In re: National Security Letter, Under Seal v. Holder (Sealed)

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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.

answering brief

third brief

granted

unsealed

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.

Jessica Kincaid - 02/08/2015

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