In re National Security Letter (3 cases) | Civil Rights Litigation Clearinghouse

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This case involves a dispute over administrative subpoenas known as National Security Letters (NSLs). In 1986, Congress empowered the FBI to issue 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, the FBI issued a National Security Letter (NSL) to an unnamed 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," the federal government could prohibit the provider from disclosing the existence of the NSL. This entry describes the lawsuits between the recipient and government that arose from this NSL and subsequent NSLs issued to the same recipient.

In early 2011, the NSL recipient filed this lawsuit in the U.S. District Court for the Northern District of California to set aside the NSL under 18 U.S.C. § 3511. The recipient, represented by the Electronic Frontier Foundation, asked the court for declaratory and injunctive relief, claiming that the nondisclosure provision in the NSL Statute (18 U.S.C. § 2709) violated the First Amendment. More specifically, the recipient argued that the nondisclosure provision of the statute was an unconstitutional prior restraint and content-based restriction on speech, both on its face and as applied.

The federal government opposed the petition and filed a motion to compel the recipient to comply with the NSL. The government also filed a separate lawsuit seeking a declaration that the recipient was required to comply with the NSL on June 3, 2011 (No. 11-2667). 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 on its face violated the First Amendment. She noted that § 2709 allowed the government to suppress speech without initiating prompt judicial proceedings and determined that the law was not narrowly tailored because it prevented NSL recipients from disclosing not just the content of NSLs but also their very existence. So, she enjoined the government from issuing additional NSLs or enforcing § 2709's nondisclosure provision in any case. 930 F. Supp. 2d 1064.

The government appealed, and the district court stayed proceedings during the appeal on August 7, 2013.

Despite the court's March 14 order, the government issued two new NSLs to the recipient of the original NSL. The recipient filed another lawsuit to challenge the new NSLs (No. 13-80089). On August 12, 2013, Judge Illston refused to set aside the new NSLs pending the appeal because they included procedural safeguards. For example, the FBI notified the recipient that judicial review was available and agreed to produce upon challenge evidence of a "good reason" that nondisclosure was required to protect against terrorism.

Around the same time, other electronic communication service providers began to challenge NSLs. For more information on these cases, see here.

Before the Ninth Circuit could decide the appeal in this case, Congress amended both 18 U.S.C. § 2709 and 18 U.S.C. § 3511 as part of the USA FREEDOM Act on June 2, 2015. In light of the significant changes to the statutes, the Ninth Circuit vacated Judge Illston's order and remanded the case on August 24, 2015.

On March 19, 2016, Judge Illston found that Congress's revisions cured the NSL process's constitutional defects. The revised § 2709 allowed NSL recipients to require the government to seek judicial review of nondisclosure requirements, and the revised § 3511 required courts to "rule expeditiously" when reviewing NSL nondisclosure requirements. Moreover, the government would bear the burden of proof in the subsequent proceedings and had to provide specific facts to support a claim that disclosure could cause harm. Finally, the new § 3511 allowed the FBI and courts to authorize limited disclosures, which showed that the statute was narrowly tailored.

The court then analyzed whether nondisclosure was appropriate for the challenged NSLs. It found that the government adequately supported nondisclosure in case 11-2173 but not 13-80089, and it stayed its ruling pending appeal. The government then voluntarily lifted the nondisclosure requirement in case 11-2173. As a result, the recipient was able to reveal itself as CREDO Mobile. (Information about specific customer accounts remained undisclosed in all cases.)

The Ninth Circuit (Judges Sandra S. Ikuta, N. Randy Smith, and Mary H. Murguia) affirmed the district court's decision on July 17, 2017. The court found that § 2709's nondisclosure requirement was content based, applied strict scrutiny, and upheld the restrictions because § 2709 required the government to establish a reasonable likelihood that harm would result from disclosure on a case-by-case basis. The court then questioned whether § 2709 was a prior restraint but concluded, assuming it was, that the law passed muster because it provided quick judicial review. 863 F.3d 1110.

The Clearinghouse does not know if CREDO Mobile continues to seek disclosure of those parts of the NSLs that have not already been made public.

Michael Mirdamadi - 11/11/2013
Edward Mroczkowski - 04/20/2015
John He - 03/02/2016
Anna Belkin - 11/27/2018
Timothy Leake - 03/09/2021

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