I \ I i 15 UNITED STATES DISTRICT COURT 16 NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION. No. IN RE MAITER OF Y ) ) ) )

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1 l \ AARON S. DYER # aaron.dyer@pllsburylaw.com. LAUREN M. LEAHY #0 lauren.leahy@pllsburylaw.com rllsbury WNTHROP SHAW PTTMAN LLP South Fgueroa Street Sute 00 Los Angeles CA 00-0 Telephone: ( -00 Facsmle: ( -0 CNDY A. COHN (State Bar No. cndy@eff.org LEE TEN (State Bar No.. ten@eff.org MATTHEW ZMMERMAN (State Bar No. mattz@eff.org MARCA HOFMANN (State Bar No. 00 marca@eff.org 0 ELECTRONC FRONTER FOUNDATON Shotwell Street San Francsco CA 0 Telephone: ( - xl0 Facsmle: ( -Q UNTED STATES DSTRCT COURT NORTHERN DSTRCT OF CALFORNA SAN FRANCSCO DVSON N RE MATER OF Y No. MEMORANDUM OF PONTS AND AUTHORTES N SUPPO TO SET ASDE NATONAL SECURTY LETTER AND NONPSCLOSURE REQUREMENT MPOSED N CONNECTON THEREWT FLED UNDER SEAL [Cvl L.R. - -] Judge: Hon. Wllam H. Alsup MP A N SUPPORT OF PETTON TO SET ASDE NATONAL SECURTY LETER AND NONDSCLOSURE REQUREMENT

2 -.: TABLE OF CONTENTS 0 j - j. NTRODUCTON.... STATEMENT OF FACTS... A.... B. The NSL ssued to... C. The FB Has a Documented Hstory of Abusng NSLs..... ARGUMENT... A. The Nondsclosure Provson of the NSL Statute Consttutes an Unconsttutonal Pror Restrant.. j.... The NSL Statute Fals the Pentagon Papers Test for Pror Restrants. n the Context of Natonal Securty The Statute Lacks Necessary Procedural Safeguards.... Tle Non-Dsclosure Provson Volates Separaton of Powers PFncples as Revewng Courts Are Precluded From Applyng the Approprate Level of Revew Mandated By the Frst Amendment... B. The Statute as a Whole Both Substantvely and n ts Non-Dsclosure Provson s a Content-Based Restrcton on Speech That Fals Strct Scrutny.;... :.... The Substantve Standards for ssung NSLs Fal Strct Scrutny.... The Non-Dsclosure provson fals strct scrutny.... The Judcal Revew Provson of Fals Strct Scrutny.... Tj:e NSL Statute Volates the Anonymous Speech and Assocatonal Rghts of Amercans... C. The Unconsttutonal Portons of the NSL Statute are Not Severable... D. The Government Must Meet a Heavy Burden to Show That bs NSL Presents a Rsk of Harm Related to an Authorzed nvestgaton... V. CONCLUSON... """cnlv'... ' MP A N SUPPORT OF PETTON TO SET ASDE NATONAL SECURTY LETTER AND NONDSCWSURE REQUREMENT

3 -.: 0 l J oj TABLE OF AUTHORTES CASES Alexander v. Unted States 0 U.S.... Ayotte v. Planned Parenthood of Northern New England U.S. (@... Bates v. Cty of Lttle Rock U.S. ( Blount v. Rzz 00 U.S. 0 (... Buckley v. Am. Consttutonal Law Found. U.S. (?... Buckley v. Valeo U.S. (... Cty of Lakewood v. Plan Dealer Pub. Co. U.S. 0 (... Doe v. Ashcroft F.Supp.d (S.D.N.Y.0 vacated by Doe v. Gonzales F.d (nd. Cr. May 0... :... Doe v. Gonzales F.Supp.d (D.Conn.0... Doe v. Mukasey F. d (d Cr passm Forsyth County Georga v. The Natonalst Movement 0 U.S. (... :... :... Freedman v.maryland ; 0 U.S. ( FW/PBS nc. v. Cty of ljal/as U.S. ( ;... Gbsonv. Florda Legsl(ltve nvestgaton Comm. U.S. (('j... :... Legal Servces Corp. v. Velazquez U.S. (0... Lovng v. Unted States U.S. (... Marbury v. Madson. Cranch U.S. L.Ed. 0 ( MFA N SUPPORT OF PETTON TO SET ASDE NATONAL SECURTY LETTER AND NONDSCLOSURE REQUREMENT

4 ... j l 0 \ J f J j l ' ' l l Marks v. Unted States 0 U.S. (... ;... Mcntyre v. Oho Electons Comm 'n U.S. (... ;... Mnnesota v. Mlle Lacs Band of Chppewa ndans U.S. (... NAACP v. Alabama U.S. (... NAACP v. Button U.S. ( Nebraska Press Ass 'n v. Stuart U.S. (... New York Tmes v. Unted States (Pentagon Papers 0 U.S. (... Organzaton for a' Better Austn v. Keefe 0 U.S. (... Perce v. Underwood U.S. (... Plaut v. Spendthrft nc. U.S. (... R.A. V. v. Cty of St. Paul" 0 U.S.... ;... ;... Reno v. ACLU U.S. ( Seattle Afflate of Oct. nd Coal. to Stop Polce Brutalty Represson & Crmnalzaton of a Generaton v. Cty of Seattle 0 F.d (th Cr Shuttlesworth v. Cty of Brmngham U.S.... Stenberg v. Carhart 0 U.S. (@0... :... Thomas v. Chcago Park Dstrct U.S. (0.... Turner Broadcastng System nc. v. FCC U.S. (... Unted Pub. Workers of Am. v. Mtchell 0 U.S. (... MPA N SUPPORT OF PETTON TO SET ASDE NATONAL SECURTY LETER AND NONDSCWSURE REQUREMENT

