The National Security Letter case reported yesterday is Doe v. Gonzales, 500 F. Supp. 2d 379 (S.D. N.Y. 2007):
. . . This Court, in a lengthy decision dated September 28, 2004, granted Plaintiffs' motion for summary judgment and declared § 2709 unconstitutional on its face, under the First and Fourth Amendments. See Doe v. Aschroft, 334 F. Supp. 2d 471 (S.D. N.Y. 2004) ("Doe I"). "Considering the implications of its ruling and the importance of the issues involved," the Court stayed enforcement of its judgment pending appeal. See id. at 526.
Shortly after this Court's decision, a court in the District of Connecticut enjoined the Government from enforcing the nondisclosure requirement of § 2709(c) insofar as it prevented the plaintiff in that case from revealing its identity as a recipient of an NSL, holding that § 2709(c) failed to satisfy strict scrutiny because it was not narrowly tailored to serve a compelling state interest. See Doe v. Gonzales, 386 F. Supp. 2d 66, 82 (D. Conn. 2005) ("Doe II").
While appeals in Doe I and Doe II were pending, Congress passed the USA Patriot Improvement and Reauthorization Act of 2005, Pub. L. No. 109-177, 120 Stat. 192. (Mar. 9, 2006) (the "Reauthorization Act."). The Reauthorization Act effectuated substantial changes to § 2709 and added several provisions 'relating to judicial review of NSLs which were codified at 18 U.S.C. § 3511 ("§ 3511"). As a result of these amendments, the Second Circuit remanded the Doe I appeal to enable this Court, if the parties were to continue the litigation in light of the amendments to the statute, to consider the validity of the revised § 2709(c) and the new procedures codified in § 3511. See Doe v. Gonzales, 449 F.3d 415, 419 (2d Cir. 2006).
The gag rule on NSL recipients violates the First Amendment:
C. STRICT SCRUTINY
The Court's analysis begins by noting that for the same reasons articulated in Doe I, see 334 F. Supp. 2d at 511-13, the nondisclosure provision of the revised § 2709, like its predecessor, embodies both a prior restraint and a content-based restriction on speech. The nondisclosure provision of the amended § 2709 still acts as a prior restraint because it still prohibits speech before it occurs. See id. at 511-12; see also Doe II, 386 F. Supp. 2d at 73. In granting the FBI authority to certify that an NSL recipient cannot disclose to any person information about receipt of the NSL, and in including this prescription in the actual NSL letter issued, the amended § 2709(c) "authorizes suppression of speech in advance of its expression." Ward v. Rock Against Racism, 491 U.S. 781, 795 n.5 (1989); see also Alexander v. United States, 509 U.S. 544, 550 (1993) ("The term prior restraint is used to 'describe administrative and judicial orders forbidding certain communications in advance of the time that such communications are to occur.'") (quoting M. Nimmer, Nimmer on Freedom of Speech § 4.03, at 4-14 (1984)) (emphasis added in Alexander).
Additionally, the amended § 2709(c) continues to act as a content-based restriction on speech. In Doe I, the Government argued that § 2709(c) was not a content-based restriction because it prohibited disclosure irrespective of a speaker's viewpoint. See 334 F. Supp. 2d at 512. The Court disagreed, finding that although the pre-Reauthorization Act § 2709(c) was neutral with respect to viewpoint, it nonetheless functioned as a content-based restriction because it closed off an "entire topic" from public discourse. See id. at 513 ("'The First Amendment's hostility to content-based regulation extends not only to restrictions of particular viewpoints, but also to prohibition of public discussion of an entire topic.'") (quoting Consolidated Edison Co. of New York v. Public Serv. Comm'n, 447 U.S. 530, 537 (1980)). The nondisclosure requirement of the revised § 2709(c) continues to close off discussion of an entire topic. Prohibiting an NSL recipient from discussing anything about the NSL it received, including even the mere fact of receipt, means that "the first-hand experiences of NSL recipients," id. at 513, are completely excluded from the public debate. Likewise, the Doe II court, which also found § 2709(c) to be a content-based restriction, stated that it had "the practical impact of silencing individuals with a constitutionally protected interest in speech and whose voices are particularly important to an ongoing, national debate about the intrusion of governmental authority into individual lives." 386 F. Supp. 2d at 75. Indeed, Plaintiffs indicate that as a result of the nondisclosure requirement enforced in this case, they have been precluded from fully contributing to the national debate over the government's use of surveillance tools such as NSLs, perhaps most particularly consequential in inhibiting their ability to speak and inform public discourse on the issue during Congress's consideration of the Reauthorization Act.
