Case 1:15-cv-01180-JKB Document 26-1 Filed 11/19/15 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

IN RE NATIONAL SECURITY LETTER ,

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Case No.

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PURsuANT TO
18 U.S.C. 935ll(d)

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PETITION FOR JUDICIAL REVIEW AND ENFORCEMENT OF A NATIONAL
SECURITY LETTER PURSUANT TO 18 U.S.CO ~ 3511(c)
Petitioner Eric Holder, Attorney General of the United States of America,. brings
this.petition for judicial review to enforce compliance with the npndisclosure provisions of
a National Security Letter; and states

as follows:
INTRODUCTION

1.

As partof an authorized national security investigation by the Fe<;l.eralBureau of

Investigation ("FBI"), on
(G)

the EBI served on and/or issued to respondent

j("respondent") a. National Security Lettet ethe NSL")~as authorized by

statute, 18 U .S.c. ~ 2709, seeking limited and specific information necessary to the investiga,tion.
In the NSL, an authorized FBI official certified to respondent that disclQsure of the fact Or
contents of the NSL may, int~r'alia, endanger national security. As a result, disclosure oHhe
fact or contents of the NSLs is prohibited by statute, 18 U.S.C.S 2709, as applied to respondent.
2.

The NSL informed respondent that, if respondent objected to the nondisclosure

obligation imposed by statllte and the NSL and so informed the FBI, then the FBf would initiate
judicial review of the nondisclosure requirement within 30 days thereafter.

 Case 1:15-cv-01180-JKB Document 26-1 Filed 11/19/15 Page 2 of 10

. 3.

Resp.ondent did nat abject ta praviding the infannatian

c.omplying with the n.ondisclasme requirement.

requested in the NSL .or ta

Respondent provided the infarmatian

and, upan infarmati.on and belief, has camplied with the nandiscl.osure requirement
4.

requested

ta date.

Respondent will nD IDnger v.oluntarily cDmply with the nDndisclosure requirement

Dftlie NSL

On March 24,2015,

resp.ondent provided cDnstructive and actual nDtice t.o the FBI.

that it will n.ot cDntinue t.o comply with the NSL nDndisclDsure requirement absent Court actiDn.
Hewever, autliDrized FBI .officials have certified pursuant tD law, 18 U.s.c.

S 2709(c),

that there

is gaDd reasen te believe that disclesure .of the fact Dr centents .of the NSLs will result in a
danger tD the national security .of the United States, interference with a criminal,
cDunterterrDrism, .or cDunterintelligence

investigatiDn, interference with diplDmatic relati.ons, .or

danger te the life .or physical safety .of any persen.

An

autherized~ seniDr FBI Dfiicial has

likewise recently determined that there is gDDd reaSDn te believe that disc\Dsme .of the fact or .
cantents .of the NSL will result in one .of these harms. FDr thDse reasens, the AttDrney General
brings this petitien te pretect the national secmityand
an Order declaring that the respendent isbeund

S 2709(c),

enferce the law. This Ceurt shouldent~r

by the nendisclosure provisiDns of 18 U.S.C.

as applied to respondent here.

JURISDICTION
5.

The Ceurt has jurisdictien

pursuantte

when the recipient of an NSL "fail(s] tocemply
lIifamlatien;"

AND VENUE
18 U.S.C. ~ 3511 (c), which prevides that,

with [the] request for records, a report, .or ether

the Atterney General "may inveke the aid .of any district court .of the United States

within the jurisdictien

in which the investigatien

carries .on business~ .or may beJaund,
at issue here included natification

is carried on

Dr

the person Dr entity resides,

to compel cempliance with the request. ,; The NSL requests

and impesitien .of the nondisclasure

2

requirement.

Accord 18

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U.S.C.

S 2709(c)(2)

(anwng other things, an NSL "notif[ies] the person or entity to whom the

request is directed of the nondisclosure requirement."). Under section 3511 (c), this COUlt"may
issue an order requiring the person or entity to comply with the request;" including its
nondisclosure requirement, and failure to obey the order of the Court may be punished as
contempt. Id The Court also has jurisdiction under 28 U .S.c.
6.

S 1345.

Venue lies in the District of Maryland pursuant to 18 U.S.C.

