Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 1 of 35 UNITED STATES DISTRICT COURT SOUT~ DISTRICT OF N'ZW YORK -----------------------------------x NICHOLAS MERR!l1L, 14-CV-9763 Plaintiff, (VM) DECISION AND ORD!:R - against LORETTA E. LYNCH, in her official Capacity as Attorney General of The united States, and JAMES B. COMEY, in his official capacity as Director of the Federal Bureau of Investigation, Defendants. -----------------------------------x VICTOR MARRERO, United States District Judge. Plaintiff seeking Lynch, Nicholas injunctive Merrill relief ("Merrill") against O:i.rector of (collectively, 1 Loretta E. Merrill's 56 or motion of the Federal in his official capacity Bureau of Investigation "Defendants• or "the Government").> (Dkt. No. ("Complaint• Rule defendants suit in her official capacity as Attorney General of the United States, and James B. Corney, as brought the "Compl. •).) for summary Federal Rules Now before judgment, of Civil made the Court is pursuant to Procedure ("Rule 1 The Court notes that, at the time Merrill initiated this litigation, t:ric Holder, Jc sexved as the Attorney G<11neral of the United St;ates, and in that official (.;apacity, was a naimed defendant. ?ursuant. to Federal Rule of civil Procedure 25 (d), the Court substitutes t.oretta E. t.ynch for Eric Holder, Jr. Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 2 of 35 56")' seeking requirement that an imposed by a order to National lift a non-disclosure Security Letter from the Federal Bureau of Investigation (the "FBI") Nos. 16, 17.) The Government opposes Merrill's ( "NSL") (Dkt. summary judgment motion, and also moves to dismiss the Complaint or for summary judgment. (Dkt. Nos. 24, 25.) I. In 2004, of BACKGROUND' Nicholas Merril 1 was the owner and operator Calyx Internet Access ("Calyx" l , a now-defunct company that provided a number of internet services to its clients, including an interface for maintaining their own websites, 2 The tactual uurnmary presented herein derives from the following documents: Complaint, tiled Dec. 11, 2011, Dkt. No. l; Plaintiff's Memorandum of Law in Support of its Motion for Summary Judgment, dated Mar. 10, 2015, Dkt. No. 16 ("Pl. Mem."l; PlaintiH'e Rule 56.: Statement, dated Mar. 10, 2015, Dl in effect then (and now under the USA FREEDOM Act of 2015, Stat. the 268). administrative and toll communication electronic requesting records L. No. 114-23, 129 a NSLS, type "subscriber information, transactional service Initially, (l) subpoena billing issue can FBI Pub. records" provider. of information or electronic from a u.s.c. s wire or 2709 (a). the 2004 NSL prohibited Merrill from disclosing: that he was the recipient of an NSL, {2) the identity of the target of the underlying investigation, and (3) the contents of both the 2004 NSL and the Attachment. The Court AshcrofJ::, Doe l, ex01mined the 2004 334 F. Supp. 2d 471 (S.D.N.Y. the Section 2709 1 first Court found an earlier ("Section 2709"), NSL 2004) version in Doe v. ("Doe I"). In of 18 u. s. c. which provides the statutory 'rhe relevant statutory provieionti regarding NSLa were amended by The USA Patriot Improvement and Reauthorization Act ot 2005, SS 115, ll.6(al, Pub. L. No. 10~-177, 120 Stat. 192, 211-14 (Mar. 9, 2006) ("the Reauthorization .i>.ct•), and the USJ\ racrioi; Act Addit;ional Reauthorizing .i>.mendment.s Act ot 2006, 5 4 (bl, Pub. L. No. 109-178, 120 Stat. 278, 280 (Mar. 9, 2006) ("Additional Reauthorization Act•). - 3 - Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 4 of 35 FBI the for authorization unconstitutional on its face, Further, section requirement 2'709 nondisclosure to NSLs, issue to be the Court found the unconstitutional under the First Amendment as an unjustified prior restraint and content-based appealed to the second Circuit, amended restr.iction United on States Court The of Government Appeals for and while the appeal was pending, Section 2709 to include prohibit disclosure of an NSL, disclosure may result danger the national to speech. interference with a requirement the must FBI of criminal, a investigation, diplomatic relations, or safety of any person." 18 that, i.e., United interference to u.s.c. the life "a or with or physical 2709(c) (1). § to States, counterterrcrism, counterintelligence danger the Congress certify that in an enumerated harm security the congress also enacted a section providing for judicial review of an NSL request or related non disclosure requirement. O.S.C. See 18 3511 ("Section 3511"). The second Circuit remanded to this Court for further consideration in light of these § amendments, See Doe v. Gonzales, 449 F.Jd 415 (2d Cir. 2006). On remand, (S.D.N.Y. 2007) in Doe v. ("P~.