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DOE v. ASHCROFT

September 28, 2004.

JOHN DOE; AMERICAN CIVIL LIBERTIES UNION; and AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Plaintiffs,
v.
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

OPINION

DECISION AND ORDER

I. INTRODUCTION

  Plaintiffs in this case challenge the constitutionality of 18 U.S.C. § 2709 ("§ 2709"). That statute authorizes the Federal Bureau of Investigation ("FBI") to compel communications firms, such as internet service providers ("ISPs") or telephone companies, to produce certain customer records whenever the FBI certifies that those records are "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities."*fn1 The FBI's demands under § 2709 are issued in the form of national security letters ("NSLs"), which constitute a unique form of administrative subpoena cloaked in secrecy and pertaining to national security issues. The statute bars all NSL recipients from ever disclosing that the FBI has issued an NSL.*fn2

  The lead plaintiff, called "John Doe" ("Doe")*fn3 for purposes of this litigation, is described in the complaint as an internet access firm that received an NSL. The other plaintiffs are the American Civil Liberties Union ("ACLU") and the American Civil Liberties Union Foundation, which is also acting as counsel to Doe (collectively with Doe, "Plaintiffs"). Plaintiffs contend that § 2709's broad subpoena power violates the First, Fourth and Fifth Amendments of the United States Constitution, and that the non-disclosure provision violates the First Amendment. They argue that § 2709 is unconstitutional on its face and as applied to the facts of this case. Plaintiffs' main complaints are that, first, § 2709 gives the FBI extraordinary and unchecked power to obtain private information without any form of judicial process, and, second, that § 2709's non-disclosure provision burdens speech categorically and perpetually, without any case-by-case judicial consideration of whether that speech burden is justified. The parties have cross-moved for summary judgment on all claims.

  For the reasons explained below, the Court grants Plaintiffs' motion. The Court concludes that § 2709 violates the Fourth Amendment because, at least as currently applied, it effectively bars or substantially deters any judicial challenge to the propriety of an NSL request. In the Court's view, ready availability of judicial process to pursue such a challenge is necessary to vindicate important rights guaranteed by the Constitution or by statute. On separate grounds, the Court also concludes that the permanent ban on disclosure contained in § 2709(c), which the Court is unable to sever from the remainder of the statute, operates as an unconstitutional prior restraint on speech in violation of the First Amendment.

  The Court's ruling is about the process antecedent to the substance of any particular challenge, and in that vein, it is both narrow and broad. This determination is narrow in two respects. First, although the Court recognizes hypothetically that some aspects of the interpretation of § 2709 as proferred by the Government here may be plausible, the Court's analysis of the legislative record reveals grounds at least as compelling to cast substantial doubt upon such a reading of the statute. Given its strong reservations about the sufficiency of the statutory basis upon which the Government's theory is founded, the Court in the final analysis deems it unnecessary to rule upon Plaintiff's facial challenge to § 2709 on Fourth Amendment grounds.

  Second, the Court declines Plaintiffs' invitation to decide the measure of Fourth Amendment protection demanded when the Government makes NSL requests generally or in any particular case. The Court decides only that those rights, as well as other rights attaching to protected speech content that may be revealed to the Government as a result of an NSL, are implicated to some extent when an individual receives an NSL, thus necessitating the practical availability of some form of access to the judicial system to challenge the NSL. On the record before it, the Court finds that in practice those rights are substantially curtailed by the manner in which the FBI administers § 2709.

  The Court's ruling is broad in that even if § 2709 could be fairly construed in accordance with the Government's proposed reading to incorporate the availability of some judicial review, and putting aside the impairment of Fourth Amendment protections the Court finds countenanced by § 2709 as applied, other structural flaws inherent in the statute as a whole render it invalid on its face. In particular, the Court agrees with Plaintiffs that § 2709(c), the non-disclosure provision, is unconstitutional. In simplest terms, § 2709(c) fails to pass muster under the exacting First Amendment standards applicable here because it is so broad and open-ended. In its all-inclusive sweep, it prohibits the NSL recipient, or its officers, employees, or agents, from revealing the existence of an NSL inquiry the FBI pursued under § 2709 in every case, to any person, in perpetuity, with no vehicle for the ban to ever be lifted from the recipient or other persons affected, under any circumstances, either by the FBI itself, or pursuant to judicial process. Because the Court cannot sever § 2709(c) from § 2709(a) and (b), the Court grants the remedy Plaintiffs request enjoining the Government from using § 2709 in this or any other case as a means of gathering information from the sources specified in the statute.

