Escolar Documentos
Profissional Documentos
Cultura Documentos
-----------------------------------x
NICHOLAS MERRILL,
Plaintiff,
14-CV-9763
(VM)
-----------------------------------x
VICTOR MARRERO, United States District Judge.
Plaintiff
seeking
Lynch,
Nicholas
injunctive
Merrill
relief
("Merrill")
against
brought
defendants
suit
Loretta
E.
Director
of
(collectively,
1
Rule
56
or
motion
of
Bureau
of
Investigation
("Complaint"
Merrill's
Federal
the
the
"Compl. ") . )
for
summary
Federal
Rules
Now
before
judgment,
of
Civil
made
the
Court
is
pursuant
to
Procedure
("Rule
56") /
seeking
requirement
that
an
order
to
lift
non-disclosure
16,
17.)
The
Government
opposes
Merrill's
( "NSL")
(Dkt.
summary
In 2004,
BACKGROUND2
("Calyx") ,
now-defunct company
- 2 -
electronic
2004,
NSL")
file
storage,
and email
accounts.
In February
which
"Attachment")
from Calyx.
by
accompanied
an
(the
"2004
attachment
(the
Pub.
L.
No.
107-56
505(a), 115 Stat. 272, 365 (2001) , 3 in effect then (and now
under the USA FREEDOM Act of 2015,
Stat.
the
268) /
administrative
and
electronic
records
transactional
service
Initially,
can
records"
18
type
of
"subscriber information
information,
provider.
114-23, 129
NSLs,
issue
subpoena requesting
billing
toll
communication
(1)
FBI
Pub. L. No.
or
from
electronic
wire
u.s.c.
or
2709 (a) .
(2)
the identity
and (3)
the
Court
first
examined
the
2004
NSL
I,
the
Section 2709
Court
found
an
in
Doe
v.
("Doe I"). In
earlier version of
18
U.S.C.
115,
116(a), Pub. L. No. 109-177, 120 Stat. 192, 211-14 (Mar. 9, 2006) ("the
Reauthorization Act"), and the USA Patriot Act Additional Reauthorizing
Amendments Act of 2006, 4(b), Pub. L. No. 109-178, 120 Stat. 278, 280
(Mar. 9, 2006) ("Additional Reauthorization Act") .
- 3 -
for
authorization
Further,
Section
requirement
2709
nondisclosure
NSLs,
issue
to
FBI
the
to
be
content-based
appealed
to
the
Second Circuit,
amended
restriction
United
on
States
Court
2709
to
include
the
interference
of
The
Government
Appeals
for
Section
danger
speech.
requirement
security
of
criminal,
counterintelligence
investigation,
diplomatic
relations,
or danger
safety of
any person."
that,
the
i.e.,
United
to
interference
the
life
or
with
or physical
2709(c) (1).
"a
States,
counterterrorism,
to
u.s.c.
18
Congress
in an enumerated harm
national
with
the
Congress
See 18
See
Doe
v.
Gonzales,
449
F.3d
415
(2d
Cir.
2006).
On remand,
(S.D.N.Y.
2007)
in Doe v.
Gonzales,
("Doe II"),
500
F.
Supp.
2d 379
2709 (c)
and
3511 (b)
unconstitutional
on
their
face.
The
Amendment
because
scope or duration.
it
was
Further,
not
narrowly
the Court
tailored
found the
in
judicial
in part
and
Mukasey,
reversed
in part.
(2d Cir.
2008).
See
John Doe
v.
(2)
the
judicial
failure
review.
to
See
provide
at
id.
for
by the courts;
Government-initiated
884.
The
Circuit
Court
held
that,
with
those
safeguards,
those
statutory
Second
determine
reading
provided,
Circuit
whether,
of
the
in
then
the
statute
remanded
light
and
the
of
to
the
this
Court
Circuit
procedural
to
Court's
guidance
it
in Doe
("Doe III"),
that
"good
existed
reason"
to
The Court
that
believe
investigation
to
protect
against
international
and the
risk of
harm
[was]
Doe
III,
Merrill
moved
for
partial
Doe
v.
