DOCSLIB.ORG

Decision and Order, in Order to Preserve the Government's

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Decision and Order, in Order to Preserve the Government's Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 1 of 35 UNITED STATES DISTRICT COURT SOUT~ DISTRICT OF N'ZW YORK -----------------------------------x NICHOLAS MERR!l1L, Plaintiff, 14-CV-9763 (VM) - against - DECISION AND ORD!:R 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 O:i.rector of the Federal Bureau of Investigation (collectively, "Defendants• or "the Government").> (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, t:ric Holder, Jc sexved as the Attorney G<11neral of the United St;ates, and in that official (.;apacity, was a naimed defendant. ?ursuant. to Federal Rule of civil Procedure 25 (d), the Court substitutes t.oretta E. t.ynch for Eric Holder, Jr. Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 2 of 35 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. BACKGROUND' In 2004, Nicholas Merril 1 was the owner and operator of Calyx Internet Access ("Calyx" l , a now-defunct company that provided a number of internet services to its clients, including an interface for maintaining their own websites, 2 The tactual uurnmary presented herein derives from the following documents: Complaint, tiled Dec. 11, 2011, 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."l; PlaintiH'e Rule 56.: Statement, dated Mar. 10, 2015, Dl<t, No. 16; the Declaration of Nicholas Merrill in Support of Plaintiff's Motion for Summary Judgment, dated Mar. 10, 2015, Dkt. No. l.9 {"Merrill Deel.•); the Declaration o! Jonathan Manes i.n Support of Plaintiff• s Motion for Summary Judgrr.ent, dated Mar. 10. 2015, Dkt. No. 20 ("'1'1.nee Deel.''); Government's Memorandum of Law in Support of the Goverfl1Tl<!nt • s Motion to Dismiss or for suminary Judgment, and in Oppooition to Plaintiff• u Motion for Summary Judgment, dated Apr, 24, 2015, Dkt. No. 25 ("Gev'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.l counter-Statement, dated Apr. 24, 2015, Ox.it. No. 26; Rep:!.y Memorandum of Law in l"Urther Support of Plaintiff's Motion for Su!Mlllry Judgment and in Opposition to Government Motion to DismiaH or for Summary Judgment, dated June ll, 2015, Okt. No. 36 (•P:. Reply Mem."J; Plaintitt's Rule S6.l Counter-Statement, dated June 11, 2015, Dkt. No. 37; the second Declaration of Jonathan Man,11 in Support of Pla.intiff' s Motion for Summary Judgment and in Oppoait;ion to Government Motion to Dismiso or for summary Judgment, dated June 11, 201~, Okt. No. lB (•second Manes Deel.") ; Reply Memorandum ot l.aw in Further Support of the Governtnent' B Motion to Dismiss or for Summary Judgment, and in Opposition to Plaintiff' II Motion for Su1nm4ry Judgment, dated July 31, 2015, Dkt. No. 42 ("Gov•t Reply /'lem."), Except where specifically referenced, no further citation to these so~rcea will be made. - 2 - Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 3 of 35 electronic file storage, and email accounts. In February 2004, an FBI agent served Merrill with an NSL (the "2004 NSL"), 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 §SOS(al, 115 Stat. 272, 365 (2001),> 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. u.s.c. s 2709 (a). Initially, the 2004 NSL prohibited Merrill from disclosing: (l) 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 ex01mined the 2004 NSL in Doe v. AshcrofJ::, 334 F. Supp. 2d 471 (S.D.N.Y. 2004) ("Doe I"). In Doe l, the Court found an earlier version of 18 u. s. c. Section 2709 ("Section 2709"), which provides the statutory 1 'rhe relevant statutory provieionti regarding NSLa were amended by The USA Patriot Improvement and Reauthorization Act ot 2005, SS 115, ll.6(al, Pub. L. No. 10~-177, 120 Stat. 192, 211-14 (Mar. 9, 2006) ("the Reauthorization .i>.ct•), and the USJ\ racrioi; Act Addit;ional Reauthorizing .i>.mendment.s Act ot 2006, 5 4 (bl, Pub. L. No. 109-178, 120 Stat. 278, 280 (Mar. 9, 2006) ("Additional Reauthorization Act•). - 3 - Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 4 of 35 authorization for the FBI to issue NSLs, to be unconstitutional on its face, Further, the Court found the section 2'709 nondisclosure requirement unconstitutional under the First Amendment as an unjustified prior restraint and content-based restr.iction 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, counterterrcrism, 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 O.