National Security Letters Struck Down in California District Court:

 
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By: Bonnie Sowell, Junior Editor

 

            Benjamin Franklin once said, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”[1]On March 14th, a California District Court Judge in San Francisco found unconstitutional a federal statute that would do exactly that.[2]

            The statute in questiongives the Federal Bureau of Investigation the power to issue National Security Letters (NSLs) to banks and telecommunications companies, including Internet providers,[3] requesting information about clients suspected ofterrorism or other clandestine intelligence activities. Compliance with these requests is mandatory. [4]Although the use of NSLs can be traced back to the 1980’s, they were strengthened under the passage of the Patriot Act in 2001.[5]The District Court took issue with two provisions of the NSL statute, the nondisclosure requirements applied to NSL recipients and the restricted judicial review process.

            Under the statute,if the FBI Director certifies disclosure of the issuance of a request by the telecommunications company will cause “interference with a criminal, counterterrorism, or counterintelligence investigation, interference with diplomatic relations, or danger to the life or physical safety of any person,”[6]the company who received the NSL is prohibited from disclosing the contents of the NSL or the fact that one was received to anyone other than an attorney or someone who must be told in order to comply with the request.[7]

            The NSLs and the nondisclosure provisions of the statute are also subject to a very restricted judicial review and set-aside process.[8]  This is difficult to do, though because NSLs may only be modified or set aside “if compliance would be unreasonable, oppressive, or unlawful.”[9] Further, if certification that disclosure will jeopardize national security is made by the Attorney General, Deputy or Assistant Attorney Generals, the Director of the FBI, or other agency heads, it is treated as conclusive unless made in bad faith,[10] and the nondisclosure order will not be set aside.An order denying set aside precludes the petitioner from re-filing for another modification or set aside for one year.[11]  The FBI’s ability to prevent disclosure under its certification power gives the FBI and its director seemingly unlimited discretion to employ prior restraint[12] to prohibit content-based speech about NSLs[13].

            District Court Judge Susan Illston held that while the nondisclosure provisions coupled with the restricted judicial review were neither classic prior restraint nor a typical content-based speech restriction, the statute does give the executive branch unilateral authority to determine whether NSL recipients can speaks about NSLs.[14]  She also stated that use of this power to restrict speech may curtail public debate on the subject by preventing NSL recipients from disclosing their experiences with the FBI, and that for these reasons, the heightened justification standards of prior restraint cases[15] and the heightened scrutiny of content-based speech cases should be applied.[16]  Because the statute did not mandate the procedural safeguards required under the prior restraint cases,[17] and because the statute was overbroad in its nondisclosure provisions,[18] the court held it unconstitutional on its face. The court also held the restricted judicial review provisions constitutionally invalid for separation of powers infirmities.[19]Because these provisions are so integral to the whole statute, the court found that they were not severable and so struck down the entire statute.[20]

            The nondisclosure provision struck down in this case is particularly troublesome to many civil liberties advocates like Cindy Cohn, the Legal Director of the Electronic Frontier Foundation who brought the suit.  She said, “The First Amendment prevents the government from silencing people and stopping them from criticizing its use of executive surveillance power.”[21]Because of this, this case, while not binding on other federal courts, is likely to be the first of many.  The District Court stated that the FBI issues tens of thousands of NSLs a year and that nondisclosure orders are issued in 97% of these cases.[22]  However, only a handful of constitutional challenges have been brought against the NSL provisions.[23]  Hopefully, the success that the EFF achieved on Friday will give hope to recipients of NSLs and free speech advocates to bring challenges to the constitutionality of this overbroad statute, eventually causing the Supreme Court to take notice.


[1]The Papers of Benjamin Franklin 242 (Leonard W. Labaree ed., 1963).

[2] A PDF of the court’s order is available on the Electronic Frontier Foundation’s website at https://www.eff.org/document/nsl-ruling-march-14-2013

[3] Charlie Savage, California: Judge Strikes Down Law on National Security Letters (March 15, 2013), available at http://www.nytimes.com/2013/03/16/us/california-judge-strikes-down-law-on-national-security-letters.html?_r=0

[4]18 U.S.C. 2709(a) (2006).

[5] Jennifer Valentino-Devries, Judge Strikes Down Secretive Surveillance Law (March 15, 2013), available at http://online.wsj.com/article/SB10001424127887324532004578362710014676902.html?mod=WSJ_hpp_LEFTTopStories.

[6]18 U.S.C. § 2709 (2006).

[7] 18 U.S.C. § 2709 (c)(1) (2006).

[8]18 U.S.C. § 3511 (2006).

[9]18 U.S.C. § 3511 (a) (2006).

[10] 18 U.S.C. § 3511 (b)(2) (2006).

[11] 18 U.S.C. § 3511 (b)(3) (2006).

[12] As WalterSobchak loudly pointed out, “The Supreme Court has roundly rejected prior restraint!”The Big Lebowski (Working Title Films 1998).See also South Eastern Promotions Ltd. v. Conrad, 420 U.S. 546, 558 (1975) (explaining that prior restraint is not unconstitutional per se, but rather comes to the Courtbearing a heavy presumption against its constitutional validity).

[13] Content-based speech restrictions are traditionally subjected to rigorous strict scrutiny and come to the Court with a presumption of invalidity. R.A.V. v. St. Paul, 505 U.S. 377, 382 (1992).

[14]Supra, note 2, at 9.

[15] In Freedman v. Maryland, 380 U.S. 51 (1965), the Court held that prior restraint cases are only saved by the use of three procedural safeguards: restraint prior to judicial review may be imposed only for a specified brief period of time during which the status quo must be maintained, expeditious judicial review of that decision must be available, and the censor must bear the burden of going to court to suppress the speech and must bear the burden of proof once in court.See also Thomas v. Chicago Park District, 534 U.S. 316 (2002).

[16]Supra, note 2, at 9-10.

[17]Id. at 15.

[18] The court found that the nondisclosure provisions were not narrowly tailored because it made no distinction between disclosure of the contents of the NSLs and the mere fact that one had been received. The court found that the government had not shown that it was necessary to prohibit disclosure of the latter for national security reasons. Id.

[19]Id. at 24.

[20]Id. at 23.

[21]National Security Letters are Unconstitutional Federal Judge Rules (March 15, 2013), available at https://www.eff.org/press/releases/national-security-letters-are-unconstitutional-federal-judge-rules

[22]Supra, note 2, at 13.

[23]Id.

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