Case: In re National Security Letter (3 cases)

3:11-cv-02173 | U.S. District Court for the Northern District of California

Filed Date: May 2, 2011

Clearinghouse coding complete

Case Summary

For the complete Civil Rights Litigation Clearinghouse collection of FISA Matters, see our special collection.This case involves a dispute over administrative subpoenas known as National Security Letters (NSLs). In 1986, Congress empowered the FBI to issue NSLs as part of authorized investigations to protect against international terrorism and clandestine intelligence activities. NSLs are directed to electronic communications service providers in order to obtain specified limited information; t…

For the complete Civil Rights Litigation Clearinghouse collection of FISA Matters, see our special collection.


This case involves a dispute over administrative subpoenas known as National Security Letters (NSLs). In 1986, Congress empowered the FBI to issue NSLs as part of authorized investigations to protect against international terrorism and clandestine intelligence activities. NSLs are directed to electronic communications service providers in order to obtain specified limited information; they are not used to obtain the content of communications. Because of national security interests, the NSL statute imposes a nondisclosure obligation on the NSL recipient. In 2006, Congress revised the nondisclosure provisions in order to avoid unnecessary disclosure restrictions: the nondisclosure requirement no longer applied automatically, and Congress provided a specific statutory mechanism for judicial review of a nondisclosure requirement itself, separate from review of the NSL.

In 2011, the FBI issued a National Security Letter (NSL) to an unnamed electronic communication service provider, seeking certain subscriber information. By certifying that the disclosure of the existence of the NSL may result in "a danger to the national security of the United States," the federal government could prohibit the provider from disclosing the existence of the NSL. This entry describes the lawsuits between the recipient and government that arose from this NSL and subsequent NSLs issued to the same recipient.

In early 2011, the NSL recipient filed this lawsuit in the U.S. District Court for the Northern District of California to set aside the NSL under 18 U.S.C. § 3511. The recipient, represented by the Electronic Frontier Foundation, asked the court for declaratory and injunctive relief, claiming that the nondisclosure provision in the NSL Statute (18 U.S.C. § 2709) violated the First Amendment. More specifically, the recipient argued that the nondisclosure provision of the statute was an unconstitutional prior restraint and content-based restriction on speech, both on its face and as applied.

The federal government opposed the petition and filed a motion to compel the recipient to comply with the NSL. The government also filed a separate lawsuit seeking a declaration that the recipient was required to comply with the NSL on June 3, 2011 (No. 11-2667). We have an incomplete docket for the government's declaratory judgment action and no docket for the original case—it's entirely under seal.

On March 14, 2013, U.S. District Judge Susan Illston granted the petition to set aside the NSL, declaring that 18 U.S.C. § 2709 on its face violated the First Amendment. She noted that § 2709 allowed the government to suppress speech without initiating prompt judicial proceedings and determined that the law was not narrowly tailored because it prevented NSL recipients from disclosing not just the content of NSLs but also their very existence. So, she enjoined the government from issuing additional NSLs or enforcing § 2709's nondisclosure provision in any case. 930 F. Supp. 2d 1064.

The government appealed, and the district court stayed proceedings during the appeal on August 7, 2013.

Despite the court's March 14 order, the government issued two new NSLs to the recipient of the original NSL. The recipient filed another lawsuit to challenge the new NSLs (No. 13-80089). On August 12, 2013, Judge Illston refused to set aside the new NSLs pending the appeal because they included procedural safeguards. For example, the FBI notified the recipient that judicial review was available and agreed to produce upon challenge evidence of a "good reason" that nondisclosure was required to protect against terrorism.

Around the same time, other electronic communication service providers began to challenge NSLs. For more information on these cases, see here.

Before the Ninth Circuit could decide the appeal in this case, Congress amended both 18 U.S.C. § 2709 and 18 U.S.C. § 3511 as part of the USA FREEDOM Act on June 2, 2015. In light of the significant changes to the statutes, the Ninth Circuit vacated Judge Illston's order and remanded the case on August 24, 2015.

On March 19, 2016, Judge Illston found that Congress's revisions cured the NSL process's constitutional defects. The revised § 2709 allowed NSL recipients to require the government to seek judicial review of nondisclosure requirements, and the revised § 3511 required courts to "rule expeditiously" when reviewing NSL nondisclosure requirements. Moreover, the government would bear the burden of proof in the subsequent proceedings and had to provide specific facts to support a claim that disclosure could cause harm. Finally, the new § 3511 allowed the FBI and courts to authorize limited disclosures, which showed that the statute was narrowly tailored.