9 3511(c)

and

28 U.S.C. ~ 139-1.
PARTIES
7.

Petitioner is the Attorney General of the United States. The Attorney General is

the nation's chief law enforcement officer and the head of the United States Department of
Justice, an Executive Agency of the United States of Arilerica. The FBI is a law enforcement
agency within the Department of Justice.
8.

Respondent is a corporation organized and existing under the laws of

with a princi,pal place of business at
Respondent offers electronic communications services to its customers".
STATUTORY BACKGROUND
9.

Title 18 U.S.C. ~ 2709 authorizes the FBI to issue NSLs in connection with

foreign count~rintel1igence and counterten'orism investigations. The FBI has similar authority to
issue NSLs under the National Security Act of 1947, the Fair Credit RepOlting Act, and the Right
toFinanciai Privacy Act. See lZU.S.C.

S~ 3414(a)(1), 3414(a)(5);

15 U.S.c.

S 1681u,

1681v;

50 U:S.C. ~ 436._
10.

Subsections (a) and (b) of ~ 2709 authorize the FBI to request "subscriber

infonnation" ancr"toll 1;Jillingrecords infonnation," or "electronic communication transactional

 -------------------------_._-

... _---_

.....

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Case 1:15-cv-01180-JKB Document 26-1 Filed 11/19/15 Page 4 of 10

records," from wire or electronic communication

service providers.

In order to issue an NSL, a

designated official must certify that the information sought is "relevant to an authorized
investigation

ld

to protect against international terrorism or clandestine intelligence activities .... "

S 2709(b)(I)-(2).

When an NSL is issued in connection with an investigation

ofa "United

States person," the same officials must certify that the investigation is "not conducted solely on
the basis of activities protected by the first amendment ... ." Id
11.

To protect the secrecy of counterintelligence

and countmterrorism

investigations,

~ 2709( c) pelmits the application of a nondisclosure obligation to an NSL recipient.

Section

2709( c) prohibits disclosure when a designated FBI official certifies, prior to the issuance of the
NSL, that "otherwise

there may result a danger to the national security of the United States,

interference with a criminal, counterterrorism,
with diplomatic

or counterintelligence

investigation,

relations, or danger to the life or physical safety of aliy persoh."

interference

Id

S 2709(c)(I).

When sucK a certification is made, the NSL itself notifies the recipient of the

nondisclosure

requjrement.

Id. ~ 2709(c)(2).

S 35-11 provides

12.

Title 18 U.s.C.

for judicial review of an NSL that has been

13.

Section 3511(a) authorizes the recipient of an NSL to pe1ition a district court "for

issued.

an order modifying or setting aside the request" for information contained in the NSL.
14.

Section 3511 (b) authorizes theTecipient of an NSL to petition a district court "for

an order modifying or setting aside a nondisclosure
NSL. 1d

requirement imposed in connection with" the

S 3511(b)(1).

15.
enforcement

Section 3511 (c) authorizes the government to petition a.district court for
of an NSL. Section- 3511 (c) provides that; wheli the recipient of an NSL "[ail [s] to.

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comply with [the] request for records, a report, or other infonnation," the AttomeyGeneral "may
invoke the aid of any disttictcourt of the United States within the-jurisdiction in which the
investigation is carried on or tht;:person or entity resides, carrie.son business, or may be found, to
compel compli~ce witb the request." Where a designated official has certified the need for
nondisclosure pursuant to 18 U.S.C. S 2709(c), l1-IeNSL "request" includes notification and
imposition of the nondisclosure. requirement. ld.'~ 2709(c)(2). Pursuant to 18 U.S.C.

S 3511(t),

a court «may issue an order requiring the-person or entity to comply withthe request,'; including
its nondisclosure requirement, and failure to obey the order ofthe court may be punished as
contempt. ld.
16.

In response to' the holding ofthe United States Court of Appeals for the Second

Circuit in John Doe v. Mukasey, 549 F3d 86} (2d Cir. 2U08) (modifying a nationwide injunction

by the Southern District of New York), in February 2009 the FBI moditied its NSL practices to
ensure that goverrunent-initiated judicial review is available to all recipients ofNSLs that impose
a nondisclosure obligation pursuant to 18 U;S,C. 92709(c). Since February 2009, therefore, all
such NSLs are required to include a notIce that iriforms recipients of the opportunity to contest
the ,nondisclosure' requirement through gov~mment'-initiated judicial review.
17.

