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Case No. 15-cv-001180

PURSUANT TO
18 U.S.C. § 3511(d)

REPLY IN SUPPORT OF PETITION FOR JUDICIAL REVIEW AND ENFORCEMENT OF A
. NATIONAL SECURITY LETTER PURSUANT TO 18 U.S.C. § 3511
INTRODUCTION
Petitioner, the Attorney General of the United States, explained in her opening briefthat the
National Security Letter ("NSL") served on Respondent complies with applicable law and passes
constitutional muster. See Mem. of Law in Support of Petition for Judicial Review and Enforcement of
[an NSL] Pursuant to 18 U.S.C. § 3511 (May 8, 2015) 'at 2-5 ("Pet's Br."). The Court should,
accordingly, enforce the lawful requirement that Respondent maintain the confidentiality of that NSL.
Respondent's arguments in opposition are meritless. Respondent contends that the statutory
authority providing for imposition of nondisclosure requirements in NSLs is facially unconstitutional
because it is overbroad and provides for inadequate judicial review, and argucs that disclosure of the
NSL "cannot risk" the harms enumerated in Petitioner's brief. See Respondent's Opposition to Petition
to Enforce Nondisclosure Provision,jiled under seal (June 8, 2015) ("Opp. Br."). But Respondent
ignores the June 2, 2015 enactment of the USA FREEDOM Act of2015 ("USA FREEDOM Act" or
"Act"), see Pub. L. No. 114-23, which revised the statutory framework govemingjudiCial review for
NSLs and added a requirement that the Government periodically review the NSL nondisclosure

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 Case Document 26-13 Filed 11/19/15 Page 3 of 23

requirements and lift them where they are no longer necessary to, inter alta, protect national security.1
Respondent?s further suggestion that the passage of time or generalized disclosures made in other
contexts necessarily obviates the harms of disclosure is unpersuasive: a senior, authorized FBI of?cial
has explained real harms likely to occur if this NSL is disclosed now.2 See Classi?ed Declaration of
Donald Good, Acting Assistant Director of the Cyber Division of the Federal Bureau of
Investigation at 1111 18, 26-30, previously submitted to the Court ex parte and in camera

(?Classi?ed Good The FBl?s expert judgment is due deference, and is not undermined by

 

1 As explained in the Government?s opening brief, in this instance, as with all NSLs issued since
2009, the Government has already followed procedures that mirror those adopted by the Act.

2 Respondent also objects to the ?ling of the Petition under seal. See Opp. Br. n.2. 18 U.S.C.
3511(d) speci?cally authorizes judicial review of NSLs to be conducted under seal, however, and for
the reasons explained in the Good Declaration, maintaining this litigation and the identity of Respondent
under seal are critical to avoiding the national security harms identi?ed therein. The Government will
work to prepare redacted versions of the ?lings in this matter that protect information that would cause
the very harms which the NSL statute, itself, seeks to avoid, and will move the Court to partially unseal
?lings consistent with those necessary redactions as soon as practicable. Respondent?s suggestion that
?it is entitled to know more? because it has retained counsel with a ?clearance? is not well?founded. The
Court should not direct the Government to provide Respondent or its counsel with information for which
disclosure risks national security harms. The Executive Branch exercises control over the information,
and its decisions regarding such information (including how best to protect the information from
inadvertent disclosure) are entitled to the utmost deference. Cf Holy Land Found. v. Ashcroft, 333 F.3d
156, 164 (DC. Cir. 2003) (recognizing that disclosure of classi?ed information ?is within the privilege
and prerogative of the executive, and we do not intend to compel a breach in the security which that
branch is charged to protect?); In re United States, 1 F.3d 1251 (Table), 1993 WL 262656 at 9 (Fed.
Cir. Apr. 19, 1993) (?nding that, under separation of powers principles, ?the access decisions of the
Executive may not be countermanded by either coordinate Branch?). It is essential to recognize that
every additional disclosure of national security information increases the risk to national security,
irrespective of the trustworthiness of any particular individual: ?It is not to slight judges, lawyers, or
anyone else to suggest that any such disclosure carries with it serious risk that highly sensitive
information may be compromised.? Halkin v. Helms, 598 F.2d 1, 7 (DC. Cir. 1978) (quoting Alfred A.
Knopf v. Colby, 509 .2d 1362, 1369 (4th Cir. 1975). Indeed, the Supreme Court has acknowledged that
even disclosures to a court in camera and ex parte could pose such risks. See, e. g, United States v.
Reynolds, 345 US. 1, 10 (1953) court should not jeOpardize the security which the privilege is
meant to protect by insisting upon an examination of the evidence, even by the judge alone, in
- chambers?).

Case Document 26-13 Filed 11/19/15 Page 4 of 23

Respondent?s speculation. For these reasons, the Court should reject Respondent?s request that it be
permitted ?to inform the target of the and to make other disclosures, as well as its claims that the
NSL framework is unconstitutional.3
ADDITIONAL STATUTORY BACKGROUND

In its opening brief, the Government provided an overview of the then-applicable statutory
framework governing the NSL served on Respondent. Subsequent to the Govemment?s ?ling, Congress
passed, and the President signed into law, the USA FREEDOM Act of 2015, Pub. L. No. 114-23 (June
2, 2015). In relevant part, the USA FREEDOM Act updates the NSL statutory framework to: 1) include
the procedure, previously followed voluntarily by the FBI for all NSLs including in the NSL
challenged here for Government-initiated judicial review upon objection by a recipient of the 2)
revise the standards of judicial review to be applied to challenges to NSL nondisclosure requirements;
and 3) require the Attorney General to establish ?termination procedures? that will implement ongoing,
periodic review of NSL nondisclosure requirements to ensure that they terminate when no longer

necessary to protect against an ongoing harm. See id. at 502, 503.4

 

