Merrill v. Holder et al

MEMORANDUM OF LAW in Opposition re: 24 MOTION to Dismiss . MOTION for Summary Judgment ., 16 MOTION for Summary Judgment . and Reply in Support of Plaintiff's Motion for Summary Judgment. Document

S.D.N.Y.June 26, 2015

UNITED STATES DISTRICT COURT SOUTHERN DIST~CT OF NEW YORK NICHOLAS MERRILL, Plaintiff, V. 14 CIV. 9763 (VM) ERJ;C HOLDER, Jr., in his official ~apacity as Attorney General of the United States, and JAME~ B. COMEY, in llls official capacity as Director of the Federal Bureau of Investigation, , Defendants. REPLY MEMORANDUM OF LAW IN SUPPORT OF NICHOLAS MERRILL'S MOTION FOR SUMMARY JUDGMENT' AND IN OPPOSITION TO THE GOVERNMENT'S MOTION TO DISMISS OR FOR SUMMARY JUDGMENT Jonathan'Manes, supervising attorney David A. Schulz, supervising attorney Benj amin Graham, law student intern Matthew Halgren, law student intern Nicholas Handler, law student intern Amanda Lynch; law student iptern MEDIA FREEDOM AND INFORMATION ACCESS CLINIC YALE LAW SCHOOL P.O. Box. 208215 New Haven, CT 06520 Tel: (203) 432-9387 -Fax: (203) 432-3034 jonathan.manes@yale.edu , Attorneys for plaintiff Nicholas Merrill Case 1:14-cv-09763-VM Document 36 Filed 06/26/15 Page 1 of 32 ------------- TABLE OF CONTENTS PRELIJ\.1J:N"ARY STATEMENT .................................................................. ' ..................... : .............. 1 ARGU1v.I.ENT .................................. ; ................................... : ............. ; ........ , ... :~ ....... } ............ · ............... 2 . I. THE FIRST AMENDMENT DOES NOT ALLOW THE FBI TO INDEFINITELY SUPPRESS SPEECH ABOUT THE SCOPE OF ITS STATUTORY AUTHORITY. ..... 2 A. . The Gag Order Supptesses Discussion of the Government's Interpretation of Its Statutory Authority, not Law Enforcement Techniques and Procedures ................ 3 1. . The AttachmentReveals the' Scope of the Goverrim,ent's Claimed Authority, Not "Techniques and Pro·cedures." .................................. , ......... 3 2. The Breadth of the Gag Order Can Be Explained Only by a Concern With Maintaining a Secret Interpretation of the NSL Statute ...................... 6 B. The Gag Order Unconstitutionally Suppresses Discussion of the Legal Interpretation of a Statute that Directly Affects the Rights of Citizens .................. 7 1. The First Amendment Does Not Permit Gag Orders Whose Purpose or Effect Is to Maintain Secret Interpretations ofLaw ............................... : ..... 7 2: The Gag Order Has the Effect of Impeding DemOcratic Oversight of the Scope and Lawfulness of the Government's Claimed Authority .......... 9 C. The First Amendment Has Never Be.en Interpreted to Permit Restraints on Speech About Government "Techniques and Procedures." .............................................. 13 D. . The Gag Order is Permanent, and Therefore Unconstitutional, Because Its Duration Now Depends Solely on the Preferences of the Government.. .............. 15 E. The First Amendment Does Not Permit Gag Orders on Private Citizens With Respect to Information That Is ill the Public Domain ...................................... : .... 17 F. The "Good Reason" Standard of John Doe, Inc. v. Mukasey Is Not Appropriate in the Circumstances of This As-Applied Chailenge ....... ~ ............................ ' ............ 18 II. THE GOVERNMENT FAILS TO ESTABLISH THAT ALLOWING PLAINTIFF TO SPEAK WOULD RESULT IN ANY HARMS ................................................................ 20 III. THE NSL STATUTE DOES NOT AUTHORIZE THE PRESENT GAG ORDER. ...... 22 .. N. IF THE COURT UPHOLDS THE GAG ORDER,rT SHOULD DO SO ONLY FOR A LIMITED PERIOD OF TIME ............... , .................................................. ' ........................ 25 CONCLUSION .............................................. ; ...................................................... · ........................ 26 Case 1:14-cv-09763-VM Document 36 Filed 06/26/15 Page 2 of 32 TABLE OF AUTHORITIES , CASES) ACLU v. Clapper, '., . .'. . _ F.3d ,2015 WL 2097814 (2d CiT. May 7, 2015) ... ~ ........................ ~ ...... ; ......................... 12 - ." , . Amazon. com LLC v. Lay, 758 F. Supp. 2d 1154 (W.D.:Wash. 2010) ............................................... : ...... :., ............. ~; .......... il . Bank Julius Baer & Co. Ltd v. Wikileaks, . -535 F. Supp. 2d 980 (N.D. Cal. 2008) ..................................................... , ..... ~' .......................... 17 Black v. Sheraton Corp., : . 564 F.2d 531 (D.C. Cir. 1977) ....................... ~ ..................................................... : ....................... 4 Borchers v. Commercial Union Assur. Co., 874 F. Supp. 78 (S.D.N.Y. 1995) ......................... : .............................. .' ...................................... 4 Brennan Ctr. for Justice v. DOJ, 697 F.3d 184. (2d Cir. 2012) ; ......................... ; ............................................................................ 9 Brooklyn Legal Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219 (2d Cir. 2006) .................... .' ................................................. : ................................ 19 Butterworth v. Smith, 494 U.S. 624 (1990).· ................................................................................................................. 15 Caplan v. ATF, 587 F.2d 544 (2d Cir. 1978) .......................... : ............................................................................ 9 Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975) .................................................................................................................. 17 Crooker v. ATF, 670 F.2d 1051 (D.C .. Cir. 1981) .................................................................................................. 9 Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004) ........................ ~ ............................................................. 11 . Doe v. Gonzales, '; 449 F.3d 415 (2d Cir. 2006) ........................... : ................. : .............. : ......................................... 15 Doe v. Holder, . 703 F .. Supp. 2d 313 (S.D.N.Y. 2010) ....... ~ ... : ......................................... : .............. 14, 16, 17,23 First Am. Coal. v. Judicial Iniquiry & Review Bd., 784 F.2d 467 (3d Cir. 1986) ....................... : ............................................. : ....................... , .. 4,8, 13 11 Case 1:14-cv-09763-VM Document 36 Filed 06/26/15 Page 3 of 32 I . l' ; Floyd v .. r:;ity of New York, ' ' 739F: Supp. 2d 376 (S.D.N.Y. 20'10) ........... : ................ :.; .... : ................. , ........ : ............ : ........... 14 i : . ' ;. Frankel v. SEC, . , , 460 p.2d 813 (2d CiT. 1972) .... ~ .... : ................ ~ ....... : ........ , ........................ : .................................. 4 Hoffman,..Pugh v. Keenan, ; , 338 F.3d 1136 (lOth CiT. 2003) ..................... ; ................ ; ........................ : .................................. 4 I . In re Application for Pen Register & Trap/Trace Device with Cell Site Lo~ation Auth,. 396F.: Supp. 2d 747 (S.D. Tex. 2005) ........... : ......................................... : .................................. 8 , . ' ' . . :. . .'; I . In re AppliciIti(m of NY. Times Co. for Access to Certain Sealed Court,Records, , 585 F, Sup~. 2d 83 (D.D.C. 2008) ................. : .......... : ...... ': ........................ : .................................. 8 In re Application of United States, , 396 F., Supp. 2d 45 (D. Mass. 2005) ............. ~ .. ; ..................... : ............. ' ............................... 10,22 In re Charlotte Observer, 921 F;2d 47 (4th CiT. 1990) .............................................. ' ..... : ................................................... 17 In re City of New York, 607 F;3d 923 (2d CiT. 2010) ............................................. : ................................. , ............................. 4 In re Grand Jury Inv.estigation of Possible Violation oj 18 Us. C. § 1461 et seq., 706 F. Supp. 2d 11 (D.D.C. 2009) ........... ' ................................................. , .................... : ............. 11 In re Grand Jury Subpoena to Amazon. com, 246 F,R.D. 570 (W.D. ,Wis. 2007) .................................. ,' ......................................................... 11 In re Orders ajthis Court Interpreting Section 215 of the Patriot Act, No. Mist. 13-02,2014 WL 5442058 (For. Intel. Surv. Ct. Aug. 7,2014) ............................. 7, 8 In re Pharmatrak, Inc. Privacy Litigation, 329 F,3d 9 (1st Cir. 20b3) ....................... :.~ ................. : ...... .................................. , ..................... 10 Jewel v. 'Nat'l Sec. Agency, 673 F.3d 902'(9th Cir. 2011) ................................... : ..... ~ ........................... : ................................ 8 John Doe, Inc. v: Mukasey, ". 549 F,.3d 861 (2008) .................................................................................................. 