John Doe, Inc. v. Mukasey

This appeal concerns challenges to the constitutionality of statutes regulating the issuance by the Federal Bureau of Investigation (“FBI”) of a type of administrative subpoena generally known as a National Security Letter (“NSL”) to electronic communication service providers (“ECSPs”). See 18 U.S.C. §§ 2709, 3511 (collectively “the NSL statutes”). ECSPs are typically telephone companies or Internet service providers. An NSL, in the context of this appeal, 1 is a request for information about specified persons or entities who are subscribers to an ECSP and about their telephone or Internet activity. Primarily at issue on this appeal are challenges to the provisions (1) prohibiting the recipient from disclosing the fact that an NSL has been received, see 18 U.S.C. § 2709(c), and (2) structuring judicial review of the nondisclosure requirement, see id. § 3511(b).

These challenges arise on an appeal by the United States from the September 7, 2007, judgment of the District Court for the Southern District of New York (Victor Marrero, District Judge), enjoining FBI officials from (1) issuing NSLs under section 2709, (2) enforcing the nondisclosure requirement of subsection 2709(c), and (3) enforcing the provisions for judicial review of the nondisclosure requirement contained in subsection 3511(b). 2 See Doe v. Gonzales, 500 F.Supp.2d 379 (S.D.N.Y. 2007) (“Doe II”). The District Court ruled that subsections 2709(c) and 3511(b) are unconstitutional on First Amendment and separation-of-powers grounds, see id. at 405-06, 411-13, 416-22, and that subsection 2709(c) could not be severed from section 2709, see id. at 424-25.

We agree that the challenged statutes do not comply with the First Amendment, although not to the extent determined by the District Court, and we also conclude that the relief ordered by the District Court is too broad. We therefore affirm in part, reverse in part, and remand for further proceedings.

Background

The parties. The Plaintiffs-Appellees are an Internet service provider (John Doe, Inc.), the provider’s former president (John Doe), the American Civil Liberties Union (“ACLU”), and the American Civil Liberties Union Foundation (“ACLUF”). 3 *865 The Defendants-Appellants are the Attorney General, the Director of the FBI, and the General Counsel of the FBI, all sued in their official capacities.

The NSL. In February 2004, the FBI delivered the NSL at issue in this litigation to John Doe, Inc. The letter directed John Doe, Inc., “to provide the [FBI] the names, addresses, lengths of service and electronic communication transactional records, to include [other information] (not to include message content and/or subject fields) for [a specific] email address.” The letter certified that the information sought was relevant to an investigation against international terrorism or clandestine intelligence activities and advised John Doe, Inc., that the law “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 letter also asked that John Doe provide the relevant information personally to a designated FBI office.

Section 2709 (2004 version). Section 2709 was originally enacted in 1986 as part of Title II of the Electronic Communication Privacy Act of 1986, Pub.L. No. 99-508, § 201, 100 Stat. 1848, 1867-68 (1986). It was amended in 1993 by Pub.L. No. 103-142, 107 Stat. 1491 (1993), in 1996 by Pub.L. No. 104-293, 110 Stat. 3461 (1996), and in 2001 by the USA Patriot Act, Pub.L. No. 107-56, 115 Stat. 272, 365 (2001).

Subsection 2709(a) imposes a duty on ECSPs to comply with requests for specified information about a subscriber, and subsection 2709(b) authorizes the Director of the FBI and other FBI officials to request specified information about a subscriber from ECSPs. The texts of subsections 2709(a) and (b), as they existed in 2004, when this lawsuit was filed (the current versions are unchanged) are set out in the margin. 4 Subsection 2709(c), as it ex *866 isted in 2004, imposed a blanket nondisclosure requirement prohibiting an ECSP from disclosing receipt of an NSL. The text of subsection 2709(c), as it existed in 2004 (it has since been changed), is set out in the margin. 5

The lawsuit and the District Court’s first decision. The Plaintiffs filed this lawsuit in April 2004 and an amended complaint in May 2004. They contended that section 2709 violated the First and Fourth Amendments by authorizing the FBI to compel the disclosure of private records relating to constitutionally protected speech and association; they also contended that the nondisclosure requirement of subsection 2709(c) violated the First Amendment by permanently barring NSL recipients from disclosing that the FBI had sought or obtained information from them.

