United States: Court Strikes Down National Security Letter Statute

Telephone companies and internet service providers may have a means to resist unreasonable demands for subscriber information under so-called National Security Letters ("NSLs"). A federal district court has held that the statute authorizing the FBI to request that such providers produce information concerning their customers violates the providers’ First and Fourth Amendment rights. Doe v. Ashcroft, 2004 U.S. Dist. LEXIS 19343 (S.D.N.Y. Sep. 28, 2004). The court concluded that the absence of judicial review violates the Fourth Amendment right to be free from unreasonable searches and seizures, and the statutory prohibition against disclosing the FBI request to "any person" violates the First Amendment right to freedom of speech. The district court stayed its decision pending the government’s appeal to the Second Circuit.

Section 2709 of Title 18, United States Code, requires wire or electronic service providers to comply with requests from the FBI for "subscriber information," "toll billing records information," and "electronic communication transactional records."¹ As amended by the USA PATRIOT Act,² § 2709 authorizes the FBI to issue such NSLs based on a certification that the requested documents and information are "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities" and that "such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the constitution of the United States."³ The statute does not provide for judicial review of the NSL either before or after issuance. Nor does it include a mechanism for judicial enforcement if the recipient declines to comply with the request.

Section 2709(c) imposes a gag on the recipient of the NSL. The statute declares that "[n]o wire or electronic communication service provider, or officer, employee, or agent thereof, shall disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records under this section."⁴

At least two critical terms in § 2709 remain unclear. First, although the phrase "wire or electronic communication service provider" unquestionably applies to telephone companies and internet service providers, it is unclear whether the phrase also includes entities such as schools and libraries that make internet access available to the public.⁵ Second, the phrase "electronic communication transactional records" in § 2709(a) can be read broadly to include, for example, email header information with subject lines, or narrowly to include only the dates and addresses of email correspondence.⁶

Most details concerning the FBI’s use of § 2709 remain secret. In response to a Freedom of Information Act request, however, the agency revealed that it demanded records under the statute hundreds of times between October 2001 and January 2003.⁷ Apart from the anonymous plaintiff in Doe, no NSL recipient appears to have challenged the FBI’s request in court.⁸

The American Civil Liberties Union and an anonymous internet access firm that had received an NSL sued in the United States District Court for the Southern District of New York to enjoin issuance of NSLs under § 2709 and to enjoin enforcement of the nondisclosure provision in § 2709(c). On September 28, 2004, the district court (Victor Marrero, J.) granted plaintiffs’ motion for summary judgment, issued the requested injunction, and stayed its order pending the government’s appeal to the Second Circuit.

The court first addressed the competing interests at stake: national security, personal liberty, and efficiency.⁹ It then summarized the development of § 2709, from its enactment in 1986 as part of the Electronic Communications Privacy Act through its amendment—and broadening—by the USA PATRIOT Act in 2001.¹⁰ The court compared the NSL process to other means by which the government can obtain documents and other information, including administrative and grand jury subpoenas, search warrants, Title III wiretaps, pen registers and trap and trace devices, and Foreign Intelligence Surveillance Act surveillance and searches. It noted that these alternative means generally provide procedural protections absent from § 2709, including judicial review and the opportunity for the recipient to disclose the request for (or seizure of) records to others, including counsel.¹¹

The court concluded that § 2709, as drafted, violates the Fourth Amendment rights of NSL recipients because it authorizes the seizure of documents and information without judicial review.¹² The government sought to read into the statute a mechanism by which an NSL recipient could move a court to quash the government’s demand. Although the Doe court expressed doubt that it could read such a judicial review provision into the statute, it did not resolve that issue.¹³ Instead, the court held that the government’s implementation of the statute—through a form NSL to the service provider demanding production of records and information and admonishing the provider not to mention the request to anyone—effectively discourages NSL recipients from contacting counsel or challenging the government’s request in court and thus violates the Fourth Amendment.¹⁴ The court declared that "§ 2709, as applied here, must be invalidated because in all but the exceptional case it has the effect of authorizing coercive searches effectively immune from any judicial process, in violation of the Fourth Amendment."¹⁵

The court turned next to plaintiffs’ contention that NSLs violate the First Amendment rights of internet service subscribers to engage in anonymous speech and to associate freely.¹⁶ It declined to identify the scope of these First Amendment rights, but "h[eld] only that such fundamental rights are certainly implicated in some cases in which the Government may employ § 2709 broadly to gather information, thus requiring that the process incorporate the safeguards of some judicial review to ensure that if an infringement of those rights is asserted, they are adequately protected through fair process in an independent neutral tribunal."¹⁷

The court finally addressed plaintiffs’ claim that the nondisclosure provision—§ 2709(c)—constitutes a prior restraint that violates the First Amendment free speech rights of NSL recipients. Applying strict scrutiny, the court acknowledged that the government’s interest in "protecting the integrity and efficacy of international terrorism and counterintelligence investigations is a compelling one," but it found that the statute is not sufficiently "narrowly tailored" to satisfy First Amendment standards.¹⁸ The court concluded that "there are undoubtedly circumstances in which the need for secrecy either has expired or simply no longer exists with the same compelling force that once warranted its imposition. Section 2709(c) provides no mechanism to account for, or exclude, any unjustifiable denial of speech in these cases. Nor has the Government persuasively shown that it cannot provide such safeguards by less burdensome means."¹⁹ Having found the nondisclosure provision in § 2709(c) facially unconstitutional, the court invalidated §§ 2709(a) and (b) as well on the ground that those provisions cannot be severed from § 2709(c).²⁰ "Considering the implications of its ruling and the importance of the issues involved," the court stayed its judgment pending appeal.²¹

If the court of appeals upholds Doe, the case will have significant implications for wire or electronic communication service providers and other recipients of NSLs.

First, within the Second Circuit, the decision will prohibit the government from demanding documents and other information under § 2709 and will force it to resort to other mechanisms, such as grand jury subpoenas and search warrants, which contemplate opportunities for judicial review.²² Second, outside the Second Circuit, an appellate decision striking down § 2709 may embolden other NSL recipients to engage counsel and seek judicial review of the FBI request, particularly where the request appears to conflict with a statutory or contractual duty of confidentiality that the provider owes to its subscribers. Third, such a decision will cast doubt on other NSL statutes that, like § 2709, provide no opportunity for judicial review and prohibit the recipient from disclosing to anyone the existence of the NSL.²³ Fourth, the decision may lead Congress to amend the NSL statutes to permit judicial review and enforcement.²⁴

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