. § 3511(b)(1) provides:

(A) Notice. — If a recipient of a request or order for a

report, records, or other information under section 2709

of this title . . . wishes to have a court review a

nondisclosure requirement imposed in connection with

the request or order, the recipient may notify the

Government or file a petition for judicial review in any

court described in subsection (a).

(B) Application. — Not later than 30 days after the date

of receipt of a notification under subparagraph (A), the

Government shall apply for an order prohibiting the

disclosure of the existence or contents of the relevant

request or order. An application under this

subparagraph may be filed in the district court of the

United States for the judicial district in which the

recipient of the order is doing business or in the district

court of the United States for any judicial district within

which the authorized investigation that is the basis for

the request is being conducted. The applicable

nondisclosure requirement shall remain in effect during

the pendency of proceedings relating to the

requirement.

(C) Consideration. — A district court of the United

States that receives a petition under subparagraph (A)

or an application under subparagraph (B) should rule

expeditiously, and shall, subject to paragraph (3), issue

a nondisclosure order that includes conditions

appropriate to the circumstances.
14 IN RE NATIONAL SECURITY LETTER

such an order), must include a certification from the FBI

Director or a sufficiently high-ranking designee “containing

a statement of specific facts indicating that the absence of a

prohibition of disclosure under [§ 3511(b)] may result in” one

of the four harms enumerated in § 2709(c)(1)(B). Id.

§ 3511(b)(2).10 The nondisclosure requirement remains in

effect while the district court considers the recipient’s

challenge or the government’s application for a nondisclosure

order. Id. § 3511(b)(1)(B).

A court receiving a recipient’s petition for judicial review

of a nondisclosure requirement or the government’s

10 18 U.S.C. § 3511(b)(2) provides:

An application for a nondisclosure order or extension

thereof or a response to a petition filed under paragraph

(1) shall include a certification from the Attorney

General, Deputy Attorney General, an Assistant

Attorney General, or the Director of the Federal Bureau

of Investigation, or a designee in a position not lower

than Deputy Assistant Director at Bureau headquarters

or a Special Agent in Charge in a Bureau field office

designated by the Director, or in the case of a request

by a department, agency, or instrumentality of the

Federal Government other than the Department of

Justice, the head or deputy head of the department,

agency, or instrumentality, containing a statement of

specific facts indicating that the absence of a

prohibition of disclosure under this subsection may

result in [the four harms enumerated in 18 U.S.C.

§ 2709(c)(1)(B)].

Under the 2006 NSL law, the government was not required to provide a

statement of specific facts supporting its certification. Rather, “such

certification shall be treated as conclusive unless the court finds that the

certification was made in bad faith.” 18 U.S.C. § 3511(b)(2) (2006).
IN RE NATIONAL SECURITY LETTER 15

application for a nondisclosure order “should rule

expeditiously.” Id. § 3511(b)(1)(C). The court “shall issue

a nondisclosure order or extension thereof . . . if the court

determines that there is [good] reason to believe that

disclosure of the information subject to the nondisclosure

requirement during the applicable time period may result in”

one of the four enumerated harms. Id. § 3511(b)(3).11

In

making this determination, “the court shall, upon request of

the government, review ex parte and in camera any

government submission or portions thereof, which may

include classified information.” Id. § 3511(e). Any

nondisclosure order issued by a reviewing court should

“include[] conditions appropriate to the circumstances.” Id.

§ 3511(b)(1)(C).

In amending the NSL law in 2015, Congress also required

the Attorney General to promulgate procedures for

periodically reviewing and terminating any nondisclosure

requirements issued in connection with an NSL. Pub. L. No.

114-23, Title V, § 502(f), 129 Stat. at 288 (codified at

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

11 18 U.S.C. § 3511(b)(3) provides:

A district court of the United States shall issue a

nondisclosure order or extension thereof under this

subsection if the court determines that there is reason to

believe that disclosure of the information subject to the

nondisclosure requirement during the applicable time

period may result in [the four harms enumerated in

18 U.S.C. § 2709(c)(1)(B)].

The Second Circuit in John Doe, Inc. v. Mukasey adopted the

“common-sense understanding” that “reason” in the 2006 NSL law means

“good reason.” 549 F.3d 861, 875 (2d Cir. 2008). We also adopt this

understanding.
16 IN RE NATIONAL SECURITY LETTER

procedures in November 2015. See Termination Procedures

for National Security Letter Nondisclosure Requirement, Fed.

Bureau of Investigation (Nov. 24, 2015),

https://www.fbi.gov/file-repository/nsl-ndp-procedures.pdf

(hereinafter “Termination Procedures”). Under these

procedures, any nondisclosure requirement must terminate

when the underlying investigation is closed or “on the threeyear anniversary of the initiation” of the investigation, unless

“the FBI makes a determination that one of the existing

statutory standards for nondisclosure is satisfied.” Once the

FBI has determined that nondisclosure is no longer required,

it must provide written notice to the recipient to that effect. 

If the FBI does not terminate the nondisclosure requirement

at either of these occasions, the recipient retains the right to

challenge the requirement in district court. 18 U.S.C.

§ 3511(a).

The 2015 legislation amending the NSL law also added

50 U.S.C. § 1874, which allows “[a] person subject to a

nondisclosure requirement” to disclose aggregate data

regarding the number of NSLs (in specified ranges or

“bands”) that the person has received. Pub. L. No. 114-23,

Title VI, § 603(a), 129 Stat. at 295–96 (codified at 50 U.S.C.