3 Respondent?s rhetoric about challenging the ?underlying information request,? Opprelevance to these proceedings. As Petitioner explained in its opening brief, and Respondent does
not contest, Respondent did not ob'ect to the information request in the NSL and, in fact, provided the
requested information to the See Unclassi?ed Declaration of Donald Good. ?led under
seal (May 8, 2015) at 1] 24 (?Unclassi?ed Good 

4 The USA FREEDOM Act?s changes to the procedures that are required in serving an NSL and
initiatingjudicial review, see ?3511(b)(1); ?3511(d), do not apply in this case because the NSL was
served and litigation was initiated under the prior version of the statute. However, the amended
procedures governing judicial review, see do apply because this litigation is ongoing
and must comply with the new standards. See Bigelow v. Virginia, 421 US. 809, 817-18 1975);
Film Products, 511 US. 244, 275, 280 (1994).

Case Document 26-13 Filed 11/19/15 Page 5 of 23

The ?rst two requirements parallel the narrowed construction the Second Circuit gave the prior

NSI. statute to ensure its constitutionality. procedures that were adopted thereafter by the FBI. including

in this instance. See Pet?s Br. at 21-23; Mukasey v. Doe, 549 F.3d 861, 883-84 (2d Cir. 2008). The third
requiremen?FBI to begin conducting periodic reviews of
nondisclosure requirements to ensure that they remain necessary. .

 

The USA FREEDOM Act?s judicial review procedure for NSL nondisclosure requirements
allows the government to assume the burden of seeking judicial review at any time, as it has done here.
See Pub. L. 1 14-23 502(g). When the recipient of an NSL ?wishes to have a court review a
nondisclosure requirement imposed in connection with the request or order,? the recipient has two
choices. Id. The recipient either may ?notify the Government,? or itselfmay ??le a petition forjudicial
review? in federal district court, in the district where the recipient does business or resides. Id. In the
event that the recipient chooses to notify the Government, the (jovemment then bears the burden of
initiating review, and must ?apply for an order prohibiting the disclosure of the existence or contents of
the relevant request or order,? doing so ?[n]ot later than 30 days? after receiving the request.5 Id.
?[Djuring the pendency of proceedings,? the nondisclosure requirement remains in effect and the district
court is requested to ?rule expeditiously" on the Government?s application. Id. In addition. the Act
requires that every NSL must include notice of the availability of this judicial review procedure. Sec

Pub. L. 114-23 503(a).

 

5 Venue for a govemment-initiated judicial review proceeding lies in the district in which the
recipient of the NSL does business, or in ?any judicial district within which" the underlying
investigation ?is being conducted." Pub. l4-23 502(g). As explained in the Declaration ol?Acting
Assistant Director Good, that requirement is met here. See Classified Good Decl. TI 14.

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Case Document 26-13 Filed 11/19/15 Page 6 of 23

Whether the Government initiates judicial review or responds to a recipient?s petition, the USA
FREEDOM Act speci?es that for NSLs issued by the FBI a senior DOJ or FBI of?cial (no lower
than an Assistant Attorney General or Special Agent in Charge of an FBI ?eld of?ce) provide:

a certi?cation . . . containing a statement of speci?c facts indicating that the absence of a

prohibition of disclosure . . . may result in:

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. 

Pub. L. 114-23 502(g). If the district court conducting judicial review concludes that ?there is reason
to believe that disclosure of the information subject to the nondisclosure requirement during the
applicable time period may result in? one of the speci?ed harms, it should issue a nondisclosure order,
or extend an existing order. Id.

As to the new termination procedures, the USA FREEDOM Act requires that such procedures be
adopted ?not later than 180 days after the date of enactment? of the Act, which will occur in late 2015.
Pub. L. 114-23 502(f). The Attorney General is instructed to create procedures that will be required for .
any NSL nondisclosure provision. These procedures will include:

(A) the review at appropriate intervals of such a nondisclosure requirement to assess

whether the facts supporting nondisclosure continue to exist;

(B) the termination of such a nondisclosure requirement if the facts no longer support
nondisclosure; and

(C) appropriate notice to the recipient of the national security letter, or of?cer,
employee, or agent thereof, subject to the nondisclosure requirement, and the

applicable court as appropriate, that the nondisclosure requirement has been
terminated.

Id. The USA FREEDOM Act thus not only ?allows? but ?requires? the Government ?to rescind the
non?disclosure order once the impetus for it has passed.? In this case, the result of such a review is

embodied in the declarations of Acting Assistant Director Good, which explain why continued,

Case Document 26-13 Filed 11/19/15 Page 7 of 23

complete nondisclosure of the NSL to Respondent is necessary to protect against the harms enumerated
in 2709.
ARGUMENT

I. The Court Should Not Reach Respondent?s Purported Facial Challenge to the NSL
Statutes, but Should Find the NSL Nondisclosure Requirement on Respondent is Lawful.

Much of Respondent?s opposition is dedicated to a facial challenge to the nondisclosure and
judicial review provisions of the prior NSL statute. Speci?cally, Respondent alleges that the
nondisclosure requirement constitutes an unconstitutional prior restraint and is unconstitutionally
overbroad, and that the statutory judicial review provisions impermissibly limit a court?s evaluation of
the propriety of NSL nondisclosure requirements. As explained in Petitioner?s opening brief and
reinforced below, however, the Government has properly imposed a nondisclosure requirement in this
instance, and because applied challenges are the basic building blocks of constitutional
adjudication,? the Court should not entertain a facial challenge to a statute that has been constitutionally
applied to the challenger. See Gonzales 1). Carl/tart, 550 US. 124, 168 (2007); Parker v. Levy, 417 US.
733, 759 (1974) person to whom a statute may constitutionally be applied will not be heard to
challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in
other situations not before the Court?) (quoting Broadrl'ck v. Oklahoma, 413 US. 601 610 (1973)).

