Doe v. Gonzales: Disclosure under the Stored Communications Act

I would like to thank Mike for allowing me to post here.

On May 23, 2006, the Second Circuit Court of Appeals issued an opinion in Doe v. Gonzales. 2006 WL 1409351 (2d. Cir., May 23, 2006). This consolidated appeal issued rulings on two cases: Doe v. Ashcroft and Doe v. Gonzales. 334 F. Supp.2d 471 (S.D.N.Y. 2004);  F.Supp.2d 66 (D.Conn.2005). This case is interesting because it involves constitutional challenges to elements of the Stored Communications Act (SCA), which protects electronic data and stored messages from unauthorized access and disclosure.

§ 2709(a) of the Stored Communications Act (SCA) imposes a duty upon wire and electronic communication providers to comply with FBI requests for "subscriber information and toll billing records information, or electronic communication transactional records." As outlined in 2709(b), the subscriber requests are written requests in the form of a National Security Letter (NSL).

At the time of Ashcroft and Gonzales,  § 2709(c) of the SCA simply stated that:

“No wire or electronic communication service provider, or officer, employee, or agent thereof, shall disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records under this section.”

Doe v. Ashcroft involved an internet service provider (ISP) that received a NSL requesting information on a subscriber. The plaintiff was notified of the nondisclosure requirement. The plaintiff was also told that he or she could not inform “any person” that access to the information was sought or obtained. The plaintiff challenged 2709(c) on First Amendment grounds. The District Court held that that 2709(c) violates the First Amendment because it was a content-based prior restraint on speech that was not sufficiently narrowly tailored to achieve a compelling governmental interest. 

In Doe v. Gonzales, a broadly worded NSL was sent to a library employee in charge of patron records. The plaintiff filed a complaint which argued that by prohibiting him or her from disclosing their identity as a recipient was a prohibition on constitutionally protected speech. The plaintiff asked for a preliminary injunction against enforcement of the gag order. The court granted the injunction; it found that: 1) the plaintiff showed irreparable harm (derived from suppression of speech) and 2) plaintiff's suit was likely to succeed on the merits (i.e., the statute was likely to be content-based, prior-restraint that violated plaintiff's First Amendment rights). 

Significant amendments were made to § 2709 on March 9, 2006. These changes were apparently made to address the defects identified by the Ashcroft court. 2709(c) now includes four sections. 2709(c)(1) says that under certain conditions certified by the Director of the FBI or other authorized personnel, “no wire or electronic communications service provider, or officer, employee, or agent thereof, shall disclose to any person (other than those to whom such disclosure is necessary to comply with the request or an attorney to obtain legal advice or legal assistance with respect to the request) that the Federal Bureau of Investigation has sought or obtained access to information or records under this section" (emphasis added).

2709(c)(2) now requires recipients of NSLs to be notified of the nondisclosure requirement. 2709(c)(3) requires NSL recipients to notify other parties assisting in compliance, including attorneys, of the nondisclosure requirements. 2709(c)(4) requires anyone making a disclosure under 2709(c) to identify the target of the disclosure to the FBI director or other authorized personnel before the disclosure is made.

New statutes were also created and others were modified to enhance 2709(c). 18 U.S.C § 3511 now provides a mechanism for judicial review of NSLs, including requests under 2709(b). 18 USC 1510 was modified to impose penalties for disclosure in some situations. 1510(e) provides that anyone who has been notified of the nondisclosure requirements of 2709(c)(1) and "knowingly and with the intent to obstruct an investigation or judicial proceeding violates such prohibitions or requirements applicable by law to such person shall be imprisoned for not more than five years, fined under this title, or both."

These changes were significant enough for the Second Circuit Court of Appeals to vacate and remand the First Amendment portion of Ashcroft to the District Court. Gonzales was dismissed as moot. In the near future, I hope to dig deeper and examine how the District Court might view the First Amendment challenge in Ashcroft in light of the aforementioned statutory changes.