UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT. August Term Heard: August 27, 2008 Decided: December 15, Docket No.

Transcription

1 cv John Doe Inc., et al. v. Mukasey, et al. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2008 Heard: August 27, 2008 Decided: December 15, 2008 Docket No cv JOHN DOE, INC., JOHN DOE, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Plaintiffs-Appellees, v. MICHAEL B. MUKASEY, in his official capacity as U.S. Attorney General of the United States, ROBERT MUELLER, in his official capacity as Director of the Federal Bureau of Investigation, VALERIE E. CAPRONI, in her official capacity as General Counsel of the Federal Bureau of Investigation, Defendants-Appellants Before: NEWMAN, CALABRESI, and SOTOMAYOR, Circuit Judges. Appeal by the Government from the September 7, 2007, judgment of the United States District Court for the Southern District of New York (Victor Marrero, District Judge), in litigation concerning First Amendment challenges to the constitutionality of statutes governing the issuance and judicial review of National Security Letters ( NSLs ), 18 U.S.C. 2709, 3511(b), which request records from providers of wire or electronic communication services. The judgment, stayed on appeal, enjoins FBI officials from (1) issuing NSLs under

2 section 2709, (2) enforcing the nondisclosure requirement of subsection 2709(c), and (3) enforcing the provision for judicial review of the nondisclosure requirement contained in subsection 3511(b). The Court of Appeals construes the statutes to avoid some constitutional challenges, rules that subsections 2709(c) and 3511(b) are unconstitutional to the extent that they impose a nondisclosure requirement on NSL recipients without placing on the Government the burden of initiating judicial review of such a requirement, rules that subsections 3511(b)(2) and (b)(3) are unconstitutional to the extent that, upon such review, a governmental official s certification that disclosure may endanger the national security of the United States or interfere with diplomatic relations is treated as conclusive, modifies the district court s injunction by limiting it to enjoining FBI officials from enforcing the nondisclosure requirement of section 2709(c) in the absence of Government-initiated judicial review, and remands for a hearing. Affirmed in part, reversed in part, and remanded. Gregory G. Katsas, Asst. Atty. General, Washington, D.C. (Jeffrey S. Bucholtz, Acting Asst. Atty. General, Jonathan F. Cohn, Deputy Asst. Atty. General, Douglas N. Letter, Scott R. McIntosh, U.S. Department of Justice, Washington, D.C.; Michael J. Garcia, U.S. Atty., Jeffrey Oestericher, Benjamin H. Torrance, Asst. U.S. Attys., New York, N.Y., on the -2-

3 brief), for Defendants-Appellants. Jameel Jaffer, New York, N.Y. (Melissa Goodman, L. Danielle Tully, American Civil Liberties Union Foundation, New York, N.Y.; Arthur N. Eisenberg, New York Civil Liberties Union Foundation, New York, N.Y., on the brief), for Plaintiffs- Appellees. (Claire E. Coleman, Brune and Richard LLP, New York, N.Y.; Peter Barbur, Ass n of the Bar of the City of New York, N.Y., submitted a brief for amicus curiae The Ass n of the Bar of the City of New York, in support of Plaintiffs-Appellees.) (Meredith Fuchs, National Security Archive, George Washington University, Washington, D.C.; Marcia Hofmann, Electronic Frontier Foundation, San Francisco, Cal., submitted a brief for amici curiae National Security Archive and Electronic Frontier Foundation, in support of Plaintiffs-Appellees.) (Theresa A. Chmara, Brian Hauck, Anne E. Ralph, Jenner & Block LLP, Washington, D.C., for amici curiae American Library Ass n, et al., in support of Plaintiffs- Appellees.) JON O. NEWMAN, Circuit Judge. This appeal concerns challenges to the constitutionality of statutes regulating the issuance by the Federal Bureau of Investigation ( FBI ) of a type of administrative subpoena generally known as a National Security Letter ( NSL ) to electronic communication service providers ( ECSPs ). See 18 U.S.C. 2709, 3511 (collectively the NSL statutes ). ECSPs are typically telephone -3-

