John Doe Inc. v. Mukasey ( 2008 )

07-4943-cv
John Doe Inc., et al. v. Mukasey, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2008
Heard: August 27, 2008 Decided: December 15, 2008
Docket No. 07-4943-cv
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JOHN DOE, INC., JOHN DOE, AMERICAN CIVIL LIBERTIES
UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION,
Plaintiffs-Appellees,
v.
MICHAEL B. MUKASEY, in his official capacity as
U.S. Attorney General of the United States,
ROBERT MUELLER, in his official capacity as
Director of the Federal Bureau of Investigation,
VALERIE E. CAPRONI, in her official capacity as
General Counsel of the Federal Bureau of
Investigation,
Defendants-Appellants.
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Before: NEWMAN, CALABRESI, and SOTOMAYOR, Circuit Judges.
Appeal by the Government from the September 7, 2007, judgment of
the United States District Court for the Southern District of New York
(Victor Marrero, District Judge), in litigation concerning First
Amendment challenges to the constitutionality of statutes governing
the issuance and judicial review of National Security Letters
(“NSLs”), 18 U.S.C. §§ 2709, 3511(b), which request records from
providers of wire or electronic communication services. The judgment,
stayed on appeal, enjoins FBI officials from (1) issuing NSLs under
section 2709, (2) enforcing the nondisclosure requirement of
subsection 2709(c), and (3) enforcing the provision for judicial
review of the nondisclosure requirement contained in subsection
3511(b).
The Court of Appeals construes the statutes to avoid some
constitutional challenges, rules that subsections 2709(c) and 3511(b)
are unconstitutional to the extent that they impose a nondisclosure
requirement on NSL recipients without placing on the Government the
burden of initiating judicial review of such a requirement, rules that
subsections 3511(b)(2) and (b)(3) are unconstitutional to the extent
that, upon such review, a governmental official’s certification that
disclosure may endanger the national security of the United States or
interfere with diplomatic relations is treated as conclusive, modifies
the district court’s injunction by limiting it to enjoining FBI
officials from enforcing the nondisclosure requirement of section
2709(c) in the absence of Government-initiated judicial review, and
remands for a hearing.
Affirmed in part, reversed in part, and remanded.
Gregory G. Katsas, Asst. Atty. General,
Washington, D.C. (Jeffrey S. Bucholtz,
Acting Asst. Atty. General, Jonathan F.
Cohn, Deputy Asst. Atty. General, Douglas
N. Letter, Scott R. McIntosh, U.S.
Department of Justice, Washington, D.C.;
Michael J. Garcia, U.S. Atty., Jeffrey
Oestericher, Benjamin H. Torrance, Asst.
U.S. Attys., New York, N.Y., on the
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brief), for Defendants-Appellants.
Jameel Jaffer, New York, N.Y. (Melissa Good-
man, L. Danielle Tully, American Civil
Liberties Union Foundation, New York,
N.Y.; Arthur N. Eisenberg, New York Civil
Liberties Union Foundation, New York,
N.Y., on the brief), for Plaintiffs-
Appellees.
(Claire E. Coleman, Brune and Richard LLP,
New York, N.Y.; Peter Barbur, Ass’n of the
Bar of the City of New York, N.Y.,
submitted a brief for amicus curiae The
Ass’n of the Bar of the City of New York,
in support of Plaintiffs-Appellees.)
(Meredith Fuchs, National Security Archive,
George Washington University, Washington,
D.C.; Marcia Hofmann, Electronic Frontier
Foundation, San Francisco, Cal., submitted
a brief for amici curiae National Security
Archive and Electronic Frontier Founda-
tion, in support of Plaintiffs-Appellees.)
(Theresa A. Chmara, Brian Hauck, Anne E.
Ralph, Jenner & Block LLP, Washington,
D.C., for amici curiae American Library
Ass’n, et al., in support of Plaintiffs-
Appellees.)
JON O. NEWMAN, Circuit Judge.
This appeal concerns challenges to the constitutionality of
statutes regulating the issuance by the Federal Bureau of
Investigation (“FBI”) of a type of administrative subpoena generally
known as a National Security Letter (“NSL”) to electronic
communication service providers (“ECSPs”). See 18 U.S.C. §§ 2709, 3511
(collectively “the NSL statutes”). ECSPs are typically telephone
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companies or Internet service providers. An NSL, in the context of
this appeal,1 is a request for information about specified persons or
entities who are subscribers to an ECSP and about their telephone or
Internet activity. Primarily at issue on this appeal are challenges
to the provisions (1) prohibiting the recipient from disclosing the
fact that an NSL has been received, see 18 U.S.C. § 2709(c), and (2)
structuring judicial review of the nondisclosure requirement, see id.§ 3511(b).
These challenges arise on an appeal by the United States from the
September 7, 2007, judgment of the District Court for the Southern
District of New York (Victor Marrero, District Judge), enjoining FBI
officials from (1) issuing NSLs under section 2709, (2) enforcing the
nondisclosure requirement of subsection 2709(c), and (3) enforcing the
provisions for judicial review of the nondisclosure requirement
contained in subsection 3511(b).2 See Doe v. Gonzales, 500 F. Supp. 2d
379 (S.D.N.Y. 2007) (“Doe II”). The District Court ruled that
subsections 2709(c) and 3511(b) are unconstitutional on First
Amendment and separation-of-powers grounds, see id. at 405-06, 411-13,
1
For authority to issue NSLs in other contexts, see 12 U.S.C.
§ 3414(a)(5) (financial records); 15 U.S.C. § 1681u (credit history);
15 U.S.C. § 1681v (full credit reports); 50 U.S.C. § 436 (information
concerning investigation of improper disclosure of classified
information).
2
All references to sections are to those in the current version
of Title 18, unless otherwise indicated.
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416-22, and that subsection 2709(c) could not be severed from section
2709, see id. at 424-25.
We agree that the challenged statutes do not comply with the
First Amendment, although not to the extent determined by the District
Court, and we also conclude that the relief ordered by the District
Court is too broad. We therefore affirm in part, reverse in part, and
remand for further proceedings.
Background
The parties. The Plaintiffs-Appellees are an Internet service
provider (John Doe, Inc.), the provider’s former president (John Doe),
the American Civil Liberties Union (“ACLU”), and the American Civil
Liberties Union Foundation (“ACLUF”).3 The Defendants-Appellants are
3
There is some slight confusion as to the status of John Doe,
Inc., and John Doe in this litigation, but the confusion has no
bearing on any of the issues or the resolution of this appeal. The
captions of the District Court’s first and second opinions list John
Doe as a plaintiff, but do not list John Doe, Inc., see Doe v.
Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004) (“Doe I”), and Doe II,
500 F. Supp. 2d 379, and there is no reference to John Doe, Inc., in
either opinion. The first opinion states that John Doe is “an
internet access firm.” Doe I, 334 F. Supp. 2d at 475. The second
opinion does not indicate whether John Doe is the corporation or its
former president. The second opinion grants in part the motion “of
John Doe.” See Doe II, 500 F. Supp. 2d at 425. However, the
Plaintiffs’ second amended complaint lists as parties both the
corporation and the former president, and the briefs filed in this
Court by all parties include John Doe, Inc., and John Doe in the
captions as the Plaintiffs-Appellees. We will assume that both the
corporation and its former president have been and continue to be
Plaintiffs-Appellants, and they are so identified (by pseudonyms) in
the caption of this appeal.
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the Attorney General, the Director of the FBI, and the General Counsel
of the FBI, all sued in their official capacities.
The NSL. In February 2004, the FBI delivered the NSL at issue in
this litigation to John Doe, Inc. The letter directed John Doe, Inc.,
“to provide the [FBI] the names, addresses, lengths of service and
electronic communication transactional records, to include [other
information] (not to include message content and/or subject fields)
for [a specific] email address.” The letter certified that the
information sought was relevant to an investigation against
international terrorism or clandestine intelligence activities and
advised John Doe, Inc., that the law “prohibit[ed] any officer,
employee or agent” of the company from “disclosing to any person that
the FBI has sought or obtained access to information or records”
pursuant to the NSL provisions. The letter also asked that John Doe
provide the relevant information personally to a designated FBI
office.
Section 2709 (2004 version). Section 2709 was originally enacted
in 1986 as part of Title II of the Electronic Communication Privacy
Act of 1986, Pub. L. No. 99-508, § 201, 100 Stat. 1848, 1867-68
(1986). It was amended in 1993 by Pub. L. No. 103-142, 107 Stat. 1491(1993), in 1996 by Pub. L. No. 104-293, 110 Stat. 3461 (1996), and in
2001 by the USA Patriot Act, Pub. L. No. 107-56, 115 Stat. 272, 365
(2001).
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Subsection 2709(a) imposes a duty on ECSPs to comply with
requests for specified information about a subscriber, and subsection
2709(b) authorizes the Director of the FBI and other FBI officials to
request specified information about a subscriber from ECSPs. The
texts of subsections 2709(a) and (b), as they existed in 2004, when
this lawsuit was filed (the current versions are unchanged) are set
out in the margin.4 Subsection 2709(c), as it existed in 2004, imposed
4
Subsection 2709(a) provides:
(a) Duty to provide. A wire or electronic communication
service provider shall comply with a request for subscriber
information and toll billing records information, or
electronic communication transactional records in its
custody or possession made by the Director of the Federal
Bureau of Investigation under subsection (b) of this
section.