On the Plaintiffs’ motion for summary judgment, the District Court ruled primarily that section 2709 (presumably the disclosure requirements of subsections 2709(a) and (b)) was unconstitutional under the Fourth Amendment because it authorized “coercive searches effectively immune from any judicial process,” Doe v. Ashcroft, 334 F.Supp.2d 471, 494-506 (S.D.N.Y.2004) (“Doe I”), 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, see id. at 511-25. Nearly one year later, a District Court in Connecticut preliminarily enjoined enforcement of the nondisclosure requirement of subsection 2709(c), finding a probability of success on the claim that subsection 2709(c) was unconstitutional under the First Amendment because it was an unjustified prior restraint and content-based restriction. See Doe v. Gonzales, 386 F.Supp.2d 66, 73-75, 82 (D.Conn.2005) (“Doe CT”).

Amendments to the NSL statutes. While appeals in Doe I and Doe CT were pending, Congress amended the NSL statutes in two respects. See USA Patriot Improvement and Reauthorization Act of 2005, §§ 115, 116(a), Pub.L. No. 109-177, 120 Stat. 192, 211-14 (Mar. 9, 2006) (“the Reauthorization Act”), amended by USA Patriot Act Additional Reauthorizing Amendments Act of 2006, § 4(b), Pub.L. No. 109-178, 120 Stat. 278, 280 (Mar. 9, 2006) (“Additional Reauthorization Act”), codified at 18 U.S.C.A. § 2709(c) (West Supp.2008). First, although leaving intact subsections 2709(a) and (b), requiring compliance with NSLs, Congress amended the nondisclosure prohibition of subsection 2709(c) to require nondisclosure only upon certification by senior FBI officials that “otherwise there may result a danger to the national security of the United States, interference with a criminal, counterter- *867 rorism, or counterintelligence investigation, interference with diplomatic relations, or danger to the life or physical safety of any person.” Id. § 2709(c)(1) (“the enumerated harms”). 6 The Reauthorization Act amended subsection 2709(c) by replacing the single paragraph of former subsection 2709(c) with four subdivisions, the fourth of which was amended by the Additional Reauthorization Act. We consider below the text of amended subsection 2709(c), which is set out in the margin. 7 Second, in the Reauthorization Act, Congress added provisions for judicial review, now codified in section 3511, to permit the recipient of an NSL to petition a United States district court for an order modifying or setting aside the NSL, see 18 U.S.C.A. § 3511(a) (West Supp.2008), and the nondisclosure requirement, see id. § 3511(b). The NSL may be modified if “compliance would be unreasonable, oppressive, or otherwise unlawful.” Id. § 3511(a). The nondisclosure requirement, which prohibits disclosure by the NSL recipient of the fact that the FBI has sought or obtained access to the requested information, may be modified or set aside, upon a petition filed by the NSL recipient, id. § 3511(b)(1), if the district court “finds *868 that there is no reason to believe that disclosure may endanger the national security of the United States” or cause other of the enumerated harms (worded slightly differently from subsection 2709(c)(1)), see id. § 3511(b)(2), (3). 8 The nondisclosure requirement further provides that if the Attorney General or senior governmental officials certify that disclosure may endanger the national security or interfere with diplomatic relations, such certification shall be treated as “conclusive” unless the court finds that the certification was made “in bad faith.” Id. The text of section 3511 is set out in the margin. 9

*869 The first appeal. On the Government’s appeals in Doe I and Doe CT, this Court remanded Doe I for further consideration in light of the amendments to the NSL statutes, and dismissed Doe CT as moot in light of the Government’s withdrawal of its objection to disclosure of the identity of the NSL recipient in that case. See Doe v. Gonzales, 449 F.3d 415, 421 (2d Cir.2006).

