FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

I N R E N A T I ON

AL S E C UR

I TY L E T T E R ,

U ND E R S EAL , Petitioner-Appellant
,

v

.

J E F F E R S O

N B. S E S S I ON S III, Attorney General, Respondent-Appellee. No. 16-16067

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

I N R E N A T I ON

AL S E C UR

I TY L E T T E R ,

U ND E R S EAL , Petitioner-Appellant
,

v

.

J E F F E R S O

N B. S E S S I ON S III, Attorney General, Respondent-Appellee. No. 16-16081

D.C. No. 3:13-m c-80089- SII N R E N A T I O N AL S E C UR

I TY L E T T ER 2

I N R E N A T I ON

AL S E C UR

I TY L E T T E R ,

U ND E R S EAL , Petitioner-Appellant
,

v

.

J E F F E R S O

N B. S E S S I ON S 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 Subm itted March 22, 2017 San Francisco, California

Filed July 17, 2017

Before: Sandra S. Ikuta, N. Randy Sm ith, and Mary H. Murguia, Circuit Judges.

Opinion by Judge IkutaI N R E N A T I O N AL S E C UR

I TY L E T T ER 3

SUMMARY *

C ivil Rights

The panel affirm ed the district co urt’s orders denying petitions br o u g ht by electronic comm unication service providers pursuant to 1 8 U.S.C. § 3511(a) to set aside inform ation requests and nondisclosure requirem ents in National Se c ur ity Letters issued to them by the Federal Bureau of Investigation.

A National Security L etter is an adm inistrative subpoena issued by the FBI to a wire or electronic comm un i c ation service provider requiring th e pr ovider to produce specified subscriber inform a t i on that is relevant to an authorized national security investigation. 18 U. S. C. § 2709(a). By statute, a National Security L etter m ay include a requirem ent 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 requirem ent violates their First Am endm ent rights.

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

poses a content-based restriction that is subject to, and withstands, strict scrutiny. The panel further held that, assum ing the nondisclosure requirem ent wa s the type of prior restraint for which the procedural safeguards set forth in Freedman v. Maryland
, 3 80 U.S. 51 (1965) were required, th e National S ecurity Letters law provided those

* This summ ary constitutes no part of the opinion of the court. It h as been prepared by court staff for the convenience of the reader.I N R E N A T I O N AL S E C UR

I TY L E T T ER 4

safeguards. The panel concluded that the nondisclosure requirem ent does not run afoul of the First Am endm ent.

C OUNSEL

Andrew Crocker (argued), Nathan Cardozo, Lee T ien, Kurt Opsahl, Jennifer Lynch, D avid Gr eene, Cindy Cohn, and Aaron Mackey, E lectronic Fr ontier Foundation, San Francisco, California; Richard W iebe, Law Office of Richard R. W iebe, San Fr a ncisco, California; f or PetitionerAppellants.

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

. L etter, Ap p ellate Staff; Brian Stretch, United States A ttorney ; Benjam in C. M i ze r, Principal Deputy Assistant Attorney General; Civil Division, United States Departm ent of Justice, W ashington, D.C.; for Respondent-Appellee.

OPINION

IKUTA, Circuit Judge:

In this case, w e consider ch a l le nges to the constitutionality of the law authorizing the Federal Bureau o f Investigation (FBI) to prevent a recipient o f a national security letter (NSL) f

rom disc lo s i n g the fact that it has received such a request. 18 U.S.C. § 2709(c). An NSL is an adm inistrative subpoena issued by the FBI to a wire o r electro n i c co m

m u n icatio n serv ice p r o v id er wh ich requires the provider to produce specified subscriber inform ation that is relevant to an authorized national security investigation. Id. § 2709(a). By statut e , th e NSL m ay include a requirem entI N R E N A T I O N AL S E C UR

I TY L E T T ER 5

that the recipient n ot “disclose to any person that the Federal Bureau of Investigation has sou g h t or obtained access to inform ation or records” under the NSL law. Id. § 2 7 09(c)(1)(A). Both the inform ation request and the nondisclosure requirem ent are subject to judicial review. See i d

. § 3511. (Because § 2709 and § 3511 work toge th e r , we refer to themcollectively as “the NSL law.”)

Certain recipients of these N SLs claim that the nondisclosure requirem e n t violates their First Am endm ent rights. W e hold that the nondisclo s ur e r equirem ent in 18 U.S.C. § 2709(c) is a content-based restriction o n speech that is subject to strict scrutiny, and that th e nondisclosure requirem ent withstands s u c h scrutiny. Accordingly, we affirm

.

I

W e begin by reviewing the statutory fram ework under which NSLs are issued. The law authorizing the FBI to send

an inform ation request to a wire or electronic comm unication service provider was o riginally enacted as part of the Electronic C omm

unications P rivacy Act of 1986. Pub. L. No. 99-508, § 201, 100 Stat. 1848, 186 7

. Th e law was extensively am ended in 2006, as p art o f the USA Patriot Im provem ent 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 h ere we re issued under the 2006 version of the N SL law. Sub sequently, Congress enacted the USA FREEDOM Act of 2015, Pub. L. No. 114-I N R E N A T I O N AL S E C UR

I TY L E T T ER 6

23, 129 Stat. 268, which further am ended th e NSL law effective June 2, 2015. 1

The NSL law is best underst oo d as a form o f adm inistrative subpoena. C o ngress m ay authorize federal

a g encies to issue adm inistrative subpoenas without court

a u t h o r i z a t i o n f

o r a n y p u rp o s e w i t h i n C o n g r e s s ’ s constitutional power. See Okla. Press Publ’g Co. v. Walling
, 327 U .S. 186, 208–09 (1946); see al s o 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 m ay issue a subpoena with o ut prior judicial approval, it m

ust invoke the aid of a federal court to enforce it. See

, e .g. , United States v. S ec. S tate Bank & Trust
, 473 F.2d 638, 641–42 (5th C ir. 1973 ) ; see also Shasta Minerals & C

hem. C o. v. SEC
, 328 F .2d 285, 286 (10th Cir. 1964). The “power to p un i s h is not generally available to federal adm inistrative agencies,” and so enforcem ent m ust be sought “by way of a separate judicial proceeding.” Shasta Minerals , 328 F.2d at 286.

Se c tions 2709 and 3511 follow the statutory fram ework typically used to au th o rize adm inistrative subpoenas. Co mp a re 18 U.S.C. §§ 2709, 3511, with, e.g. , 21 U.S.C. § 87 6 ( a ). Section 2709 authorizes the FBI to m ake an inform ation request to “[a] wire or electronic comm unication service provider” for “subscriber inform ation and toll billing

r e c o r d s i n f

o r m a t i o n , o r e l e c t r o n i c c o m m u n i c a t i o n transactional records in its custody or possession,” and

1 Where necessary t o differentiate between the 2006 and 2015 versions of the NSL law, we refer to the f orm er as the “2 006 NSL law” and t he latter as the “2015 N SL law.” Unless otherwise noted, a reference to 18 U.S.C. § 2709 or 18 U.S.C. § 3511 refers to the 2015 NSL law.I N R E N A T I O N AL S E C UR

I TY L E T T ER 7

provides that the recipient “shal l c om ply” with the request. 1 8 U. S.C. § 2709(a). 2 In order to issue such a request, th e FBI D irector o r a sufficiently high-ranking designee o f the Director m

ust “specifically identif[y] a pe r s on, entity, telephone num

ber, or account as the basis for a request,” and

mu st certify that the “records sought are relevant to a n authorized investigation to protect against interna t i onal terrorism or c l a n d estine intelligence activities” and that the investi g a tion “is not conducted solely on the basis o f activities protected by the first am endm ent to the Constitution of the United States.” Id. § 2709(b)(1)–(2). 3 The N SL m ust

2 18 U.S.C. § 2709(a) provides:

Duty to Provide. — A wire or e l e ctronic

comm un i c ation service provider shall com ply with a request for s ub s c riber inform ation and toll billing records inform ation, or e lectronic comm unication transactional records in its custody or possession m ade by the Director of the Federa l 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 pos i t io n not lower than Deputy Assistant D irector at Bureau headquarters or a S pecial Agent in Charge in a Bureau field office designated by the Direc t or, m ay, using a term th at specifically identifies a person, entity, telephone num

ber, o r account as the basis for a request

—
(1) request the nam e , a d dress, length of service, and l o cal and long distance t oll billing records of a person

or entity if the D irect o r (o r h is d esignee) certifies in writing to the wire or electronic comm unication service
p ro v i der to which the request is m ade that the nam e,I N R E N A T I O N AL S E C UR

I TY L E T T ER 8

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

The N SL law contem

plates that in som e cas e s , a recipient’s disclosure of the fact that it has received an FBI request for specific inform ation m ay result i n one of four

enum erated harm s: “(i) a danger to th e n ational security o f the United Stat e s ; (ii) interference with a crim inal,

counterterrorism
, or counterintelligence investigation; (iii) interference with diplom atic relations; o r (iv) d a nger to the life or physical safety of any person.” Id. § 2709(c)(1)(B). 4

a ddress, length o f service, and toll billing records sought are relevant to a n authorized investigation to protect against i nternational terrorism or cl a ndestine i n t e l l i g e n c e a c t i v itie s , p ro v i de d th a t s u c h a n investigation of a United S t ates p erson is not conducted solely o n the basis of activities protected by th e first

am endm ent to the Constitution of the United States; and

(2) request the nam e, address, and length of service of

a pe rson or entity if t

he Director (or his designee) certifies in writing to the wire or electronic

comm unication service provider to which the request is

m ade that the inform ati o n sought is relevant t o an authorized investigation to protect against international terrorism or cl an d est i n e i nt el l i g en ce activities, p rovided that such an investigation of a United S tates p erson is
not conducted solely upon the basis of activities protected by t

h e first am endm ent to the Constitution o f the United States.

4 18 U.S.C. § 2709(c)(1)(B) provides:

Certification. — T he r equirem ents of subparagraph (A) shall apply if the Director of the Federal Bureau o f Investigation, or a designee of the Director whose rank shal l b e n o lower than Deputy Assistant Director atI N R E N A T I O N AL S E C UR

I TY L E T T ER 9

If the FBI D irector or a sufficiently h igh-ranking designee o f
th e Director issues a certification “that the absence o f a prohibition of d isclosure under this subsection m ay result” in

one of these harm s, id.
, and the governm ent gives the recipient notice of the availability ofjudicial review p ursuant to § 3511, see id. § 2709(d)(2), the governm ent m ay 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 S pecial Agent in Charge of a Bu re au field o ffice, certifies that the absence of a prohibition o f disclosure under this subsection m ay result in —

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

(ii) i n t e rference with a criminal, counterterrorism
, o r counterintelligence investigation;

(iii) interference with diplom atic 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

s ub p aragraph (B) and n otice of the right to judicia l review under subse c t io n (d) is provided, no wire o r el ect r o n i c co m m un i cati o n ser

v i ce provider that r eceiv e s

a request under subsection (b), or officer, em ployee, o r agent thereof, shall disclose to an y p e rson that the Federal Bureau of Investigation has sought or obtained access to inform ation or records under this section.I N R E N A T I O N AL S E C UR

I TY L E T T ER 10

There are three statutory exceptions to the nondisclosure requirem ent. See id. § 2709(c)(2). 6 First, a recipient “m ay

6 18 U.S.C. § 2709(c)(2) provides:

(A) In general. — A wire or electronic comm unication service provider t

hat r eceives a request under subs e ction (b), or officer, em ployee, or agent thereof,

m ay d isclose inform ation otherwise sub j ect to any applicable nondisclosure requirem ent to —

(i) those person s to whom disclosure i s necessary in order to com

ply with the request;

(ii) an attorney in ord e r to obtain legal advice o r assistance regarding the request; or

(i ii) o ther persons as perm itted by the Director o f th e Federal Bureau o f Investigation o r the d esignee of the Director.

(B) Appli cation. — A person to whom disclosure is

m ade und er subparagraph ( A) shall be subject to the nondisclosure requirem ents applicable to a person to whom a request is issued under s ub s e ction (b) in the

sam e m anner as t

he person t o whom the request is issued.

(C) Notice. — Any recipient that discloses to a person described in subpara graph (A) inform ation otherwise subject to a nondisclosure requirem ent shall notify the person of the applicable nondisclosure requirem ent.

(D) Identification of disclosure recipients. — At the request of the Di rector of t he Federal Bureau o f Investigation or the d esignee of t he Direc t o r, any person m aking or intending to m ake a disclosure under clause (i) or (iii) of subpara g rap h (A) shall identify to the Director or such designee the person to whom suchI N R E N A T I O N AL S E C UR

I TY L E T T ER 11

disclose inform ation o therwise subject to any applicable nondisclosu re requirem ent” to “those persons to whom disclosure is necessary in order to com ply with the request.” I d. § 2709(c)(2)(A)(i). Second, the recipient m ay disc l os e such inform ation to “an attorney in order to ob t a i n legal advice or assistance regarding the request.” Id. § 2709(c)(2)(A)(ii). Third, if the recipient w ants to provide the inform ation to other individuals, it m ay do so if it obtains
the perm ission of the F BI Director or the designee of th e Director. Id. § 270 9(c)(2)(A)(iii). The recipient m ust also inform those persons receiving the inform ation that they are subject t o the sam e nondisclosure requirem ent applicable to the initial recipient, id. § 2709(c)(2)(C).

As is typical in the adm inistrative s ubpoena context, § 27 0 9 does not contain any penalty provision either for failure to co mp l y with the inform ation request or for failure
to com ply with the nondisclosure requirem ent. Only a court has authority to enforce the inform ation request o r the nondisclosure requirem ent. See id. § 3511

. If a recipient fails
to com ply w ith an inform ation request, the governm ent “m ay invoke the aid” of a district court “to com pel com pliance with
th e request.” Id. § 3511(c). 7 The court m ay “issue an o r d e r

d i sclosure will b e m ade o r to whom such disclo s ure

was m ade prior to the request.

7 18 U.S.C. § 3511(c) provides:

In the case of a failure to com p ly w ith a request f

o r record s, a report, or other inform ation m ade t o any person or entity un d er section 2709(b) of t his title, section 626(a) or (b) or 627(a) o f th e F air Credit Reporting Act, sec t i o n 1114(a)(5)(A) of t he Right to Financial Privacy Act, or section 802(a) of the NationalI N R E N A T I O N AL S E C UR

I TY L E T T ER 12

requiring the p e rson or entity to com p ly with the request,” and “[a]ny failure to o bey the o rd e r o f the court m ay be punished b y th e court as contem pt thereof.” Id. Alternatively, the recipient of an NSL m ay p e t ition the district court “for an order m odifying or setting a side the request,” and the district court m ay do so “if co mp l iance would be unreasonable, oppressive, or otherwise unlawful.” Id. § 3511(a). 8

Whenever a nondisclosure requir em ent un der § 2709(c) is im p osed on a recipient, the reci p i e n t m ay challenge the requirem ent in one of two ways. First, the recipient m ay “file

a petition for judicial review in any court described in

Security Act of 1947, the Attorney General m ay invoke the aid of any district court of the United States within the jurisdiction in which the investigation i s carried o n

or the p erson or entity resides, carri e s on business, o r

m ay be found, to com

pel com pliance with the request. The c o urt m ay issue an order requiring the person o r entity to com

ply with the request. Any failure to obey the order of the court m ay be punish e d by the court as contem pt thereof. Any process under this section m ay be served in any judicial district in which the p erson o r entity m ay be found.

8 18 U.S.C. § 3511(a) provides, in relevant part:

The recipient of a r equest for records, a report, o r o ther inform ation under section 2709(b) of this title

. . . m ay, in the United States district court for the district in which t hat person or entity does busi n e ss or resides,
p etition for an order m odifying or setting aside the request. The court m ay m odify or set aside the request if com pliance w ou l d b e unreasonable, oppressive, o r otherwise unlawful.I N R E N A T I O N AL S E C UR

I TY L E T T ER 13

[§ 3511(a)].” Id. § 3511(b)(1)(A). 9 Second, the re c i p i e n t “m ay notify the Governm ent” that it desires judicial review, id.
, in which case “[n]ot later than 30 days after the date o f receipt of a notification [from the recipient], the Governm ent shall apply [to the district court] for an order prohibiting” disclosure, id. § 3511(b)(1)(B). The governm ent’s application for a nondisclosure order (or for an extension o f

9 18 U.S.C. § 3511(b)(1) provides:

(A) Notice. — If a recipient of a request or order for a report, r ecords, or o ther inform ation under section 2709 of t his title

. . . wishes to have a c o urt review a nondisclosure requirem ent i m posed in connection with the request or order, the recipient m ay n otify the Governm ent or file a petition for judicial review in any court described in subsection (a).