Respondent?s overbreadth challenge should likewise be rejected as an inappropriate effort to
convert Respondent?s objection to enforcement of the NSL at issue here into an ?unnecessar[y] . . .
wholesale attack upon . . . federal laws.? Renae v. Geary, 501 US. 312, 324 (1991) (it is not ?generally
desirable, to proceed to an overbreadth issue unnecessarily?that is, before it is determined that the
statute would be valid as applied?). Although courts may entertain an overbreadth challenge in the First

Amendment context, such a challenge is only appropriate where a ?substantial number? of a law?s

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Case Document 26-13 Filed 11/19/15 Page 8 of 23

applications are unconstitutional, ??judged in relation to the statute?s plainly legitimate sweep.m New
York v. Ferber, 458 U.S. 747, 769?71 (1982) (quoting Broadrick, 413 U.S. at 615). But courts should

6?

not apply the strong medicine? of overbreadth analysis where the parties fail to describe the instances
of arguable overbreadth of the contested law.? Wash St. Grange, 552 U.S. at 450 (citing N. Y. State Club
Ass Inc. v. City of N. Y., 487 U.S. l, 14 (1988)). It is not sufficient for a challenger merely to
hypothesize scenarios in which the NSL statute might conceivably be applied unconstitutionally. See,

e. g, Members of City Council of LA. v. Taxpayers for Vincent, 466 U.S. 789, 800-01 (1984); Parker v.
Levy, 417 U.S. 733, 760 (1974). Rather, Respondent ?must demonstrate from the text of [the applicable
statute] and from actual fact that a substantial number of instances exist in which the Law cannot be
applied constitutionally,? N. Y. State Club ASS Inc. v. City of New York, 487 U.S. 1, 14 (1988), and
Respondent has not done so here.6

As an initial matter, Respondent?s facial challenges, including overbreadth, must be considered

in light of the current version of the NSL as revised through the USA FREEDOM ACT to avoid

 

6 Respondent also suggests it is entitled to bring a facial challenge because ?no set of
circumstances exists under which the law would be valid.? Opp. Br. at 11 (quoting Greater Baltimore
Ctr. for Pregnancy Concerns v. Mayor and City Council of Baltimore, 721 F.3d 264, 282 (4th Cir.
2013). As explained below, however, the NSL statute is constitutional as applied to Respondent, so a
facial challenge is not appropriate here under the ?no set of circumstances? exception. In re Matter
of NSLS, Order Denying Petition to Set Aside and Granting Cross-Petition to Enforce, No. 13cv1165-SI
(N .D. Cal. August 12, 2013) (enforcing 2 NSLs), appeal docketed, No. 13-16732 (9th Cir. argued Oct.
14, 2014); In re Matter of NSLs, Order Denying Petition to Set Aside, Denying Motion to Stay, and
Granting Cross-Petition to Enforce, No. (ND. Cal. August 12, 2013) (enforcing 2
NSLS), appeal docketed, No. 13-16731 (9th Cir. argued Oct. 14, 2014); In re NSLS, Order Denying
Petition to Set Aside and Granting Cross-Petition to Enforce, No. 13mc80063-Sl (N .D. Cal. May 28,
2013) (Amended Order for Public Release enforcing 17 In re NSLS, Order, No. 13mc80063-SI
(N .D. Cal. May 23, 2013) (enforcing 2 In re National Security Letter, No. l2?mc-0007, Dkt. No.
17?3 (E.D. Va. April 24, 2012, as partially unsealed July 23, 2012).

Case Document 26-13 Filed 11/19/15 Page 9 of 23

justiciability problems. See Brooks v. Vassar, 462 F.3d 341, 348 (4th Cir. 2006).7 To the extent
Respondent?s overbreadth arguments can be ascertained from its brief, Respondent appears to rely on
the opinion of a federal district court ?nding the statute to be overbroad because it authorizes
nondisclosure orders of ?unlimited duration? and those orders reach ?to the very fact of having
received? an NSL. See Opp. Br. at 18 (citing In re NSL, 930 F. Supp. 2d 1064, 1075?76 (N.D. Cal.
2013)).8 Adoption of the USA FREEDOM Act, however, addresses the duration of NSL nondisclosure
orders through its provision for termination procedures to review whether the harms of disclosure
remain over time after an NSL is served. Pub. L. 114-23 502(f). And, in light of Good?s
explanation of why disclosure of the fact of Respondent?s receipt of an NSL is likely to cause national
security harms, Respondent?s assertions that such disclosure is harmless and that the prospect of
nondisclosure requirements of unlimited duration renders the NSL statute overbroad are therefore
unpersuasive. See Classi?ed Good Decl. at 29, 31?33; infra Part II A. Indeed, Acting Assistant

Director Good?s determination that disclosure would be harmful here is entitled to deference. E. 

 

7 Even as to the prior version of the statute, however, Respondent failed to meet the standards for
an overbreadth challenge to be heard. It is well-established that overbreadth should not be ?invoked
when a limiting construction has been or could be placed on the challenged statute,? Broadrick, 413
U.S. at 613 (citations omitted), and here, the usage of NSLs since 2009 has been pursuant to the
limiting construction suggested by Mukasey. Pet?s Br. at 20-23; Mukasey, 549 F.3d 861. In addition,
Respondent failed to demonstrate that the prior statute was overbroad in a ?substantial number? of
applications. erber at 770. Respondent acknowledged that, in thousands of cases where appropriate,
the Government issues NSLs without nondisclosure orders. Opp. Br. at 3 (citing In re NSL, 930 F. Supp.
2d 1064, 1074 (N .D. Cal. 2013)). And the fact that few of the NSL nondisclosure requirements imposed
under the prior statute were brought to courts for judicial review, Opp. Br. at 3-4, far from suggesting
the statute is unconstitutional, instead demonstrates that, as the Mukasey court discussed, most recipients
did not manifest an interest in challenging the nondisclosure requirements. See 549 F.3d at 879.

