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Doe v. Gonzales

United States District Court for the Southern District of New York

September 6, 2007, Decided; September 6, 2007, Filed

04 Civ. 2614 (VM)

Opinion

 [*384] 

OPINION DECISION AND ORDER

VICTOR MARRERO, United States District Judge.

TABLE OF CONTENTS

I. INTRODUCTION

II. BACKGROUND

A. SECTION 2709

B. DOE I

C. THE REVISED NONDISCLOSURE PROVISION

D. THE FBI'S USE OF NSLs

E. PLACING NSLs ISSUED UNDER § 2709 IN CONTEXT

1. Administrative Subpoenas

2. Pen Registers, Wiretaps, and Foreign

Intelligence Surveillance

3. Secrecy in Grand Jury Proceedings

III. DISCUSSION

A. STANDARD OF REVIEW

B. STANDING

C. STRICT SCRUTINY

D. PROCEDURAL SAFEGUARDS

1. The Freedman Safeguards

2. Application of Freedman

3. The NSL Statute Fails to Satisfy Freedman

E. DISCRETION

F. PRESCRIBING THE STANDARD OF JUDICIAL REVIEW

1. Congress Cannot Legislate a Standard of

Review at Odds with First Amendment

Jurisprudence

a. Historical Context of Checks and

Balances and Separation of Powers

b. Application of the Principles

Separation of Powers

c. Prospective Concerns

2. The Review Prescribed by § 3511(b) Does

Not Comport with First Amendment

Jurisprudence

G. NARROW TAILORING

H. SCOPE OF 18 U.S.C. §§ 3511(d) AND 3511(e)

1. Closure of Hearings and Sealing of

Records

2. Consideration of Ex Parte and In

Camera Evidence

I. SEVERANCE

IV. CONCLUSION

V. STAY OF JUDGMENT

VI. ORDER

 [*385] 

I.  [**3] INTRODUCTION

Plaintiffs John Doe, American Civil Liberties Union, and American Civil Liberties Union Foundation (collectively, "Plaintiffs") initially brought this case in 2004, challenging the constitutionality of 18 U.S.C. § 2709, amended by the USA Patriot Act (the "Patriot Act"), Pub. L. No. 107-56, 115 Stat. 272 (Oct. 26, 2001) ("§ 2709"). Section 2709 was originally enacted as part of Title II of the Electronic Communication Privacy Act of 1986 ("ECPA"), Pub. L. No. 99-508, § 201, 100 Stat. 1848, 1867-68 (1986), and governs the issuance of National Security Letters ("NSLs") by the Federal Bureau of Investigation ("FBI") to wire and electronic communication service providers ("ECSPs"). This Court, in a lengthy decision dated September 28, 2004, granted Plaintiffs' motion for summary judgment and declared § 2709 unconstitutional on its face, under the First and Fourth Amendments. See Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004) ("Doe I"). "Considering the implications of its ruling and the importance of the issues involved,"  [*386]  the Court stayed enforcement of its judgment pending appeal. See id. at 526.

Shortly after this Court's decision, a court in the District of Connecticut  [**4] enjoined the Government from enforcing the nondisclosure requirement of § 2709(c) insofar as it prevented the plaintiff in that case from revealing its identity as a recipient of an NSL, holding that § 2709(c) failed to satisfy strict scrutiny because it was not narrowly tailored to serve a compelling state interest. See Doe v. Gonzales, 386 F. Supp. 2d 66, 82 (D. Conn. 2005) ("Doe II").

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500 F. Supp. 2d 379 *; 2007 U.S. Dist. LEXIS 65879 **; 25 A.L.R. Fed. 2d 775

JOHN DOE, AMERICAN CIVIL LIBERTIES UNION, and AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Plaintiffs, -- against -- ALBERTO GONZALES, in his official capacity as Attorney General of the United States; ROBERT MUELLER, in his official capacity as Director of the Federal Bureau of Investigation; and VALERIE E. CAPRONI, in her official capacity as General Counsel to the Federal Bureau of Investigation, Defendants.

Subsequent History: As Amended September 7, 2007.

Affirmed in part and reversed in part by, Remanded by John Doe, Inc. v. Mukasey, 549 F.3d 861, 2008 U.S. App. LEXIS 25193 (2d Cir. N.Y., Dec. 15, 2008)

Prior History: Doe I v. Gonzales, 449 F.3d 415, 2006 U.S. App. LEXIS 12820 (2d Cir. N.Y., 2006)

Disposition:  Plaintiffs' motion for summary judgment was granted in part and denied in part. The Government's cross-motion was denied. Defendants were enjoined from issuing national security letters under 18 U.S.C.S. § 2709, or from enforcing, the provisions of § 2709(c) and 18 U.S.C.S. § 3511(b). The court entered a stay of enforcement of the judgment pending any appeal, or, if no appeal was filed, for 90 days.

CORE TERMS

nondisclosure, First Amendment, national security, disclosure, recipient, secrecy, judicial review, courts, safeguards, licensing, investigations, deference, records, strict scrutiny, surveillance, provisions, wiretap, standard of review, communications, requests, Harms, cases, governmental interest, prior restraint, Enumerated, disclosing, revised, grand jury, content-based, orders

Communications Law, Federal Acts, Electronic Communications Privacy Act, Computer & Internet Law, Privacy & Security, Governments, Federal Government, Domestic Security, Constitutional Law, Fundamental Freedoms, Freedom of Speech, General Overview, Separation of Powers, Civil Procedure, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, Summary Judgment, Entitlement as Matter of Law, Legal Entitlement, Justiciability, Standing, Legislation, Overbreadth, Judicial & Legislative Restraints, Overbreadth & Vagueness of Legislation, Vagueness, Prior Restraint, Evidence, Burdens of Proof, Allocation, Inferences & Presumptions, Presumptions, Bill of Rights, Discovery & Disclosure, Discovery, Protective Orders, Case or Controversy, Constitutional Questions, Necessity of Determination, Courts, Authority to Adjudicate, The Presidency, Fundamental Rights, Procedural Due Process, Severability