(B) Application. — N ot later than 30 days after the date of receipt of a notification under subparagraph (A), the Governm ent shall apply f or an o rde r prohibiting the disclosure of the existence o r content s o f the relevant request or o rd er. A n ap pl i c a t io n under t h is subparagraph m ay b e fi l ed in the district court of the United States for the judicial d i strict in which the recipient of the order is doing b usiness or in the district
court o f the United States for any judicial district within which the authorized investigation that is t he basis f o r the request i s b eing co n ducted. The applicable nondisclosure requirem ent shall rem ain in effect during the pendency of proceedings relatin g to the requirem ent.

(C) Consideration. — A d istric t c ourt 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 cond i t ions appropriate to the circum stances.I N R E N A T I O N AL S E C UR

I TY L E T T ER 14

such an order), m

ust include a certific a t i o n from the FBI Director or a sufficiently high-ranking designee “containing

a statem ent o f specific facts indicating that the absence of a prohibition of d isclosure under [§ 3511(b)] m ay result in” o ne of the four ha rms e num erated in § 2709(c)(1)(B). Id. § 3511(b)(2). 1 0 The nondisclosure requir e me n t rem ains in effect while the d istrict court considers the recip i ent’s challenge or the g o v e r

nm ent’s a p p lication for a nondisclosure order. Id. § 3 5 11(b)(1)(B).

A court receiving a recipient’s petition for judicial review of a nondiscl o s ur e requirem ent or the governm ent’s

10 18 U.S.C. § 3511(b)(2) provides:

An app lication for a nondisclosure order or extension thereof or a response to a petition filed under p aragraph (1 ) shall include a certification from the Atto rn e y General, Depu ty Attorney General, an Assistant Attorney General, o r the Director of the Federal Bureau of Invest i g a t i o n , or a d esignee in a position not lower than Deputy Assistant Director at Bureau headquarters

or a Special A gent in Charge in a Bureau field office designated by the Director, o r i n th e case of a request by a departm ent, agency , o r i nstrum entality of the Federal Governm e n t o ther than t he D epartm ent o f Justice, the head or deputy head o f the departm ent, agency, or instrum entality, containi n g a statem ent o f specific facts indicating th at the absence of a prohibition of disclosure under this subsect i o n m ay result in [the fo ur harm s enum erated in 18 U.S.C. § 2709(c)(1)(B)].

Unde r th e 2 0 0 6 N SL law, the g overnm ent was not required to p r ovide a statem ent of specific facts supporting its certification. Rath er, “such certification shal l b e treated as conclusive unless the court finds that the certification was m ade in bad faith.” 18 U.S.C. § 3511(b)(2) (2006).I N R E N A T I O N AL S E C UR

I TY L E T T ER 15

application for a nondisclosure order “should rule expeditiously.” Id. § 3511(b)(1)(C). The court “shall issue

a nondisclosure order or e x t e n s i on thereof

. . . if the court determ ines that there is [good] reason to bel i e ve that disclosure of the inform ation subject to the no n di sclosure requirem ent during the applicable tim e period m ay result in”

one o f the four enum erated harm s. I d. § 3511(b)(3). 1 1 In

m aking this determ inati o n , “the court shall, upon request o f the g overnm ent, review ex parte and in cam era any governm ent subm ission or portions thereof, which m ay include classifi e d inform ation.” Id. § 3511(e). Any

n o ndisclosure order issued by a reviewing court s h o u l d “include[] conditions appropriate to the circum stances.” Id. § 3511(b)(1)(C).

In am ending the NSL law in 2 015, Congress also required the Attorney General to prom u lgate pr o c e dures for periodically re v iewing and term inating any nondisclosure requirem ents issued in connection with an NSL. Pub. L. No. 114-23, T itle V, § 502(f), 12 9 Stat. at 2 8 8 (codified at 12 U.S.C. § 3414 note). T h e Attorney G eneral adopted such

11 18 U.S.C. § 3511(b)(3) provides:

A district court of the United States shall issue a nondisclosure order o r extension thereof under t h is subsection if the court determ ines that there is reason to believe t hat disclosure o f the i nform ation subject to the nondisclosure requirem ent d uring the applicable tim e period m ay result i n [the four harm s enum erated in 18 U.S.C. § 2709(c)(1)(B)].

The Second Circuit in John Doe, I n c. v. Mukasey adopted the “com m on-sense understanding” that “reason” in the 2 006 NSL l aw m eans “good r eason.” 5 49 F.3d 861, 875 (2d Cir. 2008). W e also adopt t h is understanding.I N R E N A T I O N AL S E C UR

I TY L E T T ER 16

procedures in Novem

ber 2 015. See Term ination P rocedures f o r N ational Security L etter N o n d isclo s ure R e q u irem ent, F ed

. B u r e a u o f I n v e s t i g a t i o n ( N o v

. 2 4
, 2 0 1 5 )
, h ttp s : //www. fb i

. g o v/ fi l e

- re p o s i t ory/n s l

- n d p

- pr o c e dur e s

. p d f (hereinafter “Term ination Pr o cedures”). Under these
p rocedures, any nondisclosure requirem ent m ust term inat e when the underlying investigation is closed or “on the threeyear anniversary o f the initiation” of the investigation, unless “the FBI m akes a determ ination that on e o f th e existing statutory standards for nondisclosure is satisfied.” Once the FBI has d eterm ined that nondisclosure is no longer required, it m ust provide written n otice to the recipient t o th at effect. If the FBI does not term inate the nondisclosure requirem ent at either of these occasions, the recipient ret a i n s th e right to challenge the requirem ent in district court

. 18 U.S.C. § 3511(a).

Th e 2 015 legislation am ending the NSL law also adde d 50 U .S.C. § 1 874, which allo ws “[a] person subject to a nondisclosure requi rem ent” to disclose aggregate data regarding the num

ber of NSLs (in specified ranges o r “bands ” ) th a t the person has received. Pub. L. No. 1 14-23, Title VI, § 603(a), 129 S tat. at 295–96 (codified at 50 U.S.C. § 1874(a)(1)–(4)). F or instance, a pe r son m ay report

rec eiving 0 to 99, 0 to 249, 0 to 499, or 0 to 999 nondisclosure requirem ents. A person who chooses to report receiving 0 to 9 9 nondisclosure requirem ents m ay m ake such

a disclosure on an annual basis, while a person who chooses
to report receipt o f a l arger range of NSLs m ay report

sem iannually. See 50 U.S.C. § 1874(a)(1)–(4).I N R E N A T I O N AL S E C UR

I TY L E T T ER 17

II

W e next turn to the facts of these co n s o lidated appeals, which involve five NSLs issued to two recip i e n ts between 2011 and 2013 (while the 2006 NSL law rem ained in effect). Ea c h NSL at issue contained an inform ation request and a nondisclosure requirem ent, and inform ed the recipient that it could seek judicial review of th e nondisclosure requirem ent by notifying the FBI and that the FBI wo u l d accordingly initiate judicial review within 30 days.

The first recipient, C REDO Mobile, received three of the NSLs at issue, the first in 2 011 and two m ore in 2 013. The second recipient, CloudFlare, received the other two NSLs, both in 2012. Following receipt, CREDO and CloudFlare petitioned the district co urt to set aside the inform ation requests and n o n disclosure requirem ents contained in each NSL. Each recip i e n t a l so sought to enjoin the governm ent from issuing addit i onal NSLs and f rom im posing additional nondisclosure requirem ents. In response, the governm ent

cross-m oved in each case to com pel com p liance with the NSLs.