The court then analyzed whether nondisclosure was appropriate for the challenged NSLs. It found that the government adequately supported nondisclosure in case 11-2173 but not 13-80089, and it stayed its ruling pending appeal. The government then voluntarily lifted the nondisclosure requirement in case 11-2173. As a result, the recipient was able to reveal itself as CREDO Mobile. (Information about specific customer accounts remained undisclosed in all cases.)

The Ninth Circuit (Judges Sandra S. Ikuta, N. Randy Smith, and Mary H. Murguia) affirmed the district court's decision on July 17, 2017. The court found that § 2709's nondisclosure requirement was content based, applied strict scrutiny, and upheld the restrictions because § 2709 required the government to establish a reasonable likelihood that harm would result from disclosure on a case-by-case basis. The court then questioned whether § 2709 was a prior restraint but concluded, assuming it was, that the law passed muster because it provided quick judicial review. 863 F.3d 1110.

The Clearinghouse does not know if CREDO Mobile continues to seek disclosure of those parts of the NSLs that have not already been made public.

Summary Authors

Michael Mirdamadi (11/11/2013)

Edward Mroczkowski (4/20/2015)

John He (3/2/2016)

Anna Belkin (11/27/2018)

Timothy Leake (3/9/2021)

Related Cases

In re: National Security Letter, Under Seal v. Holder (Sealed), Northern District of California (2013)

People


Judge(s)

Bressler, Steven Y. (District of Columbia)

Goldberg, Arthur Robert (District of Columbia)

Haag, Melinda (District of Columbia)

Ikuta, Sandra Segal (California)

Illston, Susan Yvonne (California)

West, Tony (District of Columbia)

Attorneys(s) for Plaintiff

Cohn, Cindy A. (California)

Davis, Edward J. (New York)

Delery, Stuart F. (District of Columbia)

Dyer, Aaron S. (California)

Judge(s)

Bressler, Steven Y. (District of Columbia)

Goldberg, Arthur Robert (District of Columbia)

Haag, Melinda (District of Columbia)

Ikuta, Sandra Segal (California)

Illston, Susan Yvonne (California)

West, Tony (District of Columbia)

Attorneys(s) for Plaintiff

Cohn, Cindy A. (California)

Davis, Edward J. (New York)

Delery, Stuart F. (District of Columbia)

Dyer, Aaron S. (California)

Hofmann, Marcia (California)

Koonce, Lacy H. III (New York)

Letter, Douglas (District of Columbia)

McIntosh, Scott R. (District of Columbia)

Steinman, Linda Jane (New York)

Tien, Lee (California)

Zimmerman, Matthew (California)

Attorneys(s) for Defendant

Allen, Katherine T. (District of Columbia)

Levy, Jonathan H. (District of Columbia)

Mizer, Benjamin C. (District of Columbia)

Other Attorney(s)

Ard, B.J. (Connecticut)

Borg, Jennifer (New Jersey)

Brandi, Dianne (New York)

Brown, Bruce D. (Virginia)

Burke, Thomas R. (California)

Butler, Alan (District of Columbia)

Chadwick, James M. (California)

Chen, Michael (California)

Clark, Kalea Seitz (District of Columbia)

Ewert, Jim (California)

Feder, Eric Joel (New York)

Ghappour, Ahmed (Texas)

Gidari, Albert (Washington)

Husband, David (District of Columbia)

Kennedy, John B. (District of Columbia)

Kirby, Kathleen (District of Columbia)

Leary, Denise (District of Columbia)

Leslie, Gregg P (Virginia)

Lewis, Greg (District of Columbia)

Malone, Phillip R. (California)

Manes, Jonathan (Connecticut)

Matteo-Boehm, Rachel (California)

McCraw, David E (New York)

McLaughlin, James A. (District of Columbia)

Messenger, Ashley (District of Columbia)

Miller, Eric David (District of Columbia)

Morgan-Prager, Karole (California)

Osterreicher, Mickey H. (New York)

Rotenberg, Marc (District of Columbia)

Scheer, Peter E. (California)

Schraibman, Sandra M. (District of Columbia)

Schuman, Jamie T. (Virginia)

Strumwasser, Michael (California)

Syed, Nabiha (Connecticut)

Volokh, Eugene (California)

Wall, Barbara W. (Virginia)

Warren, Emily (California)

Wong, Adrienna (California)

Yu, Rachel (California)

Zwillinger, Marc J. (District of Columbia)

