Under Seal v. Jefferson Sessions ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE NATIONAL SECURITY LETTER, No. 16-16067
D.C. No.
UNDER SEAL, 3:11-cv-02173-SI
Petitioner-Appellant,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent-Appellee.
IN RE NATIONAL SECURITY LETTER, No. 16-16081
D.C. No.
UNDER SEAL, 3:13-mc-80089-
Petitioner-Appellant, SI
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent-Appellee.
2 IN RE NATIONAL SECURITY LETTER
IN RE NATIONAL SECURITY LETTER, No. 16-16082
D.C. No.
UNDER SEAL, 3:13-cv-01165-SI
Petitioner-Appellant,
v. ORDER AND
AMENDED
JEFFERSON B. SESSIONS III, Attorney OPINION
General,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
Argued and Submitted March 22, 2017
San Francisco, California
Filed July 17, 2017
Amended May 11, 2022
Before: Mary H. Murguia, Chief Judge, and Sandra S.
Ikuta and N. Randy Smith, Circuit Judges.
Order;
Opinion by Judge Ikuta;
Concurrence by Chief Judge Murguia
IN RE NATIONAL SECURITY LETTER 3
SUMMARY*
Civil Rights
The panel (1) amended its opinion affirming the district
court’s orders denying petitions brought by electronic
communication service providers pursuant to 18 U.S.C.
§ 3511(a) to set aside information requests and nondisclosure
requirements in National Security Letters issued to them by
the Federal Bureau of Investigation; (2) denied a petition for
rehearing; (3) denied a petition for rehearing en banc on
behalf of the court, noting that a judge requested a vote on
whether to rehear the matter en banc, but the matter failed to
receive a majority of votes of the nonrecused active judges in
favor of en banc consideration; and (4) ordered that no further
petitions would be entertained.
A National Security Letter is an administrative subpoena
issued by the FBI to a wire or electronic communication
service provider requiring the provider to produce specified
subscriber information that is relevant to an authorized
national security investigation. 18 U.S.C. § 2709(a). By
statute, a National Security Letter may include a requirement
that the recipient not disclose the fact that it has received such
a request. In this case, recipients of National Security Letters
alleged that the nondisclosure requirement violated their First
Amendment rights.
The panel held that § 2709(c)’s nondisclosure
requirement imposes a content-based restriction that was
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 IN RE NATIONAL SECURITY LETTER
subject to, and withstood, strict scrutiny. The panel further
held that, assuming the nondisclosure requirement was the
type of prior restraint for which the procedural safeguards set
forth in Freedman v. Maryland, 380 U.S. 51 (1965) were
required, the National Security Letters law provided those
safeguards. The panel concluded that the nondisclosure
requirement did not run afoul of the First Amendment.
Concurring, Chief Judge Murguia agreed that the NSL
law’s nondisclosure requirement—which prohibits an
electronic communication service provider from disclosing
that the Federal Bureau of Investigation has sought or
obtained information from the provider pursuant to an
administrative subpoena, 18 U.S.C. § 2709(c)(1)(A)—did not
violate the First Amendment. The law passed constitutional
muster because it was narrowly tailored to serve compelling
national security interests and because it provided the
government “narrow, objective, and definite standards” which
limited its ability to prohibit disclosure as well as sufficiently
robust procedural safeguards, including prompt judicial
review. Chief Judge Murguia wrote separately, however,
merely to make explicit that the panel’s conclusions rested on
the assumption that the NSL law’s nondisclosure requirement
was a prior restraint of speech.
COUNSEL
Andrew Crocker (argued), Nathan Cardozo, Lee Tien, Kurt
Opsahl, Jennifer Lynch, David Greene, Cindy Cohn, and
Aaron Mackey, Electronic Frontier Foundation, San
Francisco, California; Richard Wiebe, Law Office of Richard
R. Wiebe, San Francisco, California; for Petitioner-
Appellants.
IN RE NATIONAL SECURITY LETTER 5
Lewis S. Yelin (argued), Scott R. McIntosh, and Douglas N.
Letter, Appellate Staff; Brian Stretch, United States Attorney;
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General; Civil Division, United States Department of Justice,
Washington, D.C.; for Respondent-Appellee.
Jonathan Manes, University at Buffalo School of Law, The
State University of New York, Buffalo, New York; Hannah
Bloch-Wehba and John T. Langford, Floyd Abrams Institute
for Freedom of Expression, Yale Law School, New Haven,
Connecticut; for Amici Curiae Abrams Institute for Freedom
of Expression and First Amendment Scholars.
Bruce D. Brown, Caitlin Vogus, and Selina MacLaren, The
Reporters Committee for Freedom of the Press, Washington,
D.C., for Amici Curiae The Reporters Committee for
Freedom of the Press and 20 Media Organizations.
ORDER
The opinion filed July 17, 2017, and appearing at
863 F.3d 1110, is hereby amended as follows:
On page 1121, part III, the seventh sentence should be
amended as follows:
Accordingly, we analyze the recipients’
challenge as an as-applied challenge.
On page 1129, part III, the following footnote 22 should be
added after
22. Contrary to Chief Judge Murguia’s
concurrence, the Supreme Court does not
refer to every law that bars speech in advance
of its occurrence as a prior restraint. Conc. at
1. The Supreme Court has upheld the
governmental confidentiality requirements
discussed above, and of course, many other
opinions uphold laws barring future speech,
see, e.g., Holder v. Humanitarian Law
Project, 561 U.S. 1, 36 (2010) (upholding a
law criminalizing communications that
provide material support to a foreign terrorist
organization); Rust v. Sullivan, 500 U.S. 173,
192–94 (1991) (upholding regulations barring
certain federally funded facilities from
advocating abortion as a method of family
planning). Although these cases considered
laws preventing speech in advance of its
occurrence, Conc. at 1, the Supreme Court did
not use the term “prior restraint” nor require
the procedural safeguards set forth in
Freedman.
Further, Chief Judge Murguia’s attached concurrence
shall be appended to the opinion.
With this amendment, the petition for rehearing en banc,
filed October 2, 2017, is DENIED. The panel has voted to
deny appellant’s petition for rehearing. The full court has
been advised of the petition for rehearing en banc. A judge
requested a vote on whether to rehear the matter en banc.
IN RE NATIONAL SECURITY LETTER 7
The matter failed to receive a majority of votes of the
nonrecused active judges in favor of en banc consideration.
Fed. R. App. P. 35(g). Judge Miller and Judge Koh did not
participate in the deliberations or vote in this case. No further
petitions for rehearing or rehearing en banc will be
entertained.
OPINION
IKUTA, Circuit Judge:
In this case, we consider challenges to the
constitutionality of the law authorizing the Federal Bureau of
Investigation (FBI) to prevent a recipient of a national
security letter (NSL) from disclosing the fact that it has
received such a request. 18 U.S.C. § 2709(c). An NSL is an
administrative subpoena issued by the FBI to a wire or
electronic communication service provider which requires the
provider to produce specified subscriber information that is
relevant to an authorized national security investigation. Id.§ 2709(a). By statute, the NSL may include a requirement
that the recipient not “disclose to any person that the Federal
Bureau of Investigation has sought or obtained access to
information or records” under the NSL law. Id.
§ 2709(c)(1)(A). Both the information request and the
nondisclosure requirement are subject to judicial review. See
id. § 3511. (Because § 2709 and § 3511 work together, we
refer to them collectively as “the NSL law.”)
Certain recipients of these NSLs claim that the
nondisclosure requirement violates their First Amendment
rights. We hold that the nondisclosure requirement in
18 U.S.C. § 2709(c) is a content-based restriction on speech
8 IN RE NATIONAL SECURITY LETTER
that is subject to strict scrutiny, and that the nondisclosure
requirement withstands such scrutiny. Accordingly, we
affirm.
I
We begin by reviewing the statutory framework under
which NSLs are issued. The law authorizing the FBI to send
an information request to a wire or electronic communication
service provider was originally enacted as part of the
Electronic Communications Privacy Act of 1986. Pub. L.
No. 99-508, § 201, 100 Stat. 1848, 1867. The law was
extensively amended in 2006, as part of the USA Patriot
Improvement and Reauthorization Act of 2005. Pub. L. No.
