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Anatomy of a Brief: Merrill v. Holder et al.

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In March, the Reporters Committee filed a friend-of-the-court brief in the United States District Court for the Southern District of…

In March, the Reporters Committee filed a friend-of-the-court brief in the United States District Court for the Southern District of New York weighing in on the right to know more about a shadowy administrative subpoena process: "national security letters," known as NSLs.

National security letters and gag orders

NSLs are warrantless requests that are issued by high-ranking FBI officials to third parties for non-content records relevant to national security investigations. By far the most commonly used NSL authority is that in the Electronic Communications Privacy Act (ECPA), which enables the FBI to request the “local and long distance toll billing records” of any person from a “wire or electronic communication service provider,” such as ISPs, email providers, and phone companies.

NSLs are frequently accompanied by a nondisclosure order that prevents the recipient from publicly acknowledging that they have received the request. The gag orders are issued by the FBI if the issuing official certifies that disclosure “may result” in a danger to national security or to the safety of any person. The nondisclosure orders are usually issued at the same time as the NSL is issued, without any judicial oversight. Recently, the Office of the Director of National Intelligence announced impending changes to the policy governing the issuance of gag orders: “the FBI will now presumptively terminate National Security Letter nondisclosure orders at the earlier of three years after the opening of a fully predicated investigation or the investigation’s close.” While the three-year limit is an improvement, it does not solve the serious constitutional problems with the NSL authority and the nondisclosure provisions.

This is not the first time the Reporters Committee has weighed in on the FBI's NSL authority. In April 2014, the Reporters Committee filed an amicus brief in support of petitioners challenging ECPA NSLs in two cases in the Ninth Circuit. Those cases have not yet been decided.

The facts of the case

In 2004, Nicholas Merrill received an ECPA NSL with a nondisclosure order. Merrill, who ran an Internet Service Provider called Calyx Internet Access, challenged the NSL and the gag order. In subsequent litigation in the Southern District of New York, the scope of the nondisclosure order was narrowed significantly. In 2010, Merrill was permitted to acknowledge that he was the litigant and the recipient of the NSL. And in February 2014, the FBI permitted Merrill to reveal the target of the NSL: the customer whose records were sought. But the FBI continues to maintain that Merrill may not reveal the Attachment to the NSL that specifies the kinds of information that the FBI sought using the NSL. As a result, the gag order has been in place for over ten years. Merrill brought this suit to lift the gag preventing him from disclosing what types of information the FBI sought pursuant to their authority to compel disclosure of “electronic communications transactional records.”

The right to receive information from Merrill about the Attachment to the NSL

The Reporters Committee argued that the press and the public have a First Amendment right to receive the information that Merrill wants to disseminate: the content of the Attachment to the NSL.

The right to receive information is an independent “corollary” of the guarantees of free speech and a free press. Young v. American Mini Theatres, Inc., 427 U.S. 50, 76 (1976) (Powell, J., concurring). “The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read . . . .” Griswold v. Connecticut, 381 U.S. 479, 482 (1965).

. . .

The “willing speaker” doctrine is usually invoked to establish that the press has standing to challenge an unconstitutional restraint on speech that purports to bind a third party. See, e.g., United States v. Simon, 664 F. Supp. 780, 786 (S.D.N.Y. 1987) …. But the doctrine also demonstrates the inextricable connection between the First Amendment rights of the speaker and the related, independent rights of his or her audience. Indeed, “[i]t would be a barren marketplace of ideas that had only sellers and no buyers.” Lamont v. Postmaster General of United States, 381 U.S. 301, 308 (1965) (Brennan, J., concurring). Accordingly, in the free marketplace of ideas, “the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences” is paramount. Red Lion Broad. Co. v. F.C.C., 395 U.S. 367, 390 (1969).

The Reporters Committee argued that the content of the Attachment is of heightened interest to the press and the public because it concerns government conduct: it is evidence of the government's interpretation of its own authority to compel the disclosure of communication records to law enforcement.

[Disclosure of the Attachment] would inform public debate about government conduct — specifically the government’s use of NSLs — and enable public oversight of the executive branch. Speech of this kind lies at the core of the protections guaranteed by the First Amendment, which were “fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” Roth v. United States, 354 U.S. 476, 484 (1957).

