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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -----------------------------------x NICHOLAS MERRILL, Plaintiff, 14-CV-9763 (VM) - against - DECISION AND ORDER LORETTA E. LYNCH, in her official Capacity as Attorney General of The United States, and JAMES B. COMEY, in his official Capacity as Director of the Federal Bureau of Investigation, Defendants. -----------------------------------x VICTOR MARRERO, United States District Judge. Plaintiff Nicholas Merrill ("Merrill") brought suit seeking injunctive relief against defendants Loretta E. Lynch, in her official capacity as Attorney General of the United States, and James B. Corney, in his official capacity as Director of the Federal Bureau of Investigation (collectively, "Defendants" or "the Government") . 1 (Dkt. No. 1 ("Complaint" or "Compl. ") . ) Now before the Court is Merrill's motion for summary judgment, made pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Rule 1 The Court notes that, at the time Merrill initiated this litigation, Eric Holder, Jr. served as the Attorney General of the United States, and in that official capacity, was a named defendant. Pursuant to Federal Rule of Civil Procedure 25(d), the Court substitutes Loretta E. Lynch for Eric Holder, Jr. 56") / seeking that an order to lift a non-disclosure requirement imposed by a National Security Letter ( "NSL") from the Federal Bureau of Investigation (the "FBI") (Dkt. Nos. 16, 17.) The Government opposes Merrill's summary judgment motion, and also moves to dismiss the Complaint or for summary judgment. (Dkt. Nos. 24, 25.) I. BACKGROUND2 In 2004, Nicholas Merrill was the owner and operator of Calyx Internet Access ("Calyx") , a now-defunct company that provided a number of internet services to its clients, including an interface for maintaining their own websites, 2 The factual summary presented herein derives from the following documents: Complaint, filed Dec. 11, 2014, Dkt. No. l; Plaintiff's Memorandum of Law in Support of its Motion for Summary Judgment, dated Mar. 10, 2015, Dkt. No. 16 ("Pl. Mem."); Plaintiff's Rule 56.l Statement, dated Mar. 10, 2015, Dkt. No. 18; the Declaration of Nicholas Merrill in Support of Plaintiff's Motion for Summary Judgment, dated Mar. 10, 2015, Dkt. No. 19 ("Merrill Deel."); the Declaration of Jonathan Manes in Support of Plaintiff's Motion for Summary Judgment, dated Mar. 10, 2015, Dkt. No. 20 ("Manes Deel."); Government's Memorandum of Law in Support of the Government's Motion to Dismiss or for Summary Judgment, and in Opposition to Plaintiff's Motion for Summary Judgment, dated Apr. 24, 2015, Dkt. No. 25 ("Gov't Mem."); the Declaration of Gary Perdue in Support of the Government Motion, dated Apr. 23, 2015, Dkt. No. 30 ("Perdue Deel."); the Government's Rule 56.1 Counter-Statement, dated Apr. 24, 2015, Dkt. No. 26; Reply Memorandum of Law in Further Support of Plaintiff's Motion for Summary Judgment and in Opposition to Government Motion to Dismiss or for Summary Judgment, dated June 11, 2015, Dkt. No. 36 ("Pl. Reply Mem."); Plaintiff's Rule 56.l Counter-Statement, dated June 11, 2015, Dkt. No. 37; the Second Declaration of Jonathan Manes in Support of Plaintiff's Motion for Summary Judgment and in Opposition to Government Motion to Dismiss or for Summary Judgment, dated June 11, 2015, Dkt. No. 38 ("Second Manes Deel.") ; Reply Memorandum of Law in Further Support of the Government's Motion to Dismiss or for Summary Judgment, and in Opposition to Plaintiff's Motion for Summary Judgment, dated July 31, 2015, Dkt. No. 42 ("Gov't Reply Mem."). Except where specifically referenced, no further citation to these sources will be made. - 2 - electronic file storage, and email accounts. In February 2004, an FBI agent served Merrill with an NSL (the "2004 NSL") I which was accompanied by an attachment (the "Attachment") listing the types of records the FBI sought from Calyx. Under the USA PATRIOT Act, 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, Pub. L. No. 114-23, 129 Stat. 268) / the FBI can issue NSLs, a type of administrative subpoena requesting "subscriber information and toll billing records information, or electronic communication transactional records" from a wire or electronic service provider. 