§ 1874(a)(1)–(4)). For instance, a person may report

receiving 0 to 99, 0 to 249, 0 to 499, or 0 to 999

nondisclosure requirements. A person who chooses to report

receiving 0 to 99 nondisclosure requirements may make such

a disclosure on an annual basis, while a person who chooses

to report receipt of a larger range of NSLs may report

semiannually. See 50 U.S.C. § 1874(a)(1)–(4).
IN RE NATIONAL SECURITY LETTER 17

II

We next turn to the facts of these consolidated appeals,

which involve five NSLs issued to two recipients between

2011 and 2013 (while the 2006 NSL law remained in effect). 

Each NSL at issue contained an information request and a

nondisclosure requirement, and informed the recipient that it

could seek judicial review of the nondisclosure requirement

by notifying the FBI and that the FBI would accordingly

initiate judicial review within 30 days.

The first recipient, CREDO Mobile, received three of the

NSLs at issue, the first in 2011 and two more in 2013. The

second recipient, CloudFlare, received the other two NSLs,

both in 2012. Following receipt, CREDO and CloudFlare

petitioned the district court to set aside the information

requests and nondisclosure requirements contained in each

NSL. Each recipient also sought to enjoin the government

from issuing additional NSLs and from imposing additional

nondisclosure requirements. In response, the government

cross-moved in each case to compel compliance with the

NSLs.

In considering the 2011 NSL issued to CREDO, the

district court held that the nondisclosure and judicial review

provisions in the 2006 NSL law violated the First

Amendment and that these provisions were not severable

from the remainder of the statute, and accordingly enjoined

the government from issuing information requests and from

enforcing nondisclosure requirements. See In re Nat’l Sec.

Letter, 930 F. Supp. 2d 1064, 1081 (N.D. Cal. 2013). The

district court stayed its decision pending the resolution of the

government’s appeal.
18 IN RE NATIONAL SECURITY LETTER

Notwithstanding its conclusion that the 2006 NSL law

was constitutionally deficient, the district court denied the

petitions to set aside the information requests and

nondisclosure requirements in the 2013 NSLs issued to

CREDO and the 2012 NSLs issued to CloudFlare. The

district court reasoned that those NSLs were issued in full

compliance with the procedural and substantive requirements

suggested by the Second Circuit in John Doe, Inc. v.

Mukasey, 549 F.3d 861 (2d Cir. 2008), which had held that

the 2006 NSL law could be constitutionally applied if certain

additional safeguards were provided. CREDO and

CloudFlare appealed.

While we considered these appeals, Congress enacted the

USA FREEDOM Act, effective June 2, 2015. Recognizing

the extensive changes to the NSL law made by this

enactment, we vacated the district court’s judgments and

remanded to allow the district court to consider in the first

instance the constitutionality of the 2015 NSL law.

On remand, CREDO and CloudFlare submitted renewed

petitions under § 3511(a) to set aside the information requests

and nondisclosure requirements contained in each NSL and

the government cross-petitioned to enforce both components

of the NSLs. This time, the district court held that the NSL

law, as amended, was constitutional. It also determined that

the government had carried its burden of showing that there

was good reason to believe that disclosure of the 2011 NSL

to CREDO and of the 2012 NSLs to CloudFlare might result

in one of the four enumerated harms. Accordingly, it granted

the government’s cross-petitions to enforce those three NSLs

in their entirety. However, with respect to the 2013 NSLs to

CREDO, the district court held that the government’s

certification that one of the four enumerated harms would
IN RE NATIONAL SECURITY LETTER 19

result absent nondisclosure was insufficient. Accordingly, it

granted CREDO’s petition to set aside the nondisclosure

requirement in the 2013 NSLs.

CREDO and CloudFlare appealed the denial of their

petitions to set aside the information requests and

nondisclosure requirements in the 2011 and 2012 NSLs. The

government cross-appealed the district court’s decision to set

aside the nondisclosure requirements in the 2013 NSLs to

CREDO, but has since voluntarily dismissed its crossappeal.12

While this appeal was pending, the FBI closed the

investigation underlying the 2011 NSL to CREDO. 

Following the Termination Procedures adopted as required by

the 2015 amendments, the FBI determined that continued

nondisclosure was no longer necessary and so notified

CREDO in writing. According to the FBI’s letter to CREDO,

CREDO may now disclose “[t]he fact that [CREDO] received

the NSL on a certain date” and “[w]hether or not [CREDO]

provided responsive information to the FBI pursuant to the

NSL.” However, “the nondisclosure requirement remains in

place for any information regarding the customer account(s)

for which information was sought, as well as any other

information that could be used to identify the subscriber(s)

for the customer account(s).”13

12The 2013 NSLs’ nondisclosure requirements are therefore no longer

at issue, and CREDO raises no argument on appeal challenging the

information requests contained in the 2013 NSLs.

13 The nondisclosure requirement also remains in place for the name

and contact information of the FBI Special Agent identified in the NSL.
20 IN RE NATIONAL SECURITY LETTER

The FBI also closed the investigation underlying one of

the 2012 NSLs issued to CloudFlare. Following the

Termination Procedures, the FBI determined that continued

nondisclosure was no longer necessary and provided

CloudFlare written notice to that effect. According to the

FBI’s letter to CloudFlare, CloudFlare may now disclose the

“[t]he fact that [CloudFlare] received the NSL on a certain

date”; “[t]he customer account(s) for which information was

sought”; and “[w]hether or not [CloudFlare] provided

responsive information to the FBI pursuant to the NSL.”14

The nondisclosure requirement contained in the second 2012

NSL to CloudFlare remains in full effect.15

In sum, CREDO is now subject to a nondisclosure

requirement “for any information regarding the customer

account(s) for which information was sought, as well as any

other information that could be used to identify the

subscriber(s) for the customer account(s)” under the 2011

NSL. CloudFlare is subject to a nondisclosure requirement

only as to one of the 2012 NSLs.16

14 As with the 2011 NSL to CREDO, the nondisclosure requirement

remains in place for the name and contact information of the FBI Special

Agent identified in the first 2012 NSL to CloudFlare.

