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National Security Letter Confidentiality

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The U.S. Court of Appeals for the Ninth Circuit today decided In re National Security Letter, No. 16-16067:

In this case, we consider challenges to the constitutionality of the law authorizing the Federal Bureau of Investigation (FBI) to prevent a recipient of a national security letter (NSL) from disclosing the fact that it has
received such a request. 18 U.S.C. § 2709(c). An NSL is an administrative subpoena issued by the FBI to a wire or electronic communication service provider which requires the provider to produce specified subscriber information that is relevant to an authorized national security investigation. Id. § 2709(a). By statute, the NSL may include a requirement that the recipient not "disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records" under the NSL law. Id. § 2709(c)(1)(A). Both the information request and the nondisclosure requirement are subject to judicial review. See id. § 3511. (Because § 2709 and § 3511 work together, we refer to them collectively as "the NSL law.")

Certain recipients of these NSLs claim that the nondisclosure requirement violates their First Amendment rights. We hold that the nondisclosure requirement in 18 U.S.C. § 2709(c) is a content-based restriction on speech that is subject to strict scrutiny, and that the nondisclosure requirement withstands such scrutiny. Accordingly, we affirm.
The opinion is by Judge Ikuta, with Judges R. Smith and Murguia concurring.  I think a petition for rehearing en banc is nearly certain.

1 Comment

Interesting question--seems to me that it is difficult to impose a duty on someone to not reveal truthful information relating to government activity if one has not agreed to keep the information secret.

Could states pass similar laws with respect to police conduct?

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