In considering the 2011 NSL issued to CREDO, the district court held that the nondisclosure and judicial review
p ro v is ions in the 2006 NSL law violated the First Am endm ent and that these provisions were no t severable from the rem ainder of the sta tu t e , and accordingly enjoined the governm ent f

rom issuing inform atio n r equests and from enforcing n ondisc losure requirem ents. See In re Nat’l Sec. Letter
, 930 F. Supp. 2d 1064, 1081 (N.D. Ca l

. 2 013). The district court stayed its decision pending the resolution of the
governm ent’s appeal.I N R E N A T I O N AL S E C UR

I TY L E T T ER 18

Notwithstanding its conclusion that the 2 0 0 6 NSL law

was constitutionally deficient, the dist r i c t court d enied the petitions to set aside the inform ation requests and nondisclosure requirem ents in the 2013 NSLs issue d to CREDO a n d the 2012 NSLs issued to CloudFlare. The district court reasoned that those NSLs wer e issued in full

com pliance with the procedural and substantive requirem ents suggested by the Second Circuit in John Doe, Inc. v. M ukasey
, 5 49 F.3d 861 (2d Cir. 2008), which had held th at the 2 006 NSL law could be constitutionally applied if certain additional safeguards were provided. CREDO and CloudFlare appealed.

While we considered these appeals, C ongress enacted the USA FREEDOM Act, effective June 2, 2 0 1 5

. Recognizing the extensive changes to the NSL law m ade by this
enactm ent , we vacated the district court’s judgm ents and

r e man d ed to allow the district court to consider in the f irs t instance the constitutionality of the 2015 NSL law.

On rem and, CREDO and CloudFlare subm itted renewed petitions under § 3 511(a) to set aside the inform ation requests and nondisclosure requirem ents contained in each NSL and the governm ent cross-petitioned to enforce b oth com ponents of the NSLs. T his tim e , th e district court held that the NSL law, as am ended, w as constitutional. It also determ ined that the governm ent had carried its b urd e n of showing that there

wa s g o o d reason to believe that disclosure of the 2011 NSL
to CREDO and of the 2 012 NSLs to CloudFlare m ight result in one o f the four enum erated harm s. Accordingly, it granted the governm ent’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 governm ent’s certification that one of the f our enum erated harm s wouldI N R E N A T I O N AL S E C UR

I TY L E T T ER 19

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

CREDO and CloudFlare appealed the denial of their petitions to set aside the inform ation requests and nondisclosure requirem ents in the 2011 and 2012 N S Ls. The
governm ent cross-appealed the district court’s decision to set aside the nondisc l o sure requirem ents in the 2013 NSLs to CREDO, but has since voluntarily dism issed its cros sappeal. 1 2

While this appeal was pending, the F BI closed the investigation unde rlying the 2011 NSL to CREDO. F o l lo w in g th e T ermination P rocedures adopted as r eq u ired b y the 2015 am endm ents, the FBI determ ined that continu e d nondisclosure was n o longer necessary and so notified CREDO in writing. According to the FBI’s letter to CREDO, CREDO m ay now disclose “[t]he fact that [CREDO] received the NSL on a certain date” a nd “[w]hether or not [CREDO] provided respon s i v e inform ation to the FBI pursuant to the NSL.” However, “the nondisclosure requirem ent rem ains in place for any inform ation regarding the custom er account(s) fo r which inform ation w as sought, as well as any other inform ation that could be used to i d e n tify the subscriber(s) for the custom er account(s).” 1 3

12 The 2013 N SLs’ nondisclosur e r eq u i r em ent s ar e t

h er ef o r e n o longer
at issue, and CREDO raises no argum ent on appeal c h allenging the inform ation requests contained in the 2013 NSLs.

13 The nondisclosure requirem ent also rem ains in place for the nam e and contact inform ation of the FBI Special Agent identified in the NSL.I N R E N A T I O N AL S E C UR

I TY L E T T ER 20

The FBI also c l o se d the investigation underlying one o f the 2012 N SLs issued to CloudFlare. Following the Term ination Procedures, the FBI determ ined that continued nondisclosure was no lo n ger necessary and provided CloudFlare written notice to that effect. Accord i n g to the FBI’s letter to CloudFlare, CloudFlare m ay now disclose the “[t]he f act that [CloudFlare] receive d th e NSL on a certain date”; “[t]he custom er account(s) for which inform ation was sought”; and “[w]hether or not [CloudFlare] provided responsive inform ation to the FBI pursuant to the NSL.” 1 4 The nondisclosure requirem ent contained in the second 2012 NSL to CloudFlare rem ains in full effect. 1 5

In sum , C REDO is n o w s ub ject to a nondisclosure requirem ent “for any inform ation regarding th e custom er account(s) for which inform ation was sought, as w ell as any other inform ation that could b e u sed to identify the subscriber(s) fo r the custom er account(s)” under the 2011 NSL. CloudFlare is s ub

ject to a nondisclosure requirem ent only as to one of the 2012 NSLs. 1 6

14 As with the 2011 NSL to CREDO, the nondisclosure requirem ent

rem ains in place for the nam e and contact inform ation of the FBI Special Agent identified in the first 2012 NSL to CloudFlare.

15 Because CloudFlare identified itself n ot only as the recipient of o ne of the 2 0 1 2 N SLs but also as challenging two NSLs before us, the FBI determ ined that CloudFlare m ay be publicly identified.

16 On appeal, CREDO and CloudFlare raise the sam e arg u m e n ts. Therefore, we refer to the appellants together as the “recipients.”I N R E N A T I O N AL S E C UR

I TY L E T T ER 21

III

W e b egin our constitutional analysis by analyzing whether this appeal raises a f acial 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. Pat e l
, 1 3 5 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

a c t i vity, even though the law m ay be capable of val i d application to others.” Foti v. City of Menlo Park , 146 F.3d 629, 635 (9th Cir. 1998). The recipients assert that the nondis c losure requirem ent of § 2 709(c) prevents them from speaking about m atters of p ublic p olicy and engaging i n the political process, b ut do not argue that the NSL law can never be constitutionally applied in any context. Accordingly, we analyze the re c ipients’ challenge as a facial challenge. Cf. Members of the City Council v. Taxpa yers 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 Ame ndm ent rights) are reviewed de novo.” Prete v. Bradbury
, 438 F.3d 949, 960 (9th Cir. 2 0 0 6 ) (em phasis

om itted). W e also review legal conclu sions de novo. Id.

IV

The F i rst Am en dm ent provides that “Congress shall m ake

no law

. . . abridging the freedom of speech, or of the press.” U.S. Const. am end. I. D espite the breadth of this language,I N R E N A T I O N AL S E C UR

I TY L E T T ER 22

the Suprem e Court h as concluded that so me r estrictions on speech are c o nstitutional, provided they survive the appropriate level of scrutiny. Wh en the governm ent restricts speech based on its content, a court will subject the restriction
t o strict scrutiny. See R eed v. Town of Gilbert
, 135 S. Ct

. 2 21 8, 2 226 (2015); United States v. Playboy E n tm’t Grp.

, Inc.
, 529 U.S. 803
, 8 13 (2000). Under strict scrutiny, restrictions “m ay be ju s tified only if the governm ent proves th a t they are narrowly tailored to serve com pelling sta te interests.” Reed
, 1 35 S. Ct

. at 2226. If the governm ental restriction on speech is content neutral, a court will uphold it if it furthers “an im

portant o r sub s t a n t ial governm ental interest unrelated to the suppression of free speech, provided the incidental restrictions did not burden substantiall y m ore speech than is necessary to further those i n t erests.” Turner Broad. Sys., Inc. v. FCC
, 5 20 U.S. 180, 186 (1997) (internal quotation m arks om itted). 1 7

Even if the governm ent has constitution a l authority to im pose a particular con t e n t

- b ased restriction on speech, the
governm ent does not h ave unfettered freedom to im p lem ent such a restriction through “a system of prior adm inistrative restraints.” Bantam Books, Inc. v. Sullivan
, 372 U.S. 5 8, 70 ( 1 9 6 3 ); see also id. at 66 (“[A] S tate is not free to a d o p t whatever procedures it pleases f or dealing with obscenity

