TABLE OF AUTHORITIES CASES. Bates v. City of Little Rock, 361 U.S. 516 (1900)... 22

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3 -.: l 4 J oj TABLE OF AUTHORTES CASES Alexander v. Unted States 509 U.S Ayotte v. Planned Parenthood of Northern New England 546 U.S. 320 (20@6) Bates v. Cty of Lttle Rock 36 U.S. 56 (900) Blount v. Rzz 400 U.S. 40 (97)... 2 Buckley v. Am. Consttutonal Law Found. 525 U.S. 2 (9?9)... 2 Buckley v. Valeo 4 U.S. (976) Cty of Lakewood v. Plan Dealer Pub. Co. 46 U.S. 750 (9) Doe v. Ashcroft 334 F.Supp.2d 4 (S.D.N.Y.2004) vacated by Doe v. Gonzales 449 F.3d 45 (2nd. Cr. May )... : Doe v. Gonzales 36 F.Supp.2d 66 (D.Conn.2005) Doe v. Mukasey 549 F. 3d 6 (2d Cr. 200)... passm Forsyth County Georga v. The Natonalst Movement 505 U.S. 23 (992)... :... :... 5 Freedman v.maryland ; 30 U.S. 5 (965) FW/PBS nc. v. Cty of ljal/as 493 U.S. 25 (990) ;... 9 Gbsonv. Florda Legsl(ltve nvestgaton Comm. 372 U.S. 539 (9('j3)... : Legal Servces Corp. v. Velazquez 53 U.S. 533 (200) Lovng v. Unted States 57 U.S. 74 (996)... 6 Marbury v. Madson. Cranch 37 5 U.S. 372 L.Ed. 60 (03) Case No. MFA N SUPPORT OF PETTON TO SET ASDE NATONAL SECURTY LETTER AND NONDSCLOSURE REQUREMENT

4 j l 9 0 \ 2 3 J 4 f J j l ' ' 25 l 26 l 27 2 Marks v. Unted States 430 U.S. (977)... ;... 7 Mcntyre v. Oho Electons Comm 'n 54 U.S. 334 (995)... ; Mnnesota v. Mlle Lacs Band of Chppewa ndans 526 U.S. 72 (999) NAACP v. Alabama 357 U.S. 449 (95)... 2 NAACP v. Button 37 U.S. 45 (963) Nebraska Press Ass 'n v. Stuart 427 U.S. 539 (976)... 7 New York Tmes v. Unted States (Pentagon Papers) 403 U.S. 73 (97)... 7 Organzaton for a' Better Austn v. Keefe 402 U.S. 45 (97)... 7 Perce v. Underwood 47 U.S. 552 (9)... 2 Plaut v. Spendthrft nc. 54 U.S. 229 (995)... 4 R.A. V. v. Cty of St. Paul" 505 U.S ;... ;... 7 Reno v. ACLU 52 U.S. 44 (997) Seattle Afflate of Oct. 22nd Coal. to Stop Polce Brutalty Represson & Crmnalzaton of a Generaton v. Cty of Seattle 550 F.3d 7 (9th Cr. 200) Shuttlesworth v. Cty of Brmngham 394 U.S Stenberg v. Carhart 530 U.S. 94 (20@0)... :... 4 Thomas v. Chcago Park Dstrct 534 U.S. 36 (2002) Turner Broadcastng System nc. v. FCC 52 U.S. 622 (994)... Unted Pub. Workers of Am. v. Mtchell 330 U.S. 75 (947)... 4 Case No. MPA N SUPPORT OF PETTON TO SET ASDE NATONAL SECURTY LETER AND NONDSCWSURE REQUREMENT

