Kate M. Growley

A Ninth Circuit district court has recently gagged the gaggers. In In re National Security Letters, No. C 11-02173 SI (N.D. Cal. March 15, 2013), Judge Illston of the Northern District of California struck down the Federal Bureau of Investigation’s (“FBI”) use of national security letters (“NSLs”) as unconstitutional. Specifically, the court held that gag orders accompanying NSLs violate the First Amendment and that the restrictive provisions for judicial review of those gag orders violate separation of powers principles.

History of National Security Letters

Despite its recent attention, NSLs are not a new law enforcement tool. As early as 1978, government agencies relied on these letters to gather information related to national security. Since their inception though, Congress has consistently expanded the scope and authority of NSLs, alarming some civil liberty advocates, including the ACLU.

Today, the FBI is the primary issuer of the letters. Under 18 U.S.C. § 2709, a wire or electronic communication service provider (“ECSP”) must comply with a request (in the form of a NSL) for subscriber information but only if a FBI official certifies that those records are relevant to an investigation into international terrorism or clandestine intelligence. The NSL may also include a gag order that prohibits the ECSP from discussing the NSL in any way, even the fact that it has received one. Yet before it may issue a gag order, the FBI must make a second certification that disclosure would harm either national security; a criminal, counterterrorism, or counterintelligence investigation; diplomatic relations; or a person.

A separate section of Title 18 — § 3511 — allows ECSPs to ask a district court to “modify or set aside” a gag order. To do so, however, a court must first find that there is no reason to believe that disclosure would indeed lead to the harms listed in the FBI’s gag order certification. The catch is that, in considering the likelihood of these harms, a court must treat the FBI’s certification as conclusive. The only exception to this is if a court finds that the certification was made in bad faith. So only rarely can a court make an independent determination on how likely the absence of a gag order is to cause harm. Because a court’s inquiry – by law – will almost always begin and end with the certification, that court will almost always find a likelihood of harm, and thus almost always uphold the gag order.

District Court Decision

Judge Illston took issue with both of these statutes, holding that each suffered from an independent constitutional infirmity:

The court first concluded that § 2709, on its face, imposes an impermissible restraint on free speech. While not a classic restraint, “the nondisclosure provision clearly restrains speech of a particular context” by preventing recipients of NSLs from taking part in the public debate over appropriate government activities. As such, the NSL statutes must comply with what is known as the Supreme Court’s Freedman standard. That is, the NSL gag orders must:

(1) Restrain speech only for a specified, limited period of time;

(2) Provide for judicial review of the restraint; and

(3) Place the burden of this review on the government.

Judge Illston held that § 2709 neither limited the duration of gag orders nor burdened the government with its review – thus failing the first and third Freedman factors. Notably, government promises to comply with these procedural safeguards are insufficient when the statute is facially deficient, presenting “too great a risk” of infringing First Amendment rights.

Judge Illston also held that, as a content-based restriction, the NSL gag orders must satisfy the more classic constitutional scrutiny – is it narrowly tailored to serve the compelling government interest of national security? The court did recognize that prohibiting disclosure of the information that a NSL actually seeks is generally necessary to protect an ongoing investigation. But it found no evidence that a prohibition on disclosing the mere receipt of a NSL was similarly necessary. While there may be circumstances where such broad nondisclosure would be warranted (such as when the ECSP is so small that disclosing the mere receipt of a NSL would tip off an investigation’s target), the NSL statutes in no way distinguish between this rare context and the more likely scenario where disclosure would not affect national security.

The court also nixed as unconstitutional § 3511’s provisions for judicial review of gag orders, holding that the statute “impermissibly attempts to circumscribe a court’s ability to review the necessity of nondisclosure.” Because § 2709 “significantly infringe[s] on speech,” the court required a more rigorous standard of review than the deference mandated by § 3511. In fact, Judge Illston concluded that treating a government certification as conclusive essentially meant that a court could apply “no scrutiny at all” – an unconstitutional result.

Implications

Judge Illston was quick to acknowledge the import of her ruling. Her final decision enjoined the government from issuing NSLs or from enforcing its gag orders. But, “given the significant constitutional and national security issues at stake,” she stayed enforcement of her decision pending appeal. It will remain to be seen then how long this monumental decision stands true.

In the meantime, Judge Illston’s decision has emboldened other ECSPs to challenge their receipt of NSLs. Google, for one, has recently filed under seal a NSL petition, not surprisingly before Judge Illston. Notably, the identity of the petitioner in In re National Security Letters has yet to be disclosed.

Pundits are also mulling over the consequences of an approval on appeal to the Ninth Circuit. For example, § 3511’s review process does not just apply to NSLs seeking ECSP information under § 2709. Other kinds of NSLs are also reviewable under § 3511, including those seeking financial records (12 U.S.C. § 3414(a)(5)), credit history (15 U.S.C. § 1681u), credit reports (15 U.S.C. § 1681v), and information concerning the improper disclosure of classified information (50 U.S.C. § 436). According to Judge Illston’s rationale, the equally deferential review process for these other NSLs could also be vulnerable to a constitutional attack.

There is also the question of how – if at all – Congress will respond. The Northern District of California is not the first district court to hold the use of NSLs unconstitutional, and the legislature has responded before by revising its laws. See John Doe, Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008). With so much already on its plate, it will be interesting to see if Congress can timely, and adequately, take up the alleged defects in its legislation.