March 19, 2013
Judge Rules Nondisclosure Provision of National Security Letter Statute Unconstitutional
Judge Susan Illston (N.D. Cal.) ruled last week in In Re National Security Letter that the nondisclosure and judicial review provisions of the National Security Letter Statute violated free speech. But she stayed the ruling pending Ninth Circuit review.
National Security Letters are those statutory inventions that require a wire or electronic communication service provider to turn over specified categories of subscriber information if the FBI certifies that the records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities. The statute also prohibits an NSL recipient from disclosing the NSL, so long as the FBI certifies that disclosure could threaten national security. (This is the nondisclosure provision.) Finally, it provides for judicial review NSLs and nondisclosure orders, but puts a thumb on the scale in favor of the government in review. (This is the judicial review provision.)
Judge Illston ruled that the nondisclosure provision "clearly restrains speech of a particular content--significantly, speech about government conduct," even if it is not a "classic prior restraint" or a "typical" content-based restriction on speech. As such, she ruled, the provision is subject to the Freedman v. Maryland safeguards--that a restraint prior to judicial review can be imposed only for a specific period, that expeditious judicial review of the decision must be available, and that the government must bear the burden of going to court to suppress the speech and must bear the burden of proof once in court.
But Judge Illston said that the nondisclosure provision didn't meet those safeguards, in particular, it didn't provide that the government had to initiate judicial review and bear the burden of proof. Moreover, she ruled that it swept too broadly, prohibiting recipients from disclosing even the mere fact of their receipt of an NSL.
As to judicial review, Judge Illston wrote that "the statute impermissibly attempts to circumscribe a court's ability to review the necessity of nondisclosure orders," by limiting how a court might set aside an NSL.
Judge Illston concluded that there was no way to read the nondisclosure provision to save it, and thtat it was not severable from the rest of the act. But she stayed her ruling pending Ninth Circuit consideration of the case.
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