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