--I.!"), Gonzales, 500 F. supp. 2d 379 the Court again found Sections - 4 - Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 5 of 35 2709(c) and 35ll(b) unconstitutional on their face. The court ruled that the nondisclosure requirement violated the First Amendment because scope or duration. it was Further, not narrowly the court found tailored the in judicial review provision violated the constitutional principles of checks and balances, as well as separation of powers. ~' The Government appealed affirmed in part and Mukasey, 54 9 F. 3d 861 reversed and the Second Circuit in part. (2d Cir. 2008) . See John Doe v. The second Circuit invalidated two primary aspects of sections 2709 and 3511: (1) that FBI certification of certain risks is entitled to a conclusive presumption (absent bad faith) and (2) judicial the failure review. to See provide id. at for by the courts; Government-initiated 884. The Circuit Court construed the remaining parts of Sections 2709 and 3511 to provide certain procedural safeguards (as discussed infE!l), and held that, with those safeguards, See~ sections were constitutional. The second determine reading provided, Circuit whether, of the in then the statute and the of statutory at 883-85. remanded light those to the this Court Circuit procedural to Court's guidance it the non-disclosure requirement was constitutional as-applied to the NSL issued to Merrill. On remand, - 5 - in Doe Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 6 of 35 v. Holder, 665 F. Supp. 2d 426 (S.D.N.Y. 2009) ("Doe III"), the Court found the Mukasey standard satisfied. held that ~good a reason" existed to The court believe that "disclosure may result in a harm related to an authorized ongoing investigation to protect against international terrorism or clandestine intelligence activities," and that the "link between disclosure ~at substantial." Following Doe and the risk of harm [was] 432. _.!_g, Merrill moved for partial reconsideration of Doe III as it applied to the Attachment. See Doe v. Holder, 703 F. Supp. 2d 313 (S.D.N.Y. 2010) ( "J::)C)e IV" l . The Court granted the motion in part and denied it in Court part, found ordering that certain information two categories of the Attachment should be disclosed: disclosed. The material contained in (1) material within the scope of what the NSL statute identifies as permissible for the FBI to obtain through the use of NSLs, and (2) material that the FBI has publicly acknowledged requested by means of NSLs. ~ee ~ it at 316. has previously The Court was •not persuaded that disclosure of these two categories of information would raise a substantial risk that any of the statutorily enumerated harms would occur.• ~ As to the rest of the Attachment, the Court found that the Government - 6 Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 7 of 35 had demonstrated a "reasonable likelihood that of in the Attachment targets of particular ite entirety law enforcement target of could disclosure inform investigations, current including the Government's ongoing the inquiry in this action, as well as, potentially future targets, as to certain types of records and other materials the Government seeks through NSLs." Id. otherwise national at 317. security In so investigations finding, the Court innocuous bits and pieces of data, together, could inform current and employing noted that when pieced potentially future targets of the investigation as to the types of records and other materials sought by the government. After the Court poe __"I:y_, decided Merril 1 and the Government reached an agreement under which Merrill could identify himself Ashcroft, No. as the 04-cv-2614 recipient (S.D.N.Y.), of the Dkt. NSL. No. (Doe 204 ("July 30, 2010 Stip. and Order of Dismissal").) And in 2014, parties reached an agreement that discuss most aspects of the NSL, its target, but he could ~O.~ Merrill could v. the freely including the identity of discuss the Attachment identifying certain types of records the FBI sought, except for those disclosure portions in Doe IV. of the Attachment (Doe__ ~~E.!!9!9.ft, - 7 - identified No. for 04-cv-2614 Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 8 of 35 {S.D.N.Y.). Okt. No. 227 ("April 15, 2014 Stip. and Order Mod. J.").) Shortly filed the thereafter, Complaint Merrill filed allowed NSL his against recipients 9, 18 11, 2014, the Government. instant requirements annually.• Mar. December on Section action, u.s.c. § the time 3511 {b) (3) non-disclosure challenge to At Merrill 3Sll{b) (3) (in effect 2006 - June 1, 2015). As such, Merrill's Complaint proceeds as a separate action from Q9-~. !. and its progeny. At issue in this litigation is whether the Government can continue to prohibit disclosure of the redacted Attachment under Sections 2907 and 3511 (as amended on June 2, the 2015). Merrill asserts three causes of action: non-disclosure Attachment is a speech" order discussion order is the First Amendment; not justified under because the Government cannot establish a believe that of the Hpermanent or effectively permanent ban on prohibited by nondisclosure prohibiting (1) that disclosure may result (2) that Section the 3511 "good reason• to in an enumerated harm related to an authorized investigation to