Politics & National Security

Oral Argument Tomorrow in Under Seal v. Holder

By Jane Chong
Tuesday, October 7, 2014, 10:23 PM

Speaking of National Security Letter (NSL) challenges: tomorrow morning Judges Ikuta, N. Randy Smith and Murguia of the Ninth Circuit will hear oral argument in In re National Security Letter, Under Seal v. Holder. These cases are sealed, but the Court has ordered the disclosure of party briefs and other documents, available here. [Just a note: Nos. 13-15957 and 13-16731 deal have been consolidated; No. 13-16732 deals with the same legal issues but a different NSL recipient and have been briefed separately but placed on the same briefing and oral argument schedule as the consolidated cases.]

Recall that on March 14, 2013, the EFF prevailed in its suit to set aside an NSL seeking subscriber information from its client, an unnamed electronic communication service provider. Judge Susan Illston of the Northern District of California ruled that the gag provisions of the NSL statute (18 U.S.C. § 2709(c)) violated the First Amendment, and that other provisions mandating the standard of review and level of deference to be applied by the reviewing court (§ 3511(b)) violated the First Amendment and separation of powers principles.

After the court's ruling, the government filed an amended complaint again asking the court to compel the company to turn over subscriber information; the court granted EFF's motion for a stay pending the government's appeal of the court's March ruling. On May 21 and May 23, 2013, the court denied an EFF petition filed on behalf of a second NSL recipient requesting the court set aside NSLs, and on August 12, 2013, the court denied another EFF petition to set aside NSLs filed on behalf of yet a third NSL recipient.

See the government’s opening brief (for Nos. 13-15957 & 13-16731); the EFF’s opening and responding briefs in Nos. 13-15957 & 13-16731 and 13-16732 (redacted); the government’s reply brief; and EFF’S appellee/appellant reply brief in Nos. 13-15957 & 13-16731 and 13-16732 (redacted). Additional briefs, including amicus briefs and motions to unseal the briefs, can be found at the Ninth Circuit link above.