19,22,24,25 Karriasinski v. )udic'ial Review Council, , 44F.3d '106 (2d CiT. 1994) .... : ......................................... ; ...................... : ........ : .............. 4, 13, 15 Lowenschuss v. W. Pub . . Co., 54'2 F:2d 180 (3d CiT. 1976) ............................................ , ........................................................... 8 iii Case 1:14-cv-09763-VM Document 36 Filed 06/26/15 Page 4 of 32 McGeh"ee 7,i, Crasey;;:' . -- ".- -- .. ' .. 718 F.:2d 1137 (p.C. Cir; 1983}.: ............... : ............................................. : ................................. 14 ;. . . ; : ' Milner v. Dep'tofth"e Navy; . 562 U.S. 562·(2011) ................. ,.: ............................................................. ' ................................... 9 ' . '. ~ NY.' Times v. DOJ, . 756 F.3d 100 (2d:Cir. 2014) ...... i ..................................... : ...... : .......... ; ........................................ 7 . Nat'l Cong.for P.R,Rightsex reI.; Perez v. City of NY., , 194 F;R.D.· 88 (S:D.N.Y. 2000)'.: .............................................................. : .... : ...................... ; ....... 4 ; " , : ~ Neb. Press Ass 'n v. Stuart" · ,'. . , 427 U.S. 539 (197p) ................. :;( ............................................................. · ... , ....................... 17,22 NLRB v.Sears, 421 U.S. 132 (1975) .................................................................................................................... 9 Papachristou v. Jacksonville, 405 U.S. 156 (1972) ........... : .......................................... , ............................................................. 9· Scheiner v, Wallace" No. 93-cv-0062, 1996 WL 633226 (S.D.N.Y. Oct. 31 , 1996) .................................................... 8 . United States v. Aguilar, 515 U.S. 593 (1995) ................. ~ .................................. ~ ..................................... : ........................ 18 United States v. Amodeo, 71 FJd 1044 (2d Cir. 1995) ......................................................................................................... 8 United States v. Antar, 38 F.3d 1348 (3d Cir. 1994) ...................................................................................................... 25 United States v. Cooper, No. 13-cr-693, 20i5 WL 881578 (N.D. Cal. Mar. 2, 2015) ............................................... 11,22 United States v. Davis, 785 FJd 498 (11th Cir. 2015) ......................................................................................... 6, 11,22 United States v; Duggan, 743 F.2d 59 (2d Crr. 1984) ....... ~' ......................................... ; ............................................... ~ ....... 8 United States v: U $. Dist. Court for· the E. Dist. of Mich., . 4.07 U.S. '297 (1972) ............................... ~ ............................................................................ ~ ....... 8 Weisberg v. DOJ, . 489 F.2d 1195 (D.C. Cir. 1973) ...................................... ~ .................................. · ........................... 4 IV Case 1:14-cv-09763-VM Document 36 Filed 06/26/15 Page 5 of 32 Wilsonv. (1A,-. .. :'. . . . : 586 F.'3'd 171 (2d Cir. 2009) ....... ~ ....................................... : ...................... ~ ..................... ; .......... 18 Wright v. F.J3} , . . . 613 F.: Supp. 2d 13' (D.D.C. 2009) ................................................................................................ 14 i i STATUtES' 18 U.S~q. § 2703 .... ":: .. " ..... " ...... "., .... , ................. : ........... ,, ..... , ..................... : .. , .... , .................... , .... 21 18 U.s.q. § 2709 ........ ;: .. : .............................. : ......................... ~ ..................................................... 22, 23 ( , 18 u.s~d.·§ 3511 ...... L,: .................... : ................... " .............. : ................ " ..... ,~ ................................ 23 , : . . , , USA FRkEDOM AC{ 6f2015, Pub. 1. No, 114-23, § 101, 129 Stat. 268,269-270 .................. " 12 USA FREEDOM Act of2015, Pub. 1. No. 114-23, § 103, 129 Stat. 268, 272 .... " .......... " ......... 12 USA FREEDOM Act of2015, Pub, L. No: 114-23, § 107, 129 Stat. 268, 273-74 ...................... 12 USA FREEDOM Act of2015, Pub. 1. No. 114-23, § 501, 129 Stat. 268, 282 .... , ...................... 12 . '" . \ USA FREEDOM Actof2015, Pub. 1. No. 114-23, § 502, 129 Stat. 268, 283-89 .......... 23,24,25 USA FREEDOM Act of2015, Pub. 1. No. 114-23, § 503, 129 Stat. 268, 289-91 ...... ; ............... 24 OTHER AUTHORITIES Benjanrin N. Card9zo, The Nature a/the Judicial Process (1963) .................................. " ........ " .. 8 ; s. 2685,:113th Congo (2014) ......................... : ............................................. : ................................. 24 v Case 1:14-cv-09763-VM Document 36 Filed 06/26/15 Page 6 of 32 PRELTIMINARYSTATEMENT i ,. , , As plaintiffh~s demonstrated, PI. Mem. in Supp. SJ., at 1-5, 15-16 ("PI. Br."), ECF No. 17, the Attachment toJhe National Security Letter ('"NSL") issued in 2004 identifies the types of materials, the FBI con'siders to fall within its statutory authority to secretly ,collect "electronic communlcations tran~'actional records" ("ECTR"). The Attachment thus reveals key information about the FBI's clairri~d a~thority to gather data about citizens' digital lives without individual suspiciori, without pd9r judicial review, and With scant prospect of subsequent review. 'By forbidding plaintiff from describing the Attachment, the FBI suppresses debate over the accuracy of its interpretation ofthe NSL statute and the propriety of the broad authority it now exercises. Citizens today cannot help but leave detailed digital traces that paint intimate portraits of theirlives. Whether and how easily the government should be able to inspect these digital biographies is a matter of significant policy, legislative, and constitutional debate. But for that debate to be meaningful, it is essential to understand the NSL authority that the government currently believes to. exist and routinely exercises in secret. Indeed, Congress just amended the NSL. statute by enacting the USA FREEDOM Act, even while the public remained in the dark as ; to what the FBI believes the statute already authorizes. Because of the gag order, plaintiff could not infori:n the public about the FBI's interpretation, which goes well beyond what a reasonable person woUld anticipate based on the statute's text and the government's public assurances. In opposition,' the government concedes that it is not barring plaintiff from discussing the Attachment to protect the investigation underlying the 2004 NSL, or any other specific ongoing investig~tion. Instead, it contends that disclosure would reveal law enforcement ''techniques and procedures." But the'Attachment does not reveal "techniques and proced~es" (i.e., how the FBI uses its lawful authority); it reveals what authority the FBI believes the st!ltute grants. This is a 1 Case 1:14-cv-09763-VM Document 36 Filed 06/26/15 Page 7 of 32 vitally ':important ,distinction.' The First Amendment does not allow the. government, to, suppress a" , , citizen's ispeeqh in order conceal it~ interpretation or the authority granted by st:atute-especially ~ , , where thft interpretation~efnies the' government's power to intrude upon the privacy or' citizens. , The govermm;nt's basic argUment for continuing without end the ~xtraordinary injunction ; ,,' : on plaint1ff's speech is that discloshlg the Attachment could permit circun;lVention of future . . . '- .:, NSLs, b\it it is no secret that the government can and does obt~ the kinds ofn~cords demanded ! ' , in the A~achment using other authorities. Disclosing that the FBI considers such records to be availabl~ through the use ofNSLs cannot reasonably be expected to compromise the FBI's ability to conduct investigations. Anyone truly seeking to conceal certain digital traces is already fully aw~e that it must do so to evade FBI detection. On the other hand, the law-abiding public remains in the dark about how broadly the FBI may peer into their digital lives by issuing secret NSLs-ten~ of thousands of which are ~ssued every year. Manes Decl. Ex. F-~, ECF No. 20. Defendants' oppositIon also confirms that they will sustain the gag order permanently or, to be more precise, for exactly as long as the FBI wishes to prolon!?; it. Defendants point to no ciIcumstances that might ever render the current gag order obsolete under its rationale for '. ' - imposing it. For First Amendment purposes, the gag order is indeed "peimanent" and, for this reason as well, plainly impermissible. After eleven years, this Court should set aside this prohibition on important speech about a matter of great public concern. ARGUMENT 1., THE FIRST AMENDMENT DOES NOT ALLOW THE FBI TO INDEFINITELY SUPPRESS SPEECH ABOUT THE SCOPE OF ITS STATUTORY AU~HORITY. The government seeks to justify the gag order as ~ecessary to prevent circumvention of law enforcement techniques, but the impact of the gag order, more accurately, is to suppress discussion about the ;scope ofthegovernrr;tent's authority. The First Amendment does not permit .J. • 2 Case 1:14-cv-09763-VM Document 36 Filed 06/26/15 Page 8 of 32 ~ - . . . restraints: on:: speech that have :this p'\lIlJose or effect, nor does it permit gag ord~r~ that ate'de , ! '. . facto perinanent. The First Amendinent is equally explicit in prohibiting the government from ! '.'