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Case Name In re: National Security Letter, Under Seal v. Holder (Sealed) NS-CA-0014
Docket / Court 3:13-cv-01165-SI ( N.D. Cal. )
State/Territory California
Case Type(s) National Security
Special Collection Foreign Intelligence Surveillance Act -- All Matters
Foreign Intelligence Surveillance Act -- Internet Metadata
Foreign Intelligence Surveillance Act -- Telephony Metadata
Case Summary
For the complete Civil Rights Litigation Clearinghouse collection of FISA Matters, see our special collection.

In 1986, Congress empowered the FBI to issue administrative subpoenas known as a National ... read more >
For the complete Civil Rights Litigation Clearinghouse collection of FISA Matters, see our special collection.

In 1986, Congress empowered the FBI to issue administrative subpoenas known as a National Security Letters (NSLs) as part of authorized investigations to protect against international terrorism and clandestine intelligence activities. NSLs are directed to electronic communications service providers in order to obtain specified limited information; they are not used to obtain the content of communications. Because of national security interests, the NSL statute imposes a nondisclosure obligation on the NSL recipient. In 2006, Congress revised the nondisclosure provisions in order to avoid unnecessary disclosure restrictions: the nondisclosure requirement no longer applied automatically, and Congress provided a specific statutory mechanism for judicial review of a nondisclosure requirement itself, separate from review of the NSL.

In 2011, two telecommunication companies received NSLs from the FBI directing them to provide the FBI "all subscriber information, limited to name, address, and length of service, for all services provide to or accounts held by the named subscriber and/or subscriber of the named account." The NSLs prohibited the recipients from disclosing information about the NSL or its petition to the affected customer, to most of the recipient's employees and staff, to the press, to members of the public, and to members of Congress. The recipients challenged the NSLs in the Northern District of California in docket numbers 3:11-cv-02173-SI, 3:13-mc-80089-SI, and 3:13-cv-01165-SI. The decisions in the three cases were appealed to the Ninth Circuit Court of Appeals.

In a decision issued on March 14, 2013, the district court granted a petition seeking to set aside a National Security Letter (NSL) in 3:11-cv-02173-SI. The district court invalidated the nondisclosure provisions on their face under the First Amendment. The district court found that the nondisclosure provisions lacked constitutionally required procedural safeguards and were substantively overbroad. In re National Sec. Letter, 930 F. Supp. 2d 1064 (N.D. Cal) (March 14, 2013). The government appealed this decision (Appeal No. 13-15957), and the district court stayed its judgment pending the appeal.

A subsequent action before the same district court, brought by the same NSL recipient, sought to set aside two additional NSLs. After the parties submitted further briefing and additional evidence, the district court denied the recipient's petition and granted the government's cross-petition for enforcement of those NSLs on August 12, 2013. The district court opted to defer future rulings on the facial unconstitutionality of the NSL statute until the Ninth Circuit reviewed the initial decision. In appeal no. 13-16731, the NSL recipient appealed this decision and moved to stay the district court's decision pending appeal.

Finally, appeal No. 13.16732 is from another action before the same district court, brought by the second NSL recipient. The district court denied the NSL recipient's challenge of the NSL, and the recipient appealed.

On appeal, the Ninth Circuit consolidated Nos. 13-15957 and 13-16731. Normally the Ninth Circuit would have also consolidated the third case, No. 13-16732, because the cases raised most of the same issues. However, the challenged NSL provisions at issue prevent the respective petitioners form learning each other's identity or any information about their respective cases. Despite the inability to consolidate the cases, the two NSL recipients were both represented by the Electronic Frontier Foundation and a private attorney, and the Ninth Circuit set the cases to a parallel briefing schedule. The briefs filed by the two NSL recipients are nearly identical.

These cases are fully sealed, but the Court has ordered some of the documents to be made public, available on the Court's website.

On December 9, 2013, the Ninth Circuit Court of Appeals denied the NSL recipient's motion to stay the district court's decision pending appeal. The Court did grant Yahoo's motion for leave to join in amicus curiae LinkedIn Corporation's September 17, 2013, amicus brief. The Court denied Apple's motion for leave to file an amicus brief. In addition, the Court partially granted the parties' joint request to have the redacted versions of briefs available to the public.