18 U.S.C. § 2709(a).
The statute was not intended to require disclosure of the content
of electronic communications. See S. Rep. No. 99-541, at 44 (1986), as
reprinted in 1986 USCCAN 3598.
Subsection 2709(b) provides:
(b) Required Certification. The Director of the Federal
Bureau of Investigation, or his designee in a position not
lower than Deputy Assistant Director at Bureau headquarters
or a Special Agent in Charge in a Bureau field office
designated by the Director, may –
(1) request the name, address, length of service, and
local and long distance toll billing records of a person or
entity if the Director (or his designee) certifies in
writing to the wire or electronic communication service
provider to which the request is made that the name,
address, length of service, and toll billing records sought
are relevant to an authorized investigation to protect
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a blanket nondisclosure requirement prohibiting an ECSP from
disclosing receipt of an NSL. The text of subsection 2709(c), as it
existed in 2004 (it has since been changed), is set out in the margin.5
The lawsuit and the District Court’s first decision. The
Plaintiffs filed this lawsuit in April 2004 and an amended complaint
in May 2004. They contended that section 2709 violated the First and
Fourth Amendments by authorizing the FBI to compel the disclosure of
against international terrorism or clandestine intelligence
activities, provided that such an investigation of a United
States person is not conducted solely on the basis of
activities protected by the first amendment to the
Constitution of the United States; and
(2) request the name, address, and length of service
of a person or entity if the Director (or his designee)
certifies in writing to the wire or electronic communication
service provider to which the request is made that the
information sought is relevant to an authorized
investigation to protect against international terrorism or
clandestine intelligence activities, provided that such an
investigation of a United States person is not conducted
solely upon the basis of activities protected by the first
amendment to the Constitution of the United States.
18 U.S.C. § 2709(b).
5
Subsection (c), in 2004, provided:
(c) Prohibition of certain disclosure. No wire or
electronic communication service provider, or officer,
employee, or agent thereof, shall disclose to any person
that the Federal Bureau of Investigation has sought or
obtained access to information or records under this
section.
18 U.S.C. § 2709(c) (2000).
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private records relating to constitutionally protected speech and
association; they also contended that the nondisclosure requirement of
subsection 2709(c) violated the First Amendment by permanently barring
NSL recipients from disclosing that the FBI had sought or obtained
information from them.
On the Plaintiffs’ motion for summary judgment, the District
Court ruled primarily that section 2709 (presumably the disclosure
requirements of subsections 2709(a) and (b)) was unconstitutional
under the Fourth Amendment because it authorized “coercive searches
effectively immune from any judicial process,” Doe v. Ashcroft, 334 F.
Supp. 2d 471, 494-506 (S.D.N.Y. 2004) (“Doe I”), and that the
nondisclosure requirement of subsection 2709(c) was unconstitutional
under the First Amendment because it was an unjustified prior
restraint and a content-based restriction on speech, see id. at 511-
25. Nearly one year later, a District Court in Connecticut
preliminarily enjoined enforcement of the nondisclosure requirement of
subsection 2709(c), finding a probability of success on the claim that
subsection 2709(c) was unconstitutional under the First Amendment
because it was an unjustified prior restraint and content-based
restriction. See Doe v. Gonzales, 386 F. Supp. 2d 66, 73-75, 82 (D.
Conn. 2005) (“Doe CT”).
Amendments to the NSL statutes. While appeals in Doe I and Doe
CT were pending, Congress amended the NSL statutes in two respects.
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See USA Patriot Improvement and Reauthorization Act of 2005, §§ 115,
116(a), Pub. L. No. 109-177, 120 Stat. 192, 211-14 (Mar. 9, 2006)
(“the Reauthorization Act”), amended by USA Patriot Act Additional
Reauthorizing Amendments Act of 2006, § 4(b), Pub. L. No. 109-178, 120
Stat. 278, 280 (Mar. 9, 2006) (“Additional Reauthorization Act”),
codified at 18 U.S.C.A. § 2709(c) (West Supp. 2008). First, although
leaving intact subsections 2709(a) and (b), requiring compliance with
NSLs, Congress amended the nondisclosure prohibition of subsection
2709(c) to require nondisclosure only upon certification by senior FBI
officials that “otherwise there may result a danger to the national
security of the United States, interference with a criminal,
counterterrorism, or counterintelligence investigation, interference
with diplomatic relations, or danger to the life or physical safety of
any person.” Id. § 2709(c)(1) (“the enumerated harms”).6 The
Reauthorization Act amended subsection 2709(c) by replacing the single
paragraph of former subsection 2709(c) with four subdivisions, the
fourth of which was amended by the Additional Reauthorization Act. We
consider below the text of amended subsection 2709(c), which is set
6
There is an exception to the disclosure prohibition for those to
whom disclosure is necessary to comply with the NSL or for an
attorney, see 18 U.S.C. § 2709(c)(1), but these persons become subject
to the nondisclosure requirement, see id. § 2709(c)(3).
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out in the margin.7 Second, in the Reauthorization Act, Congress
7
Subsection 2709(c), as amended by the Additional Reauthorization
Act, provides:
(c) Prohibition of certain disclosure.–
(1) If the Director of the Federal Bureau of Investigation,
or his designee in a position not lower than Deputy
Assistant Director at Bureau headquarters or a Special Agent
in Charge in a Bureau field office designated by the
Director, certifies that otherwise there may result a danger
to the national security of the United States, interference
with a criminal, counterterrorism, or counterintelligence
investigation, interference with diplomatic relations, or
danger to the life or physical safety of any person, no wire
or electronic communications service provider, or officer,
employee, or agent thereof, shall disclose to any person
(other than those to whom such disclosure is necessary to
comply with the request or an attorney to obtain legal
advice or legal assistance with respect to the request) that
the Federal Bureau of Investigation has sought or obtained
access to information or records under this section.
(2) The request shall notify the person or entity to whom
the request is directed of the nondisclosure requirement
under paragraph (1).
(3) Any recipient disclosing to those persons necessary to
comply with the request or to an attorney to obtain legal
advice or legal assistance with respect to the request shall
inform such person of any applicable nondisclosure
requirement. Any person who receives a disclosure under
this subsection shall be subject to the same prohibitions on
disclosure under paragraph (1).
(4) At the request of the Director of the Federal Bureau of
Investigation or the designee of the Director, any person
making or intending to make a disclosure under this section
shall identify to the Director or such designee the person
to whom such disclosure will be made or to whom such
disclosure was made prior to the request, except that
nothing in this section shall require a person to inform the
Director or such designee of the identity of an attorney to
whom disclosure was made or will be made to obtain legal
advice or legal assistance with respect to the request under
subsection (a).
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added provisions for judicial review, now codified in section 3511, to
permit the recipient of an NSL to petition a United States district
court for an order modifying or setting aside the NSL, see 18 U.S.C.A.
§ 3511(a) (West Supp. 2008), and the nondisclosure requirement, see
id. § 3511(b). The NSL may be modified if “compliance would be
unreasonable, oppressive, or otherwise unlawful.” Id. § 3511(a). The
nondisclosure requirement, which prohibits disclosure by the NSL
recipient of the fact that the FBI has sought or obtained access to
the requested information, may be modified or set aside, upon a
petition filed by the NSL recipient, id. § 3511(b)(1), if the district
court “finds that there is no reason to believe that disclosure may
endanger the national security of the United States” or cause other of
the enumerated harms (worded slightly differently from subsection
2709(c)(1)), see id. § 3511(b)(2), (3).8 The nondisclosure requirement
18 U.S.C.A. § 2709(c) (West Supp. 2008).
The only change made by the Additional Reauthorization Act was
to clarify in subdivision (4) of subsection 2709(c) that the recipient
of an NSL need not notify the FBI of “the identity of an attorney to
whom disclosure was made or will be made to obtain legal advice or
legal assistance with respect to the request under subsection (a),”
id., while the original version of subdivision (4) had stated that “in
no circumstance shall a person be required to inform the Director or
such designee that the person intends to consult an attorney to obtain
legal advice or legal assistance.” Id. (Historical and Statutory
Notes).
8
Subsection 3511(b)(2) applies to petitions filed within one year
of the issuance of an NSL. A companion provision, subsection
3511(b)(3), using identical terms, applies to petitions filed more
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further provides that if the Attorney General or senior governmental
officials certify that disclosure may endanger the national security
or interfere with diplomatic relations, such certification shall be
treated as “conclusive” unless the court finds that the certification
was made “in bad faith.” Id. The text of section 3511 is set out in
the margin.9
than one year after issuance of an NSL.
9
As amended by the Additional Reauthorization Act, section 3511
provides:
(a) The recipient of a request for records, a report, or
other information under section 2709(b) of this title,
section 626(a) or (b) or 627(a) of the Fair Credit Reporting
Act, section 1114(a)(5)(A) of the Right to Financial Privacy
Act, or section 802(a) of the National Security Act of 1947
may, in the United States district court for the district in
which that person or entity does business or resides,
petition for an order modifying or setting aside the
request. The court may modify or set aside the request if
compliance would be unreasonable, oppressive, or otherwise
unlawful.