109-177, §§ 115, 116(a), 120 Stat. 192, 211–17 (2006). The
letters received by the recipients here were issued under the
2006 version of the NSL law. Subsequently, Congress
enacted the USA FREEDOM Act of 2015, Pub. L. No. 114-
23, 129 Stat. 268, which further amended the NSL law
effective June 2, 2015.1
The NSL law is best understood as a form of
administrative subpoena. Congress may authorize federal
agencies to issue administrative subpoenas without court
authorization for any purpose within Congress’s
constitutional power. See Okla. Press Publ’g Co. v. Walling,
327 U.S. 186, 208–09 (1946); see also ICC v. Brimson,
154 U.S. 448, 472–73 (1894), overruled on other grounds by
Bloom v. Illinois, 391 U.S. 194, 198–200 (1968). But while
1
Where necessary to differentiate between the 2006 and 2015
versions of the NSL law, we refer to the former as the “2006 NSL law”
and the latter as the “2015 NSL law.” Unless otherwise noted, a reference
to 18 U.S.C. § 2709 or 18 U.S.C. § 3511 refers to the 2015 NSL law.
IN RE NATIONAL SECURITY LETTER 9
an agency may issue a subpoena without prior judicial
approval, it must invoke the aid of a federal court to enforce
it. See, e.g., United States v. Sec. State Bank & Trust,
473 F.2d 638, 641–42 (5th Cir. 1973); see also Shasta
Minerals & Chem. Co. v. SEC, 328 F.2d 285, 286 (10th Cir.
1964). The “power to punish is not generally available to
federal administrative agencies,” and so enforcement must be
sought “by way of a separate judicial proceeding.” Shasta
Minerals, 328 F.2d at 286.
Sections 2709 and 3511 follow the statutory framework
typically used to authorize administrative subpoenas.
Compare 18 U.S.C. §§ 2709, 3511, with, e.g., 21 U.S.C.
§ 876(a). Section 2709 authorizes the FBI to make an
information request to “[a] wire or electronic communication
service provider” for “subscriber information and toll billing
records information, or electronic communication
transactional records in its custody or possession,” and
provides that the recipient “shall comply” with the request.
18 U.S.C. § 2709(a).2 In order to issue such a request, the
FBI Director or a sufficiently high-ranking designee of the
Director must “specifically identif[y] a person, entity,
telephone number, or account as the basis for a request,” and
must certify that the “records sought are relevant to an
authorized investigation to protect against international
2
18 U.S.C. § 2709(a) provides:
Duty to Provide. — A wire or electronic
communication service provider shall comply with a
request for subscriber information and toll billing
records information, or electronic communication
transactional records in its custody or possession made
by the Director of the Federal Bureau of Investigation
under subsection (b) of this section.
10 IN RE NATIONAL SECURITY LETTER
terrorism or clandestine intelligence activities” and that the
investigation “is not conducted solely on the basis of
activities protected by the first amendment to the Constitution
of the United States.” Id. § 2709(b)(1)–(2).3 The NSL must
3
18 U.S.C. § 2709(b) provides:
Required Certification. — The Director of the Federal
Bureau of Investigation, or his designee in a position
not lower than Deputy Assistant Director at Bureau
headquarters or a Special Agent in Charge in a Bureau
field office designated by the Director, may, using a
term that specifically identifies a person, entity,
telephone number, or account as the basis for a request
—
(1) request the name, address, length of service, and
local and long distance toll billing records of a person
or entity if the Director (or his designee) certifies in
writing to the wire or electronic communication service
provider to which the request is made that the name,
address, length of service, and toll billing records
sought are relevant to an authorized investigation to
protect against international terrorism or clandestine
intelligence activities, provided that such an
investigation of a United States person is not conducted
solely on the basis of activities protected by the first
amendment to the Constitution of the United States; and
(2) request the name, address, and length of service of
a person or entity if the Director (or his designee)
certifies in writing to the wire or electronic
communication service provider to which the request is
made that the information sought is relevant to an
authorized investigation to protect against international
terrorism or clandestine intelligence activities, provided
that such an investigation of a United States person is
not conducted solely upon the basis of activities
IN RE NATIONAL SECURITY LETTER 11
include notice of the availability of judicial review under 18
U.S.C. § 3511. Id. § 2709(d).
The NSL law contemplates that in some cases, a
recipient’s disclosure of the fact that it has received an FBI
request for specific information may result in one of four
enumerated harms: “(i) a danger to the national security of
the United States; (ii) interference with a criminal,
counterterrorism, or counterintelligence investigation; (iii)
interference with diplomatic relations; or (iv) danger to the
life or physical safety of any person.” Id. § 2709(c)(1)(B).4
If the FBI Director or a sufficiently high-ranking designee of
the Director issues a certification “that the absence of a
prohibition of disclosure under this subsection may result” in
protected by the first amendment to the Constitution of
the United States.
4
18 U.S.C. § 2709(c)(1)(B) provides:
Certification. — The requirements of subparagraph (A)
shall apply if the Director of the Federal Bureau of
Investigation, or a designee of the Director whose rank
shall be no lower than Deputy Assistant Director at
Bureau headquarters or a Special Agent in Charge of a
Bureau field office, certifies that the absence of a
prohibition of disclosure under this subsection may
result in —
(i) a danger to the national security of the United States;
(ii) interference with a criminal, counterterrorism, or
counterintelligence investigation;
(iii) interference with diplomatic relations; or
(iv) danger to the life or physical safety of any person.
12 IN RE NATIONAL SECURITY LETTER
one of these harms, id., and the government gives the
recipient notice of the availability of judicial review pursuant
to § 3511, see id. § 2709(d)(2), the government may prohibit
the recipient from disclosing that it has received the NSL, see
id. § 2709(c)(1)(A),5 subject to such judicial review.
There are three statutory exceptions to the nondisclosure
requirement. See id. § 2709(c)(2).6 First, a recipient “may
5
18 U.S.C. § 2709(c)(1)(A) provides:
In general. — If a certification is issued under
subparagraph (B) and notice of the right to judicial
review under subsection (d) is provided, no wire or
electronic communication service provider that receives
a request under subsection (b), or officer, employee, or
agent thereof, shall disclose to any person that the
Federal Bureau of Investigation has sought or obtained
access to information or records under this section.
6
18 U.S.C. § 2709(c)(2) provides:
(A) In general. — A wire or electronic communication
service provider that receives a request under
subsection (b), or officer, employee, or agent thereof,
may disclose information otherwise subject to any
applicable nondisclosure requirement to —
(i) those persons to whom disclosure is necessary in
order to comply with the request;
(ii) an attorney in order to obtain legal advice or
assistance regarding the request; or
(iii) other persons as permitted by the Director of the
Federal Bureau of Investigation or the designee of the
Director.
IN RE NATIONAL SECURITY LETTER 13
disclose information otherwise subject to any applicable
nondisclosure requirement” to “those persons to whom
disclosure is necessary in order to comply with the request.”
Id. § 2709(c)(2)(A)(i). Second, the recipient may disclose
such information to “an attorney in order to obtain legal
advice or assistance regarding the request.” Id.
§ 2709(c)(2)(A)(ii). Third, if the recipient wants to provide
the information to other individuals, it may do so if it obtains
the permission of the FBI Director or the designee of the
Director. Id. § 2709(c)(2)(A)(iii). The recipient must also
inform those persons receiving the information that they are
subject to the same nondisclosure requirement applicable to
the initial recipient, id. § 2709(c)(2)(C).
As is typical in the administrative subpoena context,
§ 2709 does not contain any penalty provision either for
(B) Application. — A person to whom disclosure is
made under subparagraph (A) shall be subject to the
nondisclosure requirements applicable to a person to
whom a request is issued under subsection (b) in the
same manner as the person to whom the request is
issued.
(C) Notice. — Any recipient that discloses to a person
described in subparagraph (A) information otherwise
subject to a nondisclosure requirement shall notify the
person of the applicable nondisclosure requirement.
(D) Identification of disclosure recipients. — At the
request of the Director of the Federal Bureau of
Investigation or the designee of the Director, any
person making or intending to make a disclosure under
clause (i) or (iii) of subparagraph (A) shall identify to
the Director or such designee the person to whom such
disclosure will be made or to whom such disclosure
was made prior to the request.
14 IN RE NATIONAL SECURITY LETTER
failure to comply with the information request or for failure
to comply with the nondisclosure requirement. Only a court
has authority to enforce the information request or the
nondisclosure requirement. See id. § 3511. If a recipient fails
to comply with an information request, the government “may
invoke the aid” of a district court “to compel compliance with
the request.” Id. § 3511(c).7 The court may “issue an order
requiring the person or entity to comply with the request,”
and “[a]ny failure to obey the order of the court may be
punished by the court as contempt thereof.” Id.