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.Jd 415 (2d Cir. 2006). On remand, in Doe v. Gonzales, 500 F. supp. 2d 379 (S.D.N.Y. 2007) ("P~.--I.!"), the Court again found Sections - 4 - Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 5 of 35 2709(c) and 35ll(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 ~' and the Second Circuit affirmed in part and reversed in part. See John Doe v. Mukasey, 54 9 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 infE!l), and held that, with those safeguards, those statutory sections were constitutional. See~ 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 - Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 6 of 35 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." ~at 432. Following Doe _.!_g, 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) ( "J::)C)e IV" l . 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. ~ee ~ 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.• ~ As to the rest of the Attachment, the Court found that the Government - 6 Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 7 of 35 had demonstrated a "reasonable likelihood that disclosure of the Attachment in ite 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.
Load more

Recommended publications
  • 11 I' ICI ;\~~;C.\L LY Llll'd
    Case 1:14-cv-09763-VM Document 15 Filed 03/20/15 Page 1 of 9 Case 1:14-cv-09763-VM Document 13 Filed 03/18/15 Page 1of9 . _- __ -::_: __ ·:.::.:::::::_ ·---------- UNITED STATES DISTRICT COURT JC ~UNY SOUTHERN DISTRICT OF NEW YORK l h \( l . '. " ...... 11 I' ICI ;\~~;C.\l LY llLl'D NICHOLAS MERRILL, r~~l #I! L!D ~Jr =·' Plaintiff, v. No. l 4-cv-9763 ERIC HOLDER, Jr., in his official capacity as Attorney General of the United States, and JAMES B. COMEY, in his official capacity as Director of the Federal Bureau oflnvestigation, Defendants. UNOPPOSED MOTION OF THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS AND 21 MEDIA ORGANIZATIONS FOR LEAVE TO FILE AMICI CURIAE BRIEF IN SUPPORT OF PLAINTIFF Michael D. Steger STEGER KRANE LLP 1601 Broadway, 12th Floor New York, NY 10019 (212) 736-6800 Counsel of record for amici curiae Bruce D. Brown Katie Townsend Hannah Bloch-Wehba REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS 1156 15th Street NW, Ste. 1250 Washington, D.C. 20005 (202) 795-9301 Of counsel Case 1:14-cv-09763-VM Document 15 Filed 03/20/15 Page 2 of 9 Case 1:14-cv-09763-VM Document 13 Filed 03/18/15 Page 2 of 9 The Reporters Committee for Freedom of the Press, American Society of News Editors, Association of Alternative Newsmedia, Association of American Publishers, Inc., Courthouse News Service, Dow Jones & Company, Inc., First Amendment Coalition, Investigative Reporting Workshop at American University, The McClatchy Company, Media Consortium, MediaNews Group, Inc., MPA - The Association of Magazine Media, National Press Photographers Association, Newspaper Association of America, The News Guild - CW A, Online News Association, Radio Television Digital News Association, Reuters America LLC, The Seattle Times Company, Student Press Law Center, Tully Center for Free Speech, and The Washington Post (collectively, "amici''), by and through the undersigned counsel, respectfully request permission to file the attached amici curiae brief in support of the motion for summary judgment filed by Plaintiff Nicholas Merrill ("Plaintiff') in the above-captioned action.
