Plaintiffs in this case challenge the constitutionality of 18 U.S.C. § 2709 ("§ 2709"). That statute authorizes the Federal Bureau of Investigation ("FBI") to compel Communications firms, such as internet service providers ("ISPs") or telephone companies, to produce certain customer records whenever the FBI certifies that those records are "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities." The FBI's demands under § 2709 are issued in the form of national security letters ("NSLs"), which constitute a unique form of administrative subpoena cloaked in secrecy and pertaining to national security issues. The statute bars all NSL recipients from ever disclosing that the FBI has issued an NSL.
The lead plaintiff, called "John Doe"
("Doe") for purposes of this litigation, is described in the
complaint as an internet access firm that received an NSL. The other plaintiffs
are the American Civil Liberties Union ("ACLU") and the American
Civil Liberties Union Foundation, which is also acting as counsel to Doe
(collectively with Doe, "Plaintiffs"). Plaintiffs contend that § 2709's broad subpoena power violates the First, Fourth and
Fifth Amendments of the United States Constitution, and that the non-disclosure
provision violates the First Amendment. They argue that § 2709 is unconstitutional on its face and as applied to the
facts of this case. Plaintiffs' main complaints are that, first, § 2709 gives the FBI extraordinary and unchecked power to
obtain private information without any form of judicial process, and, second,
that § 2709's non-disclosure provision burdens speech categorically
and perpetually, without any case-by-case judicial consideration of whether
that speech burden is justified. The parties have cross-moved for summary
judgment on all claims. …
A. DOE'S RECEIPT OF AN NSL
After receiving a call from an FBI agent informing him that
he would be served with an NSL, Doe received a document, printed on FBI
letterhead, which stated that, "pursuant to Title 18, United States Code (U.S.C.), Section 2709"
Doe was "directed" to provide certain information to the Government. As
required by the terms of § 2709, in the NSL the FBI "certified that the
information sought [was] relevant to an authorized investigation to protect
against international terrorism or clandestine intelligence
activities." Doe was "further advised" that § 2709(c) prohibited him, or his officers, agents, or
employees, "from disclosing to any person that the FBI has sought or
obtained access to information or records under these provisions." Doe was
"requested to provide records responsive to [the] request
personally" to a designated individual, and to not transmit the records by
mail or even mention the NSL in any telephone conversation.
After a subsequent conversation with the same FBI agent, Doe decided to consult ACLU lawyers…. Doe has not complied with the NSL request, and has instead engaged counsel to bring the present lawsuit.
B. § 2709 IN GENERAL
…§ 2709 authorizes the FBI to issue NSLs to compel communications firms to produce certain customer records whenever the FBI certifies, that those records are relevant to an authorized international terrorism or counterintelligence investigation, and the statute also categorically bars NSL recipients from disclosing the inquiry. In relevant part, it states:
(a) Duty to provide. -- A wire or
electronic communication service provider shall comply with a request for
subscriber information and toll billing records information, or electronic
communication transactional records in its custody or possession made by the
Director of the Federal Bureau of Investigation under subsection (b) of this
(b) Required certification. -- The Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director, may --
(1) request the name, address, length of service, and local and long distance toll billing records of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service provider to which the request is made that the name, address, length of service, and toll billing records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States; and
(2) request the name, address, and length of service of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service provider to which the request is made that the information sought is relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution of the United States.
(c) Prohibition of certain disclosure. -- No wire or electronic communication service provider, or officer, employee, or agent thereof, shall disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records under this section.
Subsection (d) limits the FBI's ability to disseminate information collected from an NSL, and subsection (e) requires the FBI to periodically report to Congress about its use of NSLs.
