Read the court's criticism of new rules on gag orders accompanying national security letters

A federal judge in a recent ruling criticized new rules regarding how long the government can demand secrecy from companies when it requests data on national security cases.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Civil Action No. 16-518 (JEB)

In Re NATIONAL SECURITY LETTERS

MEMORANDUM OPINION AND ORDER

In the Federal Bureau oflnvestigation issued two separate National

Security Letters to Respondent seeking limited information about two customer

accounts in connection with a national-security investigation. Pursuant to the terms of those two

NSLs. was prohibited from disclosing their existence or contents to the two targets.

Invoking its statutory right to judicial review ofthis prohibition. Respondent has now asked this
Court to take an independent look at its continuing nondisclosure obligation. Agreeing that
indefinite nondisclosure is not appropriate here. the Court will order the FBI to conduct triennial
reviews going forward.
I. Background

The FBI may issue an a form ofadministrative subpoena. to a wire- or electronic-
communications service provider seeking non-content information. as long as the Bureau
certifies that the records sought are "relevant to an authorized investigation to protect against
international terrorism or clandestine intelligence activities." [8 U.S.C. 2709(b)(l). In
addition. if the FBI certi?es that "the absence ofa prohibition of disclosure . . .may result in
a danger to the national security of the United States: (ii) interference with a criminal.
counterterrorism. or counterintelligence investigation: interference with diplomatic relations;

or (iv) danger to the life or physical safety ofany person.? the service provider is prohibited from

discbsing the existence of the NSL. To avoid potential First Amendment
concerns with such a restraint on speech. however. Congress last year. as part of the USA
FREEDOM Act of 20l5 (USAFA), provided: "lfa recipient of[such an wishes to have a
court review a nondisclosure requirement imposed in connection with the request or order, the

recipient may notify the Government or ?le a petition for judicial review . . . l8

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In this case.the Bureau issued two NSLs to in seeking records

relating to two subscribers. 83 Pet., Exhs. 2-3. These NSLs carried the requisite certi?cation

that nondisclosure was necessary to avoid the harms listed in the statute. See Although the

judicial-review provision at that time differed from its current state. suf?ce it to say that

did not seek any court intervention for the years.

however. changed its mind in 2016. In February of this year, it of?cially

noti?ed the government that it desired to exercise its rights under 35] Pet..Exh. 4.
More speci?cally. it sent a letter expressing its ?wish[] to have a court individually review the
nondisclosure requirements imposed in connection with" the NSLs. Punctually observing its
obligations under the statute. the government then ?led this action asking this Court for such
review. EECF No. 1 (Petition). lt simultaneously ?led in camera the classi?ed Declaration
ofMiehael B. Steinbaeh. Executive Assistant Director of the FBl?s National Security Branch.
which explained the speci?c nature of the two NSLs and why the statutory harms articulated in
?2709 still applied. It thus maintained that the nondisebsure provisions should remain in force.

Exh. at 2.

responded that it did not doubt the legitimacy of such harms, nor did it seekto

challenge the constitutionality of 2709. Resp. at 2. It argued only that the Court should

I?d

require some periodic review of the necessity of nondisclosure. as opposed to allowing it to
operate inde?nitely. Respondent took this position even though the government pointed out that
the language of? 35l l(b) appears to permit an recipient to seek multiple reviews of the
nondisclosure requirements by ?ling successive petitions. Aftera status hearing was
unsuccessful in crafting a compromise solution, the Court directed the parties to submit further
pleadings regarding the propriety of an order in this case that directed the FBI to conduct
periodic reviews. 53 ECF No. 12 (Order). Now that the parties have complied, the matter is
ripe for decision.
Analysis

Once a district court receives a petition for nondisclosure review. it "should rule
expeditiously. and shall, subject to [the statutory bases for nondisclosure], issue a nondisclosure
order that includes conditions appropriate to the circumstances.? 18 U.S.C. 3511(b)(l)(C)

(emphasis added); see also In re National Security Letters, No. 11-2173 at 30 (ND. Cal. Mar. 29,

2016) (Order re: Renewed Petitions). attached as Exh. to Gov?t Notice of Supp. Auth. (ECF

No. 7) (Section 35] now amended to "provide[] that upon review. a district court ?may

issue a nondisclosure order that includes conditions appropriate to the circumstances?);

Opp. (EC No. 18). Exh. (Hearing Transcript) at 8 (government agreeing that Court may issue
an order ?appropriate under the circumstances?). The question this case poses, therefore, is
what conditions. if any. are appropriate here. The government takes the position that an

unconditional order maintaining nondisclosure should issue ?subjeet to the Attorney General?s

recently issued procedures set forth below while seeks a requirement that the FBI

periodically review the necessity of nondisclosure.

To determine the answer. the Court starts with the USAFA. which last year ordered the
Attorney General. within I80 days of the statute?s enactment, to "adopt procedures with respect
to nondisclosure requirements? under. inter alia. 2709 - to mandate:

(A) the review at appropriate intervals of such a nondisclosure
requirement to assess whether the facts supporting nondisclosure
continue to exist;

(B) the termination of such a nondisclosure requirement if the facts
no longer support nondiscbsure; and

(C) appropriate notice to the recipient of the national security
letter. or of?cer. employee. or agent thereof, subject to the
nondisclosure requirement. and the applicable court as appropriate.
that the nondisclosure requirement has been terminated.

