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John Doe, Inc. v. Mukasey

John Doe, Inc. v. Mukasey

United States Court of Appeals for the Second Circuit

August 27, 2008, Heard; December 15, 2008, Decided

Docket No. 07-4943-cv

Opinion

 [*864]  JON O. NEWMAN, Circuit Judge.

This appeal concerns challenges to the constitutionality of statutes regulating the issuance by the Federal Bureau of Investigation ("FBI") of a type of administrative subpoena generally known as a National Security Letter ("NSL") to electronic communication service providers ("ECSPs"). See 18 U.S.C. §§ 2709, 3511 (collectively "the NSL statutes"). ECSPs are typically telephone companies or Internet service providers. An NSL, in the context of this appeal, 1 is a request for information about specified persons or entities who are subscribers to an ECSP  [**4] and about their telephone or Internet activity. Primarily at issue on this appeal are challenges to the provisions (1) prohibiting the recipient from disclosing the fact that an NSL has been received, see 18 U.S.C. § 2709(c), and (2) structuring judicial review of the nondisclosure requirement, see id. § 3511(b).

These challenges arise on an appeal by the United States from the September 7, 2007, judgment of the District Court for the Southern District of New York (Victor Marrero, District Judge), enjoining FBI officials from (1) issuing NSLs under section 2709, (2) enforcing the nondisclosure requirement of subsection 2709(c), and (3) enforcing the provisions for judicial review of the nondisclosure requirement contained in subsection 3511(b). 2 See Doe v. Gonzales, 500 F. Supp. 2d 379 (S.D.N.Y. 2007) ("Doe II"). The District Court ruled that subsections 2709(c) and 3511(b) are unconstitutional on First Amendment  [**5] and separation-of-powers grounds, see id. at 405-06, 411-13, 416-22, and that subsection 2709(c) could not be severed from section 2709, see id. at 424-25.

We agree that the challenged statutes do not comply with the First Amendment, although not to the extent determined by the District Court, and we also conclude that the relief ordered by the District Court is too broad. We therefore affirm in part, reverse in part, and remand for further proceedings.

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549 F.3d 861 *; 2008 U.S. App. LEXIS 25193 **

JOHN DOE, INC., JOHN DOE, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Plaintiffs-Appellees, v. MICHAEL B. MUKASEY, in his official capacity as U.S. Attorney General of the United States, ROBERT MUELLER, in his official capacity as Director of the Federal Bureau of Investigation, VALERIE E. CAPRONI, in her official capacity as General Counsel of the Federal Bureau of Investigation, Defendants-Appellants.

Subsequent History: Amended, January 14, 2009.

On remand at, Motion granted by, in part, Motion denied by, in part Doe v. Holder, 2009 U.S. Dist. LEXIS 71087 (S.D.N.Y., Aug. 5, 2009)

Prior History:  [**1] Appeal by the Government from the September 7, 2007, judgment of the United States District Court for the Southern District of New York (Victor Marrero, District Judge), in litigation concerning First Amendment challenges to the constitutionality of statutes governing the issuance and judicial review of National Security Letters ("NSLs"), 18 U.S.C. §§ 2709, 3511(b), which request records from providers of wire or electronic communication services. The judgment, stayed on appeal, enjoins FBI officials from (1) issuing NSLs under section 2709, (2) enforcing the nondisclosure requirement of subsection 2709(c), and (3) enforcing the provision for judicial review of the nondisclosure requirement contained in subsection 3511(b).

The Court of Appeals construes the statutes to avoid some constitutional challenges, rules that subsections 2709(c) and 3511(b) are unconstitutional to the extent that they impose a nondisclosure requirement on NSL recipients without placing on the Government the burden of initiating judicial review of such a requirement, rules that subsections 3511(b)(2) and (b)(3) are unconstitutional to the extent that, upon such review, a governmental official's certification  [**2] that disclosure may endanger the national security of the United States or interfere with diplomatic relations is treated as conclusive, modifies the district court's injunction by limiting it to enjoining FBI officials from enforcing the nondisclosure requirement of section 2709(c) in the absence of Government-initiated judicial review, and remands for a hearing.

Doe v. Gonzales, 500 F. Supp. 2d 379, 2007 U.S. Dist. LEXIS 65879 (2007)

Disposition: Affirmed in part, reversed in part, and remanded.

CORE TERMS

nondisclosure, judicial review, disclosure, district court, recipient, enumerated, provisions, initiate, invalidated, secrecy, harms, national security, licensing, notice, strict scrutiny, proceedings, prior restraint, good reason, modify, senior, international terrorism, burden of proof, certification, content-based, intelligence, clandestine, challenges, disclosing, revise, grand jury

Business & Corporate Compliance, Communications Law, Federal Acts, Stored Communications Act, Civil Rights Law, Protection of Rights, Privacy Rights, Electronic Communications, Governments, Federal Government, Domestic Security, Administrative Law, Judicial Review, General Overview, Constitutional Law, Fundamental Freedoms, Judicial & Legislative Restraints, Prior Restraint, Evidence, Inferences & Presumptions, Presumptions, Separation of Powers, US Congress, The Judiciary, The Presidency, Courts, Legislation, Interpretation, Congressional Duties & Powers, Severability, Burdens of Proof, Allocation, Criminal Law & Procedure, Grand Juries, Secrecy, Freedom of Speech, Civil Procedure, Appeals, Reviewability of Lower Court Decisions, Preservation for Review