Alternatively, the recipient of an NSL may petition the
district court “for an order modifying or setting aside the
request,” and the district court may do so “if compliance
7
18 U.S.C. § 3511(c) provides:
In the case of a failure to comply with a request for
records, a report, or other information made to any
person or entity under section 2709(b) of this title,
section 626(a) or (b) or 627(a) of the Fair Credit
Reporting Act, section 1114(a)(5)(A) of the Right to
Financial Privacy Act, or section 802(a) of the National
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.
IN RE NATIONAL SECURITY LETTER 15
would be unreasonable, oppressive, or otherwise unlawful.”
Id. § 3511(a).8
Whenever a nondisclosure requirement under § 2709(c)
is imposed on a recipient, the recipient may challenge the
requirement in one of two ways. First, the recipient may “file
a petition for judicial review in any court described in
[§ 3511(a)].” Id. § 3511(b)(1)(A).9 Second, the recipient
8
18 U.S.C. § 3511(a) provides, in relevant part:
The recipient of a request for records, a report, or other
information under section 2709(b) of this title . . . may,
in the United States district court for the district in
which that person or entity does business or resides,
petition for an order modifying or setting aside the
request. The court may modify or set aside the request
if compliance would be unreasonable, oppressive, or
otherwise unlawful.
9
18 U.S.C. § 3511(b)(1) provides:
(A) Notice. — If a recipient of a request or order for a
report, records, or other information under section 2709
of this title . . . wishes to have a court review a
nondisclosure requirement imposed in connection with
the request or order, the recipient may notify the
Government or file a petition for judicial review in any
court described in subsection (a).
(B) Application. — Not later than 30 days after the date
of receipt of a notification under subparagraph (A), the
Government shall apply for an order prohibiting the
disclosure of the existence or contents of the relevant
request or order. An application under this
subparagraph may be filed in the district court of the
United States for the judicial district in which the
recipient of the order is doing business or in the district
16 IN RE NATIONAL SECURITY LETTER
“may notify the Government” that it desires judicial review,
id., in which case “[n]ot later than 30 days after the date of
receipt of a notification [from the recipient], the Government
shall apply [to the district court] for an order prohibiting”
disclosure, id. § 3511(b)(1)(B). The government’s
application for a nondisclosure order (or for an extension of
such an order), must include a certification from the FBI
Director or a sufficiently high-ranking designee “containing
a statement of specific facts indicating that the absence of a
prohibition of disclosure under [§ 3511(b)] may result in” one
of the four harms enumerated in § 2709(c)(1)(B). Id.
§ 3511(b)(2).10 The nondisclosure requirement remains in
court of the United States for any judicial district within
which the authorized investigation that is the basis for
the request is being conducted. The applicable
nondisclosure requirement shall remain in effect during
the pendency of proceedings relating to the
requirement.
(C) Consideration. — A district court of the United
States that receives a petition under subparagraph (A)
or an application under subparagraph (B) should rule
expeditiously, and shall, subject to paragraph (3), issue
a nondisclosure order that includes conditions
appropriate to the circumstances.
10
18 U.S.C. § 3511(b)(2) provides:
An application for a nondisclosure order or extension
thereof or a response to a petition filed under paragraph
(1) shall include a certification from the Attorney
General, Deputy Attorney General, an Assistant
Attorney General, or the Director of the Federal Bureau
of Investigation, or a designee in a position not lower
than Deputy Assistant Director at Bureau headquarters
or a Special Agent in Charge in a Bureau field office
designated by the Director, or in the case of a request
IN RE NATIONAL SECURITY LETTER 17
effect while the district court considers the recipient’s
challenge or the government’s application for a nondisclosure
order. Id. § 3511(b)(1)(B).
A court receiving a recipient’s petition for judicial review
of a nondisclosure requirement or the government’s
application for a nondisclosure order “should rule
expeditiously.” Id. § 3511(b)(1)(C). The court “shall issue
a nondisclosure order or extension thereof . . . if the court
determines that there is [good] reason to believe that
disclosure of the information subject to the nondisclosure
requirement during the applicable time period may result in”
one of the four enumerated harms. Id. § 3511(b)(3).11 In
by a department, agency, or instrumentality of the
Federal Government other than the Department of
Justice, the head or deputy head of the department,
agency, or instrumentality, containing a statement of
specific facts indicating that the absence of a
prohibition of disclosure under this subsection may
result in [the four harms enumerated in 18 U.S.C.
§ 2709(c)(1)(B)].
Under the 2006 NSL law, the government was not required to provide a
statement of specific facts supporting its certification. Rather, “such
certification shall be treated as conclusive unless the court finds that the
certification was made in bad faith.” 18 U.S.C. § 3511(b)(2) (2006).
11
18 U.S.C. § 3511(b)(3) provides:
A district court of the United States shall issue a
nondisclosure order or extension thereof under this
subsection if the court determines that there is reason to
believe that disclosure of the information subject to the
nondisclosure requirement during the applicable time
period may result in [the four harms enumerated in
18 U.S.C. § 2709(c)(1)(B)].
18 IN RE NATIONAL SECURITY LETTER
making this determination, “the court shall, upon request of
the government, review ex parte and in camera any
government submission or portions thereof, which may
include classified information.” Id. § 3511(e). Any
nondisclosure order issued by a reviewing court should
“include[] conditions appropriate to the circumstances.” Id.
§ 3511(b)(1)(C).
In amending the NSL law in 2015, Congress also required
the Attorney General to promulgate procedures for
periodically reviewing and terminating any nondisclosure
requirements issued in connection with an NSL. Pub. L. No.
114-23, Title V, § 502(f), 129 Stat. at 288 (codified at
12 U.S.C. § 3414 note). The Attorney General adopted such
procedures in November 2015. See Termination Procedures
for National Security Letter Nondisclosure Requirement, Fed.
Bur e a u o f I nve s t i ga t i on ( Nov. 24, 2015) ,
https://www.fbi.gov/file-repository/nsl-ndp-procedures.pdf
(hereinafter “Termination Procedures”). Under these
procedures, any nondisclosure requirement must terminate
when the underlying investigation is closed or “on the three-
year anniversary of the initiation” of the investigation, unless
“the FBI makes a determination that one of the existing
statutory standards for nondisclosure is satisfied.” Once the
FBI has determined that nondisclosure is no longer required,
it must provide written notice to the recipient to that effect.
If the FBI does not terminate the nondisclosure requirement
at either of these occasions, the recipient retains the right to
The Second Circuit in John Doe, Inc. v. Mukasey adopted the
“common-sense understanding” that “reason” in the 2006 NSL law means
“good reason.” 549 F.3d 861, 875 (2d Cir. 2008). We also adopt this
understanding.
IN RE NATIONAL SECURITY LETTER 19
challenge the requirement in district court. 18 U.S.C. § 3511(a).
The 2015 legislation amending the NSL law also added
50 U.S.C. § 1874, which allows “[a] person subject to a
nondisclosure requirement” to disclose aggregate data
regarding the number of NSLs (in specified ranges or
“bands”) that the person has received. Pub. L. No. 114-23,
Title VI, § 603(a), 129 Stat. at 295–96 (codified at 50 U.S.C.
§ 1874(a)(1)–(4)). For instance, a person may report
receiving 0 to 99, 0 to 249, 0 to 499, or 0 to 999
nondisclosure requirements. A person who chooses to report
receiving 0 to 99 nondisclosure requirements may make such
a disclosure on an annual basis, while a person who chooses
to report receipt of a larger range of NSLs may report
semiannually. See 50 U.S.C. § 1874(a)(1)–(4).
II
We next turn to the facts of these consolidated appeals,
which involve five NSLs issued to two recipients between
2011 and 2013 (while the 2006 NSL law remained in effect).
Each NSL at issue contained an information request and a
nondisclosure requirement, and informed the recipient that it
could seek judicial review of the nondisclosure requirement
by notifying the FBI and that the FBI would accordingly
initiate judicial review within 30 days.
The first recipient, CREDO Mobile, received three of the
NSLs at issue, the first in 2011 and two more in 2013. The
second recipient, CloudFlare, received the other two NSLs,
both in 2012. Following receipt, CREDO and CloudFlare
petitioned the district court to set aside the information
requests and nondisclosure requirements contained in each
NSL. Each recipient also sought to enjoin the government
20 IN RE NATIONAL SECURITY LETTER
from issuing additional NSLs and from imposing additional
nondisclosure requirements. In response, the government
cross-moved in each case to compel compliance with the
NSLs.
