D.Md.: Gov’t justified its NSL in this case in classified filings; nondisclosure provision here survives First Amendment scrutiny

The government justified its NSL in this case in classified filings, which will be supplemented with redacted versions. The court finds that the nondisclosure requirement survives First Amendment scrutiny, but the government is required by the USA FREEDOM Act to provide for a review mechanism for opening the records. In re National Security Letter, 2015 U.S. Dist. LEXIS 170779 (D.Md. Sept. 17, 2015, filed Dec. 23, 2015 (with redactions)):

Respondent has argued the NSL’s nondisclosure requirement infringes upon its constitutional right of free speech. (Resp.’s Opp’n 1.) Assuming without deciding that the statutes as revised implicate First Amendment concerns of free speech, the Court holds the statutory authorization for an NSL to include a nondisclosure requirement and the particular nondisclosure requirement at issue here pass strict scrutiny. The first part of this inquiry is “whether the practice in question furthers an important or substantial governmental interest unrelated to the suppression of expression.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32, 104 S. Ct. 2199, 81 L. Ed. 2d 17 (1984) (internal alteration and quotation marks omitted). As the Supreme Court has said, “It is obvious and unarguable that no governmental interest is more compelling than the security of the Nation.” Haig v. Agee, 453 U.S. 280, 307, 101 S. Ct. 2766, 69 L. Ed. 2d 640 (1981). The other part of the constitutional inquiry is “whether the limitation of First Amendment freedoms is no greater than is necessary or essential to the protection of the particular governmental interest involved.” Seattle Times, 467 U.S. at 32 (internal alteration and quotation marks omitted). The statute’s allowance of a nondisclosure requirement and the scope of the requirement in the NSL in the instant case are necessary, in the Court’s judgment, to the protection of national security. The NSL’s infinite duration for the nondisclosure requirement is problematic, however.

At present the nondisclosure requirement in this case has no ending date, and the Court’s review of its continued viability falls within an interim period between the effective date of the USA FREEDOM Act of 2015, which directs the Attorney General to “adopt procedures with respect to nondisclosure requirements … to require … review at appropriate intervals … and termination … if the facts no longer support nondisclosure,” Pub. L. 114-23, title V, § 502(f)(1) (see Note foll. 12 U.S.C. § 3414), and the anticipated but unknown date when the Attorney General will have actually promulgated such procedures. In the absence of those governing procedures, the Court will require the Government to review every 180 days the rationale for the nondisclosure requirement’s continuation. Once the Attorney General’s procedures are in place, then the nondisclosure requirement will be subject to review thereunder, and this Court’s mandate of review every 180 days will no longer be in force.