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Civil Rights Litigation Clearinghouse
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Case Name Doe v. Ashcroft NS-NY-0004
Docket / Court 1:04-cv-02614 ( S.D.N.Y. )
State/Territory New York
Case Type(s) National Security
Attorney Organization ACLU National (all projects)
Case Summary
In April 2004, the American Civil Liberties Union (ACLU) and ACLU Foundation filed suit in United States District Court for the Southern District of New York on behalf of a John Doe plaintiff against the United States and the Federal Bureau of Investigation (FBI). Plaintiff was an internet access ... read more >
In April 2004, the American Civil Liberties Union (ACLU) and ACLU Foundation filed suit in United States District Court for the Southern District of New York on behalf of a John Doe plaintiff against the United States and the Federal Bureau of Investigation (FBI). Plaintiff was an internet access and consulting corporation that received a National Security Letter (NSL) from the FBI directing it to disclose names, addresses, and records of communications relating to one of its clients. Plaintiff also received a gag order forbidding it from disclosing to anyone that the FBI sought or obtained information. Plaintiff claimed that 18 U.S.C. § 2709, which authorizes issuance of NSLs and attendant gag orders, violates the First, Fourth, and Fifth Amendments. Plaintiff sought an injunction prohibiting the FBI from enforcing the requests in the NSL issued to plaintiff and enjoining the FBI from further use of § 2709.

Many documents in the public docket are redacted pursuant to a May 2004 order. Doe v. Ashcroft, 317 F. Supp. 2d 488 (S.D.N.Y. 2004).

In July 2004, the plaintiff moved for summary judgment, and the United States moved to dismiss the complaint. In September of that year, the District Court (Judge Victor Marrero) granted summary judgment in favor of the plaintiff, finding that § 2709 as applied violated the Fourth Amendment by effectively barring judicial challenge to the NSL request. Additionally, the nondisclosure requirement under § 2709(c) was a violation of the First Amendment as an unjustified prior restraint and content-based restriction on speech. The Court enjoined the United States and the FBI from issuing NSLs and enforcing gag orders under § 2709. Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004).

Further proceedings were stayed pending the appeal of the United States to the United States Court of Appeals for the Second Circuit. Meanwhile, Congress amended the nondisclosure prohibition under § 2709(c) to require nondisclosure only upon certification by senior FBI officials that certain enumerated harms may occur. 18 U.S.C.A. § 2709(c), as amended in 2008. Congress also provided for judicial review to permit NSL recipients to petition to modify or set aside the NSL. 18 U.S.C.A. § 3511(a).

In May 2006, the Second Circuit vacated the decision of the District Court and remanded the case in light of the amendments. Doe v. Gonzales, 449 F. 3d 415 (2d Cir. 2006). The United States subsequently informed the District Court that it no longer sought to enforce the NSL.

The District Court ruled on cross-motions for summary judgment in September 2007, finding that § 2709(c) and § 3511(b) were facially unconstitutional, notwithstanding the amendments. The District Court found that the nondisclosure requirement violated the First Amendment under a strict scrutiny standard of review. Because it found the various subsections inseverable, the District Court invalidated the entirety of § 2709(c) and § 3511(b). Doe v. Gonzales, 500 F. Supp. 2d 386 (S.D.N.Y. 2007).

The United States again appealed to the Second Circuit. That court construed the newly amended statutes to permit nondisclosure only upon certification and to place the burden on government to demonstrate risk of an enumerated harm upon disclosure. Section 2709(c) and § 3511(b) are unconstitutional to the extent that a District Court must treat the certification as conclusive, and to the extent that they impose a nondisclosure requirement without requiring the government to initiate judicial review of the requirement. Doe v. Mukasey, 549 F.3d 861 (2d Cir. 2009).

Upon remand, in October 2009 the District Court ruled that the United States and the FBI were permitted to enforce the nondisclosure provisions § 2709(c) § 3511(b) as applied to the NSL issued to plaintiff.

The plaintiff moved the District Court for partial reconsideration, and in March 2010, the Court amended its order enforcing nondisclosure. The Court directed the United States to lift the nondisclosure requirement as applied to two categories of information: material that the NSL statute identifies as permissible for the FBI to collect, and material that the FBI has publicly acknowledged it has previously requested by means of NSLs.

The plaintiff appealed to the Second Circuit in May 2010, but later withdrew the appeal. On July 30, 2010, the District Court entered a stipulation and order of dismissal. The United States paid $225,000 in attorney's fees and litigation costs to the plaintiff.