  Considering the implications of its ruling and the importance of the issues involved, the Court will stay enforcement of its judgment for 90 days, pending appeal or measures by the Government otherwise to address the flaws in the structure and implementation of § 2709 described here.

  II. BACKGROUND

  Like most of our constitutional law's hardest cases, this dispute is about two fundamental principles: values and limits. It centers on the interplay of these concepts, testing the limits of values and the values of limits where their ends collide.

  National security is a paramount value, unquestionably one of the highest purposes for which any sovereign government is ordained. Equally scaled among human endeavors is personal security, an interest especially prized in our system of justice in the form of the guarantee bestowed upon the individual to be free from imposition by government of unwarranted restraints on protected fundamental rights.*fn4 Efficiency, too, counts as a basic value, though it essentially serves as a tool in the service of other interests. To perform its national security functions properly, government must be empowered to respond promptly and effectively to public exigencies as they arise, and in pursuit of those necessary actions to maintain a reasonable measure of secrecy surrounding its operations and methods.

  When pushed to their outer limits, these values may clash, giving rise to another form of interaction among vital societal principles. Inevitably, the resultant forces entail, from exercise of the powers assigned to the different branches of government, judgments about how and by whom to resolve which value may have exceeded its designated bounds. This choice is always demanding, and its outcome is not always plain at first sight. But, throughout the ages when the weighing has had to be done, time, wisdom and hard experience, aided by the inherent soundness of our underlying values, have steered resolution on a fairly consistent course. One guiding principle in that path is clearly marked in tried and proved results: that, by definition, efficiency invariably serves as the quickest and most expedient way to get from here to there; but, in the protection of fundamental values, the race is not always to the swiftest or cheapest means. So the Constitution counsels.

  On this point, the United States Supreme Court has imparted consistent guidance, drawn on each occasion from adjudications of the some of the most intense crises in the nation's history. Recently, for example, in addressing the reach of the President's authority to combat terrorism, the Supreme Court declared: "We have long . . . made clear that a state of war is not a blank check for the President when it comes to the rights of the nation's citizens."*fn5 This pronouncement echoes other like counsel issued when the Court has been called upon to settle conflicts of equally high moment. In another prominent case in point the Court remarked: "[E]ven the war power does not remove constitutional limitations safeguarding essential liberties."*fn6

  The Supreme Court's doctrine governing these occasions embodies a value judgment not hard to comprehend in the context of a practical consideration common to most instances in which constitutional tensions affecting individual rights come into play, as is evidenced in the case before this Court. In a sense, the conflict between government efficiency interests and personal liberty is strictly not one among equals. Efficiency is a multi-edged sword; it can cut many ways. Government ordinarily possesses more than one effective means to achieve a given public end. Thus, legitimate efficiency interests can be accommodated by various alternatives, whether legislative or administrative, generally at the government's disposal. Personal freedoms, on the other hand, are far more unique. As individualized by constitutional ideals to embody our sense of human dignity, decency, and fair play, they attach to each individual by promise of the very government which creates those basic rights and is charged to protect them, and upon whose faithful adherence to their underlying principles and aims their enduring enjoyment depends. By reason of this contingency, individual rights may operate one way, or not at all when their exercise is unduly restricted or prohibited by measures of that constituted authority. Worse still is another risk. Sometimes a right, once extinguished, may be gone for good. Few satisfying means may then be available to truly restore to the particular victim or to the larger society the value of the loss.

  One concluding observation cannot be overlooked as a consideration in this case. Between the dispute and its resolution hangs a large reality, here the backdrop against which the actuating events have played out. Call it an atomospheric pressure, a heavy weight that, foglike, has loomed densely over every aspect of these proceedings. On September 11, 2001, the United States became the target of a murderous attack of international terrorism, unparalleled in its magnitude, and unprecedented in America's national experience. Losses and remembrances of that violence are still fresh in the minds of the American people. The wounds they suffered from it have not yet healed. The Court is not unmindful of the contextual relevance of those circumstances, serving as they do as impulse for some of the Government concerns and measures that gave rise to this litigation, suffusing the legal theories elaborated in the parties' papers, and stoking the fervor and immediacy animating the arguments urged before the Court.