Section 2709 is one of only a handful of statutes authorizing the Government to issue NSLs. … In each case, the NSL statutes categorically bar the NSL recipient or its employees or agents from ever disclosing the Government's inquiry. As stated, NSLs are distinguished from other administrative subpoenas in that NSLs pertain to national security issues and are cloaked in secrecy. …
C. LEGISLATIVE HISTORY
Section 2709 was enacted as part of Title II of the Electronic Communications Privacy Act of 1986 ("ECPA"), which sought to "protect privacy interests" in "stored wire and electronic communications" while also "protecting the Government's legitimate law enforcement needs." …
Generally speaking, Title II (as amended) allows the Government to obtain stored electronic communications information without the subscriber's permission only through compulsory process, such as a subpoena, warrant, or court order. Section 2709 is a notable exception to these privacy protections because it permits the FBI to request records upon a mere self-certification -- issued to the ISP or telephone company, not to the subscriber or to any court, -- that its request complies with the statutory requirements. As first enacted, § 2709 required electronic communication service providers to produce "subscriber information," "toll billing records information," or "electronic communication transactional records," upon the FBI's internal certification that (1) the information was "relevant to an authorized foreign counterintelligence investigation" and that (2) there were "specific and articulable facts giving reason to believe that the person or entity to whom the information sought pertains [was] a foreign power or an agent of a foreign power."…
The… most recent major revision to § 2709 occurred in October 2001, as part of the USA PATRIOT Act of 2001 ("Patriot Act"). In short, the Patriot Act removed the previous requirement that § 2709 inquiries have a nexus to a foreign power, replacing that prerequisite with a broad standard of relevance to investigations of terrorism or clandestine intelligence activities. In hearings before the House Judiciary Committee on
NSL authority requires both a showing of relevance and a showing of links to an "agent of a foreign power.." In this respect, [it is] substantially more demanding than the analogous criminal authorities, which require only a certification of relevance. Because the NSLs require documentation of the facts supporting the "agent of a foreign power" predicate and because they require the signature of a high-ranking official at FBI headquarters, they often take months to be issued. This is in stark contrast to criminal subpoenas, which can be used to obtain the same information, and are issued rapidly at the local level. In many cases, counterintelligence and counterterrorism investigations suffer substantial delays while waiting for NSLs to be prepared, returned from headquarters, and served. The section would streamline the process of obtaining NSL authority . . . .
The House Judiciary Committee agreed that "such delays are unacceptable" and stated in its October 11, 2001, report that the Patriot Act would "harmonize" § 2709 "with existing criminal law where an Assistant United States Attorney may issue a grand jury subpoena for all such records in a criminal case."
D. NSLs AND OTHER INFORMATION-GATHERING
It is instructive to place the Government's NSL authority in the context of other means by which the Government gathers information of the type covered by § 2709 because Congress (in passing and amending the NSL statutes) and the parties here (in contesting § 2709's constitutionality) have, drawn analogies to those other authorities as grounds for or against its validity. The relationship of § 2709 to other related statutes supplies a backdrop for assessing congressional intent and judging the validity of the law on its face and as applied. In addition, an analysis of these analogous information-gathering methods indicates that NSLs such as the ones authorized by § 2709 provide fewer procedural protections to the recipient than any other information-gathering technique the Government employs to procure information similar to that which it obtains pursuant to § 2709.
A. SECTION 2709, AS DRAFTED, RAISES SERIOUS CONSTITUTIONAL QUESTIONS
…The NSL statutes, particularly § 2709, present interpretive challenges in at least three respects, the first two of which have a direct bearing on the motions now before the Court. First, while two of the NSL statutes explicitly state that an NSL recipient may disclose the Government's inquiry to persons whose assistance is necessary to comply with the demands of the NSL, the other statutes, including § 2709, appear by their telltale silence on that point, to preclude any disclosures. None of the statutes explain whether consulting an attorney constitutes disclosure, even where an attorney's assistance may be necessary for a recipient to comply with an NSL, and none of the statutes states whether the ban on disclosure may ever be lifted by a court. Second, the statutes contain no explicit provision for the Government to seek judicial enforcement of an NSL against a recipient who refuses to comply, nor is there any provision expressly authorizing an NSL recipient to affirmatively challenge, administratively or judicially, the propriety of an NSL request. Third, there is no explicit provision in the statutes imposing penalties against a person who fails to comply with an NSL.
…Several bills pending in Congress, including H.R. 3179, demonstrate Congress's and the Government's recognition that the NSL statutes could have been drafted with greater particularity and uniformity. H.R. 3279 would address two of the issues listed above by explicitly providing for judicial enforcement of NSLs and by imposing criminal penalties of up to five years' imprisonment for persons who unlawfully disclose that they have received an NSL. …
As explained below, even if the Court were to agree with the Government that § 2709 should be read to allow: (1) an NSL recipient to consult with an attorney and others necessary to enable compliance with the letter; and (2) an NSL recipient to challenge, or the Government to enforce, an NSL in court, the Court would still hold that the statute; as currently applied by the FBI, exerts an undue coercive effect on NSL recipients. The form language of the NSL served upon Doe, preceded by an FBI phone call, directed him to personally provide the information to the FBI, prohibited him, his officers, agents or employees, from disclosing the existence of the NSL to anyone, and made no mention of the availability of judicial review to quash or otherwise modify the NSL or the secrecy mandated by the letter. Nor did the FBI inform Doe personally that any such judicial review of the issuance of the NSL or the secrecy attaching to it was available. The Court concludes that, when combined, these provisions and practices essentially force the reasonable NSL recipient to immediately comply with the request. This lack of effective process, at least as applied, entails issues far too fundamental for the Court to read as having been sufficiently addressed in the operation of § 2709 in this case. In the court's judgment, as further elaborated below, that absence renders § 2709, as applied, unconstitutional, in violation of the Fourth Amendment.