. . . wi th o u t r e g a r d t o t h e p o s s i b l e c o n s e qu e n c e s fo r

co n stitu tio n ally p ro tected sp e e ch

. ” (q u o ting Marcus v. S

ea rch Warrants
, 367 U .S. 7 17
, 7 3 0–31 (1961))). Rather, “a law

17 The governm e n t m ay also restrict the t im e, place, and m anner o f

s pe e c h so long as it does not d iscrim inate based on content and m eets 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.I N R E N A T I O N AL S E C UR

I TY L E T T ER 23

subjecting the exercise of First Am endm ent freedom s to the prior restraint of a license” or other burden m ust itself p a ss constitutional m

uster. Shuttlesworth v. City of Birmingham
, 394 U.S. 147, 150–51 (1969). A system that g iv es public officials authority to regulate or prohibit an in d i v idual’s exercise of First Am endm ent rights based on th e content o f the individual’s speech m ust have “narrow, objectiv e , and definite standards to guide the licensing authority,” id. at 151, and m ust 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 p rior
to judicial review can be im posed on ly for a specified brief period during which the status quo m ust be m aintained; ( 2 ) expeditious judicial review of that decision m ust b e available; and (3) the censor m ust bear the burden of going to court to s up press the speech and m ust bear the burden o f proof once in court.” Thomas v. Chi. Park Dist.
, 5 34 U.S. 316, 321 (2002) (quoting FW/PBS v. City of Dallas
, 493 U.S. 215, 2 27 (1990) (principal op i ni o n of O’Connor, J.), and citing Freedman v. Maryland
, 380 U. S. 51, 58–60 (1965)). The p rocedural requirem e n ts for system s im posing contentbased restraints do not apply, however, to “a content-neutral
p erm it schem e regulating speech in a public forum .” I d

. at 322.

Accordingly, our analysis of § 2709(c)’s no nd i s closure requirem ent proceeds in three steps. W e m ust first determ ine whether the nondisclosure requirem ent is content b ased o r content neutra l

. If the nondisclosure requirem ent is content based, we then consider whether i t survives strict scrutiny. Finally, w e m

ust determ ine whether the n ondiscl o sure

r equirem ent constitutes the type of restraint for which th eI N R E N A T I O N AL S E C UR

I TY L E T T ER 24

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

A

W e turn fi r s t to the question whether the nondisclosure requirem ent in § 2709(c) is content based or content neutral. A governm ent’s restriction on “ s pe ech is content based if a law applies to particular speech be cause of the topic discussed o r the idea o r m essage expr e ssed.” Reed
, 1 35 S. Ct. at 2227. The first step in d ete rm ining whether speech is
content based is “to consider whether a regulation of speech ‘on its face’ draws distinctions based on the m essage a speaker conveys.” Id. (quoting Sorrell v. IMS Health, Inc.
, 564 U.S. 552, 566 (2011)). Regulations dra w s uch a distinction if they “target speech based on its comm unicative content,” id. at 2226, prohibit “public discussion of an entire topic,” id. at 2 2 30 (quoting Consol. Edison Co. of N.Y. v. Pub. Serv. Comm’n of

N.Y.
, 4 47 U.S. 530, 537 (1980)), or “single[] out specific subject m atter for differential treatm ent,” id.

Thus, a regulation or law that restricts speech based on its topic, idea, m essage, or content is “content based” on its face, and is ac c o r d ingly subject to strict scrutiny. If a court determ ines that the law is content based at this first step, the
court need not “consider the governm ent’s j u stifications o r purposes” for e n ac t ing the regulation. Id. at 2227. “A law that is cont e n t b a s ed on its face is subject to strict scrutiny regardless of the g overnm ent’s benign m otive, contentneutral justification, or lack of animus toward the ideas contained in the regulated speech.” Id. at 2228 (int ernal quotation m arks om itted). Only if a law is content neutral on its f ace should a court proceed to consider wh e ther it is nevertheless a content-based regulation of speech b ecause itI N R E N A T I O N AL S E C UR

I TY L E T T ER 25

“cannot be justified without refe r e n c e to the content o f the regulated s p e ech, or [was] adopted by the governm ent because of disagreem ent with th e me ssage [the speech] conveys.” Id. at 2227 (second alteration in original) (quoting Ward v. R ock Against Racism
, 491 U.S. 781, 791 (1989)) (internal quotation m arks om itted).

Applying this fram ework here, the nondisclosure requirem ent in § 2 709(c) is content based on its face. By its
term s, the n ondisclosure requirem ent p rohibits speech about

one specific issue: the recipient m a y not “disclose to any person that the Federal Bureau of Investigation has sought o r obtain ed access to inform ation or records” by m eans of an NSL. S ee 18 U.S.C. § 2 709(c). Such a restriction “target[s] speech bas e d o n its comm unicative content,” and restricts
spe e ch based on its “function or purpose.” Reed
, 135 S. Ct.
at 2226–27. Given this conclusion, we need not proceed to the second step o f the analysis, to determ ine whether the
statu te stifles views w ith which the governm ent disagrees, see Ward
, 491 U .S. at 791, or distinguishes am ong views about NSLs in deciding which speech is prohibited, see Tu rner Bro ad

. S ys. , Inc. v. FCC
, 512 U.S. 622, 643 (1994). W e conclude that the nondiscl o sure requirem ent is a contentbased restriction.

B

Because we have determ ined that the restriction im p osed by the n ondisclosure requirem ent is content based, we turn to the Suprem e Court’s strict scrutiny test for content-ba se d restrictions o n speech and ask whethe r the nondisclosure requirem ent perm itted by § 2709(c) is narrowly tail o r e d to

serve a compelling state interest. Reed , 135 S. Ct. at 2226.I N R E N A T I O N AL S E C UR

I TY L E T T ER 26

As a threshold m atter, we r ea d ily conclude that national

s ecurity is a com

pelling governm ent interest. Indeed
, th e Court h as recognized that “[e]v eryone agrees that the Governm ent’s interest in com bating terrorism i s a n urgent objective of the highest order.” Holder v. Humanitarian L aw Project
, 561 U.S. 1, 28 (2010). “It is ‘obviou s a n d unarguable’ that n o governm ental i nterest is m ore com pelling than the security of the Nation.” H aig v. Agee
, 453 U.S. 280, 307 (1981) (quoting Aptheker v. Sec’y ofState
, 378 U.S. 500, 509 (1964)). By the sam e token, keeping sensitive inform ation confidential in order to protect national security is a co m p e lling governm ent interest. See Dep’t of the Navy

v. Egan
, 484 U.S. 518, 527 (1988) (recogni z i ng “the Governm ent’s com

pelling interest in withholding national security inform ation from unauthorized p ersons in the course of executive b usiness” (internal q u otation m arks om itted)); Snepp v. United States
, 444 U.S. 507, 509 n.3 (1980) (“The Governm ent has a com

pelling interest in protecting both the
secrecy of inform ation im p ortant to our national security and the appearance of confidentiality so essential to the effective operation of o ur foreign intelligence service.”). Here, the

rec i p ients d o not dispute that the nondisclosure requirem ent directly serves the com pelling state interest of national security: a nondisclosure re qu i rem ent m ay be im posed only if one of the four enum erated h arms “ may result” absent nondisclosure. 18 U.S.C. § 2709(c)(1)(B).

W e th e refore turn to the question whether the nondisclosure requirem ent in § 2709(c) is narrowly tailored. A restriction is n o t narrowly tailored “if less restrictive alternatives would b e at least as e ffective in achieving the legitim ate p urpose that the statute was enacted to s e rv e

. ” Reno v. Am. Civil Liberties Union
, 521 U.S. 844, 874 (1997). Nevertheless, strict scrutiny requires that a conten t -basedI N R E N A T I O N AL S E C UR

I TY L E T T ER 27

restriction “be narrowly tailored
, n o t that it be ‘perfectly tailored.’” Williams-Yulee v. Fla. B ar , 135 S

. Ct. 1 656, 1671 (2015) (quoting Burson v. Freeman
, 504 U.S. 191, 209 ( 1 992)). Accordingly, a reviewing court should “declin e t o wade into th[e] swam

p” of calibrating the individual

m echanism s of a restriction. Id. Ultim ately
, the Suprem e Court has em

phasized that strict scrutiny is not “fatal in f act.” Id. at 1 666 (quoting Adarand C onstructors, Inc. v. Pena
, 515 U.S. 200, 237 (1995)).