Elizabeth Homan - 10/27/2013


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Issues and Causes of Action
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Issues
Constitutional Clause
Due Process
Free Exercise Clause
Unreasonable search and seizure
Defendant-type
Jurisdiction-wide
Law-enforcement
General
Confidentiality
Courts
Records Disclosure
Terrorism/Post 9-11 issues
Plaintiff Type
Private Plaintiff
Causes of Action Declaratory Judgment Act, 28 U.S.C. § 2201
Defendant(s) Federal Bureau of Investigation
United States
Plaintiff Description Plaintiff is an Internet access and consulting business. The plaintiff's name and further identifying information are under seal.
Indexed Lawyer Organizations ACLU National (all projects)
Class action status sought No
Class action status granted No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Attorneys fees
Injunction / Injunctive-like Settlement
Source of Relief Litigation
Settlement
Form of Settlement Court Approved Settlement or Consent Decree
Order Duration not on record
Case Closing Year 2010
Case Ongoing No
Additional Resources
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Links Guest Post: New Resource — Civil Rights Litigation Clearinghouse FISA Archives
Just Security
Posted: Jun. 26, 2014
By: Margo Schlanger
[ Detail ] [ External Link ]

Docket(s)
05−0570−cv (S.D.N.Y.) 08/30/2011
NS-NY-0004-9000 PDF | Detail
PACER [Public Access to Court Electronic Records]
General Documents
Decision and Order (Granting in Part and Denying in Part the motion of Plaintiffs' to Unseal this Case) 05/12/2004 (317 F.Supp.2d 488) (S.D.N.Y.)
NS-NY-0004-0010 PDF | WESTLAW| LEXIS | Detail
Document Source: Google Scholar
Amended Complaint for Declaratory and Injunctive Relief 05/13/2004
NS-NY-0004-0002 PDF | Detail
Document Source:
Opinion; Decision and Order 09/28/2004 (334 F.Supp.2d 471) (S.D.N.Y.)
NS-NY-0004-0003 PDF | WESTLAW| LEXIS | Detail
Document Source: Google Scholar
[Correspondence] 11/01/2004
NS-NY-0004-0001 PDF | Detail
Document Source:
Opinion 01/25/2005 (2005 WL 4684237) (S.D.N.Y.)
NS-NY-0004-0015 PDF | WESTLAW | Detail
Document Source: Westlaw
Opinion 10/07/2005 (127 S.Ct. 1)
NS-NY-0004-0014 PDF | WESTLAW | Detail
Document Source: Westlaw
Per Curiam 05/23/2006 (449 F.3d 415)
NS-NY-0004-0004 PDF | WESTLAW| LEXIS | Detail
Document Source: Google Scholar
Motion for leave to file second amended complaint for declaratory and injunctive relief; Second Amended complaint for Declaratory and Injunctive Relief 07/24/2006
NS-NY-0004-0005 PDF | Detail
Document Source:
Opinion Decision and Order 09/06/2007 (500 F.Supp.2d 379) (S.D.N.Y.)
NS-NY-0004-0011 PDF | WESTLAW| LEXIS | Detail
Document Source: Google Scholar
Appeal and Order 12/15/2008 (549 F.3d 861)
NS-NY-0004-0006 PDF | WESTLAW| LEXIS | Detail
Document Source:
Decision and Order 08/05/2009 (640 F.Supp.2d 517) (S.D.N.Y.)
NS-NY-0004-0007 PDF | WESTLAW| LEXIS | Detail
Document Source: Google Scholar
Decision and Order 10/20/2009 (665 F.Supp.2d 426) (S.D.N.Y.)
NS-NY-0004-0008 PDF | WESTLAW| LEXIS | Detail
Document Source: Google Scholar
Decision and Order 03/18/2010 (703 F.Supp.2d 313) (S.D.N.Y.)
NS-NY-0004-0009 PDF | WESTLAW| LEXIS | Detail
Document Source: Google Scholar
Judges Cardamone, Richard J. (Second Circuit)
NS-NY-0004-0004
Ginsburg, Ruth Bader (SCOTUS, D.C. Circuit)
NS-NY-0004-0014
Marrero, Victor (S.D.N.Y.)
NS-NY-0004-0003 | NS-NY-0004-0007 | NS-NY-0004-0008 | NS-NY-0004-0009 | NS-NY-0004-0010 | NS-NY-0004-0011 | NS-NY-0004-0015 | NS-NY-0004-9000
McLaughlin, Joseph Michael (E.D.N.Y., Second Circuit)
NS-NY-0004-0004
Newman, Jon Ormond (D. Conn., Second Circuit)
NS-NY-0004-0006
Parker, Barrington Daniels Jr. (S.D.N.Y., Second Circuit)
NS-NY-0004-0004
Monitors/Masters None on record
Plaintiff's Lawyers Beeson, Ann (District of Columbia)
NS-NY-0004-0002 | NS-NY-0004-0005 | NS-NY-0004-9000
Eisenberg, Arthur (New York)
NS-NY-0004-0002 | NS-NY-0004-0005 | NS-NY-0004-9000
Goodman, Melissa (New York)
NS-NY-0004-0005 | NS-NY-0004-9000
Jaffer, Jameel (New York)
NS-NY-0004-0002 | NS-NY-0004-0005 | NS-NY-0004-9000
McGowan, Sharon M. (District of Columbia)
NS-NY-0004-0002 | NS-NY-0004-9000
Schwartztol, Laurence Michael (New York)
NS-NY-0004-9000
Defendant's Lawyers Kotler, Meredith Eve (New York)
NS-NY-0004-9000
Oestericher, Jeffrey Stuart (New York)
NS-NY-0004-9000
Other Lawyers Daignault, Ronald Marc (New York)
NS-NY-0004-9000

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