(b)(1) The recipient of a request for records, a report,
or other information under section 2709(b) of this title,
section 626(a) or (b) or 627(a) of the Fair Credit Reporting
Act, section 1114(a)(5)(A) of the Right to Financial Privacy
Act, or section 802(a) of the National Security Act of 1947,
may petition any court described in subsection (a) for an
order modifying or setting aside a nondisclosure requirement
imposed in connection with such a request.
(2) If the petition is filed within one year of the
request for records, a report, or other information under
section 2709(b) of this title, section 626(a) or (b) or
627(a) of the Fair Credit Reporting Act, section
1114(a)(5)(A) of the Right to Financial Privacy Act, or
section 802(a) of the National Security Act of 1947, the
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court may modify or set aside such a nondisclosure
requirement if it finds that there is no reason to believe
that disclosure may endanger the national security of the
United States, interfere with a criminal, counterterrorism,
or counterintelligence investigation, interfere with
diplomatic relations, or endanger the life or physical
safety of any person. If, at the time of the petition, the
Attorney General, Deputy Attorney General, an Assistant
Attorney General, or the Director of the Federal Bureau of
Investigation, or in the case of a request by a department,
agency, or instrumentality of the Federal Government other
than the Department of Justice, the head or deputy head of
such department, agency, or instrumentality, certifies that
disclosure may endanger the national security of the United
States or interfere with diplomatic relations, such
certification shall be treated as conclusive unless the
court finds that the certification was made in bad faith.
(3) If the petition is filed one year or more after the
request for records, a report, or other information under
section 2709(b) of this title, section 626(a) or (b) or
627(a) of the Fair Credit Reporting Act, section
1114(a)(5)(A) of the Right to Financial Privacy Act, or
section 802(a) of the National Security Act of 1947, the
Attorney General, Deputy Attorney General, an Assistant
Attorney General, or the Director of the Federal Bureau of
Investigation, or his designee in a position not lower than
Deputy Assistant Director at Bureau headquarters or a
Special Agent in Charge in a Bureau field office designated
by the Director, or in the case of a request by a
department, agency, or instrumentality of the Federal
Government other than the Federal Bureau of Investigation,
the head or deputy head of such department, agency, or
instrumentality, within ninety days of the filing of the
petition, shall either terminate the nondisclosure
requirement or re-certify that disclosure may result in a
danger to the national security of the United States,
interference with a criminal, counterterrorism, or
counterintelligence investigation, interference with
diplomatic relations, or danger to the life or physical
safety of any person. In the event of re-certification, the
court may modify or set aside such a nondisclosure
requirement if it finds that there is no reason to believe
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that disclosure may endanger the national security of the
United States, interfere with a criminal, counterterrorism,
or counterintelligence investigation, interfere with
diplomatic relations, or endanger the life or physical
safety of any person. If the recertification that disclosure
may endanger the national security of the United States or
interfere with diplomatic relations is made by the Attorney
General, Deputy Attorney General, an Assistant Attorney
General, or the Director of the Federal Bureau of
Investigation, such certification shall be treated as
conclusive unless the court finds that the recertification
was made in bad faith. If the court denies a petition for an
order modifying or setting aside a nondisclosure requirement
under this paragraph, the recipient shall be precluded for
a period of one year from filing another petition to modify
or set aside such nondisclosure requirement.
(c) In the case of a failure to comply with a request for
records, a report, or other information made to any person
or entity under section 2709(b) of this title, section
626(a) or (b) or 627(a) of the Fair Credit Reporting Act,
section 1114(a)(5)(A) of the Right to Financial Privacy Act,
or section 802(a) of the National Security Act of 1947, the
Attorney General may invoke the aid of any district court of
the United States within the jurisdiction in which the
investigation is carried on or the person or entity resides,
carries on business, or may be found, to compel compliance
with the request. The court may issue an order requiring the
person or entity to comply with the request. Any failure to
obey the order of the court may be punished by the court as
contempt thereof. Any process under this section may be
served in any judicial district in which the person or
entity may be found.
(d) In all proceedings under this section, subject to any
right to an open hearing in a contempt proceeding, the court
must close any hearing to the extent necessary to prevent an
unauthorized disclosure of a request for records, a report,
or other information made to any person or entity under
section 2709(b) of this title, section 626(a) or (b) or
627(a) of the Fair Credit Reporting Act, section
1114(a)(5)(A) of the Right to Financial Privacy Act, or
section 802(a) of the National Security Act of 1947.
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The first appeal. On the Government’s appeals in Doe I and Doe
CT, this Court remanded Doe I for further consideration in light of
the amendments to the NSL statutes, and dismissed Doe CT as moot in
light of the Government’s withdrawal of its objection to disclosure of
the identity of the NSL recipient in that case. See Doe v. Gonzales,
449 F.3d 415, 421 (2d Cir. 2006).
Withdrawal of the NSL. On November 7, 2006, the Government
informed the District Court in the pending case that it was no longer
seeking to enforce the request for information contained in the NSL
that had been sent to John Doe with respect to information from John
Doe, Inc. See Doe II, 500 F. Supp. 2d at 386 n.3.
The District Court’s second decision. On September 6, 2007, the
District Court issued its second opinion, ruling, on cross-motions for
Petitions, filings, records, orders, and subpoenas must also
be kept under seal to the extent and as long as necessary to
prevent the unauthorized disclosure of a request for
records, a report, or other information made to any person
or entity under section 2709(b) of this title, section
626(a) or (b) or 627(a) of the Fair Credit Reporting Act,
section 1114(a)(5)(A) of the Right to Financial Privacy Act,
or section 802(a) of the National Security Act of 1947.
(e) In all proceedings under this section, the court
shall, upon request of the government, review ex parte and
in camera any government submission or portions thereof,
which may include classified information.
18 U.S.C.A. § 3511 (West Supp. 2008).
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summary judgment, that, despite the amendments to the NSL statutes,
subsections 2709(c) and 3511(b) are facially unconstitutional, see id.
at 387, and that the Defendants-Appellants are enjoined from issuing
NSLs under section 2709 and enforcing the provisions of subsections
2709(c) and 3511(b), see id. at 425-26.10 The Court stayed enforcement
of its judgment pending appeal. See id. at 426.
In a careful and comprehensive opinion the District Court viewed
the “fundamental question” to be “the extent of the authority that the
First Amendment allows the government to exercise in keeping its use
of NSLs secret, insofar as such secrecy inhibits freedom of speech.”
Id. at 395. The Court began its analysis by reaffirming its
conclusion from Doe I that the nondisclosure requirement of subsection
2709(c), despite amendment, remains “a prior restraint and a content-
based restriction on speech,” id. at 397, subject to “strict
scrutiny,” id. at 398. The analysis then proceeded in several steps.
First, the Court, applying strict scrutiny and acknowledging that
national security is a compelling state interest, ruled that the
nondisclosure provisions invested executive officials with broad
10
The Court rejected the Plaintiffs’ challenge to the
constitutionality of the provisions authorizing courtroom closure for
proceedings under section 3511, see 18 U.S.C. § 3511(d), and requiring
a district court, upon the Government’s request, to review ex parte
and in camera Government submissions that may include classified
information, see id. § 3511(e). See Doe II, 500 F. Supp. 2d at 422-24.
The Plaintiffs-Appellees have not taken a cross-appeal to challenge
these rulings.
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discretion to censor speech but failed to provide necessary procedural
safeguards. See id. at 399-406. Specifically, the Court, applying the
teaching of Freedman v. Maryland, 380 U.S. 51 (1965), a motion picture
licensing case, held that the nondisclosure provisions impermissibly
placed the burden of initiating judicial review on the NSL recipient.
See Doe II, 500 F. Supp. 2d at 405-06. However, the Court rejected
the Plaintiffs’ argument that the nondisclosure provisions invested
executive officers with unbridled discretion to suppress speech in
violation of Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969).
See Doe II, 500 F. Supp. 2d at 406-09.
Second, the Court, relying on Dickerson v. United States, 530
U.S. 428, 437 (2000), and City of Boerne v. Flores, 521 U.S. 507,
535-36 (1997), ruled that subsection 3511(b) violates the First
Amendment and the principle of separation of powers because it
prescribes a judicial review procedure and a standard of review
inconsistent with First Amendment strict scrutiny requirements. Doe
II, 500 F. Supp. 2d at 411-19.
Finally, the Court ruled that the nondisclosure provisions
violate the First Amendment because they permit the FBI to issue
nondisclosure orders that are not narrowly tailored in scope or
duration. See id. at 419-22. Specifically, the Court noted that the
nondisclosure provisions close off a broad spectrum of speech at the
core of the First Amendment--political criticism--and that the statute
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contains “no requirement that the government act affirmatively and
promptly to terminate the nondisclosure order” if the need for secrecy
dissipates. See id. at 422.
The Court then ruled that the unconstitutional portions of the
statute were not severable from the remainder of the statute. See id.
at 424-25. Specifically, the Court reasoned that because secrecy was
integral to the statutory scheme that Congress envisioned, it would
not have wanted the NSL statute to operate without the nondisclosure
provisions. It therefore invalidated section 2709 in its entirety.
See id. at 425.