5 '". 0 j j j l Unted States v. Booker U.S. (0... Unted States v. Playboy Entertanment Group nc. U.S. 0 (00... Unted States v. Ranes U.S. (0... Unted States v. Thrty-Seven Photographs 0 U.S. (... Vrgna v. Amercan Booksellers Assn. U.S. (... STATUTES AND CODES Unted States Code Ttle secton 0(a... Ttle secton 0(b... Ttle secton 0... Ttle secton 0(a-(b... Ttle secton 0(b... Ttle secton f0(b(... passm Ttle secton 0(b(... Ttle secton 0(c... passm Ttle secton (a... Ttle secton (b... ;... passm Ttle secton (b(... Ttle secton (b(-(... ;'... Ttle secton (b(... Ttle secton 0(a... OTHERAUTHORTES Department of Justce nspector General A Revew of the FB's Use of Natonal Securty Letters: Assessment of Correctve Actons and Examnaton ofnsl Usage n 0 (March 0 avalable at ("0 OG Report"... :... Department of Justce nspector General A Revew of the Federal Bureau of nvestgaton's Use of Natonal Securty Letters (March 0 avalable at OG Report".... Department of Justce nspector General A Revew of the Federal Bureau of nvestgaton's Use of Exgent Letters and Other nformal Requestsfor Telephone Records (January 0 avalable athttp:// OG Report"... S. USA PATROT ACf Sunset Extenson Act ofll avalable at "'n""n'"fc'nn... ' MPA N SUPPORT OF PETTON TO SET ASDE NATONAL SECURTY LETTER AND NONDSCLOSURE REQUREMENT

6 NTRODUCTON The Natonal Securty Letter statute U.S.C. 0 C''NSL Statute" s a controversal. law that as amended by Congress n both the U.S.A. PATROT Act and subsequently allows the FB to easly ssue admnstratve letters to servce provders such as telephone companes demandng nformaton about ther customers. t also allows the FB to gag the servce provders permanently from revealng the fact that the demand was made preventng them from notfyng ether ther customers or the publc. Whle the statute has many dffcultes one of the core consttutonal ssues already recognzed by the Second Crcut s that t turns the Frst Amendment's procedural pror restrant doctrne on t.s head by allowng the Executve to ssue a never-endng pror restrant on ts own then requrng the recpent servce provder to undertake a legal challenge. t also dramatcally lmts judcal revew of both the gag and the substance of the NSL. Unsurprsngly g.ven the combnaton of the lowered standard for ssuance ofnsls and gag orders and the shft n the burden to seek judcal revew many more NSLs have been ssued under the relaxed NSL statute than before the amendments and those NSLs have rarely been challenged by servce provders. On pettoner or "Pettoner" receved a Natonal Securty Letter (the ''NSL'' numbered from the Federal Bureau of nvestgaton ("FB". The NSL demanded that over the name address and length of servce for all servces provded to or accounts held by The NSL also ncluded a nondsclosure requrement. tum s an provder of long dstance and moble phone servces to ts customers Addtonally. MP A N SUPPORT OF PETTON TO SET ASDE NATONAL SECURTY LETTER AND NONDSCLOSURE REOUREMENT

7 ':. and gven the well-documented hstory ofnsl abuse by the FB seeks to ensure that any NSL demandng nfonnaton about and any non- dsclosure demand fully meet the applcable legal and consttutonal standards. Ths petton challenges the consttutonalty of the NSL nondsclosure provson and the NSL substantve provsons. Alternatvely f the NSL statute s held to be consttutonal Pettoner requests that the FB be held to ts burden n ths nstance.. STATEMENT OF FACTS A. 0 As noted above provdes long dstance and moble phone servces. Declaraton of n Support of Petton to Set Asde Natonal Securty Letter and Nondsclosure Requrement mposed n Connecton Therewth. Decl.. Over the course of hstory ts Addtonally Decl.. MP A N SUPPORT OF PETTON TO SET ASDE NATONAL SECURTY LETER AND NONDSCLOSURE REQUREMENT

8 ... 0 B. The NSL ssued to On rece'ved an NSL addressed to Dec. Ex. A. Though the NSL was addressed to Oed.' ; s the actual custodan of records and s the entty flng ths petton and respondng to the NSL. Decl.. The NSL drects "to provde to the Federal Bureau of nvestgaton (FB all subscrber nformaton lmted to name address and length of servce for all servces provded to or accounts held by Decl. Ex. A. The NSL summarly rectes the bolerplate representatons set forth n the NSL statute for both the NSL tself and. for the nondsclosure requrement. ld. The NSL also nformed that t had a rght to challenge the nondsclosure requrement. ld. The NSL specfcally stated: f you wsh to make a dsclosure that s prohbted by the nondsclosure requrement you must notfy the FB n wrtng of your desre to do so wthn ar days of ths let attenton: th a copy to FB HQ attenton: General Counsel (fax number: -- and must reference the date of the NSL and the dentfc'aton number found on the upper left comer of the NSL. f you send notce wthn 0 calendar days the FB wll ntate judcal proceedngs n approxmately 0 days n order to demonstrate to a federal judge the need for nondsclosure and to obtan a judcal order requrng contnued Case No. --- MPA N SUPPORT OF PETTON TO SET ASDE NATONAL SECURTY LETER AND NONDSCLOSURE REOUREMENT

9 nondsclosure. The nondsclosure requrement wll reman n effect unless and untl there s a fnal court order holdng that dsclosure s permtted.. d. The NSL prohbts from dsclosng nformaton about the NSL or ths petton to to most of employees and staff to the press to members of the publc and to members of Congress. t lkewse prohbts from dsclosng that an NSL has been drected to Lkewse 0 s prohbted from dsclosng that nformaton has been sought Shout c. The FB Bas a Documented Hstory of Abusng NSLs concern about the NSL statute s based n part on the well-documented hstory of FB abuse ofnsls. As part of the reauthorzaton of the PATROT Act n 0 Congress drected the Department 0f Justce nspector General to nvestgate and report on the FB's use of NSLs. n three scathng reports ssued between 0 and 0 the G documented the agency's systematc and extensve msuse of ths form oftegal process. The nspector General concluded that "the FB used NSLs n volaton of applcable NSL statutes Attorney General GudelneS ard nternal FB polces." 0 OG Report. Among other fndngs the OG reports concluded: FB NSL requests surged from about 00 NSL requests n 00 the year before the Department of Justce nspector General A Revew of the Federal Bureau of nvestgaton's Use of Natonal Securty Letters (March 0 avalable at OG Report"; Department of Justce nspector General A Revew of the FB's Use ofnato.nal Securty Letters: Assessment of Correctve Actons and Examnaton of NSL Usage n :0 (March 0 avalable at OG Report"; Department of Justce nspector General A ReVew of the Federal Bureau of nvestgaton's Use of Exgent Letters and Other nformal Requests for Telephone Records (January 0 avalable at OG Report". MP A N SUPPORT OF PETTON TO SET ASDE NATONAL SECURTY LETTER AND NONDSCLOSURE REOllREMENT