15 Because CloudFlare identified itself not only as the recipient of one

of the 2012 NSLs but also as challenging two NSLs before us, the FBI

determined that CloudFlare may be publicly identified.

16 On appeal, CREDO and CloudFlare raise the same arguments. 

Therefore, we refer to the appellants together as the “recipients.”
IN RE NATIONAL SECURITY LETTER 21

III

We begin our constitutional analysis by analyzing

whether this appeal raises a facial challenge or an as-applied

challenge to the NSL law. “A facial challenge is an attack on

a statute itself as opposed to a particular application.” City of

Los Angeles v. Patel, 135 S. Ct. 2443, 2449 (2015). By

contrast, “[a]n as-applied challenge contends that the law is

unconstitutional as applied to the litigant’s particular speech

activity, even though the law may be capable of valid

application to others.” Foti v. City of Menlo Park, 146 F.3d

629, 635 (9th Cir. 1998). The recipients assert that the

nondisclosure requirement of § 2709(c) prevents them from

speaking about matters of public policy and engaging in the

political process, but do not argue that the NSL law can never

be constitutionally applied in any context. Accordingly, we

analyze the recipients’ challenge as a facial challenge. Cf.

Members of the City Council v. Taxpayers for Vincent,

466 U.S. 789, 802–03 (1984) (concluding that the plaintiff’s

challenge to an ordinance was an as-applied challenge

because the plaintiffs acknowledged that the statute could be

validly applied in other cases).

“[C]onstitutional questions of fact (such as whether

certain restrictions create a ‘severe burden’ on an individual’s

First Amendment rights) are reviewed de novo.” Prete v.

Bradbury, 438 F.3d 949, 960 (9th Cir. 2006) (emphasis

omitted). We also review legal conclusions de novo. Id.

IV

The First Amendment provides that “Congress shall make

no law . . . abridging the freedom of speech, or of the press.” 

U.S. Const. amend. I. Despite the breadth of this language,
22 IN RE NATIONAL SECURITY LETTER

the Supreme Court has concluded that some restrictions on

speech are constitutional, provided they survive the

appropriate level of scrutiny. When the government restricts

speech based on its content, a court will subject the restriction

to strict scrutiny. See Reed v. Town of Gilbert, 135 S. Ct.

2218, 2226 (2015); United States v. Playboy Entm’t Grp.,

Inc., 529 U.S. 803, 813 (2000). Under strict scrutiny,

restrictions “may be justified only if the government proves

that they are narrowly tailored to serve compelling state

interests.” Reed, 135 S. Ct. at 2226. If the governmental

restriction on speech is content neutral, a court will uphold it

if it furthers “an important or substantial governmental

interest unrelated to the suppression of free speech, provided

the incidental restrictions did not burden substantially more

speech than is necessary to further those interests.” Turner

Broad. Sys., Inc. v. FCC, 520 U.S. 180, 186 (1997) (internal

quotation marks omitted).17

Even if the government has constitutional authority to

impose a particular content-based restriction on speech, the

government does not have unfettered freedom to implement

such a restriction through “a system of prior administrative

restraints.” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70

(1963); see also id. at 66 (“[A] State is not free to adopt

whatever procedures it pleases for dealing with obscenity . . .

without regard to the possible consequences for

constitutionally protected speech.” (quoting Marcus v. Search

Warrants, 367 U.S. 717, 730–31 (1961))). Rather, “a law

17 The government may also restrict the time, place, and manner of

speech so long as it does not discriminate based on content and meets

certain other criteria. See Consol. Edison Co. of N.Y., Inc. v. Pub. Serv.

Comm’n, 447 U.S. 530, 536 (1980). This form of restriction is not at issue

here.
IN RE NATIONAL SECURITY LETTER 23

subjecting the exercise of First Amendment freedoms to the

prior restraint of a license” or other burden must itself pass

constitutional muster. Shuttlesworth v. City of Birmingham,

394 U.S. 147, 150–51 (1969). A system that gives public

officials authority to regulate or prohibit an individual’s

exercise of First Amendment rights based on the content of

the individual’s speech must have “narrow, objective, and

definite standards to guide the licensing authority,” id. at 151,

and must have the “procedural safeguards that reduce the

danger of suppressing constitutionally protected speech,” Se.

Promotions, Ltd. v. Conrad, 420 U.S. 546, 559 (1975). These

procedural safeguards are as follows: “(1) any restraint prior

to judicial review can be imposed only for a specified brief

period during which the status quo must be maintained;

(2) expeditious judicial review of that decision must be

available; and (3) the censor must bear the burden of going to

court to suppress the speech and must bear the burden of

proof once in court.” Thomas v. Chi. Park Dist., 534 U.S.

316, 321 (2002) (quoting FW/PBS v. City of Dallas, 493 U.S.

215, 227 (1990) (principal opinion of O’Connor, J.), and

citing Freedman v. Maryland, 380 U.S. 51, 58–60 (1965)). 

The procedural requirements for systems imposing contentbased restraints do not apply, however, to “a content-neutral

permit scheme regulating speech in a public forum.” Id. at

322.

Accordingly, our analysis of § 2709(c)’s nondisclosure

requirement proceeds in three steps. We must first determine

whether the nondisclosure requirement is content based or

content neutral. If the nondisclosure requirement is content

based, we then consider whether it survives strict scrutiny. 

Finally, we must determine whether the nondisclosure

requirement constitutes the type of restraint for which the
24 IN RE NATIONAL SECURITY LETTER

procedural safeguards are required and, if so, whether it

provides those safeguards.