  In consequence, the Court's ruling not only takes due account of the force and poignancy of that history but, as this Court noted on another occasion similarly grounded,*fn7 represents an expression of several critical implications necessarily flowing from it. First, cases engendering intense passions and urgencies to unencumber the Government, enabling it to move in secrecy to a given end with the most expedient dispatch and versatile means, often pose the gravest perils to personal liberties. As the Supreme Court admonished in connection with another event similarly momentous: it is "under the pressing exigencies of crisis[] that there is the greatest temptation to dispense with fundamental constitutional guarantees which, it is feared, will inhibit governmental action."*fn8 Second, it is these conditions that best put the strength of our principles and convictions to the test, and measure our resolve and commitment to them. Third, it is precisely times like these that demand heightened vigilance, especially by the judiciary, to ensure that, as a people and as a nation, we steer a principled course faithful and true to our still-honored founding values. The high stakes here pressing the scales thus compel the Court to strike the most sensitive judicial balance, calibrating by delicate increments toward a result that adequately protects national security without unduly sacrificing individual freedoms, that endeavors to do what is just for one and right for all. A. DOE'S RECEIPT OF AN NSL*fn9

  After receiving a call from an FBI agent informing him that he would be served with an NSL, Doe received a document, printed on FBI letterhead, which stated that, "pursuant to Title 18, United States Code (U.S.C.), Section 2709" Doe was "directed" to provide certain information to the Government.*fn10 As required by the terms of § 2709, in the NSL the FBI "certif[ied] that the information sought [was] relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities."*fn11 Doe was "further advised" that § 2709(c) prohibited him, or his officers, agents, or employees, "from disclosing to any person that the FBI has sought or obtained access to information or records under these provisions."*fn12 Doe was "requested to provide records responsive to [the] request personally" to a designated individual,*fn13 and to not transmit the records by mail or even mention the NSL in any telephone conversation.

  After a subsequent conversation with the same FBI agent, Doe decided to consult ACLU lawyers. The parties dispute the nature of Doe's exchange with the FBI agent, though it is ultimately immaterial to this motion. Doe contends that the agent gave him permission to speak with an attorney; the agent claims that Doe merely informed the agent that he (Doe) would be consulting an attorney. Doe has not complied with the NSL request, and has instead engaged counsel to bring the present lawsuit.

  B. § 2709 IN GENERAL

  As stated above, § 2709 authorizes the FBI to issue NSLs to compel communications firms to produce certain customer records whenever the FBI certifies that those records are relevant to an authorized international terrorism or counterintelligence investigation, and the statute also categorically bars NSL recipients from disclosing the inquiry.*fn14 In relevant part, it states:
(a) Duty to provide. — A wire or electronic communication service provider shall comply with a request for subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession made by the Director of the Federal Bureau of Investigation under subsection (b) of this section.
(b) Required certification. — The Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director, may —
(1) request the name, address, length of service, and local and long distance toll billing records of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service provider to which the request is made that the name, address, length of service, and toll billing records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States; and
(2) request the name, address, and length of service of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service provider to which the request is made that the information sought is relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution of the United States.
(c) Prohibition of certain disclosure. — No wire or electronic communication service provider, or officer, employee, or agent thereof, shall disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records under this section.*fn15
Subsection (d) limits the FBI's ability to disseminate information collected from an NSL, and subsection (e) requires the FBI to periodically report to Congress about its use of NSLs.*fn16

  Section 2709 is one of only a handful of statutes authorizing the Government to issue NSLs. The other NSL statutes authorize the Government to compel disclosure of certain financial and credit records which it certifies are relevant to international terrorism or counterintelligence investigations, and to compel disclosure of certain records of current or former government employees who have (or have had) access to classified information.*fn17 In each case, the NSL statutes categorically bar the NSL recipient or its employees or agents from ever disclosing the Government's inquiry.*fn18 As stated, NSLs are distinguished from other administrative subpoenas in that NSLs pertain to national security issues and are cloaked in secrecy. The Court discusses other administrative subpoenas in more detail below in Section I.D.1.

