National Security, Privacy, Data Protection and Retention, Surveillance
Serbian Law on Information Security Agency, Articles 13, 14, and 15 (2014)
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In September 2007, the Southern District Court of New York in Doe v. Gonzales, 500 F.Supp.2d 379 (S.D.N.Y.2007) declared subsections 2709(c) and 3511(b) of federal law unconstitutional for violations of the First Amendment right to free speech and the separation of powers principle. Subsection 2709(c) prohibits a wire or electronic communication service provider from disclosing to any person that it is a recipient of a National Security Letter (NSL) by the Federal Bureau of Investigation (FBI). NSL is a request for information about specified Internet subscribers. As amended by U.S. Congress, subsection 2709(c)’s non-disclosure requirement applies only when the government certifies that revealing the receipt of an NSL may result in: danger to national security, interference with an investigation, or danger to the life or physical safety of any person. Subsection 3511(b) provides the recipient the right to petition for judicial review of the NSL’s nondisclosure requirement.
In February 2004, the FBI delivered an NSL to John Doe, Inc., an Internet service provider company, requiring it to provide the names, addresses, and records of Internet activities of a subscriber. The FBI certified that the information sought was relevant to an investigation against international terrorism or intelligence activities, and pursuant to subsection 2709(c), it prohibited the company from disclosing to any person that the FBI had sought access to such information.
Subsequently, the company joined by the American Civil Liberties Union, and the American Civil Liberties Union Foundation (“Plaintiffs”) brought an action in Southern District Court of New York against the U.S. government, challenging the constitutionality of subsection 2709(c). The court held that the nondisclosure requirement of subsection 2709(c) in particular was unconstitutional under the First Amendment because it was an unjustified prior restraint and a content-based restriction on speech.
Then, U.S. Congress amended subsection 2709(c) to require nondisclosure only upon certification by senior officials that revealing information “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.” Congress also added section 3511, providing, the recipient of an NSL, inter alia, the right to judicial review of a non-disclosure requirement. In addition, Congress created a conclusive presumption clause within subsection 3511(b), pursuant to which if the government “certifies that disclosure may endanger the national security of the United States or interfere with diplomatic relations, such certification shall be treated as conclusive unless the court finds that the certification was made in bad faith.”
In September 2007, the district court in light of those amendments issued a second opinion, holding that despite congressional changes, subsections 2709(c) and 3511(b) were “facially unconstitutional.” It enjoined the FBI from issuing NSLs and enforcing the provisions of subsections 2709(c) and 3511(b). However, the court stayed enforcement of its judgement pending the government’s appeal to the Second U.S. Circuit Court of Appeals.
Circuit Judge Jon O. Newman delivered the opinion the Second Circuit Court of Appeals.
The main issue before the Court was whether the non-disclosure requirement of the NSL is constitutional with respect to subsections 2709(c) and 3511(b).
The Court first addressed the applicable First Amendment principles. It noted that a judicial order “forbidding certain communications when issued in advance of the time that such communications are to occur” is generally regarded as a “prior restraint.” Alexander v. United States, 509 U.S. 544 (1993). In Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976), the U.S. Supreme Court held that prior restraint is ‘‘the most serious and the least tolerable infringement on First Amendment rights,” which carries “a heavy presumption against constitutional validity.” Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971).
To withstand judicial security, the First Amendment generally requires certain procedural protections to guard against impermissible prior restraints. These procedural measures, known as the Freedman safeguards, require that: (1) any restraint imposed prior to judicial review must be limited in duration; (2) any further restraint prior to a final judicial determination must be limited to ‘‘the shortest fixed period compatible with sound judicial resolution,” and (3) the burden of going to court to suppress speech and the burden of proof in court must be placed on the government. Freedman v. Maryland, 380 U.S. 51 (1965). The Court also referred to the Supreme Court’s jurisprudence with respect to content-based restriction on speech, which is subject to review under the standard of strict scrutiny, requiring to establish that the restriction is ‘narrowly tailored to promote a compelling government interest.
The Plaintiffs argued that the non-disclosure requirement of subsection 2709(c) is an unconstitutional content-based prior restraint because “it proscribes disclosure of the entire category of speech concerning the fact and details of the issuance of an NSL,” and that it fails to meet the strict scrutiny standard as it is not narrowly tailored towards a government’s compelling interest. They also challenged the constitutionality of subsection 3511(b), contending that it violates the First Amendment by not requiring the government to initiate judicial review and that the FBI certification is impermissibly entitled to a conclusive presumption, absent of showing bad faith.
In response, the government argued that the NSL’s non-disclosure requirement is subject to lesser degree of judicial scrutiny because it does not “suppress a preexisting desire to speak, but only as a result of governmental interaction with an NSL recipient.”
Turning to the First Amendment issues with respect to the NSL, the Court held that although the nondisclosure requirement was in some sense a prior restraint as argued by the Plaintiffs, it was also not a typical example of a prior restraint as it was not imposed on persons who ordinarily wished to exercise the right of free expression, such as speaking in public fora or distributing literature. Furthermore, even though the nondisclosure requirement is triggered by the content of a specific category of information, consisting the receipt of an NSL and some related details, it is far more limited than broad categories of information that generally have been considered typical content-based restrictions.
Yet the Court rejected the government’s argument that the non-disclosure requirement can be considered to satisfy the First Amendment standards based on analogies to secrecy rules applicable to grand juries, judicial misconduct proceedings, and certain interactions between individuals and governmental entities. Such secrecy, the Court held, servers several interests common to such proceedings, including enhancing the willingness of witnesses to come forward and promoting truthful testimony. According to the Court, unlike other secrecy exceptions, a temporal limitation is absent from the nondisclosure requirement of subsection 2709(c). Thus, the Court found that the subsection 2709(c) was not a typical content-based prior restraint on free speech. Because the Court was not in agreement as to whether it should examine the subsections under the traditional strict scrutiny or under a less exacting standard, it addressed the subsections under either degree of scrutiny.
It first ruled that the conclusive presumption clauses of subsection 3511(b) violated the First Amendment because to “accept deference to that extraordinary degree would be to reduce strict scrutiny to no scrutiny, save only in the rarest of situations where bad faith could be shown.” It also declared subsections 2709(c) and 3511(b) unconstitutional “to the extent that they impose a nondisclosure requirement without placing on the [g]overnment the burden of initiating judicial review of that requirement.” Based on the Supreme Court’s ruling in Freedman, the Court held that because the NSL’s non-disclosure requirement allows expression only upon the government’s permission, the burden of going to court to suppress disclosure by the recipient must be placed on the government.
Accordingly, the Court partially invalidated subsections 2709(b) and 3511(c) for imposing non-disclosure requirement without placing on the government the burden of initiating judicial review of such requirement and for providing the government a conclusive presumption that upon a certification by senior government officials, the disclosure of an NSL would pose a danger.
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