Ninth Circuit Preview: In re National Security Letter

In re National Security Letter, Under Seal v. Holder (Sealed), Nos. 13-15957 & 13-16731 (consolidated), 13-16732 deals with an FBI administrative subpoena, the National Security Letter. The NSL is used as part of authorized investigations to protect against international terrorism and clandestine intelligence activities.

NSL’s are directed to electronic communications service providers in order to obtain specified limited communications information. This information is commonly referred to as “metadata,” data which serves to provide context for other data. This might include the subject line, author, recipient, size of the message, date, time and method of copilation and processing. The contents of communications are not obtained.

Because secrecy is essential to national security investigations, if the FBI certifies that disclosure could interfere with the investigation or endangering the life or physical safety of any person, the NSL statute imposes a nondisclosure obligation on the NSL recipient.

The nondisclosure provisions of the NSL statute, similar to grand jury secrecy rules, were invalidated by the District Court on their face under the First Amendment. It did so despite the fact that the statutory provisions had been upheld by the Second Circuit. (Doe v. Mukasey, 549 F.3d 861 (2d Cir. 2008)

The District Court enjoined the government from issuing NSL’s under the authorization statute (18 USC section 2709) and enforcing the nondisclosure provision in any case. The judgment was stayed pending appeal in one of the consolidated cases but but granted enforcement in two other cases. The latter two orders have not been stayed.

Section 2709 was enacted in 1986 to assist the FBI in obtaining electronic information. Several similar statutes authorize specific administrative subpoenas: 12 U.S.C. section 3414(a)(5) [Right to Financial Privacy Act]; 15 U.S.C. sections 1681u-1681v [Fair Credit Reporting Act]; 50 U.S.C. section 3162 [National Security Act of 1947].

Subsections (a) and (b) of section 2709 authorize the FBI to request “subscriber information and toll billing records information, or electronic communication transactional records,” all of which Congress deemed to be “less private than other records.” (Sams v. Yahoo! Inc., 713 F.3d 1175, 1180 (9th Cir. 2013) NSL’s may not be used to obtain more private records, including the content of any wire or electronic communication. (See S. Rep. No. 99-541 at 44 (1986))

In order to issue an NSL, the Director of the FBI, or a designee “not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office” must certify that the information sought is “relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities.” When an NSL is issued in connection with an investigation of a “United States person,” one of the same officials must certify that the investigation is “not conducted solely on the basis of activities protected by the first amendment.” (18 U.S.C. section 2709(b)(1)-(2))

Originally, section 2709(c) automatically forbade an NSL recipient from disclosing that the FBI sought or obtained access to information by means of an NSL. (Pub. L. No. 99-508, section 201, 100 Stat. 1867 (1986)) The original nondisclosure requirement was perpetual, and the statute contained no provision for an NSL recipient to contest the need for nondisclosure in court.

In 2006, section 2709 was amended to prevent disclosure if the FBI appropriately asserted “there may result 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.” (18 U.S.C. § 2709(c)(2)) The certification is made on a case-by-case basis before each NSL is issued and does not apply, for example, when the investigation is already overt. The certification is made in a vast majority of cases.

Violation of the nondisclosure requirement is a criminal offense under the NSL statute if, the recipient discloses the information “knowingly and with the intent to obstruct an investigation or judicial proceeding.” (18 U.S.C. § 1510(e))
The 2006 revision also provided a specific mechanism for judicial review of a nondisclosure requirement in an NSL apart from judicial review of the NSL itself. An NSL recipient may petition a district court “for an order modifying or setting aside a nondisclosure requirement imposed in connection with” the NSL. (18 U.S.C. section 3511(b)(1)) If the petition is filed more than a year after the NSL was issued, the FBI or Department of Justice must either re-certify the need for nondisclosure or terminate the nondisclosure requirement. (18 U.S.C. section 3511(b)(3))

A District Court “may modify or set aside” the nondisclosure requirement if the court finds “no reason to believe” that disclosure may cause any of the statutorily enumerated harms. If the FBI or the Attorney General certifies at the time of the petition that disclosure may endanger national security or interfere with diplomatic relations, that certification “shall be treated as conclusive” by the District Court “unless the court finds that the certification was made in bad faith.” (18 U.S.C. section 3511(b)(2) & (3))
If a disclosure petition filed a year or more after the issuance of the NSL is denied, the recipient may try again one year later. (18 U.S.C. section 3511(b)(3))

In Doe v. Mukasey, the amended NSL procedure was essentially modified by the Second Circuit through injunction. Doe involved a facial constitutional challenge to the nondisclosure provisions of the NSL statute. The Second Circuit’s decision, with Justice Sotomayor as part of the panel, validates the NSL procedure if sections 2709 and 3511 “place on the Government the burden to show that a good reason exists to expect that disclosure of receipt of an NSL will risk an enumerated harm.” (Doe v. Mukasey, supra, 549 F.3d at 883)