  C. LEGISLATIVE HISTORY

  Section 2709 was enacted as part of Title II of the Electronic Communications Privacy Act of 1986 ("ECPA"),*fn19 which sought to "protect privacy interests" in "stored wire and electronic communications" while also "protecting the Government's legitimate law enforcement needs."*fn20 Congress modeled Title II of the ECPA upon the Right to Financial Privacy Act ("RFPA") of 1978,*fn21 which espoused similar privacy goals for financial records.*fn22 The RFPA was "intended to protect the customers of financial institutions from unwarranted intrusion into their records while at the same time permitting legitimate law enforcement activity."*fn23

  The RFPA was an explicit "response to the Supreme Court decision in United States v. Miller which held that a customer of a financial institution has no standing under the [Fourth Amendment] to contest government access to financial records."*fn24 In passing Title II of the ECPA eight years later, Congress feared that customers of electronic communications services would likewise find little Fourth Amendment protection from Government access to their records, thus creating the need for privacy legislation.*fn25

  Generally speaking, Title II (as amended) allows the Government to obtain stored electronic communications information without the subscriber's permission only through compulsory process, such as a subpoena, warrant, or court order.*fn26 Section 2709 is a notable exception to these privacy protections because it permits the FBI to request records upon a mere self-certification — issued to the ISP or telephone company, not to the subscriber or to any court — that its request complies with the statutory requirements.*fn27 As first enacted, § 2709 required electronic communication service providers to produce "subscriber information," "toll billing records information," or "electronic communication transactional records," upon the FBI's internal certification that (1) the information was "relevant to an authorized foreign counterintelligence investigation" and that (2) there were "specific and articulable facts giving reason to believe that the person or entity to whom the information sought pertains [was] a foreign power or an agent of a foreign power."*fn28 Before the ECPA, the FBI had been issuing non-mandatory NSLs to communications providers, who, in most cases, complied voluntarily.*fn29 However, because carriers in states with strict privacy laws had recently been resisting those requests, the FBI sought to have mandatory, preemptive federal legislation supporting its issuance of NSLs.*fn30 The Senate Intelligence Committee agreed that federal law should mandate NSL compliance, but the Committee concluded that the FBI's mandatory NSL power should be more limited in scope than what the FBI had been seeking under voluntary NSL arrangements.*fn31 Whereas communications service providers had been volunteering to produce records which the FBI certified were merely "relevant to FBI counterintelligence activities," the Intelligence Committee's reported version of § 2709 limited the FBI's mandatory authority to "only obtain records where there are specific and articulable facts giving reason to believe that the person or entity to whom the information sought pertains is or may be a foreign power or an agent of a foreign power."*fn32 The Committee stated that it believed that the strict standards of the proposed statute were consistent with both the First and Fourth Amendments and concluded that the "federal courts have not required either a judicial warrant or a probable cause standard for access to telephone subscriber information or toll billing record information."*fn33 The Court notes, however, that the version of § 2709 considered by the Intelligence Committee did not authorize the FBI to obtain electronic communication transactional records; that provision was added to the statute when it was integrated into the ECPA by the Judiciary Committee.*fn34

  In 1993, Congress broadened § 2709 by relaxing the required nexus to a foreign power.*fn35 The amended statute allowed the FBI to obtain records "where: (1) there is a contact with a suspected intelligence officer or a suspected terrorist, or (2) the circumstances of the conversation indicate . . . that it may involve spying or an offer of information."*fn36 The original version of the statute had required the FBI to certify that the communications service subscriber whose records were sought was himself a foreign agent or power, thereby preventing the FBI from issuing mandatory NSLs to obtain the records of, for example, persons who merely communicated with foreign agents regarding terrorism or clandestine intelligence information.*fn37 The Committee recognized that "the national security letter is an extraordinary device" and that "new applications are disfavored," but it "concluded that [the] narrow change in § 2709 to meet the FBI's focused and demonstrated needs was justified."*fn38

  The next and most recent major revision to § 2709 occurred in October 2001, as part of the USA PATRIOT Act of 2001 ("Patriot Act").*fn39 In short, the Patriot Act removed the previous requirement that § 2709 inquiries have a nexus to a foreign power, replacing that prerequisite with a broad standard of relevance to investigations of terrorism or clandestine intelligence activities.*fn40 In hearings before the House Judiciary Committee on September 24, 2001, the Administration submitted the following explanation for the proposed change:
NSL authority requires both a showing of relevance and a showing of links to an "agent of a foreign power." In this respect, [it is] substantially more demanding than the analogous criminal authorities, which require only a certification of relevance. Because the NSLs require documentation of the facts supporting the "agent of a foreign power" predicate and because they require the signature of a high-ranking official at FBI headquarters, they often take months to be issued. This is in stark contrast to criminal subpoenas, which can be used to obtain the same information, and are issued rapidly at the local level. In many cases, counterintelligence and counterterrorism investigations suffer substantial delays while waiting for NSLs to be prepared, returned from headquarters, and served. The section would streamline the process of obtaining NSL authority. . . .*fn41
The House Judiciary Committee agreed that "[s]uch delays are unacceptable" and stated in its October 11, 2001, report that the Patriot Act would "harmonize[]" § 2709 "with existing criminal law where an Assistant United States Attorney may issue a grand jury subpoena for all such records in a criminal case."*fn42