B. AS APPLIED HERE, SECTION 2709 LACKS PROCEDURAL
PROTECTIONS NECESSARY TO VINDICATE CONSTITUTIONAL RIGHTS
1. Section 2709 And The Fourth Amendment
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To be clear, the Fourth Amendment rights at issue here belong to the person or entity receiving the NSL, not to the person or entity to whom the subpoenaed records pertain. Individuals possess a limited Fourth Amendment interest in records which they voluntarily convey to a third party. See Smith, 442 U.S. at 742-46; Miller, 425 U.S. at 440-43. Nevertheless, as discussed below, many potential NSL recipients may have particular interests in resisting an NSL, e.g., because they have contractually obligated themselves to protect the anonymity of their subscribers or because their own rights are uniquely implicated by what they regard as an intrusive and secretive NSL regime. For example, since the definition of "wire or electronic communication service provider," 18 § 2709(a), is so vague, the statute could (and may currently) be used to seek subscriber lists or other information from an association that also provides electronic communication services (e.g., email addresses) to its members, or to seek records from libraries that many, including the amici appearing in this proceeding, fear will chill speech and use of these invaluable public institutions. Fear that § 2709 may be used as a tool to gain sensitive information from libraries, has led both houses of Congress to introduce bills intended to exclude libraries from the ambit of § 2709. See S. 1709, Security and Freedom Assured ("SAFE") Act of 2003, 108th Cong. § 5 (2003) (proposing to amend § 2709(a) to state that a "library shall not be treated as a wire or electronic communication service provider for purposes of this section"); H.R. 3352, 108th Cong. § 5 (2003) (same).
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The Fourth Amendment prohibits the Government from conducting "unreasonable searches and seizures," which generally means that any search or seizure must be performed pursuant to a valid warrant based upon probable cause. As the Second Circuit has declared: "It is fundamental that governmental searches and seizures without warrant or probable cause are per se unreasonable under the Fourth Amendment unless they fall within one of the Amendment's few established and well-delineated exceptions." The Fourth Amendment's protection against unreasonable searches applies to administrative subpoenas, even though issuing a subpoena does not involve a literal physical intrusion or search. In so doing, the Supreme Court explained that the Fourth Amendment is not "confined literally to searches and seizures as such, but extends as well to the orderly taking under compulsion of process."
…Plaintiffs contend that § 2709 violates this Fourth Amendment process-based guarantee because it gives the FBI alone the power to issue as well as enforce its own NSLs, instead of contemplating some form of judicial review. Although Plaintiffs appear to concede that the statute does not authorize the FBI to literally enforce the terms of an NSL by, for example, unilaterally seizing documents or imposing fines, Plaintiffs contend that § 2709 has the practical effect of coercing compliance.
Specifically, Plaintiffs stress that the statute has no provision for judicial enforcement or review, and that theoretically any judicial review an NSL recipient sought would violate the express terms of the non-disclosure provision. For example, if an NSL recipient thought that an NSL request was unreasonable or otherwise unlawful - because, for instance, the underlying investigation was not duly "authorized," was initiated "solely on the basis of activities protected by the first amendment to the Constitution of the United States," or did not involve "international terrorism or clandestine intelligence activities," as § 2709 demands - he would have no specific statute under which to challenge the request. More fundamentally, the literal terms of the non-disclosure provision would bar the recipient from even consulting an attorney to file such a challenge. Even if he were to challenge the NSL on his own, the recipient would necessarily have to disclose the fact of the NSL's issuance to the clerk of court and to the presiding judge, again, in violation of the literal terms of the non-disclosure provision.
Rather than dispute the Plaintiffs' interpretation of the relevant constitutional doctrine, the Government's response to these arguments endeavors to heavily repair the statute, essentially by splicing together a string of judicially-sanctioned implications, glosses, or outright patchwork of the various gaps Congress left in the statute, whether inadvertently or purposefully. First, as discussed above, the Government claims that the statute implicitly affords an NSL recipient the opportunity to challenge an NSL on the same terms as would be available to any other subpoena recipient, i.e., to either resist the Government's enforcement action, or to affirmatively file a motion to quash. Second, the Government reads the statute to implicitly permit disclosure to an attorney in connection with such a challenge. Third, the government would recognize an additional exception for disclosure to other officers, employees, or agents whose assistance may be reasonably necessary for the recipient to comply with the NSL request.