Presumably, Congress's intention in amending 2709(c) to allow the FBI to certify on a case-by-case basis whether nondisclosure is necessary was to more narrowly tailor the statute to reduce the possibility of unnecessary curtailment of speech. Unfortunately, one necessary consequence of the resulting discretion now afforded the FBI is that the amended 2709(c) creates the risk not only that an "entire topic" of public debate will be foreclosed, but also the risk that the FBI might engage in actual viewpoint discrimination. By now allowing the FBI to pick and choose which NSL recipients are prohibited from discussing the receipt of an NSL, conceivably the FBI can engage in viewpoint discrimination by deciding to certify nondisclosure when it believes the recipient may speak out against the use of the NSL and not to require nondisclosure when it believes the recipient will be cooperative. Thus, the statute has the potential to "contravene the fundamental principle that underlies [the Supreme Court's] concern about 'content-based' speech regulations: that 'government may not grant the use of a forum to people whose views if finds acceptable, but deny use to those wishing to express less favored or more controversial views.'" City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48-49 (1986) (quoting Police Dep't of Chicago v. Mosley, 408 U.S. 92, 95-96 (1972)). The Government's position is that the FBI's discretion does not create the opportunity for viewpoint discrimination because the prohibition on nondisclosure is premised not on the content of any expected speech but on the circumstances of the counterterrorism or counterintelligence investigation, which may require secrecy in order to preserve the integrity of the investigation. Although this response suggests a relevant point, the Government's alleged concern solely with the effect of speech rather than the speech itself does not render 2709(c) any more content-neutral. See Forsyth County, 505 U.S. at 134 ("Listeners' reaction to speech is not a content-neutral basis for regulation.").
As a prior restraint and content-based restriction, the amended statute is hence subject to strict scrutiny. See Doe I, 334 F. Supp. 2d at 511. The Government indicates that, although it reserves the issue of the appropriate level of scrutiny for appeal, it does not argue this issue in light of the Court's prior determination in Doe I. (See Gov't Opp. 11.)
The statute can survive strict scrutiny only if it is "narrowly tailored to promote a compelling government interest," United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 813 (2000), and there are no "less restrictive alternatives [that] would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve." Reno v. ACLU, 521 U.S. 844, 874 (1997). Any restriction on speech which is content-based and acts as a prior restraint is presumed unconstitutional, and the government bears the burden of demonstrating that the provision satisfies strict scrutiny. See R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992) ("Content based restrictions are presumptively invalid."); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963) ("Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity."); Playboy Entm't Group, 529 U.S. at 816 ("When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions.").
. . .
As was the case with the Court's initial decision, fundamentally this ruling is "about the process antecedent to the substance of any particular challenge." Id. at 475 (emphasis in original). Thus, the Court first considers whether the process relating to the issuance and review of an NSL requiring nondisclosure is sufficiently narrowly tailored to ensure that First Amendment rights are not unnecessarily abridged. When a statute confers discretion on government officials to suppress speech, as § 2709(c) does, that discretion must be reasonably limited by objective criteria. See Thomas v. Chicago Park Dist., 534 U.S. 316, 324 (2002). Moreover, the government must exercise its discretion within (a system that allows for "procedural safeguards designed to obviate the dangers of a censorship system." Freedman v. Maryland, 380 U.S. 51, 58 (1965). Such safeguards must include an opportunity for meaningful judicial review. Finally, even where the government has demonstrated a compelling interest justifying the restriction of expression, any such restriction must be narrowly tailored both in scope and duration. As detailed below, the nondisclosure provision of § 2709(c), even with the safeguard of the judicial review afforded by § 3511(b), prescribes a process that is constitutionally deficient under the First Amendment in several respects.