8 Further, by codifying judicial review procedures and a requirement that NSL recipients subject
to a nondisclosure order be noti?ed of those procedures, the USA FREEDOM Act revisions undercut
any suggestion that there are others on whose behalf a constitutional challenge needs to be heard in this
instance. See Vincent, 466 U.S. 800-01.

Case Document 26-13 Filed 11/19/15 Page 10 of 23

Dep ?t ofNavy v. Egan, 484 US. 518, 530 (1988) (noting the reluctance of the courts ?to intrude upon
the authority of the Executive? in national security affairs).

For these reasons, the Court should neither ?anticipate a question of constitutional law in
advance of the necessity ofdeciding it nor formulate a rule of constitutional law broader than is required
by the precise facts to which it is to be applied,? Wash. State Grange, 552 .S. at 450-51 (internal
quotations omitted), and therefore should not entertain a facial or overbreadth challenge. Rather, this
Court should consider the question before it: whether the NSL to Respondent is lawful and whether the
nondisclosure requirement should continue in effect.

II. The NSL Nondisclosure Requirement, as Applied to Petitioner, is Lawful.

A. Disclosure Of the NSL To The Target of the Investigation Would
Reasonably Be Expected to Harm National Security, As Would Respondent?s
Other Requested Disclosures.

Respondent contends that the Govemment?s assertion of national security harms in support of
the Petition is implausible because the number of users registered to Respondent?s services and the
passage of more than-since Respondent?s compliance with the NSL ensures that disclosure
?cannot risk any of the harms enumerated? in the statute. Op. Br. at 23-24. Respondent?s argument is
misguided. As the Classi?ed Good Declaration explains. disclosure at this time is reasonably expected
to cause harm to national security. 23-34. First, Respondent seeks to inform the investigative target
of the investigation itself. See Opp. Br. 1 n.1. The risk of harm to national security from a disclosure
directly to the target is very great, as Good explained. See Classi?ed Good Decl. at 24-26.

Further, this harm would exist even if Respondent made a more limited disclosure, because such

disclosure would link Respondent to a particular NSL served at a particular point in time in a particular

Case Document 26-13 Filed 11/19/15 Page 11 of 23

geographic area of the United States, and this may be suf?cient for the target to change tactics and stop
using Respondent?s services altogether. See Classi?ed Good Decl. 11 29.

Nor is it the case that the size of Respondent?s registered user base mitigates the possibility of
national security harm. See Opp. Br. at 10?11 23-24. Respondent?s argument rests on a mistaken
assumption that all users are equally likely to be the targets of NSLs. They are not. Accordingly, the
relevant pool is not Respondent?s base of innocent, registered users, but the set of active users
knowingly engaged in unlawful activities likely to subject them to FBI surveillance in a particular
geography at a particular time, and within this relatively narrow group, disclosure that Respondent
received an NSL within a particular time could be combined with other pieces of information to the
detriment of national security. See Classi?ed Good Decl. at 1i 6; Cf Bowers v. Dep ?t of Justice, 930
F.2d 350 (4th Cir. 1991) (Individual pieces of ?information may often be dull, repetitious and even
tedious, but when considered with other bits and pieces of information, the total may present a picture
that is detrimental to the national security of the United States?). Moreover, this harm multiplies if the
identities of providers in NSL enforcement proceedings are routinely revealed. On an aggregate basis,
see Healy v. Beer Institute Inc., 491 US. 324, 336 (1989); Harper Row Publishers, Inc. v. Nation
Enterprises, 471 US. 539, 568 (1985), such disclosures would divulge substantial, discrete information
concerning the volume and frequency of NSLs issued and the geographic venues of enforcement
proceedings, and tie particular providers to particular NSLs issued at particular points in time. This
window into the universe of NSLS issued by the FBI would provide a wealth of detailed information to
our adversaries, contrary to the structure and intent of the statutory scheme, and would help to facilitate

detection and evasion of our intelligence and counter?terrorism effortsFor reason, Respondent?s contentlon that the requlrement at issue here is

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Case Document 26-13 Filed 11/19/15 Page 12 of 23

Respondent?s claim that the need for secrecy is undercut by the publication of aggregate statistics
by electronic communications providers identifying how many they have received, in bands of
1,000, is in error. As an initial matter, as Plaintiff for those providers receiving fewer
than 1000 NSLS, the lowest reporting band provides that the provider may acknowledge receiving
?between 0-999 Opp. Br. at 9; see Pub. 1 14-29 at 604 (setting forth permissible reporting
bands). Contrary to Respondent?s argument that a ?disclosure itselt? con?rms ?that a provider has
received (at least) one such a report does not necessarily reveal that the provider has received an
NSI. at all: Respondent?s claim that any provider that had not ?received (at least) one . . . would

unambiguously disclose that it received no is nothing more than unsupported speculation. See id.

 

 

 

insuf?ciently tailored to the national security harm, and would thereby t?ail strict scrutiny, necessarily
fails. See Opp. Br. at 19-20. Likewise, because Good has assessed the national security risk at
the present time, continued nondisclosure is likely to be consistent with the termination procedures to be
adopted under the USA FREEDOM Act, once such procedures are implemented.

