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May 12, 2004.

JOHN ASHCROFT, in his official capacity as Attorney General of the United States; ROBERT MUELLER, in his official capacity as Director of the Federal Bureau of Investigation; and MARION BOWMAN, in his official capacity as Senior Counsel to the Federal Bureau of Investigation, Defendants

The opinion of the court was delivered by: VICTOR MARRERO, District Judge


The complaint in this case challenges the constitutionality of a statute authorizing the Government to obtain certain intelligence-related information in the possession of communications service providers and prohibiting those providers from disclosing the Government's inquiry. See 18 U.S.C. § 2709. This Decision and Order sets forth a procedure by which documents in this case may be filed.


  The American Civil Liberties Union ("ACLU") and a second plaintiff, referred to as "John Doe" for the purposes of this litigation, challenge the constitutionality of 18 U.S.C. § 2709, which authorizes the Federal Bureau of Investigation ("FBI") to obtain certain information from "wire or electronic communication service provider[s]." The FBI may obtain information from those sources only if it certifies in writing that the information sought is "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities." 18 U.S.C. § 2709(b). Such requests and certifications are made, as the statute prescribes, in the form of National Security Letters ("NSLs"). Communications service providers that receive NSLs are prohibited from disclosing the FBI's requests. See 18 U.S.C. § 2709 (c). The parties' cross-motions for summary judgment on this matter will be fully briefed in July.

  The ACLU initially filed this lawsuit under seal to avoid penalties for violating the non-disclosure provision — a provision which the ACLU contends violates the First Amendment. The Court, by Judge Thomas Griesa sitting in Part I, granted the sealing order requested by the ACLU. The parties then agreed to publicly file redacted versions of the complaint and the motion to file the complaint under seal. The parties memorialized that agreement in a proposed Order, which the Court signed without change on April 28, 2004. The stipulated Order also directs that all future documents shall be filed under seal, unless the Court directs otherwise.

  Immediately after the redacted complaint became public, the ACLU issued a press release which revealed, among other things, the briefing schedule for the summary judgment motion. The Government requested that the ACLU remove the briefing schedule from its website because, according to the Government, that information was subject to the sealing order. The Government conceded that it would have agreed to such an innocuous disclosure, but it took issue with the fact that the ACLU had disclosed sealed information unilaterally.

  That dispute marked the beginning of an intense debate between the parties as to the proper method of publicly filing documents in this case. In spite of previously moving to seal the case and agreeing to a broad sealing order, the ACLU moved to unseal the case entirely based upon the First Amendment right of access to the courts. The ACLU suggested that any dispute about redactions could be addressed on a document-by-document basis via stipulations or motions. The Government responded that unsealing the case would be unnecessary and inappropriate in light of certain enforcement concerns the Government has expressed. The Government also pointed out that any filing procedure must allow the Government to review disclosures before they are filed publicly; otherwise, any subsequent seal would be meaningless.

  The Court held a conference with the parties in hopes that they could reach an agreement which would forestall full-blown motion practice on the issue. As the Court advised the parties, motion practice on such a procedural dispute would be ill-advised for several reasons. First, it would likely require the Court to address the merits of the case prematurely, i.e., before the summary judgment briefing is complete. The ACLU's motion raises a question as to whether there is a public right of access to material arguably within the scope of the challenged non-disclosure provision. Resolving that procedural question depends in large part on the merits of this case — whether that provision is or is not constitutional — but not vice versa. Thus, at least while the logically prior question on the merits is pending and the statute is presumed constitutional, it would be inappropriate to allow the parties to shoehorn the merits of the dispute into a procedural motion.

  Second, such motion practice might require the Court to issue a ruling involving constitutional questions, even though that ruling would likely make little difference as to the ultimate disclosures in this case. The parties' generally agree as to which categories of facts should be kept under seal, at least for now: those implicating the non-disclosure provision (whose constitutionality is at issue) and those implicating sensitive intelligence information. They disagree only as to the procedure by which the Court (or the parties by agreement) should make those determinations. Finally, full-blown motion practice on this tangential issue will necessarily involve more filings and thus more contentious disputes as to the proper redactions on those filings themselves. As evidence of this snowball effect, the Court notes that the bulk of the documents filed in this case pertain to the issue of how to file documents in this case.

  At the conclusion of the conference, the Court directed the parties to submit an agreed-upon order to govern the filing of documents on the public docket. When the parties notified the Court that they could not agree, the Court directed the parties to submit their proposed orders. The Court has considered those proposals, along with the other materials in this case, from which the Court makes the following findings. Those findings form the basis of the Order which will govern future filings, and hopefully return the focus of this case to its substantive merits.


  Documents filed with the Court may be sealed only "if specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest." In re New York Times Co., 828 F.2d 110, 117 (2d Cir. 1987) (internal quotation marks and citations omitted);*fn1 see also Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 13-14 (1986). In this case, there are two related values which necessitate the limited sealing which the Court will order: (1) the underlying statute's non-disclosure provision and (2) the national security concerns related to the possibility of disclosing sensitive intelligence activities conducted by law enforcement agents.

  First, the federal statute at issue makes it unlawful to disclose that the FBI has sought information under the statute. See 18 U.S.C. § 2709(c). The requirement of non-disclosure has no exceptions or time limit. See id. Some limited closure is required to ensure that the parties do not run afoul of that provision, directly or inadvertently. Of course, the Court recognizes that the ACLU contends that this provision violates the First Amendment, and the Court will address that issue promptly when the summary judgment briefs are fully submitted. For now, however, the Court must presume that the statute is constitutional. See I. N. S. v. Chadha, 462 U.S. 919, 944 (1983).*fn2 Second, the Government has asserted that certain elements of this lawsuit implicate other sensitive Government concerns which might be revealed through this litigation, even if unintentionally. That assertion is unsurprising because the statute at issue requires the FBI to certify in writing that the information sought in an NSL is "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities." 18 U.S.C. § 2709 (b). The ACLU has not alleged otherwise and has in fact explicitly stated to the Court that it would be careful in that regard. In absence of dispute between the parties on this basic point, the Court considers it unnecessary to address this matter further at this time.

  The Court believes that above-mentioned values, although weighty, can be addressed with only a minimal amount of closure. In fact, the Court notes that the public docket currently contains a record of relatively few redactions. The public filings reveal the essential nature of this lawsuit, and the essential nature of this very dispute concerning the closure of the lawsuit. In keeping with that record of openness, the Court sets forth a procedure below by which the public will have timely access to all the non-sensitive information in this lawsuit. Without repeating ...

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