On January 17, the government submitted its opening brief, focusing on No. 13-15957, the case appealed by the government. The government argued that the nondisclosure provisions did meet First Amendment standards because they were narrowly tailored to meet compelling government interests and because the government provided the highest level of procedural protections. The government argued that the nondisclosure provisions were in strict compliance with the procedures required by the Second Circuit's decision in John Doe, Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008) (Dec. 15, 2008, modified March 26, 2009). That decision interpreted the nondisclosure provisions in a manner that was deliberately protective of the First Amendment interests of NSL recipients and imposed an injunction that binds the government. In addition, the government argued that the district court improperly issued an injunction that applied to all NSLs in all cases, and that the decision conflicted with the Second Circuit's ruling that upheld the NSL statute. John Doe, Inc. v. Mukasey.

On February 28, the NSL recipients filed its second brief in Nos. 13-15957 and 13-16731, along with a nearly identical brief for No. 13-16732. In both versions of the brief, the NSL recipients argued that 18 U.S.C. §§ 2709(c) (Title V, Section 505 of the Patriot Act) and 3511(b) (judicial review of requests for information) as applied here violated the First Amendment and were facially unconstitutional. In Nos. 13-15957 and 13-16731, the NSL recipient also challenged the NSL "compelled production" authority on First and Fifth Amendment grounds, defending the scope of the injunction issued by the district court.

  • On March 31, the Electronic Privacy Information Center filed an amicus brief. The Floyd Abrams Institute for Freedom of Expression and First Amendment Scholars also filed an amicus brief.
  • On April 1, the Experts in Computer Science and Data Science filed an amicus brief.
  • On April 2, the Internet Archive, who also received NSL letters and successfully challenged them, filed an amicus brief.
  • On April 7, Google, Facebook, Microsoft, and Yahoo filed an amicus brief.
  • On April 9, the Reporters Committee for Freedom of the Press and 18 media organizations filed an amicus briefand moved to unseal the amicus briefs along with others amici.
  • On April 11, a group of law professors filed an amicus brief.
  • On April 14, Congress members filed an amicus brief. Also on April 14, the PEN American Center filed an amicus brief.
  • On April 21, the government consented to the motion to unseal the amicus briefs but redacted all material that should remain under seal.


  • On May 2, the government submitted its answering brief. On May 14, the government submitted its third brief.

    On May 14, the Ninth Circuit granted in part the motions to unseal the amicus briefs. On May 23, the Ninth Circuit grantedin part motions to unseal additional amicus briefs. On May 30, the Ninth Circuit unsealed additional amicus briefs.
  • On June 16, the NSL recipients filed a reply brief.
  • On September 22, the Ninth Circuit granted in part another motion to unseal amicus briefs.
  • On October 8, the Ninth Circuit held oral argument. The audio recording is available online on the Court's website. On November 6, the government filed a letter regarding a misstatement at oral argument.
  • On November 12, the Ninth Circuit granted the joint motion to unseal the government's letter.

  • At this time, the case is ongoing.