Since February 2009; all NSLs issuec;lnationwide and including imposition of a

nondisclosure obligationpursuarttto

18 U.S.C. S'2709(c), including the NSL to respondent, have

informed the recipient that, inter alia, the recipient has a right to challenge the NSL in
acoordance with 18 U.S,C. ~ 351 1(a) I;lnd(b)(I) if compliance WQuidbe,unreasona.ble;
oppressive, or otherwise unlawful.
18.

Since February 2009, all NSLs issued nationwide and including imposition of a

nondisclosure obligation pursuant to 1,8U.S.c,

S 2709(c), in:cluding the NSL to respondent,

have

I
!

!

5

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informed the recipient that, inter alia, the recipient has the right to challenge the nondisclosure
and that if the recipient wishes to make a disclosure that is prohibited by the

requirement;
nondisclosure

requirement,

it must notify the FBI, in writing, of its desire to do so within 10

calendar days of receipt of the NSL. Such NSLs have_provided an appropriate address or fax
.number where such objection may be sent, and stated that,

if the recipient sends such notice' .

o

within 1 calendar days, the FBI will initiate judicial proceedings in approximately
order to demonstrate

to a federal judge the need for nondisclosure

30 days in

and-to obtain a judicial order

requiring continued nondisclosure.
19.

In light.ofrespondent's

objection to compliance with the NSL absent court action,

see.~ 4, supra, the Attorney General hereby petitions for judicial review of the NSL and,
therefore, seeks judicial review and enforcement of the NSL.

STATE'MENT OF THE CLAIM
Respondent and Electronic Communication Senrices
20.
electronically
21.

Respondent

offers services that provide its subscribers the means to communicate

with others.
The variou~ communications

"wire" or <'electronic communications
Respondent

features that respondent provides to its users are a

service'" as that tenu is defined in 18 U.S.c. ~ 2510(15).

is the provider of this electronic commtm:ications service.

The FBI's Investigation
22.

During the course of an authorized national seculity investigatioil carried on by

the FBI, the FBI peterrnined that- it requirecl certalnliroited information relating to an account for
services from respondent

The Attorney General willptoyjde

underlying investigation,

including the FBI's legitimate need for continued nondisclosure

6

e fuller descr~tion

of that
of the

 Case 1:15-cv-01180-JKB Document 26-1 Filed 11/19/15 Page 7 of 10

NSL request, in a classified, ex parle submission to the Court for in camera review pursuant to
18 U.S.C.

S 3511 (e).

23.

To obtain inforination to further the FBI's author.zed investigation, the FBI issued

to and/or served respondent with the NSL on
infOimation as authorized by

9 2709.

equesting limited,-specific

The NSL did not request the content of any

communication. Though not issued to and/or served on respondent unti

the

NSL
24.

The NSL served on respondent was issued
the authority of 18 U.S.C. ~ 2709,

with 18 U.S.C.

9 2709(b),

certified in the NSL, in accordance

that the infonnation sought was relevant to an authorized investigation

to protect against international terrorism or clandestine intelligence activities.
25.

The NSL directed respondent to provide the records requested to the FBI.

26.

The NSL also infonned respondent of the prohibition against disclosing the

contents of the NSL, certifying, in accordance with 18 U.S.C.

9 2709(c),

that such disclosure

could result in an enumerated hanll that is related to an "investigation to protect against
international terrorism or clandestine intelligence activities."
27.

The NSLnotified respondent that, in accordance with 18 U.S.C.

S 351 1(a) and

(b), respondent had a right to challenge the letter if compliance would be unreasonable,
oppressive, or otherwise illegal.
28.

The NSL also advised that respondent had 10 days to notify the FBI as to whether

it desired to challenge the nondisclosure provision. The NSL further advised that if respondent
advised the FBI within 10 calendar days that it objects to the nondisclosure provision, the

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government would initiate judicial proceedings within approximately 30 days thereafter in order
to demonstrate to a federal judge the need for nondisclosure pursuant to ~ 2709(c).
29.

As noted~respondent provided the FBI with the information reqllested by the NSL

and, upon information and belief, has complied with the nondisclosure requitement to date.
Respondent's Objection to Continued Compliance with the National Security Letter
30.