.o ',: riJaintainingthe gag order with respyct to information that is already ill the public domain. A. , The Gag Order Suppresses Discussion ofthe :Government's Interpretation of Its Statutory Authority, not Law Enforcemept Techniques and Procedures. As shown, the gag order for~ids speech 'about the govelmnent's legal interpretation of the NSL statUte, PI. Br. 1:5, 15-16. De~eIidants acmowledge that the Attachm,ent reveals "the types , , of information the FBI can obtain through the NSL mechanism concerning the user of an e-mail account." Gov't Br. 16, ECF No. 25. But to avoid the implication that the gfig serves to maintain secret law, they seek to recast the Attachment as describing "techniques and procedures" whose "disclosUre would compromise their usefulness" Id. 17. This effort fails. 1. The Attachment Reveals the Scope of the Government IS Claimed Authority, Not "Techniques and Procedures. JJ The gag order prevents Mr. Merrill from speaking about what the government believes it can law¥Iy do-not whether, how, when, or why the government may choose to deploy such authority. Indeed, plaintiffh~s no insight into how the governm.'ent uses NSLs to conduct investigations in general. Plaintiff ailly seeks to disclose what he mows: that the FBI has interpreted the NSL statute t9 allow it to obtain the kinds ofreccirds listed in the Attachment. The government has no effective responses to the straightforward-observation that the gag suppresses dis,closure of its interpretation of law. It contends that plaintiff's position "proves too much" because any disclosure about "what the government does can be described as information about what the government believes it can do." Id. 12. The government is incorrect. The current case presents concerns about secret law that simply do not arise in other cases involving "techniques and procedures." Here, unlike the typical case, the public is unaware that the government even has the authorhy to engage in the specific activity the Attachment reveals- 3 Case 1:14-cv-09763-VM Document 36 Filed 06/26/15 Page 9 of 32 the scope ofthe,governnient'-s NSL-auth6rity is'secret,notmerelythe marinednwhich it· exercises, th~t authority; Moreover,' whether the NSL statute a~tually perrrlits the kinds of data . ' . ') , coilectiot revealed in the Attachment is not obvious on the face of the statut~ and is a matter of \ significant legal ~oubt. See PI. Br. fl, & n.l; infra 9-11 (discussing legal irifirmities of the '. government's interpretation). The gag order thus. serves to perpetuate public ignorance as to the meaning; of a statute. Contrary to tie government's assertion,:it is hot the ,case that all ~ecrets about "~hat the government does"raise this concern about "what the government can do.". Indeed, in all of the gag order cases the government cites, which relate to grand jury and other confidential investigatory proceedings, there was no doubt that the government had the . I legal authority to do that which was gagged, and sci the gags irriplicated no concerns about secret legal interpretations. See Gov't Br. 12 (citing cases).l In fact, the cases the government relies on regarding protection cif "techniques and procedures" illustrate' the distinction that plaintiffs draw here, between concealing how the government exercises its lawful authority to conduct , . - . investigations and concealing that the government claims certain authority in the first place. . . . None of the cases cited by the government protects the secrecy of the latter. Gov't Br.' 18-19.2 If anything, it is not the plaintiff's position that "proves too much," but the government's. If the Attachment can be withheld op. the grounds that its disclosure would reduce the . 1 Kamasinski v. Judicial Review Council, 44 F.3d 106, 111 (2d Cir. 1994) (investigation of judicial misconduct); First Am. Coal. v. Judicial Iniquiry & Review Bd., 784 F.2d 467, 479 (3d Cir. 1986) (en bane) (same); Hoffmann- Pugh v. Keenan, 338 FJd 1136, 1140 (lOth Cir. 2003) (grand jury proceedings). 2 Frankel v. SEC, 460 F.2d 813, 817 (2d Cir. 1972) (files would reveal how SEC conducted itsinvestjg~tions); Weisberg v. DOl, 489 F.2d 1195, 1199 (D.C. Cir. 1973) (withholding results and analysis from use of a forensic technique that itself was riot secret); In re City of New York, 607 FJd 923,944 (2d Crr. 2010) (withholding "field reports" that "cOlitain[ed] detailed information about undercover operations of the NYPD"); Nat'/ Cong.for P.R Rights ex rei. Perez v. City ofN. Y., 194 F.R.D. 88,95 (S.D.N.Y. 2000) (documents describing "plans for '. deploymenf' and other details of how deployed stops-and-frisks); Borchers v. Commercial Union Assur. Co., 874 F. Supp. 78, 80 (S.D.N.Y. 1995) (files privileged because they revealed "the scope of the criminal investigation, as well as the identity and substantive testimony of various witnesses interviewed"); Blackv. Sheraton Corp., 564 F.2d 531,546 (D.c. Cir. 1977) (disclosing surVeillance technique and fruits thereof, but withholding unrelated investigatory files). . . 4 Case 1:14-cv-09763-VM Document 36 Filed 06/26/15 Page 10 of 32 effectiveness ofinveshgations' bydj'sclosing that the FBI has the authority to en'gage ~.certain " . \ " • ! . . ·kinds of surveillance, :then the government would be equally justified in concealing much of the - . i law of search and seizure. After all: disclosing. to criminals that the gove:ri:lment is able'to obtain . . . : . , ~ access to, say, cell-site location data using any given statutory ~uthority may well "revealD to current:and future subjects of investigations ... the ways in which the FBi uses" the particular statutory authority "and the types of infonnation the FBI can' obtain" using such authority; such disclosiIre could also ,"expose what infonnationthe FBI deems irriportant" in a particular kind of . . . . . '. investigation. Gov't Br. 16 (qu~ting government's reasons for suppressing NSL Attachment). But in this country members of the public who learn oflaw enforcement activities are free to publicize them and, in the appropriate case, to challenge them. See, e.g., infra 7-8 & nn.5-6 (describing public disclosures and decisions adjudicating lawfulness of ~urveillance te"chniques). In any event, it is not the case that the Attachment reveals how the FBI. conducts its investigations in general, or discloses what its investigatory tactics are in general, which is the harm that the FBI must establish given that the 2004 fuvestig~tion underlY.ing the NSLis closed. See Defs' Rule 56: 1 (b) Stmt. 1 25. Indeed, the Attachment does not reveal why the FBI decided to us~ an NSL m the underlying investigation, or why it sought to obtain the particular. categories of records listed in th~ Attachment, or what it planned to do with that infonnation? Moreover, the FBI acknowledges that it has since changed the fonn of the NSLs it uses, Perdue Decl. 172, and nowhere does the FBI contend that it uses NSLs in precisely the same circumstances as it did in 2004, id. in fact, the NSL statute as J See Man'es Decl., Ex. E, at 6 ("The NSL is an unclassified document because it does not detail the speCific relevance of the request record to an authorized FBI investigation."). The details of the Underlying investigation that gave rise to the 2004 NSL are not public. The portions of the Perdue Declaration describing the investigation were filed under seal. See ECF No; 30. . 5 Case 1:14-cv-09763-VM Document 36 Filed 06/26/15 Page 11 of 32 was reveaied in the' 2004 Attachment. ld. Dis6i6smg the Attachment wOludtherefcire reveal little or nothmg about how the government uses NSLs todayto~onduct particular investigations. . . It would instead reveal only what the government believes the statute authorizes. There is no compelling or constitutionally legitimate interest in suppressing the latter. See infra 7-14. 2. The Breadth of the Gag Order Can Be Explained Only by a Concern With Maintaining a Secret Interpretation a/the NSL Statute. , . The scope of the gag order the governnient defends is not consistent with an interest in protecting the effectiveness of "techniques," but can be explained only asa means to keep the public in the dark about the scope of its claimed authority to conduct ECTR surveillance using NSLs. In partiCular, the FBI continues to gag Mr. Merrill with respect to a'category ofrecords- )-that it concedes it is not currently gathering using NSLs, but which it claims the law authorizes it to collect. Category Two in the Attachment requests information from and the Perdue Declaration confinns The government explains that "as matter of policy" the FBI no longer seeks such information, but that it still interprets the NSL statute to allow it. Perdue Decl. ~ 59(a). The government contends that the gag on this disused-but not abandoned-legal authority is justified because disclosure "may provide individuals foreknowledge" about a method that "th~ Attorney General might someday ... allow the FBI" to resume using. ld. This supposed harm is utterly speCUlative; the public's right to know the extent of the claimed authority is not. The government proVides no reason to believe that it in the foreseeable future, and it concedes that no current, planned, or fore~een investigations would be 6 Case 1:14-cv-09763-VM Document 36 Filed 06/26/15 Page 12 of 32 '. " -, .... ,- affected by disclosure. Moreover; it is no secret that the FBI in other ways. See , infra 21-2i &p.l5. Continuing the gag on this portion of the Attachmentserves only to hide '. , . . 