Holder,
703
F.
Supp.
2d
313
(S.D.N.Y.
2010)
("Doe IV"). The Court granted the motion in part and denied
it
in
Court
part,
ordering
found that
certain
information
disclosed.
The
Id.
As
to the
had demonstrated a
"reasonable
of
in
the
Attachment
targets
of
law
entirety
enforcement
particular target
this action,
its
of
the
inform
investigations,
Government's
current
including
ongoing
the
inquiry in
as to
through
NSLs."
Id.
otherwise
at
national
security
317.
so
In
investigations
finding,
the
Court
together,
inform
current
and
employing
noted
that
when pieced
potentially
future
the
Court
decided
Doe
IV,
Merrill
and
the
himself
Ashcroft,
No.
as
the
04-cv-2614
recipient
(S.D.N.Y.),
of
the
Dkt.
NSL.
No.
(Doe
204
("July
reached
an
agreement
that
target,
but
he
could
not
Merrill
could
v.
the
freely
the
Attachment
those
disclosure
portions
in
Doe
IV.
of
the
(Doe
Attachment
v.
- 7 -
Ashcroft,
identified
No.
for
04-cv-2614
(S.D.N.Y.),
Dkt.
No.
227
("April 15,
2014
Stip.
and Order
Mod. J.").)
Shortly
filed
the
Complaint
Merrill
filed
allowed
NSL
requirements
Mar.
9,
on
thereafter,
against
his
the
annually.
June 1,
to
18
At
Section
the
time
3511(b) (3)
35ll(b) (3)
As such,
Merrill
non-disclosure
challenge
U.S.C.
2015).
2014,
11,
Government.
action,
instant
recipients
2006 -
December
(in effect
Merrill's Complaint
and its progeny.
continue
to
prohibit
disclosure
of
the
redacted
Attachment is a
speech"
prohibiting
discussion
order
by
is
the
First
not
Amendment;
justified
under
that
of
disclosure
may
result
in an
(2)
the
that
Section
terrorism
or
the
3511
"good reason"
to
enumerated harm
that
prohibited
nondisclosure
order
( 1)
clandestine
against
intelligence
- 8 -
activities;
once
an
himself,
and
NSL
(3)
that,
recipient
under
has
Sections
been
2709
permitted
and
to
3511,
identify
the outcome of the NSL, then the FBI cannot continue a nondisclosure
Merrill
order
argues
contribute
regards
that
to
"electronic
as
he
public
other
seeks
of
the
in
order
to
the
types
of
that
the
disclosure
discussion
communications
aspects
as
to
transaction
records"
NSL.
Government
demonstrating a
not
has
"good reason"
satisfied
its
burden
of
pursuant
to
Sections
2709
and
3511.
Therefore,
the
and the
complaint or,
in
DISCUSSION
A. STANDARD OF REVIEW
Merrill
Rule
56,
has
and
moved
the
for
summary
Government
has
judgment,
cross-moved
pursuant
to
dismiss,
or
in
the
alternative
- 9 -
for
summary
to
("Rule
judgment,
pursuant
to Rule
56.
In considering a
motion
to dismiss,
exhibits
affidavits,
conjunction
York,
with
the
or
other
motion.
83-84
See
papers
Friedl
submitted
v.
City
of
in
New
included
in
the
Complaint,
the
Court
considers
the
R.
such a
but
Civ.
P.
motion
56(a).
"is not
The
role of
court
in ruling on
tried,
while
inferences
resolving
against
issue
of
the
Co.,
ambiguities
fact
burden of
exists
paucity
of
rational
and drawing
party."
804 F.2d 9,
the
evidence
moving
or
presented
11
Knight
(2d Cir.
proving
that
by
by
the
in favor of
- 10 -
issues
that
fact
to be
reasonable
v.
United
1986)
The
no genuine
reason
of
the
non-movant,
no
the non-moving
party.
3511.