In considering the 2011 NSL issued to CREDO, the
district court held that the nondisclosure and judicial review
provisions in the 2006 NSL law violated the First
Amendment and that these provisions were not severable
from the remainder of the statute, and accordingly enjoined
the government from issuing information requests and from
enforcing nondisclosure requirements. See In re Nat’l Sec.
Letter, 930 F. Supp. 2d 1064, 1081 (N.D. Cal. 2013). The
district court stayed its decision pending the resolution of the
government’s appeal.
Notwithstanding its conclusion that the 2006 NSL law
was constitutionally deficient, the district court denied the
petitions to set aside the information requests and
nondisclosure requirements in the 2013 NSLs issued to
CREDO and the 2012 NSLs issued to CloudFlare. The
district court reasoned that those NSLs were issued in full
compliance with the procedural and substantive requirements
suggested by the Second Circuit in John Doe, Inc. v.
Mukasey, 549 F.3d 861 (2d Cir. 2008), which had held that
the 2006 NSL law could be constitutionally applied if certain
additional safeguards were provided. CREDO and
CloudFlare appealed.
While we considered these appeals, Congress enacted the
USA FREEDOM Act, effective June 2, 2015. Recognizing
the extensive changes to the NSL law made by this
enactment, we vacated the district court’s judgments and
IN RE NATIONAL SECURITY LETTER 21
remanded to allow the district court to consider in the first
instance the constitutionality of the 2015 NSL law.
On remand, CREDO and CloudFlare submitted renewed
petitions under § 3511(a) to set aside the information requests
and nondisclosure requirements contained in each NSL and
the government cross-petitioned to enforce both components
of the NSLs. This time, the district court held that the NSL
law, as amended, was constitutional. It also determined that
the government had carried its burden of showing that there
was good reason to believe that disclosure of the 2011 NSL
to CREDO and of the 2012 NSLs to CloudFlare might result
in one of the four enumerated harms. Accordingly, it granted
the government’s cross-petitions to enforce those three NSLs
in their entirety. However, with respect to the 2013 NSLs to
CREDO, the district court held that the government’s
certification that one of the four enumerated harms would
result absent nondisclosure was insufficient. Accordingly, it
granted CREDO’s petition to set aside the nondisclosure
requirement in the 2013 NSLs.
CREDO and CloudFlare appealed the denial of their
petitions to set aside the information requests and
nondisclosure requirements in the 2011 and 2012 NSLs. The
government cross-appealed the district court’s decision to set
aside the nondisclosure requirements in the 2013 NSLs to
CREDO, but has since voluntarily dismissed its cross-
appeal.12
12
The 2013 NSLs’ nondisclosure requirements are therefore no longer
at issue, and CREDO raises no argument on appeal challenging the
information requests contained in the 2013 NSLs.
22 IN RE NATIONAL SECURITY LETTER
While this appeal was pending, the FBI closed the
investigation underlying the 2011 NSL to CREDO.
Following the Termination Procedures adopted as required by
the 2015 amendments, the FBI determined that continued
nondisclosure was no longer necessary and so notified
CREDO in writing. According to the FBI’s letter to CREDO,
CREDO may now disclose “[t]he fact that [CREDO] received
the NSL on a certain date” and “[w]hether or not [CREDO]
provided responsive information to the FBI pursuant to the
NSL.” However, “the nondisclosure requirement remains in
place for any information regarding the customer account(s)
for which information was sought, as well as any other
information that could be used to identify the subscriber(s)
for the customer account(s).”13
The FBI also closed the investigation underlying one of
the 2012 NSLs issued to CloudFlare. Following the
Termination Procedures, the FBI determined that continued
nondisclosure was no longer necessary and provided
CloudFlare written notice to that effect. According to the
FBI’s letter to CloudFlare, CloudFlare may now disclose the
“[t]he fact that [CloudFlare] received the NSL on a certain
date”; “[t]he customer account(s) for which information was
sought”; and “[w]hether or not [CloudFlare] provided
responsive information to the FBI pursuant to the NSL.”14
13
The nondisclosure requirement also remains in place for the name
and contact information of the FBI Special Agent identified in the NSL.
14
As with the 2011 NSL to CREDO, the nondisclosure requirement
remains in place for the name and contact information of the FBI Special
Agent identified in the first 2012 NSL to CloudFlare.
IN RE NATIONAL SECURITY LETTER 23
The nondisclosure requirement contained in the second 2012
NSL to CloudFlare remains in full effect.15
In sum, CREDO is now subject to a nondisclosure
requirement “for any information regarding the customer
account(s) for which information was sought, as well as any
other information that could be used to identify the
subscriber(s) for the customer account(s)” under the 2011
NSL. CloudFlare is subject to a nondisclosure requirement
only as to one of the 2012 NSLs.16
III
We begin our constitutional analysis by analyzing
whether this appeal raises a facial challenge or an as-applied
challenge to the NSL law. “A facial challenge is an attack on
a statute itself as opposed to a particular application.” City of
Los Angeles v. Patel, 135 S. Ct. 2443, 2449 (2015). By
contrast, “[a]n as-applied challenge contends that the law is
unconstitutional as applied to the litigant’s particular speech
activity, even though the law may be capable of valid
application to others.” Foti v. City of Menlo Park, 146 F.3d
629, 635 (9th Cir. 1998). The recipients assert that the
nondisclosure requirement of § 2709(c) prevents them from
speaking about matters of public policy and engaging in the
political process, but do not argue that the NSL law can never
be constitutionally applied in any context. Accordingly, we
15
Because CloudFlare identified itself not only as the recipient of one
of the 2012 NSLs but also as challenging two NSLs before us, the FBI
determined that CloudFlare may be publicly identified.
16
On appeal, CREDO and CloudFlare raise the same arguments.
Therefore, we refer to the appellants together as the “recipients.”
24 IN RE NATIONAL SECURITY LETTER
analyze the recipients’ challenge as an as-applied challenge.
Cf. Members of the City Council v. Taxpayers for Vincent,
466 U.S. 789, 802–03 (1984) (concluding that the plaintiff’s
challenge to an ordinance was an as-applied challenge
because the plaintiffs acknowledged that the statute could be
validly applied in other cases).
“[C]onstitutional questions of fact (such as whether
certain restrictions create a ‘severe burden’ on an individual’s
First Amendment rights) are reviewed de novo.” Prete v.
Bradbury, 438 F.3d 949, 960 (9th Cir. 2006) (emphasis
omitted). We also review legal conclusions de novo. Id.IV
The First Amendment provides that “Congress shall make
no law . . . abridging the freedom of speech, or of the press.”
U.S. Const. amend. I. Despite the breadth of this language,
the Supreme Court has concluded that some restrictions on
speech are constitutional, provided they survive the
appropriate level of scrutiny. When the government restricts
speech based on its content, a court will subject the restriction
to strict scrutiny. See Reed v. Town of Gilbert, 135 S. Ct.
2218, 2226 (2015); United States v. Playboy Entm’t Grp.,
Inc., 529 U.S. 803, 813 (2000). Under strict scrutiny,
restrictions “may be justified only if the government proves
that they are narrowly tailored to serve compelling state
interests.” Reed, 135 S. Ct. at 2226. If the governmental
restriction on speech is content neutral, a court will uphold it
if it furthers “an important or substantial governmental
interest unrelated to the suppression of free speech, provided
the incidental restrictions did not burden substantially more
speech than is necessary to further those interests.” Turner
IN RE NATIONAL SECURITY LETTER 25
Broad. Sys., Inc. v. FCC, 520 U.S. 180, 186 (1997) (internal
quotation marks omitted).17
Even if the government has constitutional authority to
impose a particular content-based restriction on speech, the
government does not have unfettered freedom to implement
such a restriction through “a system of prior administrative
restraints.” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70
(1963); see also id. at 66 (“[A] State is not free to adopt
whatever procedures it pleases for dealing with obscenity . . .
without regard to the possible consequences for
constitutionally protected speech.” (quoting Marcus v. Search
Warrants, 367 U.S. 717, 730–31 (1961))). Rather, “a law
subjecting the exercise of First Amendment freedoms to the
prior restraint of a license” or other burden must itself pass
constitutional muster. Shuttlesworth v. City of Birmingham,
394 U.S. 147, 150–51 (1969). A system that gives public
officials authority to regulate or prohibit an individual’s
exercise of First Amendment rights based on the content of
the individual’s speech must have “narrow, objective, and
definite standards to guide the licensing authority,” id. at 151,
and must have the “procedural safeguards that reduce the
danger of suppressing constitutionally protected speech,” Se.