The path that, according to the Government, would lead to the above "correct" reading of § 2709 is as follows. First, concerning the judicial enforcement issue, § 2709 is conspicuously silent on how the Government's demand for records is to be enforced. Plaintiffs concede that § 2709 does not authorize the FBI to resort to "self-help" in enforcing the statute, thus leaving the possibilities that enforcement falls to either the court system, to no one at all, or, worse yet, to other forms of administrative pressures and extra-legal methods that such congressional silences and statutory lacunae may be prone to invite. Following the Government's theory, it is inconceivable that Congress intended compliance with § 2709 to be a mere courtesy in light of § 2709's mandatory phrases, such as "duty" and "shall comply." The obvious purpose of the statute - to obtain important records quickly - would be eviscerated, the argument goes, if an NSL recipient could treat the NSL as if it were a piece of junk mail to be tossed in the trash can and ignored without consequence. Furthermore, courts have long recognized the "sharp distinction between agency power to issue subpoenas and judicial power to enforce them." Accordingly, the Government concludes that it would make sense that an NSL, which is in the family of administrative subpoenas, would follow that ordinary course.
…. As the Supreme Court has also instructed, the courts "cannot press statutory construction 'to the point of disingenuous evasion' even to avoid a constitutional question." … [T]he more and the deeper the interstices in a law a judge is called upon to fill, the more what the enterprise demands is not construction of a statute but its emendation by the court, effectively an exercise of judicial legislation in order to repair and rescue the enactment by furnishing through this back channel the missing terms Congress itself did not provide.
…Despite these severe reservations, in the final analysis the Court need not resolve Plaintiffs' facial challenge to § 2709 on Fourth Amendment grounds for two reasons. First, even if the Court were to accept that the FBI's authority to issue and enforce NSLs pursuant to § 2709 means what the Government says it means, the Court's inquiry would not end there with a ruling in favor of the Government. Investing those provisions with the reading the Government accords them does not address the Plaintiffs' distinct claim that in practice § 2709 in all or the vast majority of actual cases, by virtue of the statute's unwarranted application by the FBI, operates otherwise. The Court concludes that the operation of § 2709 renders it unconstitutional, notwithstanding that, at least in a theoretical sense, a possible reading of portions of the statute as the Government propounds, through extensive judicial tinkering with its silences, may be posited to withstand a Fourth Amendment facial challenge. In particular, deficiencies in the application of § 2709 pertain to the very core issues -- access to legal advice and availability of judicial process to enforce and contest the law -- upon which Plaintiffs' Fourth Amendment facial challenge is grounded. Because the Court agrees that those protections are vital to satisfy Fourth Amendment standards, it finds the manner in which § 2709 has been applied unwarranted.
The crux of the problem is that the form NSL, like the one issued in this case, which is preceded by a personal call from an FBI agent, is framed in imposing language on FBI letterhead and which, citing the authorizing statute, orders a combination of disclosure in person and in complete secrecy, essentially coerces the reasonable recipient into immediate compliance. Objectively viewed, it is improbable that an FBI summons invoking the authority of a certified "investigation to protect against international terrorism or clandestine intelligence activities," and phrased in tones sounding virtually as biblical commandment, would not be perceived with some apprehension by an ordinary person and therefore elicit passive obedience from a reasonable NSL recipient. The full weight of this ominous writ is especially felt when the NSL's plain language, in a measure that enhances its aura as an expression of public will, prohibits disclosing the issuance of the NSL to "any person." Reading such strictures, it is also highly unlikely that an NSL recipient reasonably would know that he may have a right to contest the NSL, and that a process to do so may exist through a judicial proceeding.
Because neither the statute, nor an NSL, nor the FBI agents
dealing with the recipient say as much, all but the most mettlesome and
undaunted NSL recipients would consider themselves effectively barred from
consulting an attorney or anyone else who might advise them otherwise, as well
as bound to absolute silence about the very existence of the NSL. Furthermore,
it is doubtful that an NSL recipient, not necessarily a lawyer, would be
willing to undertake any creative exercises in statutory construction to
somehow reach the Government's proposed reading of § 2709, especially because that construction is not apparent
from the plain language of the statute, the NSL itself, or accompanying
government communications, and any penalties for noncompliance or disclosure
are also unspecified in the NSL or in the statute. For the reasonable NSL
recipient confronted with the NSL's mandatory
language and the FBI's conduct related to the NSL, resistance is not a viable
The evidence in this case bears out the hypothesis that NSLs work coercively in this way. The ACLU obtained, via the Freedom of Information Act ("FOIA"), and presented to the Court in this proceeding, a document listing all the NSLs the Government issued from October 2001 through January 2003. Although the entire substance of the document is redacted, it is apparent that hundreds of NSL requests were made during that period. Because § 2709 has been available to the FBI since 1986 (and its financial records counterpart in RFPA since 1978), the Court concludes that there must have been hundreds more NSLs issued in that long time span. The evidence suggests that, until now, none of those NSLs was ever challenged in any court. First, the Department of Justice explicitly informed the House Judiciary Committee in May 2003 that there had been no challenges to the propriety or legality of any NSLs. Second, the Government's evidence in this case conspicuously lacks any suggestion either that the Government has ever had to resort to a judicial enforcement proceeding for any NSL, or that any recipient has ever resisted an NSL request in such a proceeding or via any motion to quash.
