That is to say, the gag may only be ordered against "[t]he recipient of a request for records ... in connection with such a request." 22 18 U.S.C. § 3511(b)(1). The most natural reading of this language is one that constrains the FBI's nondisclosure authority to the context of a specific "authorized investigation," not one that permits gag orders to persist so long as any authorized investigation happens to remain ongoing.7 This understanding of the limits on the FBI's nondisclosure authority is further supported by the four specific, enumerated justifications the statute provides for imposing and sustaining a gag order.

The Court did not reach those claims because it granted complete relief on the basis of Plaintiff’s claim under 18 U.S.C. § 3511. See Op. 32 (“Because the Court finds that the Government has not shown a good reason for continued non-disclosure of the Attachment, pursuant to Section 3511, the Court need not (and should not) consider Merrill’s other arguments . . . .”). 4 B. The Government’s Positions Were Not Substantially Justified.

The Second Circuit properly interpreted the NSL statute in light of both common sense and the assumption that Congress intends to legislate constitutionally. To the extent it does not await the Ninth Circuit’s ruling on the NSL statute, this Court should follow the Second Circuit’s reasoning and dismiss plaintiff’s challenge to the NSL statutory standard of review pursuant to Fed. R. Civ. P. 12(b)(6).13 CONCLUSION For all of the foregoing reasons, the Court should grant this Motion and dismiss plaintiff’s claims under Count I of its Complaint concerning FISA, legal process issued under FISA, the January 27, 2014 letter from the Deputy Attorney General, and 18 U.S.C. § 3511. Dated: January 9, 2015 Respectfully submitted, JOYCE R. BRANDA Acting Assistant Attorney General MELINDA HAAG United States Attorney ANTHONY J. COPPOLINO Deputy Branch Director /s/ Steven Y. Bressler STEVEN Y. BRESSLER JULIA A. BERMAN Attorneys U.S. Department of Justice Civil Division, Federal Programs Branch Attorneys for Defendants 13 Plaintiff also challenges the NSL statute and any applicable nondisclosure requirements as applied and on their face.

§ 3511(b)(2).3 Consistent with John Doe, Inc., 549 F.3d 861, 875-76 (2d Cir. 2008), the Act requires the district court to issue a nondisclosure order if it determines “that there is reason to believe” that the absence of a nondisclosure order may result in one of the enumerated harms. 18 U.S.C. § 3511(b)(3). The Act also repeals the provision (formerly in § 3511(b)(3)) under which an NSL recipient who unsuccessfully challenged a nondisclosure requirement a year or more after the issuance of the NSL must wait one year after before again seeking judicial relief.

Plaintiff makes no argument that the statutory standard in § 3511(b) does not require narrow tailoring to these compelling interests – it does, see Doe, 549 F.3d at 883 – and so the statute is consistent with strict scrutiny, assuming arguendo strict scrutiny applies. CONCLUSION For all of the foregoing reasons and those stated in defendants’ opening memorandum, the Court should dismiss plaintiff’s claims under Count I of its Complaint concerning FISA, legal process issued under FISA, the DAG Letter, and 18 U.S.C. § 3511(b). Case4:14-cv-04480-YGR Document57 Filed03/04/15 Page20 of 21 Twitter, Inc. v. Holder, et al., Case No. 14-cv-4480 Reply Memorandum in Support of Defendants’ Partial Motion to Dismiss 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: March 4, 2015 Respectfully submitted, BENJAMIN C. MIZER Acting Assistant Attorney General MELINDA HAAG United States Attorney ANTHONY J. COPPOLINO Deputy Branch Director /s/ Steven Y. Bressler STEVEN Y. BRESSLER JULIA A. BERMAN Attorneys U.S. Department of Justice Civil Division, Federal Programs Branch Attorneys for Defendants Case4:14-cv-04480-YGR Document57 Filed03/04/15 Page21 of 21

As provided in § 3511(b), the preclusive effect of a court’s denial of a petition to modify or lift a nondisclosure requirement lasts for only one year. 18 U.S.C. § 3511(b)(3); John Doe, Inc., 549 F.3d at 883-84 (recognizing “existing opportunities for annual challenges to the nondisclosure requirement,” in which “the standards and burden of proof that we have specified for an initial challenge would apply, although the Government would not be obliged to initiate judicial review”). The Second Circuit expressly rejected the argument that the annual review provision “unduly prolonged the duration of the nondisclosure requirement,” holding that “limiting an NSL recipient to annual opportunities . . . to terminate the nondisclosure requirement does not violate First Amendment procedural requirements.”

Under the statute, a party who receives such an NSL containing a nondisclosure requirement and who wishes to speak about an NSL must litigate the validity of the nondisclosure requirement before speaking. 18 U.S.C. § 3511(b)(1). In other words, while the prior-restraint doctrine recognizes that “a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand,” Se.

These nondisclosure orders are not narrowly tailored to serve a compelling governmental interest because, following passage of the USAFA, they continue to apply to the mere fact of receiving an NSL and they continue to be unlimited in duration. In their supplemental briefing, the parties addressed at greater length the effect of the statutory amendments to 18 U.S.C. § 3511 on Twitter’s claims regarding the judicial review procedures for NSL nondisclosure orders. Twitter continues to allege that the changes to those provisions likewise do not materially change the availability and effect of the prior restraint that Defendants have placed on Twitter’s speech.

at 38-43. With respect to the judicial review provisions, the Second Circuit held that review of any challenge to the nondisclosure requirement contemplated by 18 U.S.C. § 3511(b) was inconsistent with the First Amendment to the extent that it required the court to accept the Government’s certification of harm as conclusive in deciding the merits of a First Amendment challenge to nondisclosure. See id.