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Case Document 26-13 Filed 11/19/15 Page 13 of 23

B. The Requirement That This NSL Not Be Disclosed Is Not an Unlawful Prior
Restraint.

1. The Government May Properly Limit Dissemination Of Information
Learned Only Through Involvement In A Government Investigation.
The First Amendment does not forbid limits on the disclosure of information learned by
participating in con?dential government matters. Courts have repeatedly recognized that the
Government?s need for secrecy in con?dential matters provides a ?rm constitutional footing for
restrictions on the disclosure of information learned through participation in such con?dential
proceedings, particularly those involving government information. Thus, in Seattle Times Co. v.
Rhinehart, 467 U.S. 20 (1984), the Supreme Court upheld the constitutionality of a judicial order that
prohibited parties to a civil suit from disclosing sensitive information obtained through pretrial
discovery. In rejecting a First Amendment challenge to the order, the Court noted that the parties
?gained the information they wish to disseminate only by virtue of the trial court?s discovery processes,?
which themselves were made available as a matter of legislative grace, not constitutional right. 467 US.
at 32. Likewise, in Butterworth v. Smith, 494 US. 624 (1990), the Court distinguished information a
grand jury witness learned through ?participation in the proceedings of the grand jury? from the
information he possessed previously, thereby suggesting that the ?right to divulge information? in such
circumstances would not extend to the former. Id. at 632; see id. at 636 (Scalia, ., concurring) 
a different question is presented . . . by a witness? disclosure of the grand jury proceedings, which is

knowledge he acquires not ?on his own? but only by virtue of being made a 

 

Lower courts likewise have upheld similar nondisclosure requirements based on this principle.
See Ho?man?Pugh v. Keenan, 338 F.3d 1136, 1140 (10th Cir. 2003) [constitutional] line should be
drawn between information the witness possessed prior to becoming a witness and information the
witness obtained through her actual participation in the grand jury process?; upholding statute
prohibiting disclosure of, inter alia, information sought by prosecution in grand jury); In Re Subpoena to
Testi?x, 864 F.2d 1559, 1562 (11th Cir. 1989) (similar); First/1m. Coalition v. Judicial Review Bd., 784

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Case Document 26-13 Filed 11/19/15 Page 14 of 23

Respondent?s efforts to distinguish these precedents are unpersuasive. First, Respondent asserts
that NSLs are not comparable to grand jury testimony because they forbid disclosure of ?the fact of 
subpoena or testimony,? and constraints on grand jury testimony extend only to the contents of such
testimony. Opp. Br. at 3 (citing Butterworth v. Smith, 494 US. 624, 636-37 (Scalia, ., concurring)
(1990).11 Respondent?s view appears to be based on a misreading of the concurrence in Butterworth, in
which Justice Scalia distinguished ?information contained within the Witness? testimony? that was
acquired by the witness on his or her own, from ?the fact that the witness conveyed that information to
the grand jury.? This passage in Butterworih simply does not address ?the fact of subpoena or
testimony,? and its logic, as explained in Petitioner?s opening brief, favors secrecy for the fact of a
subpoena: receipt of the subpoena itself, as with the conveyance of information to the grand jury, are
equally facts learned by a witness ?only by virtue of being made a witness.? Butterworth, 494 US. at
63 6-37 (Scalia, ., concurring). Similarly, Respondent?s claim that nondisclosure requirements related
to classi?ed information and con?dential discovery material are different because the secrecy
requirements are entered into ?voluntarily,? Opp. Br. at 4, 16 (citing cases), is inconsistent with the
rationale of those cases and has already been rejected by the Fourth Circuit. See United States v.
Marchetti, 466 F.2d 1309, 1316-17 (4th Cir. 1972) (upholding nondisclosure requirements with respect
to classified materials, despite noting that a voluntary agreement is not a surrender of First Amendment

rights), cert. denied, 409 US. 1063 (1972). There is no valid basis to treat NSL nondisclosure

 

F.2d 467, 479 (3d Cir. 1986) (en banc) (state may prohibit witnesses and other persons ?from disclosing
proceedings taking place before? a judicial misconduct investigation board); Small 12. Ramsey, 280
F.R.D. 264, 284 (N 2012) (?an order prohibiting dissemination of discovered information
before trial is not the kind of classic prior restraint that requires exacting First Amendment scrutiny?).

11 Respondent?s brief overlooks that this citation to Butterworth is to the opinion of a concurring
Justice and not to the majority opinion.

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Case Document 26-13 Filed 11/19/15 Page 15 of 23

requirements differently from classi?ed information nondisclosure requirements.

Respondent?s possession of information here is analogous to information learned through
participation in a grand jury proceeding, and for that reason, Congress deliberately fashioned 18 U.S.C.
2709 after grand?jury proceedings. See H. REP. NO. 107-236(1) at 61?62 (Congress sought to
?harmonize? 2709 ?with existing criminal law where an Assistant United States Attorney may issue a
grand jury subpoena for all such records in a criminal case?). In Doe v. Ashcroft, the original district
court proceeding underlying the Mukasey decision, the court concluded that ?[t]he principle that
Rhinehart and its progeny represent is directly applicable? to 2709 because NSL recipient or
other person covered by the statute learns that an NSL has been issued only by virtue of his particular
role in the underlying investigation.? Doe v. Ashcroft, 334 F. Supp. 2d 471, 519 (S.D.N.Y. 2004),
vacated on other grounds, Doe v. Gonzales, 449 F.3d 415 (2d Cir. 2006); see also id. at 518 (the ?laws
which prohibit persons from disclosing information they learn solely by means of participating in
con?dential government proceedings trigger less First Amendment concerns tha[n] laws which prohibit

disclosing information a person obtains Thus, the Government may properly limit

 

