United States District Court, S.D. New York
May 12, 2004.
JOHN DOE and AMERICAN CIVIL LIBERTIES UNION, Plaintiffs
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
DECISION AND ORDER
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 the details here in narrative form, the Court will
describe a few features which illustrate the exceptionally narrow scope
of the sealing procedure.
First, the Order sets forth certain categories of filings which can be
immediately filed on the public docket. Importantly, matters related to
the central allegation in this lawsuit that 18 U.S.C. § 2709
is unconstitutional on its face fall outside the seal. Second,
the public docket will include a redacted version or a brief description
of any document filed within one or two business days of the filing of a
sealed version of that document. Considering the broad scope of what is
outside the seal and the narrow scope of what is sealed, the Court
anticipates that the redactions will be relatively few. Third, to the
extent disputes arise regarding redactions, the Court has set forth a
procedure by which those disputes can be resolved expeditiously, either
by the parties themselves, or, failing their agreement, by the Court.
Fourth, that procedure puts the burden on the Government to quickly
justify each particular redaction under the exacting First Amendment
standards applicable. Finally, if the ACLU indeed prevails on its claim that the non-disclosure provision is
unconstitutional, then most (if not all) of the sealed information will
be eventually revealed. By the same token, if the Government is correct
that the non-disclosure provision is constitutional, the
Court's procedures will have merely served to enforce a valid statute.
For the reasons stated, it is hereby:
ORDERED that the motion of the American Civil Liberties Union
to unseal this case is granted in part and denied in part, as described
1. Except as provided in paragraph 4, all
documents in this action shall be filed in the
first instance under seal.
2. On the date of any filing, the parties shall
confer and endeavor to agree upon a proposed
redacted version of the document for filing on
the public docket. The filing party shall then
submit to the opposite party for verification a
version of the document containing all
redactions which either party proposes. Once
verified and agreed upon, that document as
redacted shall be filed on the public docket.
The discussions, verification, and public
filing mentioned above shall be completed by
the end of the business day following the date
of the initial sealed filing. With respect to
merits briefing, the time period shall be two
3. In the event there are disputed redactions, the
proponent of any disputed redaction shall,
within two business days following any filing
under paragraph 2, write a letter to the Court
explaining the specific and compelling reasons
why those disputed portions of the filing
should be redacted. The opposite party shall
have two business days within which to respond
by letter. With respect to merits briefing,
each party shall have four business days,
instead of two. Those letters shall be filed
under seal, with proposed redacted versions. As
appropriate, the Court will then direct the
parties to file the original redacted version,
or a revised redacted version of the document
and the letters.
4. Any document which is limited to the following
information is not subject to the procedures of
the preceding paragraphs and may be filed on
the public docket:
a. the ACLU's facial constitutional challenge to 18 U.S.C. § 2709 and any attendant
discussion which is limited to purely legal
issues and which does not reference any
b. ministerial or scheduling matters that do not
otherwise reference any material subject to
this sealing Order;
c. pro hac vice motions.
It is finally
ORDERED that the Clerk of Court file this Decision and Order
on the public docket.