Appeals Court Upholds NSL Non-Disclosure Requirements

Published On August 1, 2017 | By Kelsey Harclerode | General, Privacy

A three-judge panel of the Ninth Circuit unanimously upheld the facial constitutionality of 18 U.S.C § 2709(c), the statute authorizing the FBI to prevent a recipient of a National Security Letter (NSL) from disclosing the fact that it had received such a demand. Issued without mandatory judicial oversight or a court order, an NSL allows the government, in certain terrorism-related investigations, to compel companies to turn over certain data about their customers while preventing the companies from notifying their customers – including the target(s) of the NSL – about these demands. This opinion affirms the lower court ruling that the non-disclosure requirements do not violate the First Amendment.

While the Ninth Circuit accepted that the NSL non-disclosure requirement constitutes a content-based prior restraint subject to strict constitutional scrutiny, the court ultimately determined that the statute (1) is narrowly tailored to a compelling state interest and (2) provides enough procedural safeguards to pass constitutional muster. Writing for the panel, Judge Ikuta acknowledged the significant underlying national security interests associated with the non-disclosure of the NSLs, and determined that the statute, as amended in 2015, was narrowly tailored to meet those interests.

Two of the most notable 2015 NSL amendments include:

  • The requirement for the Attorney General to develop procedures for periodic review and termination of the non-disclosure requirements; and
  • The option for providers to report aggregate data about the number of NSLs received (ex: 0 to 499).

The panel took great pains to explain that “perfect tailoring” was not required by the law and that it would not engage in a “granular” review of the mechanisms by which the law meets its interests. According to the panel, the 2015 reforms and the underlying law “as a whole impose[] narrow, objective, and definite standards on the government before it can issue a non-disclosure requirement.” These requirements are then bolstered by the Department’s duty to periodically review and terminate non-disclosure requirements when no longer needed, and an NSL recipient’s ability to seek judicial review and disclose its status as a recipient within the appropriate reporting band.

The fight in this area is likely far from over. All parties involved are currently contemplating options for next steps. Potential paths forward include requesting an en banc appeal to include all judges on the Ninth Circuit or filing a petition for writ of certiorari in the U.S. Supreme Court. Moreover, additional NSL challenges are still ongoing – including Twitter’s fight to disclose the specific number of NSLs they have received. Notably, in the Twitter case, the Northern District Court of California’s denial of the government’s motion for summary judgement included an analysis that the reporting bands “are not narrowly tailored to prohibit only speech that would pose a clear and present danger or imminent harm to national security.” However, whether the 9th Circuit will uphold this analysis – if and when directly presented it on appeal – is open to question given the dicta in its current opinion approving of the band reporting. As the legal landscape surrounding NSLs continues to develop, we would be pleased to discuss the options available for providers receiving NSLs in more detail with our clients.

 

About The Author

Prior to joining ZwillGen, Kelsey interned at the Electronic Frontier Foundation (EFF) where she worked with attorneys on emerging digital liberties issues related to privacy and speech. At EFF, she focused on the constitutionality of the USA FREEDOM Act and the role of the First Amendment in the regulation of social media content and non-consensual intimate media sharing. During the fall of 2015, she worked as a Certified Legal Intern in Florida’s Eighth Judicial Circuit and served as co-counsel on two criminal cases.

Comments