Case 3:17-cv-03263-VC Document 46 Filed 05/14/19 Page 1 of 3

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

ELECTRONIC FRONTIER
FOUNDATION,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF
JUSTICE,
Defendant.

Case No. 17-cv-03263-VC
ORDER GRANTING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY
JUDGMENT AND DENYING
DEFENDANT’S MOTION FOR
PARTIAL SUMMARY JUDGMENT
Dkt. Nos. 32, 33

The motion for partial summary judgment by the Electronic Frontier Foundation is
granted, and the government’s motion for partial summary judgment is denied. Pursuant to the
Freedom of Information Act, the government must disclose the names of companies that have
received “termination letters” – that is, letters by which the FBI lifts the requirement that
companies refrain from disclosing their prior receipt of a particular national security letter, based
on the FBI’s determination that nondisclosure of that national security letter is no longer
necessary to protect an investigation or national security.
The government invokes Exemption 7(E) of the Freedom of Information Act, which
provides that the government need not turn over information that “would disclose techniques and
procedures for law enforcement investigations….” 5 U.S.C. § 552(b)(7)(E). The “technique” the
government alleges could be revealed by aggregate disclosure of terminations is a potential trend
regarding the overall issuance of national security letters – that is, which companies are receiving
more national security letters and which companies are receiving fewer. This matters, according
to the government, because criminals could then use this information to migrate to the
communication platforms of companies that the criminals believe are less likely to receive
national security letters. But the government’s assertion that aggregate disclosure of terminations

 Case 3:17-cv-03263-VC Document 46 Filed 05/14/19 Page 2 of 3

would reveal any trend in the issuance of national security letters is dubious, for several reasons.
As an initial matter, the number of termination letters is minute compared to the overall
number of national security letters. From 2015 to 2017, the FBI issued over 37,000 national
security letters, but issued termination letters lifting nondisclosure requirements for only 750
national security letters. See Seidel Decl. ¶ 9, Dkt. No. 32-2. This alone casts doubt on whether
disclosure of the terminations will reveal any sort of technique or procedure – at least beyond the
already well-known technique of using national security letters.
Perhaps if the terminations were issued for a random sampling of national security letters,
such a small sample size could still shed light on the overall universe. But these are particular
investigations, of particular people, for which the FBI has determined it is not a problem to lift
the nondisclosure requirement. There’s no reason to expect that company usage patterns for that
unique subset of people would reflect the company usage patterns for everyone being
investigated, either now or in the future.
Relatedly, the terminations merely shed light on past decisions made by the FBI to issue
national security letters, as opposed to decisions the FBI is currently making. Under the
procedures adopted following passage of the USA Freedom Act, the FBI does not even consider
whether a nondisclosure requirement can be lifted in an active investigation until three years
have passed (and even at the three-year mark, it may well determine that the nondisclosure
requirement must remain in effect). See Termination Procedures for National Security Letter
Nondisclosure Requirement at 1-2, Dkt. No. 32-3. In a world where technology and
communication methods are changing rapidly, there’s no basis for assuming that a tiny sampling
of decisions the FBI made several years prior will shed meaningful light on the decisions it’s
making today.
What’s more, many companies already regularly disclose to the public their receipt of
national security letters once nondisclosure requirements are lifted. Thus, to the extent criminals
wish to identify which companies have had nondisclosure requirements lifted (which does not
seem useful for the reasons discussed above), much of this information is already publicly

2

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available. And theoretically, all of it could be available, because any company whose
nondisclosure requirement has been lifted can, by definition, disclose its receipt of the associated
national security letter. This is the natural result of Congress’s judgment that the use of national
security letters should not be concealed from the public once concealment is no longer necessary
to protect an investigation or national security, which further undermines the government’s
assertion that aggregate disclosure of this information would fall within Congress’s definition of
“disclos[ing] techniques and procedures for law enforcement investigations.”
Because the government’s allegation that aggregate disclosure of termination letters
would reveal a law enforcement trend is so dubious, it was incumbent on the government to
illustrate in a classified document – perhaps using specific examples – how requiring the
government to turn over this seemingly stale and harmless information would constitute
disclosure of a law enforcement technique or procedure, or why it would risk assisting criminals
in avoiding FBI detection. But the declaration of Alan Kohler, which the Court reviewed in
camera, does not accomplish that.1
A telephonic case management conference is scheduled for May 29, 2019, at 9:30 a.m. to
discuss further proceedings in this case, including setting a deadline for the disclosure of the
information covered by this ruling. A case management statement is due by May 22, 2019. The
plaintiff should provide the Court and all other parties a conference line and applicable access
code to use during the hearing no later than three court days prior to the case management
conference by way of email to the Court (vccrd@cand.uscourts.gov) with a Cc to opposing
counsel.
IT IS SO ORDERED.
Dated: May 14, 2019
______________________________________
VINCE CHHABRIA
United States District Judge

1

Incidentally, the Electronic Frontier Foundation contends the government has waived its right
to invoke the 7(E) Exemption, but the Court disagrees.

3