NSLs Declared Unconstitutional, Decision Stayed for 90 Days: Déjà Vu All Over Again
In a lengthy and bold decision handed down on March 14, 2013, Judge Illston of the United States District Court for the Northern District of California ruled that 18 U.S.C. § 2709, the statute authorizing the FBI to serve secret National Security Letters (NSLs) to demand certain subscriber information from wire and electronic service providers, is unconstitutional. As a result, she ordered the government to stop using NSLs. But, following the path of Judge Marrero from the Southern District of New York who issued a similar decision in 2007, the Court stayed its order for 90 days to allow the government time to decide whether to appeal and seek a stay from the Ninth Circuit.
As before, the Court based its decision on the nondisclosure provision of the statute, which prevents ISPs from even acknowledging they have received an NSL, much less disclosing its contents. The court determined that the structure of the gag order provisions constituted an impermissible permanent prior restraint on speech and that the nondisclosure provision was not severable from the rest of the statute. The Court identified four main constitutional deficiencies in the NSL statute: (A) the lack of specific duration on the non-disclosure provisions; (B) the failure of the statute to mandate that the government obtain judicial review of the need for secrecy; (C) the lack of a specific burden of proof for the review process and, (D) the narrowly circumscribed judicial review process when judicial review is sought. These are some of the same issues that caused Judge Marrero to strike down the statute in 2007. The Second Circuit, however, reversed that decision in part, finding that NSLs were constitutional if the government committed to instituting certain procedural and substantive safeguards when serving and using NSLs. Specifically, the Second Circuit held that the government could overcome the statute’s procedural defects by informing recipients of their right to challenge the gag order and initiating a judicial review proceeding when a provider objects to a gag order.
Judge Illston, however, did not accept that the government’s voluntary procedures could rescue the otherwise deficient NSL statute and she was unwilling to “conform” the NSL provisions to constitutional standards to save it. Rather, she found that the multiple constitutional problems with the nondisclosure provisions of the NSL statute required that it be struck down in its entirety. More specifically, she found that the non-disclosure provisions violated the First Amendment, and the restrictions on judicial review violated separation of powers principles. Rather than taking the Second Circuit’s route, she refused to “ignore express language in the statute in order to come up with ‘reasonable interpretations’ that would be constitutional.”
What is a provider who receives an NSL (especially one coming from the Northern District of California) to do now? A provider has several options. First, do nothing. This decision has been stayed for 90 days, and the Second Circuit decision upholding the use of NSLs remains the only appellate decision on this issue. Second, stop accepting NSLs from the Northern District of California. Although this might result in a challenge, such a challenge might be stayed pending the government decision whether to appeal Judge Illston’s decision, and possible expedited review at the Ninth Circuit. Third, stop accepting NSLs altogether, to promote national consistency. This option would likely lead to further enforcement proceedings, however, in other circuits. Fourth, officially object to the nondisclosure provisions of the NSL, and allow the government to take the next step. All of these options have some merit and some drawbacks. We would be pleased to discuss these issues in more detail with our clients.
 Yogi Berra, What Time Is It? You Mean Now?: Advice for Life from the Zennest Master of Them All at 137 (Simon & Schuster 2003)
 Doe v. Gonzales, 500 F. Supp. 2d 379, 425 (S.D.N.Y. 2007) aff’d in part, rev’d in part and remanded sub nom. John Doe, Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008)