Magazine article The News Media and the Law (Online)

Anatomy of a Brief: Merrill V. Holder et Al

Magazine article The News Media and the Law (Online)

Anatomy of a Brief: Merrill V. Holder et Al

Article excerpt

A detailed look at a recent Reporters Committee amicus brief

Feature Page Number: 5

In March, the Reporters Committee filed a friend-of-the-court brief in the United States District Court for the Southern District of New York weighing in on the right to know more about a shadowy administrative subpoena process: "national security letters," known as NSLs.

National security letters and gag orders

NSLs are warrantless requests that are issued by high-ranking FBI officials to third parties for non-content records relevant to national security investigations. By far the most commonly used NSL authority is that in the Electronic Communications Privacy Act (ECPA), which enables the FBI to request the "local and long distance toll billing records" of any person from a "wire or electronic communication service provider," such as ISPs, email providers, and phone companies.

NSLs are frequently accompanied by a nondisclosure order that prevents the recipient from publicly acknowledging that they have received the request. The gag orders are issued by the FBI if the issuing official certifies that disclosure "may result" in a danger to national security or to the safety of any person. The nondisclosure orders are usually issued at the same time as the NSL is issued, without any judicial oversight. Recently, the Office of the Director of National Intelligence announced impending changes to the policy governing the issuance of gag orders: "the FBI will now presumptively terminate National Security Letter nondisclosure orders at the earlier of three years after the opening of a fully predicated investigation or the investigation's close." While the three-year limit is an improvement, it does not solve the serious constitutional problems with the NSL authority and the nondisclosure provisions.

This is not the first time the Reporters Committee has weighed in on the FBI's NSL authority. In April 2014, the Reporters Committee filed an amicus brief in support of petitioners challenging ECPA NSLs in two cases in the Ninth Circuit. Those cases have not yet been decided.

The facts of the case

In 2004, Nicholas Merrill received an ECPA NSL with a nondisclosure order. Merrill, who ran an Internet Service Provider called Calyx Internet Access, challenged the NSL and the gag order. In subsequent litigation in the Southern District of New York, the scope of the nondisclosure order was narrowed significantly. In 2010, Merrill was permitted to acknowledge that he was the litigant and the recipient of the NSL. And in February 2014, the FBI permitted Merrill to reveal the target of the NSL: the customer whose records were sought. But the FBI continues to maintain that Merrill may not reveal the Attachment to the NSL that specifies the kinds of information that the FBI sought using the NSL. As a result, the gag order has been in place for over ten years. Merrill brought this suit to lift the gag preventing him from disclosing what types of information the FBI sought pursuant to their authority to compel disclosure of "electronic communications transactional records."

The right to receive information from Merrill about the Attachment to the NSL

The Reporters Committee argued that the press and the public have a First Amendment right to receive the information that Merrill wants to disseminate: the content of the Attachment to the NSL.

The right to receive information is an independent "corollary" of the guarantees of free speech and a free press. Young v. American Mini Theatres, Inc., 427 U.S. 50, 76 (1976) (Powell, J., concurring). "The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read . . . ." Griswold v. Connecticut, 381 U.S. 479, 482 (1965).

The "willing speaker" doctrine is usually invoked to establish that the press has standing to challenge an unconstitutional restraint on speech that purports to bind a third party. …

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