Dispatches from the Creation Wars

The 2nd Circuit Court of Appeals upheld a lower court ruling striking down a Patriot Act provision that forbid recipients of National Security Letters (NSLs) requiring them to turn over records to the FBI from revealing anything about the request to anyone. The case, brought by the ACLU on behalf of an internet service provider (ISP) who was served with such a letter, was called Doe v Mukasey. The full ruling can be read here.

The ISP was served with an NSL by the FBI in February, 2004, requiring them to turn over all records for one of their customers, including the content of emails sent and received. The letter also informed the ISP that the Patriot Act “prohibit[ed] any officer, employee or agent” of the company from “disclosing to any person that the FBI has sought or obtained access to information or records” pursuant to the NSL provisions.


The district court granted summary judgment for the plaintiffs, ruling that the NSL provision “was unconstitutional under the Fourth Amendment because it authorized ‘coercive searches effectively immune from any judicial process, and that the nondisclosure requirement of subsection 2709(c) was unconstitutional under the First Amendment because it was an unjustified prior restraint and a content-based restriction on speech.”

Congress then passed an act reauthorizing the Patriot Act and amending these provisions, adding in a section allowing limited judicial review. The reauthorization act allowed an Electronic Communication Service Provider (ESCP) to ask a court to review the case and rule on whether they can reveal that they turned over electronic records.

If the district court “finds that there is no reason to believe that disclosure may endanger the national security of the United States” then the court may allow the ESCP to reveal the existence of the NSL, but the provision also said that if the executive branch certifies that such disclosure may endanger the national security or interfere with diplomatic relations, that certification must be treated by the court as conclusive unless the court concludes that it was issued in bad faith.

In other words, while the provision technically allows the nondisclosure provision to be challenged in court, it set a standard that was virtually impossible to meet in reality. The appeals court remanded the case back to the district court for reconsideration in light of the new changes in the law and the district court ruled that even with these changes, the provisions were still unconstitutional because they “invested executive officials with broad discretion to censor speech but failed to provide necessary procedural safeguards.”

The district court further ruled that the law violated the separation of powers in the Constitution because it “prescribes a judicial review procedure and a standard of review inconsistent with First Amendment strict scrutiny requirements.” In other words, the court ruled that Congress was telling the courts how they must adjudicate a dispute and required a standard that was inconsistent with the First Amendment.

The appeals court agreed, ruling that these legal provisions reduce judges to operate “in the role of petty functionaries, persons required to enter as a court judgment an executive officer’s decision, but stripped of capacity to evaluate independently whether the executive’s decision is correct.” The court said:

There is not meaningful judicial review of the decision of the Executive Branch to prohibit speech if the position of the Executive Branch that speech would be harmful is “conclusive” on a reviewing court, absent only a demonstration of bad faith. To accept deference
to that extraordinary degree would be to reduce strict scrutiny to no scrutiny, save only in the rarest of situations where bad faith could be shown. Under either traditional strict scrutiny or a less exacting application of that standard, some demonstration from the Executive Branch of the need for secrecy is required in order to conform the nondisclosure requirement to First Amendment standards. The fiat of a governmental official, though senior in rank and doubtless honorable in the execution of official duties, cannot displace the judicial obligation to enforce constitutional requirements.

In other words, in order to be constitutional the law must place the burden on the government to demonstrate to the court that disclosure of an NSL search in any particular case would cause specific harm.