10 0 ld. PATROT Act was passed to 000 n 0 after the PATROT Act relaxed the standards requred to ssue an NSL to more than 0 NSL requests n 0 alone. 000 Report ; 0 OG Report 0. The possble ntellgence volatons reported wthn the FB between 0 and 0 ncluded mproperly authorzed NSLs mproper requests under NSL statutes and unauthorzed nformaton collecton through NSLs Report -; 0 OG Report -. The FB's mproper practces ncluded requests for nformaton based on Frst Amendment protected actvty ncludng acquston of reporters' and news organzatons' telephone toll bllng records and other callng actvty nformaton. 0 OG Report -. Pursuant to Executve Order all ntellgence agences ncludng the FB must report ntellgence volatons to the ntellgence Oversght Board ("lob" an ndependent cvlan ntellgence-montorng board that reports to the Presdent. Despte ths the revew of 0-0 nvestgatve fles at four FB feld offces Jjevealed that % contaned one or more possble volatons that had never been reported 0 OG Report representng an overall possblevolaton rate of. percent 0 OG. Report. Accordng to the OG these fndngs suggested ''that a sgnfcant number of NSL-related possble [JOB] volatons throughout the FB have not been dentfed or reported by FB personne." March 0 0G Report. The FB ssued hundreds ofnsls for "communty of nterest" or "callng crcle" nformaton to obtan multple toll records n response to an ndvdual NSL. ro OG Report. These were ssued wthout the mowledge or approval of authorzed NSL sgners and wthout any determnaton that :the telephone numbers were relevant to authorzed natonal securty nvestgatons.jd. at 0 -. The FB dsmssed many NSL nfractons as mere "admnstratve errors" a substantal number of whch ''nvolved volatons of nternal controls desgned to ensure approprate supervsory and legal revew of the use ofnsl authortes." 0 OG Report 00. The OG expressed concern that the FB's atttude toward these matters "dmnshes ther serousness and fosters a percepton that complance wth FB polces government the FB's use of ts NSL autho'rtes s annoyng paperwork." The report dstngushes NSL from NSL because a sngle NSL letter may contan multple requests for nformaton. 0 OG Report. For example the FB ssued nne NSL letters n one nvestgaton requestng subscrber nformaton on 00 dfferent phone numbers. 0 OG Report. Many of these fgures are unfortunately only the best estmate as the FB's NSL recordkeepng system was poor durng the tme peroq covered by the reports and the avalable data sgnfcantly underestmated the number ofnsl requests that had been made. 0 OG Report. n fact the OG estmated that "approxmf/.tely 0 NSL requests or percent of NSL requests ssued by the FB durng [0-0] were mssng from the database." d. s The OG stated "We beleve that these matters nvolved some of the most serous abuses of the FB's authorty to obtan telephone records." 0 OG Report. MPA N SUPPORT OF PETTON TO SET ASDE NATONAL SECURTY LETER AND NONDSCLOSURE REQUREMENT

11 g.j..: 0 The OG Reports lnked much of the FB's NSL abuse problem to a lack of oversght wthn the agency. 0 OG Report - -. Oversght outsde of the agency was also lackng. The 00 determned n 0 that the FB faled to report nearly 00 NSL requests to Congress between 0 and 0 almost all of whch were ssued under secton 0. 0 OG Report.. The OG Reports also document lack or oversght from the companes recevng the NSLs. For example telecommuncatons employees who processed FB requests for nformaton dd not request separate legal process for requests for communty of nterest records. 0. OG Report. And n over half of all NSL volatons submtted to the ntellgence Oversght Board the prvate. entty recevng the NSL ether provded more nformaton than requested or turned over nformaton wthout recevng a vald legal justfcaton from the FB. As one phone company employee who was embedded wth FB stated ''personally t wasn't my place to polce the polce." 0 00 Report. f. ARGUMENT The standards requred by the Frst Amendment are clear and unequvocal and must be appled here to both the pror restrants on speech created by the nondsclosure provsons and under the strct scrutny standards for both the statutory provsons. Under them the NSL statute fals. provsons and the substantve A.. The Nondsclosure Provson of the NSL Statute Consttutes an Unconsttutonal Pror Restrant There s no dspute that the nondsclosure proyson of secton 0( c creates a pror restrant on pettoner snce the NSL prohbts communcatons that would otherwse occur. See Whle the FB clams to have taken steps to mtgate the problems dscovered by the OG the OG has stated "[w]e beleve t s too soon to conclude whether the new gudance tranng and systems put nto place by the FB n response to our frst NSL report wll fully elmnate the problems wth the use ofnsls that we dentfed and that the FB confrmed n ts own revews. At the same tme we beleve that the FB has made sgnfcant progress n addressng these ssues and that the FB's senor leadershp s commtted to addressng msuse ofnsls." 0 OG Report. MPA N SUPPORT OF PETTON TO SET ASDE NATONAL SECURTY LETTER AND NONDSCLOSURE REQUREMENT

12 .: Alexander v. Unted States 0 0 (. A pror restrant on free speech s ''the most 0 serous and the least tolerable nfngement on Frst Amendment rghts." Nebraska Press Ass'n v. Stuart U.S. (. "Any pror restrant on expresson comes to [a court] wth a heavy presumpton aganst ts consttutonal valdty" and "carres a heavy burden of showng justfcaton." Organzaton/or a Better Austn v. Kee/e 0 U.S. ( (nternal quotaton marks omtted. Accordngly analyss of the NSL statute starts wth pror restrant doctrne.. The NSL Statute Fals the Pentagon Papers Test for Pror Restrants n the Context of Natonal Securty The frst test for pror restrants applcable n the context of clams of natonal securty s New York Tmes v. Unted States (Pentagon Papers 0 U.S. (. The Supreme Court n a bref per curam decson dened the Unted States' :request for an njuncton preventng the New York Tmes and Washngton Post frqm publshng the contents of a classfed' hstorcal study of U.S. polcy towards Vetnam known colloqually as the "Pentagon Papers" on the ground that the government faled to overcome the heavy presumpton aganst the consttutonalty of a pror restrant on speech. Under Pentagon Papers a pror restrant on speech n the context of a government asserton of natonal securty requres that dsclosure of the nformaton wll "surely result ndrect mmedate and rreparable harm to our Naton or ts people." 0 U.S. at 0 (Stewart J. joned by Whte J. concurrng. The NSL statute obvously fals ths demandng standard. The NSL tself s based on a wrtten certfcaton by the Drector of the FB or hs desgnee that ''the nformaton sought s relevant to an authorzed nvestgaton to protect aganst nternatonal terrorsm or clandestne ntellgence actvtes." U.S.C. 0(a-(b (emphass added. The FB may then prohbt the The Stewart-Whte concurrence s the holdng of the case because of the sx Justces who concurred n the judgment Justces Stewart and Whfte concurred on the narrowest grounds. See Marks v. Unted States 0 U.S. ( ("[w]hen a fragmented Court decdes a case and no sngle ratonale explanng the result enjoys the assent of fve Justces the holdng of the Court may be vewed as that poston taken by those Members who concurred n the judgment on the narrowest grounds" (nternal quotaton omtted. MP A N SUPPORT OF PETTON TO SET ASDE NATONAL SECURTY LETTER AND NONDSCLOSURE REOUREMENT