Respondent has actually and constructively objected to continued compliance

with the nondisclosure requirement oUhe NSL by letter transmitted to the FBI on March 24,
2015.
31.

Designated FBI officials have certified pursuant to 18 U.S.C.

S 2709 that the

information sought in the NSL at issue here is relevant to an authorized investigation to protect
against international telTorism or clandestine intelligence activities, and that disclosure of the fact
that the FBI has sought otobtained access to the inforrhation sought by the NSL may endanger
the national security of the United States, interfere with a criminal, couritertelTorism, or
counterintelligence investigation, interfere with diplomatic relations, or endanger the life or
physical safety of a person. See 18 U.S.-C. SS 2709(b)' (c)(1). A designated, senior FBI official
has recently reviewed, inter alia, the NSL to respondent and redetermined as of April 2015 that
disclosure of the facts that the FBI has sought or 9btained access to the information sought by the
NSL may endanger the national security of the United States, interfere with a criminal,
countelielTorism, or counterintelligence investigation, interfere with diplomatic relations, or
endanger the life or physical safety ofa person.
32.

Pursuant to 18 U.S.C.

S 3511(e), the Attorney General will make available

to the

Court exparle and in camera further evidence, including classified information, supPolting the

8.

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need for obtaining the information sought by the NSL to respondent and the damage reasonably
expected to flow from disclosure of the NSL
33.

Respondent has demonsttated that, absent Court action, it will not continue to

comply with the nondisclosure requirement oftheNSL lawfuily issued pursuant to 18 U.S.C.

S 2709.
34.

Respondent's failure tocomplyv..ith the nondisclosure requirement of the

lawfully issued NSL would violate federal law, 18 U.S.C.
35.

S 2709.

Respondent's failure to comply with the nondisclosure requirement of the

lawfully issued NSL would interfere with the United States' vindication of its sovereign interests
i"nlaw--enforcement, counterintelligence, and the protection of national security.

RELIEF REQUESTED
WHEREFORE, the Attomey (Jeneral of the United States requests the following relief:
1.

That this Court enter an Order pursuant to 18 U.S.C.

S 3511(c) declaring that the

respondent is hound by the provisions of 18 U.S.c. ~ 2709 as applied to respondent and the NSL,
including the requirement that the .respondent continue to abide by the Ilondisclosure provision of
18 U.S.C.
2.

S 2709(c)andfhe

NSL.

That this Court enter an Order pursuant to 18 U.S.C.

there is good reason to believe that disclosure of the NSL served

01)

S 351 I(c) affirming

that

respondent may resUlt in a

.danger to the national security of the United States, interference with a criminal,
counterten-orism, or counterintelligence investigation, interference with diplomatic relations~ or
danger to the life or physical safety of a person;:and tha,tthe respondent is bound by the
nondisclosure provi~ions ofl8 U.S.c.

S 2709 as applied to respondent and the NSL" including

the requirement thairespqnd.ent 110tdisclose the fact or contents of the NSL to any person (other

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than those to whom such disclosure is necessary to comply with the request or an attorney to
obtain legal advice or legal assistance with respect to the request).
That this Court enjoin respondent, in accordance with 18 U.S.c. ~~ 2709(c) and

3.

35 II(c) as applied here, from disclosing to any person (other than those to \vhom such disclosure
is necessary to comply with the request

OT

an attorney to obtain legal advice or legal assistance

with respect to the request) that the FBI has sought from respondent or obtained access to the
information

or records requested by the NSL under 18 U.S.c. ~ 2709.

5.

That this Court grant the Attorney General such other and further relief as may be

just and proper.
Dated: April 23, 2015'

Respectfully submitted,

BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
ROD 1. ROSENSTEIN
United States Attorney

TERRY M~ I-IENR Y
Assistant Branch Director

CZL~r=LJ

e..--

STEVEN Y. ESSLER
ERIC SOSKIN
Attorneys
U.S. Department of Justice
Civil Division, Federal Programs Branch
P;O. Box 883
Washington, D.C. 20044
(202) 305-0 167 (telephone)
(202) 646-8470 (facsimile)
Steven. Bressler@usdoi.gov
Auorneysjbr

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the Attorney General