Discussion
The validity of the NSL issued to John Doe, Inc., is no longer at
issue because the Government has withdrawn it, but the prohibition on
disclosing receipt of the NSL remains. We therefore consider only the
Government’s challenges to the District Court’s rulings with respect
to the nondisclosure requirement, although to the extent that the
nondisclosure requirement encounters valid constitutional objections,
we will consider the provisions authorizing issuance of NSLs in
connection with the issue of severance.
I. Applicable Principles
The First Amendment principles relevant to the District Court’s
rulings are well established, although their application to the
statutory provisions at issue requires careful consideration. A
-19-
judicial order “forbidding certain communications when issued in
advance of the time that such communications are to occur” is
generally regarded as a “prior restraint,” Alexander v. United States,
509 U.S. 544, 550 (1993) (emphasis and internal quotation marks
omitted), and is “the most serious and the least tolerable
infringement on First Amendment rights,” Nebraska Press Ass’n v.
Stuart, 427 U.S. 539, 559 (1976). “Any prior restraint on expression
comes to [a court] with a heavy presumption against its constitutional
validity,” Organization for a Better Austin v. Keefe, 402 U.S. 415,
419 (1971) (internal quotation marks omitted), and “carries a heavy
burden of showing justification,” id. A content-based restriction is
subject to review under the standard of strict scrutiny, requiring a
showing that the restriction is “narrowly tailored to promote a
compelling Government interest.” United States v. Playboy
Entertainment Group, Inc., 529 U.S. 803, 813 (2000).
Where expression is conditioned on governmental permission, such
as a licensing system for movies, the First Amendment generally
requires procedural protections to guard against impermissible
censorship. See Freedman, 380 U.S. at 58. Freedman identified three
procedural requirements: (1) any restraint imposed prior to judicial
review must be limited to “a specified brief period”; (2) any further
restraint prior to a final judicial determination must be limited to
“the shortest fixed period compatible with sound judicial resolution”;
-20-
and (3) the burden of going to court to suppress speech and the burden
of proof in court must be placed on the government. See id. at 58-59(numbering and ordering follows Supreme Court’s discussion of Freedman
in FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 227 (1990)); Thomas
v. Chicago Park District, 534 U.S. 316, 321 (2002).
Once constitutional standards have been authoritatively
enunciated, Congress may not legislatively supercede them. See
Dickerson, 530 U.S. at 437. “When the political branches of the
Government act against the background of a judicial interpretation of
the Constitution already issued, it must be understood that in later
cases and controversies the Court will treat its precedents with the
respect due them under settled principles, including stare decisis,
and contrary expectations must be disappointed.” City of Boerne, 521
U.S. at 536.
The national security context in which NSLs are authorized
imposes on courts a significant obligation to defer to judgments of
Executive Branch officials. “[C]ourts traditionally have been
reluctant to intrude upon the authority of the Executive in . . .
national security affairs,” Department of Navy v. Egan, 484 U.S. 518,
530 (1988), and the Supreme Court has acknowledged that terrorism
might provide the basis for arguments “for heightened deference to the
judgments of the political branches with respect to matters of
national security,” Zadvydas v. Davis, 533 U.S. 678, 696 (2001).
-21-
The last set of principles implicated by the Plaintiffs’
constitutional challenges concerns the somewhat related issues of
judicial interpretation of unclear statutes, judicial revision of
constitutionally defective statutes, and judicial severance of
constitutionally invalid provisions from otherwise valid provisions.
It is well established that courts should resolve ambiguities in
statutes in a manner that avoids substantial constitutional issues.
See Crowell v. Benson, 285 U.S. 22, 62 (1932); Ashwander v. Tennessee
Valley Authority, 297 U.S. 288, 348 (1936) (Brandeis, J., concurring).
Less clear is the authority of courts to revise a statute to
overcome a constitutional defect. Of course, it is the province of
the Legislative Branch to legislate. But in limited circumstances the
Supreme Court has undertaken to fill in a statutory gap arising from
the invalidation of a portion of a statute. The Court did so in
United States v. Thirty-Seven Photographs, 402 U.S. 363 (1971).
Considering a statute authorizing customs agents to seize obscene
materials, see 19 U.S.C. § 1305(a), the Court noted that the statute
lacked time limits on initiating and completing judicial proceedings,
see Thirty-Seven Photographs, 402 U.S. at 368, limits constitutionally
required by Freedman, 380 U.S. at 58, Teitel Film Corp. v. Cusack, 390
U.S. 139, 141 (1968), and Blount v. Rizzi, 400 U.S. 410, 417 (1971).
After ruling that “the reading into [subsection 1305(a)] of the time
limits required by Freedman is fully consistent with its legislative
-22-
purpose,” Thirty-Seven Photographs, 402 U.S. at 370, the Court imposed
a 14-day limit on the initiation of judicial proceedings and a 60-day
limit on their completion, see id. at 373-74.11
More recently, the Court encountered another statutory revision
issue in United States v. Booker, 543 U.S. 220 (2005). After ruling
in its remedy opinion that the Court’s constitutionally required
invalidation of the mandatory nature of the Sentencing Guidelines
required excision of 18 U.S.C. § 3742(e), the judicial review
provision of the Sentencing Reform Act, see Booker, 543 U.S. at 258-
60, the Court considered whether to “infer,” id. at 260, primarily
from other statutes, a judicially created standard of review. The
Court did so, selecting, based on “related statutory language, the
structure of the statute, and the sound administration of justice,”
id. at 260-61 (internal quotation marks omitted), “a reasonableness
standard of review,” id. at 262 (internal quotation marks omitted).
Our Court has also revised statutory provisions to avoid or
overcome constitutional defects. In Lee v. Thornton, 538 F.2d 27 (2d
Cir. 1976), after invalidating provisions for seizure of vehicles for
11
The Court explained that it had lacked the authority to impose
missing time limits in state statutes invalidated in Freedman and
Teitel, see Thirty-Seven Photographs, 402 U.S. at 369, and could not
have remedied the absence of constitutionally required judicial review
procedures in Blount because the statute had been enacted after the
relevant Executive Branch officer had explicitly opposed inclusion of
a judicial review provision, id. at 369-70.
-23-
lack of procedural due process, see id. at 32-33, we required action
on petitions for mitigation or remission within 24 hours and required
a probable cause hearing within 72 hours, see id. at 33. In United
States v. Monsanto, 924 F.2d 1186 (2d Cir. 1991) (in banc), we
inserted into a post-indictment hearing procedure a requirement for
reconsideration of probable cause in connection with a restraint on
pretrial disposition of assets. See id. at 1198-1202. See generally
Eubanks v. Wilkinson, 937 F.2d 1118, 1122-25 (6th Cir. 1991)
(collecting cases where courts have either revised or declined to
revise statutory language).
Closely related to the issue of whether a court should revise a
statute to avoid or overcome a constitutional defect is the issue of
whether to sever the unconstitutional portion of a statute or
invalidate an entire statute or even an entire statutory scheme. In
general, the choice, as stated by the Supreme Court, depends on
whether “the legislature [would] have preferred what is left of its
statute to no statute at all.” Ayotte v. Planned Parenthood of
Northern New England, 546 U.S. 320, 330 (2006). The Court has also
cautioned that “[u]nless it is evident that the Legislature would not
have enacted those provisions which are within its power,
independently of that which is not, the invalid part may be dropped if
what is left is fully operative as a law.” Buckley v. Valeo, 424 U.S.
1, 108 (1976) (internal quotation marks omitted).
-24-
The Court recently applied this approach to severance in Booker.
After ruling that the mandatory nature of the Sentencing Guidelines
was unconstitutional, the Court had to consider whether to invalidate
the entire Guidelines system or to excise two provisions, 18 U.S.C. §§
3553(b)(1) and 3742(e), and leave the remainder of the Sentencing
Reform Act intact. See Booker, 543 U.S. at 258. Concluding that
Congress would have wanted to maintain the Sentencing Guidelines even
if they were advisory, rather than mandatory, the Court elected to
excise subsections 3553(b)(1) and 3742(e). See id.
II. The Parties’ Contentions
With these principles in mind, we turn to the parties’ basic
contentions. From the Plaintiffs’ standpoint, the nondisclosure
requirement of subsection 2709(c) presents a straightforward content-
based prior restraint that must be tested against all the substantive
and procedural limitations applicable to such an impairment of
expression. In their view, the nondisclosure requirement is content-
based because it proscribes disclosure of the entire category of
speech concerning the fact and details of the issuance of an NSL, see
Consolidated Edison Co. of New York v. Public Service Commission, 447
U.S. 530, 537 (1980), and it is a prior restraint in the literal sense
that it is imposed before an NSL recipient has an opportunity to
speak, see Alexander, 509 U.S. at 550. From these premises, the
Plaintiffs conclude that subsection 2709(c) is unconstitutional under
-25-
strict scrutiny review because it prohibits disclosure in
circumstances not narrowly tailored to a compelling governmental
interest and operates as a licensing scheme without the procedural
requirement of placing on the Government the burden of initiating
judicial review and sustaining a burden of proof. The Plaintiffs also
challenge subsection 3511(b) on the grounds that (1) the judicial
review provisions do not require the Government to initiate judicial
review and to sustain a burden of proof and (2) certification of
certain risks by senior governmental officials is entitled to a
conclusive presumption (absent bad faith). These aspects of
subsection 3511(b) are alleged to violate First Amendment procedural
standards and the separation of powers.