5 '" j j 25 j l Unted States v. Booker 543 U.S. 220 (2005)... 2 Unted States v. Playboy Entertanment Group nc. 529 U.S. 03 (2000)... 9 Unted States v. Ranes 362 U.S. 7(960)... 3 Unted States v. Thrty-Seven Photographs 402 U.S. 363 (97) Vrgna v. Amercan Booksellers Assn. 44 U.S. 33 (9)... 3 STATUTES AND CODES Unted States Code Ttle secton 2705(a) Ttle secton 2705(b ) Ttle secton Ttle secton 2709(a)-(b)... Ttle secton 2709(b) Ttle secton f709(b)( )... passm Ttle secton 2709(b)(2) Ttle secton 2709(c)... passm Ttle secton 35(a) Ttle secton 35(b)... ;... passm Ttle secton 35(b)(2)... 9 Ttle secton 35(b)(2)-(3)... ;'... Ttle secton 35(b)(3) Ttle 9 secton 305(a)... 3 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 2006 (March 200) avalable at ("200 OG Report")... : Department of Justce nspector General A Revew of the Federal Bureau of nvestgaton's Use of Natonal Securty Letters (March 2007) 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 200) avalable athttp:// OG Report") S. 93 USA PATROT ACf Sunset Extenson Act of20ll avalable at Case No. "'7n""n'"fC'nn... ' MPA N SUPPORT OF PETTON TO SET ASDE NATONAL SECURTY LETTER AND NONDSCLOSURE REQUREMENT

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10 ld. PATROT Act was passed to n 2003 after the PATROT Act relaxed the standards requred to ssue an NSL to more than 406 NSL requests n 2006 alone Report 20; 200 OG Report The possble ntellgence volatons reported wthn the FB between 2003 and 2006 ncluded mproperly authorzed NSLs mproper requests under NSL statutes and unauthorzed nformaton collecton through NSLs Report 66-67; 200 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. 200 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 nvestgatve fles at four FB feld offces Jjevealed that 22% contaned one or more possble volatons that had never been reported 2007 OG Report 7 representng an overall possblevolaton rate of7.5 percent 200 OG. Report 76. 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 G Report 4. The FB ssued hundreds ofnsls for "communty of nterest" or "callng crcle" nformaton to obtan multple toll records n response to an ndvdual NSL. 20rO OG Report 75. 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 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." 200 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 OG Report 20. For example the FB ssued nne NSL letters n one nvestgaton requestng subscrber nformaton on 00 dfferent phone numbers 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 OG Report 34. n fact the OG estmated that "approxmf/.tely 50 NSL requests or 6 percent of NSL requests ssued by the FB durng [ ] 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." 200 OG Report 25. Case No. 5 MPA N SUPPORT OF PETTON TO SET ASDE NATONAL SECURTY LETER AND NONDSCLOSURE REQUREMENT

11 g 5.j..: The OG Reports lnked much of the FB's NSL abuse problem to a lack of oversght wthn the agency. 200 OG Report Oversght outsde of the agency was also lackng. The 00 determned n 2007 that the FB faled to report nearly 4600 NSL requests to Congress between 2003 and 2005 almost all of whch were ssued under secton OG Report 33.. 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 OG Report 59. 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. 6 As one phone company employee who was embedded wth FB stated ''personally t wasn't my place to polce the polce." Report f. ARGUMENT The standards requred by the Frst Amendment are clear and unequvocal and must be 6 appled here to both the pror restrants on speech created by the nondsclosure provsons and 7 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 2709( 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." 200 OG Report 49. Case No. 6 MPA N SUPPORT OF PETTON TO SET ASDE NATONAL SECURTY LETTER AND NONDSCLOSURE REQUREMENT

12 .: Alexander v. Unted States (993). A pror restrant on free speech s ''the most serous and the least tolerable nfngement on Frst Amendment rghts." Nebraska Press Ass'n v. Stuart 427 U.S (976). "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 402 U.S (97) (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) 403 U.S. 73 (97). 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." 403 U.S. at 730 (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. 2709(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 430 U.S. 93 (977) ("[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). Case No. 7 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. 2709(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 427 U.S. at 57 (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 403 U.S. at 763. Justce Stewart concurred wth the decson despte beng "convnced that the Executve was correct wth respect to some of the documents nvolved." ld. at 730. Justce Whte concurred. expressng confdence that dsclosure ''wll do substantal damage to publc nterests." ld. at 73. 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 730 see also Whte J. concurrence at 732. 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 2 jurors "could not be found." 427 U.S. at 569; bd. (harm "not demonstrated wth the degree of certanty our cases on pror restrant requre. "). Case No. MPA N SUPPORT OF PETTON TO SET ASDE NATONAL SECURTY LETER AND NONDSCLOSURE REOmREMENT