protect against international terrorism or clandestine intelligence • Ae amended, Section 3511 no longer requires an NSL recipient who uneuccessfully challenged a nondisclosure requirement to wait a year or more before again seeking judicial relief. (~ Gov't Reply Mem. J.) - a - Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 9 of 35 activities; once and NSL an (3) that, recipient under has sections been 2709 permitted and to 3511, identify himself, to identify the target of the NSL, and to disclose the outcome of the NSL, then the FBI cannot continue a nondisclosure Merrill order argues contribute regards that to "electronic as he public other seeks as to transaction NSL. of the in order to the types of that the disclosure discussion communications aspects records" FBI has sought and continues to seek through NSLs. For the reasons discussed below, the Government has not the court finds that satisfied its burden of demonstrating a •good reason" to expect that disclosure of the NSL Attachment in its entirety will risk an enumerated harm, pursuant to Sections 2709 and 3511. Therefore, Merrill's motion for summary judgment is GRANTED, and the Government's cross-motion to dismiss the complaint or, in the alternative, for summary judgment is DENIED. II. OISCUSSigN A. STANDARD OF REVIEW Merrill Rule 56. has moved and the for summary Government has judgment, cross-moved pursuant to dismiss, pursuant to Federal Rule of Civil Procedure l2(b)(6) l2(b)(6)"), or in the alternative - 9 - for to summary ("Rule judgment, Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 10 of 35 pursuant to Rule 56. In considering a motion to dismiss, the Court may rely on the factual allegations set forth in the complaint itself and not on additional matters asserted in affidavits, exhibits conjunction with York:, the or motion. other papers See !"_riedl submitted v. City of in New 210 F.3d 79, 83-84 (2d Cir. 2000). Because both sides have submitted substantive declarations or other materials not included in the Complaint, the Court considers the Government's motion as one for summary judgment. The Court may grant summary judgment only if it finds that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The role of a court in ruling on such a motion "is not to resolve disputed issues of but to assess whether there are any factual tried, issues to be while resolving ambiguities and drawing reasonable inferences against the States Fire Ins. Co., moving party." 804 F.2d 9, moving party bears the burden of issue of material paucity fact of fact evidence exists (2d Cir. proving that or that presented rational factfinder could find 11 Knight by by the v. United 1986). The no genuine reason of the non-movant, no in favor of the non-moving - 10 - Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 11 of 35 party. See Gallo v. Prudential Residential Serva., 22 F.3d 1219, 1223 (2d Cir. 1994). B. NON-DISCLOSURE ORDERS UNDER sicTIONS 2709 AND 3511 On June 2, 2015, Congress enacted the USA FREEDOM Act, which, among other statutory changes, revises Sections 2709 and 3511. The Government has indicated its belief that these changes to Sections 2709 and 3511 "ratify and codify the Second Circuit's decision in Mem. at 2.) [Mukasey]." (Gov• t The Government notes that the House Committee Report explicitly indicated that the revisions 3511 Reply ~correct[ to Section ) the constitutional defects in the issuance of NSL nondisclosure orders found [in Mukasey] and adopts the concepts suggested by that court for a constitutionally sound process." (Gov't Reply Mem. at 2 n.2 {quoting H. Rep. No. 114-109, at 24 (2015)) .) In Mukasey, Second Circuit disclosure because of disagreement on the panel, left orders open were less-exacting scrutiny. 5 either of level the question subject ~ scrutiny, to 549 whether strict F.3d however, at the NSL scrutiny 877-78. Second the nonor a Under Circuit • The second Circuit did note that, for purposes of the specific litigation before it in Mukasey, the Oovei:nment •conceded that strict scrutiny is the applicable standard.• 549 .F.Jd at 878. Here, too, the Government has conceded that the "high, indleed strict, scrutiny applied by [Mukaaeyl controls this case.• IGov•t He•. at 11.) - 11 - Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 12 of 35 identified two limitations required by the First Amendment: (l) the Government must disclosure requirements non-disclosure initiate if an requirement j1.1dicial review of non- individual so this that, (1) second limitation, the and requests, judicial review must be meaningful. to subject See second ~ the Government has the burden to (2) reason exists to expect that (3) an NSL will risk an enumerated harm.'