    [Show full text]
  • Or for Summary Judgment
    Case 1:14-cv-09763-VM Document 36 Filed 06/26/15 Page 1 of 32 UNITED STATES DISTRICT COURT SOUTHERN DIST~CT OF NEW YORK NICHOLAS MERRILL, Plaintiff, V. 14 CIV. 9763 (VM) ERJ;C HOLDER, Jr., in his official ~apacity as Attorney General of the United States, and JAME~ B. COMEY, in llls official capacity as Director of the Federal Bureau of Investigation, , Defendants. REPLY MEMORANDUM OF LAW IN SUPPORT OF NICHOLAS MERRILL'S MOTION FOR SUMMARY JUDGMENT' AND IN OPPOSITION TO THE GOVERNMENT'S MOTION TO DISMISS OR FOR SUMMARY JUDGMENT Jonathan'Manes, supervising attorney David A. Schulz, supervising attorney Benj amin Graham, law student intern Matthew Halgren, law student intern Nicholas Handler, law student intern Amanda Lynch; law student iptern MEDIA FREEDOM AND INFORMATION ACCESS CLINIC YALE LAW SCHOOL P.O. Box. 208215 New Haven, CT 06520 Tel: (203) 432-9387 -Fax: (203) 432-3034 [email protected] , Attorneys for plaintiffNicholas Merrill ------------- Case 1:14-cv-09763-VM Document 36 Filed 06/26/15 Page 2 of 32 TABLE OF CONTENTS PRELIJ\.1J:N"ARY STATEMENT .................................................................. '..................... : .............. 1 ARGU1v.I.ENT .................................. ;................................... :............. ;........ , ... :~ ....... }............ ·............... 2 . ... I. THE FIRST AMENDMENT DOES NOT ALLOW THE FBI TO INDEFINITELY SUPPRESS SPEECH ABOUT THE SCOPE OF ITS STATUTORY AUTHORITY. ..... 2 A. The Gag Order Supptesses Discussion of the Government's Interpretation of Its Statutory Authority, not Law Enforcement Techniques and Procedures ................ 3 1. The AttachmentReveals the' Scope of the Goverrim,ent's Claimed Authority, Not "Techniques and Pro·cedures." .................................. , ......... 3 2. The Breadth of the Gag Order Can Be Explained Only by a Concern With Maintaining a Secret Interpretation of the NSL Statute .....................
    [Show full text]
  • On October 26, 2001, Just 45 Days After the Devastating Terrorist
    Written Statement of Michael German, Senior Policy Counsel American Civil Liberties Union Washington Legislative Office On “The Permanent Provisions of the PATRIOT Act” Before the Subcommittee on Crime, Terrorism and Homeland Security House Committee on the Judiciary March 30, 2011 1 WASHINGTON LEGISLATIVE OFFICE 915 15th Street, NW Washington, D.C. 20005 (202) 544-1681 Fax (202) 546-0738 On October 26, 2001, amid the climate of fear and uncertainty that followed the terrorist attacks of September 11, 2001, President George W. Bush signed into law the USA Patriot Act and fundamentally altered the relationship Americans share with their government.1 This act betrayed the confidence the framers of the Constitution had that a government bounded by the law would be strong enough to defend the liberties they so bravely struggled to achieve. By expanding the government‟s authority to secretly search private records and monitor communications, often without any evidence of wrongdoing, the Patriot Act eroded our most basic right – the freedom from unwarranted government intrusion into our private lives – and thwarted constitutional checks and balances. Put very simply, under the Patriot Act the government now has the right to know what you‟re doing, but you have no right to know what it‟s doing. More than nine years after its implementation there is little evidence that the Patriot Act has been effective in making America more secure from terrorists. However, there are many unfortunate examples that the government abused these authorities in ways that both violate the rights of innocent people and squander precious security resources. Three Patriot Act-related surveillance provisions are scheduled to expire in May 2011, which will give the 112th Congress an opportunity to review and thoroughly evaluate all Patriot Act authorities – as well as all other post-9/11 domestic intelligence programs – and rescind, repeal or modify provisions that are unused, ineffective or prone to abuse.
