Criminal Law Library Blog
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Week of December 15-19, 2008.
U.S. 2nd Circuit Court of Appeals, December 15, 2008 Doe, Inc. v. Mukasey, No. 074943 In litigation concerning First Amendment challenges to the constitutionality of statutes governing the issuance and judicial review of National Security Letters (NSLs) which request records from providers of wire or electronic communication services, decision finding 18 U.S.C. subsections 2709(c) and 3511(b) unconstitutional and enjoining certain actions by FBI officials is affirmed in part, reversed in part, and remanded where: 1) the statutes are construed to avoid some constitutional challenges; 2) subsections 2709(c) and 3511(b) were unconstitutional to the extent that they imposed a nondisclosure requirement on NSL recipients without placing on the Government the burden of initiating judicial review of such a requirement; 3) subsections 3511(b)(2) and (b)(3) were unconstitutional to the extent that a governmental official’s certification that disclosure may endanger the national security of the U.S. or interfere with diplomatic relations was treated as conclusive; and 4! ) district court’s injunction is modified by limiting it to enjoining FBI officials from enforcing the nondisclosure requirement of section 2709(c) in the absence of Government-initiated judicial review.