12 In Mukasey, the Second Circuit did not fully accept the analogy between the NSL
nondisclosure requirement and those in proceedings in which ?interests in secrecy arise from the nature
of the proceeding,? such as grand juries, because ?the nondisclosure requirement of subsection 2709(0)
is imposed at the demand of the Executive Branch under circumstances where secrecy might or might
not be warranted, depending on the circumstances alleged to justify such secrecy.? 549 F.3d at 877. But
for all the often-obvious reasons discussed above why national security investigations require secrecy,
those interests likewise inhere ?from the nature of the proceeding? in this context. Id. Thus, by
requiring that the FBI make a case-by?case determination before applying the nondisclosure
requirement, the NSL statutory procedures provide greater protection than what is constitutionally
required. In Butterworth, for example, the Supreme Court did not require a prosecutor to make a case-
by?case determination of whether ?witnesses would be hesitant to come forward? or ?less likely to
testify fully and frankly? absent Federal Rule of Criminal Procedure nor whether ?those about to be
indicted would ?ee, or would try to in?uence individual grand jurors to vote against indictment.? 494
US. at 630. Nor do the nondisclosure provisions of wiretap, pen register, and similar laws require the
government to make a case-by-case determination of the scope of required con?dentiality. See 18

_14_

Case Document 26-13 Filed 11/19/15 Page 16 of 23

Respondent?s dissemination of information that is in Respondent?s possession only because the FBI
served Respondent with an NSL as part of its investigation of the target.

2. The NSL Nondisclosure Requirement Is Not An Unconstitutional
Prior Restraint.

Respondent asserts that the nondisclosure requirement applied by the NSL here should be treated
as a prior restraint on speech subject to heightened First Amendment scrutiny. See Opp. Br. at 12-15.
As explained in Petitioner?s opening brief, however, the NSL nondisclosure requirement is not a ?classic
prior restraint.? See Pet?s Br. at 16?20. In Mukasey, the Second Circuit recognized as much in
upholding the NSL statute against a First Amendment challenge, ?nding that the NSL nondisclosure
requirement imposed on a recipient ?is not a typical prior restraint or a typical content-based restriction,?
in which a person?s right to speak is conditioned on prior approval from the government. See Doe v.
Mukasey, 549 F.3d 861, 877 (2d Cir. 2008). Compare id. with City of Lakewood v. Plain Dealer
Publishing Co. 486 U.S. 750, 757 (1988). Rather, because the NSL functions as a categorical
prohibition on disclosures of information learned only by participation in a con?dential investigation,
the threat of criminal sanctions imposed after disclosure does not ?raise the same specter of censorship?
as other restrictions, Rhineharz?, 467 U.S. at 32, and does not ?warrant[] the most rigorous First
Amendment scrutiny.? Makasey, 549 F.3d at 877. See also Landmark Comm. v. Virginia, 435 U.S. 829

(1978); Cooper v. Dillon, 403 F.3d 1208 (11th Cir. 2005).13

 

U.S.C. 2511, 3123(d); 50 U.S.C. 1842(d), 1861(d); 12 U.S.C. 3420(b); 31 U.S.C. 5326.

13 Respondent?s attempt to distinguish Landmark Comm. and Cooper as cases that ?involved a
sanction subsequent to restraint,? Opp. Br. at 13?14, is unavailing. As did the statutes in these cases, the
NSL non-disclosure provision indeed bars disclosure only as a subsequent punishment, rather than a
prior restraint. See 18 U.S.C. 1510(e) (imposing criminal penalties if a disclosure forbidden by an
NSL provision is made ?knowingly and with the intent to obstruct an investigation or judicial
proceeding?). The NSL statute therefore operates in the same manner as, for example, 18 U.S.C. 798,

-15-

Case Document 26-13 Filed 11/19/15 Page 17 of 23

Importantly, the nondisclosure restriction here does not raise the signi?cant concerns about
discretionary censorship that classic prior restraints do. In part, this is the case because the
nondisclosure provision is categorical, and not made on the basis of a discretionary determination about
the merits of commonly-expressive speech. Compare Freedman, 380 US. at 735 (requiring advance
licensing for ?lm distribution based on criteria such as ?moral. and proper? and ?debas[ing] or
corrupting?); City of Littleton V. Z1 Gifts D-4, 541 US. 774, 782-83 (2004). As the Fourth Circuit has
explained, not all prior restraints ?must provide Freedman ?s procedural safeguards? because a licensing
standard that is based on ?considerations of public safety and the like? is ?diametrically? different from
one that permits censorship. Covenant Media of S. C., LLC v. City of North Charleston, 493 F.3d 421,
431-32 (4th Cir. 2007). Second, because the information at issue here was not created independently of
the government itself, the object of the restriction is not to target expressive speech or conduct, but to

protect the government?s own interests in secrecy.l4 Cf Marchetti, 466 F.2d at 1315 (?The Government

 

prohibiting the disclosure of classi?ed information, which is ?precisely the kind of restriction that the
[Supreme] Court has deemed insuf?cient to constitute a prior restraint.? Cooper, 408 F.3d at 1215-16;
see Nebraska Press Ass ?11 v. Stuart, 427 US. 539, 591-92 (1976) (Brennan, ., concurring in judgment)
(explaining that in New York Times v. United States (?Pentagon Papers?), 403 US. 713 (1974), ?a
majority of the Court believed that the release of the documents . . . might even be prosecuted after
publication?).