The
Government
has
indicated
its
belief
that
at 2.)
[Mukasey] "
(Gov' t
Reply
[in Mukasey]
and adopts
(quoting H. Rep.
Circuit
disclosure
orders
open
were
less-exacting
scrutiny. 5
either
of
level
the
question
subject
See
scrutiny,
to
549
strict
F.3d
however,
whether
at
the
NSL
scrutiny
877-78.
Second
the
non-
or
Under
Circuit
- 11 -
disclosure
requirements
non-disclosure
initiate
if
an
individual
so
requirement
this
that,
(1)
second
limitation,
the
and
requests,
subject
See id.
Second
( 3)
(2)
the
that
at 878-83.
Circuit
(2)
to
As
indicated
requirements,
disclosure of receipt of
negative,
i.e.,
Id.
at
- 12 -
(absent bad
itself
that the
link between
as
to
stated that
the
the
third
"keyed
to
the
information
sought
by
an
investigation
the
Second
necessarily
authorized
requirement,
to
same
NSL,
standard
i.e.
protect
- 13 -
that
relevant
against
are
governs
to
an
international
Id.
at
875.
The sections of the USA FREEDOM Act amending Sections
2709 and 3511 incorporate portions of Mukasey's holding and
reasoning.
As
in earlier versions
of
the
statute,
under
statutorily
enumerated
reasons,
with
certification
( 1)
with
counterintelligence
criminal,
investigation;
(2)
counterterrorism,
or
interference
( 3)
with
2709
now
18 U.S.C.
also
provides
that
However,
NSL
or
u.s.c.
18
2709(d).
issue at hand,
of
procedure"
Section
(see
judicial
3511
Mukasey,
review of
includes
549
F.3d at
- 14 -
NSLs.
The
"reciprocal
879)
current
notice
providing
for
intent
18 U.S.C.
to challenge the
3511(b) (1) (A).
And
to the official's
(B)
(C)
(D)
18
u.s.c.
35ll(b) (3)
for
judicial
i.e.,
review
of
non-disclosure
7
The Government argues
amended Section] 2709 (c)
- 15 -
portions
of
the
Attachment
that
Merrill
is
to the
currently
The
Court
now
turns
to
whether
showing a
the
Government
has
to
enumerated
investigation
harm
to
related
protect
an
to
against
authorized
international
The
argues
disclosure
that
of
the
has
not
acknowledged
in
the
context
of
NSLs,
would
investigative
purposes,
and
could
lead
to
potential
that
constitute
Circuit
such
reasons
could,
"good"
reasons
for
stated in Mukasey,
in
some
disclosure.
circumstances,
As
the
Second
- 16 -
453
U.S.
380,
307
(1981)).
(quoting Haig v.
Similarly,
the
Second
New
York,
interests
107
F.3d
985,
parallel
some
of
998
the
and
corruption,
crime,
"combat ting
in
interest
(2d
Inc. v.
City
1997).
Such
Cir.
Section
2709
enumerated
the
national
interference
security
with
held,
courts
cannot,
United
States
counterterrorism,
criminal,
counterintelligence investigation.
Court
the
of
However,
consistent
or
or
as the Mukasey
with
the
First
Amendment,
simply accept
disclosure
would
interests.
implicate
and
create
risk
to
that
these
the
Government
has
not
demonstrated
good
with
some
basis
disclosure
and
to
assure
itself
of
risk
harm
that
the
link
between
is
substantial.
The
the
information
contained
in
the
Attachment
that
is
in
already
the
precise
form,
disclosed
by
government
government
documents
provide
it
For
matters
that
reason,
that
the
these
Court
other
is
not
documents
persuaded
were
not
target
of
national
security
investigation
in
by
various
government
divisions
discussing
the
The
following
customer
or
subscriber
account
information for each account registered to or
associated with sample@sample.com for the time
period [date range] :
1. subscriber names, user names, screen names, or other
identities;
2. mailing addresses,
email
addresses,
information;
3. local
and
long
distance
telephone
connection
records, or records of session times and durations;
4. length of service (including start date)
of service utilized;
and types
information
this
substantially similar,
sample
attachment
reveals
is
to the
that
if
the parts of
could
their
change
behavior
to
potential
evade
law
information
indicates
that
through
the
NSLs.