13 NSL recpent from speakng about the NSL so long as the FB certfes that a dsclosure "may result [n] a danger to the natonal securty of the Unted States nterference wth a crmnal counterterrorsm or counterntellgence nvestgaton nterference wth dplomatc relatons or danger to the lfe or physcal safety of any person." U.S.C. 0(c (emphass added. These statutory standards do not even come close to the requrements of Pentagon Papers that the speech poses a "specfc artculable rsk of drect mmedate and rreparable harm." nstead of "drect" harm the statute requres only that the nformaton be "relevant to an nvestgaton" and there s no menton of mmedacy or that the harm be rreparable. n the context of the nondsclosure order the statute only requres that a "danger" to natonal securty or "nterference" wth other actvtes "may result" wth no requrement of harm much less drect mmedate or rreparable harm. Requrng "mmedate" harm ensures that pror restrant s the last resort that there s no tme to pursue "less restrctve alternatves." Nebraska Press U.S. at (Powell l concurrng. mportantly the Pentagon Papers Court artculated ths test n the context of speech that several justces agreed would cause harm to natonal securty. See Pentagon Papers 0 U.S. at. Justce Stewart concurred wth the decson despte beng "convnced that the Executve was correct wth respect to some of the documents nvolved." ld. at 0. Justce Whte concurred. expressng confdence that dsclosure ''wll do substantal damage to publc nterests." ld. at. Nonetheless the Supreme Court refused to allow publcaton to be enjoned. As Justce Stewart noted " cannot say that dsclosure of any of [the documents] wll surely result n drect mmedate and rreparable damage to our Naton or ts people. That beng so there can under the Frst Amendment be but one judcal resoluton of the ssues before us." ld. at 0 see also Whte J. concurrence at. Smlarly the Supreme Court n Nebraska Press recognzed that mparment of a defendant's rght to a far tral s a grave harm to an mportant nterest but requred a showng that prejudcal publcty so affected the communty that jurors "could not be found." U.S. at ; bd. (harm "not demonstrated wth the degree of certanty our cases on pror restrant requre. ". MPA N SUPPORT OF PETTON TO SET ASDE NATONAL SECURTY LETER AND NONDSCLOSURE REOmREMENT

14 l l j 0 ZS. The Statute Lacks Necessary Procedural Safeguards Secton 0(c also lacks the procedural protectons requred of pror restrants. See Freedman v. Maryland 0 U.S. (. n Freedman the Supreme Court artculated three core procedural protectons that must exst before expresson can be condtoned on government permsson: ( any restrant mposed pror to judcal revew must be lmted to 'a specfed bref perod'; ( any further restrant pror to a fnal judcal determnaton must be lmted to 'the shortest fxed perod compatble wth sound judcal resoluton'; and ( the burden of gong to court to suppre.ss speech and the burden of proof n court must be placed on the government. Doe v. Mukasey F. d (d Cr. 0 (ctng Freedman 0 U.S. at -; FW/PBS nc. v. Cty o/dallas U.S. (0; Thomas v. Chcago Park Dstrct U.S. (0». Furthermore any pror restrant scheme mus.t provde narrow defnte and objectve standards to cabn the government's dscreton. See e.g. FW/PBS U.S. at (recognzng that a lcensng scheme may be unconsttutonal because of lack of procedural safeguard or unbrdled dscreton. The statute's falure to provde the process protectons requred of a pror restrant on speech are multple and manfest. These falures were the central concerns rased by the Second Crcut n Doe v. Mukasey although as descrbed further n secton (c nfra the Mukasey court's attempt to save the statute by rewrtng key sectons and addng n entrely new requrements smply went to far. a. The NSL Statute Volates the Thrd Prong of the Freedman Test. The statute volates the thrd prong of Freedman n two ways. Frst nstead of requrng the government to go to court to seek permsson to suppress speech secton 0( c turns the requrement on ts head by allowng ssuance ofnsls wthout judcal revew and nstead requrng the recpent of an NSL to petton for an order modfyng or settng asde the nondsclosure requrement under U.S.C. (b. The effects of ths transposton are profound especally n the NSL context because the entty wth the burden to seek judcal revew s not the person whose nformaton s sought-t s a thrd party that may have no nterest n challengng the NSL or may lack the resources or the facts MP A N SUPPORT OF PETTON TO SET ASDE NATONAL SECuRTY LETTER AND NONDSCLOSURE REOUREMENT

15 " 0 necessary to challenge the NSL. As noted above at page n over half of all NSL volatons submtted to the ntellgence Oversght Board the prvate entty recevng the NSL ether provded more nformaton than requested or turned over nformaton wthout recevng a vald legal justfcaton from the FB. 0 Second the statute fals to place the burden on the government when the matter s brought to court and deprves the Court of any meanngful authorty to exercse ts consttutonal oversght dutes. nstead the Court may only modfy or set asde the nondsclosure requrement f t fnds there s no reason to beleve that dsclosure may endanger natonal securty nterfere wth an nvestgaton or dplomatc relatons or endanger any person. U.S.C. (b.l n determnng whether the dsclosure may endanger natonal securty nterfere wth an nvestgaton or dplomatc relatons or endanger any person the Court s not penntted to evaluate the facts but nstead s requred to blndly accept the FB's representatons: f at the tme of the petton the FB "certfes that dsclosure may endanger the natonal securty of the Unted States or nterfere wth dplomatc relatons such certfcaton shall be treated as conclusve unless the court fnds that the certfcaton was made n bad fath:" U.S.C. (b(-(. And of course there s no procedure for factual revew by the Court wheren the Court could even determne whether such certfcaton was made n bad fath. Pettoners agree wth the Second Crcut that ths presumpton of conclusveness s unconsttutonal. Muko.sey F.d at (''the conclusve presumpton clause of subsectons (b( and (b( must be strcken". b. The Statute Volates the FrSt Prong of Freedman The nondsclosure provsons of the NSL statute also fal Freedman's frst prong by falng to provde that the pror restrant lasts only for a "specfed bref perod." The statute nstead As descrbed further nfra at secton (c pettoners agree wth the Second Crcut's fndng that the statute volated Freedman's thrd prong. Mukasey; F.d at. But as also descrbed nfra Pettoners dsagree wth the Second Crcut's that the statute survves scrutny wth a judcally nvented (but not requred "recprocal notce procedure" whch shfts the burden to the provder to object to the NSL. Mukasey at n Mukasey the Second Crcut also acknowledged ths problem but agan as descrbed further nfra at secton ( c mproperly rewrote the statute n attempt to avod the necessary concluson that the statute s unconsttutonal as wrtten. 0 MP A N SUPPORT OF PETTON TO SET ASDE NATONAL SECURTY LETTER AND NONDSCLOSURE REOUREMENT

