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This Clearinghouse entry combines several cases in which recipients of administrative subpoenas known as a National Security Letters (NSLs) challenged the rule that they not disclose that government information request. The cases are grouped together because they were consolidated following appeal; their docket numbers were 3:11-cv-02173-SI, 3:13-mc-80089-SI, and 3:13-cv-01165-SI. All three cases were assigned to District Judge Susan Illston.
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, 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." As usual, 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 nondisclosure requirement in the U.S. District Court for the Northern District of California in 3:11-cv-02173-SI.
On March 14, 2013, 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 court found that the nondisclosure part of the statute and its substantive requirements were intertwined; since the nondisclosure provisions were unlawful, the substantive requirements could not be enforced. Therefore, it set aside the challenged NSL. The government appealed this decision (Appeal No. 13-15957), and the district court stayed its judgment pending the appeal.
The same NSL recipient brought two subsequent actions to set aside two additional NSLs, 3:13-mc-80089-SI, and 3:13-cv-01165-SI. 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.
Appeal No. 13.16732 came from docket 3:13-cv-01165-SI 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 from 3:13-cv-01165-SI 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, 2014, the government submitted its opening
brief, focusing on No. 13-15957, the case in which Judge Illston held the NSL nondisclosure provisions unconstitutional. 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.
On February 28, 2014, 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. ยงยง 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.
Amicus briefs were filed by:
The October 8, 2014 oral argument is available online on the Court's
website.
While the Ninth Circuit considered these appeals, Congress passed the USA FREEDOM Act on June 2, 2015. This new law replaced the USA PATRIOT Act, which had expired the previous day, and was intended to remove the constitutionality concerns surrounding NSL nondisclosure orders and provided an avenue for judicial review of the orders. With this in mind, the Ninth Circuit remanded proceedings to the Northern District of California for initial judicial review of the constitutionality of the NSLs at issue.
Upon remand, the District Court consolidated all three cases (3:11-cv-02173-SI, 3:13-mc-80089-SI, and 3:13-cv-01165-SI). The record is sealed, though briefs on appeal indicated that the District Court found that, through confidential
in camera briefings, the government had met its burden to justify nondisclosure of the NSLs in the case of 13-cv-1165 and 11-cv-2173 but had not met its burden to justify nondisclosure in the case of 13-mc-80089. The plaintiffs appealed the former result and the defendants appealed the latter result; it continued as one consolidated appeal to the Ninth Circuit once again.
While this second appeal was pending, the FBI concluded investigations into several of the NSLs at issue and updated nondisclosure requirements. For the NSL in 11-cv-02173, the FBI stated that the plaintiff could now disclose that it had received an NSL and whether it complied with the FBI's documentation requests, but it could not disclose what information it provided to the FBI. It made the same conclusion for one of the NSLs at issue in 13-cv-01165. As a result, the Ninth Circuit now had to review if this narrow clawback of the NSL nondisclosure principle was enough to pass constitutional muster.
In an opinion on July 17, 2017, Judge Sandra S. Ikuta, writing for a panel composed of her and Circuit Judges N. Randy Smith, and Mary H. Murguia, found that this nondisclosure arrangement was constitutional. She deemed that, since this restriction would censor the content of speech, it was subject to strict scrutiny. She added that national security is a concern "of the highest order," but that any restriction on disclosure would still need to be narrowly tailored, such that no other method for protecting national security would be possible. Judge Ikuta ultimately found that the restrictions on disclosure were narrowly tailored, because they granted national security officials to provide a range of disclosure options, courts could re-tailor restrictions based on judicial review, and that they were not indefinite due to the availability of judicial review. She also noted that the procedural safeguards in the judicial review process were enough to protect speech. 863 F.3d 1110.
The plaintiffs did not appeal this decision to the Supreme Court. The case is closed.
Jessica Kincaid - 02/08/2015
Ellen Aldin - 06/16/2020
compress summary