The Government responds that, to whatever extent the
nondisclosure requirement can be considered a content-based prior
restraint, it is subject to less rigorous scrutiny than those imposed
on more typical First Amendment claimants who wish to speak or parade
in public places, distribute literature, or exhibit movies. The
Government points out that the nondisclosure requirement arises not to
suppress a pre-existing desire to speak, but only as a result of
governmental interaction with an NSL recipient. In the Government’s
view, the nondisclosure requirement survives a First Amendment
challenge on the same rationale that has permitted secrecy
requirements to be imposed on witnesses before grand juries, see
-26-
Hoffmann-Pugh v. Keenan, 338 F.3d 1136, 1140 (10th Cir. 2003); In re
Subpoena to Testify Before Grand Jury Directed to Custodian of
Records, 864 F.2d 1559, 1564 (11th Cir. 1989), and judicial misconduct
proceedings, see Kamasinski v. Judicial Review Council, 44 F.3d 106(2d Cir. 1994); First Amendment Coalition v. Judicial Inquiry and
Review Board, 784 F.2d 467, 478-79 (3d Cir. 1986) (in banc), and on a
person or entity that acquired sensitive material through pretrial
discovery, see Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984).
III. The Interpretation of the NSL Statutes
In assessing these contentions, we need to interpret the
nondisclosure requirements before ruling on their constitutionality.
As set forth above in notes 7 and 9, subsection 2709(c) specifies what
senior FBI officials must certify to trigger the nondisclosure
requirement, and subsection 3511(b) specifies, in similar but not
identical language, what a district court must find in order to modify
or set aside such a requirement. Senior FBI officials must certify
that in the absence of a nondisclosure requirement “there may result
a danger to the national security of the United States, interference
with a criminal, counterterrorism, or counterintelligence
investigation, interference with diplomatic relations, or danger to
the life or physical safety of any person.” 18 U.S.C. § 2709(c)(1).
Upon challenge by an NSL recipient, a district court may modify or set
aside a nondisclosure requirement “if it finds that there is no reason
-27-
to believe that disclosure may endanger the national security of the
United States, interfere with a criminal, counterterrorism, or
counterintelligence investigation, interfere with diplomatic
relations, or endanger the life or physical safety of any person.” Id.§ 3511(b)(2).
These provisions present three issues for interpretation: (1)
what is the scope of the enumerated harms? (2) what justifies a
nondisclosure requirement? and (3) which side has the burden of proof?
The enumerated harms. The first issue concerns the scope of the
language identifying the enumerated harms. It is the risk of these
harms that senior FBI officials must certify in order to impose the
nondisclosure requirement. These harms are “danger to the national
security of the United States, interference with a criminal,
counterterrorism, or counterintelligence investigation, interference
with diplomatic relations, or danger to the life or physical safety of
any person.” 18 U.S.C. § 2709(c)(1). The last phrase is particularly
troublesome. It could extend the Government’s power to impose secrecy
to a broad range of information relevant to such matters as ordinary
tortious conduct, based on the risk of “danger to the physical safety
of any person.” A secrecy requirement of such broad scope would
present highly problematic First Amendment issues. However, this
potential reach of the nondisclosure requirement can be reined in if
all the enumerated harms are keyed to the same standard that governs
-28-
information sought by an NSL, i.e., “relevant to an authorized
investigation to protect against international terrorism or
clandestine intelligence activities.” Id. § 2709(b)(1), (2).
At oral argument, the Government wisely urged us to avoid this
problem by construing the scope of the enumerated harms in light of
the purposes for which an NSL is issued. We readily accept that view
of the nondisclosure requirement, thereby at least narrowing, though
not eliminating, the First Amendment issues. Thus, we will adjudicate
the constitutionality of the nondisclosure requirement in subsection
2709(c) by construing this requirement to apply only when senior FBI
officials certify that disclosure may result in an enumerated harm
that is related to “an authorized investigation to protect against
international terrorism or clandestine intelligence activities.” Id.
The required showing. The second issue concerns what must be
shown to maintain a nondisclosure requirement upon judicial review.
A district court, considering a challenge filed within one year of the
issuance of an NSL, is authorized to modify or set aside a
nondisclosure requirement “if it finds that there is no reason to
believe that disclosure may” risk one of the enumerated harms. 18
U.S.C. § 3511(b)(2). At oral argument, the Government took the
position that “reason” in the quoted phrase means “good reason.” We
accept this common-sense understanding of subsection 3511(b)(2). Cf.
McGehee v. Casey, 718 F.2d 1137, 1148 (D.C. Cir. 1983) (“[C]ourts
-29-
. . . must . . . satisfy themselves . . . that the CIA in fact had
good reason to classify, and therefore censor, the materials at
issue.”). We take a similar view of the identical language in
subsection 3511(b)(3), governing a challenge filed more than one year
after issuance of an NSL.
Moreover, a reason will not qualify as “good” if it surmounts
only a standard of frivolousness. We understand the statutory
requirement of a finding that an enumerated harm “may result” to mean
more than a conceivable possibility. The upholding of nondisclosure
does not require the certainty, or even the imminence of, an
enumerated harm, but some reasonable likelihood must be shown. The
Government acknowledges that “while the ‘reason to believe’ standard
in subsection 3511(b) unquestionably contemplates a deferential
standard of review, in no way does it foreclose a court from
evaluating the reasonableness of the FBI’s judgments.” Reply Br. for
Appellants at 9.
The burden of proof. The third issue concerns the burden of proof
applicable to the finding contemplated by subsection 3511(b)(2). Does
this provision mean that, in order to have a district court modify or
set aside a nondisclosure requirement, an ECSP must persuade a court
that there is no good reason to believe that disclosure may risk one
of the enumerated harms, or that, in order to maintain a nondisclosure
requirement, the Government must persuade a court that there is a good
-30-
reason to believe that disclosure may risk one of the enumerated
harms? As the Government acknowledged at oral argument, subsection
3511(b) is silent as to the burden of proof. The Government also
acknowledged at oral argument that these provisions should be
understood to place on the Government the burden to persuade a
district court that there is a good reason to believe that disclosure
may risk one of the enumerated harms, and that a district court, in
order to modify or set aside a nondisclosure order, must find that
such a good reason exists, rather than find the negative, i.e., that
no good reason exists to believe that disclosure may risk one of the
enumerated harms. We agree.
Under the principles outlined above, we are satisfied that we may
accept the Government’s concessions on all three matters of statutory
interpretation without trenching on Congress’s prerogative to
legislate. See Thirty-Seven Photographs, 402 U.S. at 368-70;
Monsanto, 924 F.2d at 1198-1202; Lee, 538 F.2d at 33. We will
therefore construe subsection 2709(c)(1) to mean that the enumerated
harms must be related to “an authorized investigation to protect
against international terrorism or clandestine intelligence
activities,” 18 U.S.C. § 2709(b)(1), (2), and construe subsections
3511(b)(2) and (3) to place on the Government the burden to persuade
a district court that there is a good reason to believe that
disclosure may result in one of the enumerated harms, and to mean that
-31-
a district court, in order to modify or set aside a nondisclosure
order, must find that such a good reason exists.
IV. Constitutionality of the NSL Statutes
(a) Basic approach. Turning to the First Amendment issues with
respect to the NSL statutes as thus construed, we believe that the
proper path to decision lies between the broad positions asserted by
the parties. Although the nondisclosure requirement is in some sense
a prior restraint, as urged by the Plaintiffs, it is not a typical
example of such a restriction for it is not a restraint imposed on
those who customarily wish to exercise rights of free expression, such
as speakers in public fora, distributors of literature, or exhibitors
of movies. Cf. Seattle Times, 467 U.S. at 33 (noting that prohibition
on disclosure of material obtained through pretrial discovery was “not
the kind of classic prior restraint that requires exacting First
Amendment scrutiny”).12 And although the nondisclosure requirement is
triggered by the content of a category of information, that category,
consisting of the fact of receipt of an NSL and some related details,
is far more limited than the broad categories of information that have
12
We note that none of the decisions discussing the
appropriateness or limits of grand jury secrecy has referred to a
nondisclosure requirement in that context as a prior restraint. See
also McGehee, 718 F.2d at 1147 (noting that neither the CIA’s
classification of portions of a former employee’s proposed book as top
secret nor a court order rejecting a First Amendment challenge
“constitutes a prior restraint in the traditional sense”).
-32-
been at issue with respect to typical content-based restrictions. Cf.
Consolidated Edison, 447 U.S. at 537.
On the other hand, we do not accept the Government’s contentions
that the nondisclosure requirement can be considered to satisfy First
Amendment standards based on analogies to secrecy rules applicable to
grand juries, judicial misconduct proceedings, and certain
interactions between individuals and governmental entities. The
justification for grand jury secrecy inheres in the nature of the
proceedings. As the Supreme Court has noted, such secrecy serves
several interests common to most such proceedings, including enhancing
the willingness of witnesses to come forward, promoting truthful
testimony, lessening the risk of flight or attempts to influence grand
jurors by those about to be indicted, and avoiding public ridicule of
those whom the grand jury declines to indict. See Douglas Oil Co. of
California v. Petrol Stops Northwest, 441 U.S. 211, 218-19 (1979).