14 Contrary to Respondent?s claim, the details included in, and existence of, the NSL at issue
here are not ?core ?political? speech,? such as, e. g. ?[t]he circulation of an initiative petition [containing]
the expression of a desire for political change and a discussion of the merits of the proposed change,?
Meyer v. Grant, 486 US. 414, 421-22 (1988), ?speech to protest racial discrimination,? NAACP v.
Claiborne Hardware, 458 US. 886, 915 (1982), a ?candidate?s political views,? Libertarian Party v.
Judd, 718 F.3d 308, 315 (4th Cir. 2013), or even ?flags ofa political sort.? Am. Legion Post 7 of
Durham v. City of Durham, 239 F.3d 601, 607 (4th Cir. 2001). Respondent remains free to discuss ?the
extent to which the government can conduct investigations into United States citizens . . . the means by
which the government can compel? responses to NSLs, and NSL nondisclosure requirements in general
without reference to the details of this particular NSL or its target. As explained in Petitioner?s opening
brief, the NSL nondisclosure requirement here is carefully drawn to limit Respondent?s speech only
regarding the facts of this NSL, for which secrecy is essential to national security. See Pet?s Br. at 10-

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Case Document 26-13 Filed 11/19/15 Page 18 of 23

. . . has the right and the duty to strive for internal secrecy about the conduct of governmental affairs in
areas in which disclosure may reasonably be thought to be inconsistent with the national 

In addition, as Freedman and Mukasey make clear, even if the NSL nondisclosure requirement
here is evaluated as a prior restraint, the requirement is constitutional. In Freedman, the Supreme Court
adopted ?procedural safeguards? that would ?obviate the dangers? of a prior restraint by minimizing the
burdens of administrative and judicial review. 380 U.S. at 58; see also Mukasey, 529 F.3d 877. Under
Freedman ?any [administrative] restraint prior to judicial review can be imposed only for a speci?ed
brief period during which the status quo must be maintained.? Covenant Media, 493 F.3d at 431
(quoting Inc. V. City of Dallas, 493 U.S. 215, 227 (1990) (plurality opinion)). Here, upon
receiving the objection to continued application of the nondisclosure requirement from Respondent, the
Government sought judicial review within approximately thirty days and thus, Respondent ?is . . . not
challenging the NSL on this ground.? Opp. Br. at 6 n.6 (recognizing the Government?s adoption of
the requirement as set out in Mukasey, 549 F.3d at 879). Second, Freedman identi?ed a need for
?expeditious judicial review? of the nondisclosure determination. Covenant Media, 493 F.2d 431; see
Freedman, 380 U.S. 60. Here, the parties agreed to, and the Court adopted, an expeditious schedule for
brie?ng and presentation of this issue to the Court. Third, Freedman required that the Government
?bear the burden of going to court to suppress the speech and bear the burden of proof once in court.?
Thomas v. Chicago Park District, 534 U.S. 316, 321 (2002) (quoting 493 U.S. at 227);

Freedman, 380 U.S. at 58~60. Accordingly, the Government initiated this proceeding and submitted to

 

13; Classified Good Decl.

15 As Petitioner explained in its opening brief, the NSL nondisclosure requirements are therefore
similar to the classi?cation of information under Executive Order 13292, which ?does not constitute a
prior restraint in the traditional sense.? See 18 U.S.C. 793 (providing criminal penalties for improper
disclosure of classi?ed information); McGehee V. Casey, 718 F.2d 1137, 1147 (DC. Cir. 1983).

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Case Document 26-13 Filed 11/19/15 Page 19 of 23

the Court the Good Declaration (in both classi?ed and unclassi?ed form), thereby assuming the burden
of proof to demonstrate that the continued need for secrecy in this case. is well-founded which it is.
See Part I, supra; Classi?ed Good Decl. at 1m 18, 26-30.

The Fourth Circuit?s conclusions in Marc/19m likewise con?rm that, even if tested as a prior
restraint, the NSL nondisclosure requirement is properly imposed on Respondent here. In Marchettz? 
In Marchetti which treated as a prior restraint an injunction against a former CIA employee against
disclosing classi?ed information the Court of Appeals held that the ?system of prior restraint? was
justi?ed, based largely on ?the Government?s need for secrecy in this area.? See Marcherti, 466 F.2d at
1317. Importantly, the Government?s need for secrecy is not contingent on the identity of the person
holding the information, but rather, the fact that it is the Government?s information and that ?the risk of
harm from disclosure is so great and maintenance of the con?dentiality of the information so necessary?
that ordinary criminal sanctions are insuf?cient to prevent disclosure. Id. at 1317. Here, where
Respondent seeks to inform the target of the investigation of the investigation itself, see Opp. Br. I 
n.1, the risk of harm is extraordinarily great, as explained in the Good Declaration. See Classi?ed Good
Decl. at 9, 23-27. Congress and the Executive Branch have both determined to rely on the
individualized determination by a senior FBI of?cial regarding such national security harms, and so this
Court, as did the Court of Appeals in Marchettz', should conclude that the NSL is ?not a violation of?
Respondent?s First Amendment rights. Id. at 1317. For these reasons, the nondisclosure requirement

passes constitutional muster as applied to Respondent.

-18-

Case Document 26-13 Filed 11/19/15 Page 20 of 23

The NSL Statute?s Judicial Review Procedures, as Amended by the USA
FREEDOM Act, Are Constitutional.

As explained above, a facial challenge is not appropriate here because the NSL nondisclosure
requirement has been constitutionally applied to Respondent and Respondent has failed to demonstrate
that the statute is overbroad. See supra Part 1. Even if the Court is inclined to consider Respondent?s
challenge, however, the judicial review procedures Respondent challenges in the NSL statute (as that
statute has been amended by the USA FREEDOM Act) are consistent with the Constitution.