Documents in the Clearinghouse

Document

3:11-cv-02667

Docket

United States Department of Justice v. UNDER SEAL

Oct. 12, 2011

Oct. 12, 2011

Docket

3:11-cv-02173

Petition of Plaintiff to Set Aside National Security Letter and Nondisclosure Requirement Imposed in Connection Therewith; Memorandum of Points and Authorities

In Re Matter of National Security Letter

May 2, 2011

May 2, 2011

Pleading / Motion / Brief

3:11-cv-02173

Petition of Plaintiff to Set Aside National Security Letter and Nondisclosure Requirement Imposed in Connection Therewith; Memorandum of Points and Authorities

In Re Matter of National Security Letter

May 2, 2011

May 2, 2011

Pleading / Motion / Brief

3:11-cv-02173

Memorandum of Points and Authorities in Support of Petition of Plaintiff to Set Aside National Security Letter and Nondisclosure Requirement Imposed in Connection Herein

In Re Matter of National Security Letter

May 2, 2011

May 2, 2011

Pleading / Motion / Brief
1

3:11-cv-02667

Complaint for Injunctive and Declaratory Relief

The United States Department of Justice vs. UNDER SEAL

June 2, 2011

June 2, 2011

Complaint

3:11-cv-02173

Memorandum in Opposition to Petition to Set Aside National Security Letter

In Re Matter of National Security Letter

July 22, 2011

July 22, 2011

Pleading / Motion / Brief
9

3:11-cv-02173

Memorandum in Support of Motion to Compel Compliance with National Security Letter Request for Information

In Re National Security Letter

July 29, 2011

July 29, 2011

Pleading / Motion / Brief

3:11-cv-02173

Order Granting Motion to Set Aside NSL Letter

In re National Security Letter

930 F.Supp.2d 1064

March 14, 2013

March 14, 2013

Order/Opinion

3:11-cv-02667

Stipulation and [Proposed] Order Regarding Defendant's Responsive Pleasing - Filed Under Seal Pursuant to the Court's Order Dated July 8, 2011

United States Department of Justice v. Working Assets Funding Service./Credo Mobile Inc.

April 15, 2013

April 15, 2013

Pleading / Motion / Brief

3:11-cv-02667

First Amended Complaint

United States Department of Justice v. Under Seal

April 18, 2013

April 18, 2013

Complaint

Docket

Last updated Aug. 26, 2022, 3:22 a.m.

ECF Number Description Date Link Date / Link
1

COMPLAINT for Injunctive &Declaratory Relief − [No Summons Issued] against UNDER SEAL [Filing Fee: Waived/Government] Filed by The United States Department of Justice.(tnS) (Filed on 6/3/2011) (mjj2S, COURT STAFF). Modified on 7/18/2011 (mjj2S, COURT STAFF). (Entered: 06/03/2011)

June 3, 2011

June 3, 2011

Clearinghouse
2

*SEALED* ADR SCHEDULING ORDER: Joint Case Management Statement due 9/13/2011 &Initial Case Management Conference set for 9/20/2011 at 10:00 AM.. (tnS) (Filed on 6/3/2011) (Entered: 06/03/2011)

June 3, 2011

June 3, 2011

3

*SEALED* UNOPPOSED ADMINISTRATIVE MOTION to File Complaint Under Seal filed by The United States Department of Justice. (tnS) (Filed on 6/3/2011) (Entered: 06/03/2011)

June 3, 2011

June 3, 2011

4

*SEALED* ORDER Signed by Judge Richard Seeborg granting re 3 Unopposed Administrative Motion to File Complaint Under Seal. (tnS) (Filed on 6/3/2011) (Entered: 06/03/2011)

June 3, 2011

June 3, 2011

5

*SEALED* ORDER RELATING CASE., Related cases: Create association to 3:11−cv−02173−SI *SEALED*.. Signed by Judge Susan Illston on 6/21/2011. (mjj2S, COURT STAFF) (Filed on 6/22/2011) (Entered: 06/29/2011)

June 22, 2011

June 22, 2011

6

*SEALED* Unopposed Administrative MOTION to Partially Unseal the Complaint filed by The United States Department of Justice. (mjj2S, COURT STAFF) (Filed on 7/1/2011) (Entered: 07/01/2011)

July 1, 2011

July 1, 2011

7

*SEALED* Proposed Order re 6 Unopposed Administrative MOTION to Partially Unseal the Complaint by The United States Department of Justice. (mjj2S, COURT STAFF) (Filed on 7/1/2011) (Entered: 07/01/2011)