~~ the that at 878-83. As Circuit to satisfy First Amendment procedural (2) to indicated requirements, show that a good disclosure of receipt of at 881. First, by placing the burden on the government to show a good reason, a district court does not have to •find a negative, that no good reason exists to believe that i.e., disclosure may risk one of the enumerated harms." Id. at 876. Second, as to the ''good reason" requirement: [A) reason will not qualify as 'good' if it surmounts only a standard of frivolous.,ess. We understand the statutory requirement of a f i•ding that an enumerated harm •may result' to mean more than a conceivable ' When Mukasey was decided, Section 3511 provided that a court could modify or set aside a nondisclosure requirement if it found •no reason to believe that disclosure may endanger ~he national security Of the United St•tes, interfere with a critinal, counterterrorism, or counterintelligence investigation, interfe~e with diplomatic relations, or endanger the life or physical safety .of any person.• 18 u.s.c. 5 3Sll(b)(2)-(3) (in effect Mar. 9, 2006 - June l, 2015) (emphash added). At that time, under Section 3511, a court was also to treat an official certification of that danger as •conclusive• absent a finding of bad faith. This version of the statute remained in effect -- except in the Second Circuit aa modified by Mulfaaey - - until June 2, 2015, when the USA FREEDOM Act took effect, - 12 - Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 13 of 35 possibility. The upholding of nondisclosure does not require the certainty, or even' the imminence of, an enumerated harm, but some reasbna:ble likelihood must be shown. The Government aclmo1!1ledges that while the "reason to believe" standard in subsection 3511 (l:>) unquestionably contemplates a qeferential standard of review, in no way does it f¢reclose a court from evaluating the reasonal:>leness of the FBI's judgments. ±..9..:. at 875. The Second Circuit then addressed whether courts could be required to apply a conclusive presumption (absent bad faith) to the FBI certification: While the court will normally defer to the Government's considered assessment of ~ disclosure in a particular case may result in an enumerated harm related to such grave matters as international terrorism or clandestine intelligence activities, it cannot, consistent with striQt scrutiny standards, uphold a nondisclosure requirement on a conclusory assurance that such a likelihood e~ists. Id. at 881. Instead, the Government must "at least indicate the nature of the apprehended harm and provide a court with some basis to assure itself that the link between disclosure and the risk of harm is substantial.• ££.:_ at 881 (emphasis added) . Finally, as Circuit stated to that the the third "keyed to the information sought by an investigation the Second statutorily enumerated harms necessarily authorized requirement, same NSL, standard i.e., relevant to protect against - 13 - that are governs to an international Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 14 of 35 terrorism or clandestine intelligence activities." Id. at 875. The sections of the OSA FREEDOM Act amending Sections 2709 and 3511 incorporate portions of Mukasey's holding and reasoning. As section 2709, four in earlier versions of the statute, under the government may reqtiire non-disclosure for statutorily enumerated reasons, with certification i f disclosure could implicate from an FBI official: (ll danger to the national security of the Oni ted States; a with interference counterintelligence criminal, investigation; ( 2) counterterrorism, (3) a or interference with diplomatic relations; or (4) danger to the life or physical safety of any person. Section 2709 now 18 U.S.C. also § provides 2709(c) (1) (B). that an However, NSL or a nondisclosure requirement accompanying an NSL is subject to judicial review under Section 3511, and that an NSL must include notice of the availability of u.s.c. § judicial review. 18 2709(d). Most relevant to the issue at hand, the USA FREEDOM Act made significant changes to Section 3511, the statutory provision governing version of procedure" section judicial review of 3511 (see Mukasey, includes 549 a F.3d at - 14 - NSLs. The ~reciprocal 879) current notice providing for Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 15 of 35 government-initiated review of a non-disclosure requirement after notice by the recipient of non-disclosure requirement. 18 intent to challenge u.s.c. § the 35ll(b) (l) (A). And no longer does Section 3511 state that courts are to give a conclusive presumption, absent bad faith, to the official's certification. Now, under Section 3511: Standard. -- A district court of the United States shall issue a nondisclosure order if the court determines that there is re~son to believe that disclosure of the information subject to the nondisclosure requirement during the applicable time period may result in (A) (B) (C) (D) 18 u.s.c. a danger to the national security of the United States; interference with a criminal, counterterrorism, or counterintelligence investigation; interference with diplomatic relations; or danger to the life or physical safety of any person. § 351l(b) (3). The Court agrees with the