To be sure, the Court recognizes that many other reasons may
exist to explain the absence of challenges to NSLs:
the communications provider who receives the NSL ordinarily would have little
incentive to contest the NSL on the subscriber's behalf; the standard of review
for administrative subpoenas similar to NSLs is so
minimal that most such NSLs would likely be upheld in
court; litigating these issues is expensive; and many citizens may feel a
civic duty to help the FBI's investigation and thus may willingly comply.
Nevertheless, the Court finds it striking that, in all the years during which
the FBI has been serving NSLs, the evidence suggests
that, until now, no single NSL recipient has ever sought to quash such a
directive. The Court thus concludes that in practice NSLs
are essentially unreviewable because, as explained,
given the language and tone of the statute as carried into the NSL by the FBI,
the recipient would consider himself, in virtually every case, obliged to
comply, with no other option but to immediately obey and stay quiet.
...Here, the Court concludes it would be … naive to conclude that § 2709 NSLs, given their commandeering warrant, do anything short of coercing all but the most fearless NSL recipient into immediate compliance and secrecy. …
Recognizing from the preceding discussion the reality that § 2709 effectively keeps § 2709 NSLs out of litigation altogether, the Court concludes that supplying a judicial gloss to § 2709 but failing to address the practical effects of the unparalleled level of secrecy and coercion fostered by the FBI's implementation of the statute would be completely academic. That is, the Court is reluctant to fashion a "remedy" which has no effect beyond being printed in the Federal Supplement.
Accordingly, the Court concludes that § 2709, as applied
here, must be invalidated because in all but the exceptional case it has the
effect of authorizing coercive searches effectively immune from any judicial
process, in violation of the Fourth Amendment. The Court next turns to other
reasons that compel the more drastic conclusion that § 2709 must be invalidated
on its face. First, however, the Court examines Plaintiffs' arguments that §
2709 violates communications service subscribers' First Amendment rights. It
concludes that the absence of meaningful judicial review created by § 2709's
coercive implementation may also lead to violations of subscribers' own
2. NSLs May Violate ISP Subscribers' Rights.
Plaintiffs have focused on the possibility that § 2709 could be used to infringe subscribers' First Amendment rights of anonymous speech and association. Though it is not necessary to precisely define the scope of ISP subscribers' First Amendment rights, the Court concludes that § 2709 may, in a given case, violate a subscriber's First Amendment privacy rights, as well as other legal rights, if judicial review is not readily available to an ISP that receives an NSL. This conclusion buttresses the Court's holding that, at least as applied, § 2709 does not permit sufficient judicial review to preserve individual subscribers' rights, where impairment of such rights may be implicated by a given NSL.
The Supreme Court has recognized the First Amendment right
to anonymous speech at least since Talley v.
In a related doctrine, the Supreme Court has held that "compelled disclosure, of affiliation with groups engaged in advocacy" amounts to a "restraint on freedom of association" where disclosure could expose the members to "public hostility." Laws mandating such disclosures will be upheld only where the Government interest is compelling.
The Court concludes that such First Amendment rights may be infringed by application of § 2709 in a given case. For example, 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. Such inquiries might be beyond the permissible scope of the FBI's power under § 2709 because the targeted information might not be relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, or because the inquiry might be conducted solely on the basis of activities protected by the First Amendment. These prospects only highlight the potential danger of the FBI's self-certification process and the absence of judicial oversight.