Indeed, the only publicly available government interpretation of the FBI’s authority to compel the production of communications records is a 2008 memo from the Office of Legal Counsel, which concluded that NSLs may only be used to seek subscriber information, “toll billing records,” and “parallel” categories of information. See Requests for Info. Under the Elec. Commc’ns Privacy Act, 32 Op. O.L.C. 2 (2008). The OLC, however, acknowledged that ambiguity exists in the application of the phrase “toll billing records” to electronic communications. See Dep’t of Justice, A Review of the FBI’s Use of NSLs: Assessment of Progress in Implementing Recommendations and Examination of Use in 2007 through 2009 (Aug. 2014) (“NSL Report III”), at 74. Nondisclosure requirements like the one at issue here prevent the public from knowing how the FBI interprets that ambiguous phrase and what types of communications records it believes it is authorized to seek with NSLs. The result is that citizens are essentially unable to gain access to the executive branch’s interpretation of a federal statute.

The gag order impedes speech that has significant legal and political implications

The Reporters Committee argued that the content of the Attachment is of particular value because only by knowing what types of information the government obtains through NSLs can the public evaluate the statutory and constitutional implications of the program.

For example, the collection of email content is not authorized under ECPA’s NSL provision. See 18 U.S.C. § 2709(a) (authorizing requests for subscriber information and toll billing records). Indeed, courts have held that the acquisition of the content of email requires a warrant under the Fourth Amendment. See Warshak v. United States, 631 F.3d 266, 282 (6th Cir. 2010) (finding that compelling a service provider to turn over the content of email without a warrant is a Fourth Amendment violation). Yet, as the OIG has found, the lack of clarity surrounding the definition of communications records has resulted in at least five “unauthorized collections” of content information from “one of the larger email service providers.” NSL Report III, 131–32.

Moreover, the types of communications records that the FBI might seek using an NSL also implicates other statutory provisions of federal law. In response to Stanford Daily, Congress enacted the Privacy Protection Act of 1980, 42 U.S.C. § 2000aa (“PPA”), which prohibits searches for certain types of materials related to newsgathering. The PPA “affords the press and certain other persons not suspected of committing a crime with protections not provided currently by the Fourth Amendment.” S. Rep. No. 96–874, at 4 (1980), reprinted in 1980 U.S.C.C.A.N. 3950, 3950–51. As a result, to the extent that NSLs purport to authorize searches or seizures of materials belonging to persons engaged in newsgathering, those searches are barred by the PPA, except in very few, limited circumstances. For this reason too, public scrutiny of the FBI’s use of NSLs to obtain communications records is necessary.

The Reporters Committee also emphasized that, to the extent that NSLs are used to obtain records belonging to members of the news media, additional regulatory protections limit the FBI’s authority to compel disclosure of those records.

Federal regulations constrain the circumstances under which the FBI can obtain records of members of the news media. 28 C.F.R. § 50.10. Generally speaking, the Attorney General must authorize the use of a subpoena or warrant to obtain records, including communications transactional records, of members of the news media. § 50.10(a)(3). The “affected member of the news media” must also be given “reasonable and timely notice” of the request. § 50.10(a)(4). While these regulations do not refer expressly to NSLs or FISA warrants or applications, they raise questions as to the propriety of the FBI’s usage of NSLs to obtain records of members of the news media.

The use of NSLs to obtain the communications records of reporters flouts, at a minimum, regulatory protections for journalists and undermines press freedom. Information of the kind that Merrill is restrained from making public concerning how the FBI interprets communications records for purposes of requesting information in an NSL is needed in order for the press and the public to ensure that the FBI is acting within its authority and with adequate regard for First Amendment values.

These concerns are especially strong here because the use of NSLs to obtain reporters’ electronic communication transactional records puts confidentiality at risk.

The government’s use of NSLs to obtain the electronic equivalent of a reporter’s contact list or research history would destroy the ability of reporters to, among other things, communicate in confidence with sources through any electronic channel. Indeed, the threat of compelled disclosure of email addresses and URL visits alone limits journalists’ ability to gather information and report the news by chilling the exercise of First Amendment rights. … The chilling effect of compelled disclosure of communications information is all the more concerning where, as here, the types of information that may be obtained by the government remain undefined. The lack of clarity regarding the definition of communications records impedes the ability of individuals — including reporters and their sources — to communicate with one another in confidence.

The Reporters Committee was joined by 21 media organizations in support of Merrill's effort to lift the gag.