On Friday, EFF received the long-awaiting ruling on its 2011 petition to set aside a National Security Letter (NSL) issued to a telecommunications company. The petition challenged the constitutionality of one of five national security letter statutes, 18 U.S.C. § 2709. And what a ruling it was. In a detailed and careful 24-page opinion, Judge Susan Illston of the district court for the Northern District of California methodically addressed the government's attempted justifications for this controversial domestic surveillance tool and found that the statute failed to meet the standards of settled First Amendment law.
First, a moment to underscore the importance of this ruling. Over the past decade, since the PATRIOT Act expanded its reach from foreign agents and spies to anyone whose information may be "relevant" to a national security investigation, the FBI has issued hundreds of thousands of NSLs seeking potentially intimate information about Americans. Supporters of NSLs have frequently attempted to discount privacy concerns and have characterized criticism as "hyperbole," but the reality is very different. As Judge Victor Marrero of the Southern District of New York noted in his 2004 Doe v. Ashcroft NSL decision, the NSL statute grants enormous, unchecked power to pry into the private lives of people within the United States:
The FBI theoretically could issue to a political campaign's computer systems operator a § 2709 NSL compelling production of the names of all persons who have email addresses through the campaign's computer systems. The FBI theoretically could also issue an NSL under § 2709 to discern the identity of someone whose anonymous online web log, or “blog,” is critical of the Government.
Any statutory structure that grants the executive branch such power and couples that power with the ability to hide its behavior from scrutiny is ripe for abuse. And as we know, based on a series of internal investigations ordered by Congress, this abuse has occurred with NSLs.
With Friday's opinion, entitled In Re National Security Letter, not only did the court set aside this particular letter, it barred any NSLs to telecommunications providers, finding that the statute was so inherently flawed that it could not stand. The decision will likely be appealed, and the order has been stayed in order to give the government the time to file an appeal, but the federal district court deserves enormous credit for not shying away from EFF's request and instead tackling most of the difficult issues head on.
With this case, EFF follows in the strong footsteps of our friends at the ACLU. In 2008, on behalf of Nicholas Merrill, the ACLU succeeded in convincing both a district court and the Second Circuit Court of Appeals to acknowledge the serious structural problems with the NSL statute. Unfortunately, despite finding the statute unconstitutional, the Second Circuit in its Doe v. Mukasey opinion approved the continued use of NSLs if the FBI undertook certain voluntary measures aimed at curbing abuse.
The district court here found similar constitutional flaws but took those problems to their rightful conclusion. The court flatly rejected the Second Circuit's attempts to rewrite the statute and rely on voluntary FBI actions to fix it, instead striking it down. While the decision rested primarily on failings with the gag provision, the court ruled that that provision was not severable from the rest of the statute and struck the statute in its entirety. As a result, if the decision is upheld, Congress must step in and repair the structural defects to better protect First Amendment rights if it intends to continue to grant similar power to the FBI.
The court made five critical findings. First, Judge Illston quickly rejected the government's dangerous argument that NSL recipients had no power to review the constitutionality of the statute. The government had suggested that the court could only review specific problems with specific NSLs, meaning that larger structural problems with the statute would remain untouched. As the court correctly noted, however, the statute specifically allows a court to determine whether an NSL is "unreasonable" or "unlawful" which includes determining whether the statute itself is unconstitutional.
Second, the district court found that the statute impermissibly authorizes the FBI to limit speech without constitutionally-mandated procedural protections. The Supreme Court articulated the scope for such protections in 1965 in Freedman vs. Maryland, a case in which it struck down a Maryland licensing scheme that required films to be submitted to a government ratings board prior to public showings. The problem with the statute wasn't necessarily its substantive reach as it was possible that films could be banned without violating the First Amendment -- if, for example, they met the First Amendment definition of "obscene." Instead, the court was concerned that the procedures for challenging a ban stacked the deck against theater owners. As the Freedman Court said at the time:
Because the censor's business is to censor, there inheres the danger that he may well be less responsive than a court -- part of an independent branch of government -- to the constitutionally protected interests in free expression. And if it is made unduly onerous, by reason of delay or otherwise, to seek judicial review, the censor's determination may in practice be final.
Accordingly, where speech is conditioned on first obtaining permission from the government, a statute must be designed to ensure that any person who is gagged gets a quick, fair opportunity to challenge that decision. Specifically, the Freedman Court required that:
- the burden must fall on the government to go to court to obtain approval for any gag
- any pre-review gag must be strictly limited in time, and
- the time in which a reviewing court must make its determination must be set to "short fixed period compatible with sound judicial resolution."