Government that, at least as concerns the relevant statutory provisions for the case at hand, the amended Sections 2709 and 3511 codify the Mukasey standard requirement for judicial i.e., review of a non-disclosure that the Government has the burden to show that a good reason exists to expect that disclosure of receipt of an NSL will risk an enumerated harm.' Therefore, ' The Government argues that • [u) ltimatel.y. the question under [the amended Sec:tionl 270~ (C:) and [Muka&eyl is, whether the government ha& - 15 - Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 16 of 35 the court will now turn to the application of the Mukasey standard, as reflected in Sections 2709 and 3511, portions of the that Attachment Merrill is to the currently prohibited from discussing publicly. B. Al'PLICA'l'ION TO The Court satisfied its now 'l'HE AT'l'ACBMl!:N'l' turns to whether burden of showing a the Goverrunent good reason has exists to believe that disclosure of the Attachment could result in a statutorily ongoing enumerated investigation harm to related protect to an against authorized international terrorism or clandestine intelligence activities. Government The that argues disclosure of the Attachment would reveal law enforcement techniques that the FBI has not acknowledged in the context of NSLs, would indicate the types of information the FBI deems important for investigative purposes, and could lead to potential targets of investigations changing their behavior to evade law enforcement detection. agrees that constitute {See Gov't Mem. at 6.) The Court such reasons could, •good" reasons for Circuit stated in Mukasey, in some disclosure. circumstances, As the Second •it is obvious and unarguable met its burden of showing a 'good reaso11• to expect that disclosure will risk an enumerated har111, and 'some !basis• to conclude that the disclosure is linked to the risk.• (Gov't Reply Mem. at 8.) - 16 - Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 17 of 35 that no governmental interest is more compelling than the security of the nation." 453 Agee, U.S. 380, F.3d at 878 549 307 (1981)). (q\lotin51 Haig v. Similarly, the Second Circuit has indicated that the government has a compelling interest "combat ting in crime, and corruption, racketeering." sanitation & Recyclin9 Indus., Inc. v. City 107 F.3d 985, 1997). such parallel some of of New York, interests (2d 998 the Cir. Section enumerated 2709 harms - - i.e., whether disclosure could implicate a danger to the national interference security a with of criminal, counterintelligence investigation. Court held, courts the cannot, United counterterrorism, However, consistent as simply accept disclosure would interests. The Government must still provide a the and basis to assure itself . create . a or First the Government's assertions implicate or the Mukasey with Amendment, ~some States risk to that these court with that the link between disclosure and risk of harm is substantial.• see Mukasey, 549 F.3d at 881 Here, the (emphasis added). Government has not demonstrated a good reason to expect that public disclosure of the parts of the Attachment that remain confidential would risk one of these enumerated harms; nor has the Government provided the Court - 17 - Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 18 of 35 with some basis disclosure and to assure risk itself of harm that is the link between substantial. The Government's justifications might constitute "good" reasons if the information contained in the Attachment that is still redacted were not, at least in substance even if not in the precise form, already disclosed by government divisions and agencies, and thus known to the public. Here, publicly-available government documents provide substantially similar information as that set forth in the Attactunent. that it For matters that reason, that the these Court other is not documents persuaded were not disclosed by the FBI itself rather than by other government agencies, and that they would hold iignificant weight for a potential target of a national security investigation in ascertaining whether the FBI would gather such information through an NSL. The documents referred to were prepared and published FBI' s by various government authority to issue NSLs, divisions discussing the the types of materials the FBI seeks, and how to draft NSL requests. Indeed, one of these documents is a publicly-available Department of Justice Office of Legal Education manual that provides a sample attactunent that encapsulates much of the redacted-information in the Attachment here in dispute. The - 18 - Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 19 of 35 sample attachment included therein would authorize the FBI to request from a hypothetical NSL r~cipient: (A) The following customer or subscriber account information tor each account registered to or associated with sample@sample.com for the time period [date range) : l. subscriber names, user names, screen names, or