## Facts

- The FBI issued National Security Letters (NSLs) to two communications-service providers under 18 U.S.C. § 2709, seeking subscriber and transactional records for national-security investigations.
- Section 2709(c) imposed a nondisclosure requirement preventing NSL recipients from disclosing receipt of an NSL.
- In one action, a federal district court held aspects of the NSL statute unconstitutional, including on First Amendment grounds and concerns about lack of meaningful judicial review.
- In a second action, another district court preliminarily enjoined enforcement of the nondisclosure requirement as applied to a different NSL recipient.
- The government appealed; the appeals were consolidated.
- While the appeals were pending, Congress enacted the USA PATRIOT Improvement and Reauthorization Act of 2005 (effective 2006), substantially amending § 2709 and creating a new judicial-review mechanism in 18 U.S.C. § 3511.

## Issues

1. Whether statutory amendments enacted during the appeal altered the justiciability and proper disposition of constitutional challenges to the pre-amendment NSL and nondisclosure regime.
2. Whether the district court’s Fourth Amendment-related ruling about the pre-amendment NSL scheme should remain in place after the enactment of a new judicial-review framework.
3. Whether, and how, the First Amendment challenge to the nondisclosure requirement should be evaluated under the amended statutory scheme.
4. Whether the appeal from the preliminary injunction in the related case remained a live controversy.

## Decision

- The court did not resolve the constitutionality of the NSL regime on the merits as amended.
- As to the first district court case, the court vacated the judgment to the extent it rested on a Fourth Amendment theory and treated that claim as no longer presenting a live dispute in light of statutory changes and the parties’ litigation posture.
- The court vacated and remanded the First Amendment nondisclosure challenge for reconsideration under the amended § 2709 and the new judicial-review procedures in § 3511.
- As to the second district court case, the court dismissed the government’s appeal from the preliminary injunction as moot based on the government’s concession that it would not enforce the nondisclosure requirement against that recipient in the challenged manner.
- A concurring opinion agreed with the procedural disposition while stressing the need for close judicial scrutiny of secrecy requirements affecting speech.

## Legal Principles

- When Congress substantially amends a challenged statutory regime during an appeal, appellate courts may vacate and remand to prevent constitutional adjudication based on a superseded legal framework.
- Courts avoid issuing constitutional rulings that would function as advisory opinions where intervening changes materially alter the operative law and available procedures.
- Claims may be treated as moot or abandoned when intervening amendments and the parties’ positions eliminate the live controversy as to the original theory.
- An appeal is moot when subsequent events or concessions provide the effective relief sought and there is no longer a live case or controversy regarding the challenged order.

## Conclusion

The Second Circuit disposed of consolidated challenges to NSL nondisclosure obligations primarily on procedural grounds after Congress revised the governing statute, vacating portions of one district court judgment and remanding the First Amendment issues for reconsideration under the new review framework, while dismissing the related preliminary-injunction appeal as moot.


Doe v. Gonzales, 449 F.3d 415 (2d Cir. 2006)