Although these interests do not warrant a prohibition on
disclosure of a witness’s own testimony after the term of the grand
jury has ended, see Butterworth v. Smith, 494 U.S. 624, 630-36 (1990),
they generally suffice to maintain grand jury secrecy against First
Amendment claims to divulge information a witness obtained through
participation in the grand jury process. See Hoffman-Pugh, 338 F.3d at
1139-40. Unlike the grand jury proceeding, as to which interests in
secrecy arise from the nature of the proceeding, the nondisclosure
-33-
requirement of subsection 2709(c) is imposed at the demand of the
Executive Branch under circumstances where secrecy might or might not
be warranted, depending on the circumstances alleged to justify such
secrecy.
The Government’s analogy to permissible limitations on
disclosures in connection with judicial misconduct proceedings also
fails to justify the nondisclosure requirement of subsection 2709(c).
We considered First Amendment challenges to nondisclosure requirements
imposed with respect to judicial misconduct proceedings in Kamasinski.
Initially, we noted the interests in confidentiality in such
proceedings that the Supreme Court had identified in Landmark
Communications, Inc. v. Virginia, 435 U.S. 829 (1978). See Kamasinski,
44 F.3d at 110. These interests are: “(1) encouraging the filing of
complaints; (2) protecting judges from unwarranted complaints; (3)
. . . avoiding premature announcement of groundless complaints; and
(4) facilitating the work of the commission by giving it flexibility
to accomplish its mission through voluntary retirement or resignation
of offending judges.” Id.; see Landmark, 435 U.S. at 835-37. Again,
unlike the context of subsection 2709(c), these considerations inhere
in the nature of judicial misconduct proceedings. In Kamasinski, we
ruled that disclosure of the substance of an individual’s complaint
could not be prohibited, see 44 F.3d at 110, but that the First
Amendment permitted prohibition of disclosure of the fact that an
-34-
individual had filed a complaint or had testified, and of information
gained through interaction with the misconduct commission, see id. at
111. We noted, however, that these prohibitions were justified in
part by their cessation once the commission had determined whether or
not there was probable cause that judicial misconduct had occurred.
See id. at 112. That temporal limitation, important in the balance of
governmental versus free speech interests, is absent from the
nondisclosure requirement of subsection 2709(c).
The Government’s analogy to certain interactions between an
individual and governmental entities is also unavailing. The
Government seeks to enlist cases involving classification of former
CIA employees’ information as top secret, see United States v. Snepp,
897 F.2d 138 (4th Cir. 1990), and United States v. Marchetti, 466 F.2d
1309 (4th Cir. 1972), and a prohibition on disclosure of information
obtained by a litigant through court-ordered discovery, see Seattle
Times, 467 U.S. 20. We fail to appreciate the analogy between the
individuals or the entity seeking disclosure in those cases and John
Doe, Inc., who had no interaction with the Government until the
Government imposed its nondisclosure requirement upon it.
The nondisclosure requirement of subsection 2709(c) is not a
typical prior restraint or a typical content-based restriction
warranting the most rigorous First Amendment scrutiny. On the other
hand, the Government’s analogies to nondisclosure prohibitions in
-35-
other contexts do not persuade us to use a significantly diminished
standard of review. In any event, John Doe, Inc., has been restrained
from publicly expressing a category of information, albeit a narrow
one, and that information is relevant to intended criticism of a
governmental activity. See Gentile v. State Bar of Nevada, 501 U.S.
1030, 1034 (1991) (“There is no question that speech critical of the
exercise of the State’s power lies at the very center of the First
Amendment.”); Landmark, 435 U.S. at 838 (“Whatever differences may
exist about interpretations of the First Amendment, there is
practically universal agreement that a major purpose of that Amendment
was to protect the free discussion of governmental affairs.”)
(internal quotation marks omitted).
The panel is not in agreement as to whether, in this context, we
should examine subsection 2709(c) under a standard of traditional
strict scrutiny or under a standard that, in view of the context, is
not quite as “exacting” a form of strict scrutiny, Seattle Times, 467
U.S. at 33. Ultimately, this disagreement has no bearing on our
disposition because, as we discuss below, the only two limitations on
NSL procedures required by First Amendment procedural standards would
be required under either degree of scrutiny. We note that, for
purposes of the litigation in this Court, the Government has conceded
that strict scrutiny is the applicable standard.
(b) Strict scrutiny. Under strict scrutiny review, the Government
-36-
must demonstrate that the nondisclosure requirement is “narrowly
tailored to promote a compelling Government interest,” Playboy
Entertainment, 529 U.S. at 813, and that there are no “less
restrictive alternatives [that] would be at least as effective in
achieving the legitimate purpose that the statute was enacted to
serve,” Reno v. ACLU, 521 U.S. 844, 874 (1997). Since “[i]t is
obvious and unarguable that no governmental interest is more
compelling than the security of the Nation,” Haig v. Agee, 453 U.S.
280, 307 (1981) (internal quotation marks omitted), the principal
strict scrutiny issue turns on whether the narrow tailoring
requirement is met, and this issue, as the District Court observed,
essentially concerns the process by which the nondisclosure
requirement is imposed and tested, see Doe II, 500 F. Supp. 2d at 399.
With subsections 2709(c) and 3511(b) interpreted as set forth
above, see Part III, supra, two aspects of that process remain
principally at issue: the absence of a requirement that the Government
initiate judicial review of the lawfulness of a nondisclosure
requirement and the degree of deference a district court is obliged to
accord to the certification of senior governmental officials in
ordering nondisclosure.13
13
The Plaintiffs challenged the nondisclosure requirement on the
ground that the discretion vested in senior FBI officials in
determining whether to issue an NSL was unconstitutionally broad, see
Shuttlesworth, 394 U.S. 147. The District Court rejected this claim.
-37-
(i) Absence of requirement that the Government initiate judicial
review. The Plaintiffs alleged, and the District Court agreed, that
the third Freedman procedural requirement applies to the NSL statutes,
requiring the Government to initiate judicial review of its imposition
of a nondisclosure requirement. See Freedman, 380 U.S. at 58-59.
The Government advances several arguments why the third Freedman
safeguard should not apply to judicial review of the nondisclosure
requirement. First, the Government contends that it would be unduly
burdened if it had to initiate a lawsuit to enforce the nondisclosure
requirement in the more than 40,000 NSL requests that were issued in
2005 alone, according to the 2007 report of the Inspector General of
the Department of Justice (“OIG Report”).14 See Doe II, 500 F. Supp.
2d at 390. Related to this argument is the point, advanced in the
Government’s brief to distinguish Freedman, that “there is no reason
See Doe II, 500 F. Supp. 2d at 406-09. In this Court, the Plaintiffs
renewed this argument only in footnotes. Under the circumstances, we
deem the issue forfeited on appeal. See United States v. Restrepo, 986
F.2d 1462, 1463 (2d Cir. 1993) (“We do not consider an argument
mentioned only in a footnote to be adequately raised or preserved for
appellate review.”).
14
An unclassified version of the OIG Report, formally titled “A
Review of the Federal Bureau of Investigation’s Use of National
Secu r i t y L e t t e r s , ” i s a v a i l a b l e at
, last visited Oct.
20, 2008. An unclassified version of a follow-up 2008 OIG Report,
formally titled “A Review of the FBI’s Use of National Security
Letters: Assessment of Corrective Actions and Examination of NSL Usage
i n 2 0 0 6 , ” i s a v a i l a b l e a t
, last visited Oct.
20, 2008.
-38-
to believe that most recipients of NSLs wish to disclose that fact to
anyone.” Br. for Appellants at 33.
Instead of determining whether, as the Government contends, a
burden of initiating litigation can prevent application of the third
Freedman procedural safeguard, we consider an available means of
minimizing that burden, use of which would substantially avoid the
Government’s argument. The Government could inform each NSL recipient
that it should give the Government prompt notice, perhaps within ten
days, in the event that the recipient wishes to contest the
nondisclosure requirement. Upon receipt of such notice, the
Government could be accorded a limited time, perhaps 30 days, to
initiate a judicial review proceeding to maintain the nondisclosure
requirement, and the proceeding would have to be concluded within a
prescribed time, perhaps 60 days. In accordance with the first and
second Freedman safeguards, the NSL could inform the recipient that
the nondisclosure requirement would remain in effect during the entire
interval of the recipient’s decision whether to contest the
nondisclosure requirement, the Government’s prompt application to a
court, and the court’s prompt adjudication on the merits. See
Freedman, 380 U.S. at 58. The NSL could also inform the recipient
that the nondisclosure requirement would remain in effect if the
recipient declines to give the Government notice of an intent to
challenge the requirement or, upon a challenge, if the Government
-39-
prevails in court. If the Government is correct that very few NSL
recipients have any interest in challenging the nondisclosure
requirement (perhaps no more than three have done so thus far), this
“reciprocal notice procedure” would nearly eliminate the Government’s
burden to initiate litigation (with a corresponding minimal burden on
NSL recipients to defend numerous lawsuits). Thus, the Government’s
litigating burden can be substantially minimized, and the resulting
slight burden is not a reason for precluding application of the third
Freedman safeguard.
