In 2011, the Federal Bureau of Investigation (FBI) issued a National Security Letter (NSL) to an electronic communication service provider, seeking certain subscriber information. By certifying that the disclosure of the existence of the NSL may result in "a danger to the national security of the United States, interference with a criminal, counterterrorism, or counterintelligence investigation, interference with diplomatic relations, or danger to the life or physical safety of any person," the federal government was able, by statute, to prohibit the provider from disclosing the existence of the NSL.
On May 2, 2011, the NSL recipient filed this lawsuit in the U.S. District Court for the Northern District of California to set aside the NSL. The NSL recipient, represented by the Electronic Frontier Foundation, asked the court for declaratory and injunctive relief, claiming that a nondisclosure provision in the NSL Statute, 18 U.S.C. § 2709, violated the First Amendment. More specifically, the petitioner argued that the nondisclosure provision of the statute is an unconstitutional prior restraint and content-based restriction on speech. The federal government opposed the petition, filed a separate lawsuit seeking a declaration that NSL recipient be required to comply with the NSL (Civ. No. 11–2667 (Under Seal)), and filed a motion in this case to compel compliance with the NSL. We have an incomplete docket for the government's declaratory judgment action and no docket for the original case—it's entirely under seal.
On March 14, 2013, U.S. District Judge Susan Illston granted the petition to set aside the NSL, declaring that 18 U.S.C. 2709(c) violated the First Amendment. In re National Sec. Letter, 930 F. Supp. 2d 1064 (2013). The federal government was therefore enjoined from issuing NSLs under 18 U.S.C. § 2709 or from enforcing the nondisclosure provision in this or any other case. However, on May 6, 2013, the government appealed Judge Illston's decision to the U.S. Court of Appeals for the Ninth Circuit. On May 23, 2013, the NSL recipient moved to stay proceedings in the district court pending the government's appeal. Judge Illston granted the motion to stay on August 7, 2013.
We do not have access to many of the appellate documents because they have been filed under seal. However, the Ninth Circuit has unsealed various amicus briefs filed by interested parties, as well as two letters from the government. The first letter, dated November 6, 2014, corrected a mistaken statement regarding the government's position on whether companies that receive NSLs can disclose that fact. The second letter, dated February 12, 2015, brought a change in the nondisclosure policy to the court's attention.
However, before the Ninth Circuit could decide on this case, on June 2, 2015, Congress amended both 18 U.S.C. § 2709 and 18 U.S.C. § 3511 as part of the USA FREEDOM Act of 2015. In light of the significant changes to the statutes, on August 24, 2015, the Ninth Circuit issued an order vacating Judge Illston's previous decisions and remanding the case to the district court for the NSL recipient's challenges to the amended statutes.
As of March 2, 2016, we do not have any further updates for the proceedings in the district court as they remain under seal.Michael Mirdamadi - 11/11/2013
Edward Mroczkowski - 04/20/2015
John He - 03/02/2016