FBI
can
sample
The
seek
account
attachment
information
name,
and
source
and
destination
Internet
Protocol
categories
account
of
the Attachment
information,"
and
at
"Internet
issue
i.e.
Protocol
(IP)
Nor would it be a
leap
i.e.,
the
account"
and
"Uniform resource
locator
(URL)
address
Likewise,
the sample
date)
to
an
account] , "
which
is
substantially
General
to
which was
Senate
Report.
Senator
Patrick
Leahy
later reprinted as
In
that
letter,
(the
"Leahy
an appendix
the
to a
Deputy Attorney
General states:
NSLs can be served on Internet Service Providers to
obtain information such as subscriber name, screen
name or other on-line names,
records identifying
addresses of electronic mail sent to and from the
account,
records
relating
to
merchandise
orders/ shipping
information,
and
so
on
but
not
including message content and/or subject fields.
(See Manes Deel. Ex. J). Though
public
Rep.
seeks
information published
No.
108-40,
89-90
to
prevent
Attachment
sought
this
in a
(2003),
Merrill
communication
Senate
Report,
is
see
now
S.
"Records
disclosing
relating
to
that
the
merchandise
substantially disclosed
in
correspondence
by
the
Justice
Department to Congress,
disclosure
of
substantially the
same
information in
greater
information
they
extent
have
that
already
would
they
available
in
from
a
the
publicly-
Similarly,
reason
to
subscriber
and
prevent
disclosure
information"
related
generally
Government
in
subscriber
known
that
claims
of
the
the
there
phrase
category
information."
the
FBI
can
is
"and related
"Subscriber
However,
collect
good
it
name
is
"subscriber
"subscriber information"
in granting the
2709 (a)
("A
wire
or
electronic
communication
service
The Court notes that the Leahy Letter does not reveal the "180 day"
time period in which the FBI sought order and shipping information from
Merrill. The Perdue Declaration argues that if this 180-day period is
revealed, then "potential terrorists" could manipulate orders to avoid
having those orders fall within the 180 day period. (Perdue Deel. ,
64.) The Court is not persuaded. A "potential terrorist" does not know
when, if ever, the FBI will issue a related NSL. The 180-day period
clearly relates to the date Merrill received the NSL, and it is hard to
imagine any person outside of the FBI having the knowledge about when
an NSL might be issued, and changing their behavior as a result.
8
- 22 -
comply
shall
provider
.");
information.
(Memorandum Opinion
see
for
for
request
also
the
Manes
FBI' s
length,
at
discusses,
that
with
Deel.
General
Ex.
at
Counsel
3-5
Office
"subscriber
term
the
subscriber
good
"subscriber"
2709
non-disclosure
justify
to
the
of
that word;
word
Section
Perhaps
the
tenuous
connection
of
the
harms,
the
needed
for
Government,
during
certain
categories
of
in particular,
provider
(ISP),"
"[a]ll
of
addresses
records
the
FBI
"Internet service
associated
with
course
seeks
[the]
the
when,
during
the
course
of
these categories
litigation,
it
was
23
statutorily
required
justifying
argument
to
provide
lends
non-disclosure,
that,
for
enforced against
years,
the
him was
the
FBI
certification
credence
to
Merrill's
non-disclosure
requirement
could
not
be
many
of
the
remaining
redactions
in
the
Merrill
prevent
requested
though
far.
For example,
from
disclosing
"Subscriber day/evening
the
"telephone
Government
number"
persuaded that
can
there
now
be
is a
the Government
the
that
telephone
concedes
disclosed.
that
The
"good reason"
seeks
to
Attachment
numbers"
the
Court
even
phrase
is
to believe
not
that
that
the
especially if
Government
can
it
use
is already publicly
NSLs
to
obtain
10 Also
interestingly, the Perdue Declaration argues that the category
of "[a] ny other information which [the recipient] consider [s] to be an
electronic communication transactional record" should not be disclosed.
