Court: District Court, S.D. New York; August 28, 2015; Federal District Court
Nicholas Merrill filed a lawsuit against Loretta E. Lynch, the Attorney General, and James B. Comey, the FBI Director, seeking to lift a non-disclosure requirement imposed by a National Security Letter (NSL) issued by the FBI. Merrill's motion for summary judgment is opposed by the Government, which has also moved to dismiss the complaint or for summary judgment. In 2004, the FBI served Merrill, owner of Calyx Internet Access, with an NSL that restricted him from disclosing his receipt of the NSL, the identity of the investigation's target, and the NSL's contents. The FBI's authority to issue NSLs is derived from the USA PATRIOT Act, which allows requests for certain records from service providers.
The court's prior examination of the 2004 NSL in Doe v. Ashcroft found an earlier version of the relevant statute unconstitutional, specifically the nondisclosure requirement, as it constituted an unjustified prior restraint on speech. Following an appeal, Congress amended the law to require the FBI to certify potential harms for non-disclosure and to provide for judicial review of NSL requests. Upon remand in Doe v. Gonzales, the court ruled again that certain provisions of the law were unconstitutional, citing violations of the First Amendment and principles of separation of powers. The Second Circuit partially affirmed and reversed the lower court’s decision, invalidating aspects of the NSL provisions related to judicial review and the presumption of the FBI's risk assessments.
The Circuit Court interpreted Sections 2709 and 3511 to include procedural safeguards, determining that these sections, with such safeguards, were constitutional. The Second Circuit remanded to assess the constitutionality of the nondisclosure requirement as applied to the National Security Letter (NSL) issued to Merrill. In Doe v. Holder, the Court upheld the Mukasey standard, finding a "good reason" to believe disclosure could harm an ongoing investigation involving international terrorism or intelligence activities. Subsequently, Merrill sought partial reconsideration of the decision regarding the Attachment, resulting in the Court allowing disclosure of two material categories: information permissible under the NSL statute and publicly acknowledged materials previously requested by the FBI. The Court concluded that disclosing these categories would not significantly risk the harms outlined in the statute. However, the Government demonstrated a reasonable likelihood that full disclosure of the Attachment could inform law enforcement targets about the nature of records sought in ongoing investigations. After Doe IV, Merrill and the Government agreed that he could identify himself as the NSL recipient and later discuss most aspects of the NSL, excluding specific records sought in the Attachment. In December 2014, Merrill filed a Complaint against the Government, challenging the nondisclosure of the redacted Attachment under the amended Sections 2709 and 3511. Merrill's Complaint presents three claims: (1) the nondisclosure order is an unconstitutional speech ban under the First Amendment; (2) the Government lacks a "good reason" for nondisclosure; and (3) once an NSL recipient can identify themselves and the target, the FBI cannot maintain a nondisclosure order on other NSL aspects.
Merrill seeks disclosure of the FBI's requests for "electronic communications transaction records" via National Security Letters (NSLs) to foster public discussion. The Court concludes that the Government failed to demonstrate a sufficient risk of enumerated harm to justify non-disclosure under Sections 2709 and 3511. Consequently, Merrill's motion for summary judgment is granted, while the Government's motions to dismiss or for summary judgment are denied.
The Court reviewed the motions under Federal Rule of Civil Procedure 12(b)(6) for dismissal and Rule 56 for summary judgment. It determined that the Government's motion would be treated as one for summary judgment due to the submission of additional materials by both parties. The Court emphasized that it must find no genuine dispute of material fact to grant summary judgment and that the burden lies with the moving party to demonstrate this absence of factual issues.
The USA FREEDOM Act, enacted on June 2, 2015, revised Sections 2709 and 3511, which the Government argues aligns with the Second Circuit's decision in Mukasey. This revision addresses constitutional defects identified in Mukasey regarding NSL nondisclosure orders. The Second Circuit established that for nondisclosure orders to meet First Amendment standards, the Government must initiate judicial review if requested and demonstrate a "good reason" for the nondisclosure, indicating a reasonable likelihood of an enumerated harm resulting from disclosure. A mere possibility of harm is insufficient; there must be a stronger basis for the claim.