other identities; 2. mailing addresses, addresses, email information: residential addresses, business contact addresses, and other 3. local and long distance telephone connection records, or records of sessi~n times and durations; 4. length of service (including start date) of service utilized; and types 5. telephone or instrument number or other subscriber number or iO.entity, incl;uding any temporarily assigned network address; ane 6. means and source of payment for such service (including any credit card or bank account number) and billing records. (B) All records and other info:rmation relating to account(s) and time period in Part A, including: the l. records of user activity for any connections made to or from the account, including the date, time, length, and method of conJ\ections, data transfer volume, user name, and source and destination Internet Protocol address(e&): 2. telephone records, including caller identification records, cellular site and sector information, GPS data, and cellular network identifying information 3. non-content information associated with the contents of any communication or file stored by or for the - l!l - Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 20 of 35 account(s) such as the source and destination email addresses and IP addresses. 4. Correspondence and notes of records related to the account (s}. (Manes Deel. Ex. Lat 222-23.} The information this substantially similar, sample attachment reveals in some instances identical, is to the material that the FBI argues should not be disclosed in the Attachment. The Government contends if that the parts of the Attachment that remain secret are disclosed, targets could change their behavior to potential evade enforcement. But those targets can already learn, publicly available infonnation, such information indicates that through the that NSLs. FBI can the The seek law based on FBI could obtain sample account attachment information relating to "records of user activity for any connectionsH including the "method of connections, data transfer volume, user name, and source and destination Internet Protocol address (es)." This is substantially similar to some of the -• .. -• ·-···-•. --redacted categories of the Attachtnent - 20 - at issue i.e., Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 21 of 35 - • • the sample attachment requests the "length of service (including start date) [relating to • an account) , " Merrill also points to a 2002 letter from the Deputy Attorney General Letter") , 2003 to which was senate Report. Senator Patrick Leahy later reprinted as In that letter, ~Leahy (the an appendix the to a Deputy Attorney General states: NSLs can be served on Internet Service Providers to obtain information such as subscriber name, screen name or other on-line names, records identifying addresses of electronic mail sent to and from the account, records relating to merchandise orders/shipping information, and so on but not including message content and/or subject fields. (See Manes Deel. Ex. J). Though public Rep. seeks information published No. 108-40, 89-90 to prevent Attachment sought this in a (2003), Merrill communication Senate Report, is now see s. the Government nonetheless from disclosing that =-·- the ., · - - · S i n c e this information has already been - 21 - Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 22 of 35 substantially disclosed in correspondence by the Justice Department to Congress, as indicated by the Leahy Letter, the court is not persuaded that there is a substantial risk that disclosure of substantially the same information in the Attachment would lead future targets of investigations to change their behavior to evade law enforcement to any materially they information greater they extent have that already would available in from a the publicly- available Senate Report.• Similarly, reason to • generally the Government prevent disclosure of •• known that the -- - claims FBI information• through NSLs; indeed, there is However, can collect ("A wire or electronic - 22 - is "subscriber in granting the statutory authority for the issuance of NSLs. See 2709(a) it good •subscriber information" is expressly identified in Section 2709(a) § a le u.s.c. communication service Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 23 of 35 provider shall comply ~ .•); information. with (Memorandum Opinion for information•) ,9 reason good "subscriber• ~ request Manes for Deel. subscriber I Ex. at 3-5 FBI' s General counsel Office the "subscriber term the length, at discusses, that a Therefore, the Government has not provided a justify to non-disclosure the of and similar iterations of that word; word Section 2709 and public government documents make clear that NSLs seek "subscriber information." Perhaps realizing the tenuous connection of the disclosure of such information in the instant Attachment to enumerated harms, the briefing its motions, longer needed Government, during for certain categories of in particular, the request for provider (ISP),• e-mail "(a) 11 of addresses records the FBI "Internet service associated with account,• and "(s] creen names or other on-line names associated with the account . 