The recipients argue that the 2 0 1 5 NSL law is not narrowl y t ai l ored for two reasons. First, they claim it is overincl u sive because it prevents disclosure of the bare fact of receiving the NSL as well as d isclosure of the N SL’s
content. S ec o n d
, they claim it is not the least restrictive alternative because it allows the g overnm ent to prohibit disclosure indefinitely. Because the recipients claim that the NSL law constitutes a system o f prior restraints, they also
argue that the statute fa i l s to provide the governm ent with “narrow, objective, and definite standards” to guide its decision to p r o h i b it disclosure. Shuttlesworth
, 394 U.S. at 150–51. W e consider each argum ent 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 harm ful to n a t i onal security and therefore d oes no t further the governm ent’s com pelling interest. Specifically, the recipients argue that a r e c ipient who has m illions of custom ers could disclose the receipt o f a single NSL without im

p eding national securi ty interests. S e c o n d
, t h e r e c i p i e n t s a r g u e t h a t 1 8 U

. S

. C

. § 2709(c)(2)( A) (iii), authorizing the FBI director or aI N R E N A T I O N AL S E C UR

I TY L E T T ER 28

designee to perm it a recipient to m ake disclosur e s to

a d d i t i o n a l p er s o n s , i s a n i n s u f f i c i e n t r e me dy fo r overinclusiveness b ecause it gives the FBI total discretion to determ ine who m ay receive disclosures and does not require the FBI to engage in any consideration of a narrower nondisclosure requirem ent. Further, they argue that th e judicial review provisions are insufficient to rend e r th e nondisclosure requirem ent n arrowly tailored because, according to the recipients, a court’s subsequent narrowing o f
the nondisclosure requirem ent is irrelevant to the n arrow tailoring ana lysis. 1 8 Finally, they argue that 50 U.S.C. § 1874, allowing for disclosure of aggregat e data in v arious
ranges, does not rem edy the overinclusiveness of the

n o n d i s c l o s u r e r e q u i r e m e n t , b e c a u s e i t a r b i t r a r i l y differentiates between recipients who receive fewer than 500 NSLs ( who m

ust include “0” in the lowest reporting band) from recipients wh o r e c e i v e m ore than 500 NSLs. As a result, the recipients argue, recipients who receive fewer than 500 N SLs are force d t o mak e the false assertion that they

m ight have received no NSLs.

These argum ents are b ased on the erroneous assum ption that, in order to determ ine whether the NSL law is narrowly tailored, we m

ust analy ze each p rovision of the NSL law individually to ensure th at each is itself narrowly tailored. This g ranular focus cannot be re c onciled with the Suprem e Court’s direction that narrow tailoring is not perfect tailoring.

18 The recipients a l so argue that t he judicial review provisions are insufficient to address overinclusiveness because they are triggered only if a recipient challenges the nondisclosure order. W e reject this argum ent because judicial review is available t o every recipient and, as we discuss in Section V, the burden of obtaining review is de m inim is.I N R E N A T I O N AL S E C UR

I TY L E T T ER 29

Williams-Yulee
, 135 S. Ct. at 1671. Analyzing the statute as a whole, we reject the recipients’ argum ents.

The statute does not authorize the governm ent to issue a nondisclosure requirem ent based on a m ere possibility o f harm ; ra ther, a high ranking official m ust certify that discl o s ur e “m ay result” in one of four enum erated harm s, 18 U.S.C. § 2709(c)(1)(B), m eaning that there is “som e reasonable likelihood” that harm will result f rom the disclosure. John Doe, Inc. v. Mukasey
, 5 49 F.3d at 875. The
g o v ernm ent m

u st en gage in an individualized analysis o f e ach recipient when m aking such a certi fi cation, which m ay include consideration of the size of the recipient’s custom er base. If disclosure of the receipt of an NSL would not result in one of the enum erated harm s because the recipient has

m il l i o n s of custom ers, the governm ent could not properly

m ake the certification required under the statute. Moreover, under those circum stances, 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).

Sim ilarly, the new 2015 provision allowing disclosures to “other persons as perm itte d by the [FBI] Director” or the Director’s designee, id. § 2709(c)(2)(A)(iii), m erely p rovides
th e FBI with m ore flexibility to tailor the scope of the nondisclosure provision. W e reject the recipients’ argum ent that this provision gives the governm ent unfettered discretion and therefore creates a system of insufficiently cabined p rior restraints. Even if the NSL law is determ ined to be the type

o f regulation f

or which procedural safeguards are requi r e d ( s ee section V, infra ), the law as a whole im poses na rro w, objective, and definite standards on the g overnm ent b efore it

can issue a nondisclosure require m e n t , see id. § 2709(c); cf. Shuttlesworth
, 394 U.S. at 150 (considering a city ordinanceI N R E N A T I O N AL S E C UR

I TY L E T T ER 30

that “conferre d upon the [governm ental authority] virtually

un bridled and absolute p ower to p rohibit” certain form s of speech). The fact that the statute also gives the FBI Director

or a designee discretion to m ake additional exceptions to the nondisclosure requirem ent d oes not lessen the a d e qu a cy o f the clear standards im

posed on these officials before issuing a nondisclosure requirem ent in the first place.

Nor are we persuaded by the recipients’ attem p t to divorce the nondisc l o sure requirem ent from the availability of judicial review, which authorizes a court to m odify a nondisclosure o r der with “conditions appropriate to the circum stances,” 18 U.S.C. § 3511(b)(1)(C). The availability of judicial review is a com ponent of each nondisclosure requirem ent issued under § 2709(c); e a c h recipient is inform ed of the availabil it y o f judicial review in the NSL itself. See id. § 2709(d); see a lso id. § 3 511(a), (b)(1). The fact that som e, o r e v en m ost, NSL recipients do not seek judicial review of a nondisclosure requirem ent is not relevant to the question whether the NSL law is narrowly tailored on its face.

Finally, the provision all o wi n g a speaker to d isclose its
status as a recipient o f a specified range of NSLs, see 50 U.S.C. § 1 874, does not affect our conclusion that the NSL

s ta tute is narrowly tailored. To the contrary, the provision s allow recipients to m ake additiona l specified disclosures

r e g ar ding the receipt of the nondisclosure requirem ents in certain circum stances without obtaining governm ent o r court approval. W e d ecline the recipients’ invitation to quibble with th e particular ranges selected by Congress. See Williams-Yulee , 135 S. Ct. at 1671.I N R E N A T I O N AL S E C UR

I TY L E T T ER 31

2

The recipients next argue that the nondisclosure
requ i re m ent in § 2709(c) is not narrowly tailored because it authorizes restraints o f o verly long or indefinite duration and

so is not the least restrictive m eans of achieving the
governm ent’s com

pelling interest. W e agree that in order to

ensure that t

h e n o n d isclo su

r e req u irem ent is narrowly tailored
to serve the governm ent’s com pelling interest in nation al security, a nondisclosure requirem ent m ust term inate when it no longer serves such a purpose. But the 2015 am endm ents to the NSL law largely address this concern by requiring the Attorney General to prom u lgate the Term ination Procedures, which are now in effect. 1 9 Under these procedures, th e FBI is required to reassess the necessity of nondisclosure o n two occasions: three years aft e r an investigation is begun and
upon the closing of an invest i gation. This m andated

reassessm ent reduc e s th e likelihood that an overly long nondisclosure requirem ent will be im posed. For exam

ple, if the need for nondisclosure arises because of the ongoing
status of an investigation, nondisclosure would no longer be
requ i red following the closure of the investigation, and the requirem ent wo u l d term inate pursuant to the T erm ination Procedures. 2 0

19 T he recipients do n ot challenge the T erm ination P rocedure s them selves.

20 In this case, the Term ination Procedure s worked as intended: nondisclosure requirem ents in two of the NSLs at issue in this case were reduced in scope or entirely rem oved p ursuant to the Te r m ination Procedures, as the FBI determ ined upon th e c o m pletion of the relevant investigations that continued nondisclosure was not required.I N R E N A T I O N AL S E C UR

I TY L E T T ER 32

Nonetheless, the Term ination Procedures d o not resolve the duratio n i ssue entirely. For exam ple, where the
governm ent determ ines that the nondis closure requirem ent

rem ains necessary at the close of an invest i g a tion, the Term ination Procedures do n o t require any subsequent review. Sim ilarly, if an investigation extends f or m any years, the T erm ination Procedures d o not provide for any i n t e rim review b etween the third-year anniversary and the date the investigation closes.

