Garland v. Under Seal (In re Three Nat'l Sec. Letters)

Garland v. Under Seal (In re Three Nat'l Sec. Letters)

Opinion

HURWITZ, Circuit Judge:

We today again confront 18 U.S.C. § 2709, which allows the Federal Bureau of Investigation ("FBI") to prevent a recipient of a national security letter ("NSL") from disclosing its receipt. ] We have held "that the nondisclosure requirement in 18 U.S.C. § 2709(c) is a content-based restriction on speech that is subject to strict scrutiny, and that the nondisclosure requirement withstands such scrutiny." In re Nat'l Sec. Letter, Nos. 16-16067, 16-16081, 16-16082, 2022 U.S. App. LEXIS 12761, 2022 WL 1495038, at *2 (9th Cir. May 11, 2022), amending and superseding 863 F.3d 1110 (9th Cir. 2017). The issue for decision today is whether, after reviewing such a nondisclosure order pursuant to 18 U.S.C. § 3511 and finding it statutorily authorized for the foreseeable future, a district court is also constitutionally required on its own accord to schedule future judicial review. Because the statutory scheme requires judicial review whenever a recipient of an NSL requests it, and the recipient in this case cites no circumstances mandating court-ordered periodic review, we find no constitutional infirmity in the order of the district court and affirm.

I. Background.

A. Statutory and Regulatory History.

] An NSL is an administrative subpoena issued by the FBI to a wire or electronic communication service provider requiring production of "specified subscriber information that [*5]  is relevant to an authorized national security investigation." In re Nat'l Sec. Letter, 2022 U.S. App. LEXIS 12761, 2022 WL 1495038, at *1; see 18 U.S.C. § 2709(a)-(b). The FBI can order an NSL recipient not to "disclose to any person that the [FBI] has sought or obtained access to information" if a senior FBI official certifies that disclosure may endanger national security or "the life or physical safety of any person," affect diplomatic relations, or interfere with "a criminal, counterterrorism, or counterintelligence investigation." 18 U.S.C. §§ 2709(c)(1)(A), (B)(i)-(iv).³

] An NSL recipient may at any time petition in the district court for judicial review of a nondisclosure requirement; in the alternative, the recipient may request the government to petition for such judicial review and the government must do so within thirty days of the request. Id. §§ 2709(d), 3511(a), (b)(1)(A)-(B). In judicial review, regardless of the initiating party, the government must justify continued nondisclosure; if it does so, the district court "shall issue a nondisclosure order or extension thereof" that "includes conditions appropriate to the circumstances." Id. §§ 3511(b)(1)(C), (b)(2)-(3); see In re Nat'l Sec. Letter, 2022 U.S. App. LEXIS 12761, 2022 WL 1495038, at *12. Although a provider cannot disclose information identifying a specific NSL, 18 U.S.C. § 2709(c)(1)(A), it can report certain information in annual or semiannual reports, such as the aggregate number of NSLs received [*6]  in bands of 1,000, see 50 U.S.C. § 1874(a)(1)(A).

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