14 l l j ZS The Statute Lacks Necessary Procedural Safeguards Secton 2709(c) also lacks the procedural protectons requred of pror restrants. See Freedman v. Maryland 30 U.S. 5 5 (965). 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'; (2) any further restrant pror to a fnal judcal determnaton must be lmted to 'the shortest fxed perod compatble wth sound judcal resoluton'; and (3) 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 549 F. 3d 6 7 (2d Cr. 200) (ctng Freedman 30 U.S. at 5-59; FW/PBS nc. v. Cty o/dallas 493 U.S (990); Thomas v. Chcago Park Dstrct 534 U.S (2002». Furthermore any pror restrant scheme mus.t provde narrow defnte and objectve standards to cabn the government's dscreton. See e.g. FW/PBS 493 U.S. at 222 (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 2709( 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. 35(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 Case No. 9 MP A N SUPPORT OF PETTON TO SET ASDE NATONAL SECuRTY LETTER AND NONDSCLOSURE REOUREMENT

15 " necessary to challenge the NSL. 9 As noted above at page 7 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. 35(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. 35 (b)(2)-(3). 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 549 F.3d at 4 (''the conclusve presumpton clause of subsectons 35(b)(2) and (b)(3) 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 9 As descrbed further nfra at secton (c) pettoners agree wth the Second Crcut's fndng that the statute volated Freedman's thrd prong. Mukasey; 549 F.3d 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 549 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. Case No. 0 MP A N SUPPORT OF PETTON TO SET ASDE NATONAL SECURTY LETTER AND NONDSCLOSURE REOUREMENT

16 ) >.. { ' J 2 3. J 4 J mposes an ndefnte restrant subject only to a petton by the provder that can only be brought annually. U.S.C. 2709(c).2 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 35 (b) s not narrowly talored to confonn to Frst Amendment procedural standards." Mukasey 549 F.3d 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. 549 F.3d at 3. Yet the court went on to do just that determnng that f the government were to assume such ad. oblgaton volljltarly sectons 2709(c) and 35(b) would survve consttutonal challenge. d. at 4. A court may construe a statute narrowly f possble to uphold t as consttutonal. Vrgna v. Amercan Booksellers Assn. 44 U.S (9). 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 543 U.S (2005) or lmt the applcatons of a statute to those that would be consttutonal Unted States v. Ranes 362 U.S (960). 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. 44 U.S. at 397. As the Supreme 2 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). Case No. MPA N SUPPORT OF PETTON TO SET ASDE NATONAL SECURTY LETTER AND NONDSCLOSURE REOUREMENT

17 j J \ J j ; \ Court noted "ths Court 'wll not rewrte a... law to confonn t to consttutonal requrements.'" Reno v. ACLU 52 U.S (997) (alteraton n orgnal) (quotaton omtted»; Blount v. Rzz 400 U;S (97) (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"). 3 Unted States v. Thrty-Seven Photographs 402 U.S. 363 (97) a case the Mukasey court reled on heavly s not to the contrary. n that case the Supreme Court consdered the consttutonalty of 9 U.S.C. 305(a) a statute authorzng customs agents to seze obscene materals at the border. d. at 366. 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 305(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 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 372. Ultmately the Court dd not consder tself to be rewrtng the statute at all: "We do nothng n ths case but construe [secton] l30s( 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 374 (emphass added).4 The same cannot be sad for the Second Crcut's approach n Mukasey. The Mukasey court determned that sectons 2709(c) and 35(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. 93 USA PATROT ACT Sunset Extenson Aot of20; avalable at 4 The Supreme Court encountered a smlar n Booker 543 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 260. The Court consdered a three-factor test n Perce v. Underwood 47 U.S. 552 (9) as well as Congress's "ntal and basc sentecng ntent" before settlng on an ''unreasonableness'' standard. [d. at Case No. 2 MPA N SUPPORT OF PETmON TO SET ASDE NATONAL SECURTY LETER AND NONDSCWSURE REOUREMENT