A

We turn first to the question whether the nondisclosure

requirement in § 2709(c) is content based or content neutral. 

A government’s restriction on “speech is content based if a

law applies to particular speech because of the topic

discussed or the idea or message expressed.” Reed, 135 S.

Ct. at 2227. The first step in determining whether speech is

content based is “to consider whether a regulation of speech

‘on its face’ draws distinctions based on the message a

speaker conveys.” Id. (quoting Sorrell v. IMS Health, Inc.,

564 U.S. 552, 566 (2011)). Regulations draw such a

distinction if they “target speech based on its communicative

content,” id. at 2226, prohibit “public discussion of an entire

topic,” id. at 2230 (quoting Consol. Edison Co. of N.Y. v. Pub.

Serv. Comm’n of N.Y., 447 U.S. 530, 537 (1980)), or “single[]

out specific subject matter for differential treatment,” id.

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

topic, idea, message, or content is “content based” on its face,

and is accordingly subject to strict scrutiny. If a court

determines that the law is content based at this first step, the

court need not “consider the government’s justifications or

purposes” for enacting the regulation. Id. at 2227. “A law

that is content based on its face is subject to strict scrutiny

regardless of the government’s benign motive, contentneutral justification, or lack of animus toward the ideas

contained in the regulated speech.” Id. at 2228 (internal

quotation marks omitted). Only if a law is content neutral on

its face should a court proceed to consider whether it is

nevertheless a content-based regulation of speech because it
IN RE NATIONAL SECURITY LETTER 25

“cannot be justified without reference to the content of the

regulated speech, or [was] adopted by the government

because of disagreement with the message [the speech]

conveys.” Id. at 2227 (second alteration in original) (quoting

Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989))

(internal quotation marks omitted).

Applying this framework here, the nondisclosure

requirement in § 2709(c) is content based on its face. By its

terms, the nondisclosure requirement prohibits speech about

one specific issue: the recipient may not “disclose to any

person that the Federal Bureau of Investigation has sought or

obtained access to information or records” by means of an

NSL. See 18 U.S.C. § 2709(c). Such a restriction “target[s]

speech based on its communicative content,” and restricts

speech based on its “function or purpose.” Reed, 135 S. Ct.

at 2226–27. Given this conclusion, we need not proceed to

the second step of the analysis, to determine whether the

statute stifles views with which the government disagrees, see

Ward, 491 U.S. at 791, or distinguishes among views about

NSLs in deciding which speech is prohibited, see Turner

Broad. Sys., Inc. v. FCC, 512 U.S. 622, 643 (1994). We

conclude that the nondisclosure requirement is a contentbased restriction.

B

Because we have determined that the restriction imposed

by the nondisclosure requirement is content based, we turn to

the Supreme Court’s strict scrutiny test for content-based

restrictions on speech and ask whether the nondisclosure

requirement permitted by § 2709(c) is narrowly tailored to

serve a compelling state interest. Reed, 135 S. Ct. at 2226.
26 IN RE NATIONAL SECURITY LETTER

As a threshold matter, we readily conclude that national

security is a compelling government interest. Indeed, the

Court has recognized that “[e]veryone agrees that the

Government’s interest in combating terrorism is an urgent

objective of the highest order.” Holder v. Humanitarian Law

Project, 561 U.S. 1, 28 (2010). “It is ‘obvious and

unarguable’ that no governmental interest is more compelling

than the security of the Nation.” Haig v. Agee, 453 U.S. 280,

307 (1981) (quoting Aptheker v. Sec’y of State, 378 U.S. 500,

509 (1964)). By the same token, keeping sensitive

information confidential in order to protect national security

is a compelling government interest. See Dep’t of the Navy

v. Egan, 484 U.S. 518, 527 (1988) (recognizing “the

Government’s compelling interest in withholding national

security information from unauthorized persons in the course

of executive business” (internal quotation marks omitted));

Snepp v. United States, 444 U.S. 507, 509 n.3 (1980) (“The

Government has a compelling interest in protecting both the

secrecy of information important to our national security and

the appearance of confidentiality so essential to the effective

operation of our foreign intelligence service.”). Here, the

recipients do not dispute that the nondisclosure requirement

directly serves the compelling state interest of national

security: a nondisclosure requirement may be imposed only

if one of the four enumerated harms “may result” absent

nondisclosure. 18 U.S.C. § 2709(c)(1)(B).

We therefore turn to the question whether the

nondisclosure requirement in § 2709(c) is narrowly tailored. 

A restriction is not narrowly tailored “if less restrictive

alternatives would be at least as effective in achieving the

legitimate purpose that the statute was enacted to serve.” 

Reno v. Am. Civil Liberties Union, 521 U.S. 844, 874 (1997). 

Nevertheless, strict scrutiny requires that a content-based
IN RE NATIONAL SECURITY LETTER 27

restriction “be narrowly tailored, not that it be ‘perfectly

tailored.’” Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656, 1671

(2015) (quoting Burson v. Freeman, 504 U.S. 191, 209

(1992)). Accordingly, a reviewing court should “decline to

wade into th[e] swamp” of calibrating the individual

mechanisms of a restriction. Id. Ultimately, the Supreme

Court has emphasized that strict scrutiny is not “fatal in fact.” 

Id. at 1666 (quoting Adarand Constructors, Inc. v. Pena,

515 U.S. 200, 237 (1995)).

The recipients argue that the 2015 NSL law is not

narrowly tailored for two reasons. First, they claim it is

overinclusive because it prevents disclosure of the bare fact

of receiving the NSL as well as disclosure of the NSL’s

content. Second, they claim it is not the least restrictive

alternative because it allows the government to prohibit

disclosure indefinitely. Because the recipients claim that the

NSL law constitutes a system of prior restraints, they also

argue that the statute fails to provide the government with

“narrow, objective, and definite standards” to guide its

decision to prohibit disclosure. Shuttlesworth, 394 U.S. at

150–51. We consider each argument in turn.