11 (See Gov' t Mem. Attach.) That the Government conceded to disclosure of only course conceded that non-disclosure was no seeks - - [the) the when, during the course of these categories litigation, it was • A publicly-available March 2007 Report from the Department of Justice Office of the Inspector General also indiciated that the FBI can obtain through NSLs •[u}ubscriber information associated with particular telephone numbers or e-mail addresses, •uch as the name, address, length of service, and method of payment.• !Manes oscl. Ex. Kat 10.J - 23 - Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 24 of 35 statutorily justifying required to provide non-disclosure, argument that, for enforced against the lends years, the him was FBI credence certification to non-disclosure overly broad and Merrill's requirement could not be supported by a •good reason. "lQ (Comi'are Merrill Deel. Ex. C with Cov't Mem. Attach.) Indeed, many of the remaining redactions in the Attachment are even harder to justify than the categories discussed thus prevent far. Merrill For example, from the Goverrunent disclosing that seeks to • even though the •telephone Government number" persuaded that can there now be concedes disclosed. is a that The •good reason# the Court phrase is to believe not that disclosure of the fact that the Government result in an enumerated harm, known that the especially if Government can it is already publicly use NSLs telephone number, more generally. I I I I I - 24 - I I to obtain a Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 25 of 35 As another character of believes that example these of the extreme redactions, while the the and overly broad Government apparently can know that it seeks public records of an "address• and a "telephone number,u there is a •good reasonu to prevent disclosure of the fact that the Government • (See Gov' t Mem. Government's Attach.) redactions -·- • • reason• - In any -·· - -• event, alone, I • that information in • Governlnent' s disclosure the on the - -- to keep information under seal, argument based claim to "good and undermine its of the currently-redacted Attachment can be linked to a substantial risk of an enumerated harm. As a disclosure third example, -• of the the Government seeks to prevent -:r- • phrases •• 1111111111111111· !,, even though the Government has acknowledged that no there is need for - non-disclosure 25 .. of the main Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 26 of 35 information the NSL sought to collect -- i.e., related to an information "address• and "billing.• The Court is not persuaded that there is a good reason for non-disclosure ·---. -rm;·· ~-· (See.. .!!!..:.S..:_. II Manes Deel. Ex. I at S '[Memorandum Opinion for the FBI's General Counsel Office discussing "local and long distance toll billing records" that could be attributed to •a particular account.") i1 --· -· = Additionally, the Government seeks to keep some information redact er - this Yet the Government still argues that information should remain redacted because (See Perdue II - not a "good" reason; neither is the link between disclosure and 11 Similarly, the publicly-.,vailable March 2007 Report from the Depl\rl:ment of Jutn:ice Office of the Inap,otor Gener<1l indicated that electronic comm\lllication transactional records include •e-mail addreeeee aeeociated with the account; screen names; and billing records and method of payment.•» (Manes Deel. Ex. Kat 10.) - 26 - Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 27 of 35 the risk of harm •substantial.• . ··argues,... - F\1rthermore, li •• -• as Merrill (See Pl. Mem. at 19; Pl. Reply Mem. at ll, 21-22.) Therefore, the Court finds that the Government has not demonstrated targets of a good national reason to security believe that investigations their behavior to evade detection, potential will change or that disclosure of the Attachment in its entirety would create a substantial risk of one of the statutorily enumerated harms. The Court's ruling here is consistent with the Court's prior decisions relating to the NSL issued to Merrill. First, the present challenge can be factually distinguished from Doe III and ~· In Doe III, this Court found that the Government had carried its burden of reason to including keep the confidential. ongoing, of ~~ identity In Doe IV, of NSL letter and the recipient good Attachment, and target, while the investigation remained the court found that specific information in the Attachment scope the showing a could be disclosed: information that the both material NSL statute within identifies the as permissible for the FBI to obtain through the use of NSLs, - 27 - Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 28 of 35 and material that the FBI has