## Facts

- The FBI served an Internet service provider with a National Security Letter (NSL) seeking subscriber information under 18 U.S.C. § 2709.
- The NSL included a nondisclosure requirement under § 2709(c) barring the recipient from revealing that it received the NSL.
- The nondisclosure mandate was tied to a government certification that disclosure could cause specified harms, including risks to national security or interference with investigations.
- The provider, its employee, and civil-liberties organizations sued, challenging the constitutionality of the NSL nondisclosure regime and the statutory structure for judicial review under 18 U.S.C. § 3511(b).
- The district court held the amended nondisclosure and review provisions unconstitutional and broadly enjoined issuance and enforcement of NSLs and related nondisclosure provisions.
- The government appealed.

## Issues

1. Whether § 2709(c)’s nondisclosure requirement for NSL recipients violates the First Amendment as a content-based restriction and prior restraint, particularly where secrecy may be open-ended.
2. Whether § 3511(b)’s judicial-review scheme—requiring extraordinary deference, including conclusive treatment of government certifications—violates the First Amendment and separation-of-powers limits by preventing meaningful judicial review.
3. Whether unconstitutional features could be severed or narrowed without invalidating the NSL statute as a whole.

## Decision

- The Second Circuit affirmed in part and reversed in part, declining to invalidate the NSL regime in its entirety.
- The court held unconstitutional the “conclusive presumption” provisions in § 3511(b) that effectively made government certifications dispositive.
- The court held §§ 2709(c) and 3511(b) unconstitutional to the extent they imposed nondisclosure without placing on the government the burden to initiate judicial review when nondisclosure is challenged.
- The court severed and construed the statute to preserve NSL authority while requiring meaningful judicial scrutiny of nondisclosure requirements.
- The case was remanded for further proceedings consistent with these limitations.

## Legal Principles

- NSL nondisclosure requirements operate as content-based restraints and trigger strict scrutiny under the First Amendment.
- A statutory command that courts treat executive certifications as conclusive is incompatible with strict scrutiny because it eliminates meaningful judicial review.
- When an NSL recipient challenges a nondisclosure requirement, the government must bear the burden of going to court and justifying continued secrecy under constitutionally sufficient standards.
- Separation-of-powers principles require that courts retain an independent role in evaluating the factual and legal basis for speech restrictions, even in national-security investigations.
- Unconstitutional components of a statute may be severed or narrowed to preserve otherwise lawful investigative authority.

## Conclusion

The Second Circuit upheld the government’s ability to use NSLs but restricted NSL gag orders by invalidating conclusive deference to government certifications and requiring that, once challenged, the government initiate and carry the burden in judicial review to sustain nondisclosure.


John Doe, Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008)