Promotions, Ltd. v. Conrad, 420 U.S. 546, 559 (1975). These
procedural safeguards are as follows: “(1) any restraint prior
to judicial review can be imposed only for a specified brief
period during which the status quo must be maintained;
(2) expeditious judicial review of that decision must be
17
The government may also restrict the time, place, and manner of
speech so long as it does not discriminate based on content and meets
certain other criteria. See Consol. Edison Co. of N.Y., Inc. v. Pub. Serv.
Comm’n, 447 U.S. 530, 536 (1980). This form of restriction is not at issue
here.
26 IN RE NATIONAL SECURITY LETTER
available; and (3) the censor must bear the burden of going to
court to suppress the speech and must bear the burden of
proof once in court.” Thomas v. Chi. Park Dist., 534 U.S.
316, 321 (2002) (quoting FW/PBS v. City of Dallas, 493 U.S.
215, 227 (1990) (principal opinion of O’Connor, J.), and
citing Freedman v. Maryland, 380 U.S. 51, 58–60 (1965)).
The procedural requirements for systems imposing content-
based restraints do not apply, however, to “a content-neutral
permit scheme regulating speech in a public forum.” Id. at
322.
Accordingly, our analysis of § 2709(c)’s nondisclosure
requirement proceeds in three steps. We must first determine
whether the nondisclosure requirement is content based or
content neutral. If the nondisclosure requirement is content
based, we then consider whether it survives strict scrutiny.
Finally, we must determine whether the nondisclosure
requirement constitutes the type of restraint for which the
procedural safeguards are required and, if so, whether it
provides those safeguards.
A
We turn first to the question whether the nondisclosure
requirement in § 2709(c) is content based or content neutral.
A government’s restriction on “speech is content based if a
law applies to particular speech because of the topic
discussed or the idea or message expressed.” Reed, 135 S.
Ct. at 2227. The first step in determining whether speech is
content based is “to consider whether a regulation of speech
‘on its face’ draws distinctions based on the message a
speaker conveys.” Id. (quoting Sorrell v. IMS Health, Inc.,
564 U.S. 552, 566 (2011)). Regulations draw such a
distinction if they “target speech based on its communicative
IN RE NATIONAL SECURITY LETTER 27
content,” id. at 2226, prohibit “public discussion of an entire
topic,” id. at 2230 (quoting Consol. Edison Co. of N.Y. v. Pub.
Serv. Comm’n of N.Y., 447 U.S. 530, 537 (1980)), or “single[]
out specific subject matter for differential treatment,” id.Thus, a regulation or law that restricts speech based on its
topic, idea, message, or content is “content based” on its face,
and is accordingly subject to strict scrutiny. If a court
determines that the law is content based at this first step, the
court need not “consider the government’s justifications or
purposes” for enacting the regulation. Id. at 2227. “A law
that is content based on its face is subject to strict scrutiny
regardless of the government’s benign motive, content-
neutral justification, or lack of animus toward the ideas
contained in the regulated speech.” Id. at 2228 (internal
quotation marks omitted). Only if a law is content neutral on
its face should a court proceed to consider whether it is
nevertheless a content-based regulation of speech because it
“cannot be justified without reference to the content of the
regulated speech, or [was] adopted by the government
because of disagreement with the message [the speech]
conveys.” Id. at 2227 (second alteration in original) (quoting
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989))
(internal quotation marks omitted).
Applying this framework here, the nondisclosure
requirement in § 2709(c) is content based on its face. By its
terms, the nondisclosure requirement prohibits speech about
one specific issue: the recipient may not “disclose to any
person that the Federal Bureau of Investigation has sought or
obtained access to information or records” by means of an
NSL. See 18 U.S.C. § 2709(c). Such a restriction “target[s]
speech based on its communicative content,” and restricts
speech based on its “function or purpose.” Reed, 135 S. Ct.
28 IN RE NATIONAL SECURITY LETTER
at 2226–27. Given this conclusion, we need not proceed to
the second step of the analysis, to determine whether the
statute stifles views with which the government disagrees, see
Ward, 491 U.S. at 791, or distinguishes among views about
NSLs in deciding which speech is prohibited, see Turner
Broad. Sys., Inc. v. FCC, 512 U.S. 622, 643 (1994). We
conclude that the nondisclosure requirement is a content-
based restriction.
B
Because we have determined that the restriction imposed
by the nondisclosure requirement is content based, we turn to
the Supreme Court’s strict scrutiny test for content-based
restrictions on speech and ask whether the nondisclosure
requirement permitted by § 2709(c) is narrowly tailored to
serve a compelling state interest. Reed, 135 S. Ct. at 2226.
As a threshold matter, we readily conclude that national
security is a compelling government interest. Indeed, the
Court has recognized that “[e]veryone agrees that the
Government’s interest in combating terrorism is an urgent
objective of the highest order.” Holder v. Humanitarian Law
Project, 561 U.S. 1, 28 (2010). “It is ‘obvious and
unarguable’ that no governmental interest is more compelling
than the security of the Nation.” Haig v. Agee, 453 U.S. 280,
307 (1981) (quoting Aptheker v. Sec’y of State, 378 U.S. 500,
509 (1964)). By the same token, keeping sensitive
information confidential in order to protect national security
is a compelling government interest. See Dep’t of the Navy
v. Egan, 484 U.S. 518, 527 (1988) (recognizing “the
Government’s compelling interest in withholding national
security information from unauthorized persons in the course
of executive business” (internal quotation marks omitted));
IN RE NATIONAL SECURITY LETTER 29
Snepp v. United States, 444 U.S. 507, 509 n.3 (1980) (“The
Government has a compelling interest in protecting both the
secrecy of information important to our national security and
the appearance of confidentiality so essential to the effective
operation of our foreign intelligence service.”). Here, the
recipients do not dispute that the nondisclosure requirement
directly serves the compelling state interest of national
security: a nondisclosure requirement may be imposed only
if one of the four enumerated harms “may result” absent
nondisclosure. 18 U.S.C. § 2709(c)(1)(B).
We therefore turn to the question whether the
nondisclosure requirement in § 2709(c) is narrowly tailored.
A restriction is not narrowly tailored “if less restrictive
alternatives would be at least as effective in achieving the
legitimate purpose that the statute was enacted to serve.”
Reno v. Am. Civil Liberties Union, 521 U.S. 844, 874 (1997).
Nevertheless, strict scrutiny requires that a content-based
restriction “be narrowly tailored, not that it be ‘perfectly
tailored.’” Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656, 1671
(2015) (quoting Burson v. Freeman, 504 U.S. 191, 209
(1992)). Accordingly, a reviewing court should “decline to
wade into th[e] swamp” of calibrating the individual
mechanisms of a restriction. Id. Ultimately, the Supreme
Court has emphasized that strict scrutiny is not “fatal in fact.”
Id. at 1666 (quoting Adarand Constructors, Inc. v. Pena,
515 U.S. 200, 237 (1995)).
The recipients argue that the 2015 NSL law is not
narrowly tailored for two reasons. First, they claim it is
overinclusive because it prevents disclosure of the bare fact
of receiving the NSL as well as disclosure of the NSL’s
content. Second, they claim it is not the least restrictive
alternative because it allows the government to prohibit
30 IN RE NATIONAL SECURITY LETTER
disclosure indefinitely. Because the recipients claim that the
NSL law constitutes a system of prior restraints, they also
argue that the statute fails to provide the government with
“narrow, objective, and definite standards” to guide its
decision to prohibit disclosure. Shuttlesworth, 394 U.S. at150–51. We consider each argument in turn.
1
The recipients contend that the NSL law is not narrowly
tailored because, as they interpret the NSL law, it prevents
disclosures that are not harmful to national security and
therefore does not further the government’s compelling
interest. Specifically, the recipients argue that a recipient
who has millions of customers could disclose the receipt of a
single NSL without impeding national security interests.
Second, the recipients argue that 18 U.S.C.
§ 2709(c)(2)(A)(iii), authorizing the FBI director or a
designee to permit a recipient to make disclosures to
additional persons, is an insufficient remedy for
overinclusiveness because it gives the FBI total discretion to
determine who may receive disclosures and does not require
the FBI to engage in any consideration of a narrower
nondisclosure requirement. Further, they argue that the
judicial review provisions are insufficient to render the
nondisclosure requirement narrowly tailored because,
according to the recipients, a court’s subsequent narrowing of
the nondisclosure requirement is irrelevant to the narrow
tailoring analysis.18 Finally, they argue that 50 U.S.C.
