Earlier this week, the public got a look at that rare occurrence in a national security case: a court lifting a gag on the recipient of a surveillance request. On August 28, Judge Victor Marrero of the Southern District of New York ruled that the final vestiges of the non-disclosure requirement imposed on Nicholas Merrill in conjunction with a national security letter issued by the FBI in 2004 could no longer be justified by the NSL statute. The ruling will, if it stands, entail the first public revelation of the complete contents of an NSL “attachment,” which lists the specific information the FBI sought to obtain from Merrill about a customer of his ISP business. It’s also the first time a court has fully invalidated an NSL gag.
The decision is the culmination of more than a decade of litigation by Merrill, who fought alongside the ACLU to establish that NSL gag orders are prior restraints subject to stringent procedural requirements under the First Amendment. The lifting of Merrill’s gag is a milestone to be justifiably celebrated by civil liberties advocates, for whom the tens of thousands of NSLs issued a year signify extreme secrecy and lack of judicial oversight in national security investigations. In a press release, Merrill expressed hope that the decision would “finally allow Americans to engage in an informed debate about … the scope of the government’s warrantless surveillance powers.” Indeed, service providers who are under NSL or FISA gags were necessarily hobbled from full participation in the legislative process that led to the passage of the USA Freedom Act this June. As Brett Max Kaufman explained in Just Security last year, this asymmetry of information has sparked a number of First Amendment challenges, not just by traditional civil libertarians but large tech companies as well.
But it should also be noted that the Merrill court reached this outcome not by deciding any First Amendment issues but by applying the common-sense principle — established in previous rounds of the litigation — that the government does not have a “good reason” for barring individuals from speaking about information in an NSL that is already public. Because the government agreed in 2010 and 2014 to let Merrill publicly disclose his own identity and the identity of the NSL target, all that remained in the gag were the contents of the attachment not already revealed in the eleven years of his fight. Left for another day is the question of whether the current NSL regime — shaped by an earlier Second Circuit decision in Merrill’s case and the amendments introduced in USA Freedom — pass First Amendment scrutiny. More on that below.
Ably represented in this round of litigation by students and clinicians from Yale Law School’s Media Freedom and Information Access Clinic, Merrill showed that all of this information was either described in the NSL statute itself or otherwise publicly disclosed by the government, as in a sample NSL attachment published by the DOJ’s Office of Legal Education. As a result, the meat of the opinion is given over to mechanically comparing this public information to the sealed portions of the Merrill NSL attachment. While that might not make for thrilling legal analysis, it does lead to some ironic redactions: Because the court stayed its ruling to allow the government time to appeal, the public version of the opinion blacks out information from the attachment which the court repeatedly states is identical to unredacted public information.
It’s not that Judge Marrero is unsympathetic to the First Amendment case against NSLs. In his eleven years presiding over Merrill’s challenge in the district court, Marrero twice ruled that the statute’s non-disclosure provision was an unconstitutional prior restraint preventing recipients from revealing information about NSLs to anyone for an indefinite amount of time. However, the government’s appeal of the latter of these decisions produced the Second Circuit’s 2008 ruling in Doe v. Mukasey, in which the appeals court identified constitutional infirmities but offered a procedure by which it believed the statute could be applied consistent with Supreme Court precedent on prior restraints.
Specifically, the Second Circuit faulted the NSL statute for allowing the government to issue an NSL and gag the recipient without also placing the burden on the government to initiate judicial review and demonstrate that there was a “good reason” to believe that disclosure of the NSL would risk harm related to the government’s investigation. The court’s solution was a kludge it called “reciprocal notice,” whereby the government could alert recipients to the availability of judicial review and institute review only in those cases where the recipient affirmatively requested it.
The Mukasey decision was frustrating to civil liberties advocates, who felt that the reciprocal notice procedure still failed to provide for true judicial review consistent with the First Amendment and the Supreme Court’s 1965 decision in Freedman v. Maryland. In any event, after Mukasey, challenges to the NSL statute were difficult to come by. Most NSL recipients did not have the tenacity of Nicholas Merrill. Although NSLs were often eclipsed in the post-Snowden press by the NSA’s telephone records program, the Presidential Review Group appointed to assess the intelligence community’s activities recommended that NSLs be issued only with prior judicial approval.
Instead of overhauling the NSL statute, however, the USA Freedom Act simply added a number of minor amendments, including some, although not all, of the Mukasey court’s suggestions on how to apply the statute in a constitutional manner. The law also mandates that the government adopt unspecified procedures for periodically reviewing NSL gags, but this requirement doesn’t apply to the hundreds of thousands of NSLs issued before USA Freedom’s passage, including Merrill’s. Judge Marrero’s avoidance of the First Amendment issues means the Merrill ruling doesn’t provide much guidance on these pre-existing NSLs, nor does it say anything about the constitutionality of the NSL statute as amended by USA Freedom.
For that, we’ll have to wait for a decision from the other side of the country. Represented by the Electronic Frontier Foundation, two unnamed NSL recipients are in the midst of their own years-long challenge to the NSL statute on First Amendment grounds. (Disclosure: in my role at EFF, I am part of the team representing these recipients.) In 2013, Judge Susan Illston of the Northern District of California went further than the Second Circuit and ruled that the NSL statute was unconstitutional on its face. That ruling was fully briefed and argued on appeal to the Ninth Circuit when USA Freedom passed. Despite both parties asking the appeals court to decide the constitutionality of the revised statute, the Ninth Circuit remanded to Judge Illston, setting the litigation back significantly. (This parallels the procedural course in Merrill’s case when Congress previously amended the statute during the appeal of Judge Marrero’s first ruling.)
Like Marrero, Judge Illston was previously skeptical that NSLs could be constitutionally issued with gag orders without meaningful judicial review initiated by the government. For that reason, it’s worth watching the proceedings in California closely to see if the changes in USA Freedom are overturned as so much window dressing.