16 >.. { ' J. J J 0.. mposes an ndefnte restrant subject only to a petton by the provder that can only be brought annually. U.S.C. 0(c. c. Mukasev Found the Same Consttutonal nfrmtes But Went Too Far n Rewrtng the Statute As noted above the Second Crcut n Mukasey v. Doe held that the statute faled these settled consttutonal tests. Unfortunately whle acknowledgng the problems and ther serousness the court attempted to save the statute through a radcal reconstructon that ncluded addng sgnfcant provsons that Congress dd not. Whle the court's efforts are understandablea court should be chary of declarng statutes unconsttutonal-the Mukasey Court went too far n rewrtng the statutes to save them from ther consttutonal defects. For nstance n addressng the Freedman requrement that the government ntate judcal revew of the gag order the court held that the statute'was unconsttutonal: "n the absence of Government-ntated judcal revew subsecton (b s not narrowly talored to confonn to Frst Amendment procedural standards." Mukasey F.d at. t then ntally recognzed that t was "beyond the authorty of a.court to 'nterpret' or 'revse' the NSL statutes to create the consttutonally requred oblgaton of the Government to ntate judcal revew of a nondsclosure requrement." d. F.d at. Yet the court went on to do just that determnng that f the government were to assume such ad. oblgaton volljltarly sectons 0(c and (b would survve consttutonal challenge. d. at. A court may construe a statute narrowly f possble to uphold t as consttutonal. Vrgna v. Amercan Booksellers Assn. U.S. (. A court also may sever parts of a statute that would render t unconsttutonal f t s possble to do so whle preservng the legslature's orgnal vson Unted States v. Booker U.S. - (0 or lmt the applcatons of a statute to those that would be consttutonal Unted States v. Ranes U.S. - (0. But a court cannot save a statute by construng t to contan lmtatons that Congress dd not nclude n the frst place. See Amercan Booksellers Assn. U.S. at. As the Supreme Agan the Mukasey Court attempted to resolve ths Frst Amendment volaton by nventng a complcated tmng structure as part of the "recprocal' notce procedure" that the government could ''voluntarly'' adopt. See nfra secton (c. MPA N SUPPORT OF PETTON TO SET ASDE NATONAL SECURTY LETTER AND NONDSCLOSURE REOUREMENT

17 j J \ J j ; \ 0 Court noted "ths Court 'wll not rewrte a... law to confonn t to consttutonal requrements.'" Reno v. ACLU U.S. - ( (alteraton n orgnal (quotaton omtted»; Blount v. Rzz 00 U;S. 0 ( (declnng to construe a statute to deny admnstratve order any effect untl judcal revew s completed because "t s for Congress not ths Court to rewrte the' statute". Unted States v. Thrty-Seven Photographs 0 U.S. ( a case the Mukasey court reled on heavly s not to the contrary. n that case the Supreme Court consdered the consttutonalty of U.S.C. 0(a a statute authorzng customs agents to seze obscene materals at the border. d. at. The statute requred the government to seek judcal revew of the sezure but provded no tme lmts for the ntaton or completon of those proceedngs. d. The Court determned that the lack of tme lmts threatened to render secton 0(a wholly unconsttutonal and so decded to mpose tme lmts as requred by Freedman. d. at -. Crtcally the statute's legslatve hstory reflected a strong congressonal ntent that judcal revew be completed promptly. d. at 0-. Furthermore Congress had specfcally drected that the entre statute should not be found unconsttutona f ts applcaton n some cases was found to be unlawful. d. at. Ultmately the Court dd not consder tself to be rewrtng the statute at all: "We do nothng n ths case but construe [secton] l0s( a n ts present form fully cognzant that Congress may re-enact t n a new fonn specfyng new tme lmts upon whose consttutonalty we may then be requred to pass." d: at (emphass added. The same cannot be sad for the Second Crcut's approach n Mukasey. The Mukasey court determned that sectons 0(c and (b "are unconsttutonal to the extent that they nondsclosure requrement wthout placng on the Government the burden of ntatng judcal revew of that requrement" and recognzed the lack of a "specfed bref perod" requred by a Congress s n fact consderng amendments to the:nsl statute to fx some of the problems dentfed n Mukasey. See e.g. S. USA PATROT ACT Sunset Extenson Aot of; avalable at The Supreme Court encountered a smlar n Booker U.S.. n that case the Court severed the judcal revew provson of tb Sentencng Refonn Act and decded that t should "nfer[]" a new standard of revew. [d. at 0. The Court consdered a three-factor test n Perce v. Underwood U.S. ( as well as Congress's "ntal and basc sentecng ntent" before settlng on an ''unreasonableness'' standard. [d. at 0-. MPA N SUPPORT OF PETmON TO SET ASDE NATONAL SECURTY LETER AND NONDSCWSURE REOUREMENT