    [Show full text]
  • Congressional Record United States Th of America PROCEEDINGS and DEBATES of the 112 CONGRESS, FIRST SESSION
    E PL UR UM IB N U U S Congressional Record United States th of America PROCEEDINGS AND DEBATES OF THE 112 CONGRESS, FIRST SESSION Vol. 157 WASHINGTON, THURSDAY, FEBRUARY 10, 2011 No. 21 House of Representatives The House met at 10 a.m. and was The Lillian Trasher Orphanage, loudest voice on the field because called to order by the Speaker pro tem- begun in 1911 by an American from that’s the kind of person that she is. pore (Mr. CHAFFETZ). Jacksonville, Florida, is one of the old- She is passionate, she is fierce in her f est and longest-serving charities in the dedication to her friends, and she has world. It currently serves over 600 chil- devoted her entire life to making her DESIGNATION OF SPEAKER PRO dren, along with widows and staff. This community, her State, and her country TEMPORE pillar of the community has been home a better place for all Americans. The SPEAKER pro tempore laid be- to thousands of children who needed Bev recently had a curveball thrown fore the House the following commu- food, shelter, and a family. Orphanage at her when she was diagnosed with nication from the Speaker: graduates serve around the world as amyotrophic lateral sclerosis, also WASHINGTON, DC, bankers, doctors, pastors, teachers, and known as ALS—Lou Gehrig’s Disease. February 10, 2011. even in the U.S. Government. Bev has always taken life head-on, and I hereby appoint the Honorable JASON Despite many challenges over the that’s how she addressed this chal- CHAFFETZ to act as Speaker pro tempore on years, the wonderful staff, now led by lenge, the same way she has lived her this day.
    [Show full text]
  • Unredacted Version of This Opinion Will Be Filed
    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.
    [Show full text]
  • INSECURE-Mag-48.Pdf
    • Andrew Ginter, VP of Industrial Security at Waterfall Security Solutions • Carl Herberger, VP Security Solutions at Radware • Brian Honan, CEO at BH Consulting • Matt Jones, Partner at Elttam • Wolfgang Kandek, CTO at Qualys • Ganesh Kirti, CTO at Palerra • Zoran Lalic, Senior Security Engineer at a large corporation • James J. Treinen, VP, Security Research at ProtectWise • Geoff Webb, VP, Solutions Strategy for NetIQ, the security practice of Micro Focus. ! Visit the magazine website at www.insecuremag.com (IN)SECURE Magazine contacts Feedback and contributions: Mirko Zorz, Editor in Chief - [email protected] News: Zeljka Zorz, Managing Editor - [email protected] Marketing: Berislav Kucan, Director of Operations - [email protected] Distribution (IN)SECURE Magazine can be freely distributed in the form of the original, non-modified PDF document. Distribution of modified versions of (IN)SECURE Magazine content is prohibited without the explicit permission from the editor. ! Copyright (IN)SECURE Magazine 2015. www.insecuremag.com The privacy risks of school technology saved passwords. Google doesn’t first obtain tools permission from students or their parents and since some schools require students to use The Electronic Frontier Foundation (EFF) filed Chromebooks, many parents are unable to a complaint with the Federal Trade Commis- prevent Google’s data collection. sion (FTC) against Google for collecting and data mining school children’s personal infor- Google’s practices fly in the face of commit- mation, including their Internet searches—a ments made when it signed the Student Pri- practice EFF uncovered while researching its vacy Pledge, a legally enforceable document “Spying on Students” campaign.