The court held that the First Amendment obligates the government to initiate judicial review of the nondisclosure requirement and assumes the burden of seeking judicial review. In addition, a “reciprocal notice procedure” was created under which the recipient of an NSL has 10 days to notify the FBI that it intends to challenge the nondisclosure requirements, and the Government then has approximately 30 days in which to initiate judicial review. (Doe v. Mukasey, supra, 549 F.3d at 883-884)

Doe holds that section 3511(b) is unconstitutional to the extent that it makes specified Government certifications conclusive in judicial proceedings but found that the provision was severable. It found that there is “no doubt that if Congress had understood that First Amendment considerations required the Government to initiate judicial review of a nondisclosure requirement and precluded a conclusive certification by the Attorney General, it would have wanted the remainder of the NSL statutes to remain in force.”(Doe v. Mukasey, supra, 549 F.3d at 884-885)

In the case before the Ninth Circuit, three NSL’s were issued as part of two investigations. No details of the investigations are available to the public and the public access is limited to redacted briefs.

On March 14, 2013, the district court granted the petition and issued an opinion which deemed the NSL nondisclosure requirement should be “narrowly tailored to serve a compelling governmental interest,” and meet the heightened standards that the Supreme Court applied to administrative censorship schemes in Freedman v. Maryland, 380 U.S. 51 (1965)

The district court below concluded that the statutory NSL nondisclosure provision is facially unconstitutional in several respects. It was deficient for not requiring the Government to institute judicial proceedings under Freedman; for prohibiting disclosure of the mere fact of receipt of an NSL; because the nondisclosure requirements because they remain in effect until judicially set aside and because a recipient can ask a court to set aside a particular nondisclosure requirement no more than once every year.

In addition, “the statute impermissibly attempts to circumscribe a court’s ability to review the necessity for nondisclosure orders” by limiting a court’s power to modify or set aside a nondisclosure order to situations in which there is no reason to believe that disclosure may lead to an enumerated harm and by giving conclusive effect to specified officials.

The Doe court reasoned that construing the provisions to avoid First Amendment issues would be inconsistent with what the court took to be Congress’s intention to simultaneously “giv[e] the government the broadest powers possible to issue NSL nondisclosure orders” while “preclud[ing] searching judicial review of the same.” Therefore there was no reasonable construction of the statute which could avoid constitutional infirmities.

Finally, the District Court, in direct contradiction of Doe, concluded that the provisions it found unconstitutional could not be severed from the underlying substantive provisions that authorize the FBI to issue and enforce NSLs in counterterrorism and counterintelligence investigations. Thus, because the substantive NSL provisions could function if no recipient were required to abide by the nondisclosure provisions, Congress could not have believed that the nondisclosure provision was flawed, it would still have authorized the FBI to issue NSLs without some kind of a legally binding nondisclosure obligation.

The decision thus holds that the entire NSL statute is invalid and unenforceable, thereby invalidating a modus vivendi which was created by Doe v. Mukasey in 2006. The Second Circuit bent over backwards to insure that the NSL provisions would not be invalidated and instituted non-statutory process to save it from destruction under the First Amendment.

It has been a psychic millenium between 9/11 and the revelations of Edward Snowden in 2013. It is no accident that Doe v. Mukasey was issued in 2006, the mid-point of a seemingly unending war on terror. The District Court’s opinion is a vindication that at this point of time, the logic of a national emergency must be replaced with more traditional analysis of the impact of the First Amendment and due process on questionable legislation involving national security.

This District Court is not alone in being troubled by confident and blanket Executive Branch assurances that national security justifies NSL’s. Despite the silence of the record, the NSL recipient in the case must have been some national carrier, and standing with the recipient are Google, Facebook, Microsoft, and Yahoo as amicus curiae.

The government appears to be exercising some caution about NSL’s. In a case involving Microsoft, the District Court opened the record after the government withdrew the NSL. (In re National Security Letter, No. C13-1048RAJ (W.D. Wash. 5/14/14; http://blogs.technet.com/b/microsoft_on_the_issues/archive/2014/05/22/new-success-in-protecting-customer-rights-unsealed-today.aspx) It appears that there, the government found another source of information.

While it is easy to understand the legal mind-set which routed the issue to the Ninth Circuit, it is far more difficult to predict the Ninth Circuit and Supreme Court results, especially because Justice Sotomayor must recuse herself. The prospect of a 5-3 reversal therefore looms as an ultimate result.

Finally, In the Matter of a Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corporation, No. 13 Mag. 2814 (SDNY 04/25/14) presents the issue of the validity of a warrant issued under the Stored Communications Act for metadata and e-mail contents which Microsoft maintains is located in Dublin, Ireland. The magistrate judge found otherwise and refused to quash the SCA warrant. (Those researching the case must use Case No. 1:13-mj-02814-UA.)

The legitimacy of the magistrate judge’s order was reviewed and affirmed by the District Court but it is unlikely that the issue will be resolved without appeal to the Second Circuit. (http://www.law.com/sites/jamesching/2014/07/31/second-circuit-preview-microsoft-challenges-sca-warrant-for-e-mail-contents/#ixzz39g8T0t00)

More by | James Ching James Ching , Law.com Contributor
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