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Issues and Causes of Action
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Issues
Constitutional Clause
Freedom of speech/association
Unreasonable search and seizure
Defendant-type
Jurisdiction-wide
General
Confidentiality
Record-keeping
Search policies
Terrorism/Post 9-11 issues
Plaintiff Type
Private Plaintiff
Causes of Action None on record
Defendant(s) Federal Bureau of Investigation
Plaintiff Description Telecommunication companies who received National Security Letters from the Federal Bureau of Investigation
Indexed Lawyer Organizations None on record
Class action status sought No
Class action status granted No
Prevailing Party None Yet / None
Public Int. Lawyer Yes
Nature of Relief None yet
Source of Relief None yet
Form of Settlement None on record
Order Duration not on record
Case Closing Year n/a
Case Ongoing Yes
Case Listing NS-CA-0001 : In re National Security Letter (3 cases) (N.D. Cal.)
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)
No docket sheet currently in the collection
General Documents
Order Granting Order Granting Motion to Set Aside NSL Letter 03/14/2013 (930 F.Supp.2d 1064) (N.D. Cal.)
NS-CA-0014-0023.pdf | WESTLAW| LEXIS | Detail
Document Source: Westlaw
Order 12/09/2013
NS-CA-0014-0019.pdf | Detail
Document Source: U.S. Court of Appeals website
Government's Opening Brief 01/17/2014
NS-CA-0014-0018.pdf | Detail
Document Source: U.S. Court of Appeals website
Appellant Under Seal's Opening Brief 02/28/2014
NS-CA-0014-0016.pdf | Detail
Document Source: U.S. Court of Appeals website
Appellee Under Seal's Answering Brief in Case No. 13-15957; Appellant Under Seal's Opening Brief in Case No. 13-16731 02/28/2014
NS-CA-0014-0017.pdf | Detail
Document Source: U.S. Court of Appeals website
Brief of Amicus Curiae Electronic Privacy Information Center (EPIC) in Support of Petitioner 03/31/2014
NS-CA-0014-0021.pdf | Detail
Document Source: U.S. Court of Appeals website
Brief of Amici Curiae Floyd Abrams Institute for Freedom of Expression and First Amendment Scholars in Support of the Parties Under Seal 03/31/2014
NS-CA-0014-0022.pdf | Detail
Document Source: U.S. Court of Appeals website
Brief Amici Curiae of Experts in Computer Science and Data Science in Support of Appellant Under Seal 04/01/2014
NS-CA-0014-0015.pdf | Detail
Document Source: U.S. Court of Appeals website
Brief of NSL Recipients Who Had Challenged Their NSL's as Amici Curiae in Support of Petitioner-Appellant 04/02/2014
NS-CA-0014-0014.pdf | Detail
Document Source: U.S. Court of Appeals website
Brief for Google Inc., Facebook, Inc., Microsoft Corporation, and Yahoo Inc. As Amici Curiae Supporting Under Seal Party 04/07/2014
NS-CA-0014-0013.pdf | Detail
Document Source: U.S. Court of Appeals website
Brief Amicus Curiae of the Reporters Committee for Freedom of the Press and 18 Media Organizations in Support of Petitioner-Appellant Under Seal 04/09/2014
NS-CA-0014-0020.pdf | Detail
Document Source: U.S. Court of Appeals website
Brief of Amici Curiae Law Professors in Support of Petitioner Under Seal and in Support of Reversal 04/11/2014
NS-CA-0014-0012.pdf | Detail
Document Source: U.S. Court of Appeals website
Brief of Amicus Curiae Pen American Center, Inc. in Support of Petitioner-Appellant 04/14/2014
NS-CA-0014-0010.pdf | Detail
Document Source: U.S. Court of Appeals website
Brief of Amici Curiae Congresswoman Zoe Lofgren (D-CA), Congressman Thomas Massie (R-KY), Congressman Jared Polis (D-CO), and Congressman Anna G. Eshoo (D-CA) in Support of Petitioner 04/14/2014
NS-CA-0014-0011.pdf | Detail
Document Source: U.S. Court of Appeals website
Government's Answering Brief 05/02/2014
NS-CA-0014-0009.pdf | Detail
Document Source: U.S. Court of Appeals website
Order 05/14/2014
NS-CA-0014-0007.pdf | Detail
Document Source: U.S. Court of Appeals website
Government's Reply Brief 05/14/2014
NS-CA-0014-0008.pdf | Detail
Document Source: U.S. Court of Appeals website
Order 05/23/2014
NS-CA-0014-0006.pdf | Detail
Document Source: U.S. Court of Appeals website
Order 05/30/2014
NS-CA-0014-0005.pdf | Detail
