Second Circuit Partially Invalidates National Security Letters Section of the Patriot Act on First Amendment Grounds

Author: José Mauro Decoussau Machado

Citing the First Amendment, the Second Circuit invalidated provisions of the Patriot Act that permit the FBI to impose a nondisclosure requirement on National Security Letters without having to seek judicial review. The court also declared unconstitutional provisions that consider as conclusive a governmental official’s certification that disclosure may endanger the national security of the United States or interfere with diplomatic relations.

An Internet service provider (John Doe, Inc.), the provider’s former president (John Doe), the American Civil Liberties Union, and the American Civil Liberties Union Foundation filed suit in the Southern District of New York challenging the constitutionality of the law that regulates National Security Letters (“NSLs”) issued by the Federal Bureau of Investigation (“FBI”) to electronic communication service providers. NSLs are requests sent by the FBI to telephone and Internet companies in order to obtain information (such as telephone and Web activity) about specified persons or entities.

The statute: (1) prohibits the recipient from disclosing the information that an NSL has been received (18 U.S.C. § 2709(c)); (2) prevents the recipients of NSL’s from requesting judicial review of the nondisclosure requirement; and (3) considers that the certification of senior FBI agent as to the risks involved is sufficient to justify nondisclosure (see id. § 3511(b)).

In a decision handed down on September 28, 2004, the district court held that as NSLs required a "compulsory, secret, and unreviewable production of information," they constitute a clear violation of the Fourth Amendment. The lower court held further that the First Amendment was violated insofar as recipients of the NSLs could not request judicial review of the proceedings or even contact legal counsel.

On appeal, the Second Circuit agreed that NSLs violate the First Amendment. Specifically, the Second Circuit held that: (1) the nondisclosure requirement can be permitted only when senior FBI officials certify that disclosure may result in an enumerated harm that is related to “an authorized investigation to protect against international terrorism or clandestine intelligence activities,” (subsection 2709(c)); (2) the Government has the burden of showing that a good reason exists to expect that disclosure of receipt of an NSL will risk an enumerated harm (subsections 3511(b)(2) and (b)(3)); (3) the Government fulfills the burden when it makes an adequate demonstration as to why disclosure in a particular case may result in an enumerated harm (subsections 3511(b)(2) and (b)(3)); (4) subsections 2709(c) and 3511(b) are unconstitutional as they impose a nondisclosure requirement without placing on the Government the burden of initiating judicial review of that requirement; and (5) subsections 3511(b)(2) and (b)(3) are also unconstitutional to the extent that, upon such review, is treated as conclusive a governmental official’s certification that disclosure may endanger the national security of the United States or interfere with diplomatic relations.

The court declined as beyond its authority to rescue the constitutionality of the NSL statute by “interpreting” into it certain disclosure and review provisions. Regarding this point, the court noted that the Government is able to assume such an obligation without additional legislation and that the Government’s concern about the potentially substantial burden of initiating litigation can be alleviated by use of a prior notice proceeding. The party who received an NSL could then inform the Government of its intent to challenge the grounds of the letter, which would place the burden to seek judicial review on the Government.

John Doe Inc., et al. v. Mukasey, et al.

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