4 companies or Internet service providers. An NSL, in the context of 1 this appeal, is a request for information about specified persons or entities who are subscribers to an ECSP and about their telephone or Internet activity. Primarily at issue on this appeal are challenges to the provisions (1) prohibiting the recipient from disclosing the fact that an NSL has been received, see 18 U.S.C. 2709(c), and (2) structuring judicial review of the nondisclosure requirement, see id. 3511(b). These challenges arise on an appeal by the United States from the September 7, 2007, judgment of the District Court for the Southern District of New York (Victor Marrero, District Judge), enjoining FBI officials from (1) issuing NSLs under section 2709, (2) enforcing the nondisclosure requirement of subsection 2709(c), and (3) enforcing the provisions for judicial review of the nondisclosure requirement 2 contained in subsection 3511(b). See Doe v. Gonzales, 500 F. Supp. 2d 379 (S.D.N.Y. 2007) ( Doe II ). The District Court ruled that subsections 2709(c) and 3511(b) are unconstitutional on First Amendment and separation-of-powers grounds, see id. at , , 1 For authority to issue NSLs in other contexts, see 12 U.S.C. 3414(a)(5) (financial records); 15 U.S.C. 1681u (credit history); 15 U.S.C. 1681v (full credit reports); 50 U.S.C. 436 (information concerning investigation of improper disclosure of classified information). 2 All references to sections are to those in the current version of Title 18, unless otherwise indicated. -4-

5 416-22, and that subsection 2709(c) could not be severed from section 2709, see id. at We agree that the challenged statutes do not comply with the First Amendment, although not to the extent determined by the District Court, and we also conclude that the relief ordered by the District Court is too broad. We therefore affirm in part, reverse in part, and remand for further proceedings. Background The parties. The Plaintiffs-Appellees are an Internet service provider (John Doe, Inc.), the provider s former president (John Doe), the American Civil Liberties Union ( ACLU ), and the American Civil 3 Liberties Union Foundation ( ACLUF ). The Defendants-Appellants are 3 There is some slight confusion as to the status of John Doe, Inc., and John Doe in this litigation, but the confusion has no bearing on any of the issues or the resolution of this appeal. The captions of the District Court s first and second opinions list John Doe as a plaintiff, but do not list John Doe, Inc., see Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004) ( Doe I ), and Doe II, 500 F. Supp. 2d 379, and there is no reference to John Doe, Inc., in either opinion. The first opinion states that John Doe is an internet access firm. Doe I, 334 F. Supp. 2d at 475. The second opinion does not indicate whether John Doe is the corporation or its former president. The second opinion grants in part the motion of John Doe. See Doe II, 500 F. Supp. 2d at 425. However, the Plaintiffs second amended complaint lists as parties both the corporation and the former president, and the briefs filed in this Court by all parties include John Doe, Inc., and John Doe in the captions as the Plaintiffs-Appellees. We will assume that both the corporation and its former president have been and continue to be Plaintiffs-Appellants, and they are so identified (by pseudonyms) in the caption of this appeal. -5-

6 the Attorney General, the Director of the FBI, and the General Counsel of the FBI, all sued in their official capacities. The NSL. In February 2004, the FBI delivered the NSL at issue in this litigation to John Doe, Inc. The letter directed John Doe, Inc., to provide the [FBI] the names, addresses, lengths of service and electronic communication transactional records, to include [other information] (not to include message content and/or subject fields) for [a specific] address. The letter certified that the information sought was relevant to an investigation against international terrorism or clandestine intelligence activities and advised John Doe, Inc., that the law prohibit[ed] any officer, employee or agent of the company from disclosing to any person that the FBI has sought or obtained access to information or records pursuant to the NSL provisions. The letter also asked that John Doe provide the relevant information personally to a designated FBI office. Section 2709 (2004 version). Section 2709 was originally enacted in 1986 as part of Title II of the Electronic Communication Privacy Act of 1986, Pub. L. No , 201, 100 Stat. 1848, (1986). It was amended in 1993 by Pub. L. No , 107 Stat (1993), in 1996 by Pub. L. No , 110 Stat (1996), and in 2001 by the USA Patriot Act, Pub. L. No , 115 Stat. 272, 365 (2001). -6-