The Government’s second argument for not applying Freedman’s
third safeguard relies on an attempt to analogize the nondisclosure
requirement in NSLs to nondisclosure requirements imposed in the
context of pre-existing interaction with a governmental activity.
Unlike the movies subject to licensing in Freedman, which were created
independently of governmental activity, the information kept secret by
an NSL, the Government contends, is “information that the recipient
learns by (and only through) his participation in the [G]overnment’s
own investigatory processes.” Br. for Appellants at 31. Although the
governmental interaction distinction has validity with respect to the
litigant obtaining discovery material in Seattle Times and the former
CIA employees seeking to disclose sensitive material in Marchetti and
Snepp, we think it has no application to an ECSP with no relevant
governmental interaction prior to receipt of an NSL. The recipient’s
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“participation” in the investigation is entirely the result of the
Government’s action. The Government also relies on analogies to
secrecy requirements in grand jury and judicial misconduct
proceedings, analogies we have previously rejected. See Part IV(a),
supra.
Third, the Government seeks to avoid Freedman’s third requirement
on the ground that the risk of administrative error “is significantly
smaller under [sub]section 2709(c) than under licensing schemes like
the one in Freedman.” Br. for Appellants at 33. Although the risk of
error may be smaller, it remains sufficient to require a judicial
review procedure that conforms to Freedman. The OIG Report concluded
that “‘the FBI used NSLs in violation of applicable NSL statutes,
Attorney General Guidelines, and internal FBI policies.’” Doe II, 500
F. Supp. 2d at 392 (quoting OIG Report at 124).
Fourth, the Government points out that the Supreme Court did not
apply the third Freedman requirement to the licensing scheme that was
challenged in FW/PBS, which concerned licenses for sexually oriented
businesses. However, the distinctions with Freedman noted by the
Court in FW/PBS point in favor of applying the third Freedman
requirement to subsection 2709(c). First, the Court noted that the
licensing authority was not “passing judgment on the content of any
protected speech,” but was performing the “ministerial action” of
“review[ing] the general qualifications of each license applicant.”
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FW/PBS, 493 U.S. at 229. Under subsection 2709(c), however, the
Government is exercising discretion to prohibit disclosure of speech
on a topic of significant public concern. Second, the Court noted
that the license applicant in FW/PBS had “every incentive” to initiate
a judicial challenge to a license denial because the license was “the
key to the applicant’s obtaining and maintaining a business,” id. at
229-30, a greater incentive than the movie distributor had in
Freedman, “where only one film was censored,” id. at 229. The typical
NSL recipient, by contrast, who runs a business that is in no sense
dependent on revealing the receipt of an NSL, has little if any
incentive to initiate a court challenge in order to speak publicly
about such receipt. FW/PBS does not provide a basis for ignoring the
third Freedman requirement.
We acknowledge, however, that the nondisclosure requirement of
subsection 2709(c) is not facially a licensing scheme of the sort at
issue in Freedman. Unlike an exhibitor of movies, John Doe, Inc., did
not intend to speak and was not subject to any administrative
restraint on speaking prior to the Government’s issuance of an NSL.
Nevertheless, once the NSL arrived, John Doe, Inc., did wish to speak
publicly about it and was prohibited from doing so by an
administrative order. Freedman’s third requirement cannot be
disregarded simply because subsection 2709(c) does not impose a
traditional licensing scheme.
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The availability of a minimally burdensome reciprocal notice
procedure for governmental initiation of judicial review and the
inadequacy of the Government’s attempts to avoid the third Freedman
safeguard persuade us that this safeguard, normally required where
strict scrutiny applies, must be observed. Therefore, in the absence
of Government-initiated judicial review, subsection 3511(b) is not
narrowly tailored to conform to First Amendment procedural standards.
We conclude, as did the District Court, see Doe II, 500 F. Supp. 2d at
401-06, that subsection 3511(b) does not survive either traditional
strict scrutiny or a slightly less exacting measure of such scrutiny.
(ii) Deference to administrative discretion. The Plaintiffs
contended, and the District Court agreed, that the judicial review
contemplated by subsection 3511(b) authorizes a degree of deference to
the Executive Branch that is inconsistent with First Amendment
standards. Although acknowledging that “national security is a
compelling interest justifying nondisclosure in certain situations,”
id. at 418, the District Court faulted the review provision in several
respects. First, the Court stated that the statute “requires the
court to blindly credit a finding that there ‘may’ be a reason--
potentially any conceivable and not patently frivolous reason--for it
to believe disclosure will result in a certain harm.” Id. Our
construction of the statute, however, avoids that concern. As
indicated above, see Part III, supra, we interpret subsection 3511(b)
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to place on the Government the burden to show a “good” reason to
believe that disclosure may result in an enumerated harm, i.e., a harm
related to “an authorized investigation to protect against
international terrorism or clandestine intelligence activities,” 18
U.S.C. § 2709(b)(1), (2), and to place on a district court an
obligation to make the “may result” finding only after consideration,
albeit deferential, of the Government’s explanation concerning the
risk of an enumerated harm.
Assessing the Government’s showing of a good reason to believe
that an enumerated harm may result will present a district court with
a delicate task. While the court will normally defer to the
Government’s considered assessment of why disclosure in a particular
case may result in an enumerated harm related to such grave matters as
international terrorism or clandestine intelligence activities, it
cannot, consistent with strict scrutiny standards, uphold a
nondisclosure requirement on a conclusory assurance that such a
likelihood exists. In this case, the director of the FBI certified
that “the disclosure of the NSL itself or its contents may endanger
the national security of the United States.” To accept that
conclusion without requiring some elaboration would “cast Article III
judges in the role of petty functionaries, persons required to enter
as a court judgment an executive officer’s decision, but stripped of
capacity to evaluate independently whether the executive’s decision is
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correct.” Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 426 (1995).
In showing why disclosure would risk an enumerated harm, the
Government must at least indicate the nature of the apprehended harm
and provide a court with some basis to assure itself (based on in
camera presentations where appropriate) that the link between
disclosure and risk of harm is substantial.15 As the Government
acknowledges, “Nothing in [subs]ection 3511(b) would require a
district court to confine judicial review to the FBI’s necessarily
unelaborated public statement about the need for nondisclosure. The
provisions in [subs]ections 3511(d) and (e) for ex parte and in camera
review provide a ready mechanism for the FBI to provide a more
complete explanation of its reasoning, and the court is free to elicit
such an explanation as part of the review process.” Reply Br. for
Appellants at 10 n.4.
We have every confidence that district judges can discharge their
review responsibility with faithfulness to First Amendment
considerations and without intruding on the prerogative of the
Executive Branch to exercise its judgment on matters of national
security. Such a judgment is not to be second-guessed, but a court
must receive some indication that the judgment has been soundly
15
The Government sought to amplify its grounds for nondisclosure
in a classified declaration submitted ex parte to the District Court
and made available for our in camera review. This declaration will be
available to the District Court on remand.
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reached. As the Supreme Court has noted in matters of similar
gravity, the Constitution “envisions a role for all three branches
when individual liberties are at stake.” Hamdi v. Rumsfeld, 542 U.S.
507, 536 (2004).
The District Court’s second reason for considering the judicial
review procedure of subsection 3511(b) deficient was a perceived
preclusion of a court’s authority, when presented with a “plausible,
reasonable, and specific” enumerated harm, to balance “the potential
harm against the particular First Amendment interest raised by a
particular challenge.” Doe II, 500 F. Supp. 2d at 418. We see no
deficiency in this regard. The balance sought by the District Court
is an important aspect of judicial review of prior restraints. See,
e.g., New York Times Co. v. United States, 403 U.S. 713 (1971). That
is why we have interpreted the statutory standard to permit a
nondisclosure requirement only upon an adequate demonstration that a
good reason exists reasonably to apprehend a risk of an enumerated
harm, and have expressly read the enumerated harms as being linked to
international terrorism or clandestine intelligence activities. As a
result of this interpretation, the balance sought by the District
Court is now inherent in the statutory standard. A demonstration of
a reasonable likelihood of potential harm, related to international
terrorism or clandestine intelligence activities, will virtually
always outweigh the First Amendment interest in speaking about such a
-46-
limited and particularized occurrence as the receipt of an NSL and
will suffice to maintain the secrecy of the fact of such receipt.
The District Court’s third objection to the judicial review
procedure is far more substantial. The Court deemed inconsistent with
strict scrutiny standards the provision of subsections 3511(b)(2) and
(b)(3) specifying that a certification by senior governmental
officials that disclosure may “endanger the national security of the
United States or interfere with diplomatic relations . . . shall be
treated as conclusive unless the court finds that the certification
was made in bad faith.” 18 U.S.C. § 3511(b)(2). See Doe II, 500 F.
Supp. 2d at 419. We agree.
