Under Seal v. Sessions, No. 16-16067 (9th Cir. 2017)
Annotate this CaseThe nondisclosure requirement in 18 U.S.C. 2709 is a content-based restriction on speech that is subject to strict scrutiny, and the nondisclosure requirement withstands such scrutiny. In this case, petitioners challenged the law authorizing the FBI to prevent a recipient of a national security letter (NSL) from disclosing the fact that it has received such a request. Applying strict scrutiny, the Ninth Circuit held that national security is a compelling government interest and the nondisclosure requirement of section 2709(c) is narrowly tailored to serve that compelling interest. Assuming the nondisclosure requirement is the type of prior restraint for which the Freedman v. Maryland, 380 U.S. 51 (1965), procedural safeguards are required, the NSL law provides those safeguards. Therefore, the nondisclosure requirement in the NSL law does not run afoul of the First Amendment.
Court Description: Civil Rights. The panel affirmed the district court’s orders denying petitions brought by electronic communication service providers pursuant to 18 U.S.C. § 3511(a) to set aside information requests and nondisclosure requirements in National Security Letters issued to them by the Federal Bureau of Investigation. A National Security Letter is an administrative subpoena issued by the FBI to a wire or electronic communication service provider requiring the provider to produce specified subscriber information that is relevant to an authorized national security investigation. 18 U.S.C. § 2709(a). By statute, a National Security Letter may include a requirement that the recipient not disclose the fact that it has received such a request. In this case, recipients of National Security Letters alleged that the nondisclosure requirement violates their First Amendment rights. The panel held that § 2709(c)’s nondisclosure requirement imposes a content-based restriction that is subject to, and withstands, strict scrutiny. The panel further held that, assuming the nondisclosure requirement was the type of prior restraint for which the procedural safeguards set forth in Freedman v. Maryland, 380 U.S. 51 (1965) were required, the National Security Letters law provided those 4 IN RE NATIONAL SECURITY LETTER safeguards. The panel concluded that the nondisclosure requirement does not run afoul of the First Amendment.
The court issued a subsequent related opinion or order on May 11, 2022.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.