18
The recipients also argue that the judicial review provisions are
insufficient to address overinclusiveness because they are triggered only
if a recipient challenges the nondisclosure order. We reject this argument
IN RE NATIONAL SECURITY LETTER 31
§ 1874, allowing for disclosure of aggregate data in various
ranges, does not remedy the overinclusiveness of the
nondisclosure requirement, because it arbitrarily
differentiates between recipients who receive fewer than 500
NSLs (who must include “0” in the lowest reporting band)
from recipients who receive more than 500 NSLs. As a
result, the recipients argue, recipients who receive fewer than
500 NSLs are forced to make the false assertion that they
might have received no NSLs.
These arguments are based on the erroneous assumption
that, in order to determine whether the NSL law is narrowly
tailored, we must analyze each provision of the NSL law
individually to ensure that each is itself narrowly tailored.
This granular focus cannot be reconciled with the Supreme
Court’s direction that narrow tailoring is not perfect tailoring.
Williams-Yulee, 135 S. Ct. at 1671. Analyzing the statute as
a whole, we reject the recipients’ arguments.
The statute does not authorize the government to issue a
nondisclosure requirement based on a mere possibility of
harm; rather, a high ranking official must certify that
disclosure “may result” in one of four enumerated harms,
18 U.S.C. § 2709(c)(1)(B), meaning that there is “some
reasonable likelihood” that harm will result from the
disclosure. John Doe, Inc. v. Mukasey, 549 F.3d at 875. The
government must engage in an individualized analysis of each
recipient when making such a certification, which may
include consideration of the size of the recipient’s customer
base. If disclosure of the receipt of an NSL would not result
in one of the enumerated harms because the recipient has
because judicial review is available to every recipient and, as we discuss
in Section V, the burden of obtaining review is de minimis.
32 IN RE NATIONAL SECURITY LETTER
millions of customers, the government could not properly
make the certification required under the statute. Moreover,
under those circumstances, the reviewing court would lack a
good reason to believe that continued nondisclosure as to the
fact of receipt is necessary. 18 U.S.C. § 3511(b)(3).
Similarly, the new 2015 provision allowing disclosures to
“other persons as permitted by the [FBI] Director” or the
Director’s designee, id. § 2709(c)(2)(A)(iii), merely provides
the FBI with more flexibility to tailor the scope of the
nondisclosure provision. We reject the recipients’ argument
that this provision gives the government unfettered discretion
and therefore creates a system of insufficiently cabined prior
restraints. Even if the NSL law is determined to be the type
of regulation for which procedural safeguards are required
(see section V, infra), the law as a whole imposes narrow,
objective, and definite standards on the government before it
can issue a nondisclosure requirement, see id. § 2709(c); cf.
Shuttlesworth, 394 U.S. at 150 (considering a city ordinance
that “conferred upon the [governmental authority] virtually
unbridled and absolute power to prohibit” certain forms of
speech). The fact that the statute also gives the FBI Director
or a designee discretion to make additional exceptions to the
nondisclosure requirement does not lessen the adequacy of
the clear standards imposed on these officials before issuing
a nondisclosure requirement in the first place.
Nor are we persuaded by the recipients’ attempt to
divorce the nondisclosure requirement from the availability
of judicial review, which authorizes a court to modify a
nondisclosure order with “conditions appropriate to the
circumstances,” 18 U.S.C. § 3511(b)(1)(C). The availability
of judicial review is a component of each nondisclosure
requirement issued under § 2709(c); each recipient is
IN RE NATIONAL SECURITY LETTER 33
informed of the availability of judicial review in the NSL
itself. See id. § 2709(d); see also id. § 3511(a), (b)(1). The
fact that some, or even most, NSL recipients do not seek
judicial review of a nondisclosure requirement is not relevant
to the question whether the NSL law is narrowly tailored on
its face.
Finally, the provision allowing a speaker to disclose its
status as a recipient of a specified range of NSLs, see
50 U.S.C. § 1874, does not affect our conclusion that the NSL
statute is narrowly tailored. To the contrary, the provisions
allow recipients to make additional specified disclosures
regarding the receipt of the nondisclosure requirements in
certain circumstances without obtaining government or court
approval. We decline the recipients’ invitation to quibble
with the particular ranges selected by Congress. See
Williams-Yulee, 135 S. Ct. at 1671.
2
The recipients next argue that the nondisclosure
requirement in § 2709(c) is not narrowly tailored because it
authorizes restraints of overly long or indefinite duration and
so is not the least restrictive means of achieving the
government’s compelling interest. We agree that in order to
ensure that the nondisclosure requirement is narrowly tailored
to serve the government’s compelling interest in national
security, a nondisclosure requirement must terminate when it
no longer serves such a purpose. But the 2015 amendments
to the NSL law largely address this concern by requiring the
Attorney General to promulgate the Termination Procedures,
34 IN RE NATIONAL SECURITY LETTER
which are now in effect.19 Under these procedures, the FBI
is required to reassess the necessity of nondisclosure on two
occasions: three years after an investigation is begun and
upon the closing of an investigation. This mandated
reassessment reduces the likelihood that an overly long
nondisclosure requirement will be imposed. For example, if
the need for nondisclosure arises because of the ongoing
status of an investigation, nondisclosure would no longer be
required following the closure of the investigation, and the
requirement would terminate pursuant to the Termination
Procedures.20
Nonetheless, the Termination Procedures do not resolve
the duration issue entirely. For example, where the
government determines that the nondisclosure requirement
remains necessary at the close of an investigation, the
Termination Procedures do not require any subsequent
review. Similarly, if an investigation extends for many years,
the Termination Procedures do not provide for any interim
review between the third-year anniversary and the date the
investigation closes.
But the Termination Procedures are supplemented by the
availability of judicial review. When judicial review is
sought, either through a recipient’s own petition or on the
government’s application following notice from a recipient,
19
The recipients do not challenge the Termination Procedures
themselves.
20
In this case, the Termination Procedures worked as intended:
nondisclosure requirements in two of the NSLs at issue in this case were
reduced in scope or entirely removed pursuant to the Termination
Procedures, as the FBI determined upon the completion of the relevant
investigations that continued nondisclosure was not required.
IN RE NATIONAL SECURITY LETTER 35
the reviewing court “shall . . . issue a nondisclosure order that
includes conditions appropriate to the circumstances.”
18 U.S.C. § 3511(b)(1)(C). A court’s order enforcing an
administrative subpoena must be within constitutional
bounds. See Brock v. Local 375, Plumbers Int’l Union of
Am., 860 F.2d 346, 349–50 (9th Cir. 1988). Therefore, a
reviewing court would be bound to ensure that the
nondisclosure requirement does not remain in place longer
than is necessary to serve the government’s compelling
interest. See Playboy Entm’t, 529 U.S. at 813.
Moreover, as part of the judicial review process, a court
may require the government to justify the continued necessity
of nondisclosure on a periodic, ongoing basis, or may
terminate the nondisclosure requirement entirely if the
government cannot certify that one of the four enumerated
harms may occur. See In re Nat’l Sec. Letters, No. 16-518,
2016 WL 7017215, at *4 (D.D.C. July 25, 2016) (imposing
periodic review every three years); see also In re Nat’l Sec.
Letter, 165 F. Supp. 3d 352, 356 (D. Md. 2015) (imposing
periodic review every 180 days until issuance of the
Termination Procedures). Accordingly, any constitutional
concerns regarding the duration of the nondisclosure
requirement can be addressed by a reviewing court’s
determination that periodic review should be one of the
“conditions appropriate to the circumstances.” See 18 U.S.C.
§ 3511(b)(1)(C).
We therefore conclude that the 2015 NSL law is narrowly
tailored to serve a compelling government interest, both as to
inclusiveness and duration. Accordingly, we hold that the
36 IN RE NATIONAL SECURITY LETTER
nondisclosure requirement in § 2709(c) survives strict
scrutiny.21
V
Having determined that the First Amendment does not
prevent the government from restricting the information
subject to nondisclosure under the NSL law, we next consider
the recipients’ argument that the nondisclosure requirement
in § 2709(c) is the sort of content-based restriction on speech
which must have the procedural safeguards identified by the
Supreme Court in Freedman v. Maryland, 380 U.S. 51.