But the T erm ination Procedures are supplem ented by the avai lability of judicial review. When judicial review is

s o ught, either through a recipient’s own petition or o n the
governm ent’s application following notice from a recip ient, the reviewing court “shall

. . . issue a nondisclosure order that includes conditions appropriate to the circum stances.” 18 U .S.C. § 3511(b)(1)(C). A court’s order enforcing an adm inistrative subpoena m ust be with i n constitutional bounds. See Brock v. Local 375, Plumbers Int’l Union of Am.
, 860 F .2d 346, 349–50 ( 9 th Ci r

. 1988). Therefore, a reviewing court w ould be b o un d to ensure that the nondisclosure requirem en t does not rem ain in place longer than is n ecessary to serve the governm ent ’ s com pelling interest. See Playboy Entm’t , 529 U.S. at 813.

Moreover, as part of the judicia l review process, a court

m ay require the governm ent to justify the continued necessity of n o n disclosure on a periodic, ongoing basis, or m ay term inate the nond isclosure requirem ent entirely if the
governm ent cannot certify that one o f th e four enum erated harm s m ay o c c ur

. S

e e In re Nat’l Sec. Letters
, N o

. 1 6-518, 2016 W L 7 017215, at *4 (D.D.C. July 25, 2016) (i m posing periodic review every three years ); see also In re N at’l Sec. Letter
, 165 F. Supp. 3d 352, 356 (D. Md. 2015) (im posin gI N R E N A T I O N AL S E C UR

I TY L E T T ER 33

periodic review every 1 80 days until issu a n c e of the Term ination Procedures). A ccordingly, an y constitutional

concerns regarding the duration o f the nondisclosure requirem ent c a n be addressed by a reviewing court’s determ ination that periodic review should be one of th e “conditions appropriate to the circum stances.” See 18 U.S.C. § 3511(b)(1)(C).

W e therefore conclude that the 2015 NSL law is narrowly tailored to serve a com

p elling governm ent interest, both as to inclusiveness and duration. Accord i ngly, we hold that the nondisclosure requirem ent in § 2709(c) survives s trict scrutiny. 2 1

21 T he recipients argue that the NSL law should be h e l d t o a higher standard than strict scrutiny. According t o the recipients, a content-based restriction im

posed by a system of prior restraint is pe rm i s s i b le only if (1) the harm to the governm ental interest is highly likely to occur; (2) the harm w ill be irreparable; (3) no alternative exists for preventing the harm ; and (4) the restriction w ill actually prevent th e harm

. This argum ent is

m eritless. No Suprem e 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 Ne w Y o rk Ti mes Co. v. United States ( Pentagon Papers ) did not specify a test that should be applied to p rior restraints. See 403 U

. S. 7 1 3
, 714 (1971)

. Further, neither Nebraska Press Ass’n v. Stuart , 427 U.S. 541 (1976), n or Levine v. U.S. District Court
, 764 F. 2d 590 (9th Cir. 1985), required the governm ent to sho w that h arm t o a governm ent interest ( i.e., protecting a cri m i n a l defendant’s Sixth Am endm ent rights) was highly likely to occur or that no alternativ e t o a restraining order existed. N o r d i d ei ther case suggest that a pretrial restraint is invalid unless it is certain to prevent the harm at issue. Rather, consi st e nt w ith the application of strict scrutiny, these opinions considered the availability of less restrictive alternatives t o a restraining o rder. See Nebraska Press , 427 U.S. at 563–64; Levine , 764 F.2d at 599–601.I N R E N A T I O N AL S E C UR

I TY L E T T ER 34

V

Having determ ined that the First Am en dme n t d oes not prevent the governm ent from restricting the i n form ation subject to nondisclosure under the NSL law, we next consider the recipients’ argum ent that the nondisclo s ure requirem ent in § 2709(c) is the sort of content-based restriction on speech which m u st h ave the procedural safeguards identified by the Suprem e Court in Freedman v. Maryland , 380 U.S. 51.

The recipients a r gu e that the NSL law’s nondisclosure requirem ent is such a restriction because it is a content-based rule that “ forbid[s] certain comm

unications when issued in advance of the tim e that such comm unications are to occur.” Alexander v. U

nited States
, 5 09 U.S. 544, 550 (1993). In the absence o f such a restriction, the recipients argue, they would have the o pportunity to disclose the receipt of an NSL, subject to subsequent judicial review.

This argum ent is n ot entirely p ersuasive. As the S econd Circuit n oted, § 2709(c) lim its certain speech in advance but “is not a typical exam ple” o f a reg u l a t ion for which procedural safeguards are required. John Doe, Inc. v. Mukasey
, 5 49 F.3d at 876. The S uprem e Court has g enerally focused on two types of governm ent schem es requir ing safeguards: censorship schem es and licensing schem es. The Court has long held that schem es requiring a putative speaker
to subm it p roposed speech to a governm ental body, which is then “em powered to determ ine whether the applicant should be granted perm ission — in effect, a license or perm it — on the b asis of its review o f the content o f the proposed” speech, Se. Promotions
, 420 U.S. at 5 54, “avoids constitu tional infirm ity onl y i f i t takes place under procedural safeguards d es igned to obviate the dangers of a censorship system ,”I N R E N A T I O N AL S E C UR

I TY L E T T ER 35

Freedman
, 380 U.S. at 58. The Court has applied this rule to censorship schem es requiring filmexhibitors to obtain prior
ap pr ov a l before showing a film
, see id. at 52–53, requiring producers to o b tain perm ission to show theatrical productions i n m unicipal theaters, Se. Promotions
, 420 U.S. at 55 4
, allowing the postm aster to hold books sent through the m ail pending a d eterm ination of obscen i ty, Blount v. R izzi
, 400 U.S. 410, 413–15 (1971), and seizing m aterials brought into the United States pending an obscenity determ ination by

cus t o m s agents, United States v. Thirty-Seven (37) Photographs
, 402 U. S. 363, 365–66 (1971), am o ng other system s of censorship. The need for procedural safeguards in
th e s e cases derived from the principle that “a free society prefers to punish the few who ab use rights of speech after they b reak the law than to throttle them an d a l l others beforehand.” Se. Promotions
, 420 U.S. at 5 5 9

. “[T]he line between legitim ate and illegitim ate speech is often so finely drawn that the risk s o f freewheeling censorship are form idable.” Id.

In later years, the Suprem e Court has extended the applicability o f Freedman
, holding that governm ent schem es for licensing constitutionally p erm issible speech o r

comm unicative conduct also require procedural safeguards. See Riley v. Nat’l Fed’ n of the Blind of N.C., Inc.
, 487 U.S. 781, 8 02 (1988) (requir i n g p rocedural safeguards in
governm ent schem es for licensing professional fundraisers to sol i c i t m oney); City of Littleton v. Z .J. Gifts D-4, L.L.C.
, 541 U.S. 774, 776, 780 (2004) (requiring procedural safeguards in governm ent schem es for licensing adult entertainm ent businesses); see also FW/PBS
, 493 U.S. at 220, 228–30 (principal o pinion of O ’Connor, J.) ( s a m e); Dream Palace v. County of Maricopa
, 384 F.3d 990, 1001 (9th Cir. 2004) (sam e). The safeguards required for licensing schem esI N R E N A T I O N AL S E C UR

I TY L E T T ER 36

are less extensive than those required in Freedman because they do “not pres e n t the grave dangers of a censorship system .” City of

Littleton
, 541 U.S. at 783 (quoting F W/PBS
, 493 U.S. at 228) (internal quotation m arks om itted).

