By Brad Guyton and John Seiver

Last week, in In re National Security Letter, the United States District Court for the Northern District of California found unconstitutional two sections of the federal law allowing the FBI to issue “National Security Letters” (“NSLs”) to secretly demand subscriber records from ISPs, telecom carriers and other electronic service providers when investigating international terrorism or conducting clandestine intelligence activities.  An as-yet-unnamed telecommunications provider challenged the federal law and United States District Judge Susan Illston ordered the federal government to cease issuing NSLs and stop enforcing NSL gag orders, but stayed the order pending an expected appeal by the government to the Ninth Circuit.

The district court found the nondisclosure provision in 18 U.S.C. § 2709(c), as well as the judicial review provisions of 18 U.S.C. § 3511(b), unconstitutional on grounds that they violate the First Amendment and separation of powers principles.  Under the nondisclosure provision, a recipient of an NSL may not disclose to anyone other than an attorney that the FBI has requested such records.  The judicial review provisions at issue in the case specify certain limitations on a court’s discretion to modify or set aside an NSL nondisclosure requirement.

The district court followed the Second Circuit’s determination in a similar case decided in 2008, John Doe, Inc. v. Mukasey.  In Mukasey the court found the nondisclosure provision was a prior restraint on speech about government conduct.  As a content-based restriction, the district court here found the nondisclosure requirement violated procedural safeguards established by the Supreme Court in Freedman v. Maryland, and was not narrowly tailored to serve a compelling governmental interest.  Specifically, the district court held that the nondisclosure provision neither required the government to initiate judicial review of the NSL disclosure order nor placed the burden of proof on the government once in court, and that the provision did not provide an adequate limit on the amount of time the gag order may be in place before it is subjected to judicial review.  In addition, the district court ruled that the nondisclosure provisions were not narrowly tailored because they applied both to the content of the NSLs and to the mere fact that the recipient had received one, and that they were overbroad because they largely amounted to a permanent ban on speech due to the lack of temporal limitations on the nondisclosure requirement.

The district court also determined that the judicial review provisions in section 3511(b) imposed an unacceptably deferential standard of review, making it incompatible with the court’s ability and duty to review the types of speech covered by the nondisclosure orders.  Noting that its review of nondisclosure orders would require a searching standard of review, the district court stated that the level of deference mandated by the statute contradicted the proper standard.  Again agreeing with the Second Circuit, the district court determined that treating an FBI certification that disclosure would lead to an enumerated harm as “conclusive” was unconstitutional because it precluded meaningful judicial review, reducing the proper level of scrutiny to, in effect, no scrutiny at all.

Although Judge Illston largely followed the Second Circuit’s decision in Doe v. Mukasey, last week’s decision did not preserve the provisions by “conforming” them as the Second Circuit had.  Instead, the court determined that the provisions were neither savable nor severable.  It thus barred the government from issuing further NSLs under 18 U.S.C. § 2709 or enforcing the nondisclosure provision – not only in the instant case, but in any other case.  (That said, as noted above, the court also stayed the order pending appeal, or for 90 days if no appeal is filed, so the ban on NSLs and further gag order enforcement will not take effect at this time.)

This decision is another challenge to the controversial NSL provisions in federal law and will surely be appealed to the Ninth Circuit and perhaps then to the Supreme Court.