Other rights may also be violated by the disclosure contemplated by the statute; the statute's reference to "transactional records" creates ambiguity regarding the scope of the information required to be produced by the NSL recipient. If the recipient -- who in the NSL is called upon to exercise judgment in determining the extent to which complying materials constitute transactional records rather than content -- interprets the NSL broadly as requiring production of all e-mail header information, including subject lines, for example, some disclosures conceivably may reveal information protected by the subscriber's attorney-client privilege, e.g., communication with an attorney where the subject line conveys privileged or possibly incriminating information. Indeed, the practical absence of judicial review may lead ISPs to disclose information that is protected from disclosure by the NSL statute itself, such as in a case where the NSL was initiated solely in retaliation for the subscriber's exercise of his First Amendment rights, as prohibited by § 2709(b)(1)-(2). Only a court would be able to definitively construe the statutory and First Amendment rights at issue in the "First Amendment retaliation" provision of the statute, and to strike a proper balance among those interests.
The Government asserts that disclosure of the information sought under § 2709 could not violate a subscriber's rights (and thus demands no judicial process) because the information which a § 2709 NSL seeks has been voluntarily conveyed to the ISP who receives the NSL. According to the Government, an internet speaker relinquishes any interest in any anonymity, and any protected claim to that information, as soon as he releases his identity and other information to his ISP. In support of its position, the Government cites the Supreme Court's holding that, at least in the Fourth Amendment context involving the Government installing a pen register or obtaining bank records, when a person voluntarily conveys information to third parties, he assumes the risk that the information will be turned over to the Government.
The Court rejects the Government's reasoning. Every court that has addressed the issue has held that individual internet subscribers have a right to engage in anonymous internet speech, though anonymity may be trumped in a given case by other concerns. No court has adopted the Government's argument here that anonymous internet speech or associational activity ceases to be protected because a third-party ISP is in possession of the identifying information.
Moreover, the Court notes that the implications of the Government's position are profound. Anonymous internet speakers could be unmasked merely by an administrative, civil, or trial subpoena, or by any state or local disclosure regulation directed at their ISP, and the Government would not have to provide any heightened justification for revealing the speaker. The same would be true for attempts to compile membership lists by seeking the computerized records of an organization which uses a third-party electronic communications provider. Considering, as is undisputed here, the importance of the internet as a forum for speech and association, the Court rejects the invitation to permit the rights of internet anonymity and association to be placed at such grave risk.
The Court reaches this conclusion by determining that NSLs issued pursuant to § 2709 may seek information about or indirectly obtained from subscribers that may be protected from disclosure by the First Amendment, or other rights-protecting constitutional provisions or statutes. Echoing the Supreme Court's observation that "differences in the characteristics of new media justify differences in the First Amendment standards applied to them," the Court concludes that even though Smith and Miller might suggest that there is no First Amendment interest at stake in compelling the disclosure by telephone companies and banks of certain transactional information derived from customer records, in deciding this case the Court must take account of the unique features of internet communications that may warrant application of different rules. The Court is persuaded that, for First Amendment purposes, internet records of the type obtained via a § 2709 NSL could differ substantially from transactional bank or phone records.
The evidence on the record now before this Court demonstrates that the information available through a § 2709 NSL served upon an ISP could easily be used to disclose vast amounts of anonymous speech and associational activity. For instance, § 2709 imposes a duty to provide "electronic communication transactional records," a phrase which, though undefined in the statute, certainly encompasses a log of email addresses with whom a subscriber has corresponded and the web pages that a subscriber visits. Those transactional records can reveal, among other things, the anonymous message boards to which a person logs on or posts, the electronic newsletters to which he subscribes, and the advocacy websites he visits. Moreover, § 2709 imposes a duty on ISPs to provide the names and addresses of subscribers, thus enabling the Government to specifically identify someone who has written anonymously on the internet. As discussed above, given that an NSL recipient is directed by the FBI to turn over all information "which you consider to be an electronic communication transactional record," the § 2709 NSL could also reasonably be interpreted by an ISP to require, at minimum, disclosure of all e-mail header information, including subject lines.
In stark contrast to this potential to compile elaborate dossiers on internet users, the information obtainable by a pen register is far more limited. As the Supreme Court in Smith was careful to note:
[Pen registers] disclose only the telephone numbers that have been dialed -- a means of establishing communication. Neither the purport of any communication between the caller and the recipient of the call, their identities, nor whether the call was even completed is disclosed by pen registers.
The Court doubts that the result in Smith would have been the same if a pen register operated as a key to the most intimate details and passions of a person's private life.
The more apt Supreme Court case for evaluating the assumption of
risk argument at issue here is Katz v.
Applying that reasoning to anonymous internet speech and associational activity is relatively straightforward. A person who signs onto an anonymous forum under a pseudonym, for example, is essentially "shut[ting] the door behind him,"and is surely entitled to a reasonable expectation that his speech, whatever form the expression assumes, will not be accessible to the Government to be broadcast to the world absent appropriate legal process. To hold otherwise would ignore the role of the internet as a remarkably powerful forum for private communication and association. Even the Government concedes here that the internet is an "important vehicle for the free exchange of ideas and facilitates associations."