Withdrawal of the NSL. On November 7, 2006, the Government informed the District Court in the pending case that it was no longer seeking to enforce the request for information contained in the NSL that had been sent to John Doe with respect to information from John Doe, Inc. See Doe II, 500 F.Supp.2d at 386 n. 3.

The District Court’s second decision. On September 6, 2007, the District Court issued its second opinion, ruling, on cross-motions for summary judgment, that, despite the amendments to the NSL statutes, subsections 2709(c) and 3511(b) are facially unconstitutional, see id. at 387, and that the Defendants-Appellants are enjoined from issuing NSLs under section 2709 and enforcing the provisions of subsections 2709(c) and 3511(b), see id. at 425-26. 10 *870 The Court stayed enforcement of its judgment pending appeal. See id. at 426.

In a careful and comprehensive opinion the District Court viewed the “fundamental question” to be “the extent of the authority that the First Amendment allows the government to exercise in keeping its use of NSLs secret, insofar as such secrecy inhibits freedom of speech.” Id. at 395. The Court began its analysis by reaffirming its conclusion from Doe I that the nondisclosure requirement of subsection 2709(c), despite amendment, remains “a prior restraint and a content-based restriction on speech,” id. at 397, subject to “strict scrutiny,” id. at 398. The analysis then proceeded in several steps.

First, the Court, applying strict scrutiny and acknowledging that national security is a compelling state interest, ruled that the nondisclosure provisions invested executive officials with broad discretion to censor speech but failed to provide necessary procedural safeguards. See id. at 399-406. Specifically, the Court, applying the teaching of Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), a motion picture licensing case, held that the nondisclosure provisions impermissibly placed the burden of initiating judicial review on the NSL recipient. See Doe II, 500 F.Supp.2d at 405-06. However, the Court rejected the Plaintiffs’ argument that the nondisclosure provisions invested executive officers with unbridled discretion to suppress speech in violation of Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969). See Doe II, 500 F.Supp.2d at 406-09.

Second, the Court, relying on Dickerson v. United States, 530 U.S. 428, 437, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000), and City of Boerne v. Flores, 521 U.S. 507, 535-36, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), ruled that subsection 3511(b) violates the First Amendment and the principle of separation of powers because it prescribes a judicial review procedure and a standard of review inconsistent with First Amendment strict scrutiny requirements. Doe II, 500 F.Supp.2d at 411-19.

Finally, the Court ruled that the nondisclosure provisions violate the First Amendment because they permit the FBI to issue nondisclosure orders that are not narrowly tailored in scope or duration. See id. at 419-22. Specifically, the Court noted that the nondisclosure provisions close off a broad spectrum of speech at the core of the First Amendment — political criticism — and that the statute contains “no requirement that the government act affirmatively and promptly to terminate the nondisclosure order” if the need for secrecy dissipates. See id. at 422.

The Court then ruled that the unconstitutional portions of the statute were not severable from the remainder of the statute. See id. at 424-25. Specifically, the Court reasoned that because secrecy was integral to the statutory scheme that Congress envisioned, it would not have wanted the NSL statute to operate without the nondisclosure provisions. It therefore invalidated section 2709 in its entirety. See id. at 425.

Discussion

The validity of the NSL issued to John Doe, Inc., is no longer at issue because the Government has withdrawn it, but the prohibition on disclosing receipt of the NSL remains. We therefore consider only the *871 Government’s challenges to the District Court’s rulings with respect to the nondisclosure requirement, although to the extent that the nondisclosure requirement encounters valid constitutional objections, we will consider the provisions authorizing the issuance of NSLs in connection with the issue of severance.

I. Applicable Principles

The First Amendment principles relevant to the District Court’s rulings are well established, although them application to the statutory provisions at issue requires careful consideration. A judicial order “forbidding certain communications when issued in advance of the time that such communications are to occur” is generally regarded as a “prior restraint,” Alexander v. United States, 509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993) (emphasis and internal quotation marks omitted), and is “the most serious and the least tolerable infringement on First Amendment rights,” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). “Any prior restraint on expression comes to [a court] with a heavy presumption against its constitutional validity,” Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971) (internal quotation marks omitted), and “carries a heavy burden of showing justification,” id. A content-based restriction is subject to review under the standard of strict scrutiny, requiring a showing that the restriction is “narrowly tailored to promote a compelling Government interest.” United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000).

