Chapter 1 Introduction What are the issues of the day?

Analyzing the Amendments

These provisions present three issues for interpretation:

(1) what is the scope of the enumerated harms?

(2) what justifies a nondisclosure requirement? and

(3) which side has the burden of proof?

Government Concessions

We will therefore construe subsection 2709(c)(1) to mean that the enumerated harms must be related to “an authorized investigation to protect against international terrorism or clandestine intelligence activities,” 18 U.S.C. §2709(b)(1), (2), and construe subsections 3511(b)(2) and (3) to place on the Government the burden to persuade a district court that there is a good reason to believe that disclosure may result in one of the enumerated harms, and to mean that a district court, in order to modify or set aside a nondisclosure order, must find that such a good reason exists.

Comparison to Grand Jury Secrecy

Unlike the grand jury proceeding, as to which interests in secrecy arise from the nature of the proceeding, the nondisclosure requirement of subsection 2709(c) is imposed at the demand of the Executive Branch under circumstances where secrecy might or might not be warranted, depending on the circumstances alleged to justify such secrecy. . . .

Is Allowing Review in the Statute Enough?

Court's suggestion:

The Government could inform each NSL recipient that it should give the Government prompt notice, perhaps within ten days, in the event that the recipient wishes to contest the nondisclosure requirement. Upon receipt of such notice, the Government could be accorded a limited time, perhaps 30 days, to initiate a judicial review proceeding to maintain the nondisclosure requirement, and the proceeding would have to be concluded within a prescribed time, perhaps 60 days.

Deference To Administrative Discretion

Assessing the Government’s showing of a good reason to believe that an enumerated harm may result will present a district court with a delicate task. While the court will normally defer to the Government’s considered assessment of why disclosure in a particular case may result in an enumerated harm related to such grave matters as international terrorism or clandestine intelligence activities, it cannot, consistent with strict scrutiny standards, uphold a nondisclosure requirement on a conclusory assurance that such a likelihood exists.

Can Judges Make These Determinations?

We have every confidence that district judges can discharge their review responsibility with faithfulness to First Amendment considerations and without intruding on the prerogative of the Executive Branch to exercise its judgment on matters of national security. Such a judgment is not to be second-guessed, but a court must receive some indication that the judgment has been soundly reached. As the Supreme Court has noted in matters of similar gravity, the Constitution “envisions a role.

What About the Statutory Standard for Review?

The Court deemed inconsistent with strict scrutiny standards the provision of subsections 3511(b)(2) and (b)(3) specifying that a certification by senior governmental officials that disclosure may “endanger the national security of the United States or interfere with diplomatic relations . . . shall be treated as conclusive unless the court finds that the certification was made in bad faith.” 18 U.S.C. §3511(b)(2). We agree.

Can the Executive Branch Save the Amendments without Legislation?

We deem it beyond the authority of a court to “interpret” or “revise” the NSL statutes to create the constitutionally required obligation of the Government to initiate judicial review of a nondisclosure requirement. However, the Government might be able to assume such an obligation without additional legislation. As we discussed in Part IV(b)(i), supra, the Government’s concern about the potentially substantial burden of initiating litigation can be readily alleviated by use of the reciprocal notice procedure we have suggested.

United States Dept. of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989)

What is the theory of expectation of privacy through obscurity?

Is this really an administrative cost argument for expectation of privacy?

How has the world changed since this opinion?

Is this still a useful theory, or have we given up expectations of privacy based on administrative costs?

Library records

Why is access to library check out records so controversial?

How about video store rentals?

Netflix?

Online porn?

The Patriot Act

Patriot Act Improvement limited access to library records, but did not end access:

It left libraries subject to §215 orders, however, although it also limited the number of FBI officials who could approve §215 applications for library records,

It also limited access to: ‘‘book sales records, book customer lists, firearms sales records, tax return records, educational records, or medical records containing information that would identify a person.’’

Are these all the same sort of records?

Whalen v. Roe, 429 U.S. 589 (1977)

"We are not unaware of the threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files. . . . The right to collect and use such data for public purposes is typically accompanied by a concomitant statutory or regulatory duty to avoid unwarranted disclosures. Recognizing that in some circumstances that duty arguably has its roots in the Constitution, nevertheless New York’s statutory scheme, and its implementing administrative procedures, evidence a proper concern with, and protection of, the individual’s interest in privacy."