NYTimes.com posted this article 15 minutes before posted here: F.B.I. Data Mining Went Beyond Targets:
The F.B.I. cast a much wider net in its terrorism investigations than it has previously acknowledged by relying on telecommunications companies to analyze phone-call and e-mail patterns of the associates of Americans who had come under suspicion, according to newly obtained bureau records.
The documents indicate that the F.B.I. used secret demands for records to obtain data not only on the person it was targeting but also details on his or her “community of interest” — the network of people that the target in turn was in contact with. The F.B.I. recently stopped the practice in part because of broader questions raised about its aggressive use of the records demands, which are known as national security letters, officials said Friday after being asked about it.
The community of interest data sought by the F.B.I. is central to a data-mining technique intelligence officials call “link analysis.” Since the attacks of Sept. 11, 2001, American counterterrorism officials have turned more frequently to the technique, using communications patterns and other data to identify suspects who may not have any other known links to extremists.
A plaintiff no longer on probation has no Heck bar to his action. Abusaid v. Hillsborough County Bd. of County Comm'rs, 2007 U.S. Dist. LEXIS 65813 (M.D. Fla. September 6, 2007):
As discussed above, the Eleventh Circuit in its remand Order sua sponte raised the issue of whether the rule in Heck bars any or all of Plaintiff's claims. See Abusaid, 405 F.2d at 1315, n.9. It noted that a line of post-Heck cases leaves open the question of whether Heck bars § 1983 suits by plaintiffs who are not in custody and thus for whom habeas relief is not available. Citing Wilkinson v. Dotson, 544 U.S. 74 (2005), and Spencer v. Kemna, 523 U.S. 1 (1998), the court suggested that the Heck doctrine may now be understood to bar § 1983 relief only in cases when the alternative remedy of habeas relief is available, noting that in Spencer five justices (four concurring and one dissenting) concluded as much. Given the limited record before it and the need for resolution of certain factual matters, the court declined to weigh in on the matter further. Specifically, the court identified the following factual issues: whether Plaintiff was on probation at the time of filing his § 1983 action and therefore whether habeas relief is available to him; whether his arrest subsequent to filing this claim has any bearing on the issues; and whether any or all of the eighteen claims raised by Plaintiff necessarily imply the invalidity of his conviction or sentence.
Stone v. Powell bar applies to § 2255 proceedings, too. Estupian v. United States, 2007 U.S. Dist. LEXIS 65810 (M.D. Fla. September 6, 2007):
In Ground One of his motion, Mosquera Estupian complains of a Fourth Amendment violation in that his "conviction [was] obtained by [the] use of evidence obtained pursuant to an unlawful arrest." D-cv-1 at 4; D-cv-2 at 3-7. This claim is also not cognizable in this motion to vacate. Fourth Amendment violations are not cognizable on collateral review as long as the defendant had a "full and fair" opportunity to litigate the claim on direct appeal. See Stone v. Powell, 428 U.S. 465, 494 (1976) ("where the State has provided an opportunity to full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial"); see also, United States v. Ishmael, 343 F.3d 741, 742-43 (5th Cir. 2003) (citing United States v. Cook, 997 F.2d 1312, 1317 (10th Cir. 1993)) ("[I]t is clear that the [Supreme] Court intends for Fourth Amendment claims to be limited in § 2255 proceedings as they are limited in § 2254 proceedings--i.e., to be addressed only if a defendant has not had a full and fair opportunity to raise the claims at trial and on direct appeal); compare, Caver v. Alabama, 577 F.2d 1188, 1192 (5th Cir. 1978) ("But the applicability of Stone in § 2255 proceedings is somewhat unclear. While the Supreme Court has not definitively resolved the question, dicta in United States v. Johnson, 457 U.S. 537, 562 n. 20 (1982) indicates that the doctrine does apply here.").