7 Subsection 2709(a) imposes a duty on ECSPs to comply with requests for specified information about a subscriber, and subsection 2709(b) authorizes the Director of the FBI and other FBI officials to request specified information about a subscriber from ECSPs. The texts of subsections 2709(a) and (b), as they existed in 2004, when this lawsuit was filed (the current versions are unchanged) are set 4 out in the margin. Subsection 2709(c), as it existed in 2004, imposed 4 Subsection 2709(a) provides: (a) Duty to provide. A wire or electronic communication service provider shall comply with a request for subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession made by the Director of the Federal Bureau of Investigation under subsection (b) of this section. 18 U.S.C. 2709(a). The statute was not intended to require disclosure of the content of electronic communications. See S. Rep. No , at 44 (1986), as reprinted in 1986 USCCAN Subsection 2709(b) provides: (b) Required Certification. The Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director, may (1) request the name, address, length of service, and local and long distance toll billing records of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service provider to which the request is made that the name, address, length of service, and toll billing records sought are relevant to an authorized investigation to protect -7-

8 a blanket nondisclosure requirement prohibiting an ECSP from disclosing receipt of an NSL. The text of subsection 2709(c), as it existed in 2004 (it has since been changed), is set out in the margin. 5 The lawsuit and the District Court s first decision. The Plaintiffs filed this lawsuit in April 2004 and an amended complaint in May They contended that section 2709 violated the First and Fourth Amendments by authorizing the FBI to compel the disclosure of against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States; and (2) request the name, address, and length of service of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service provider to which the request is made that the information sought is relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution of the United States. 18 U.S.C. 2709(b). 5 Subsection (c), in 2004, provided: (c) Prohibition of certain disclosure. No wire or electronic communication service provider, or officer, employee, or agent thereof, shall disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records under this section. 18 U.S.C. 2709(c) (2000). -8-

9 private records relating to constitutionally protected speech and association; they also contended that the nondisclosure requirement of subsection 2709(c) violated the First Amendment by permanently barring NSL recipients from disclosing that the FBI had sought or obtained information from them. On the Plaintiffs motion for summary judgment, the District Court ruled primarily that section 2709 (presumably the disclosure requirements of subsections 2709(a) and (b)) was unconstitutional under the Fourth Amendment because it authorized coercive searches effectively immune from any judicial process, Doe v. Ashcroft, 334 F. Supp. 2d 471, (S.D.N.Y. 2004) ( Doe I ), and that the nondisclosure requirement of subsection 2709(c) was unconstitutional under the First Amendment because it was an unjustified prior restraint and a content-based restriction on speech, see id. at Nearly one year later, a District Court in Connecticut preliminarily enjoined enforcement of the nondisclosure requirement of subsection 2709(c), finding a probability of success on the claim that subsection 2709(c) was unconstitutional under the First Amendment because it was an unjustified prior restraint and content-based restriction. See Doe v. Gonzales, 386 F. Supp. 2d 66, 73-75, 82 (D. Conn. 2005) ( Doe CT ). Amendments to the NSL statutes. While appeals in Doe I and Doe CT were pending, Congress amended the NSL statutes in two respects. -9-

10 See USA Patriot Improvement and Reauthorization Act of 2005, 115, 116(a), Pub. L. No , 120 Stat. 192, (Mar. 9, 2006) ( the Reauthorization Act ), amended by USA Patriot Act Additional Reauthorizing Amendments Act of 2006, 4(b), Pub. L. No , 120 Stat. 278, 280 (Mar. 9, 2006) ( Additional Reauthorization Act ), codified at 18 U.S.C.A. 2709(c) (West Supp. 2008). First, although leaving intact subsections 2709(a) and (b), requiring compliance with NSLs, Congress amended the nondisclosure prohibition of subsection 2709(c) to require nondisclosure only upon certification by senior FBI officials that otherwise there may result 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 6 any person. Id. 2709(c)(1) ( the enumerated harms ). The Reauthorization Act amended subsection 2709(c) by replacing the single paragraph of former subsection 2709(c) with four subdivisions, the fourth of which was amended by the Additional Reauthorization Act. We consider below the text of amended subsection 2709(c), which is set 6 There is an exception to the disclosure prohibition for those to whom disclosure is necessary to comply with the NSL or for an attorney, see 18 U.S.C. 2709(c)(1), but these persons become subject to the nondisclosure requirement, see id. 2709(c)(3). -10-