1 that the Government interprets ECTR In short, the gag order is tailored to conceal a legal interpretation, not to protect an FBI ''technique.'' B. ' The Gag Order Unc~nstitutionally Suppresses Discussion of the Legal, Interpretation of a Statute that Directly Mfects the Rights of Citizens. Even if the Court accepts the government's claim that the gag order serves an interest in protecting a l~w enforcement method, it is undeniably true that the gag order also serves to maintain a secret interpretation oflaw, supra 3-6. As plaintiff has already demonstrated, Pl. Br. 15-17, the First Amendment forbids gag orders whose purpose or effect is to maintain secret law. 1. The First Amendment Does Not Permit Gag Orders JiVhose Purpose or Effect Is to Maintain Secret Interpretations of Law , The gag orde~ at issue presents a particularly acute secret law problem. It is aberrational 1)1at an interpretation of law affecting the rights of citizens would be kept secret from the public in the fIrst place. Previous examples of such secret law have all pertained to highly cla~sifIed national security programs. See~ e.g., N Y Times v. DOJ, 756 F.3d 100 (2d Cir. 2014) (disclosing legal basis for targeted killing of citizen); In re Orders of this Court Interpl'eting Section 215 of the Patriot Act, No. Misc. 13-02,2014 WL 5442058 (For. Intel. Surv. Ct. Aug. 7, 2014) (d~classifying opinions regarding bulle collection under Section 215). It is rarer still- perhaps unprecedented-that the government seeks to maintain a secret interpretation of law not by enforcing information controls among government employees and contractors who have signed nondisclos~eagreements and consented to the classification system, but by enforcing gag orders on private citizens who have not agreed to keep the government's secrets and who did not even set out to learn them. Moreover,the government is insisting on secrecy in this case for 7 Case 1:14-cv-09763-VM Document 36 Filed 06/26/15 Page 13 of 32 reasons that d? not relate to a specific investigation, but in order to maintairi the secrecy of the program in general. The First Amendment does not allow such prohibitions on speech,. In every analogous situation to the present circumstance, courts have affirmed the hostility of the First Amendment and other sources of law to secret rules governing citizens. For ins'tance, the public's ability to access judicial decisions that interpret and' elaborate the law lies at the very core of the First Anlendment and co~o:p.law rights of access to courts.4 fudeed, courts have routinely published opihions construing the government's auth6ritjto gather , information aboutU.S. citizens under various surveillance laws. 5 This is true even with respect to intelligence collection for national security purposes.6 Where, as here, access to secret law is not premised upon the qualified First Amendment right of access, but rather the core right to speak, it is even clearer that aI;ly government interest in maintaining secret interpretations of law must yield to the First Amendment. See First Am. Coal., 784 .f.2d at 477 ("The claim ... is based on the broader right of free speech, not simply . access. Consequently, we must be less deferential to state interests."). 4 See, e.g., Lowenschuss v. W. Pub. Co., 542 F.2d 180, 185 (3d Cir. 1976) ("Even that part of the law which consists of codified statutes is incomplete without the accompanying body of judicial decisions construing the statutes. .' Accordingly, under our system of jurisprudence the judiciary has the duty of publishing and disseminating its decisions.") (quoting Benjamin N. Cardozo, The Nature of the Judicial Process, 20, 21-22 (1963)); Scheiner v. Wallace, No. 93-cv-0062, 1996 WL 633226, at *1 (S.D.N.Y. Oct. 31 , 1996) ("The public interest in an accountable . judiciary generally demands that the reasons for ajudgrnent be exposed to public scrutiny." (citing United States v. Amodeo, 71 F.3d 1044, 1048-49 (2d Cir. 1995))) . .5 See, e.g.; In re Application ofN Y. Times Co. for Access to Certain Sealed Court Records, 585 F. Supp. 2d 83, 88 (D.D.C. 2008). 6 See, e.g., 1nre Orders of this Court Interpreting Section 215 of the PatriotAct, No. Misc. 13-02,2014.WL 5442058 (Foreign Intel. slirv. Ct. Aug. 7, 2014) (ordering government to declassify opinions Dfthe FISC interpretirig Section 215 of the Patriot Act); United States v. US. Dist. Courtfor the E. Dist. of Mich.,.407 u.s. 297 (1972) (considering constitutionality of warrantless-wiretapping program conducted by the government to "protect the national security"); United States v. Duggan, 743 F.2d59, 72-74, 77 (2d Cir. 1984) (analyzing FISA's original "purpose" requirement, and holding that "FISA does not violate the probable cause requirement of the Fourth Amendment"); Jewel v. Nat'l Sec. Agency, 673 F.3d 902,905 (9th Cir.2011) (reversing dismissal ofJawsuit challenging "widespread warrantless eavesdropping in the United States"); In re Applicationfor Pen Register & Trap/Trace Device with Cell Site Location Auth., 396 F. Supp. 2d 747, 748-49 (S.D. Tex. 2005) (refusing government request'to seal opinion "because it concerns a matter of statutory interpretation" and the issue explored "has serious implications for the balance between privacy and law enforcement, and is a matter of first impression"). 8 Case 1:14-cv-09763-VM Document 36 Filed 06/26/15 Page 14 of 32 . ·Thehiw'g hostility to secrettulesis also·manifest in other provisions of the Constitution, and in the courts' interpretation of relevant statutory law. For instance, it is a bedrock Rrinciple of Due Process that individuals must have notice ofwhai the law is before being subjected to deprivations oflife,liberty or property. See, e.g., Papachristou v. Jacksonville, 405 U.S.'156, 162 (1972) ("LiVing lmder a rule of law entails various suppositions; one of which is that all persons are entitled to be informed as to what the State commands or forbids. ")(internal quotation and alteration omitted). In the statutory FOIA context, the Second Circuit has recognized that "secret law is an abomination." Caplan v. ATF, 587 F.2d 544,548 (2d CiT. 1978) (quotation omitted). The Supreme Court and lower courts have interpreted FOIA to prevent the government from withholding authoritative interpretations oflaw. See, e.g., NLRB v. Sears, 421 U.S. 132, 153-54 (1975) (secret law cannot be withheld under Exemption 5); Brennan Ctr. for Justice v. DOJ, 697 F.3d 184 (2d CiT. 2012) (same); Crooker v. ATF, 670 F.2d 1051, 1073 (D.C. Cir. 1981) (government can withhold law enforcement techniques only if the material does not constitute '''secret law' of the agency," and instead is "used for predominantly internal purposes"), abrogated on other grounds, Milner v: Dep't of the Navy, 562 U.S. 562 (2011). 2. The Gag Order Has the Effect of Impeding Democratic OversJght of the Scope and Lawfulness of the Government's Claimed Authority. The government's effort to suppress the Attachment illustrates many of the particular evils of secret law. By preserving the secrecy of the FBI's interpretation, the gag order deprives citizens of their democratic prerogative to know what the law empowers their government to do: It prevents citizens from determining whether the law, as interpreted, should be modified. And it . , makes it iInpossible to advocate for effective changes to the law. In this case the situation is particularly troubling becausethe public has arguably been misled about how the NSL statute has been interpreted by the FBI. Because ofth~ gag order, the acc.unicy of the government's 9 Case 1:14-cv-09763-VM Document 36 Filed 06/26/15 Page 15 of 32 - - public pi'onouncementsG~otbe challenged. Moieover, serio~s questions about the v~ry. lawfulness and constitutionalit)rofthe FBI's interpretation cannot be aired publicly and debated. The government's public st~tements regarding it's interpretation of the NSL statpte's ECTR provision are arguably rnisle'ading in at least two ways. Frrst, as pl~tiff has previously . : . ." noted, PI. Br. 4 n.1, a fonnal opinion issued by th~ Department of Justice states that the FBI's authority to collect ECTR using NSLs "reaches only those categories of wonnation parallel to ',' i .. subscriber infonnation and toll billing records for ordinary telephone service." Manes Dec1. Ex. I, at 3 n.3. But it is very difficult to understand how vari~us categories of records revealed in the Attachment are "parallel to subscriber infonnation or toll billing records." For instance, -does not appear to be "paraflel to" telephone toll billing records .. Yet that type infonnation can be collected using an NSL, as revealed in the Attachment. See Perdue Decl. ~ 65. It is equally unclear how are analogous ,to familiar to Ii billing records. See Perdue Decl. ~~ 59, 69. Second, despite .the FBI's pubiic assurances that NSLs Carulot be used to obtain the "content" of communications, see, e.g., Perdue Decl. ~ 11, the Attachment reveals that the FBI has interpreted the ECTR provisiOIi to permit collection of records that can and often do contain "content." For example, But the Attachment reveals that Second Declaration of Jonathan Manes, ("Second Manes Decl.").' .. , .. 