Monday, December 15, 2008

Circuit strikes down and modifies Patriot Act provision on National Security Letters

The USA Patriot Act allows the FBI to demand from telephone and Internet service providers certain information from their customers about their communications activity. Through "national security letters" (or NSL's), the FBI could find out if someone was engaged in terrorist activities. But the recipients of these NSL's could not communicate to anyone that they received them. Nor could they tell anyone they had to comply with them. This created significant First Amendment problems, which the Second Circuit resolved on December 15.

The case is Doe v. Mukasey. The district court struck down much of this statute on a preliminary injunction. The Court of Appeals gives this case extended treatment, striking down and otherwise narrowly interpreting parts of the law.

Plaintiffs argued that the nondisclosure requirement is a content-based prior restraint which the First Amendment forbids. They also argued that this licensing scheme must include a mechanism for the government to seek judicial review on the restraint. This objection is rooted in case law requiring the government to initiate legal proceedings when it wants to restrict certain speech. We call it the Freedman requirement, based on a Supreme Court ruling from the 1970s. But the government responds that this not quite like prior restraints governing public assemblies and entertainment like movies and books but, instead, simply a restriction on speech comparable to grand jury secrecy and judicial misconduct proceedings. Also, under the statute, to trigger the nondisclosure requirement, the FBI must first certify to a court that the national security letters are intended to deal with international terrorism or clandestine intelligence activities.

The Second Circuit first holds that the above speech restrictions are not classic prior restraints in that they don't squelch speech in public forums. But the Court holds that this is not quite comparable to secret grand jury proceedings, either. "In any event, John Doe, Inc., has been restrained from publicly expressing a category of information, albeit a narrow one, and that information is relevant to intended criticism of a governmental activity," the Court states.

What tangles up the Court of Appeals is the absence of any mechanism for the government to seek a court order allowing it to silence the recipient of a national security letter. In other words, where is the Freedman requirement? This mechanism is normally required when the government wants to restrict certain speech. The government argued, among other things, that this requirement is burdensome because the government issues thousands of national security letters each year. But the Court of Appeals suggests that one way to deal with this is to have the government tell the recipient that it has 10 days to advise whether it will challenge the nondisclosure requirement and that if the recipient chooses to do so, the government will have a limited time frame in which to seek the appropriate court order. This Freedman procedure will work, the Court says, because the government doesn't think too many NSL recipients want to make an issue of this in the first instance. So the point here is that Freedman requirements must apply to NSL's.

But there is another problem. The Patriot Act requires the courts to defer to the government's judgment in issuing NSL's. The First Amendment requires the government to provide a concrete reason for nondisclosure requirements. The Court of Appeals resolves this issue by requiring the government to show why disclosure would risk "an enumerated harm," that is, "the Government must at least indicate the nature of the apprehended harm and provide a court with some basis to assure itself (based on in camera presentations where appropriate) that the link between disclosure and risk of harm is substantial." This solution allows the government to exercise its national security objectives without the Federal courts breathing over its shoulder.

The Court of Appeals, in effect, is saying that if the government provides a concrete reason for nondisclosure, that reason may outweigh the NSL recipient's First Amendment interest in publicizing the letter and any grievance related to the production of the Internet activity of an ISP customer. The Court concludes, "A demonstration of a reasonable likelihood of potential harm, related to international terrorism or clandestine intelligence activities, will virtually always outweigh the First Amendment interest in speaking about such a limited and particularized occurrence as the receipt of an NSL and will suffice to maintain the secrecy of the fact of such receipt."

One last problem: under the statute, the government certification that the NSL's are necessary are deemed conclusive by the courts unless the courts think the certification was advanced in bad faith. The Second Circuit rejects this. Such a procedure gives the government too much leeway to regulate speech without satisfying "strict scrutiny," the standard governing court review of most speech restrictions. The Court pounds the table on this one: "“Under no circumstances should the Judiciary become the handmaiden of the Executive.”

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