18 J. "'- l l 0 Freedman's frst prong. t then found that t dd not have judcal authorty to "nterpret". or "revse" those provsons to mpose such a requrement on the government. F.d at. Yet nstead of takng these observatons to ther rghtful concluson and requrng Congress to fx the consttutonal nfrmtes n the statute the court proposed a recprocal notce procedure along wth tme lmts consstent wth Freedman for the government to ntate judcal revew of a nondsclosure order explanng: lfthe Government uses the suggested recprocal notce procedure as a means of ntatng judcal revew there appears to be nb mpedment to the Government's ncludng notce of a recpent's opportunty to;contest the nondsclosure requrement n an NSL. f such notce s gven' tme lmts on the nondsclosure requrement pendng judcal revew as reflected n Freedman would have' to be appled to make the revew procedure consttutonal. We would deem t to be wthn our judcal authorty to conform subsecton 0(cto Frst Amendment requrements by lmtng the duraton of the rondsclosure requrement absent a rulng favorable to the Government upon juddjal revew to the 0-day perod n whch the NSL recpent decdes whether to cqntent the nondsclosure requrement the 0-perod n whch the Government consders whether to seek judcal revew and a further perod of 0 days n whch a cow;t must adjudcate the merts unless specal crcumstances warrant addtonal tme. ld. (emphases added (ctng Thrty-Seven Photographs 0 U.S. at -. The court then went on to set forth "several optons for completng the recprocal notce procedure" ld. at whle notng the process s ultmately a matter of government dscreton: ''We leave t to the Government to consder how to dscharge ts oblgaton to ntate Judcal revew." ld. The Second Crcut concluded: ld. n vew of these possbltes we need not the entrety of the nondsclosure requrement of subsecton 0(c or the judcal revew provsons of subsecton (b. Although the conclusve presumpton clause of subsectons (b( and (b( must be strcken we nvhldate subsecton 0(c and the remander ofsubsecton(b only to the exltent that they fal to provde for Government-ntated The Government can respond to ths partal nvaldaton rulng by usng the suggested recprocal notce procedure. Wth ths procedure n place subsectons 0(c and (b would survve Frst Amendment challenge. The Second Crcut's attempt to save sectons 0(c and.(b goes fat beyond cases lke Vrgna v. Amercan Booksellers Assocaton U.S. and Unted States v. Ranes u.s. whch have lmted statutes to avod consttutonal nfrmtes. A dscretonary procedure or lmtaton voluntarly adopted by the govemmentcannot cure a statute's facal nvaldty Case No. MP A N SUPPORT OF PETTON TO SET ASDE NATONAL SECURTY LETTER AND NONDSCLOSURE REOUREMENT

19 ".. because nothng brds the government to observe the voluntary practce. See e.g. Stenberg v. Carhart 0 u.s. (00 (court s ''wthout power to adopt a narrowng constructon ofa state statute [offered by the government] unless such a constructon s reasonable and readly apparent." (quotaton omtted; Seattle Afflate of Oct. nd Coal. to Stop Polce Brutalty Represson & Crmnalzaton of a Generaton v. Cty of Seattle 0 F.d (th Cr. ( (voluntarly adopted factors regardng the applcaton of cty's parade lcensng statute dd not actually cabn dscreton of polce unless "'the lmts the cty clams are mplct n ts law [are] made explct by textual ncorporaton bndng judcal or admnstratve constructon or well-establshed practce. "' (quotng Cty of Lakewood v. Plan Dealer Pub. Co. U.S. 0 0 (». 0. Second the court's relance on Thrty-Seven Photographs was msplaced. The crcumstances surroundng sectons 0(c and (b are unlke those that the Supreme Court reled upon to mpose judcal revew n Thrty-Seven Photographs. There s no ndcaton here that Congress contemplated any notce procedure much lc;ss the recprocal notce procedure nvented by the Second Crcut wth complex specfed deadles. Nor as descrbed further nfra at secton C s there any ndcaton that Congress ntended the NSL statutes to survve n the wake of any unconsttutonal applcatons n some stuatons. Congress knows how to wrte savngs provsons and t dd not. The Second Crcut attempted to address these; conspcuous absences by concludng that "f Congress had.understood that Frst Amendment consderatons requred the goverrunent to ntate judcal revew of a nondjscosure requrement and precluded a conclusve certfcaton by the Attorney General" t "would surely have wanted" the.statutes to reman n: force even f certan S Once the Second Crcut depended on the FB to voluntarly assume oblgatons that the court lacked the power to mpose by constructon the remander of the decson became an mpennssble advsory opnon because the court declarng the consttutonalty of facts not presented n an actual case. See Plaut v. Spendthrft Farm nc. U.S. ( (nvaldatng scheme allowng for legslatve revson f judgments and holdng that the judcal power s "to render dspostve judgments" rulngs that "decde" cases "subject to revew only by superor courts n the Artcle herarchy"; see also Unted Pub. Workers of Am. '. Mtchell 0 U.S. ( ("as s well known the federal courts establshed pursuant to Artcle of the Consttuton do not render advsory opnons For adndcaton of consttutonal ssues concrete legal ssues presented n actual cases not abstractons are requste" (nternal quotaton marks omtted». MPA N SUPPORT OF PETTON TO SET ASDE NATONAL SECURTY LETER AND NONDSCLOSURE REOUREMENT

20 provsons were strcken: Mukasey F.d at. But the court reled on no evdence to support ths supposton unlke the Supreme Court n Thrty-Seven Photographs. The Second Crcut went too far to renterpret sectons 0(c.and (b. They are facally unconsttutonal and ther consttutonal nfrmtes cannot be cured by a complex court- \ r ' 0 created judcal revew procedure wth whch the govenunent need only "voluntarly" comply. d. The NSL Statute's Nondsclosure Provson Volates the Frst Amendment as t Fals tel Set Forth ''Narrow. Objectve. and Defnte Standards" the Dscreton of the FB The non-dsclosure provson of U.S.C. 0(c also must fal because t consttutes a lcensng scheme that vests n executve offcers unfet:tered dscreton wth whch to slence speakers about govenunent actvtes. t allows the govenunent to gag a recpent merely on a certfcaton that dsclosure ''may result [n] a danger to the natonal securty of the Unted States nterference wth a crmnal counterterrorsm or counterntellgence nvestgaton nterference wth dplomatc relatons or danger to the lfe or physcal safety of any person." U.S.C. 0(c. Wthout any artculable statutory gudance cabnng ths executve dscreton the statute cannot survve consttutonal scrutny. n Shuttlesworth v. Cty o/brmngham U.S. ( the Supreme Court consdered a local ordnance that allowed cty offcals to refuse a parade permt f''tbe publc welfare peace safety health decency good' order morals or convenence" so requred. d Because the ordnance gave cty offcals ''vrtually unbrdled dscreton and absolute power" to deny a permt the Court found the ordnance unconsttutonal notng that an ordnance that ''makes the peaceful enjoyment of freedoms whch the Consttuton guarantees contngent upon the uncontrolled wll of an offcal... s an unconsttutonal censorshp or pror restrant upon the enjoyment of those freedoms." d. at 0-. Any statutory lcensng scheme must necessarly lmt the dscreton of the censor to "narrow objectve and defnte standards" to protect the ndscrmnate and unlawful deprvaton of Frst Amendment rghts. d. at 0. As 'the Supreme Court observed n Forsyth County Georga v. The Natonalst Movement 0 U.s. ( "f the permt scheme nvolves the apprasal of facts the exercse of judgment and the fonnaton of an opnon by the MP A N SUPPORT OF PETTON TO sm ASDE NATONAL SECURTY LETTER. AND NONDSCLOSURE REOUREMENT