18 J. "'- l l 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. 549 F.3d at 3. 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 209(c)to 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 30-perod n whch the Government consders whether to seek judcal revew and a further perod of 60 days n whch a cow;t must adjudcate the merts unless specal crcumstances warrant addtonal tme. ld. (emphases added) (ctng Thrty-Seven Photographs 402 U.S. at ). The court then went on to set forth "several optons for completng the recprocal notce procedure" ld. at 4 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 2709(c) or the judcal revew provsons of subsecton 35 (b). Although the conclusve presumpton clause of subsectons 35 (b)(2) and (b)(3) must be strcken we nvhldate subsecton 2709(c) and the remander ofsubsecton35(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 2709(c) and 35(b) would survve Frst Amendment challenge. The Second Crcut's attempt to save sectons 2709(c) and 35.(b) goes fat beyond cases lke Vrgna v. Amercan Booksellers Assocaton 44 U.S. 33 and Unted States v. Ranes 362 u.s. 7 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. 3 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. 2 Carhart 530 u.s. 94 (2000) (court s ''wthout power to adopt a narrowng constructon ofa state 3 statute [offered by the government] unless such a constructon s reasonable and readly apparent.") 4 (quotaton omtted); Seattle Afflate of Oct. 22nd Coal. to Stop Polce Brutalty Represson & 5 Crmnalzaton of a Generaton v. Cty of Seattle 550 F.3d (9th Cr. 20() (voluntarly 6 adopted factors regardng the applcaton of cty's parade lcensng statute dd not actually cabn 7 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 9 practce. "') (quotng Cty of Lakewood v. Plan Dealer Pub. Co. 46 U.S (9».5 0. Second the court's relance on Thrty-Seven Photographs was msplaced. The crcumstances surroundng sectons 2709(c) and 35(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. 54 U.S (995) (nvaldatng scheme allowng for legslatve revson 9f 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 330 U.S (947) ("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». Case No. 4 MPA N SUPPORT OF PETTON TO SET ASDE NATONAL SECURTY LETER AND NONDSCLOSURE REOUREMENT

20 provsons were strcken: Mukasey 549 F.3d at 5. But the court reled on no evdence to support 2 ths supposton unlke the Supreme Court n Thrty-Seven Photographs. 3 The Second Crcut went too far to renterpret sectons 2709(c).and 35(b). They are 4 facally unconsttutonal and ther consttutonal nfrmtes cannot be cured by a complex court- \ r ' 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. 2709(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. 2709(c). Wthout any artculable statutory gudance cabnng ths executve dscreton the statute cannot survve consttutonal scrutny. 6 n Shuttlesworth v. Cty o/brmngham 394 U.S. 47 (969) the Supreme Court 7 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" 20 to deny a permt the Court found the ordnance unconsttutonal notng that an ordnance that 2 ''makes the peaceful enjoyment of freedoms whch the Consttuton guarantees contngent upon the 22 uncontrolled wll of an offcal... s an unconsttutonal censorshp or pror restrant upon the 23 enjoyment of those freedoms." d. at Any statutory lcensng scheme must necessarly lmt the dscreton of the censor to 25 "narrow objectve and defnte standards" to protect the ndscrmnate and unlawful 26 deprvaton of Frst Amendment rghts. d. at 50. As 'the Supreme Court observed n Forsyth 27 County Georga v. The Natonalst Movement 505 U.s (992) "f the permt scheme 2 nvolves the apprasal of facts the exercse of judgment and the fonnaton of an opnon by the Case No. 5 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 2 freedoms s too great to be permtted."(ctatons omtted). 3. The non-dsclosure provson of the NSL statute lacks the "narrow objectve and defnte 4 standards" necessary to lmt the exercse of executve authorty. Rather t authorzes an FB 5. offcal to prohbt dsclosure of an NSL f that offcal beleves-under hs or her own crtera- 6 that dsclosure "may result" n for example "danger'; to natonal securty or nterfere wth a 7 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 9 and the Nnth Crcut. n Cty a/lakewood 46 U.S. at 769 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 2 not n the publc nterest' when denyng a permt applcaton." n Cty a/seattle 550 F.3d at 03 3 the Nnth 'Crcut recently confrmed that an "open-ended standard combned wth the absence of 4 a requrement that offcals artculate ther reasons or an admnstratve-judcal revew process 5 vests the Seattle Chef of Polce wth sweepng authorty... The Frst Amendment prohbts 6 placng such unfettered dscreton n the hands of lcensng offcals.". 7 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 9 case-by-case bass. Cty a/lakewood 46 U.S. at 749. Ths problem s especally serous n the 20 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 57 U.S (996). See also Marbury v. Madson Cranch 37 5 U.S L.Ed. Case No. 6 MPA N SUPPORT OF PETTON TO SET ASDE NATONAL SECURTY LETTER AND NONDSCLOSURE REOUREMENT