10 Case 1:14-cv-09763-VM Document 36 Filed 06/26/15 Page 16 of 32 See Perdue DecI. ~ 69. . The gag order prevents plaintiff from correcting the public record on both of these points. . . . As a result, thepu"9lic has a distorted picture of what the NSL statute actually permits. :The gag order also serves to suppress public discussion about the constitutionality of certain aspects of the interpretation that the FBI has adopted. For instance, courts have consistently held that the First Amendment requi~es the government to meet a much more stringent test than mere . "relevance" where it seeks to obtain purchase records regarding books, or.other expressive materials. 8 But the Attachment reveals that See 'id. ~~ 64-65. There is also considerable doubt . . whether the First Amendment permits the identity of an anonymous online speaker to be . obtained upon a showing of mere "relevance." See PI. Br. 5; Doe v. Ashcroft, 334 F. Supp. 2d 471,508-09 (S.D.N.Y. 2004); cj Perdue DecI. ~ 67 ). "It is also doubtful that the Fourth Amendment permits the government to obtain upon a bare showing of "relevance.,,9 Cf Perdue DecI. ,r 59. Because of the gag order, these and other specific concerns about how Section 215 has been interpreted could not be raised dliriri.g the very recent legislative debate regarding the USA 8 See, e.g., Amazon. com LLC '!. Lay, 758 F.Supp. 2d 1154, 1167-69 (W.D. Wash. 2010) ("The' First Amendment protects a buyer from having the expressive content of her purcbase of books, music, and audiovisual material disclosed to the government."); In re Grand Jury Investigation of Possible Violation of 18 U.S. C. § 1461 et seq., 706 F. Supp. 2d 11, 18 (DD.C. 2009) ("United States may only obtain the records [ofpurcbases of expressive material] if it demonstrates a compelling, need for them and a sufficient nexus between the records and the grand jury's investigation"); In re Grand Jury Subpoena to Amazon. com, 246 F.R.D. 570, 572-73 (W.D. Wis. 2007) (same). Accord Doe v. Ashcroft, 334 F. Supp. 2d 471,506-511 (S.D.N.Y. 2004). 9 SOlle courts have held that requires a showi.iJ.g of probable cause. See, e.g. Others have upheld using orders under 18 U.S.C. § 2703(d), which require a court order issued upon a finding of "specific and articulable facts" showing tllat the information is both "relevant and material." See, e.g., Plaintiff is aware of no court endorsing upon the issuance of an administrative (rather than judicial) subpoena pre~sed upon mere relevance, as is the case with NSLs. ' 11 Case 1:14-cv-09763-VM Document 36 Filed 06/26/15 Page 17 of 32 .... ~., FREEDOM Act. . There is good reason to believe that a more infonned public discussion would ! '. , . have led to consideration ofadditiohallimits on the scope ofNSL authority. Cf ACLUv.· . . Clapper, _ F.3d _,2015 WL' 2097814, at *27 (2d Cir. May 7, 2015) (qbservingithat when Congress reenacted Section 215 offue PATRlOT Act in 2011, "there was certainly no' opportU?ity for brqad discussion in the Congress or among the public of whether the [secret] .; interpretation of § 215 was correct," in contrast with the "widespread controvers~;that . t developed,.in and out of Congress, :upon [its] public disclosure."). ,1 In enacting the USA FREEDOM Act, Congress recognized the strong parallel between Section 215 of the PATRlOT Act-the principal subject of the Act-and the NSL statute, amending both to limit "bulk collection" :by requiring the government to identify a specific person, entity, ot other identifier as the target of a request. See Pub. L:No. 114-23,§§ 101(a)(3), 1 03 (a)-(b), 501(a), 129 Stat. 268. The Act also amended was included in the amendments Had the public known that the FBI believes the issue might have been addressed in both contexts. More broadly, given that NSLs can be issued much more easily than Section 215 orders, which require judicial approval, it seems , likely that the FBI's aggressive interpretation of "ECTR" would have been the subj ect of significant controversy and debate if it had been public. Because. of the gag order, no such controversy was possible. The gag order serves to conceal an interpretation of the NSL statUte that provides the . ' government with broader authority· to intrude upon citizens' digital lives than DOJ's public statements wo·Uld suggest, and whose very legality is reas,on~bly disputed. The gag order 12 Case 1:14-cv-09763-VM Document 36 Filed 06/26/15 Page 18 of 32 prevented this ,interpretation from being deb~ted even whil~ C~ngress set 'about amendiTIg-:fue· statute, The FirstAmendment simply cannot tolerate a gag order that has these effects. . . ': , C. The First Amendment Has Never Been Interpreted to Permit Restraints on Speech About Government "Techniques and Procedures." Even if the Attachment could be characterized as revealing "techniques a.nd procedures," as the government urges, there is no authority in First Amendment law for the proposition that I' ,': j" 1 • ~ i the govetnrnent can forcibly silence private citizens from sp~aking about "techniqu~s· and procedures" of which they have become aware. The government cannot c,ite even aJs~gle case in which an interest in. protecting "techniques and procedures" was sufficient to overcome the· First Amendment's protection offree speech. See Gov't Br: 12, 18-19. Instead, all of the gag orders cited by the government are aimed at maintaining the secrecy of grand jury or ~imilar . investigatory proceedings in order to protect the i~tegrity of those proceedings~ Gov't Br. 12. 10 In the absence of support in First Amendment law, the government resorts.to a grab-bag of cases interpreting FOIA exemptions and the evidentiary privilege for law enforcement techniques .. Gov't Br. 1~-19. But, as noted? these cases in fact illustrate the distinction that plaintiffs draw here between concealing how the government exercises its,lawful authority and concealing that the government claims certain authority in the first place .. See supra 4 & n.2. While the government concedes that FOIA and the law enforcement privilege are not directly applicable in this conteXt, it nonetheless urges that "their principles ... stilJ pertain." Gov't Br 19. To·the contrary, th~se principles are inapposite. FOIA cases, which ~oncem the scope of the gove111II!-ent's right to withhold infonnation from citizens in the face of a ~equest to 10 Citing Kamasi11ski, 44 F.3d at III (permitting restraint forbidding complainant or witnesses from:discussing investigation while it was ongoing); First Am. Coal., 784 F.2d at 479 (permitting restramt forbidding disclosure of other witnesses' testimony in investigatory proceeding akin to a grand jury); Hoffmann-Pugh, 338 F.3d at 1140 (permitting restraint forbidding disclosure of what tr~spired at grand jury until investigation is «truly closed"). 13 Case 1:14-cv-09763-VM Document 36 Filed 06/26/15 Page 19 of 32 - ~; , .. disclose ~t; have no bearing on the situation where a citizen possesses information ~d the . . ;:: . govertnnent seeks to suppress it. S~e, e.g., Wright v. F.B.I, 613 F. Supp. 2d 13,24 (D.D.C . . ; 2009) ("[T]he Government has dted to,no case holding that FOIA is coterminous' with the First ; , \ i . ~ , : : Amendment."). Even iIi cases where the First Amendment rights at stake:were much. weaker ~ ; ~.: i " than those here, courts have declined to conflate FOIA and the FIrst Am~ndmerlt.'Id. 