(See Perdue Deel. , 70.) However, this category was not redacted by the
Government in its submissions or even in the Perdue Declaration.
- 24 -
As
another
character
believes
of
example
these
that
of
the
extreme
redactions,
while
the
the
public
Government
can
know
apparently
that
it
seeks
can
Gov't
seek
Mem.
Government's
"addresses"
redactions
investigation,
In
Attach.)
even
and
any
alone,
alphabet,
that
potential
one,
on
the
target
of
an
would
almost
"telephone
"telephone numbers."
numbers."
based
event,
dim-witted
"telephone
could
numberll"
only
be
the
force
of
the
Government's
argument
information
that
in
disclosure
the
of
the
Attachment
can
claim
to
"good
linked
to
third example,
disclosure
of
"associated
with
the
phrases
the
"related
account"
for
to
certain
to prevent
account"
and
categories
of
there
is
no
need
for
-
25
non-disclosure
-
of
the
main
an
"address"
and
"billing."
The
information
Court
is
not
fact
account;
that
these
obviously,
requests
the
were
keyed to a
Government
uses
particular
NSLs
to
obtain
~,
I at 5
Additionally,
11
Government
seeks
to
keep
some
(i.e.,
"radius log"
information,
information
which is
are no longer
should remain
redacted because
it
would
administration.
future
11
Similarly,
the publicly-available March 2007 Report from the
Department of Justice Office of the Inspector General indicated that
electronic
communication
transactional
records
include
"e-mail
addresses associated with the account;
screen names; and billing
records and method of payment." 11 (Manes Deel. Ex. Kat 10.)
26 -
the
risk
argues,
log
of
harm
it is
"substantial."
"no secret"
information,
Furthermore,
as
Merrill
and the
other
information identified in
(See Pl.
Mem.
at
of
good
national
reason
to
security
believe
that
investigations
potential
will
change
or that disclosure of
substantial
decisions
relating
to
the
NSL
issued
to
Merrill.
to
including
keep
the
confidential.
ongoing,
of
entire
identity
In Doe IV,
of
showing a
NSL
letter
and
the
recipient
good
Attachment,
and
target,
Attachment
scope
the
burden of
could
be
information
disclosed:
that
the
both
NSL
material
statute
within
identifies
the
as
27 -
then,
the
Government's
investigation
has
been
this
keeping
litigation,
the
protecting
relevant
the
Attachment
law
asserted
future
Government
confidential
enforcement
to
or
is
found
reason."
such
solely
on
sensitive
information
potential
national
justification
in
based
interest
to
at 8 n.
in Doe IV,
However,
the Court
In Doe IV,
Court
demonstrated
that
"the
Government
has
the
"good
is
security
constitute
6.)
that
the
a
entirety
could
inform
enforcement investigations,
current
targets
of
law
potentially,
future targets."
703 F.
Supp.
2d at 317.
not
the
subjects
of
- 28 -
an
'ongoing'
underlying
investigation."
point,
Reply
referred
to
Mem.
in
at
IV
Doe
too
assumes
Government
the
targets"
(Gov' t
n.
6.)
The
much.
were,
more
On
that
"future
accurately,
since
investigation
prohibits
as discussed supra,
has
closed,
disclosure
investigation's
receipt
Merrill's
Government
the
and
many,
by
other
credulity
government
not
longer
or
all,
the
of
the
agencies.
future
that
no
identity
if
the
NSL
the
Merrill's
of
target,
of
circumstances have
Therefore,
targets
of
it
other
(which,
12 The Court is not holding that there are no circumstances in which the
Government might be able to provide a "good reason" for non-disclosure,
even when that reason is keyed to authorized investigations to protect
against international terrorism or clandestine intelligence activities,
generally, rather than to a particular ongoing investigation. Instead,
based on the facts and submissions before it, the Government has not
satisfied its burden that there is a good reason to expect that
disclosure here
with these particular factual circumstances
raises a substantial risk that any of the statutorily enumerated harms
would occur.