11 out in the margin. 7 Second, in the Reauthorization Act, Congress 7 Subsection 2709(c), as amended by the Additional Reauthorization Act, provides: (c) Prohibition of certain disclosure. (1) If the Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director, certifies that otherwise there may result 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, no wire or electronic communications service provider, or officer, employee, or agent thereof, shall disclose to any person (other 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 the Federal Bureau of Investigation has sought or obtained access to information or records under this section. (2) The request shall notify the person or entity to whom the request is directed of the nondisclosure requirement under paragraph (1). (3) Any recipient disclosing to those persons necessary to comply with the request or to an attorney to obtain legal advice or legal assistance with respect to the request shall inform such person of any applicable nondisclosure requirement. Any person who receives a disclosure under this subsection shall be subject to the same prohibitions on disclosure under paragraph (1). (4) At the request of the Director of the Federal Bureau of Investigation or the designee of the Director, any person making or intending to make a disclosure under this section shall identify to the Director or such designee the person to whom such disclosure will be made or to whom such disclosure was made prior to the request, except that nothing in this section shall require a person to inform the Director or such designee of the identity of an attorney to whom disclosure was made or will be made to obtain legal advice or legal assistance with respect to the request under subsection (a). -11-

12 added provisions for judicial review, now codified in section 3511, to permit the recipient of an NSL to petition a United States district court for an order modifying or setting aside the NSL, see 18 U.S.C.A. 3511(a) (West Supp. 2008), and the nondisclosure requirement, see id. 3511(b). The NSL may be modified if compliance would be unreasonable, oppressive, or otherwise unlawful. Id. 3511(a). The nondisclosure requirement, which prohibits disclosure by the NSL recipient of the fact that the FBI has sought or obtained access to the requested information, may be modified or set aside, upon a petition filed by the NSL recipient, id. 3511(b)(1), if the district court finds that there is no reason to believe that disclosure may endanger the national security of the United States or cause other of the enumerated harms (worded slightly differently from subsection (c)(1)), see id. 3511(b)(2), (3). The nondisclosure requirement 18 U.S.C.A. 2709(c) (West Supp. 2008). The only change made by the Additional Reauthorization Act was to clarify in subdivision (4) of subsection 2709(c) that the recipient of an NSL need not notify the FBI of the identity of an attorney to whom disclosure was made or will be made to obtain legal advice or legal assistance with respect to the request under subsection (a), id., while the original version of subdivision (4) had stated that in no circumstance shall a person be required to inform the Director or such designee that the person intends to consult an attorney to obtain legal advice or legal assistance. Id. (Historical and Statutory Notes). 8 Subsection 3511(b)(2) applies to petitions filed within one year of the issuance of an NSL. A companion provision, subsection 3511(b)(3), using identical terms, applies to petitions filed more -12-

13 further provides that if the Attorney General or senior governmental officials certify that disclosure may endanger the national security or interfere with diplomatic relations, such certification shall be treated as conclusive unless the court finds that the certification was made in bad faith. Id. The text of section 3511 is set out in the margin. 9 than one year after issuance of an NSL. 9 As amended by the Additional Reauthorization Act, section 3511 provides: (a) The recipient of a request for records, a report, or other information under section 2709(b) of this title, section 626(a) or (b) or 627(a) of the Fair Credit Reporting Act, section 1114(a)(5)(A) of the Right to Financial Privacy Act, or section 802(a) of the National Security Act of 1947 may, in the United States district court for the district in which that person or entity does business or resides, petition for an order modifying or setting aside the request. The court may modify or set aside the request if compliance would be unreasonable, oppressive, or otherwise unlawful. (b)(1) The recipient of a request for records, a report, or other information under section 2709(b) of this title, section 626(a) or (b) or 627(a) of the Fair Credit Reporting Act, section 1114(a)(5)(A) of the Right to Financial Privacy Act, or section 802(a) of the National Security Act of 1947, may petition any court described in subsection (a) for an order modifying or setting aside a nondisclosure requirement imposed in connection with such a request. (2) If the petition is filed within one year of the request for records, a report, or other information under section 2709(b) of this title, section 626(a) or (b) or 627(a) of the Fair Credit Reporting Act, section 1114(a)(5)(A) of the Right to Financial Privacy Act, or section 802(a) of the National Security Act of 1947, the -13-