The recipients argue that the NSL law’s nondisclosure
requirement is such a restriction because it is a content-based
rule that “forbid[s] certain communications when issued in
21
The recipients argue that the NSL law should be held to a higher
standard than strict scrutiny. According to the recipients, a content-based
restriction imposed by a system of prior restraint is permissible only if
(1) the harm to the governmental interest is highly likely to occur; (2) the
harm will be irreparable; (3) no alternative exists for preventing the harm;
and (4) the restriction will actually prevent the harm. This argument is
meritless. No Supreme Court or Ninth Circuit opinion has articulated such
a test, nor do the three cases cited by the recipients support it. The brief
per curiam opinion in New York Times Co. v. United States (Pentagon
Papers) did not specify a test that should be applied to prior restraints. See
403 U.S. 713, 714 (1971). Further, neither Nebraska Press Ass’n v.
Stuart, 427 U.S. 541 (1976), nor Levine v. U.S. District Court, 764 F.2d
590 (9th Cir. 1985), required the government to show that harm to a
government interest (i.e., protecting a criminal defendant’s Sixth
Amendment rights) was highly likely to occur or that no alternative to a
restraining order existed. Nor did either case suggest that a pretrial
restraint is invalid unless it is certain to prevent the harm at issue. Rather,
consistent with the application of strict scrutiny, these opinions considered
the availability of less restrictive alternatives to a restraining order. See
Nebraska Press, 427 U.S. at 563–64; Levine, 764 F.2d at 599–601.
IN RE NATIONAL SECURITY LETTER 37
advance of the time that such communications are to occur.”
Alexander v. United States, 509 U.S. 544, 550 (1993). In the
absence of such a restriction, the recipients argue, they would
have the opportunity to disclose the receipt of an NSL,
subject to subsequent judicial review.
This argument is not entirely persuasive. As the Second
Circuit noted, § 2709(c) limits certain speech in advance but
“is not a typical example” of a regulation for which
procedural safeguards are required. John Doe, Inc. v.
Mukasey, 549 F.3d at 876. The Supreme Court has generally
focused on two types of government schemes requiring
safeguards: censorship schemes and licensing schemes. The
Court has long held that schemes requiring a putative speaker
to submit proposed speech to a governmental body, which is
then “empowered to determine whether the applicant should
be granted permission — in effect, a license or permit — on
the basis of its review of the content of the proposed” speech,
Se. Promotions, 420 U.S. at 554, “avoids constitutional
infirmity only if it takes place under procedural safeguards
designed to obviate the dangers of a censorship system,”
Freedman, 380 U.S. at 58. The Court has applied this rule to
censorship schemes requiring film exhibitors to obtain prior
approval before showing a film, see id. at 52–53, requiring
producers to obtain permission to show theatrical productions
in municipal theaters, Se. Promotions, 420 U.S. at 554,
allowing the postmaster to hold books sent through the mail
pending a determination of obscenity, Blount v. Rizzi,
400 U.S. 410, 413–15 (1971), and seizing materials brought
into the United States pending an obscenity determination by
customs agents, United States v. Thirty-Seven (37)
Photographs, 402 U.S. 363, 365–66 (1971), among other
systems of censorship. The need for procedural safeguards in
these cases derived from the principle that “a free society
38 IN RE NATIONAL SECURITY LETTER
prefers to punish the few who abuse rights of speech after
they break the law than to throttle them and all others
beforehand.” Se. Promotions, 420 U.S. at 559. “[T]he line
between legitimate and illegitimate speech is often so finely
drawn that the risks of freewheeling censorship are
formidable.” Id.In later years, the Supreme Court has extended the
applicability of Freedman, holding that government schemes
for licensing constitutionally permissible speech or
communicative conduct also require procedural safeguards.
See Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S.
781, 802 (1988) (requiring procedural safeguards in
government schemes for licensing professional fundraisers to
solicit money); City of Littleton v. Z.J. Gifts D-4, L.L.C.,
541 U.S. 774, 776, 780 (2004) (requiring procedural
safeguards in government schemes for licensing adult
entertainment businesses); see also FW/PBS, 493 U.S. at 220,
228–30 (principal opinion of O’Connor, J.) (same); Dream
Palace v. County of Maricopa, 384 F.3d 990, 1001 (9th Cir.
2004) (same). The safeguards required for licensing schemes
are less extensive than those required in Freedman because
they do “not present the grave dangers of a censorship
system.” City of Littleton, 541 U.S. at 783 (quoting FW/PBS,
493 U.S. at 228) (internal quotation marks omitted).
The NSL law does not resemble these government
censorship and licensing schemes. It neither requires a
speaker to submit proposed speech for review and approval,
nor does it require a speaker to obtain a license before
engaging in business. Rather, the NSL law prohibits the
disclosure of a single, specific piece of information that was
generated by the government: the fact that the government
has requested information to assist in an investigation
IN RE NATIONAL SECURITY LETTER 39
addressing sensitive national security concerns, i.e., “to
protect against international terrorism or clandestine
intelligence activities.” 18 U.S.C. § 2709(b)(1). As the
Second Circuit noted, “[u]nlike an exhibitor of movies,” the
recipient of a nondisclosure requirement “did not intend to
speak and was not subject to any administrative restraint on
speaking prior to the Government’s issuance of an NSL.”
John Doe, Inc. v. Mukasey, 549 F.3d at 880 (emphasis
added). And unlike the operator of an adult entertainment
business, the recipient of a nondisclosure requirement does
not operate an enterprise where receiving government
approval under the licensing scheme at issue “is the key to
[its] obtaining and maintaining a business.” FW/PBS,
493 U.S. at 230.
Rather than resembling a censorship or licensing scheme,
the NSL law is more similar to governmental confidentiality
requirements that have been upheld by the courts. See, e.g.,
Butterworth v. Smith, 494 U.S. 624, 634–36 (1990)
(upholding in part a law requiring witnesses to maintain the
confidentiality of the grand jury process); Seattle Times Co.
v. Rhinehart, 467 U.S. 20, 37 (1984) (upholding a restriction
on disclosure of information obtained through pretrial
discovery). In Butterworth, for instance, the Court
considered a Florida statute that “prohibit[ed] a grand jury
witness from ever disclosing testimony which he gave before
that body.” 494 U.S. at 626. While the statute could not
constitutionally prohibit a witness from disclosing
“information of which he was in possession before he
testified before the grand jury,” the Court did not invalidate
that “part of the Florida statute which prohibits the witness
from disclosing the testimony of another witness.” Id. at
632–33. Similarly, the only information subject to
nondisclosure under § 2709(c) relate to the NSL and its
40 IN RE NATIONAL SECURITY LETTER
contents — information of which a recipient was not in
possession prior to the NSL’s issuance. The Supreme Court
has sometimes reviewed such governmental confidentiality
restrictions under a framework akin to strict scrutiny,
considering whether the state has the “highest form of state
interest,” and the restriction is “necessary to further the state
interests asserted.” Smith v. Daily Mail Publ’g Co., 443 U.S.
97, 102 (1979); see also United States v. Aguilar, 515 U.S.
593, 605–06 (1995). On other occasions, it has applied a test
closer to intermediate scrutiny, see Rhinehart, 467 U.S. at32–34, in which it balanced the government’s interest against
that of the speaker’s by considering factors such as whether
the speaker obtained the confidential information from a
government source and whether the speaker knew the
information prior to the government action. Compare id. at
31–32 (noting that First Amendment concerns are lessened
when the speaker learned the information only as “a matter of
legislative grace” through a court’s discovery process), with
Butterworth, 494 U.S. at 632 (striking down a confidentiality
restriction to the extent it restricted disclosure of information
that was in the speaker’s possession prior to his grand jury
testimony). But the Court has not held that these sorts of
government confidentiality restrictions must have the sorts of
procedural safeguards required for censorship and licensing
schemes.22
22
Contrary to Chief Judge Murguia’s concurrence, the Supreme
Court does not refer to every law that bars speech in advance of its
occurrence as a prior restraint. Conc. at 45. The Supreme Court has
upheld the governmental confidentiality requirements discussed above,
and of course, many other opinions uphold laws barring future speech,
see, e.g., Holder v. Humanitarian Law Project, 561 U.S. 1, 36 (2010)
(upholding a law criminalizing communications that provide material
support to a foreign terrorist organization); Rust v. Sullivan, 500 U.S. 173,
192–94 (1991) (upholding regulations barring certain federally funded
IN RE NATIONAL SECURITY LETTER 41
We need not, however, resolve the question whether the
NSL law must provide procedural safeguards, because the
2015 NSL law in fact provides all of them. First, Freedman
requires that “any restraint prior to judicial review can be
imposed only for a specified brief period.” Thomas, 534 U.S.
at 321. A speaker must “be assured, by statute or
authoritative judicial construction, that the censor will, within
a specified brief period, either issue a license or go to court.”