July 1, 2011

July 1, 2011

8

*SEALED* Order by Hon. Susan Illston granting 6 Motion to Partially Unseal the Complaint. (mjj2S, COURT STAFF) (Filed on 7/12/2011) (Entered: 07/18/2011)

July 12, 2011

July 12, 2011

9

*SEALED* STIPULATION AND ORDER: Defendant's answer or other response to the Complaint be due on or before 10/14/11. Plaintiff reserves its right to seek appropriate relief pursuant to 18 U.S.Clss3511(c) and/or the Federal Rules of Civil Procedure at any time. Signed by Judge Susan Illston on 7/27/11. (ysS, COURT STAFF) (Filed on 7/28/2011) (Entered: 07/28/2011)

July 28, 2011

July 28, 2011

Clearinghouse
10

CLERKS NOTICE: Case Management Conference before Magistrate Judge Laporte set for September 20, 2011 has been taken off calendar as this case is to be heard before Judge Illston. (ysS, COURT STAFF) (Filed on 9/15/2011) (Entered: 09/15/2011)

Sept. 15, 2011

Sept. 15, 2011

11

CLERKS NOTICE Initial Case Management Conference set for 10/14/2011 02:30 PM. (tf, COURT STAFF) (Filed on 9/20/2011) (Entered: 09/20/2011)

Sept. 20, 2011

Sept. 20, 2011

12

CORRECT CLERKS NOTICE (Attachments: # 1 Standing Order) (tf, COURT STAFF) (Filed on 9/20/2011) (Entered: 09/20/2011)

Sept. 20, 2011

Sept. 20, 2011

13

*SEALED* Certificate of Interested Entities by UNDER SEAL identifying UNDER SEAL for UNDER SEAL. (ys, COURT STAFF) (Filed on 10/2/2011) Modified on 10/5/2011 (ysS, COURT STAFF). (Entered: 10/05/2011)

Oct. 2, 2011

Oct. 2, 2011

14

*SEALED* CERTIFICATE OF SERVICE by UNDER SEAL re 13 Certificate of Interested Entities (ys, COURT STAFF) (Filed on 10/2/2011) (Entered: 10/05/2011)

Oct. 2, 2011

Oct. 2, 2011

15

*SEALED* STIPULATION AND ORDER regarding Initial Disclosures. Signed by Judge Susan Illston on 10/3/11. (ysS, COURT STAFF) (Filed on 10/4/2011) Modified on 10/11/2011 (ysS, COURT STAFF). (Entered: 10/11/2011)

Oct. 4, 2011

Oct. 4, 2011

16

*SEALED* STIPULATION AND ORDER regarding defendant's responsive pleading. Signed by Judge Susan Illston on 10/3/11. (ysS, COURT STAFF) (Filed on 10/4/2011) (Entered: 10/11/2011)

Oct. 4, 2011

Oct. 4, 2011

17

*SEALED* CLERKS NOTICE Initial Case Management Conference set for 11/18/2011 02:30 PM in Courtroom 10, 19th Floor, San Francisco. (ysS, COURT STAFF) (Filed on 10/12/2011) (Entered: 10/12/2011)

Oct. 12, 2011

Oct. 12, 2011

18

*SEALED* JOINT CASE MANAGEMENT CONFERENCE STATEMENT filed by UNDER SEAL. (ysS, COURT STAFF) (Filed on 10/12/2011) (Entered: 10/14/2011)

Oct. 12, 2011

Oct. 12, 2011

Case Details

State / Territory: California

Case Type(s):

National Security

Special Collection(s):

Multi-LexSum (in sample)

Key Dates

Filing Date: May 2, 2011

Case Ongoing: No reason to think so

Plaintiffs

Plaintiff Description:

An electronic communication service provider eventually revealed to be CREDO Mobile

Plaintiff Type(s):

Private Plaintiff

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Defendants

Department of Justice, Federal

Defendant Type(s):

Law-enforcement

Case Details

Causes of Action:

Declaratory Judgment Act, 28 U.S.C. § 2201

Constitutional Clause(s):

Freedom of speech/association

Special Case Type(s):

Warrant or subpoena application

Availably Documents:

Trial Court Docket

Complaint (any)

Injunctive (or Injunctive-like) Relief

Non-settlement Outcome

Any published opinion

Outcome

Prevailing Party: Plaintiff

Source of Relief:

Litigation

Issues

General:

Access to lawyers or judicial system

Confidentiality

Courts

Record-keeping

Records Disclosure

Terrorism/Post 9-11 issues