District Judge Victor Marrero of the Southern District of New York issued a 122 page opinion in Doe v. Ashcroft yesterday invalidating 18 U.S.C. 2709, the “national security letter” provision of the Electronic Communications Privacy Act, on Fourth and First Amendment grounds. This is big news: it might require heavily increased reliance on the controversial Section 215 powers of the Patriot Act, and creates considerable constitutional uncertainty as Congress heads into debates on revisiting the Patriot Act in 2005. To make matters more interesting, the Court’s Fourth Amendment analysis is rambling, self-indulgent, and rather odd — all of which will set up an interesting appeal in the Second Circuit. One warning, though: I’m a Fourth Amendment specialist, not a First Amendment scholar, so I am going to blog on the former and not the latter. I’ll leave the First Amendment part for Eugene in case he feels like blogging on it.
First, a bit of introduction. Section 2709 allows the FBI to order ISPs to disclose certain transactional information about their subscribers in terrorism investigations. For example, imagine that the FBI has reason to believe that a suspected member of Al-Qaeda in Afgahanistan has a Hotmail account, and is using that Hotmail account to communicate with other co-conspirators. Section 2709 lets the FBI order an ISP to disclose the person’s name and address (in the unlikely case it was entered accurately), as well as transactional information such as when the account was accessed, from what IP address, and the e-mail addresses of other associates who sent e-mail to or received e-mail from the suspect account. The FBI sends a letter — known as a National Security Letter, or NSL — to the ISP ordering it to make the disclosure, and the ISP must do so. Also, the section provides that the ISP cannot “disclose to any person” that the order has been made.
The recipient of a NSL challenged this procedure in federal court, claiming that the procedure violated the Fourth and First Amendment. The Fourth Amendment argument related to the constitutional rights of the ISP, not the rights of the ISP’s subscribers; under relevant precedents, it is quite clear that ISP users do not have a reasonable expectation of privacy in their transactional records. The plaintiff argued that there is nothing in the statute that allows the ISP to challenge an NSL if the letter is overbroad, and that this failure to allow a judicial challenge rendered the statute unconstitutional. The basic idea here is that there needs to be judicial review of any kind of order to compel information under the Fourth Amendemnt so that a court can determine whether the order is valid. The government did not contest this; the government contested the plaintiff’s reading of the statute.
Specifically, the government responded that the statute had to be read as allowing a challenge, just like the challenge at issue in this case. Arguing that the court should construed the unclear statute in a way that renders it constitutional, the government urged the court to read the statute in harmony with other similar laws such as laws governing the issuance and challenge of subpoenas. If a recipient of an NSL wanted to challenge the NSL, the government argued, it could just go to a district court like the Southern District and file a motion to quash the NSL. Such a reading would presumably (although not obviously) render the statute valid under the Fourth Amendment.
Judge Marrerro rejected this argument, at least sort of. In a very strange passage, Judge Marrero concluded that even if the government were right that the statute means what the government says, Section 2709 is unconstitutional because the NSL letters themselves appear on FBI letterhead and are phrased using very commanding language. A reasonable recipient is likely to view the NSL letter, “phrased in tones sounding virtually as biblical commandment,” as something that could not be challenged. (see page 62-63). Thus, even if the statute could be read to allow recipients to challenge the letter in court, the scariness of the letter trumped the text of the statute and rendered the statute unconstitutional:
The Court concludes that in practice NSLs are essentially unreviewable because . . . given the language and tone of the statute as carried into the NSL by the FBI, the recipient would consider himself, in virtually every case, obliged to comply, with no other option but to immediately stay put.
Id. at 65. Then, before moving on to the First Amendment issues, Judge Marrero suggested that the government might be able to cure the Fourth Amendment defect “by alerting all NSL recipients” that in its view recipients can challenge the letters.
Put simply, this rationale is really quite strange. I have never seen reasoning like this in any Fourth Amendment opinion. (Notably, Judge Marrero did not offer any Fourth Amendment precedent in support of that approach; instead he relied on a 1st Circuit case interpreting Rule 6 of the Federal Rules of Criminal Procedure and a First Amendment case, Bantam Books v. Sullivan, 372 U.S. 58 (1963)). It’s only a statutory interpretation issue, ultimately, and the Second Circuit on appeal might just read the statute and conclude that it does not allow a challenge on its face. But Judge Marrero’s approach is quite strange. Under Judge Marrero’s own reasoning, for example, he could have rendered Section 2709 constitutional under the Fourth Amendment simply by announcing that he construed the statute to allow a challenge — something he implicitly did by ruling on the plaintiff’s challenge. After all, had he announced that he was interpreting the statute to allow challenges, word would have gone out quickly to the ISP community and the ISP community would know that they could file the challenges. Ergo, the statute would be constitutional.