Freedman, 380 U.S. at 58–59. The 2015 NSL law readily
provides this assurance: a recipient may immediately notify
the government that it desires judicial review, and the
recipient is guaranteed by statute that the government will
“go to court” within 30 days of receiving notice by
“apply[ing] for an order prohibiting the disclosure of the
existence or contents” of the NSL at issue. 18 U.S.C.
§ 3511(b)(1)(B). This 30-day period is both “specified” and
“brief.” See John Doe, Inc. v. Mukasey, 549 F.3d at 883(considering a “30-day period in which the Government
considers whether to seek judicial review”); cf. Thirty-Seven
(37) Photographs, 402 U.S. at 370–74 (plurality opinion)
(holding that a 14-day limit on the initiation of judicial
proceedings was sufficient under Freedman). Accordingly,
we reject the recipients’ argument that the 2015 NSL law fails
to provide this first safeguard.
Second, Freedman requires that “expeditious judicial
review” must be available. Thomas, 534 U.S. at 321. The
2015 NSL law’s direction to reviewing courts, that they
“should rule expeditiously” on any petition by a recipient or
facilities from advocating abortion as a method of family planning).
Although these cases considered laws preventing speech in advance of its
occurrence, Conc. at 45, the Supreme Court did not use the term “prior
restraint” nor require the procedural safeguards set forth in Freedman.
42 IN RE NATIONAL SECURITY LETTER
application by the government regarding the validity of a
nondisclosure order, 18 U.S.C. § 3511(b)(1)(C), provides this
safeguard. The recipients contend that this directive is
insufficient because Congress should have imposed a specific
time limit. Again, we disagree. While neither party may
control how quickly a case moves through a court’s docket,
we “presume that courts are aware of the constitutional need
to avoid undue delay result[ing] in the unconstitutional
suppression of protected speech.” City of Littleton, 541 U.S.
at 782 (alteration in original) (internal quotation marks
omitted); see also Dream Palace, 384 F.3d at 1003 (referring
to City of Littleton’s “presumption that . . . courts function
quickly enough, and with enough solicitude for the First
Amendment rights of [speakers]”). Neither Freedman nor
any other Supreme Court decision requires that judicial
review be completed in a specified time frame, such as the 60
days suggested by the Second Circuit in John Doe, Inc. v.
Mukasey, see 549 F.3d at 879. The courts’ duty to “exercise
[their] powers wisely so as to avoid serious threats of delay-
induced First Amendment harm,” City of Littleton, 541 U.S.
at 782, assures us that judicial proceedings will move
sufficiently rapidly to safeguard an NSL recipient’s First
Amendment rights.
Finally, Freedman requires that the government “bear the
burden of going to court to suppress the speech” and “the
burden of proof once in court.” Thomas, 534 U.S. at 321.
The recipients argue that § 3511(b)(1)(B)’s notice procedure
is insufficient because a nondisclosure requirement may
remain in place without judicial review if the recipient does
not notify the government that it wishes to have a court
review the order and if the recipient fails to bring its own
petition to modify or set aside the nondisclosure requirement.
We reject this argument. Freedman focused on minimizing
IN RE NATIONAL SECURITY LETTER 43
the burden to the film exhibitor to “seek judicial review” of
the state’s denial of a license; it did not focus on which party
bore the initial burden. 380 U.S. at 58–59. Here, the burden
on a recipient is de minimis, as the recipient may seek
judicial review simply by notifying the government that it so
desires. Freedman does not require that the government
provide judicial review of confidentiality provisions for the
benefit of individuals who do not wish to speak.
The recipients further argue that the NSL law “does not
sufficiently place the burden of proof on the government”
because the “reason to believe” and “may result” standards
are insufficiently stringent. We reject this argument, too. As
the Second Circuit held, and as we have already discussed,
the government must certify to the reviewing court and
establish to the court’s satisfaction, that there is a good reason
to believe that absent nondisclosure, one of the enumerated
harms is reasonably likely to result. John Doe, Inc. v.
Mukasey, 549 F.3d at 875. Since the government has
prohibited the recipient from disclosing the fact that it has
even received an NSL, certification and proof are required to
impose a nondisclosure requirement on both the fact of
receipt and the contents of the NSL. Because the government
must sufficiently certify and establish that both disclosures
would likely result in one of the four enumerated harms, these
requirements place the burden of proof on the government
and thereby provide Freedman’s third safeguard.
Because the NSL law provides the three procedural
safeguards set forth in Freedman, we reject the recipients’
argument that the NSL law is an invalid prior restraint on
Freedman grounds.
44 IN RE NATIONAL SECURITY LETTER
VI
We conclude that § 2709(c)’s nondisclosure requirement
imposes a content-based restriction that is subject to, and
withstands, strict scrutiny. We further hold that, assuming
the nondisclosure requirement is the type of prior restraint for
which the Freedman procedural safeguards are required, the
NSL law provides those safeguards. The nondisclosure
requirement in the NSL law therefore does not run afoul of
the First Amendment.
AFFIRMED.
MURGUIA, Chief Judge, concurring:
I agree that the NSL law’s nondisclosure requirement—
which prohibits an electronic communication service provider
from disclosing that the Federal Bureau of Investigation has
sought or obtained information from the provider pursuant to
an administrative subpoena, 18 U.S.C. § 2709(c)(1)(A)—does
not violate the First Amendment. The law passes
constitutional muster because it is narrowly tailored to serve
compelling national security interests and because it provides
the government “narrow, objective, and definite standards”
which limit its ability to prohibit disclosure as well as
sufficiently robust procedural safeguards, including prompt
judicial review. See id. § 2709(c)–(d); Shuttlesworth v. City
of Birmingham, 394 U.S. 147, 150–51 (1969); Freedman v.
Maryland, 380 U.S. 51, 58–60 (1965). I write separately,
however, to clarify important doctrinal assumptions that
underlie my concurrence and inform the opinion’s reasoning.
IN RE NATIONAL SECURITY LETTER 45
First, I assume that the nondisclosure requirement is a
prior restraint. I make this assumption because “[t]he term
prior restraint is used ‘to describe administrative and judicial
orders forbidding certain communications when issued in
advance of the time that such communications are to occur.’”
Alexander v. U.S., 509 U.S. 544, 550 (1993) (citation
omitted). The opinion, as a general matter, embraces this
assumption and never concludes otherwise. Op. at 44 (“We
further hold that, assuming the nondisclosure requirement is
the type of prior restraint for which the Freedman procedural
safeguards are required, the NSL law provides those
safeguards.”). Nevertheless, the opinion at times appears to
back away from this underlying premise. For example, the
opinion states that “[t]he NSL law does not resemble . . .
government censorship and licensing schemes,” id. at 38,
which are prior restraints, see, e.g., Se. Promotions, Ltd. v.
Conrad, 420 U.S. 546, 559–60 (1975). Similarly, the opinion
notes that “the NSL law is more similar to governmental
confidentiality requirements,” Op. at 39, which are subject to
varying standards of scrutiny and do not require the
procedural safeguards that typically accompany prior
restraints, see id. at 39–40. This language is unnecessary to
the decision and may lead to misinterpretation of the opinion.
Second, when a statute constitutes a prior restraint, we
apply a heavy presumption against its constitutionality. See
Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963) (“Any
system of prior restraints of expression comes to [court]
bearing a heavy presumption against its constitutional
validity.”). As such, the government “carries a heavy burden
of showing justification for the imposition of such a
restraint.” Org. for a Better Austin v. Keefe, 402 U.S. 415,
419 (1971). I apply this heavy presumption because I assume
the nondisclosure requirement constitutes a prior restraint.
46 IN RE NATIONAL SECURITY LETTER
Here, the NSL law overcomes the presumption through its
nondisclosure standards and procedural safeguards. See
18 U.S.C. § 2709(c)–(d). Absent certain enumerated
exceptions, the government may only prohibit disclosure if it
certifies that disclosure may endanger national security;
interfere with a criminal, counterterrorism, or
counterintelligence investigation; interfere with diplomatic
relations; or endanger the life or physical safety of a person.
Id. § 2709(c)(1)–(2). Furthermore, a nondisclosure
requirement is subject to expeditious judicial review. See id.
§§ 2709(d), 3511(b)(1)(C).
In sum, I am satisfied that we have evaluated the NSL law
under the applicable, exacting standards, and I am in
agreement with the opinion that the law withstands
constitutional scrutiny. I write separately merely to make
explicit that our conclusions rest on the assumption that the
NSL law’s nondisclosure requirement is a prior restraint of
speech.