publicly acknowledged it has previously requested by means of NSLa. ~ 703 F. Supp. 2d at 316. Since then, the Government's investigation has been closed, and the parties have reached agreement that Merrill can identify himself as the 2004 NSL recipient and disclose the identity of the target. Now, unlike earlier iterations of this keeping litigation, the protecting relevant the Attachment law to asserted Government confidential enforcement future or is found reason." such a found that ~the on information potential national to ate n. 6.) Government in Doe IV, However, has that is security constitute did not make such a broad statement there. Court solely sensitive justification (Gov't Reply Mem. in based investigations. The Government argues that, Court interest a the •good the Court In Doe IV, demonstrated the a reasonable likelihood that disclosure of the Attachment in its entirety could inform enforcement investigations, current targets of law including the particular target of the Government's ongoing inquiry in this action, as well as, potentially, future targets.• 703 F. Supp. 2d at 317. The Government claims that the term "future targets• were •obviously, not the subjects of - 28 - 1m 'ongoing' underlying Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 29 of 35 investigation." point, the targets" (Gov't Reply Government referred to Mem. assumes at too Doe_!Y in 8 n. 6.) The much, were, On more that •future accurately, was not yet closed or publicly known. 12 In any event, changed since Merrill's investigation prohibits as discussed su12ra, has the closed, Of disclosure investigation's receipt target, the of many, no not longer or identity it the NSL Government Merrill's and circumstances have all, the of the redacted investigative techniques at issue here have been disclosed strains by other credulity government that agencies. future Therefore, targets of it other investigations would change their behavior in light of the currently-redacted information, when those targets (which, according to the Government, see Perdue Deel. ~ 56) have access to much of " The Court is not holding that there <1.re r>o circumatancee in which the Government might be 32 - Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 33 of 35 fil~~-1:1.~_ridge instant case. i . see Kreisberg v. 732 F. 3d 131, 138 (2d Cir. (~When, 2013) may be resolved on other grounds, reach a constitutional as here, to LLC, a case may decline to courts question Mgmt._, •avoid deciding constitutional issues needlessly.'"). III. STAY OF JUO?fENT As the Court did in p~ and QPe__!_!, in light of the implications of its ruling and the importance of the issues involved, the Court will stay enforcement of its judgment pending appeal, or for the Government to otherwise pursue any alternate course of action, intended this to give Court, appropriate the Government or the relief confidentiality for 90 days. of Court it any may the of opportunity to move Appeals seek information The stay is for to whatever maintain implicated by the the Court's ruling. For opinion Attachment those same those reasons, sections revealing are redacted in Decision and Order, portions the the public of the contents filing Court's of of the this in order to preserve the Government's opportunities for further appellate review of this Decision --·-··--········------" As a result, the Court need not reach wheither strict scrutiny applies to Merrill's claims. The Second Circuit fourid the procedural safeguard• applied here are required under either ~trict •crutiny or a leas exacting scrutiny. See ~-~BB:L, 549 F.Jd at 8'19, 882. - 33 - Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 34 of 35 and Order requiring disclosure of event that Attachment appellate will be this is not review, filed. the Attachment. ruling requiring altered in an ~ the unredacted In the disclosure course version New .. York Times Co. of of v. of the any further this opinion U.S. Dep't of Justice, 752 F.3d 123, 123 n.1 (2d Cir. 2014). IV.~ For the reasons discussed above, it is hereby ORDERED that the motion for summary judgment 16) of Plaintiff Nicholas Merrill ~TED; is (Dkt. No. and it is further for OROEREO that the motion to dismiss summary judgment (Dkt. No. 24) of the the Complaint or Government is DENIED; and it is further ORDERED that the Clerk of Court shall file the redacted version of this Decision and Order on the public docket; and it is further OROE:RED that accordingly but the Clerk of Court shall enter judgment stay enforcement of any appeal, or, if no appeal is filed, date of this Decision and order. - 34 - the judgment pending for 90 days from the Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 35 of 35 _______________________,----------··---··---· The Clerk of Court is directed to terminate the motion for summary dismiss or judgment (Dkt. No. and the motion to for summary judgment (Dkt. No. 24), and to close this case. SO ORDERED. Dated: 16) New York, New York 28 August 2015 - 35 -