1

The recipients contend that the NSL law is not narrowly

tailored because, as they interpret the NSL law, it prevents

disclosures that are not harmful to national security and

therefore does not further the government’s compelling

interest. Specifically, the recipients argue that a recipient

who has millions of customers could disclose the receipt of a

single NSL without impeding national security interests. 

Second, the recipients argue that 18 U.S.C.

§ 2709(c)(2)(A)(iii), authorizing the FBI director or a
28 IN RE NATIONAL SECURITY LETTER

designee to permit a recipient to make disclosures to

additional persons, is an insufficient remedy for

overinclusiveness because it gives the FBI total discretion to

determine who may receive disclosures and does not require

the FBI to engage in any consideration of a narrower

nondisclosure requirement. Further, they argue that the

judicial review provisions are insufficient to render the

nondisclosure requirement narrowly tailored because,

according to the recipients, a court’s subsequent narrowing of

the nondisclosure requirement is irrelevant to the narrow

tailoring analysis.18 Finally, they argue that 50 U.S.C.

§ 1874, allowing for disclosure of aggregate data in various

ranges, does not remedy the overinclusiveness of the

nondisclosure requirement, because it arbitrarily

differentiates between recipients who receive fewer than 500

NSLs (who must include “0” in the lowest reporting band)

from recipients who receive more than 500 NSLs. As a

result, the recipients argue, recipients who receive fewer than

500 NSLs are forced to make the false assertion that they

might have received no NSLs.

These arguments are based on the erroneous assumption

that, in order to determine whether the NSL law is narrowly

tailored, we must analyze each provision of the NSL law

individually to ensure that each is itself narrowly tailored. 

This granular focus cannot be reconciled with the Supreme

Court’s direction that narrow tailoring is not perfect tailoring. 

18 The recipients also argue that the judicial review provisions are

insufficient to address overinclusiveness because they are triggered only

if a recipient challenges the nondisclosure order. We reject this argument

because judicial review is available to every recipient and, as we discuss

in Section V, the burden of obtaining review is de minimis.
IN RE NATIONAL SECURITY LETTER 29

Williams-Yulee, 135 S. Ct. at 1671. Analyzing the statute as

a whole, we reject the recipients’ arguments.

The statute does not authorize the government to issue a

nondisclosure requirement based on a mere possibility of

harm; rather, a high ranking official must certify that

disclosure “may result” in one of four enumerated harms,

18 U.S.C. § 2709(c)(1)(B), meaning that there is “some

reasonable likelihood” that harm will result from the

disclosure. John Doe, Inc. v. Mukasey, 549 F.3d at 875. The

government must engage in an individualized analysis of each

recipient when making such a certification, which may

include consideration of the size of the recipient’s customer

base. If disclosure of the receipt of an NSL would not result

in one of the enumerated harms because the recipient has

millions of customers, the government could not properly

make the certification required under the statute. Moreover,

under those circumstances, the reviewing court would lack a

good reason to believe that continued nondisclosure as to the

fact of receipt is necessary. 18 U.S.C. § 3511(b)(3).

Similarly, the new 2015 provision allowing disclosures to

“other persons as permitted by the [FBI] Director” or the

Director’s designee, id. § 2709(c)(2)(A)(iii), merely provides

the FBI with more flexibility to tailor the scope of the

nondisclosure provision. We reject the recipients’ argument

that this provision gives the government unfettered discretion

and therefore creates a system of insufficiently cabined prior

restraints. Even if the NSL law is determined to be the type

of regulation for which procedural safeguards are required

(see section V, infra), the law as a whole imposes narrow,

objective, and definite standards on the government before it

can issue a nondisclosure requirement, see id. § 2709(c); cf.

Shuttlesworth, 394 U.S. at 150 (considering a city ordinance
30 IN RE NATIONAL SECURITY LETTER

that “conferred upon the [governmental authority] virtually

unbridled and absolute power to prohibit” certain forms of

speech). The fact that the statute also gives the FBI Director

or a designee discretion to make additional exceptions to the

nondisclosure requirement does not lessen the adequacy of

the clear standards imposed on these officials before issuing

a nondisclosure requirement in the first place.

Nor are we persuaded by the recipients’ attempt to

divorce the nondisclosure requirement from the availability

of judicial review, which authorizes a court to modify a

nondisclosure order with “conditions appropriate to the

circumstances,” 18 U.S.C. § 3511(b)(1)(C). The availability

of judicial review is a component of each nondisclosure

requirement issued under § 2709(c); each recipient is

informed of the availability of judicial review in the NSL

itself. See id. § 2709(d); see also id. § 3511(a), (b)(1). The

fact that some, or even most, NSL recipients do not seek

judicial review of a nondisclosure requirement is not relevant

to the question whether the NSL law is narrowly tailored on

its face.

