Case Summary and Outcome

A District Court in Northern California ruled that National Security Letter (NSL) provisions as amended by the USA Freedom Act of 2015 do not violate the constitution.  The provisions allow the FBI to issue NSLs accompanied by gag orders that stop people from disclosing that they were served with NSLs. Two electronic communication service providers had challenged the constitutionality of the NSL on the grounds that the gag orders constituted prior restraints and were content-based restrictions.

Facts

NSLs became controversial when their use was expanded under the USA Patriot Act of 2001. They allowed the FBI without a judge’s approval to issue a secret letter to communications service providers, requiring them to turn over subscriber and other personal information about customers. The FBI routinely issued gag orders along with NSLs which hampered discussion and debate about the process itself.

Following receipt of several NSLs in 2011 and 2013, two electronic communication service providers filed lawsuits to set aside the NSLs on the grounds that they were unconstitutional. The service providers were represented by the Electronic Frontier Foundation (EFF).

In 2013, the District Court found that the nondisclosure requirements and judicial review provisions regarding those requirements in NSL statutes were constitutionally flawed and needed to be cured legislatively. Congress amended the statutes through the passage of the USA Freedom Act of 2015 and the Ninth Circuit remanded the two cases back to the District Court to reexamine the challenges in light of the amendments.

The Petitioners argued that the nondisclosure provision was an unconstitutional prior restraint and content-based restriction on speech, specifically, it lacked the requisite safeguards prescribed by the First Amendment because, among other things, the government didn’t bear the burden of demonstrating nondisclosure was necessary to protect specific identified interests.

The government argued that the NSLs were not a prior restraint and were analogous to restrictions on disclosures of information by individuals involved in civil litigation, grand jury proceedings and judicial misconduct investigations.

Decision Overview

Judge Susan Illston delivered the judgement. She agreed with the Court’s previous holding that NSLs were not typical content-based restrictions because they applied to a limited category of information and not the broad categories of information that have usually been at issue for content-based restrictions. Accordingly, the Court’s standard of review of NSL statutes could be less exacting than that argued for by the Petitioners. Further, the Court agreed with previous judgments which held that given the national security implications attached to NSLs, courts ought to defer to the Executive Branch.

However, the Court went on to state that the non-disclosure provision was a clear restraint of speech about government conduct. This was significant because it gave the government the ability to prevent individuals from speaking out about the government’s use of NSLs, a topic that had elicited extensive public debate.

In these circumstances, the Court held that the procedural safeguard test known as the Freedman test should be applied to review the amended NSL statutes. Freedman requires that: 1) any restraint prior to judicial review can apply but only for a brief and specified period; 2) expeditious judicial review of that decision must be available; 3) the censor must bear the burden of seeking judicial review and bear the burden of proof once in court. The Court found that the amended NSL statutes satisfied all elements of the Freedman procedural test.

The Court held that as content-based restrictions on speech the NSL disclosure provisions must be narrowly tailored to serve a compelling governmental interest. Previously, the Court had  found that the nondisclosure provisions were not narrowly tailored on their face as they applied to both the content of the NSL and the fact of having received one without distinction between the two scenarios. It was also problematic that no provision existed to require or allow the government to rescind the non-disclosure order and, if a recipient sought review and failed, he or she was prohibited from filing another petition for a year even if there was no longer any need for nondisclosure within the year. However, the Court held that the 2015 USA Freedom Act amendments cured these deficiencies and satisfied constitutional requirements. 

Having considered the specific NSLs in these cases, the Court, following an in camera review, found that the government’s case for continued nondisclosure of three of them was made because there was a reasonable likelihood that disclosure of the information subject to the nondisclosure requirement would result in a danger to national security, interfere with criminal, counterterrorism or counterintelligence investigation, interfere with diplomatic relations or be a danger to a person’s life or physical safety. This was not the case for the fourth challenge but, in view of the constitutional and national security issues at stake, the Court stayed its order on this fourth challenge for 90 days pending appeal .