The N SL law does n o t resem ble these govern me n t

censo r s h ip and licensing schem es. It neither requires a speaker to subm it proposed speech for review and approval,

nor d oes it requi re a speaker to obtain a license before engaging in business. Ra th e r , the NSL law prohibits the disclosure of a single, specific piece of inform ation that was gene r a t ed by the governm ent: the fact that the governm ent has requested inform ati o n to assist in an investigation addressing sensitive national s ecurity concerns, i.e., “to protect against international terrori sm or clandestine intelligence activities.” 18 U.S.C. § 2709(b)(1). As the Second Circuit noted, “[u]nlike an exhibitor of m ovies,” the recipient o f a nondisclosure r equirem ent “did n ot intend to speak and was not subject to any a dm inistrative restraint on speaking prior to the Governm ent’s iss u a nc e of an NSL.” John Doe, Inc

. v. Mukasey
, 549 F.3d at 880 (em phasis added). And un l i ke the operator of an adult entertainm ent b u siness, the recipient of a nondisclosure requirem ent does
not operate an enterprise wh e r e receiving governm ent approval under the licensing schem e at issue “i s th e key to [its] obtaining and ma i n taining a business.” F W/PBS
, 493 U.S. at 230.

Rather than resem

bling a censorship or licensing schem e, the NSL law is m o re sim ilar to governm ental confidentiality requirem ents that have been upheld by the courts. See, e.g.
, Butterwo r th v. Smith
, 494 U .S. 624, 634–36 (1990) (upholding in p art a law requiring witnesses to m aintain the confidentiality of the grand jury process); Seattle Times Co.I N R E N A T I O N AL S E C UR

I TY L E T T ER 37

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

on disclosure of i n form ation obtained through pretrial discovery). In Butterworth
, for instance, the Court

con s id e r ed a Florida statute that “prohibit[ed] a grand jury witness from ever disclosing testim ony which he gave before that body.” 4 94 U.S. at 626. While the statute could not

c o n s ti tu t i o n al l y prohibit a witness fro m di sc l os i n g “inform ation of which he was in p ossess i o n before he
t e s tified before the grand jury,” the C ourt did not inval i d a te that “part of the Florida statute which p rohibits th e witness from disclosing the testim ony of another witness.” Id. at 632–33. Sim ilar ly, the only inform ation subject to nondisclosure under § 2 7 0 9 (c) relate to the NSL and its
contents — inform ation of which a recipient was not in possession prior to the NSL’s issuance. The S uprem e Court has s o m etim es reviewed such governm ental confidentiality restrict i o n s under a fram ework akin to strict scrutiny, considering whether the state has the “high e st form o f 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 o ther occasions, it has applied a test closer to interm ediate scrutiny, see Rhinehart
, 4 6 7 U.S. at 32–34, in which it balanced the governm ent’s interest against that of the speaker’s by consider i n g factors such as whether the spe aker obtained the confidential inform ation from a governm ent so ur c e and whether the speaker knew the inform ation prior to the gove rn me n t action. Compare id. at 31–32 (noting that F irst Amendm ent concerns are lessened when the speaker learned the inform ation only as “a m atter o f 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 inform ation tha t was in the speaker’s possession prior to his g rand juryI N R E N A T I O N AL S E C UR

I TY L E T T ER 38

testim ony). Bu t th e Court has not h eld that these sorts o f
governm ent confidentiality restrictions m ust have the sorts o f
pr o c edural safeguards required for censorship and licensing schem es.

W e need not, however, resolve the question whether the NSL law must provi d e p rocedural safeguards, because the 2015 NSL law in fact provides all o f them

. F irst, F reedman requires that “any restraint prior to judicial review can be im posed only for a specified b rief p eriod.” Thomas
, 5 34 U.S.
at 321. A speaker m ust “be assur ed, by statute o r authoritative judicial co n stru ction, that the censor will, within

a specified b rief period, either issue a license or go to court.” Freedman
, 380 U.S. at 58 –5 9. The 2015 NSL law readily provides this assurance: a recipient m ay imm edia t e ly notify
the governm ent that it desires judicial review, and th e recipient is guaranteed by statute th a t the governm ent will “go to court” withi n 30 days of receiving notice by “apply[ing] for an order prohibiting the disclosure of the

e x i s t e n ce 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
, 5 4 9 F.3d at 883 (considering a “30-d a y p eriod in which the Governm ent considers whether to seek judicial review”); cf. Thirty-Seven (3 7 ) Photographs
, 402 U.S. at 370–74 (plurality opinion) (hold i n g that a 14-day lim it on the initiation of judicial proceedings was sufficient under Freedman ). Accordingly,

we reject the recipients’ argum ent that the 2015 NSL law fails to provide this first safeguard.

Second, F

reedman requires that “expeditious judicial review” m

ust be available. Thomas
, 534 U.S. at 321. The 201 5 NSL law’s direction to reviewing courts, that they “should rule expeditiously” on any petition by a recipient o rI N R E N A T I O N AL S E C UR

I TY L E T T ER 39

application b y the governm ent regarding the validity of a nondisclosure order, 18 U .S.C. § 3511(b)(1)(C), provides this safeguard. T he recipients contend that thi s d irective is insu fficient b ecause C ongress should have im posed a specific tim e lim it. Again, we disagree. Wh ile neither p a rty m ay control how quickly a case m oves through a co urt’s docket,

we “presum e 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.

a t 782 (alteration in original) (internal quotation m arks

om itted); see also Dream Pa lace
, 384 F.3d at 1003 (referring
to City of Littleton ’s “presum p tion that

. . . courts function quickly enough, and with enough solicitud e for the First Am endm ent rights o f [speakers]”). Neither Freedman nor any other Suprem e C ourt decision requires th at judicial review be com

pleted in a specified tim e f ram e, such as the 60 days suggested b y th e Second Circuit in John Doe, Inc. v. Mukasey
, see 5 49 F.3d at 879. The courts’ duty to “exercise [their] powers wisely so as to avoid serious threats of delayinduced F irst Am endm ent harm ,” City of Littleton
, 541 U.S.
at 782, assur e s us that judicial proceedings will m o ve sufficiently r apidly to safeguard an NSL recipient’s First Am endm ent rights.

Finally, Freedman requires that the governm ent “bear the burden of going to court to supp r e s s 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 be c ause a nondisclosure requirem ent m ay

rem ain in plac e without judicial review if the recipient does
not notify the governm ent that it wis h e s to have a court review the order and if the recipient fails to bring its o wn petition to m odify or set aside the nondisclosure requirem ent. We reject this argum ent. F reedman focused on m inim izin gI N R E N A T I O N AL S E C UR

I TY L E T T ER 40

the burden to the film exhibitor to “ seek judicial review” o f 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 m inim is, as the recipi e n t may seek judicial review sim

ply by notifying the governm ent that it so desires. Fr e e dman does n ot require that the governm ent 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 governm ent” because the “reason to believe” and “m ay result” standards

are insufficiently stringent. W e reject this argum ent, too. A s the Second C ircuit held, and a s we h ave already discussed, the governm ent m

ust certify to the re v iewing court and establish to the court’s satisfaction, that there is a good reason to believe that absent nondisclosure, one of the enum erated harm s is reason ab l y likely to result. John Doe, Inc. v. M ukasey
, 549 F.3d at 875. Since the governm e n t ha s prohibited the recipient from di sclosing the fact that it has

even received an NSL, certification and proof are required to im pose a nondisclosure requ ir em ent on both the fact o f receipt and the contents of the NSL. Because the governm ent

m ust sufficiently certify and establi s h that both disclosures would likely result in o ne of the four enum erated harm s, these require me nts place the burden of proof on the governm ent and thereby provide F

reedman ’s third safeguard.

Because the NSL law provides the three procedural safeguards set fo rth in Freedman
, we reject the recipients’
argum ent that the NSL law is an invalid prior restrai n t o n Freedman grounds.I N R E N A T I O N AL S E C UR

I TY L E T T ER 41

VI

W e conclude that § 2709(c)’s n ondisclosure requirem ent i mp oses a content-based restriction that is subject to, a n d withstands, strict scrutiny. W e further hold that, assum ing the n o ndisclosure requirem ent is the type of prior restraint for which the F

reedman procedural safeguards are required, the NSL law provide s th ose safeguards. The nondisclosure requirem ent in the N SL law therefore do e s n o t run afoul o f the First Am endm ent.

AFFIRMED.