Finally, the provision allowing a speaker to disclose its

status as a recipient of a specified range of NSLs, see

50 U.S.C. § 1874, does not affect our conclusion that the NSL

statute is narrowly tailored. To the contrary, the provisions

allow recipients to make additional specified disclosures

regarding the receipt of the nondisclosure requirements in

certain circumstances without obtaining government or court

approval. We decline the recipients’ invitation to quibble

with the particular ranges selected by Congress. See

Williams-Yulee, 135 S. Ct. at 1671.
IN RE NATIONAL SECURITY LETTER 31

2

The recipients next argue that the nondisclosure

requirement in § 2709(c) is not narrowly tailored because it

authorizes restraints of overly long or indefinite duration and

so is not the least restrictive means of achieving the

government’s compelling interest. We agree that in order to

ensure that the nondisclosure requirement is narrowly tailored

to serve the government’s compelling interest in national

security, a nondisclosure requirement must terminate when it

no longer serves such a purpose. But the 2015 amendments

to the NSL law largely address this concern by requiring the

Attorney General to promulgate the Termination Procedures,

which are now in effect.19 Under these procedures, the FBI

is required to reassess the necessity of nondisclosure on two

occasions: three years after an investigation is begun and

upon the closing of an investigation. This mandated

reassessment reduces the likelihood that an overly long

nondisclosure requirement will be imposed. For example, if

the need for nondisclosure arises because of the ongoing

status of an investigation, nondisclosure would no longer be

required following the closure of the investigation, and the

requirement would terminate pursuant to the Termination

Procedures.20

19 The recipients do not challenge the Termination Procedures

themselves.

20 In this case, the Termination Procedures worked as intended: 

nondisclosure requirements in two of the NSLs at issue in this case were

reduced in scope or entirely removed pursuant to the Termination

Procedures, as the FBI determined upon the completion of the relevant

investigations that continued nondisclosure was not required.
32 IN RE NATIONAL SECURITY LETTER

Nonetheless, the Termination Procedures do not resolve

the duration issue entirely. For example, where the

government determines that the nondisclosure requirement

remains necessary at the close of an investigation, the

Termination Procedures do not require any subsequent

review. Similarly, if an investigation extends for many years,

the Termination Procedures do not provide for any interim

review between the third-year anniversary and the date the

investigation closes.

But the Termination Procedures are supplemented by the

availability of judicial review. When judicial review is

sought, either through a recipient’s own petition or on the

government’s application following notice from a recipient,

the reviewing court “shall . . . issue a nondisclosure order that

includes conditions appropriate to the circumstances.” 

18 U.S.C. § 3511(b)(1)(C). A court’s order enforcing an

administrative subpoena must be within constitutional

bounds. See Brock v. Local 375, Plumbers Int’l Union of

Am., 860 F.2d 346, 349–50 (9th Cir. 1988). Therefore, a

reviewing court would be bound to ensure that the

nondisclosure requirement does not remain in place longer

than is necessary to serve the government’s compelling

interest. See Playboy Entm’t, 529 U.S. at 813.

Moreover, as part of the judicial review process, a court

may require the government to justify the continued necessity

of nondisclosure on a periodic, ongoing basis, or may

terminate the nondisclosure requirement entirely if the

government cannot certify that one of the four enumerated

harms may occur. See In re Nat’l Sec. Letters, No. 16-518,

2016 WL 7017215, at *4 (D.D.C. July 25, 2016) (imposing

periodic review every three years); see also In re Nat’l Sec.

Letter, 165 F. Supp. 3d 352, 356 (D. Md. 2015) (imposing
IN RE NATIONAL SECURITY LETTER 33

periodic review every 180 days until issuance of the

Termination Procedures). Accordingly, any constitutional

concerns regarding the duration of the nondisclosure

requirement can be addressed by a reviewing court’s

determination that periodic review should be one of the

“conditions appropriate to the circumstances.” See 18 U.S.C.

§ 3511(b)(1)(C).

We therefore conclude that the 2015 NSL law is narrowly

tailored to serve a compelling government interest, both as to

inclusiveness and duration. Accordingly, we hold that the

nondisclosure requirement in § 2709(c) survives strict

scrutiny.21

21 The recipients argue that the NSL law should be held to a higher

standard than strict scrutiny. According to the recipients, a content-based

restriction imposed by a system of prior restraint is permissible only if

(1) the harm to the governmental interest is highly likely to occur; (2) the

harm will be irreparable; (3) no alternative exists for preventing the harm;

and (4) the restriction will actually prevent the harm. This argument is

meritless. No Supreme Court or Ninth Circuit opinion has articulated such

a test, nor do the three cases cited by the recipients support it. The brief

per curiam opinion in New York Times Co. v. United States (Pentagon

Papers) did not specify a test that should be applied to prior restraints. See

403 U.S. 713, 714 (1971). Further, neither Nebraska Press Ass’n v.

Stuart, 427 U.S. 541 (1976), nor Levine v. U.S. District Court, 764 F.2d

590 (9th Cir. 1985), required the government to show that harm to a

government interest (i.e., protecting a criminal defendant’s Sixth

Amendment rights) was highly likely to occur or that no alternative to a

restraining order existed. Nor did either case suggest that a pretrial

restraint is invalid unless it is certain to prevent the harm at issue. Rather,

consistentwith the application of strict scrutiny, these opinions considered

the availability of less restrictive alternatives to a restraining order. See

Nebraska Press, 427 U.S. at 563–64; Levine, 764 F.2d at 599–601.
34 IN RE NATIONAL SECURITY LETTER

V

Having determined that the First Amendment does not

prevent the government from restricting the information

subject to nondisclosure under the NSL law, we next consider

the recipients’ argument that the nondisclosure requirement

in § 2709(c) is the sort of content-based restriction on speech

which must have the procedural safeguards identified by the

Supreme Court in Freedman v. Maryland, 380 U.S. 51.

The recipients argue that the NSL law’s nondisclosure

requirement is such a restriction because it is a content-based

rule that “forbid[s] certain communications when issued in

advance of the time that such communications are to occur.” 

Alexander v. United States, 509 U.S. 544, 550 (1993). In the

absence of such a restriction, the recipients argue, they would

have the opportunity to disclose the receipt of an NSL,

subject to subsequent judicial review.