The Government recognizes that the "reason to believe" standard in subsection 3511(b) allows for deference in judicial review but does not prevent courts from assessing the reasonableness of FBI judgments. The Second Circuit clarified that while courts typically defer to the Government's assessments regarding the potential harms of disclosure, they cannot accept a nondisclosure requirement based solely on conclusory assertions. The Government must provide indications of the nature of the feared harm and establish a substantial link between the disclosure and the risk of harm.
The court noted that the harms enumerated in the statute align with the standard governing information related to an NSL, specifically that it must be relevant to an investigation aimed at protecting against international terrorism or clandestine intelligence activities. Under the USA FREEDOM Act, which amends Sections 2709 and 3511, the Government can mandate nondisclosure for four specific reasons, requiring FBI certification: (1) national security risk, (2) interference with investigations, (3) interference with diplomatic relations, or (4) danger to individual safety. Importantly, Section 2709 now allows for judicial review of NSLs, including a notice regarding the right to seek such review.
The amendments to Section 3511 introduce a reciprocal notice procedure for government-initiated review of nondisclosure requirements and remove the previous conclusive presumption in favor of official certifications. A district court may issue a nondisclosure order if it finds reasonable belief that disclosure could result in one of the specified harms. The Court agrees with the Government that the updated Sections 2709 and 3511 reflect the Mukasey standard, imposing the burden on the Government to demonstrate a legitimate expectation of risk from disclosure. The Court will now apply this standard to the aspects of the Attachment that Merrill is currently barred from discussing publicly.
The Court evaluates whether the Government has sufficiently justified the non-disclosure of the Attachment based on potential harms related to an ongoing investigation into international terrorism or clandestine intelligence activities. The Government contends that disclosing the Attachment could reveal unacknowledged law enforcement techniques, indicate information deemed crucial by the FBI, and enable investigation targets to alter their behavior to avoid detection. While the Court recognizes that such reasons could be compelling, as stated in the Second Circuit's Mukasey case, it emphasizes that the Government must provide a substantial basis linking disclosure to a risk of harm, consistent with First Amendment protections.
In this instance, the Government fails to demonstrate that public disclosure of the redacted portions of the Attachment would indeed pose one of the enumerated harms. The Court notes that similar information is already publicly available through other government documents, which diminishes the significance of the concerns raised by the Government. These documents outline the FBI's authority to issue National Security Letters (NSLs), the information sought, and how to draft NSL requests. Notably, a Department of Justice Office of Legal Education manual includes a sample attachment that encapsulates much of the redacted content, detailing the types of subscriber information the FBI may request, such as identities, addresses, and billing records. Consequently, the Court is not convinced that the Government's arguments regarding potential risks hold substantial weight, given the existing public knowledge of such information.
The sample attachment requests comprehensive records related to specific accounts and time periods, including: (1) detailed user activity records such as connection dates, times, durations, methods, data transfer volumes, usernames, and IP addresses; (2) telephone records encompassing caller ID, cellular site and sector data, GPS information, and cellular network identifiers; (3) non-content information linked to communications, including source and destination email addresses and IPs; and (4) correspondence and notes related to the accounts. The content requested closely resembles information that the FBI seeks to keep confidential, with the Government arguing that disclosing these details could allow targets to alter their behaviors to evade law enforcement. However, it is noted that targets can already infer the FBI's capabilities from publicly available sources. The sample attachment also requests account service length, and references a 2002 letter from the Deputy Attorney General affirming that NSLs can obtain certain subscriber information from ISPs, which the Government now seeks to keep undisclosed despite its public availability. The Court finds insufficient justification for preventing disclosure of information already known, including the term "subscriber," which is explicitly mentioned in statutory language regarding NSLs. Furthermore, the Government acknowledged during the proceedings that nondisclosure was unnecessary for some categories of records, specifically those related to ISPs and email addresses.
The Government's agreement to disclose certain categories of information only arose when it was legally obligated to provide certification for non-disclosure, supporting Merrill's claim that the non-disclosure requirement against him was excessively broad and lacked sufficient justification. Many remaining redactions are even less justifiable, such as efforts to prevent Merrill from revealing that specific records were sought, despite the Government's concession that the phrase "telephone number" can be disclosed. The Court finds no compelling reason to believe that disclosing the fact of the Government's information requests would cause harm, especially since it is publicly known that National Security Letters (NSLs) can be used to obtain such information.
