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Case Name Doe v. Ashcroft NS-NY-0004
Docket / Court 1:04-cv-02614 ( S.D.N.Y. )
Additional Docket(s) 05-0570-cv  [ 05-570 ]
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 the ACLU Foundation filed suit in U.S. 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 ... read more >
In April 2004, the American Civil Liberties Union (ACLU) and the ACLU Foundation filed suit in U.S. 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 FBI stipulated that the John Doe listed on the complaint could disclose his identity and show a redacted version of the letter sent to him demanding information (document NS-NY-0004-0001 in this Clearinghouse). The FBI further stipulated that the ACLU could publish the information on their website (press release NS-NY-0004-0017 in this Clearinghouse). In return, the ACLU agreed to withdraw the appeal pending before the Second Circuit.

On November 10, 2010, the ACLU motioned for attorney's fees pursuant to the Equal Access to Justice Act. After several motions between the parties, the United States stipulated and agreed to pay $225,000 in attorney's fees and litigation costs to the plaintiff.

The court retained jurisdiction over this case for four additional years with no activity on the docket. On April 15, 2014, the Court entered a modified stipulation and order of dismissal. The modified stipulation held that any remaining nondisclosure obligations set forth in 18 U.S.C § 2709 as pertaining to the plaintiff were lifted, except for the redacted information in the initial letter and attachment. This stipulation did not affect Doe's rights to pursue future claims under 18 U.S.C. § 3511(b).

This case is now closed.

Elizabeth Homan - 10/27/2013
Neil Tiwari - 10/25/2016

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Issues and Causes of Action
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Constitutional Clause
Due Process
Free Exercise Clause
Unreasonable search and seizure
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
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Attorneys fees
Injunction / Injunctive-like Settlement
Source of Relief Litigation
Form of Settlement Court Approved Settlement or Consent Decree
Filed 2004
Case Closing Year 2014
Case Ongoing No
Additional Resources
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  See this case at (May provide additional documents and, for active cases, real-time alerts)
05−0570−cv (S.D.N.Y.)
NS-NY-0004-9000.pdf | Detail
Date: 04/15/2014
Source: 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) (317 F.Supp.2d 488) (S.D.N.Y.)
NS-NY-0004-0010.pdf | WESTLAW| LEXIS | Detail
Date: 05/12/2004
Source: Google Scholar
Amended Complaint for Declaratory and Injunctive Relief
NS-NY-0004-0002.pdf | Detail
Date: 05/13/2004
Source: ACLU
Opinion; Decision and Order (334 F.Supp.2d 471) (S.D.N.Y.)
NS-NY-0004-0003.pdf | WESTLAW| LEXIS | Detail
Date: 09/28/2004
Source: Google Scholar
NS-NY-0004-0001.pdf | Detail
Date: 11/01/2004
Source: ACLU
Opinion (2005 WL 4684237) (S.D.N.Y.)
NS-NY-0004-0015.pdf | WESTLAW | Detail
Date: 01/25/2005
Source: Westlaw
Opinion (127 S.Ct. 1)
NS-NY-0004-0014.pdf | WESTLAW | Detail
Date: 10/07/2005
Source: Westlaw
Per Curiam (449 F.3d 415)
NS-NY-0004-0004.pdf | WESTLAW| LEXIS | Detail
Date: 05/23/2006
Source: Google Scholar
Motion for leave to file second amended complaint for declaratory and injunctive relief; Second Amended complaint for Declaratory and Injunctive Relief
NS-NY-0004-0005.pdf | Detail
Date: 07/24/2006
Source: ACLU
Opinion Decision and Order (500 F.Supp.2d 379) (S.D.N.Y.)
NS-NY-0004-0011.pdf | WESTLAW| LEXIS | Detail
Date: 09/06/2007
Source: Google Scholar
Appeal and Order (549 F.3d 861)
NS-NY-0004-0006.pdf | WESTLAW| LEXIS | Detail
Date: 12/15/2008
Source: ACLU
Decision and Order (640 F.Supp.2d 517) (S.D.N.Y.)
NS-NY-0004-0007.pdf | WESTLAW| LEXIS | Detail
Date: 08/05/2009
Source: Google Scholar
Decision and Order (665 F.Supp.2d 426) (S.D.N.Y.)
NS-NY-0004-0008.pdf | WESTLAW| LEXIS | Detail
Date: 10/20/2009
Source: Google Scholar
Decision and Order (703 F.Supp.2d 313) (S.D.N.Y.)
NS-NY-0004-0009.pdf | WESTLAW| LEXIS | Detail
Date: 03/18/2010
Source: Google Scholar
Press Release: National Security Letter Recipient Can Speak Out For First Time Since FBI Demanded Customer Records From Him
NS-NY-0004-0017.pdf | External Link | Detail
Date: 08/10/2010
Source: ACLU
Stipulation and Order Modifying July 30, 2010 [ECF# 227] (S.D.N.Y.)
NS-NY-0004-0016.pdf | Detail
Date: 04/15/2014
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Cardamone, Richard J. (Second Circuit) show/hide docs
Ginsburg, Ruth Bader (D.C. Circuit, SCOTUS) show/hide docs
Marrero, Victor (S.D.N.Y.) show/hide docs
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-0004-0016 | NS-NY-0004-9000
McLaughlin, Joseph Michael (E.D.N.Y., Second Circuit) show/hide docs
Newman, Jon Ormond (D. Conn., Second Circuit) show/hide docs
Parker, Barrington Daniels Jr. (S.D.N.Y., Second Circuit) show/hide docs
Plaintiff's Lawyers Beeson, Ann (District of Columbia) show/hide docs
NS-NY-0004-0002 | NS-NY-0004-0005 | NS-NY-0004-9000
Eisenberg, Arthur (New York) show/hide docs
NS-NY-0004-0002 | NS-NY-0004-0005 | NS-NY-0004-0017 | NS-NY-0004-9000
Goodman, Melissa (New York) show/hide docs
NS-NY-0004-0005 | NS-NY-0004-0017 | NS-NY-0004-9000
Jaffer, Jameel (New York) show/hide docs
NS-NY-0004-0002 | NS-NY-0004-0005 | NS-NY-0004-0017 | NS-NY-0004-9000
Manes, Jonathan Matthew (New Jersey) show/hide docs
McGowan, Sharon M. (District of Columbia) show/hide docs
NS-NY-0004-0002 | NS-NY-0004-9000
Schwartztol, Laurence Michael (New York) show/hide docs
Defendant's Lawyers Bharara, Preetinder S. (New York) show/hide docs
Kotler, Meredith Eve (New York) show/hide docs
Oestericher, Jeffrey Stuart (New York) show/hide docs
Torrance, Benjamin H. (New York) show/hide docs
Other Lawyers Daignault, Ronald Marc (New York) show/hide docs

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