This argument is not entirely persuasive. As the Second

Circuit noted, § 2709(c) limits certain speech in advance but

“is not a typical example” of a regulation for which

procedural safeguards are required. John Doe, Inc. v.

Mukasey, 549 F.3d at 876. The Supreme Court has generally

focused on two types of government schemes requiring

safeguards: censorship schemes and licensing schemes. The

Court has long held that schemes requiring a putative speaker

to submit proposed speech to a governmental body, which is

then “empowered to determine whether the applicant should

be granted permission — in effect, a license or permit — on

the basis of its review of the content of the proposed” speech,

Se. Promotions, 420 U.S. at 554, “avoids constitutional

infirmity only if it takes place under procedural safeguards

designed to obviate the dangers of a censorship system,”
IN RE NATIONAL SECURITY LETTER 35

Freedman, 380 U.S. at 58. The Court has applied this rule to

censorship schemes requiring film exhibitors to obtain prior

approval before showing a film, see id. at 52–53, requiring

producers to obtain permission to show theatrical productions

in municipal theaters, Se. Promotions, 420 U.S. at 554,

allowing the postmaster to hold books sent through the mail

pending a determination of obscenity, Blount v. Rizzi,

400 U.S. 410, 413–15 (1971), and seizing materials brought

into the United States pending an obscenity determination by

customs agents, United States v. Thirty-Seven (37)

Photographs, 402 U.S. 363, 365–66 (1971), among other

systems of censorship. The need for procedural safeguards in

these cases derived from the principle that “a free society

prefers to punish the few who abuse rights of speech after

they break the law than to throttle them and all others

beforehand.” Se. Promotions, 420 U.S. at 559. “[T]he line

between legitimate and illegitimate speech is often so finely

drawn that the risks of freewheeling censorship are

formidable.” Id.

In later years, the Supreme Court has extended the

applicability of Freedman, holding that government schemes

for licensing constitutionally permissible speech or

communicative conduct also require procedural safeguards. 

See Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S.

781, 802 (1988) (requiring procedural safeguards in

government schemes for licensing professional fundraisers to

solicit money); City of Littleton v. Z.J. Gifts D-4, L.L.C.,

541 U.S. 774, 776, 780 (2004) (requiring procedural

safeguards in government schemes for licensing adult

entertainment businesses); see also FW/PBS, 493 U.S. at 220,

228–30 (principal opinion of O’Connor, J.) (same); Dream

Palace v. County of Maricopa, 384 F.3d 990, 1001 (9th Cir.

2004) (same). The safeguards required for licensing schemes
36 IN RE NATIONAL SECURITY LETTER

are less extensive than those required in Freedman because

they do “not present the grave dangers of a censorship

system.” City of Littleton, 541 U.S. at 783 (quoting FW/PBS,

493 U.S. at 228) (internal quotation marks omitted).

The NSL law does not resemble these government

censorship and licensing schemes. It neither requires a

speaker to submit proposed speech for review and approval,

nor does it require a speaker to obtain a license before

engaging in business. Rather, the NSL law prohibits the

disclosure of a single, specific piece of information that was

generated by the government: the fact that the government

has requested information to assist in an investigation

addressing sensitive national security concerns, i.e., “to

protect against international terrorism or clandestine

intelligence activities.” 18 U.S.C. § 2709(b)(1). As the

Second Circuit noted, “[u]nlike an exhibitor of movies,” the

recipient of a nondisclosure requirement “did not intend to

speak and was not subject to any administrative restraint on

speaking prior to the Government’s issuance of an NSL.” 

John Doe, Inc. v. Mukasey, 549 F.3d at 880 (emphasis

added). And unlike the operator of an adult entertainment

business, the recipient of a nondisclosure requirement does

not operate an enterprise where receiving government

approval under the licensing scheme at issue “is the key to

[its] obtaining and maintaining a business.” FW/PBS,

493 U.S. at 230.

Rather than resembling a censorship or licensing scheme,

the NSL law is more similar to governmental confidentiality

requirements that have been upheld by the courts. See, e.g.,

Butterworth v. Smith, 494 U.S. 624, 634–36 (1990)

(upholding in part a law requiring witnesses to maintain the

confidentiality of the grand jury process); Seattle Times Co.
IN RE NATIONAL SECURITY LETTER 37

v. Rhinehart, 467 U.S. 20, 37 (1984) (upholding a restriction

on disclosure of information obtained through pretrial

discovery). In Butterworth, for instance, the Court

considered a Florida statute that “prohibit[ed] a grand jury

witness from ever disclosing testimony which he gave before

that body.” 494 U.S. at 626. While the statute could not

constitutionally prohibit a witness from disclosing

“information of which he was in possession before he

testified before the grand jury,” the Court did not invalidate

that “part of the Florida statute which prohibits the witness

from disclosing the testimony of another witness.” Id. at

632–33. Similarly, the only information subject to

nondisclosure under § 2709(c) relate to the NSL and its

contents — information of which a recipient was not in

possession prior to the NSL’s issuance. The Supreme Court

has sometimes reviewed such governmental confidentiality

restrictions under a framework akin to strict scrutiny,

considering whether the state has the “highest form of state

interest,” and the restriction is “necessary to further the state

interests asserted.” Smith v. Daily Mail Publ’g Co., 443 U.S.

97, 102 (1979); see also United States v. Aguilar, 515 U.S.