    [Show full text]
  • In Re National Security Letter, Under Seal V. Holder
    Nos. 13-15957, 13-16731 UNDER SEAL IN THE United States Court of Appeals FOR THE NINTH CIRCUIT In Re:d NATIONAL SECURITY LETTER, UNDER SEAL, Petitioner-Appellee (No.13-15957), Petitioner-Appellant (No.13-16731), —v.— ERIC HOLDER, JR., ATTORNEY GENERAL; UNITED STATES DEPARTMENT OF JUSTICE; FEDERAL BUREAU OF INVESTIGATION, Respondents-Appellants (No.13-15957), Respondents-Appellees (No.13-16731). ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA CASE NOS. 13-CV-2173 SI, 13-MC-80089 SI HONORABLE SUSAN ILLSTON, DISTRICT JUDGE BRIEF OF AMICI CURIAE FLOYD ABRAMS INSTITUTE FOR FREEDOM OF EXPRESSION AND FIRST AMENDMENT SCHOLARS IN SUPPORT OF THE PARTIES UNDER SEAL MICHAEL J. STRUMWASSER JONATHAN MANES ADRIENNA WONG* BJ ARD STRUMWASSER & WOOCHER LLP NABIHA SYED* 10940 Wilshire Boulevard, Suite 2000 FLOYD ABRAMS INSTITUTE FOR Los Angeles, California 90024 FREEDOM OF EXPRESSION (310) 576-1233 YALE LAW SCHOOL P.O. Box 208215 New Haven, Connecticut 06520 (203) 432-9387 Attorneys for Amici Curiae *Not admitted in this jurisdiction CORPORATE DISCLOSURE STATEMENT None of the amici has a parent corporation and no corporation owns 10% or more of any of the amici’s stock. STATEMENT OF COMPLIANCE WITH RULE 29(C)(5) Pursuant to Federal Rule of Appellate Procedure 29(c)(5), amici certify that no party’s counsel authored this brief in whole or in part, no party or party’s counsel contributed money that was intended to fund preparing or submitting this brief, and no person—other than amici, their members, or their counsel— contributed money that was intended to fund preparing or submitting this brief.
    [Show full text]
  • Us Governmental Access to Data in the Clouds Through the Usa Patriot Act
    US GOVERNMENTAL ACCESS TO DATA IN THE CLOUDS THROUGH THE USA PATRIOT ACT Law and Technology, Master Thesis Teresa del Rocío Espinosa Vega ANR 125095 Supervised by Prof. dr. Ronald Leenes Tilburg, the Netherlands July, 2012 TABLE OF CONTENTS Introduction ……………………………………………………………………......6 Chapter 1: Basics of Cloud Computing 1.1 Introduction ………………………………………………………………….. 9 1.2 Definition ….…………………………………………………………………. 9 1.3 Essential Characteristics ………………………………………………….. 10 1.4 Service Models ……………………………………………………………....12 1.5 Deployment Models ………………………………………………………....13 1.6 Stakeholders ………………………………………………………………....14 1.7 Data Protection and Privacy Issues ……………………………………….16 1.8 Scenarios ……………………………………………………………………..22 1.9 Conclusions …………………………………………………………………..22 Chapter 2: USA PATRIOT Act 2.1 Introduction …………………………………………………………………..24 2.2 Background ………………………………………………………………….24 2.3 Content …………………………………………………………………….....27 2.4 Analysis of Relevant Sections …………………………………………......29 2.5 Facts and Figures of National Security Letters and FISA orders ……....47 2.6 FBI’s dissemination of data to other entities ………………………….......48 2.7 Case Law ………………………………………………………………...…...50 2.8 Conclusions…………………………………………………………………. .52 - 2 - Chapter 3: European Data Protection Legislation 3.1 Introduction …………………………………………………………………...55 3.2 Privacy and Data Protection Directives ………………………………….. 55 3.3 Conclusions …………………………………………………………………..63 Chapter 4: Jurisdiction and Governmental Access to Data in the Cloud 4.1 Introduction …………………………………………………………………...64 4.2