Where expression is conditioned on governmental permission, such as a licensing system for movies, the First Amendment generally requires procedural protections to guard against impermissible censorship. See Freedman, 380 U.S. at 58, 85 S.Ct. 734. Freedman identified three procedural requirements: (1) any restraint imposed prior to judicial review must be limited to “a specified brief period”; (2) any further restraint prior to a final judicial determination must be limited to “the shortest fixed period compatible with sound judicial resolution”; and (3) the burden of going to court to suppress speech and the burden of proof in court must be placed on the government. See id. at 58-59 (numbering and ordering follows Supreme Court’s discussion of Freedman in FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 227, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990)); Thomas v. Chicago Park District, 534 U.S. 316, 321, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002).

Once constitutional standards have been authoritatively enunciated, Congress may not legislatively supercede them. See Dickerson, 530 U.S. at 437, 120 S.Ct. 2326. “When the political branches of the Government act against the background of a judicial interpretation of the Constitution already issued, it must be understood that in later cases and controversies the Court will treat its precedents with the respect due them under settled principles, including stare decisis, and contrary expectations must be disappointed.” City of Boerne, 521 U.S. at 536, 117 S.Ct. 2157.

The national security context in which NSLs are authorized imposes on courts a significant obligation to defer to judgments of Executive Branch officials. “[C]ourts traditionally have been reluctant to intrude upon the authority of the Executive in ... national security affairs,” Department of Navy v. Egan, 484 U.S. 518, 530, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988), and the Supreme Court has acknowledged that terrorism might provide the basis for arguments “for heightened deference to the *872 judgments of the political branches with respect to matters of national security,” Zadvydas v. Davis, 533 U.S. 678, 696, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001).

The last set of principles implicated by the Plaintiffs’ constitutional challenges concerns the somewhat related issues of judicial interpretation of unclear statutes, judicial revision of constitutionally defective statutes, and judicial severance of constitutionally invalid provisions from otherwise valid provisions. It is well established that courts should resolve ambiguities in statutes in a manner that avoids substantial constitutional issues. See Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 76 L.Ed. 598 (1932); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring).

Less clear is the authority of courts to revise a statute to overcome a constitutional defect. Of course, it is the province of the Legislative Branch to legislate. But in limited circumstances the Supreme Court has undertaken to fill in a statutory gap arising from the invalidation of a portion of a statute. The Court did so in United States v. Thirty-Seven Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971). Considering a statute authorizing customs agents to seize obscene materials, see 19 U.S.C. § 1305(a), the Court noted that the statute lacked time limits on initiating and completing judicial proceedings, see Thirty-Seven Photographs, 402 U.S. at 363, 91 S.Ct. 1400, limits constitutionally required by Freedman, 380 U.S. at 58, 85 S.Ct. 734, Teitel Film Corp. v. Cusack, 390 U.S. 139, 141, 88 S.Ct. 754, 19 L.Ed.2d 966 (1968), and Blount v. Rizzi, 400 U.S. 410, 417, 91 S.Ct. 423, 27 L.Ed.2d 498 (1971). After ruling that “the reading into [subsection 1305(a) ] of the time limits required by Freedman is fully consistent with its legislative purpose,” Thirty-Seven Photographs, 402 U.S. at 370, 91 S.Ct. 1400, the Court imposed a 14-day limit on the initiation of judicial proceedings and a 60-day limit on their completion, see id. at 373-74, 91 S.Ct. 1400. 11

More recently, the Court encountered another statutory revision issue in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). After ruling in its remedy opinion that the Court’s constitutionally required invalidation of the mandatory nature of the Sentencing Guidelines required excision of 18 U.S.C. § 3742(e), the judicial review provision of the Sentencing Reform Act, see Booker, 543 U.S. at 258-60, 125 S.Ct. 738, the Court considered whether to “infer,” id. at 260, 125 S.Ct. 738, primarily from other statutes, a judicially created standard of review. The Court did so, selecting, based on “related statutory language, the structure of the statute, and the sound administration of justice,” id. at 260-61, 125 S.Ct. 738 (internal quotation marks omitted), “a reasonableness standard of review,” id. at 262, 125 S.Ct. 738 (internal quotation marks omitted).