To be sure, the Court is keenly mindful of the Government's reminder that the internet may also serve as a vehicle for crime. The Court equally recognizes that circumstances exist in which the First Amendment rights of association and anonymity must yield to a more compelling Government interest in obtaining records from internet firms. To this end, the Court re-emphasizes that it does not here purport to set forth the scope of these First Amendment rights in general, or define them in this or any other case. The Court holds only that suchfundamental rights are certainly implicated in some cases in which the Government may employ § 2709 broadly to gather information, thus requiring that the process incorporate the safeguards of some judicial review to ensure that if an infringement of those rights is asserted, they are adequately protected through fair process in an independent neutral tribunal. Because the necessary procedural protections are wholly absent here, the Court finds on this ground additional cause for invalidating § 2709 as applied.
C. CONSTITUTIONALITY OF THE NON-DISCLOSURE PROVISION
Finally, the Court turns to the issue of whether the Government may properly enforce § 2709(c), the non-disclosure provision, against Doe or any other person who has previously received an NSL. Section 2709(c) states: "No wire or electronic communication service provider, or officer, employee, or agent thereof, shall disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records under this section."
A threshold question concerning this issue is whether, as Plaintiffs contend, § 2709(c) is subject to strict scrutiny as either a prior restraint on speech or a content-based speech restriction, or whether, as the Government responds, § 2709(c) is subject to the more relaxed judicial review of intermediate scrutiny. The difference is crucial. A speech restriction which is either content-based or which imposes a prior restraint on speech is presumed invalid and may be upheld only if it is "narrowly tailored to promote a compelling Government interest." If "less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve," then the speech restriction is not narrowly tailored and may be invalidated. Under intermediate scrutiny, a speech restriction may be upheld as long as "it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests."
The Court agrees with Plaintiffs that § 2709(c) works as both a prior restraint on speech and as a content-based restriction, and hence, is subject to strict scrutiny.
…. The Government's argument …fails to recognize that even a viewpoint-neutral restriction can be content-based, if the restriction pertains to an entire category of speech. The Supreme Court has clearly expressed this principle: "The First Amendment's hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic." Section 2709(c) prohibits any discussion of the first-hand experiences of NSL recipients, and of their officers, employees, and agents, and thus closes off that "entire topic" from public discourse. Those persons are forever barred from speaking to anyone about their knowledge and role in the underlying events pertaining to the issuance of an NSL, however substantively limited or temporally remote that role may be, even at a time when disclosure of the occurrence of the investigation may have ceased to generate legitimate national security concerns and instead may hold historical or scholarly value then bearing relatively greater interest to the general public. The restriction would also categorically bar the recipient and its agents from ever discussing their roles even if other persons may be free to do so -- because, for example, the matter may have become public or the FBI itself may have revealed the information or publicly brought the investigation to closure. The absolute and permanent ban on disclosure § 2709(c) commands forecloses an objective weighing of these competing public policy interests by a neutral arbiter even as the relative merits of the respective claims may alter over time.
…[T]he Court …acknowledges that the Government's interest in protecting the integrity and efficacy of international terrorism and counterintelligence investigations is a compelling one. The Supreme Court has so acknowledged: "This Court has recognized the Government's 'compelling interest' in withholding national security information from unauthorized persons in the course of executive business." A suspected terrorist or foreign intelligence operative who is alerted that the Government is conducting an investigation may destroy evidence, create false leads, alert others, or otherwise take steps to avoid detection. More generally, such disclosures can reveal the Government's intelligence-gathering methods, from which foreign intelligence operatives or terrorists could learn better how to avoid detection.
Nonetheless, Plaintiffs contend that § 2709(c)'s categorical, perpetual, and automatic ban on disclosure is not a narrowly-tailored means to advance those legitimate public interests. Plaintiffs suggest that a more precisely-calibrated statute, which would equally advance the Government's compelling interests, would prohibit disclosure only on a case-by-case basis, for a limited time, and with prior judicial approval. Without detailing the degree of narrow tailoring which the First Amendment demands with respect to § 2709, the Court concludes that § 2709 is not sufficiently narrow.
Viewed from another perspective, however, the restraint imposed under § 2709(c) is as thorough as is conceivable. The statute permanently prohibits not only the recipient but its officers, employees or agents, from disclosing the NSL's existence to "any person," in every instance in which an NSL is issued and irrespective of the circumstances prevailing at any given point in time. In this respect, § 2709(c) as well as the other NSL statutes, are uniquely extraordinary. …[W]hen the Government conducts a secret investigation, it ordinarily must apply for a court order before restricting third-party participants from revealing the inquiry, and those restrictions are generally temporary.