    [Show full text]
  • United States Court of Appeals for the NINTH CIRCUIT
    Case: 13-16732 03/31/2014 ID: 9043981 DktEntry: 35 Page: 1 of 41 No. 13-16732 UNDER SEAL IN THE United States Court of Appeals FOR THE NINTH CIRCUIT In Re:d NATIONAL SECURITY LETTER, UNDER SEAL, Petitioner-Appellant, —v.— ERIC HOLDER, JR., ATTORNEY GENERAL; UNITED STATES DEPARTMENT OF JUSTICE; FEDERAL BUREAU OF INVESTIGATION, Respondents-Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA CASE NO. 13-CV-1165 SI HONORABLE SUSAN ILLSTON, DISTRICT JUDGE BRIEF OF AMICI CURIAE FLOYD ABRAMS INSTITUTE FOR FREEDOM OF EXPRESSION AND FIRST AMENDMENT SCHOLARS IN SUPPORT OF THE PARTIES UNDER SEAL MICHAEL J. S TRUMWASSER JONATHAN MANES ADRIENNA WONG* BJ ARD STRUMWASSER & WOOCHER LLP NABIHA SYED* 10940 Wilshire Boulevard, Suite 2000 FLOYD ABRAMS INSTITUTE FOR Los Angeles, California 90024 FREEDOM OF EXPRESSION (310) 576-1233 YALE LAW SCHOOL P.O. Box 208215 New Haven, Connecticut 06520 (203) 432-9387 Attorneys for Amici Curiae *Not admitted in this jurisdiction Case: 13-16732 03/31/2014 ID: 9043981 DktEntry: 35 Page: 2 of 41 CORPORATE DISCLOSURE STATEMENT None of the amici has a parent corporation and no corporation owns 10% or more of any of the amici’s stock. STATEMENT OF COMPLIANCE WITH RULE 29(C)(5) Pursuant to Federal Rule of Appellate Procedure 29( c)(5), amici certify that no party’s counsel authored this brief in whole or in part, no party or party’s counsel contributed m oney that was inte nded to fund preparing or subm itting this brief, and no person—other than amici, their mem bers, or their counsel — contributed money that was intended to fund preparing or submitting this brief.
    [Show full text]
  • Online Service Providers and Surveillance Law Transparency Jonathan Manes
    THE YALE LAW JOURNAL FORUM M ARCH 3 , 2016 Online Service Providers and Surveillance Law Transparency Jonathan Manes On June 5, 2013, the first revelation hit the front pages: documents provided by Edward Snowden showed that the National Security Agency (NSA) had for years ordered telephone companies to turn over our domestic telephone calling records en masse.1 The government had created a database of our phone calls going back years—a virtual time machine capable of reconstructing anybody’s past communications, should they come under scrutiny in the future. The program, we learned, had been authorized under section 215 of the USA PATRIOT Act.2 But this authorization required an extraordinarily broad reading of the law. On its face, the statute permitted only the collection of records that were “relevant” to an authorized national security or counterterrorism investigation.3 Yet behind closed doors, the Foreign Intelligence Surveillance Court (FISC) had stretched the statute to encompass all telephone records. Its theory was that all phone records are “relevant” to counterterrorism investigations because it is impossible to say in advance which will become useful in the future.4 1. Glenn Greenwald, NSA Collecting Phone Records of Millions of Verizon Customers Daily, GUARDIAN (June 6, 2013), http://www.theguardian.com/world/2013/jun/06/nsa-phone -records-verizon-court-order [http://perma.cc/5PLD-MUDX]. 2. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub. L. No. 107-56, § 215, 115 Stat. 272, 287-88 (codified as amended at 50 U.S.C.
