MERRICK GARLAND V. UNDER SEAL, No. 18-56669 (9th Cir. 2022)
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The FBI issued three national security letters ("NSLs") with indefinite nondisclosure requirements to the appellant communications service provider (“Provider”). Provider complied and took no action until 2018 when it requested that the government initiate judicial review pursuant to 18 U.S.C. Section 3511(b)(1)(A)–(B). The district court then reviewed in camera confidential declarations pertaining to the three NSLs and found continued nondisclosure statutorily authorized.
On appeal, the Ninth Circuit reviewed whether the nondisclosure requirements in the district court’s order are narrowly tailored to serve the government’s compelling interest in national security. The court affirmed the district court’s order requiring the recipient of three national security letters to comply with the nondisclosure requirements set forth in 18 U.S.C. Section 2709(c) “unless and until the Government informs it otherwise.” The court explained that here, the district court reviewed the three NSLs and related materials in camera and found that, given the important government interests at stake, nondisclosure remained authorized for an indefinite period and court scheduled review was unnecessary to ensure that nondisclosure continued no longer than justified. The communication service provider did not contest the government’s compelling interest or the necessity of continued nondisclosure. The court rejected the provider’s assertion that a district court is constitutionally required on its own accord to schedule future judicial review once it finds a nondisclosure order to be statutorily authorized for the foreseeable future. Finally, the court found no constitutional infirmity in the order of the district court.
Court Description: Civil Rights. The panel affirmed the district court’s order requiring the recipient of three national security letters to comply with the nondisclosure requirements set forth in 18 U.S.C. § 2709(c) “unless and until the Government informs it otherwise.” A national security letter (“NSL”) is an administrative subpoena issued by the FBI to a wire or electronic communication service provider requiring production of specified subscriber information that is relevant to an authorized national security investigation. Pursuant to 18 U.S.C. § 2709, the Federal Bureau of Investigation (“FBI”) can prevent a recipient of an NSL from disclosing its receipt. This court has held “that the nondisclosure requirement in 18 U.S.C. § 2709(c) is a content-based restriction on speech that is subject to strict scrutiny, and that the nondisclosure requirement withstands such scrutiny.” In re Nat’l Sec. Letter, Nos. 16-16067, 16-16081, 16-16082, * The Honorable Louis Guirola, Jr., United States District Judge for the Southern District of Mississippi, sitting by designation. IN RE THREE NATIONAL SECURITY LETTERS 3 2022 WL 1495038, at *2 (9th Cir. May 11, 2022), amending and superseding 863 F.3d 1110 (9th Cir. 2017). Here, the district court reviewed the three NSLs and related materials in camera and found that, given the important government interests at stake, nondisclosure remained authorized for an indefinite period and court- scheduled review was unnecessary to ensure that nondisclosure continued no longer than justified. The communication service provider did not contest the government’s compelling interest or the necessity of continued nondisclosure. The panel rejected the provider’s assertion that a district court is constitutionally required on its own accord to schedule future judicial review once it finds a nondisclosure order to be statutorily authorized for the foreseeable future. The panel held that neither the NSL statute nor In re National Security Letter compelled the district court to schedule periodic judicial review in every case. Because the statutory scheme requires judicial review whenever a recipient of an NSL requests it, and the recipient in this case cited no circumstances mandating court-ordered periodic review, the panel found no constitutional infirmity in the order of the district court. 4 IN RE THREE NATIONAL SECURITY LETTERS
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