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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. 2709(b)() (b)(2). 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. 2709(b) (994). 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 529 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.2. the statute's falure to adhere to the Freedman procedural safeguards means that t s not narrowly talored. Mukasey 549 F.3d at ("n the absence of Government-ntated judcal revew subsecton 35(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. 35(b)(3). 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 Case No. 9 MP A N SUPPORT OF PETTON TO SET ASDE NATONAL SECURTY LETTER AND NONDSCLOSURE REOUREMENT

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26 r 2 f f r nvestgate U.S. persons "solely on the bass of actvtes protected by the frst amendment" U.S.C. 2709(b)() (b)(2) 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 at the hand of an ntolerant socety." Mcntyre v. Oho Electons Comm 'n 54 U.S (995) (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 357 U.S (95) (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. 525 U.S (999). The Supreme Court has appled such heghtened scrutny n a varety of context n whch anonymous assocaton and expresson has been mplcated. n Mcntyre 54 U.S. at 347 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 357 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 -----_ 2 MP A N SUPPORT OF PETTON TO SET ASDE NATONAL SECURTY LETfER AND NONDSCLOSURE REOUREMENT

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28 " \ provsons of a statute n the face of the unconsttutonalty of partcular elements of t when "t s evdent that the legslature would not have enacted those provsons whch are wthn ts power ndependently of that whch s not." Buckley v. Valeo 4 U.S. 0 (976) (ctaton omtted). Here there can be only one concluson: the provsons are not severable. Not only dd Congress enact the two sets of provsons together Congress amended the non-dsclosure provsons n an attempt to save the NSL statute (leadng to ts present fonn) after the ntal dstrct court decsons.n the Mukasey ltgaton held that the non-dsclosure provsons were unconsttutonal. 6 See Mukasey 549 F.3d at And as Pettoners have shown the amended non-dsclosure provsons were crafted to make t unconsttutonally easy for the FB to gag provders and unconsttutonally hard for provdets to challenge the gag. Congress's attempt to preserve the FB's ablty to protect the secrecy ofnsls after multple judcal nvaldatons'makes ts ntent clear especally when Congress dd not nclude a severablty clause. Congress could not have ntended the substantve NSL provsons to operate absent the 'non-dsclosure provsons. Wthout some secrecy provson a provder could mmedately dsclose the fact of the NSL's ssuance to the targeted ndvdual or ndvduals. Even for demands for nfonnaton from provders that rase no natonal securty concerns the Stored Communcatons Act authorzes the'government to obtan judcal non-dsclosure orders. U.S.C. 2705(a) (process for delay of notfcaton of exstence of government demand); d. 2705(b) (process for precluson of notce to subject of:government demand). Absent the nondsclosure provsons however the NSL statute contans no vehcle that can preserve a more narrowly talored degree of secrecy consstent wth the Frst Amendment. Accordngly the substantve NSL provsons cannot be severed from the non-dsclosure provsons. 6 Doe v. Ashcroft 334 F.Supp.2d (S.D.N.Y.2004) vacated by Doe v. Gonzales 449 F.3d 45 (2nd. Cr. May ) (fndng substantve provsons unconsttutonal. The case was vacated because the Reauthorzaton Act of 2006 made changes to the statute and the case was remanded to address the frst amendment ssues presented n the revsed statute); 'd. at (fndng non-dsclosure provson unconsttutonal); Doe v. Gonzales 36 F.Supp.2d (D.Conn.2005) (fndng probablty of success that non-dsclosure provson was unconsttutonal and prelmnarly enjonng enforcement). Case No. 23 MP A N SUPPORT OF PETTON TO SET ASDE NATONAL SECURTY LETTER AND NONDSCLOSURE REOUREMENT

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