The Government's rationale for keeping certain details confidential, focusing on protecting sensitive law enforcement information for future investigations, is deemed insufficient by the Court. Previous cases, Doe III and Doe IV, are distinguished; in Doe III, the Government successfully justified confidentiality, while in Doe IV, the Court acknowledged that specific information could be disclosed, particularly that which the FBI had already publicly acknowledged. Since the investigation related to Merrill has closed and he is allowed to identify himself and the target, the Government's current claims to confidentiality do not hold. The term "future targets" referenced in Doe IV is interpreted as relating only to targets of the same ongoing investigation, which is no longer applicable. The circumstances have shifted since Merrill's NSL receipt, with many investigative techniques now publicly disclosed.
Future targets of investigations are unlikely to alter their behavior based on currently redacted information, as they can access similar information from other government sources. This case differs from cited precedents since it involves law enforcement sensitive material rather than classified information. The Government's rationale for maintaining confidentiality relates to classified details within the Perdue Declaration, but the plaintiff, Merrill, only seeks disclosure of the non-classified Attachment. As a private citizen, Merrill is entitled to discuss information that has been publicly disclosed by the government, especially once an investigation is concluded and the identities involved no longer require secrecy. The Court expresses concern that if the Government's rationale for nondisclosure is accepted, it could perpetuate unwarranted secrecy surrounding government actions, contradicting First Amendment rights and citizen accountability. The Court concludes that the Government has not adequately justified continued nondisclosure of the Attachment and does not need to address Merrill's additional First Amendment claims. To allow for possible government appeal or alternative actions, the Court stays enforcement of its judgment for 90 days. Portions of the opinion that disclose the Attachment's contents are redacted in public filings to preserve the Government's ability to seek appellate review. If the ruling for disclosure remains intact after any appeals, an unredacted version of the opinion will be submitted.
The court has granted Nicholas Merrill's motion for summary judgment and denied the Government's motion to dismiss or for summary judgment. The Clerk of Court is instructed to file a redacted version of the decision on the public docket and to enter judgment while staying enforcement pending an appeal or for 90 days if no appeal is filed. The court has directed the termination of the motions and the closure of the case. The factual basis for the decision references multiple documents, including the complaint and various memoranda and declarations from both parties submitted between December 2014 and July 2015. The relevant statutory provisions regarding National Security Letters (NSLs) were amended by the USA Patriot Improvement and Reauthorization Act of 2005, which eliminated the one-year waiting period for NSL recipients to seek judicial relief after an unsuccessful challenge to a nondisclosure requirement. The Government has also conceded that strict scrutiny applies to the case, as established in previous relevant litigation.
A nondisclosure requirement can be set aside if there is no reason to believe that disclosure could threaten national security, obstruct criminal or counterterrorism investigations, harm diplomatic relations, or endanger individuals' safety, as outlined in 18 U.S.C. 3511(b)(2.3) from March 9, 2006, to June 1, 2015. During this period, courts were to treat an official certification of danger as conclusive unless bad faith was shown. This statute remained effective, except in the Second Circuit, until the enactment of the USA FREEDOM Act on June 2, 2015. The Government bears the burden of demonstrating a "good reason" to expect that disclosure poses a risk of enumerated harms and must establish a connection between the disclosure and the risk. The Court, however, is not convinced by the Government's arguments and notes that a 2007 Department of Justice report indicated that the FBI can gather subscriber information through National Security Letters (NSLs). While the Court acknowledges that there may be circumstances where the Government could justify non-disclosure linked to authorized investigations, it finds that the Government has not met its burden in this case to show that disclosure would likely lead to significant risk of the specified harms. Furthermore, maintaining such secrecy contradicts President Obama's 2014 directive to the Attorney General to limit the duration of NSL gag orders. Consequently, the Court does not need to determine if strict scrutiny applies to the claims, as procedural safeguards are necessary under either strict scrutiny or exacting scrutiny standards, as affirmed by the Second Circuit in Mukasey.
