Case Summary and Outcome

Nicholas Merrill, the owner of then-existing Calyx Internet Access, brought an injunctive lawsuit in the Southern District of Court of New York against the U.S. Attorney General and the Director of Federal Bureau of Investigation (FBI) in their official capacity, seeking to lift a non-disclosure requirement imposed by a National Security Letter (NSL). The NSL at issue prohibited Merrill from disclosing the redacted portions of the attachment to letter, which mainly included certain types of information that the FBI was seeking to collect from him, such as records of the subscriber’s name and address, his or her activity for any connections, and telephone records. But the information did not specifically identify a person of interest and publicly-available government documents provided substantially similar information to those redacted portions of the NSL.

Pursuant to the amended Section 2709 of federal law, the government may serve a non-disclosure requirement along with an NSL, but it is subject to judicial review.  Under Section 3511, a district court must uphold a non-disclosure requirement, if it determines that “there is reason to believe that disclosure of the information … may result in: (A) a danger to the national security of the United States; (B) interference with a criminal, counterterrorism or counterintelligence investigation; (C) interference with diplomatic relations; or (D) danger to the life or physical safety of any person.”

The Southern District of Court of New York held that the government did not meet its burden of demonstrating a substantial link between the disclosure of the redacted information in NSL served on Merrill and enumerated risk of harm under Section 3511, in part because publicly-available government documents disclosed by other agencies provide substantially similar information and since the closure of the underlying investigation, the government had permitted Merrill to disclose his identity as the recipient, as well as the identity of the investigation’s target.

Accordingly, the court granted Merrill’s motion for summary judgment. It ordered to stay the enforcement of the judgment in lifting the non-disclosure requirement pending an appeal within 90 days from the date of the judgment.

Facts

In 2004, the FBI served Nicholas Merrill, the owner and operator of Calyx Internet Access, with an NSL along with an attachment containing the nature of information that the government was seeking from him. Without specifying the person’s identity under investigation, the attachment asked for revealing the subscriber’s account information, his or her name and address, means of payment, and his or her records of activity. Initially, the NSL at issue had also prohibited Merrill from revealing that he was the recipient of the request, as well as the identity of the person under the investigation.

Later in 2004, Merrill brought an injunctive action, Doe v. Ashcroft, 334 F. Supp. 2d. 471 (S.D.N.Y 2004), against the U.S. government, alleging that Section 2709 of federal law that authorizes non-disclosure requirement of NSLs was unconstitutional under the First Amendment. The Southern District Court of New York agreed and declared the section unconstitutional on its face and that the non-disclosure requirement was unconstitutional under the First Amendment “as an unjustified prior restraint and content-based restriction on speech.” [p. 4] Subsequently, the U.S. Congress amended Section 2709, requiring the government to certify that the disclosure of an NSL may result in an enumerated harm, such as a danger to the national security, interference with a criminal, counterterrorism, or counterintelligence investigation. Congress also enacted Section 3511 that provides judicial review of an NSL request.

In light of those congressional reforms, the Second Circuit Court of Appeals remanded the case for further consideration. The district court again found both Sections 2709 and 5311 facially unconstitutional because the non-disclosure requirement “was not narrowly tailored in scope and duration.” [p. 5] It also held that the judicial provision of Section 5311 violated “the constitutional principles of checks and balances, as well as separation of powers.” [p. 5] On appeal, the Second Circuit affirmed the decision in part and reversed in part. It invalidated a portion of the sections, under which the FBI certification of certain risks was entitled to a conclusive presumption. The court, however, declared that the remaining parts of the sections constitutional as they provide “certain procedural safeguards.” [p. 5]

Then, the district court determined that based on the specific information contained in the NSL issued to Merrill, there was good reason to believe that the disclosure “may result in a harm related to an authorized ongoing investigation to protect against international terrorism or clandestine intelligence activities” and “[the] link between disclosure and the risk of harm was substantial.”

Following the decision, Merrill moved for partial consideration as it applied to the NSL’s attachment. The district court held that two categories of information in the attachment could be disclosed: (1) the material within the scope of information that Sections 2709 and 5311 identify as permissible for the FBI to obtain through the use of NSL, and (2) the material that the FBI had publicly acknowledged.

In 2010, upon closure of the underlying investigation, the government and Merrill reached an agreement, whereby Merrill could identify himself as the 2004 NSL recipient and could also disclose the identity of the person under the investigation.

In December 2014, Merrill brought the instant action against the government, challenging the non-disclosure requirement with respect to the redacted portions of the attachment to the NSL.

Decision Overview

District court Judge Victor Marrero delivered the judgment of the Southern District Court of New York.

The main issue before the court was whether the U.S. government could continue to prohibit Merrill from disclosing the redacted portions of the attachment to the NSL  pursuant to Sections 2907 and 3511 of federal law.

Merrill argued that the NSL’s non-disclosure requirement imposed a “permanent ban” on his First Amendment right to free speech. He also contended that the order could not be justified under Section 3511 because the government failed to establish a “good reason” to be believe that the disclosure of the redacted portions may result in an enumerated harm related to the FBI’s investigation. Merrill reasoned that because the government had already permitted him to disclose his identity as the recipient of the NSL, as well as the identity of the person under the investigation, the FBI could not continue banning him from publicly disclosing the attachment.

The Government, on the other hand, argued that the disclosure of the attachment would reveal law enforcement techniques, expose the types of information the FBI deems important for investigative purposes, and it could also lead to potential targets of investigations changing their behavior to evade detection.

Under section 2709, the government may require non-disclosure of an NSL upon an FBI official certifying that the disclosure can implicate: “(1) a danger to the national security of the United States;(2) interference with a criminal, counterterrorism, or counterintelligence investigation; (3) interference with diplomatic relations; or (4) danger to the life or physical safety of any person.” The section also provides that an NSL or a nondisclosure requirement accompanying an NSL is subject to judicial review under Section 3511. Pursuant to this section, a district court “shall issue a non-disclosure order . . . if the court determines that there is reason to believe that disclosure of the information subject to the non-disclosure requirement during the applicable time period may result in” a harm enumerated under Section 2709.

The court held that the standard for judicial review of a non-disclosure requirement is that government “has the burden to show that a good reason exists to expect that disclosure of receipt of an NSL will risk an enumerated harm.” Specifically, the government must provide evidence showing that “the link between disclosure and risk of harm is substantial.” [p. 17]

As applied to the case in hand, the court concluded that the government did not meet its burden of showing that the disclosure of NSL’s attachment could risk one of the enumerated harms. It reasoned that publicly-available government documents provide substantially similar information as that set forth in the attachment. The court also noted that the underlying investigation had been closed, and pursuant to an agreement with Merrill, the government no longer prohibited disclosure of his identity as the recipient or the identity of investigation’s target. According to the court, “[a] private citizen should be able to disclose information that has already been publicly disclosed by any government agency, at least once the underlying investigation has concluded and there is no reason for the identities of the recipient and target to remain secret.”  [p. 31]

Accordingly, the court granted Merrill’s motion for summary judgment. It ordered to stay the enforcement of the judgment in lifting the non-disclosure requirement pending an appeal within 90 days from the date of the judgment.