Our Court has also revised statutory provisions to avoid or overcome constitutional defects. In Lee v. Thornton, 538 F.2d 27 (2d Cir.1976), after invalidating provisions for seizure of vehicles for lack of procedural due process, see id. at 32-33, we required action on petitions for mitiga *873 tion or remission within 24 hours and required a probable cause hearing within 72 hours, see id. at 33. In United States v. Monsanto, 924 F.2d 1186 (2d Cir.1991) (in banc), we inserted into a post-indictment hearing procedure a requirement for reconsideration of probable cause in connection with a restraint on pretrial disposition of assets. See id. at 1198-1202. See generally Eubanks v. Wilkinson, 937 F.2d 1118, 1122-25 (6th Cir.1991) (collecting cases where courts have either revised or declined to revise statutory language).

Closely related to the issue of whether a court should revise a statute to avoid or overcome a constitutional defect is the issue of whether to sever the unconstitutional portion of a statute or invalidate an entire statute or even an entire statutory scheme. In general, the choice, as stated by the Supreme Court, depends on whether “the legislature [would] have preferred what is left of its statute to no statute at all.” Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320, 330, 126 S.Ct. 961, 163 L.Ed.2d 812 (2006). The Court has also cautioned that “[unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.” Buckley v. Valeo, 424 U.S. 1, 108, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (internal quotation marks omitted).

The Court recently applied this approach to severance in Booker. After ruling that the mandatory nature of the Sentencing Guidelines was unconstitutional, the Court had to consider whether to invalidate the entire Guidelines system or to excise two provisions, 18 U.S.C. §§ 3553(b)(1) and 3742(e), and leave the remainder of the Sentencing Reform Act intact. See Booker, 543 U.S. at 258, 125 S.Ct. 738. Concluding that Congress would have wanted to maintain the Sentencing Guidelines even if they were advisory, rather than mandatory, the Court elected to excise subsections 3553(b)(1) and 3742(e). See id.

II. The Parties’ Contentions

With these principles in mind, we turn to the parties’ basic contentions. From the Plaintiffs’ standpoint, the nondisclosure requirement of subsection 2709(c) is a straightforward content-based prior restraint that must be tested against all the substantive and procedural limitations applicable to such an impairment of expression. In their view, the nondisclosure requirement is content-based because it proscribes disclosure of the entire category of speech concerning the fact and details of the issuance of an NSL, see Consolidated Edison Co. of New York v. Public Service Commission, 447 U.S. 530, 537, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980), and it is a prior restraint in the literal sense that it is imposed before an NSL recipient has an opportunity to speak, see Alexander, 509 U.S. at 550, 113 S.Ct. 2766. From these premises, the Plaintiffs conclude that subsection 2709(c) is unconstitutional under strict scrutiny review because it prohibits disclosure in circumstances not marrowly tailored to a compelling governmental interest and operates as a licensing scheme without the procedural requirement of placing on the Government the burden of initiating judicial review and sustaining a burden of proof. The Plaintiffs also challenge subsection 3511(b) on the grounds that (1) the judicial review provisions do not require the Government to initiate judicial review and to sustain a burden of proof and (2) certification of certain risks by senior governmental officials is entitled to a conclusive presumption (absent bad faith). These aspects of subsection *874 3511(b) are alleged to violate First Amendment procedural standards and the separation of powers.

The Government responds that, to whatever extent the nondisclosure requirement can be considered a content-based prior restraint, it is subj