21 J < lcensng authorty the danger of censorshp and of abrdgment of our precous Frst Amendment freedoms s too great to be permtted."(ctatons omtted.. The non-dsclosure provson of the NSL statute lacks the "narrow objectve and defnte standards" necessary to lmt the exercse of executve authorty. Rather t authorzes an FB. offcal to prohbt dsclosure of an NSL f that offcal beleves-under hs or her own crtera- that dsclosure "may result" n for example "danger'; to natonal securty or nterfere wth a counterterrorsm nvestgaton. Ths sort ofunfetteredl dscreton n an executve branch offcal to. determne whether speech can occur has repeatedly been struck down by both the Supreme Court and the Nnth Crcut. n Cty a/lakewood U.S. at the Supreme Court noted: "t s 0 apparent that the face of the ordnance tself contans no explct lmts on the mayor's dscreton.. ndeed nothng n the law as wrtten requres the mayor to do more than make the statement 't s not n the publc nterest' when denyng a permt applcaton." n Cty a/seattle 0 F.d at 0 the Nnth 'Crcut recently confrmed that an "open-ended standard combned wth the absence of a requrement that offcals artculate ther reasons or an admnstratve-judcal revew process vests the Seattle Chef of Polce wth sweepng authorty... The Frst Amendment prohbts placng such unfettered dscreton n the hands of lcensng offcals.". Moreover the absence of clear standards allows "post hoc ratonalzatons" and "the use of shftng or llegtmate crtera" that make t dffcult for courts to assess the statute's effects on a case-by-case bass. Cty a/lakewood U.S. at. Ths problem s especally serous n the NSL context where few cases are ever brought by servce provders.. The Non-Dsclosure Provson Volates Scmaraton of Powers Prncples as Revewng Courts Are Precluded From Applyng the Approprate Level of Revew Mandated By the Frst Amendment The non-dsclosure provson of the NSL statute also volates separaton of powers prncples whch bar Congress from assgnng to the executve branch a power reserved for the judcary. "t remans a basc prncple of our consttutonal scheme one branch of the Government may not ntrude upon the central prerogatves of another." Lovng v. Unted States U.S. (. See also Marbury v. Madson Cranch U.S. L.Ed. MPA N SUPPORT OF PETTON TO SET ASDE NATONAL SECURTY LETTER AND NONDSCLOSURE REOUREMENT

22 (0 (declarng that "t s emphatcally the provnce and duty of the judcal department to say what the law s. By purportedly -restrctng the authorty of the courts to a partcular standard of revew to determne the legalty ofnsls the statute volates the separaton of powers. NSL recpents may petton the judcary to modfy or set asde the nondsclosure demand. See U.S.C. (b. However the revewng court may grant such relef only ft fnds that ''there s no reason to beleve" dsclosure "may result" n one of the hanns enumerated n the statute. U.S.C. (b(. Moreover f authorzed FB personnel "certfy] that dsclosure may endanger the natonal securty of the Unted States or nterfere wth dplomatc relatons such certfcaton shall be treated as conclusve unless the court fnds that the certfcaton was made n 0 bad fath." d. The statute thus not only mpermssbly determnes the approprate standard of revew for the court t also essentally mandates a partcular outcome. B. The Statute as a Whole Both Substa:ntvely and n ts Non.Dsclosure Provson s a Content-Based on Speech That Fans Strct Scrutny. Even f the non-dsclosure standard could survjve the pror restrant tests the entre statute stll must meet strct scrutny revew. ndeed the government has prevously "conceded that strct scrutny s the applcable standard" for non-dsclosure. Mu/rasey F.d at. n addton NSLs nvade Frst Amendment terrtory because they compel producton of records relatng to communcatons and communcatons servce and may chll speech snce they may result from actvtes protected by the Frst Amendment. The statutory language acknowledges ths concern by prohbtng ssuance ofnsls "solely on the-bass of actvtes protected by the frst amendment to the Consttuton of the Unted States" ( U.S.C. 0(b(» but that standard s far too low to Amendment law recognzes the rght of speakers to decde whether to speak at all and to whom. See e.g. Mcntyre v. Oho Electons Comm 'n U.S. (. Under the strct scrutny standard the NSL s "presumptvely nvald." R.A. V. v. Cty olst. 0 U.S. (. To survve strct scrutny revew a government entty must show Case No MP A N SUPPORT OF PETmON TO SET ASDE NATONAL SECURTY LETTER AND NONDSCLOSURE REOUREMENT

23 f.. j f 0 ":'\ that a restrcton on free speech s "narrowly talored to promote a compellng Government nterest" Unted States v. Playboy Entertanment Group nc. U.S. 0 (00 and that there are no "less restrctve alternatves [that] would be at least as effectve n achevng the legtmate purpose that the statute was enacted to serve" Reno v. ACLU U.S. (. And whle the protecton of natonal securty s generally recognzed as a compellng government nterest the FB cannot smply "post the exstence of the dsease sought to be cured" rather "t must demonstrate that the rected harms are real not merely conjectural and that the regulaton wll n fact allevate these harms n a drect and materal way." Turner Broadcastng System nc. v. FCC U.S. ( (nternal quotaton marks and ctatons omtted.. The Substantve Standards for ssung NSLs Fal Strct Scrutfuy The NSL here compels to provde nfonnaton about to the government whle prohbtng from speakng publcly or to about the NSL. Thus as appled to n ts role as ' the 'NSL poses ''the nherent rsk that the Government seeks not to advance a legtmate regulatory goal but to... manpulate the publc debate through coercon rather than persuason." Turner Broadcastng U.S. at. The same s true for users. The NSL statute allows customers to be targeted for ther free speech actvtes so long as the FB can clam that s has some concern that s unrelated to Frst Amendment actvty. The only restrcton that s placed upon the FB's dscreton s that the Frst Amendment actvty may not be the "sole" reason for the NSL. Gven ths presents a serous rsk of unfettered abuse by the government. ndeed because of the green lght t gves the FB to ssue NSLs based n part on the exercse of free speech these rsks exst n all cases where ndvduals may be targeted based on ther Frst Amendment actvtes. Planly NSLs are 'not narrowly talored. They may be ssued whenever sought-after nfonnaton s merely ''relevant'' to an "an authorzed nvestgaton" and reach broadly to allow MP A N SUPPORT OF PETTON TO SET ASDE NATONAL SECURTY LETER AND NONDSCLOSURE REOUREMENT