- 29 -
for
disclosed
made
See,
CIA,
involve
586
the
F.3d 171
Freedom
classified
specific
v.
if
of
agency
(2d Cir.
2009).
Information Act
government
at
an
~,
or
Wilson
( "FOIA")
information,
official
issues
requests
of
related
to
officials
who
were
under
contractual
however,
classified
justifications
for
information.
keeping
the
The
Attachment
Government's
confidential
camera
Perdue
Declaration.
seeking disclosure
seeks
disclosure
of
only
However,
the material
of
the
Merrill
is
contained therein.
Attachment,
which
is
not
He
not
classified.
Furthermore,
to
keep
information
significant
reasons
differently
from
confidential.
for
treating
classified
As
there
such,
the
material
information
that
at
is
are
hand
normally
already
been
at
agency
publicly
disclosed
by
any
government
it would
lead to the result that citizens who have not received such
an NSL request can speak about information that is publicly
known
individuals
who
have
received
such NSL
but
requests
the very
and are
affected
by
publicly
known
law
enforcement
met
its
disclosure
burden
here,
of
could
showing
Merrill
good
ever
reason
overcome
for
non-
such
or a
world
in which
no
threat
FBI,
of
terrorism
acting on its
own
shroud
of
democratic
secrecy
concepts
in
perpetuity
and do
not
fit
antithetical
to
comfortably with
the
secrecy
could
"serve
as
cover
for
possible
good
Attachment,
reason
pursuant
for
First
that
continued non-disclosure
to Section 3511,
consider Merrill's
continued non-disclosure
his
finds
Amendment
here
rights
the
that
the
the
other arguments
constitutes
and
of
that
violation
Government
of
has
32 -
instant
732
case. i 4
F.3d 131,
See
Kreisberg
138
may be
resolved
reach
v.
Heal thBridge
(2d Cir.
2013)
other
grounds,
on
("When,
as here,
courts
to
question
constitutional
Mgmt. ,
may
LLC,
case
decline
'avoid
to
deciding
in light of the
pending appeal,
or for
this
to
give
Court,
appropriate
the
or
confidentiality
of
action,
for
Government
the
relief
its
judgment
stay enforcement of
Court
it
any
the
of
may
90
days.
opportunity
Appeals
seek
information
The
for
to
stay is
to
whatever
maintain
implicated
move
by
the
the
Court's ruling.
For
opinion
Attachment
those
same
those
reasons,
sections
are
portions
revealing
redacted
in
the
of
the
the
contents
public
filing
Court's
of
of
the
this
As a result, the Court need not reach whether strict scrutiny applies
to Merrill's claims. The Second Circuit found the procedural safeguards
applied here are required under either strict scrutiny or a less
exacting scrutiny. See Mukasey, 549 F.3d at 879, 882.
- 33 -
and Order
event
requiring disclosure
that
Attachment
appellate
will
be
this
is
not
review,
filed.
of
the
ruling
requiring
altered
in
an
See
the
unredacted
New
York
Attachment.
disclosure
course
version
Times
Co.
of
of
v.
In
of
the
the
any
further
this
opinion
U.S.
Dep't
of
ORDER
it is hereby
16)
of
Plaintiff
Nicholas
Merrill
is
(Dkt. No.
it
is
Complaint
or
Government
is
GRANTED;
and
further
for
ORDERED
that
summary
judgment
DENIED;
the
motion
(Dkt.
to
No.
dismiss
24)
of
the
the
and it is further
ORDERED
that
the
Clerk
of
Court
shall
file
the
accordingly
that
but
stay
enforcement
of
if no appeal is filed,
- 34 -
the
judgment
pending
summary
judgment
(Dkt.
No.
16)
and
the
motion
to
Dated:
/~
U.S.D.J.
35 -