14 court may modify or set aside such a nondisclosure requirement if it finds that there is no reason to believe that disclosure may endanger the national security of the United States, interfere with a criminal, counterterrorism, or counterintelligence investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person. If, at the time of the petition, the Attorney General, Deputy Attorney General, an Assistant Attorney General, or the Director of the Federal Bureau of Investigation, or in the case of a request by a department, agency, or instrumentality of the Federal Government other than the Department of Justice, the head or deputy head of such department, agency, or instrumentality, certifies that disclosure may endanger the national security of the United States or interfere with diplomatic relations, such certification shall be treated as conclusive unless the court finds that the certification was made in bad faith. (3) If the petition is filed one year or more after the request for records, a report, or other information under section 2709(b) of this title, section 626(a) or (b) or 627(a) of the Fair Credit Reporting Act, section 1114(a)(5)(A) of the Right to Financial Privacy Act, or section 802(a) of the National Security Act of 1947, the Attorney General, Deputy Attorney General, an Assistant Attorney General, or the Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director, or in the case of a request by a department, agency, or instrumentality of the Federal Government other than the Federal Bureau of Investigation, the head or deputy head of such department, agency, or instrumentality, within ninety days of the filing of the petition, shall either terminate the nondisclosure requirement or re-certify that 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. In the event of re-certification, the court may modify or set aside such a nondisclosure requirement if it finds that there is no reason to believe -14-

15 that disclosure may endanger the national security of the United States, interfere with a criminal, counterterrorism, or counterintelligence investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person. If the recertification that disclosure may endanger the national security of the United States or interfere with diplomatic relations is made by the Attorney General, Deputy Attorney General, an Assistant Attorney General, or the Director of the Federal Bureau of Investigation, such certification shall be treated as conclusive unless the court finds that the recertification was made in bad faith. If the court denies a petition for an order modifying or setting aside a nondisclosure requirement under this paragraph, the recipient shall be precluded for a period of one year from filing another petition to modify or set aside such nondisclosure requirement. (c) In the case of a failure to comply with a request for records, a report, or other information made to any person or entity under section 2709(b) of this title, section 626(a) or (b) or 627(a) of the Fair Credit Reporting Act, section 1114(a)(5)(A) of the Right to Financial Privacy Act, or section 802(a) of the National Security Act of 1947, the Attorney General may invoke the aid of any district court of the United States within the jurisdiction in which the investigation is carried on or the person or entity resides, carries on business, or may be found, to compel compliance with the request. The court may issue an order requiring the person or entity to comply with the request. Any failure to obey the order of the court may be punished by the court as contempt thereof. Any process under this section may be served in any judicial district in which the person or entity may be found. (d) In all proceedings under this section, subject to any right to an open hearing in a contempt proceeding, the court must close any hearing to the extent necessary to prevent an unauthorized disclosure of a request for records, a report, or other information made to any person or entity under section 2709(b) of this title, section 626(a) or (b) or 627(a) of the Fair Credit Reporting Act, section 1114(a)(5)(A) of the Right to Financial Privacy Act, or section 802(a) of the National Security Act of

16 The first appeal. On the Government s appeals in Doe I and Doe CT, this Court remanded Doe I for further consideration in light of the amendments to the NSL statutes, and dismissed Doe CT as moot in light of the Government s withdrawal of its objection to disclosure of the identity of the NSL recipient in that case. See Doe v. Gonzales, 449 F.3d 415, 421 (2d Cir. 2006). Withdrawal of the NSL. On November 7, 2006, the Government informed the District Court in the pending case that it was no longer seeking to enforce the request for information contained in the NSL that had been sent to John Doe with respect to information from John Doe, Inc. See Doe II, 500 F. Supp. 2d at 386 n.3. The District Court s second decision. On September 6, 2007, the District Court issued its second opinion, ruling, on cross-motions for Petitions, filings, records, orders, and subpoenas must also be kept under seal to the extent and as long as necessary to prevent the unauthorized disclosure of a request for records, a report, or other information made to any person or entity under section 2709(b) of this title, section 626(a) or (b) or 627(a) of the Fair Credit Reporting Act, section 1114(a)(5)(A) of the Right to Financial Privacy Act, or section 802(a) of the National Security Act of (e) In all proceedings under this section, the court shall, upon request of the government, review ex parte and in camera any government submission or portions thereof, which may include classified information. 18 U.S.C.A (West Supp. 2008). -16-