'at 24 " . . ~ . (rejecting weaker FOIA standards in First Amendment lawsuit challenging redactions of book writtenb'y former goverriment employee who had consented to prepublication review, by - , . :,' . : : government censors); McGehee v. Casey, 718 F.2d 1137, 1148-49 (D.C. Cir. 1983) (same). Similarly, the law of privilege is of no relevance because the question here is not whether the government can resist disclosure sought by a private citizen for purposes of litigating a civil suit, but whether the government can suppress discussion of information that it has voluntarily provided to a private citizen. The latitude afforded the government will obviouslybe broader in the former context, which is not inflected with First Amendment concerns. But even in the discovery context, the law enforcement privilege is "qualified" and can be overcome where "a lawsuit involves a matter of public concern such as civil rights-. a factor that will usually support disclosure." Floyd v. City o/New Yo'rk, 739 F. Supp. 2d 376,381 (S.D.N:Y. 2010). Simply put, a government interest in maintaining the secre~y of "techniques and procedures" is insufficient to justify a prior restraint barring a private citizen from discussing matters of public concern when he has not voluntarily assumed a duty of confidentiality.ll 11 The government points to this Court's 2010 decision upholding a gag order on the Attachment as precedent for the proposition that law enforcement techniques may be suppressed. Gov't Br. 19-20. But 'at that time there were multiple reasons for maintaining the gag order on the Attachment, including protecting the integrity of the underlying investigation which remained ongoing. Doe v. Holder, 70~ F. Supp. 2d 3l3, 316-17 (S.D.N.Y. 2010). Moreover, the Court applied the more It!mient standard of review set forth in by the Second Circuit in John Doe, Inc v. Mukasey. See id. In the context of the present as-applied challenge, more stringent scrutiny is required. See infra Part LF. 14 Case 1:14-cv-09763-VM Document 36 Filed 06/26/15 Page 20 of 32 I.', · .... n; The Gag Order is Permanent, and Therefore Unconstitutional, Be¢ause Its Duration Now Depends Solely on the Preferences of tbelGovernment. Plaintiff contends that permanent bans on speech are unconstitutional. PI. Br .• 13-14. The government does not contest that legal proposition but instead~gues that the gag on Mr. Merrill is not "pEmnanent" in the constitutionally relevant sense, for two reasons: first, bec~u~e Mr. " . Merrin is permitted to annually challenge the gag' in court and, second, because of "the FBI's repe~ted willingness to reassess and reduce the scope of the nondisclosure: r~qujrementin light of i '. . .. changing ti-eeds and circumstances." Gov't Br .. 22-24. These arguments miss the mark. The cases forbidding permanent gag orders do not merely insist that an individual have the procedural right to periodically return to court. They look to whether the gag order will in fact remain 'in place indefinitely. See, e.g., Butterworth v. Smith, 494 U.S. 624,635 (1990) (gag unconstihl;tional because "[t]he ban extends ... into the indefinite future"); Kamasinski, 44 F.3d at 112 (after investigation is closed "even [the state's] most compelling interests cannot justify a ban on public disclosure"); Doev. Gonzales, 449 F.3d 415,421-23 (2d Crr. 2006) (Cardamone, , ' 'J., concurring). Whether a gag is permanent thus depends on whether it is tied to circumstances in the world that might change, rendering the gag order obsolete. The only circumstances that the government points to here are the FBI's preferences, but a gag that lasts precisely as long as the government wishes is just the sort of permanent gag order that the First Amendment forbids. The government seeks to avoid this conclusion by pointing to the FBI's "willingness" to progressively lift the gag on Mr. Merrill, but the FBI has hardly been "willing" to reduce the gag, particularly with respect to the Attachment. The scope of the gag on the Attachment was, fIrst limited, against the Government's vigorous protest, by this Court's 2010 order to unredact portions of in the Attachment that were described verbatim in the NSL statute or that had ofuerwise been made public byfue government. Doe v. Holder, 703 F. Supp. 2d 313, 316 15 Case 1:14-cv-09763-VM Document 36 Filed 06/26/15 Page 21 of 32 , (S.D.N.Y. 201 0). Th~ parties reached a settlement prior to appeal permitting plaintiff to identify himself, but the gag on 'the Attachment remained intact for five years with no apparent effort by , , , DO} to determine whether it co~ld be narrowed. The government did not change its position until Mr. Merrill unde~took the burden of bringing new litigation and filed his motion for summary judgment, pointing out that the governme~thad already disclosed several other categories of records listed in the Attachment years earlier. PI. BL'18. In respon~e, the government agreed to lift the gag with respect to' some, but not all, of these publicly disclosed categories, and to lift the gag with respect to the phrase "Internet Service Provider (ISP)." Gov'tBr. 14. Far from demonstrating a "willingness to reassess'~ the gag "in light of changing needs and circumstances," the government's new position shows that the duration of the gag order does not depend on "chailging circumstances'" , and is likelY,to remain in place permanently. Three aspects of the government's current position demonstrate that the duration of the gag order is now 'I:lltethered from any changing circumstances. First, the goverriinent contends it can maintain the gag order with respect to categori'es 6f records that were described in an official lettel~ from DO} to Congress that was published in the congressional record. Gov't Br. 14. The government defends this position on the grounds that the decision to publish the letter was made by Congress, rather than the FBI. Id. In other words, even though an officil:tl document revealing , . precisely the information found in the Attachment is now in the public domain, the gag order will remain in place for precisely as long as the FBi chooses not to publicly'disClose it. Second, the government has maintained the gag order With respect to categOries of records it no longer s.eeks. See supra 6-7. This again demonstrates that the gag is untethered . . . . authoritY from "changing circumstances" and depends simply on the caprice of the FBI. 16 Case 1:14-cv-09763-VM Document 36 Filed 06/26/15 Page 22 of 32 , Fimilly, in this entire eleven-year sag~ the-goverriirienthas'voluntarily uirredacted a' : " , \ single phrase inthe Attachment. Gov't Br. 14; Perdue Decl. ~. 57. 12 But in so doing the government pointed to no "changing circumstances" that justified its change of heart.: Indeed, the FBI offered no reason at all why it changed its position, or why it did so only now. Id.; Perdue Decl. ~ 57. Lifting the gag, in the FBI's view, was simply an exereise of executive grace. But ~ gag that will remain in plac'e indefinitely, subject only to the~ovei-nment's whiin, is the very essence of a permanent restraint forbidden by the First Amendment. . E. The First Amendment Does Not Permit Gag Orders'on PrivateCitlzens With Respect to Information That Is in the Public Domain. , . , The government refuses to allow Mr. Merrill to speak about categories in the Attachment that are already in the public domain. It prohibits Mr. Merrill from discussing Category Eleven even though a DOJ report discloses that NSLs are used to obtain "billing records and methods ofpaynient." Gov't Br. 14; Manes Decl. Ex. K, at 10. It insists Mr. Merrill not discuss Category Ten- in a DOJ letter to Congress describing the use ofNSLs. Gov't Br. 14; Manes Decl. ' Ex. J. The First Amendment does not allow gag orders that in this way suppress speech about matters that are already in the public domain. See, e.g., Neb. Press Ass 'n v. Stuart, 427 U.S. 539, 596-98 (1976); Cox Broad. Corp. v. Cohn, 420 U.S. 469, 491 (1975); In re Charlotte Observer, 921 F.2d 47,50 (4th Cir. 1990) (gag order unjustified once "the cat is out of the bag"); Bank JuliusBaer & Co. Ltd v. Wikileaks, 535 F. Supp. 2d 980,985 (N.D. Cal. 2008). 12 The Perdue Decla:ration also claims to "concede" that the phrase "account number" caD. now be disclosed. But this Court ordered the FBI to disclose that phrase in 2010, and it has been public ever since. See Doe v. Holder, 703 F. Supp. 2d at 316; Merrill Decl. Ex. C. Defendants do not explain the apparent error. Gov't Br. 14. 17 ·~ . Case 1:14-cv-09763-VM Document 36 Filed 06/26/15 Page 23 of 32 Attempting nevertheless to justify a gag on public domain information; the government . . . . invokes the test for "official disclosure" of classified information, developed in FOIA cases. Gov't Br. 14. That test determines when the government has forfeited its power to keep Mormation classified. See Wilson v. CIA, 586 F.3d 171, 186 (2d Cir. 2009). Of COlITSe, the Attachment is not classified. But, more importantly, the test has no bearing on the free speech rights of private citizens. The principal case upon whi,ch the govenlinent relies, Wilso~n v. CIA, concerned the right of a former government employee to publish classified informaticjIi even though she had signed away her right to do so in a nondisclosure agreement. Id. at 183, 192-93. Wilson explicitly distinguished cases like this one, observing that "when a government employee 'voluntarily assume[sJ a duty of confidentiality, governmental restrictions on disclosure are not subject to the same stringent standards that would apply to efforts to impose restrictions on unwilling members of the public.'" Id. (quoting United States v. Aguilar, 515 U.S. 593, 606 . (1995)). Plaintiffhas not voluntarily assumed any duty of confidentiality, and he cannot be prohibited from discussing the contents of the Attachment that are now in the public domain. 