The Sixth Circuit, the first time it has faced the question, adopted the "extended border search" doctrine for somebody who cleared Customs, but her traveling companion had not and was being questioned. She was picking up luggage, and a Customs van went to get her 1500 feet from the Customs station at the Memphis airport. She had not been under surveillance after clearing Customs, but it was highly unlikely the condition of her belongings changed in the meantime. United States v. McGinnis, 247 Fed. Appx. 589, 2007 FED App. 0367P (6th Cir. 2007) (2-1):
In deciding whether to uphold an extended-border search as reasonable, courts generally have asked three questions: (1) did the individual cross the border? (2) did law enforcement seize the individual and her luggage sufficiently soon after the crossing to be reasonably confident that the condition of the individual and her luggage did not change after the border crossing? and (3) does law enforcement have a reasonable suspicion that the individual violated a criminal law? See, e.g., Yang, 286 F.3d at 945; see also United States v. Espinoza-Seanez, 862 F.2d 526, 531 (5th Cir. 1988) (applying similar test); Alexander v. United States, 362 F.2d 379, 382 (9th Cir. 1966). The salient question is whether "reasonable suspicion" of criminal activity exists, paying special attention to whether the suspected criminal activity relates to a recent border crossing (e.g., smuggling as opposed to a murder charge) and whether the search occurred sufficiently close in time to the border crossing as to eliminate the risk that the individual obtained the contraband after the crossing. Except for the dice-loading name of the rule--an "extended border search" doctrine suggests that suspicion is never required in the same way that an "extended house search" doctrine would suggest that probable cause is always required--we adopt our sister circuits' general approach to this issue.
The search of McGinnis satisfies these requirements. First, no one questions that McGinnis crossed the border. She had just traveled by plane from Amsterdam and crossed the "border" at the Memphis International Airport.
Second, the customs officials had a reasonable basis for concluding that the condition of McGinnis's luggage had not changed by the time of the search. The illegal contraband was the $17,358 in cash that McGinnis hid in her luggage and refused to declare when asked to do so. McGinnis never left the airport terminal. While waiting for Ely, she went to "get tickets for the next leg of her trip," JA 180, which at most would have permitted her to spend money, not to get more of it. It suspends reality to think that McGinnis could have acquired the necessary additional cash-over $7,000-to trigger the currency reporting requirement between the time she exited the inspection area and the time officers came to pick her up to take her back to customs--at most 1 hour and 35 minutes. See JA 125-26, 129-30, 144, 201. Obtaining more than $7,000 in an airport in general or at an ATM in particular in such a short time span strikes us as a daunting, if not a nearly impossible, task. See generally Yang, 286 F.3d at 948 (valid search even though defendant was not under surveillance in the airport for up to 45 minutes); United States v. Mejias, 452 F.2d 1190, 1192-93 (9th Cir. 1971) (valid search even though 90 minutes had elapsed since defendant, who was not under constant surveillance, passed through customs at airport); ....
Third, customs officials had reasonable suspicion that McGinnis had engaged in criminal activity. ...
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"If it was easy, everybody would be doing it. It isn't, and they don't."
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"A system of law that not only makes certain conduct criminal, but also lays
down rules for the conduct of the authorities, often becomes complex in its
application to individual cases, and will from time to time produce imperfect
results, especially if one's attention is confined to the particular case at
bar. Some criminals do go free because of the necessity of keeping
government and its servants in their place. That is one of the costs of having
and enforcing a Bill of Rights. This country is built on the assumption that
the cost is worth paying, and that in the long run we are all both freer and
safer if the Constitution is strictly enforced."
—Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing
can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence."
—Mapp v. Ohio, 367 U.S. 643, 659 (1961).
Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
—Pepé Le Pew
"There is never enough time, unless you are serving it."
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)