The NSL statute plainly fails the Freedman test: the FBI can gag an NSL recipient on its own and without any judicial review, the statute does not force the government to initiate the review in the event that a recipient objects, and there are no requirements that a challenge be promptly heard or evaluated. Just as in the Freedman case, the district court here noted that the FBI was inclined to gag NSL recipients and the statute improperly stacked the deck against NSL recipients if they chose to challenge the gag.
Third, the court here also found that the statute must meet and failed to meet the exacting "strict scrutiny" standard required of statutes that restrict speech based on their content. Strict scrutiny requires that the government's gag be "narrowly tailored" to meet its needs, but the court held that even if the government's motivations were sound, it prohibited speech too broadly to meet those goals:
The problem … is that the statute does nothing to account for the fact that when no such national security concerns exist, thousands of recipients of NSLs are nonetheless prohibited from speaking out about the mere fact of their receipt of an NSL, rendering the statute impermissibly over broad and not narrowly tailored.
The court also noted that the statute was overly broad in that it authorized gags of indefinite length, regardless of any actual specific need over time.
Fourth, the district court found that the statute was not "severable," meaning that Congress designed the NSL tool as a whole and that the powers it granted to the FBI were not intended to function separately if one of the powers was found to be unconstitutional. Because the nondisclosure provision was found to be unconstitutional on its face, the power to compel the disclosure of customer records must also fall. NSL statistics are consistent with this observation: 97% of all NSLs are delivered with a gag order.
Finally, the district court found that, regardless of other failings, the statute's standard of review violated separation of powers principles by forcing the courts to defer to the FBI's determinations and preventing independent review. It noted that a "[c]ourt can only sustain nondisclosure based on a searching standard of review." While courts do largely defer to the executive branch's judgment in national security matters, the standard in this statute required the court to consider the government's decision "conclusive" and only allowing the court to consider whether it was made in "bad faith." The court rightly noted that real judicial review requires more.
The court did not adopt all of EFF's arguments. Under the Supreme Court's plurality holding in New York Times v. United States -- the famous "Pentagon Papers" case -- prior restraints in the national security context may only be justified if the disclosure of certain information "will surely result indirect, immediate, and irreparable harm to our Nation or its people," demonstrated by a showing of specific evidence to a court. EFF noted that the NSL statute permits the imposition of gags if the FBI certifies on its own that disclosure "may" result in some unspecified "harm" to a law enforcement investigation, a standard far below that of the Pentagon Papers case. Concluding that the prior restraint imposed by the NSL statute did not amount to a "classic" prior restraint, however, Judge Illston held that such standards would be "extraordinarily rigorous" and "too exacting."
The district court also did not address EFF's argument that the statute granted too much unbounded discretion to the FBI. Even if discretion is properly vested in a government agency to make certain evaluations, that evaluation must be constrained by "narrow, objective, and definite standards" so that the court can evaluate whether an agency like the FBI exceeds its authority. Once again, the NSL statute authorizes the FBI to gag NSL recipients whenever, in its view, a disclosure “may” result in a harm to national security or interfere with a criminal investigation. This language is subjective and sweeping, giving a court no practical ability to evaluate whether the FBI is properly exercising -- or exceeding -- its authority. As the court struck down the nondisclosure provision on other grounds, it did not reach this separate ground.
Finally, Judge Illston also declined to address another critical flaw argued by EFF: that the ability to obtain without court supervision the subscriber records of telecommunications customers -- such as an unidentified Internet poster's identity or a known individual's "calling circle" -- potentially violated the First Amendment rights to anonymous speech and association of subscribers. Without court approval ahead of time, victims of FBI overreach could never be made whole since the privacy rights at stake could never be reconstructed. However, Judge Illston struck down the records provision on severability grounds because of the fatal wound imposed by the unconstitutional gag provision instead of addressing the matter directly.
The In Re National Security Letter order is a major victory, first for EFF's anonymous client who we congratulate for its courage, sense of civic responsibility, and determination to stand up for the privacy rights of its customers. While many people have identified the unfairness and injustice of the NSL statute, exceedingly few demonstrated the courage to stand up and take on the power of the national security apparatus of the United States government. Indeed, as we have previously reported, the government shockingly responded to EFF's challenge by suing our client, claiming that by "stat[ing] its objection to compliance with the provisions of" the NSL by "exercis[ing] its rights under" the NSL statute to challenge the NSL's legality, EFF's client was "interfer[ing] with the United States' vindication of its sovereign interests in law enforcement, counterintelligence, and protecting national security."
Of course while this decision is a major victory, it is likely also a preliminary one. Because of the stay of the ruling, our client still cannot identify itself and participate more fully in the public debate about NSLs. EFF is gearing up for the likely appeal to the Ninth Circuit Court of Appeals and, possibly, to the Supreme Court. But that shouldn't stop us from taking a moment to celebrate and to remember that over-reaching national security powers can be challenged and challenged successfully.