13 , . F. The "Good Reason" Standard of John Doe, Inc. v. Mukasey Is Not Appropriate in the Circumstances of This As-Applied Challenge .. In the context of this as-applied challenge, the First Amendment requires the Court either to invalidate the remaining gag order outright (because it conceals secret law and is a permanent ban on speech) or, at a minimum, to apply strict scrutiny. But the government contends that it need only meet the "good reason" standard of John Doe Inc., arguing that plaintiff 13 While the official disclosure doctrine does not apply here, plaintiff notes th'at the Second Circuit recently clarified the test, holding that "the 'matching' aspect of the Wilson test" does not require "absolute identity." New York Times Co. v. U.S. Dep 'f of Justice, 756 F.3d 100, 120 & n.19 (2d Cir. 2014). Nevertheless, the government insists on just this ldnd of precise match, arguing that the Attachment's reference to billing is nGt officially disclosed despite an official DOJ report stating that NSLs are used to obtain "billing records and all methods of payment." Gov't Br 14. The FBI also identifies no harm that would result if plaintiff were able to speak about the portions of the Attachment that were described in the DOJ letter printed in the Congressional Record. 18 Case 1:14-cv-09763-VM Document 36 Filed 06/26/15 Page 24 of 32 misunderstands the distinction-between facial and as-applied challenges,and that the same legal .~ . " ' : • I' standardtrlust apply in both contexts. Gov't Br. 21 (citing Brooklyn Legal Servs. Cofp; v. Legal , , Servs. C~rp., 462 F.3d 219 (2d Cir.2006)). It is the government that misunderstands the distinction. In the context of the facial challenge decided by John Doe, Inc" the Se~ond Circuit held only that the NSt gag order provisions could, at least in some circunistances; be applied constitutionally if the statute were interpreted to require the gove'rnment t9 demonstr~te a "good , reas~n." John Doe, Inc. v. Mukasey, 549 F.3d 861] 876 (2008). A~ a facial challenge, John Doe, ; Inc. could- not have held that every application of the gag provision would be constitutional upon a showing of "good reason," and in the present case, the Constitution is more demanding. As the ,Second Circuit explained in Brooklyn Legal Services, even after a facialchallengf:!, is decided, a plaintiff remains free to bring an as-applied challenge to show that a statute "will, in the case of some recipients, prove unduly burdensome·and inadequately justified." 462 F.3 d at . . ~ . 29 (quotation omitted). Because the as-applied challenge in Brooklyn Legal Services was "in all relevant respects, on all fours with its facial counterpart," the legal rule developed in a prior , ' fachil 9hal~enge applied without modification. Id. at 228. The circumstances of the gag order , ' , today are not "on all fours" With those considered in John Doe Inc. Unlike in 2008, the gag order now serves only to protect a secret interpretation of law~r,' according to the g'overnment, , , , "techniques and procedures"-and does not protect any particular ongoing investigation. Mo~eover,the duration of the gag is now untethered fro~ any investigation and depends solely on the government's whims. See PI. Br. 13-14. Contrary to the goverru:tient'sassertiori, Gov't Br. 20-22, 25, the Second Circuit did not incorporat~ these considerations when it crafted the "good reason" standard; none of these circumstances existed at that tnne, and so the court 19 Case 1:14-cv-09763-VM Document 36 Filed 06/26/15 Page 25 of 32 had no rieeq to' address them. On the current facts, the First Amendment r:equiies that the gag be ' set aside, or at least that the government bear the burden of justifying it under strict scrutiny. ~ . . . II. THE GOVERNMENT FAILS TO ESTABLISH THAt ALLOWING PLAINTIFF TO SllEAK WOULD RESULT IN ANY'HA.RM:S. The government's posited justification for suppressing th,e Att~chment is speculative, conclilsory, and ultimately irilpiausible. It cannot satisfy strict scnitiny :or even the attenu~ted John Doe, In¢. standard. While the government's brief invokes a vagu~ but 'ominous specter of harm to "nati<:>nal security," Gov't Br. 11, the precise harm the FBi articulates in its declaration is more concrete: "Individuals may not be aware law enforcement 'officials can obtain (the suppressed categories of] information during the course of an authorized investigation," so "(d]isclosure of the language in the NSL attachment" could allow individuals to "avoid law enforcement detection when planning or committing criminal, counterintelligence or terrorism activities." Perdue Decl. ~ 58. The government repeats this justification,ofien verbatim, with respect to e';ery suppressed category of the Attachment. Id. ~~ 55, 56, 59-70. 14 This justification fails because its premise is false: individuals in fact are aware that law enforcement can obtain the categories of information described in the Attachment. The FBI's specific interest in the categories of records described in the Attachment is public and easily ascertained. As a result, individuals seeking to evade detection by the FBI already know to avoid creating such records. In truth, the only thing the government is keeping secret is that it can and does obtain this kind of information using an NSL, as opposed to other authorities. But that 14 The FBI's deClaration recites the same rationale when justifying the gag orde~ on Category Sev~nteen-i, e. "Any other information which you consider to be an electronic communications transaction record." Perdue Decl. ~ 70. But that portion of the Attachment is not currently redacted, and has been public smce 2009. See Menill Decl. Ex. C; Exhibit A to Mem. in Supp. ofPltfs' Mot. for Partial Reconsid'n, John Doe, Inc. v.Holder, No. 04~cv-2614 (S.D.N.Y. filed Nov. 3,2009) (Attachment as it was then required to be redacted). That the FBI's declaration asserts this justification, under oath, in circumstances where it clearly does not apply suggests a lack of careful consideration and invites some skepticism when the government asserts the same boilerplate rationale 'Yith respect to the still-gagged portions of the Attachment. See also supra 17 n.12. 20 , \ Case 1:14-cv-09763-VM Document 36 Filed 06/26/15 Page 26 of 32 information is' irrelevant to a person seeking to evade the FBI, who does not care what tool-the' FBI uses ito obtain certain kinds cifrecords, but only whether it does so. Pptential targets of FBI investigations already know, if they care to ieam, fuatthe - -, - - Governnient has' a particular interest in the categories of records described in the Attachment. . \ . : , , ' , , For ex~ple:i DO] guidance regarding the Stored Communications Act ("SCA") makes clear that the government routinely requires disclosure of (1) "subscriber names, user names, screen ~ .' , . : " naines, or other identities;" (2) "addresses," including mailing, residential; busmess, and email, ! and "other contact information;" (3) "length of service (including start date) and types of service utilized;" (4) "telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address;" (5) "means and source of payment for such service (includmg any credit card or bank account number);" (5) "billing records;" (6) "records of user activity for any connections made to or from the accoUnt;" (7) "Internet Protocol addresses;" (8) "cell site' and sector information;" (9) "lion-content information associated with the contents-of any communication or file stored by or for the account;" and (10) "correspondence and notes of records related to the account." Manes Dec!. Ex L, at 222-23; 18 U.S.C. §'2703(c)(2): See Perdue Decl. Other' examples abound. The FBI suppresses the fact that it can obtain Category 2 using an NSL, even while it publicizes its interest in obtaining this information under other authorities. We know this because, among other things, DO] has said so in a trhlning manual, and because individuals haye challenged the constitutionality of obtaining this 21 Case 1:14-cv-09763-VM Document 36 Filed 06/26/15 Page 27 of 32 ~----~-- I i· .. informat~on. 15 We know that th~ 'FBI has an interest in obtaining Category 16 for the ' ';. ' same reaSons.16 S~e also supra 17 (pointing out that DOJ correspondence published in the '! Congressional Record directly reveals Category 10 . q.dividuals seeking to, evade deteC(~ion thus already know that the categories of records ! des9ribe~ in the Attachment can be obtained by-and are of interest to-the FBI. Such, . ~ individucls therefore can already devise and take measures to avoid detection using these , . ' " methods) if they are so iriclined. Disclosing the remainder of the Attachment will not provide additional insight permitting additional circumvention. The gag order therefore does not advance the interest the government claims to be serving: protecting the effectiveness of an investig~tory tool. See Gov't Br. 16. For this ,reason, it fails strict scrutiny. Se'e, e.g., Neb. Press Ass '17., 42.7 U.S. 539, 569 (1976) (government must demonstrate, to a high degree of certainty, that "res1raining order actually entered would serve its intende4 purpose."). Indeed, it fails even the less stringent standard set forth in John Doe, Inc. 549F.3d at 875 (government must demonstrate "reasonable likelihood" that an enumerated hai-m will result). ID. 