USA FREEDOM Act of 20l5, Pub L. No. llA-2l3. 502(f)(l), l29 Stat. 268, 288 (emphasis
added). The Attorney General complied. and in November 2015 the FBI published its
Termination Procedures. which provide for Bureau review of any NSL nondisclosure prohibition
at two distinct intervals: (I) at the close of any investigation in which an NSL containing a
nondisclosure provision was issued; and (2) on the three-year anniversary of the initiation of the
investigation for which an NSL was issued. unless previously closed. If such review determines
that the statutory standards for nondisclosure are still met. then the gag order remains in place.
Termination Procedures for National Security Letter Nondisclosure Requirement (Nov.
24. 20l5).

Such procedures. as : points out. leave several large loopholes. First. there is no
further review beyond these two. meaning that where a nondisclosure prov'sion isjusti?ed at the
close of an investigation. it could remain in place indefinitely thereafter. EResp. at 7. Second,
these procedures by their own terms apply only to "investigations that close and/or reach their
three-year anniversary date on or afterthe effective date of these procedures," Term. Proc. at
3; as a result, ?a large swath of NSL nondisclosure provisions [that predate the procedures] may

never be reviewed and could remain unlimited in duration." Resp. at 7. Third. for long-running

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investigations. there could be an extended period of time inde?nite for unsolved cases?
between the third-year anniversary and the close date.

These loopholes thus give the Court some pause as to whether the Termination
Procedures clearly comply with the USAFA's mandate that requires ?review at appropriate
intervals." USAFA 5026)?); H.R. Rep. No. ll4-l09. at 26 (20l5) (Section 502 "also
provides that the Attorney General shall adopt procedures for the review of nondisclosure
requirements issued pursuant to an NSL. These procedures require the government to review at
appropriate intervals whether the facts supporting nondisclosure continue to exist . . .
(emphasis added).

In addition. in a case decided afterthe passage of the USA FA but before the Attorney
General had implemented her Termination Procedures. Judge James Bredar of the District of
Maryland concluded that the NSL in question, whose nondisclosure requirement had been
implemented for an indefinite duration. was ?problematic.? v. Under Seal, No. l5-l I80
at 4 (D. Md. Sept. 17. 20l5). He thus held that. until the Attorney General implemented the new
procedures. the government was required to review CVCQ I80 days the rationale for the
nondisclosure requirement?s continuation. see also In re National Security Letters, No. II-
2l73 at 30 ("At the hearing, the government stated that ?conditions appropriate to the
circumstances? could include a temporal limitation on nondisclosure . . .

It was against this backdrop that this Court ordered the government to explain why an
review of the nondisclosure requirement in this case would not be appropriate. In
response. the government submitted both a classified and an unclassified declaration from
Michael Steinbach. The former. reviewed by the Court in camera, reasonably explains why the

nondisclosure requirements in the two NSLs at issue are unlikely to be lifted by the FBI any time

Ur

soon. The latter offers more detail on the ?nancial and logistical burdens the FBI would face if it

had to adopt an annual review in a_ll of its eases. responded that the only question

relates to the burdens in this case, not generally.

The Court finds neither of these diametrically opposing views persuasive. On the one
hand. it would be disingenuous for the Court to craft an order expecting that no other provider
(or. for that would seek similar conditions attached to the nondisclosure
requirements in other cases. 0n the other. the Court would be precipitate in leaping to the
conclusion that an order in this case would necessarily require a revamping of the
procedure in relation to all I6.000 NSLs that are issued annually.

Where lies the middle ground? The Court believes that. given both the facts and

circumstances of this particular case and the legal authority discussed above, a triennial review

fairly balances the specific burdens on the Bl against the countervailing interest that has

in avoiding a and indefinite nondisclosure bar. An annual review in a casein which

reasonably nondisclosure is likely would be unduly cumbersome. but an indefinite bar

(absent further petitions by seems inconsistent with the intent of the law. A review

conducted every three years. furthermore. mirrors that timeframe set out in the Termination
Procedures.

Ill. Conclusion

The Court. accordingly. finds. under 18 U.S.C. 351 and that there '5

good reason to believe that disclosure of the and NSLs served on:

may result in a danger to the national security of the United States; interference with a eriminaL
counterterrorism. or counterintelligenee investigation: interference with diplomatic relations; or

danger to the life or physical safety of any person.

It therefore ORDERS that:

l. remains bound by the nondisclosure provisions of l8 U.S.C. 2709,

including the requirement that it not disclose the factor contents of the NSL to any person (other
than those to whom such disclosure is necessary to comply with the request or an attorney to

obtain legal advice or legal assistance with respect to the request): and

2. The FBI shall. every three years from this date, review the need for such
nondisclosure and inform of its decision. Such obligation shall terminate upon the
noti?cation to that nondisclosure is no longer prohibited.

IT IS SO ORDERED.

lames Z. Bogg?grg
JAMES BOASBERG
United States District Judge

Date: July 251 2016