Document Source: U.S. Court of Appeals website
Appellant Under Seal's Reply Brief 06/16/2014
NS-CA-0014-0004.pdf | Detail
Document Source: U.S. Court of Appeals website
Order 09/22/2014
NS-CA-0014-0003.pdf | Detail
Document Source: U.S. Court of Appeals website
Letter 11/06/2014
NS-CA-0014-0002.pdf | Detail
Document Source: U.S. Court of Appeals website
Order 11/12/2014
NS-CA-0014-0001.pdf | Detail
Document Source: U.S. Court of Appeals website
Judges Bybee, Jay S. (Ninth Circuit)
NS-CA-0014-0019
Callahan, Consuelo Maria (Ninth Circuit)
NS-CA-0014-0005 | NS-CA-0014-0006 | NS-CA-0014-0007
Christen, Morgan (Ninth Circuit)
NS-CA-0014-0019
Hurwitz, Andrew David (Ninth Circuit)
NS-CA-0014-0005 | NS-CA-0014-0006 | NS-CA-0014-0007
Ikuta, Sandra Segal (Ninth Circuit)
NS-CA-0014-0001
Illston, Susan Yvonne (N.D. Cal.)
NS-CA-0014-0023
Leavy, Edward (Ninth Circuit, D. Or., FISCR) [Magistrate]
NS-CA-0014-0005 | NS-CA-0014-0006 | NS-CA-0014-0007
Murguia, Mary Helen (Ninth Circuit, D. Ariz.)
NS-CA-0014-0001
Silverman, Barry G. (D. Ariz., Ninth Circuit) [Magistrate]
NS-CA-0014-0019
Smith, Norman Randy (Ninth Circuit)
NS-CA-0014-0001
Monitors/Masters None on record
Plaintiff's Lawyers Cardozo, Nathan (California)
NS-CA-0014-0004 | NS-CA-0014-0016 | NS-CA-0014-0017
Cohn, Cindy A. (California)
NS-CA-0014-0004 | NS-CA-0014-0016 | NS-CA-0014-0017
Crocker, Andrew (California)
NS-CA-0014-0004 | NS-CA-0014-0016 | NS-CA-0014-0017
Greene, David Allen (California)
NS-CA-0014-0004 | NS-CA-0014-0016 | NS-CA-0014-0017
Lynch, Jennifer (California)
NS-CA-0014-0004 | NS-CA-0014-0016 | NS-CA-0014-0017
Opsahl, Kurt Bradford (California)
NS-CA-0014-0004 | NS-CA-0014-0016 | NS-CA-0014-0017
Tien, Lee (California)
NS-CA-0014-0004 | NS-CA-0014-0016 | NS-CA-0014-0017
Wiebe, Richard R. (California)
NS-CA-0014-0004 | NS-CA-0014-0016 | NS-CA-0014-0017
Zimmerman, Matthew (California)
NS-CA-0014-0016 | NS-CA-0014-0017
Defendant's Lawyers Bressler, Steven Y. (District of Columbia)
NS-CA-0014-0023
Cole, James M. (District of Columbia)
NS-CA-0014-0002
Delery, Stuart F. (District of Columbia)
NS-CA-0014-0008 | NS-CA-0014-0009 | NS-CA-0014-0018
Letter, Douglas (District of Columbia)
NS-CA-0014-0008 | NS-CA-0014-0009 | NS-CA-0014-0018
Levy, Jonathan H. (District of Columbia)
NS-CA-0014-0002 | NS-CA-0014-0008 | NS-CA-0014-0009 | NS-CA-0014-0018
McIntosh, Scott R. (District of Columbia)
NS-CA-0014-0008 | NS-CA-0014-0009 | NS-CA-0014-0018
Other Lawyers Ard, B.J. (Connecticut)
NS-CA-0014-0022
Borg, Jennifer (New Jersey)
NS-CA-0014-0020
Brandi, Dianne (New York)
NS-CA-0014-0020
Brown, Bruce D. (Virginia)
NS-CA-0014-0020
Burke, Thomas R. (California)
NS-CA-0014-0010
Chadwick, James M. (California)
NS-CA-0014-0020
Chen, Michael (California)
NS-CA-0014-0015
Davis, Edward J. (New York)
NS-CA-0014-0010
Ewert, Jim (California)
NS-CA-0014-0020
Ghappour, Ahmed (Texas)
NS-CA-0014-0020
Gidari, Albert (Washington)
NS-CA-0014-0013
Goldberg, Andrew (New York)
NS-CA-0014-0020
Goldberg, Kevin M. (Virginia)
NS-CA-0014-0020
Hofmann, Marcia (California)
NS-CA-0014-0011 | NS-CA-0014-0012
Kennedy, John B. (District of Columbia)
NS-CA-0014-0020
Kirby, Kathleen (District of Columbia)
NS-CA-0014-0020
Koonce, Lacy H. III (New York)
NS-CA-0014-0010
Lewis, Greg (District of Columbia)
NS-CA-0014-0020
Malone, Phillip R. (California)
NS-CA-0014-0015
Manes, Jonathan (New York)
NS-CA-0014-0022
Matteo-Boehm, Rachel (California)
NS-CA-0014-0020
McCraw, David E (New York)
NS-CA-0014-0020
Miller, Eric David (Washington)
NS-CA-0014-0013
Morgan-Prager, Karole (California)
NS-CA-0014-0020
Rotenberg, Marc (District of Columbia)
NS-CA-0014-0021
Scheer, Peter E. (California)
NS-CA-0014-0020
Steinman, Linda Jane (New York)
NS-CA-0014-0010
Strumwasser, Michael (California)
NS-CA-0014-0022
Syed, Nabiha (Connecticut)
NS-CA-0014-0022
Volokh, Eugene (California)
NS-CA-0014-0014
Wall, Barbara W. (Virginia)
NS-CA-0014-0020
Warren, Emily (California)
NS-CA-0014-0015
Wong, Adrienna (California)
NS-CA-0014-0022
Yu, Rachel (California)
NS-CA-0014-0015
Zwillinger, Marc J. (District of Columbia)
NS-CA-0014-0013

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