'FIlE NSL STATUTE DOES NOT AUTHORIZE THE PRESENT GAG ORDER. , ' The best reading of the NSL statute does not allow permanent gag orders or suppression , , oflegal interpretations. PI. Br. 21-24. Gag orders may only be issued against the recipient of an NSL request, and such requests can only be issued to obtain informatioJ? "relevant to an authorized investigation." 18 U.S.C. § 2709(b)(1). The gag order provision forbids disclosure of the fact that "the [FBI] has sought or obtained access to information or records under this section,'; and enumerates four haTIns that can justify a gag order, which ar,e reCited again in the I 15 See, e.g., Second Manes Decl., ,159-61; 16 See Sec~nd Manes Decl. 22 Case 1:14-cv-09763-VM Document 36 Filed 06/26/15 Page 28 of 32 judicial review provision, §§ 2709(c)(1), 3511(b)(3). Read together, these provisions are best understood to require that the enumerated harms must have a nexus with the particular '~authorized' investigation" that prompted the NSL.'See PI-. -Br;21-24.17 T:~e;:g~vernment disagre:e~, arguing that harm to any investigation-' or dang6r! to I '. . I "national security" Writ large-suffices to sustain a gag beyond the' end of the particu'lar investig~ti~n.' Gov't Br. 17-18,. In support, thegovernmeni relies heavily on this Co~' s 2010 · : decision upholding part of the gag on the Attachment. Id. 19 (citing Doe, 703 F. Supp. 2d'313) . . ' . " . :" The goverm:iJ.ent is mistaken. While this Court found that disclosure could plausibly result in a, statutorily enumerated harm, it was careful to lirrrit its holding to situations where the underlying investigation was ongoing. "For instance," the Court wrote, "disclosure of the Attachment could risk providing information useful to the Government's targets of the pending investigation that could prompt changes in their behavior to prevent detection, or signal that particular targets remain under active surveillance." 703 F. Supp. 2d at 317 (emphasis added). While the Court did note the government's concern that disclosure could "potentially [inform] future targets," that was not the basis for the Court's decision sustaining the nondisclosure order. Id. at 316Y f.£ad Congress wanted to authorize permanent gag cirders regarding the FBI's, interpretation of the scope of its authority under the statute, it would have spoken far more clearly when it amended the nondisclosur.e provisions earlier this month. Instead, three pieces of .11 The USA FREEDOM Act amended § 2709 and § 3511 in a nwnber of res peck but did not change the enwnerated harms specified in §§ 2709(c)(1) and 3511(b)(3), now codified at§§ 2709(c)(2) and 3511(b)(3), nor did it change their relationship with the substantive authority to issue NSLs in connection with an "authorized investigation." Pub. L. No. 114-23, § 502(a), (g). To avoid confusion, citations to the US.·Code refer to the unamend~d text. Recent amendments are cited to the enrolled' bill, Pub. 1. No. 114-23. 18 The best reading of the statute requires harm to the particular in.vestigation that gave rise to the gag order itself, but at the very least, the government must show a harm to a particular investigation. The government fails to meet even that fower bar, arguing instead that it may, for example, continue to prevent disclosure that it once sought . on the basis that it may, hypothetically, seek such information in the future. See supra 6-7. " ' 23 Case 1:14-cv-09763-VM Document 36 Filed 06/26/15 Page 29 of 32 1 : : , · ·i : . . . : evidence stropgly suggest that Congress intended to reject the notion that gag orders can " . continue indefinitely to suppress the information revealed by the Attachment. First, Congress imposed" upon the government an affIrmative obligation to periodically 'review gag orders to "assess whether the facts supporting nondisclosure continue to exist" Pub."L~ No. 114~23" § 503(f)(1)(A). This strongly sugge:sts that Congress believes" that the ~'facts" can irideed ch~ge so as to obviate the need for the gag.: Cj supra § I.D (arguing that gag has become unt~thered from any facts save for government preferences). Second, an ~arlierversion of the bill contained a provision that would have relieved the government of its obligation to periodically review the need for a gag order if, following the close of an investigation, a ~ourt upheld the gag order. S. 2685 sec. 502(a); § 2709(c)(3)(B), 113th Congo (2014). That provision would have condoned precisely the kind ofpermiment gag order that the government seeks here. "But Congress rejected that provision, opting instead to require periodic governmental review of gag orders, without regard td whether the investigation remains pending. Pub. 1. No. 114-23 § 503(f). Finally, the USA FREEDOM Act amends the ju<;licial review provision to adopt procedures that clearly contemplate that gag orders will end. As amended, § 3 511 requir~s the government to come to " " court to justify the imposition of a nondisclosure order andiany "extension thereo"f' whenever the NSL recipient "notif1ies] the Government" that he "wishes to have a court review a nondisclosure requirement." Pub. 1. No. 114-23 § 502(g) (to be codified at 18 U.S.C. § 3S11(b)(I)(A)-(B)). The amendment th~s contemplates that nondisclosure orders will betime limited, subject to re-review by the Court on applications for "extensions." This goes well beyond the holding in Joh~ Doe, Inc., which required the goverriment to initiate judicial revi~w oilly once hnmediately following receipt of the NSL, and arguably allowed gag orders,to remain in place indefinitely thereafter, unl~ss challenged again by the NSL recipient. 549 F.3d at 883- 24 Case 1:14-cv-09763-VM Document 36 Filed 06/26/15 Page 30 of 32 84. In adopting'this provision, Congress registered its 'disagreement With the S'ec'orid CircUit's' supposition that "once ,the need for :secrecy-avoiding risk of hann related to inte~ational ; . terrorism-has been shown, that ne~ed is not likely to dissipate soon." Id. at 884 n.16. Indeed, the best way to understand CongresS' recent actionis to construe the statute to forbid gag orders that indefInitely suppress discussion of the FBI's use ofNSLs. ,By adopting an interPretation that requires a nexus with th~ particular underlying investigation (or otherwise . I disallows indefInite suppression of the FBI's interpretation of the law), this Court' can effectuate Congress' intent and also avoid adjudicating the grave constitutional infirmities that plague the nondisclosure order here. See supra; PI. Br. 25. If Congress means to empower the FBI to press the limits of the First Amendment as far as it .does today, it should speak more clearly than it has. IV. IF THE COURT UPHOLDS THE GAG ORDE:B., IT SHOULD DO SO ONLY FOR' A LIlVIITED PERIOD OF TIlVIE. ' Should the Court decide not to lift the entire gag order, it should specify a date certain on which the gag will expire unless the government reinitiates proceedings to further extend the order. See CompI. ~ 43. ~le plaintiff recognizes that the Second Circuit wrote, in dicta, that the goveIT.\ffient "would not be obligated to [reJipitiate judicial review,'" 549 F.3d at 884, that statement was ill-considered in light of the First Amendment prohibition on restraints that extend longer than necessary, e.g., United States v. Antar, 38 F.3d 1348, 1362 (3d Cir. 1994) ("Under the First Amendment, once ~ overriding interest initially necessitating closure has passed, the restrictions must be lifted.") (citations omitted)., In any case, the recent amendments to § 3511 require the government to periodically review the continuing need for a nondisclosure order, Pub. L. No. 114-23, § 502(f), and to apply to a court when necessary to obtain an "extension. thereof," §502(g); supra 24. ' Thus, even if the Court were'to fmd that the gag remains justified today, it should give effect to the recent amendments by setting' an expiration date. 25 Case 1:14-cv-09763-VM Document 36 Filed 06/26/15 Page 31 of 32 · .. i ' CONCLUSION , For' these reasons" the; Court ~hould lift the nondiscl,osure order on plaintiff ill its entirety: Dated: June 11, 2015 New Haven, CT Respectfully subniitted, " Ji?n~ervising attof)ley . David A. Schulz, supervising attorney ) Benjamin Graham, law student intern Matthew Halgren, law stUdent iIitern ' Nicholas Handler:, law stuclent intern A..manda Lynch, law stud'ent iritern, MEDIA FREEDOM AND INFORMATION ACCESS CLINIC YALE LAW SCHOOL * P.O. Box. 208215 New Haven, CT 06520 Tel: (203) 432-9387 Fax: (203) 432-3034 , j onathan'I11anes@yale.edu , . . : . ' Attorneys for Pla{ntiff Nicholas Merrill • The Media Freed~m and Information Access Clinic is a program of the Abrams Institute for Freedom of Expression and the Infqrmation Society Proj ect at Yale Law School. This memorandool does not purport to present the school's institutional 'views, if any. . , . 26 Case 1:14-cv-09763-VM Document 36 Filed 06/26/15 Page 32 of 32