Concerning the Constitutionality of National Security Letter Provisions of the Electronic Communications Privacy Act
The Federal Bureau of Investigation (FBI) issued a national security letter (NSL) to an unnamed telecommunications provider seeking “subscriber information.” In response, the provider filed a petition with the District Court for the Northern District of California, challenging the NSL and the FBI’s authority to issue the letter. Specifically, the provider argued that (1) the NSL nondisclosure provision is an unconstitutional prior restraint under the First Amendment; (2) the judicial standard of review of NSL nondisclosure requirements violates separation-of-powers principles; and (3) that both the NSL itself and the accompanying nondisclosure requirement do not satisfy strict scrutiny under the First Amendment.
District Court Orders
The case was filed in the Northern District of California and was decided on March 14, 2013. The lower court held that the nondisclosure provisions were unconstitutional based on the First Amendment standards established in Freedman v. Maryland. In re Nat’l Sec. Letter, 930 F. Supp. 2d 1064. The court found that (1) the NSL statute did not satisfy Freedman because it does not require the Government to institute judicial proceedings; (2) the statute prohibits the mere fact of receipt of an NSL even though disclosure of that fact will not cause harm in many cases; (3) the NSL nondisclosure provisions are indefinite unless the recipient brings a judicial challenge; and (4) the statute “impermissibly attempts to circumscribe a court’s ability to review the necessity for nondisclosure orders.” The court found that the nondisclosure provisions were not reasonably severable from the substantive NSL provisions, and struck down the entire NSL provision. The court issued an injunction, but stayed its order pending appeal.
On May 6, 2013, attorneys for the Department of Justice, Attorney General, and FBI appealed the court’s order.
After the district court stayed its injunction, the NSL recipient filed a separate petition to set aside two additional NSLs, and the government filed a cross-petition to enforce them. Notwithstanding its prior opinion, the court denied the petition to set aside the NSLs and granted the Government’s cross-petition to enforce them. The recipient then appealed the order, and both cases are now pending before the U.S. Court of Appeals for the Ninth Circuit.
National Security Letters and Nondisclosure Provisions
The Federal Bureau of Investigation and other federal agencies use National Security Letters to obtain sensitive personal information about Americans: their financial records, telephone billing records, credit records, and other customer records. See 18 U.S.C.§ 2709 (Electronic Communications Privacy Act); 12 U.S.C. § 3414(a)(5) (Right to Financial Privacy Act); 15 U.S.C. §§ 1681u-1681v (Fair Credit Reporting Act); 50 U.S.C. § 3162 (National Security Act of 1947). Under these NSL provisions, companies are compelled to disclose their customers’ private records and, in almost every case, are simultaneously prohibited from disclosing any details about (even the mere existence of) the government’s requests.
Originally Section 2709(c) (the NSL provision at issue in this case) automatically forbade every recipient from disclosing information about the FBI’s request. That nondisclosure provision was found unconstitutional by a district court, and Congress subsequently amended the statute in 2006. As amended, the nondisclosure rule applies whenever the FBI certifies that disclosure “may result in 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)(1). But according to a 2007 Department of Justice Inspector General report, the FBI issues these certifications with 97% of the NSLs it issues.
The recipient of an NSL may request that a court modify or set aside the nondisclosure order that accompanies an NSL. 18 U.S.C. § 3511(b). If the petition is filed within one year of the date the recipient receives the NSL, the court may modify the order only if it finds that “there is no reason to believe that disclosure may endanger the national security of the United States” or other enumerated interests. 18 U.S.C. § 3511(b)(2). In making this determination, the court must treat an official certification as “conclusive unless the court finds that the certification was made in bad faith.” Id. If the petition is filed more than one year after receipt of the NSL then the government must either “terminate the nondisclosure requirement or re-certify that disclosure may result in danger to national security” within 90 days. 18 U.S.C. § 3511(b)(3).
Review By the Second Circuit
After these amended nondisclosure provisions were enacted by Congress, they were ruled unconstitutional in Doe v. Gonzales. 500 F. Supp. 2d 379 (S.D.N.Y. 2007). On appeal, in Doe v. Mukasey, 549 F. 3d 861 (2d Cir. 2008), the Second Circuit affirmed in part and only upheld the remaining provisions after it imposed new constraints on the FBI’s ability to authorize and enforce its nondisclosure orders. The court made clear that the government bears the burden of persuading “a district court that there is a good reason to believe that disclosure may result in one of the enumerated harms.” Id. at 876.
EPIC’s Interest in In re National Security Letter
EPIC tracks and reports on the governments use of National Security Letters and other Foreign Intelligence Surveillance Act authorities based on the current reports provided by the Attorney General to congress. These annual letters provided a basis to evaluate these programs, but lack the specificity and nuance of the annual Wiretap Reports prepared by the Administrative Office of the U.S. Courts. Without additional public information about the use of National Security Letters, EPIC and other public interest organizations will be limited in their ability to effectively inform the public about government surveillance activities. EPIC has previously testified before congressional committees on the need for additional transparency and oversight of national security investigations. For more information, see EPIC: National Security Letters.
United States Court of Appeals for the Ninth Circuit