18 u.s.c. § 2709 (a) . Initially, the 2004 NSL prohibited Merrill from disclosing: (1) that he was the recipient of an NSL, (2) the identity of the target of the underlying investigation, and (3) the contents of both the 2004 NSL and the Attachment. The Court first examined the 2004 NSL in Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004) ("Doe I"). In Doe I, the Court found an earlier version of 18 U.S.C. Section 2709 ("Section 2709"), which provides the statutory 3 The relevant statutory provisions regarding NSLs were amended by The USA Patriot Improvement and Reauthorization Act of 2005, §§ 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 - authorization for the FBI to issue NSLs, to be unconstitutional on its face. Further, the Court found the Section 2709 nondisclosure requirement unconstitutional under the First Amendment as an unjustified prior restraint and content-based restriction on speech. The Government appealed to the United States Court of Appeals for the Second Circuit, and while the appeal was pending, Congress amended Section 2709 to include a requirement that, to prohibit disclosure of an NSL, the FBI must certify that disclosure may result in an enumerated harm i.e., "a danger to the national security of the United States, interference with a criminal, counterterrorism, or counterintelligence investigation, interference with diplomatic relations, or danger to the life or physical safety of any person." 18 u.s.c. § 2709(c) (1). Congress also enacted a section providing for judicial review of an NSL request or related non-disclosure requirement. See 18 U.S.C. § 3511 ("Section 3511"). The Second Circuit remanded to this Court for further consideration in light of these amendments. See Doe v. Gonzales, 449 F.3d 415 (2d Cir. 2006). On remand, in Doe v. Gonzales, 500 F. Supp. 2d 379 (S.D.N.Y. 2007) ("Doe II"), the Court again found Sections - 4 - 2709 (c) and 3511 (b) unconstitutional on their face. The Court ruled that the nondisclosure requirement violated the First Amendment because it was not narrowly tailored in scope or duration. Further, the Court found the judicial review provision violated the constitutional principles of checks and balances, as well as separation of powers. The Government appealed Doe II, and the Second Circuit affirmed in part and reversed in part. See John Doe v. Mukasey, 549 F.3d 861 (2d Cir. 2008). The Second Circuit invalidated two primary aspects of Sections 2709 and 3511: (1) that FBI certification of certain risks is entitled to a conclusive presumption (absent bad faith) by the courts; and (2) the failure to provide for Government-initiated judicial review. See id. at 884. The Circuit Court construed the remaining parts of Sections 2709 and 3511 to provide certain procedural safeguards (as discussed infra), and held that, with those safeguards, those statutory sections were constitutional. See id. at 883-85. The Second Circuit then remanded to this Court to determine whether, in the light of the Circuit Court's reading of the statute and the procedural guidance it provided, the non-disclosure requirement was constitutional as-applied to the NSL issued to Merrill. On remand, in Doe - 5 - v. Holder, 665 F. Supp. 2d 426 (S.D.N.Y. 2009) ("Doe III"), the Court found the Mukasey standard satisfied. The Court held that a "good reason" existed to believe that "disclosure may result in a harm related to an authorized ongoing investigation to protect against international terrorism or clandestine intelligence activities," and that the "link between disclosure and the risk of harm [was] substantial." Id. at 432. Following Doe III, Merrill moved for partial reconsideration of Doe III as it applied to the Attachment. See 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 part, ordering certain information disclosed. The Court found that two categories of material contained in the Attachment should be disclosed: (1) material within the scope of what the NSL statute identifies as permissible for the FBI to obtain through the use of NSLs, and (2) material that the FBI has publicly acknowledged it has previously requested by means of NSLs. See id. at 316. The Court was "not persuaded that disclosure of these two categories of information would raise a substantial risk that any of the statutorily enumerated harms would occur." Id. As to the rest of the Attachment, the Court found that the Government - 6 - had demonstrated a "reasonable likelihood that disclosure of the Attachment in its entirety could inform current targets of law enforcement investigations, including the particular target of the Government's ongoing inquiry in this action, as well as, potentially future targets, as to certain types of records and other materials the Government seeks through national security investigations employing NSLs." Id. at 317. In so finding, the Court noted that otherwise innocuous bits and pieces of data, when pieced together, could inform current and potentially future targets of the investigation as to the types of records and other materials sought by the government. After the Court decided Doe IV, Merrill and the Government reached an agreement under which Merrill could identify himself as the recipient of the NSL.