Furthermore, these provisions are not quite as severe as those contained in the NSL statutes because, with one narrow exception for certain FISA surveillance orders, they apply in contexts in which a court authorizes the investigative method in the first place. Thus, even in these statutes, the silenced party, at least theoretically, would almost always have a forum in which to contest the continuing validity of the non-disclosure obligation or to seek a modified secrecy order. The FISA limits the potential for abuse in yet another way by requiring a clear connection to a foreign power and by sharply limiting the degree to which any United States citizen may be subject to surveillance under a secret FISA order; such protections are not present in § 2709, particularly after the significant broadening of the statute's scope effectuated by the Patriot Act. The NSL statutes, including § 2709(c), thus stand virtually alone in providing for blanket secrecy entirely outside the context of judicial process.
In synthesizing the broad and narrow features of § 2709(c) explained above, and in considering how closely those features are tailored to the Government's compelling interests, the Government makes convincing points in showing that it would be consistent with the First Amendment to impose a certain amount of limited secrecy in many cases involving a § 2709 NSL. The Government also persuasively demonstrates how that secrecy, under certain circumstances, might continue for longer periods of time, consistent with the First Amendment. The Court acknowledges those arguments so far as they go, but concludes in the end that the Government cannot cast § 2709 -- a blunt agent of secrecy applying in perpetuity to all persons affected in every case -- as narrowly-tailored.
The Government's claim to perpetual secrecy surrounding the FBI's issuance of NSLs, by its theory as advanced here an authority neither restrained by the FBI's own internal discretion nor reviewable by any form of judicial process, presupposes a category of information, and thus a class of speech, that, for reasons not satisfactorily explained, must forever be kept from public view, cloaked by an official seal that will always overshadow the public's right to know. In general, as our sunshine laws and judicial doctrine attest, democracy abhors undue secrecy, in recognition that public knowledge secures freedom. Hence, an unlimited government warrant to conceal, effectively a form of secrecy per se, has no place in our open society. Such a claim is especially inimical to democratic values for reasons borne out by painful experience. Under the mantle of secrecy, the self-preservation that ordinarily impels our government to censorship and secrecy may potentially be turned on ourselves as a weapon of self-destruction. When withholding information from disclosure is no longer justified, when it ceases to foster the proper aims that initially may have supported confidentiality, a categorical and uncritical extension of non-disclosure may become the cover for spurious ends that government may then deem too inconvenient, inexpedient, merely embarrassing, or even illicit to ever expose to the light of day. At that point, secrecy's protective shield may serve not as much to secure a safe country as simply to save face.
-The Government does not deny that there are plausible situations in which little or no reason may remain for continuing the secrecy of the fact that an NSL was issued. To cite an example, a case may arise in which the Government's investigation has long since been completed and information about it has become public through Government sources or otherwise, in which the material obtained through an NSL revealed that there was no basis whatsoever to pursue the subject or target of the Government's investigation, or in which the disclosure may have been made by a person in the chain of information, such as an employee or agent of the NSL recipient, who was not informed in any way of the secrecy requirement. Section 2709(c) does not countenance the possibility that the FBI could permit modification of the NSL's no-disclosure order even in those or any other similar situations no longer implicating legitimate national security interests and presenting factual or legal issues that any court could reasonably adjudicate. Bluntly stated, the statute simply does not allow for that balancing of competing public interests to be made by an independent tribunal at any point. In this regard, it is conceivable that "less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve." For instance, Congress could require the FBI to make at least some determination concerning need before requiring secrecy, and ultimately it could provide a forum and define at least some circumstances in which an NSL recipient could ask the FBI or a court for a subsequent determination whether continuing secrecy was still warranted.
…In response to this standard, the Government's main contention, quite understandably, is that international terrorism and counterintelligence investigations justify more secrecy than other types of investigations. The Court agrees with that basic point so far as it goes. However, under the exacting demands of the First Amendment, the argument does not carry far enough.
To summarize, the Court concludes that the compulsory, secret, and unreviewable production of information required by the FBI's application of 18 U.S.C. § 2709 violates the Fourth Amendment, and that the non-disclosure provision of 18 U.S.C. § 2709(c) violates the First Amendment. The Government is therefore enjoined from issuing NSLs under § 2709 or from enforcing the non-disclosure provision in this or any other case, but enforcement of the Court's judgment will be stayed pending appeal, or if no appeal is filed, for 90 days.