Respondent objects to two components of the judicial review procedure for NSLs. First,
Respondent asserts that the fact that the statute is satis?ed whenever the FBI director says that speci?ed
harms ?may? occur renders the statute unconstitutional because such uncertainty leaves the statute less
than ?narrowly tailored.? .Opp. Br. at 19. But certainty is impossible in making predictions necessary to
preserve national security and other compelling Government interests, and courts are not in any better
position than law?enforcement, intelligence, and other national security personnel to exercise the expert
judgment required to make those predictions. Cf. Halperin v. CIA, 629 F.2d 144, 149 (DC. Cir. 1980);
accord Mukasey, 549 F.3d 875. Moreover, the same uncertainty lies in every other instance where
courts have af?rmed secrecy requirements: the harms feared from disclosure of classi?ed information,
grand jury proceedings, and judicial misconduct investigations are all possible, not certain: they ?may?
occur. See Pet?s Br. at 14?15 (citing, Butterworrh, 494 US 624; irstAm. Coalition v. Judicial
Review Bd. 784 F.2d 467, 479 (3d Cir. 1986)).16 Reviewing courts may assess whether the proffered

national security harms are persuasive in their predictive power, and determine whether to enforce NSL

 

16 The recognition that the harms feared from disclosure in these other contexts may adequately
support a prior restraint puts to rest Respondent?s contention that the statute is constitutionally in?rm
because ?the enumerated harms . . . cover more than national security harms.? Opp. Br. at 19.

-19-

Case Document 26-13 Filed 11/19/15 Page 21 of 23

nondisclosure provisions accordingly.

Respondent also contends that the prior version of 18 U.S.C. 3511(b)(3) violated the
constitutional separation of powers of Freedman by making certain certi?cations "conclusive" unless
made in bad faith, thereby review. Opp. Br. at 5, 7, 20-22 (quoting In re
NSL, 930 F. Supp. 2d at 1077). With adoption of the USA FREEDOM Act, Congress has replaced the
challenged provision with a discretionary determination by the Court that ?thch is reason to believe that
disclosure ol?the information subject to the nondisclosure requirement during the applicable time
period? would cause the enumerated harm to national security.'7 As the Court of Appeals held in
Mukascy in adopting a similar reading of the prior statute, a statutory standard that provides district
courts with the opportunity to ?discharge their review responsibility? in this way is constitutional.

549 F.3d 882.[8

Finally, Respondent?s objection to having judicial review conducted in an under seal proceeding
is misplaced. See Opp. Br. 3.2. 18 U.S.C. 35] 1(d) speci?cally authorizesjudicial review to
be conducted under seal, and for the reasons explained in the Good Declaration, maintaining this
litigation and the identity of Respondent under seal are critical to avoiding the national security harms
identi?ed therein. See generally Classified Good Decl. The Government will work to prepare redacted

versions of the ?lings in this matter that protect information that would cause the very harms that the

 

'7 the new version of 18 U.S.C. 351 no distinction is made in the statute between
judicial review ofan objection made immediately upon receipt of an NSL, and an objection made later.
Sec USA FREEDOM Act 502(g)(l 

 

-20-

Case Document 26-13 Filed 11/19/15 Page 22 of 23

NSL statute itself seeks to avoid, and will move the Court to partially unseal ?lings consistent with those
necessary redactions as soon as practicable.19
CONCLUSION
The NSL nondisclosure requirement applied to Respondent here is justi?ed under the facts set
forth by Good in his classi?ed declaration and satis?es or exceeds the applicable statutory and
constitutional standards. The Court should therefore grant the Attorney General?s Petition, declare the

nondisclosure requirement valid, and enjoin respondent to comply.

Dated: June 22, 2015 Respectfully submitted,

BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General

ROD J. ROSENSTEIN

 

19 Respondent?s suggestion that ?it is entitled to know more? about the classi?ed matters
discussed in Good?s Declaration because it has retained counsel with a ?clearance? is not well-
founded. The Court should not direct the Government to provide Respondent or his counsel with
information for which disclosure risks national security harms. The Executive Branch exercises control
over the information, and its decisions regarding such information (including how best to protect the
information from inadvertent disclosure) are entitled to the utmost deference. Cf. Holy Land Found. v.
Ashcroft, 333 F.3d 156, 164 (DC. Cir. 2003) (recognizing that disclosure of classi?ed information ?is
within the privilege and prerogative of the executive, and we do not intend to compel a breach in the
security which that branch is charged to protect?); In re United States, 1 F.3d 1251 (Table), 1993 WL
262656 at 9 (Fed. Cir. Apr. 19, 1993) (?nding that, under separation of powers principles, ?the access
decisions of the Executive may not be counterrnanded by either coordinate Branch?). It is essential to
recognize that every additional disclosure of national security information increases the risk to national
security, irrespective of the trustworthiness of any particular individual: ?It is not to slight judges,
lawyers, or anyone else to suggest that any such disclosure carries with it serious risk that highly
sensitive information may be compromised.? Halkin v. Helms, 598 F.2d 1, 7 (DC. Cir. 1978) (quoting
Alfred A. Knopf v. Colby, 509 F.2d 1362, 1369 (4th Cir. 1975)). Indeed, the Supreme Court has
acknowledged that even disclosures to a court in camera and ex parte could pose such risks. See, e. g,
United States v. Reynolds, 345 US. 1, 10 (1953) court should not jeopardize the security which
the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge
alone, in chambers?).

_21_

Case Document 26-13 Filed 11/19/15 Page 23 of 23

-22-

United States Attorney

JACQUELINE COLEMAN SNEAD
Assistant Director, Federal Programs Branch

ERIC J. #200663)
Senior Counsel

STEVEN Y. BRESSLER

Senior Trial Counsel

US. Department of Justice

Civil Division, Federal Programs Branch
PO. Box 883

Washington, DC. 20044
Telephone: (202) 353?0533
Facsimile: (202) 616-8470
Eric.Soskin@usdoj. gov