17 summary judgment, that, despite the amendments to the NSL statutes, subsections 2709(c) and 3511(b) are facially unconstitutional, see id. at 387, and that the Defendants-Appellants are enjoined from issuing NSLs under section 2709 and enforcing the provisions of subsections (c) and 3511(b), see id. at The Court stayed enforcement of its judgment pending appeal. See id. at 426. In a careful and comprehensive opinion the District Court viewed the fundamental question to be the extent of the authority that the First Amendment allows the government to exercise in keeping its use of NSLs secret, insofar as such secrecy inhibits freedom of speech. Id. at 395. The Court began its analysis by reaffirming its conclusion from Doe I that the nondisclosure requirement of subsection 2709(c), despite amendment, remains a prior restraint and a contentbased restriction on speech, id. at 397, subject to strict scrutiny, id. at 398. The analysis then proceeded in several steps. First, the Court, applying strict scrutiny and acknowledging that national security is a compelling state interest, ruled that the nondisclosure provisions invested executive officials with broad 10 The Court rejected the Plaintiffs challenge to the constitutionality of the provisions authorizing courtroom closure for proceedings under section 3511, see 18 U.S.C. 3511(d), and requiring a district court, upon the Government s request, to review ex parte and in camera Government submissions that may include classified information, see id. 3511(e). See Doe II, 500 F. Supp. 2d at The Plaintiffs-Appellees have not taken a cross-appeal to challenge these rulings. -17-

18 discretion to censor speech but failed to provide necessary procedural safeguards. See id. at Specifically, the Court, applying the teaching of Freedman v. Maryland, 380 U.S. 51 (1965), a motion picture licensing case, held that the nondisclosure provisions impermissibly placed the burden of initiating judicial review on the NSL recipient. See Doe II, 500 F. Supp. 2d at However, the Court rejected the Plaintiffs argument that the nondisclosure provisions invested executive officers with unbridled discretion to suppress speech in violation of Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969). See Doe II, 500 F. Supp. 2d at Second, the Court, relying on Dickerson v. United States, 530 U.S. 428, 437 (2000), and City of Boerne v. Flores, 521 U.S. 507, (1997), ruled that subsection 3511(b) violates the First Amendment and the principle of separation of powers because it prescribes a judicial review procedure and a standard of review inconsistent with First Amendment strict scrutiny requirements. Doe II, 500 F. Supp. 2d at Finally, the Court ruled that the nondisclosure provisions violate the First Amendment because they permit the FBI to issue nondisclosure orders that are not narrowly tailored in scope or duration. See id. at Specifically, the Court noted that the nondisclosure provisions close off a broad spectrum of speech at the core of the First Amendment--political criticism--and that the statute -18-

19 contains no requirement that the government act affirmatively and promptly to terminate the nondisclosure order if the need for secrecy dissipates. See id. at 422. The Court then ruled that the unconstitutional portions of the statute were not severable from the remainder of the statute. See id. at Specifically, the Court reasoned that because secrecy was integral to the statutory scheme that Congress envisioned, it would not have wanted the NSL statute to operate without the nondisclosure provisions. It therefore invalidated section 2709 in its entirety. See id. at 425. Discussion The validity of the NSL issued to John Doe, Inc., is no longer at issue because the Government has withdrawn it, but the prohibition on disclosing receipt of the NSL remains. We therefore consider only the Government s challenges to the District Court s rulings with respect to the nondisclosure requirement, although to the extent that the nondisclosure requirement encounters valid constitutional objections, we will consider the provisions authorizing issuance of NSLs in connection with the issue of severance. I. Applicable Principles The First Amendment principles relevant to the District Court s rulings are well established, although their application to the statutory provisions at issue requires careful consideration. A -19-

20 judicial order forbidding certain communications when issued in advance of the time that such communications are to occur is generally regarded as a prior restraint, Alexander v. United States, 509 U.S. 544, 550 (1993) (emphasis and internal quotation marks omitted), and is the most serious and the least tolerable infringement on First Amendment rights, Nebraska Press Ass n v. Stuart, 427 U.S. 539, 559 (1976). Any prior restraint on expression comes to [a court] with a heavy presumption against its constitutional validity, Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971) (internal quotation marks omitted), and carries a heavy burden of showing justification, id. A content-based restriction is subject to review under the standard of strict scrutiny, requiring a showing that the restriction is narrowly tailored to promote a compelling Government interest. United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000). Where expression is conditioned on governmental permission, such as a licensing system for movies, the First Amendment generally requires procedural protections to guard against impermissible censorship. See Freedman, 380 U.S. at 58. Freedman identified three procedural requirements: (1) any restraint imposed prior to judicial review must be limited to a specified brief period ; (2) any further restraint prior to a final judicial determination must be limited to the shortest fixed period compatible with sound judicial resolution ; -20-