  D. NSLs AND OTHER INFORMATION-GATHERING AUTHORITY

  It is instructive to place the Government's NSL authority in the context of other means by which the Government gathers information of the type covered by § 2709 because Congress (in passing and amending the NSL statutes) and the parties here (in contesting § 2709's constitutionality) have drawn analogies to those other authorities as grounds for or against its validity. The relationship of § 2709 to other related statutes supplies a backdrop for assessing congressional intent and judging the validity of the law on its face and as applied. In addition, an analysis of these analogous information-gathering methods indicates that NSLs such as the ones authorized by § 2709 provide fewer procedural protections to the recipient than any other information-gathering technique the Government employs to procure information similar to that which it obtains pursuant to § 2709.

  1. Administrative Subpoenas

  The most important set of statutes relevant to this case are those authorizing federal agencies to issue administrative subpoenas for the purpose of executing the particular agency's function. Ordinary administrative subpoenas, which are far more common than NSLs, may be issued by most federal agencies, as authorized by the hundreds of applicable statutes in federal law. For example, the Internal Revenue Service (IRS) may issue subpoenas to investigate possible violations of the tax code,*fn43 and the Securities Exchange Commission (SEC) may issue subpoenas to investigate possible violations of the securities laws.*fn44 More obscure examples include the Secretary of Agriculture's power to issue subpoenas in investigating and enforcing laws related to honey research,*fn45 and the Secretary of Commerce's power to issue subpoenas in investigating and enforcing halibut fishing laws.*fn46

  There is a wide body of law which pertains to administrative subpoenas generally. According to the Government's central theory in this case, those standing rules would presumably also apply to NSLs, even if not so explicitly stated in the text of the statute. Where an agency seeks a court order to enforce a subpoena against a resisting subpoena recipient, courts will enforce the subpoena as long as: (1) the agency's investigation is being conducted pursuant to a legitimate purpose, (2) the inquiry is relevant to that purpose, (3) the information is not already within the agency's possession, and (4) the proper procedures have been followed.*fn47 The Second Circuit has described these standards as "minimal."*fn48 Even if an administrative subpoena meets these initial criteria to be enforceable, its recipient may nevertheless affirmatively challenge the subpoena on other grounds, such as an allegation that it was issued with an improper purpose or that the information sought is privileged.*fn49

  Unlike the NSL statutes, most administrative subpoena laws either contain no provision requiring secrecy, or allow for only limited secrecy in special cases. For example, some administrative subpoena statutes permit the investigating agency to apply for a court order to temporarily bar disclosure of the inquiry, generally during specific renewable increments or for an appropriate period of time fixed by the court, where such disclosure could jeopardize the investigation.*fn50

  Even absent a particular secrecy statute, someone who, with the intent to obstruct an investigation, alerts the target of an investigation that a subpoena has been issued could theoretically face criminal obstruction of justice charges under a federal statute that imposes criminal sanctions upon any person who, among other things, "corruptly . . . endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States."*fn51

  2. Subpoena Authority in the Criminal Context

  In its role as a party to a federal criminal proceeding (including a grand jury proceeding), the Government has broad authority to issue a subpoena to obtain witness testimony or "any books, papers, documents, data, or other objects the subpoena designates."*fn52 Although such subpoenas "are issued in the name of the district court over the signature of the clerk, they are issued pro forma and in blank to anyone requesting them," and the "court exercises no prior control whatsoever upon their use."*fn53

  The court becomes involved in the subpoena process only if the subpoenaed party moves to quash the request as "unreasonable or oppressive,"*fn54 or if the Government seeks to compel compliance with the subpeona. The reasonableness of a subpoena depends on the context. For example, to survive a motion to quash, a subpoena issued in connection with a criminal trial "must make a reasonably specific request for information that would be both relevant and admissible at trial."*fn55 By contrast, a grand jury subpoena is generally enforced as long as there is a "reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury's investigation."*fn56 Considering the grand jury's broad investigatory power and minimal court supervision, it is accurate to observe, as the Second Circuit did long ago, that "[b]asically the grand jury is a law enforcement agency."*fn57