    [Show full text]
  • Brief of Amici Curiae Floyd Abrams Institute for Freedom of Expression and First Amendment Scholars, in Support of the Parties Under Seal
    Case: 16-16067, 09/26/2016, ID: 10137176, DktEntry: 21, Page 1 of 44 Nos. 16-16067, 16-16081, 16-16082, 16-16190 UNDER SEAL IN THE United States Court of Appeals FOR THE NINTH CIRCUIT In re:d NATIONAL SECURITY LETTER, UNDER SEAL, Petitioner-Appellant (No. 16-16067), Petitioner-Appellant/Cross-Appellee, (Nos. 16-16081, 16-16190), Petitioner-Appellant (No. 16-16082), —v.— LORETTA E. LYNCH, Attorney General, Respondent-Appellee (No. 16-16067), Respondent-Appellee/Cross-Appellant , (Nos 16-16081, 16-16190, Respondent-Appellee (No. 16-16082). ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA CASE NOS. 13-CV-2173 SI, 13-MC-80089 SI, 13-CV-1165-SI HONORABLE SUSAN ILLSTON, DISTRICT JUDGE BRIEF OF AMICI CURIAE FLOYD ABRAMS INSTITUTE FOR FREEDOM OF EXPRESSION AND FIRST AMENDMENT SCHOLARS, IN SUPPORT OF THE PARTIES UNDER SEAL JONATHAN MANES HANNAH BLOCH-WEHBA UNIVERSITY AT BUFFALO SCHOOL JOHN T. LANGFORD* OF LAW FLOYD ABRAMS INSTITUTE FOR THE STATE UNIVERSITY OF NEW YORK FREEDOM OF EXPRESSION 613 O’Brian Hall, North Campus YALE LAW SCHOOL Buffalo, New York 14260 P.O. Box 208215 Tel: (716) 645-6222 New Haven, Connecticut 06520 Fax: (716) 645-6199 Tel: (203) 436-5824 Fax: (203) 432-3034 *Not admitted in this jurisdiction Attorneys for Amici Curiae Floyd Abrams Institute for Freedom of Expression and First Amendment Scholars Case: 16-16067, 09/26/2016, ID: 10137176, DktEntry: 21, Page 2 of 44 CORPORATE DISCLOSURE STATEMENT None of the amici has a parent corporation and no corporation owns 10% or more of any of the amici’s stock.
    [Show full text]
  • Warrant Canaries and Disclosure by Design: the Real Threat to National Security Letter Gag Orders Rebecca Wexler Introduction
    THE YALE LAW JOURNAL FORUM D ECEMBER 19, 2014 Warrant Canaries and Disclosure by Design: The Real Threat to National Security Letter Gag Orders Rebecca Wexler introduction Since the 1980s, the FBI has issued documents referred to as National Se- curity Letters (NSLs), which demand data from companies—including finan- cial institution records and the customer records of telephone companies and communications service providers—for foreign intelligence investigations.1 The use of the letters increased dramatically after the attacks of September 11, 2001 and the USA PATRIOT Act’s expansion of the FBI’s statutory NSL authority.2 But these letters were rarely publicized or publicly challenged,3 as they often included gag orders that required recipients not to reveal the contents of the letter, or even its existence.4 After the leak of classified information by Edward 1. See CHARLES DOYLE, CONG. RESEARCH SERV., RS22406, NATIONAL SECURITY LETTERS IN FOREIGN INTELLIGENCE INVESTIGATIONS: A GLIMPSE AT THE LEGAL BACKGROUND 1 (2014), http://fas.org/sgp/crs/intel/RS22406.pdf [http://perma.cc/U5PV-PSJ3]. 2. Id. at 3. 3. By 2008, only three court challenges to NSLs were publicly known. Ryan Singel, FBI Tar- gets Internet Archive with Secret ‘National Security Letter’, Loses, WIRED (May 7, 2008, 10:22 AM), http://www.wired.com/2008/05/internet-archiv [http://perma.cc/T9FR-9G7T]. Nicholas Merrill, the president of a small internet service provider, brought the first of those challenges in 2004, but he was not permitted to reveal his identity to the public until 2010. Gagged for 6 Years, Nick Merrill Speaks Out on Landmark Court Struggle Against FBI’s National Security Letters, DEMOCRACY NOW! (Aug.
    [Show full text]