There is not meaningful judicial review of the decision of the
Executive Branch to prohibit speech if the position of the Executive
Branch that speech would be harmful is “conclusive” on a reviewing
court, absent only a demonstration of bad faith. To accept deference
to that extraordinary degree would be to reduce strict scrutiny to no
scrutiny, save only in the rarest of situations where bad faith could
be shown. Under either traditional strict scrutiny or a less exacting
application of that standard, some demonstration from the Executive
Branch of the need for secrecy is required in order to conform the
nondisclosure requirement to First Amendment standards. The fiat of
a governmental official, though senior in rank and doubtless honorable
in the execution of official duties, cannot displace the judicial
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obligation to enforce constitutional requirements. “Under no
circumstances should the Judiciary become the handmaiden of the
Executive.” United States v. Smith, 899 F.2d 564, 569 (6th Cir. 1990).
V. Remedy
To recapitulate our conclusions, we (1) construe subsection
2709(c) to permit a nondisclosure requirement only when senior FBI
officials certify that disclosure may result in an enumerated harm
that is related to “an authorized investigation to protect against
international terrorism or clandestine intelligence activities,” (2)
construe subsections 3511(b)(2) and (b)(3) to place on the Government
the burden to show that a good reason exists to expect that disclosure
of receipt of an NSL will risk an enumerated harm, (3) construe
subsections 3511(b)(2) and (b)(3) to mean that the Government
satisfies its burden when it makes an adequate demonstration as to why
disclosure in a particular case may result in an enumerated harm, (4)
rule that subsections 2709(c) and 3511(b) are unconstitutional to the
extent that they impose a nondisclosure requirement without placing on
the Government the burden of initiating judicial review of that
requirement, and (5) rule that subsections 3511(b)(2) and (b)(3) are
unconstitutional to the extent that, upon such review, a governmental
official’s certification that disclosure may endanger the national
security of the United States or interfere with diplomatic relations
is treated as conclusive.
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Implementing these conclusions requires us to apply the
principles of judicial interpretation and limited revision of statutes
and consider the related issue of severance discussed in Part I,
supra. We are satisfied that conclusions (1), (2), and (3) fall
within our judicial authority to interpret statutes to avoid
constitutional objections or conform to constitutional requirements.
Conclusions (4) and (5) require further consideration.
We deem it beyond the authority of a court to “interpret” or
“revise” the NSL statutes to create the constitutionally required
obligation of the Government to initiate judicial review of a
nondisclosure requirement. However, the Government might be able to
assume such an obligation without additional legislation. As we
discussed in Part IV(b)(i), supra, the Government’s concern about the
potentially substantial burden of initiating litigation can be readily
alleviated by use of the reciprocal notice procedure we have
suggested.
If the Government uses the suggested reciprocal notice procedure
as a means of initiating judicial review, there appears to be no
impediment to the Government’s including notice of a recipient’s
opportunity to contest the nondisclosure requirement in an NSL. If
such notice is given, time limits on the nondisclosure requirement
pending judicial review, as reflected in Freedman, would have to be
applied to make the review procedure constitutional. We would deem it
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to be within our judicial authority to conform subsection 2709(c) to
First Amendment requirements, by limiting the duration of the
nondisclosure requirement, absent a ruling favorable to the Government
upon judicial review, to the 10-day period in which the NSL recipient
decides whether to contest the nondisclosure requirement, the 30-day
period in which the Government considers whether to seek judicial
review, and a further period of 60 days in which a court must
adjudicate the merits, unless special circumstances warrant additional
time. See Thirty-Seven Photographs, 402 U.S. at 373-74 (imposing time
limits to satisfy constitutional requirements). If the NSL recipient
declines timely to precipitate Government-initiated judicial review,
the nondisclosure requirement would continue, subject to the
recipient’s existing opportunities for annual challenges to the
nondisclosure requirement provided by subsection 3511(b).16 If such
an annual challenge is made, the standards and burden of proof that we
have specified for an initial challenge would apply, although the
16
The District Court ruled that those opportunities were
constitutionally flawed because they unduly prolonged the duration of
the nondisclosure requirement, see Doe II, 500 F. Supp. 2d at 421-22.
We are satisfied, however, that, once the Government has initiated
judicial review and prevailed on the merits, limiting an NSL recipient
to annual opportunities thereafter to terminate the nondisclosure
requirement does not violate First Amendment procedural requirements.
The information subject to nondisclosure is extremely limited, and,
once the need for secrecy--avoiding risk of harm related to
international terrorism--has been shown, that need is not likely to
dissipate soon.
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Government would not be obliged to initiate judicial review.
In those instances where an NSL recipient gives notice of an
intent to challenge the disclosure requirement, the Government would
have several options for completing the reciprocal notice procedure by
commencing such review. First, it is arguable that the Government can
adapt the authority now set forth in subsection 3511(c) for the
purpose of initiating judicial review. That provision authorizes the
Attorney General to “invoke the aid of any [relevant] district court”
in the event of “a failure to comply with a request for . . .
information made to any person or entity under section 2709(b)” or
other provisions authorizing NSLs. 18 U.S.C. § 3511(c). Since an NSL
includes both a request for information and a direction not to
disclose that the FBI has sought or obtained information, an NSL
recipient’s timely notice of intent to disclose, furnished in response
to notice in an NSL of an opportunity to contest the nondisclosure
requirement, can perhaps be considered the functional equivalent of
the “failure to comply” contemplated by subsection 3511(c). Second,
the Government might be able to identify some other statutory
authority to invoke the equitable power of a district court to prevent
a disclosure that the Government can demonstrate would risk harm to
national security. Third, and as a last resort, the Government could
seek explicit congressional authorization to initiate judicial review
of a nondisclosure requirement that a recipient wishes to challenge.
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We leave it to the Government to consider how to discharge its
obligation to initiate judicial review.
In view of these possibilities, we need not invalidate the
entirety of the nondisclosure requirement of subsection 2709(c) or the
judicial review provisions of subsection 3511(b). Although the
conclusive presumption clause of subsections 3511(b)(2) and (b)(3)
must be stricken, we invalidate subsection 2709(c) and the remainder
of subsection 3511(b) only to the extent that they fail to provide for
Government-initiated judicial review. The Government can respond to
this partial invalidation ruling by using the suggested reciprocal
notice procedure. With this procedure in place, subsections 2709(c)
and 3511(b) would survive First Amendment challenge.
These partial invalidations of subsections 2709(c) and 3511(b)
oblige us to consider the issue of severance. The District Court,
understandably unaware of the narrowing interpretations we have made,
invalidated the entirety of subsection 2709(c) and the entirety of
subsection 3511(b). See Doe II, 500 F. Supp. 2d at 424. Then,
concluding that Congress would not have wanted the NSL authorization
contained in subsections 2709(a) and (b) to stand in the absence of a
nondisclosure requirement, it invalidated the entirety of section
2709. Id. As a result of these rulings, the court enjoined FBI
officials from issuing NSL letters under section 2709, enforcing the
nondisclosure requirement of subsection 2709(c), and enforcing the
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provisions for judicial review of the nondisclosure requirement
contained in subsection 3511(b). With the NSL statutes now construed
to avoid some of the Plaintiffs’ constitutional challenges and
partially invalidated to render the statutes constitutional, we
disagree that section 2709 and subsection 3511(b) must be stricken and
their enforcement enjoined.
We have no doubt that if Congress had understood that First
Amendment considerations required the Government to initiate judicial
review of a nondisclosure requirement and precluded a conclusive
certification by the Attorney General, it would have wanted the
remainder of the NSL statutes to remain in force. Congress would
surely have wanted the Government to retain the authority to issue
NSLs even if all aspects of the nondisclosure requirement of
subsection 2709(c) and the judicial review provisions of section
3511(b) had been invalidated. As the Government points out, even
without a nondisclosure requirement, it can protect the national
interest by issuing NSLs only where it expects compliance with a
request for secrecy to be honored. See Br. for Appellants at 60-61.
A fortiori, authority to issue NSLs should be preserved in view of the
limiting constructions and limited invalidations we have ordered. We
therefore sever the conclusive presumption language of subsection
3511(b) and leave intact the remainder of subsection 3511(b) and the
entirety of section 2709 (with Government-initiated judicial review
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required). As a result of this ruling, we modify the District Court’s
injunction by limiting it to enjoining FBI officials from enforcing
the nondisclosure requirement of section 2709(c) in the absence of
Government-initiated judicial review.17
There remains for consideration the issue of the procedure to be
followed with respect to judicial review of the nondisclosure
requirement with respect to the NSL issued to John Doe, Inc. Although
we have ruled that the Government is obliged to initiate judicial
review of a nondisclosure requirement, it would be pointless to
dismiss the pending litigation and direct the Government to start
anew. With judicial review already initiated in the District Court
and the constitutionality of the disclosure requirement salvaged by
the statutory interpretations and partial invalidations we have
ordered, the sounder course is to remand so that the Government may
have an opportunity to sustain its burden of proof and satisfy the
constitutional standards we have outlined for maintaining the
disclosure requirement. See 28 U.S.C. § 2106.
Conclusion
Accordingly, for all the foregoing reasons, subsections 2709(c)
17
With the Government having withdrawn its request for the
information originally sought by the NSL issued to John Doe, Inc., and
our severance ruling having retained the entirety of section 2709, we
need not consider the constitutionality of using NSLs to request
information.
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and 3511(b) are construed in conformity with this opinion and
partially invalidated only to the extent set forth in this opinion,
the injunction is modified as set forth in this opinion, and the
judgment of the District Court is affirmed in part, reversed in part,
and remanded for further proceedings consistent with this opinion.
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