593, 605–06 (1995). On other occasions, it has applied a test

closer to intermediate scrutiny, see Rhinehart, 467 U.S. at

32–34, in which it balanced the government’s interest against

that of the speaker’s by considering factors such as whether

the speaker obtained the confidential information from a

government source and whether the speaker knew the

information prior to the government action. Compare id. at

31–32 (noting that First Amendment concerns are lessened

when the speaker learned the information only as “a matter of

legislative grace” through a court’s discovery process), with

Butterworth, 494 U.S. at 632 (striking down a confidentiality

restriction to the extent it restricted disclosure of information

that was in the speaker’s possession prior to his grand jury
38 IN RE NATIONAL SECURITY LETTER

testimony). But the Court has not held that these sorts of

government confidentiality restrictions must have the sorts of

procedural safeguards required for censorship and licensing

schemes.

We need not, however, resolve the question whether the

NSL law must provide procedural safeguards, because the

2015 NSL law in fact provides all of them. First, Freedman

requires that “any restraint prior to judicial review can be

imposed only for a specified brief period.” Thomas, 534 U.S.

at 321. A speaker must “be assured, by statute or

authoritative judicial construction, that the censor will, within

a specified brief period, either issue a license or go to court.” 

Freedman, 380 U.S. at 58–59. The 2015 NSL law readily

provides this assurance: a recipient may immediately notify

the government that it desires judicial review, and the

recipient is guaranteed by statute that the government will

“go to court” within 30 days of receiving notice by

“apply[ing] for an order prohibiting the disclosure of the

existence or contents” of the NSL at issue. 18 U.S.C.

§ 3511(b)(1)(B). This 30-day period is both “specified” and

“brief.” See John Doe, Inc. v. Mukasey, 549 F.3d at 883

(considering a “30-day period in which the Government

considers whether to seek judicial review”); cf. Thirty-Seven

(37) Photographs, 402 U.S. at 370–74 (plurality opinion)

(holding that a 14-day limit on the initiation of judicial

proceedings was sufficient under Freedman). Accordingly,

we reject the recipients’ argument that the 2015 NSL law fails

to provide this first safeguard.

Second, Freedman requires that “expeditious judicial

review” must be available. Thomas, 534 U.S. at 321. The

2015 NSL law’s direction to reviewing courts, that they

“should rule expeditiously” on any petition by a recipient or
IN RE NATIONAL SECURITY LETTER 39

application by the government regarding the validity of a

nondisclosure order, 18 U.S.C. § 3511(b)(1)(C), provides this

safeguard. The recipients contend that this directive is

insufficient because Congress should have imposed a specific

time limit. Again, we disagree. While neither party may

control how quickly a case moves through a court’s docket,

we “presume that courts are aware of the constitutional need

to avoid undue delay result[ing] in the unconstitutional

suppression of protected speech.” City of Littleton, 541 U.S.

at 782 (alteration in original) (internal quotation marks

omitted); see also Dream Palace, 384 F.3d at 1003 (referring

to City of Littleton’s “presumption that . . . courts function

quickly enough, and with enough solicitude for the First

Amendment rights of [speakers]”). Neither Freedman nor

any other Supreme Court decision requires that judicial

review be completed in a specified time frame, such as the 60

days suggested by the Second Circuit in John Doe, Inc. v.

Mukasey, see 549 F.3d at 879. The courts’ duty to “exercise

[their] powers wisely so as to avoid serious threats of delayinduced First Amendment harm,” City of Littleton, 541 U.S.

at 782, assures us that judicial proceedings will move

sufficiently rapidly to safeguard an NSL recipient’s First

Amendment rights.

Finally, Freedman requires that the government “bear the

burden of going to court to suppress the speech” and “the

burden of proof once in court.” Thomas, 534 U.S. at 321. 

The recipients argue that § 3511(b)(1)(B)’s notice procedure

is insufficient because a nondisclosure requirement may

remain in place without judicial review if the recipient does

not notify the government that it wishes to have a court

review the order and if the recipient fails to bring its own

petition to modify or set aside the nondisclosure requirement. 

We reject this argument. Freedman focused on minimizing
40 IN RE NATIONAL SECURITY LETTER

the burden to the film exhibitor to “seek judicial review” of

the state’s denial of a license; it did not focus on which party

bore the initial burden. 380 U.S. at 58–59. Here, the burden

on a recipient is de minimis, as the recipient may seek

judicial review simply by notifying the government that it so

desires. Freedman does not require that the government

provide judicial review of confidentiality provisions for the

benefit of individuals who do not wish to speak.

The recipients further argue that the NSL law “does not

sufficiently place the burden of proof on the government”

because the “reason to believe” and “may result” standards

are insufficiently stringent. We reject this argument, too. As

the Second Circuit held, and as we have already discussed,

the government must certify to the reviewing court and

establish to the court’s satisfaction, that there is a good reason

to believe that absent nondisclosure, one of the enumerated

harms is reasonably likely to result. John Doe, Inc. v.

Mukasey, 549 F.3d at 875. Since the government has

prohibited the recipient from disclosing the fact that it has

even received an NSL, certification and proof are required to

impose a nondisclosure requirement on both the fact of

receipt and the contents of the NSL. Because the government

must sufficiently certify and establish that both disclosures

would likely result in one of the four enumerated harms, these

requirements place the burden of proof on the government

and thereby provide Freedman’s third safeguard.

Because the NSL law provides the three procedural

safeguards set forth in Freedman, we reject the recipients’

argument that the NSL law is an invalid prior restraint on

Freedman grounds.
IN RE NATIONAL SECURITY LETTER 41

VI

We conclude that § 2709(c)’s nondisclosure requirement

imposes a content-based restriction that is subject to, and

withstands, strict scrutiny. We further hold that, assuming

the nondisclosure requirement is the type of prior restraint for

which the Freedman procedural safeguards are required, the

NSL law provides those safeguards. The nondisclosure

requirement in the NSL law therefore does not run afoul of

the First Amendment.

AFFIRMED.