24 ;J J ' ' l j l l f ssuance on any bass whatsoever as long as t s not based solely on a U.S. person's Frst Amendment actvtes. U.S.C. 0(b( (b(. NSLs are also not the least restrctve means. As mere admnstratve tools they may be ssued wthout any outsde revew. n contrast grand jury subpoenas whch can seek the same nformaton requre grand jury approval. Smlarly court orders ncludng those ssued under the Foregn ntellgence Survellance Act at least requre judcal approval. Even pror versons of the statute were closer to the consttutonal standard requrng that the government show "specfc and artculable facts" that the nformaton pertaned to the actons ofa foregn power or agent ofa foregn power. U.S.C. 0(b (. Such language rasng the burden on the government and lmtng the bass on whch 0 NSLs could be ssued clearly ndcates that Congress could have chosen a less means of effectng the government's nterest. "When a plausble less restrctve alternatve s offered to a content-based speech restrcton t s the Government's oblgaton to prove that the alternatve wll be neffectve to acheve ts goals." Playboy Entm't Group U.S. at.. The Non-Dsclosure Provson Fals Strct Scrutny The non-dsclosure provson of the NSL statute fals strct scrutny n two dfferent ways. Frst as argued above nfra.a.. the statute's falure to adhere to the Freedman procedural safeguards means that t s not narrowly talored. Mukasey F.d at ("n the absence of Government-ntated judcal revew subsecton (b s not narrowly talored to conform to Frst Amendment procedural standards... [and] does not survve ether tradtonal strct scrutny or a slghtly less exactng measure of such scrutny.". Second the non-dsclosure provson authorzes overly long pror restrants. f the Court decdes that the pror restrant s justfed t cannot talor the duraton of the pror festrant to the crcumstances. nstead the pror restrant s permanent unless the gagged provder exercses ts rght to challenge the non-dsclosure oblgaton once a year when the government mayor may not re-certfy that dsclosure would cause an enumerated harm. U.S.C. (b(. Even f the. government knows-or the Court would decde f presented wth the pertnent facts-that the restrant on speech s no longer needed or can be modfed the government has no oblgaton to notfy the Court or the provder or otherwse act to lft or modfy the restrant. Because MP A N SUPPORT OF PETTON TO SET ASDE NATONAL SECURTY LETTER AND NONDSCLOSURE REOUREMENT

25 "[p ]recson of regulaton must be the touchstone n an area closely touchng our most precous freedoms" NAACP v. Button U.S. ( the statute's categorcal approach to the duraton of the pror restrant s not narrowly talored to the government's nterest and volates the Frst Amendment.. The Judcal Revew Provson of Fals Strct Scrutny Furthennore judcal revew of the NSL s hobbled creatng both Frst Amendment and separaton of powers ssues gven the breadth ofthe government's dscreton to ssue NSLs. Accordng to the statute the Court must at the government's request revew any affdavts n support of the certfcaton requred by 0(b ( both ex parte and n camera whether or not the affdavts contan classfed nfonnaton. (e. Ths provson prevents from meanngfully partcpatng n judcal revew of wheth'er may be compelled to speak and s nconsstent wth strct scrutny under whch the government has the burden to justfy any restrcton on speech. t s also deeply nconsstent wth the separaton of powers. NSLs are legauy and poltcally controversal. Ths statutory excluson of from the judcal revew of an NSL revew "s desgned to nsulate the Government's nterpretaton of the Consttuton from judcal challenge." Legal Servces Corp. v. Velazquez U.S. (0. However courts "must be vglant when Congress mposes rules and condtons whch n effect nsulate ts own laws from legtmate judcal challenge." d. At the very least the government must justfy on a publc record why must be dened access to any unclassfed nformaton n the affdavts and provde an unclassfed verson of such affdavts to so tb.at can respond. '. The NS. Statute Volates the Anonymous Speech and Assocatonal Rghts of Amercans The NSL statute authorzng the dsclosure of dentfyng nformaton and call records related to telecommuncatons subscrbers also fals to comply wth Frst Amendment lmtatons on forced dsclosure of anonymous assocatonal nfonnaton. Here the specfc NSL requres the That the statute prohbts the use ofnsls to MP A N SUPPORT OF PETTON TO SET ASDE NATONAL SECURTY LETTER AND NONDSCLOSURE REOUREMENT

26 r f f r nvestgate U.S. persons "solely on the bass of actvtes protected by the frst amendment" U.S.C. 0(b( (b( hghlghts Congress's awareness of the problem. Courts have long recognzed protecton under the Frst Amendment for the rght to engage n anonymous communcaton - to speak read lsten and/or assocate anonymously - as fundamental to a free socety. The Supreme Court has consstently defended'such rghts n a varety of contexts notng that "[a]nonymty s a sheld from the tyranny of the majorty... [that] exemplfes the purpose [of the Frst Amendment] to protect unpopular ndvduals from retalaton 0... at the hand of an ntolerant socety." Mcntyre v. Oho Electons Comm 'n U.S. ( (holdng that an "author's decson to reman anonymous lke other decsons concernng omssons or addtons to the content of a publcaton s an aspect of the freedom of speech protected by the Frst Amendment". Smlarly the Supreme Court has long held that compelled dsclosure of membershp lsts and other assocatonal nformaton may consttute an mpennssble restrant on freedom of assocaton. See NAACP v. Alabama U.S. ( (compelled dentfcaton volated group members' rght to reman anonymous; "[]nvolablty of prvacy n group assocaton may n many crcwnstances be ndspensable to preservaton of freedom of assocaton". Because the Frst Amendment protects anonymous speech and assocaton efforts to use the power of the courts to perce such anonymty are subject to heghtened scrutny requrng the demonstraton of a compellng need and a showng that the demand s narrowly talored. Courts must ''be vglant... [and] guard aganst undue hndrances to... the exchange of deas." Buckley v. Am. Consttutonal Law Found. U.S. (. The Supreme Court has appled such heghtened scrutny n a varety of context n whch anonymous assocaton and expresson has been mplcated. n Mcntyre U.S. at the Court appled "exactng scrutny" to strke down a statute that banned the dstrbuton of anonymous poltcal expresson fndng that the statute was not "narrowly talored to serve an overrdng state nterest." n NAACP v. Alabama U.S. at the Court overturned a contempt judgment aganst the NAACP for ts refusal to tum over the denttes of ts Alabama members as requred by a state statute holdng that no compellng need for the lst had been demonstrated. n Gbson v. Florda Legslatve nvestgaton Case No -----_ MP A N SUPPORT OF PETTON TO SET ASDE NATONAL SECURTY LETfER AND NONDSCLOSURE REOUREMENT