  While materials presented in a criminal trial setting are generally public,*fn58 the federal rules impose stringent secrecy requirements on certain grand jury participants, including the attorneys, court reporters, and grand jurors.*fn59 Those secrecy rules make no mention of a subpoena recipient or a witness, both of whom are ordinarily free to disclose to anyone the fact that a subpoena was issued or the contents of any information supplied.*fn60 Some courts have nevertheless permitted the Government to impose a secrecy obligation upon witnesses in cases of compelling need. The Eleventh Circuit, for example, has held that a district court's authority to protect the integrity of grand jury process gave it power to prevent witnesses from disclosing materials prepared for or testimony given in grand jury proceedings.*fn61 As an exception to this rule, officers of financial institutions and insurance companies face criminal penalties for disclosing, with the intent to obstruct a judicial proceeding, either the fact that a grand jury subpoena has been issued or its contents.*fn62 More generally, a subpoena recipient who, with the intent to obstruct a criminal investigation, alerts the target of an investigation that a subpoena had been issued could theoretically face criminal obstruction of justice charges.*fn63

  In certain contexts, the Government may issue subpoenas related to criminal investigations even without initiating a formal criminal proceeding. For example, the United States Attorney General is authorized to issue administrative subpoenas, without convening a grand jury, to investigate federal narcotics crimes,*fn64 racketeering crimes,*fn65 health care related crimes,*fn66 and crimes involving the exploitation of children.*fn67 In each of these instances, the administrative process is governed by the general rules described above, providing safeguards of judicial review.*fn68

  3. Background Rules Governing Disclosure of Stored Electronic Communications

  Title II of the ECPA, in which § 2709 was enacted, sets forth an intricate framework by which electronic communications providers, such as ISPs and phone companies, may be compelled to disclose stored electronic information to the Government. The framework described below operates independently of the rules governing NSLs issued pursuant to § 2709, but may aid with interpretation of § 2709.

  The Government may obtain basic subscriber information*fn69 merely by issuing an authorized administrative subpoena, trial subpoena, or grand jury subpoena, and the Government need not notify the subscriber of the request.*fn70 If the Government gives prior notice to the subscriber, or otherwise complies with certain delayed notice procedures,*fn71 the Government may also subpoena the contents of electronic communications which are either (1) retained on a system for storage purposes (e.g., opened email which remains on an ISP's server), or (2) retained, for more than 180 days, in intermediate or temporary storage (e.g., unopened email on an ISP's server).*fn72 For the Government to obtain the contents of electronic communications kept for 180 days or less in intermediate or temporary storage (e.g., unopened email on an ISP's server), it must obtain a search warrant under Federal Rule of Criminal Procedure 41, or the state equivalent.*fn73 In other words, the Government would have to appear before a neutral magistrate and make a showing of probable cause.*fn74 The Government may also obtain a court order requiring an electronic communications service provider to turn over transactional and content information by setting forth "specific and articulable facts showing that there are reasonable grounds to believe that" the information sought is "relevant and material to an ongoing criminal investigation."*fn75

  The ECPA permits the Government to seek a court order prohibiting the communications provider from revealing the Government's inquiry "for such period as the court deems appropriate" if the court determines that such disclosure, among other things, would result in "destruction of or tampering with evidence" or "seriously jeopardizing an investigation or unduly delaying a trial."*fn76

  4. Mail

  Government law enforcement agencies are authorized to request the Postal Inspector to initiate a so-called "mail cover" to obtain any information appearing on the outside of a particular piece of mail.*fn77 Among other grounds, the law enforcement agency can obtain a mail cover by "specify[ing] the reasonable grounds to demonstrate the mail cover is necessary" to "[p]rotect the national security" or to "[o]btain information regarding the commission or attempted commission of a crime."*fn78 There is no requirement that the mail sender or recipient be notified of the mail cover.

  The Government must obtain a warrant based upon probable cause to open and inspect sealed mail because the contents of mail are protected by the Fourth Amendment.*fn79 As the Supreme Court established long ago: "Whilst in the mail, [a person's papers] can only be opened and examined under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one's own household."*fn80

  5. Pen Registers and Trap and Trace Devices

  Pen registers and trap and trace devices record certain electronic communications data indicating the origins and destinations of various "dialing, routing, addressing, or signaling information," e.g., the phone numbers dialed to and from a telephone.*fn81 In criminal investigations, the Government must apply for a court order, renewable in 60-day increments, to install or collect data from such devices, though the standard for issuing such an order is relatively low.*fn82 The Government need only ...


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