I NRE THREE NATIONAL SECURITY LETTERS , MERRICK B. GARLAND , Attorney General v. Under Seal

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
I N RE THREE NATIONAL SECURITY
LETTERS ,
M ERRICK B. GARLAND , Attorney
General,
Petitioner-Appellee,
v.
UNDER SEAL ,
Respondent-Appellant.
No. 18-56669
D.C. No.
3:18-cv-02269-
BAS-MDD
OPINION
Appeal from the United States District Court
for the Southern District of California
Cynthia A. Bashant, District Judge, Presiding
Argued and Submitted November 5, 2019
Submission Vacated July 6, 2020
Resubmitted May 19, 2022
Pasadena, California
Filed May 26, 2022

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2 I N RE THREE NATIONAL SECURITY L ETTERS
Before: Mary H. Murguia, Chief Judge, Andrew D.
Hurwitz, Circuit Judge, and Louis Guirola, Jr.,*
District Judge.
Opinion by Judge Hurwitz
SUMMARY**
Civil Rights
The panel affirmed the district court’s order requiring the
recipient of three national security letters to comply with the
nondisclosure requirements set forth in 18 U.S.C. § 2709(c)
“unless and until the Government informs it otherwise.”
A national security letter (“NSL”) is an administrative
subpoena issued by the FBI to a wire or electronic
communication service provider requiring production of
specified subscriber information that is relevant to an
authorized national security investigation. Pursuant to
18 U.S.C. § 2709, the Federal Bureau of Investigation
(“FBI”) can prevent a recipient of an NSL from disclosing
its receipt. This court has held “that the nondisclosure
requirement in 18 U.S.C. § 2709(c) is a content-based
restriction on speech that is subject to strict scrutiny, and that
the nondisclosure requirement withstands such scrutiny.” In
re Nat’l Sec. Letter, Nos. 16-16067, 16-16081, 16-16082,
* The Honorable Louis Guirola, Jr., United States District Judge for
the Southern District of Mississippi, sitting by designation.
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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I N RE THREE NATIONAL SECURITY L ETTERS 3
2022 WL 1495038, at *2 (9th Cir. May 11, 2022), amending
and superseding 863 F.3d 1110 (9th Cir. 2017).
Here, the district court reviewed the three NSLs and
related materials in camera and found that, given the
important government interests at stake, nondisclosure
remained authorized for an indefinite period and court-
scheduled review was unnecessary to ensure that
nondisclosure continued no longer than justified. The
communication service provider did not contest the
government’s compelling interest or the necessity of
continued nondisclosure.
The panel rejected the provider’s assertion that a district
court is constitutionally required on its own accord to
schedule future judicial review once it finds a nondisclosure
order to be statutorily authorized for the foreseeable future.
The panel held that neither the NSL statute nor In re
National Security Letter compelled the district court to
schedule periodic judicial review in every case. Because the
statutory scheme requires judicial review whenever a
recipient of an NSL requests it, and the recipient in this case
cited no circumstances mandating court-ordered periodic
review, the panel found no constitutional infirmity in the
order of the district court.

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4 I N RE THREE NATIONAL SECURITY L ETTERS
COUNSEL
Eric B. Wolf (argued) and Eric D. Miller, Perkins Coie LLP,
Seattle, Washington; Michael A. Sussmann, Hayley L.
Berlin, and Ariesl B. Glickman, Perkins Coie LLP,
Washington, D.C.; for Respondent-Appellant.
Joshua Revesz (argued), Scott R. McIntosh, and Lewis S.
Yelin, Appellate Staff; David L. Anderson, United States
Attorney; Civil Division, United States Department of
Justice, Washington, D.C.; for Petitioner-Appellee.
Andrew Crocker and Aaron Mackey, Electronic Frontier
Foundation, San Francisco, California; Naomi Gilens,
Patrick Toomey, and Brett Max Kaufman, American Civil
Liberties Union Foundation, New York, New York; Jennifer
Stisa Granick, American Civil Liberties Union Foundation,
San Francisco, California; for Amici Curiae Electronic
Frontier Foundation and American Civil Liberties Union.
Peter Karanija, DLA Piper LLP (US), Washington, D.C.;
Lisa Zycherman, Davis Wright Tremaine LLP, Washington,
D.C.; for Amici Curiae 16 Media Organizations and
Associations Representing Journalists, Writers, and
Researchers.
Alexander A. Berengaut, James M. Garland, and Lauren K.
Moxley, Covington & Burling LLP, Washington, D.C.;
Nora Puckett, Google LLC, Mountain View, California; for
Amici Curiae Microsoft, Google, Apple, and Facebook.

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I N RE THREE NATIONAL SECURITY L ETTERS 5
OPINION
HURWITZ, Circuit Judge:
We today again confront 18 U.S.C. § 2709, which allows
the Federal Bureau of Investigation (“FBI”) to prevent a
recipient of a national security letter (“NSL”) from
disclosing its receipt. We have held “that the nondisclosure
requirement in 18 U.S.C. § 2709(c) is a content-based
restriction on speech that is subject to strict scrutiny, and that
the nondisclosure requirement withstands such scrutiny.” In
re Nat’l Sec. Letter, Nos. 16-16067, 16-16081, 16-16082,
2022 WL 1495038, at *2 (9th Cir. May 11, 2022), amending
and superseding 863 F.3d 1110 (9th Cir. 2017). The issue
for decision today is whether, after reviewing such a
nondisclosure order pursuant to 18 U.S.C. § 3511 and
finding it statutorily authorized for the foreseeable future, a
district court is also constitutionally required on its own
accord to schedule future judicial review. Because the
statutory scheme requires judicial review whenever a
recipient of an NSL requests it, and the recipient in this case
cites no circumstances mandating court-ordered periodic
review, we find no constitutional infirmity in the order of the
district court and affirm.
I. Background.
A. Statutory and Regulatory History.
An NSL is an administrative subpoena issued by the FBI
to a wire or electronic communication service provider
requiring production of “specified subscriber information
that is relevant to an authorized national security
investigation.” In re Nat’l Sec. Letter, 2022 WL 1495038,
at *1; see 18 U.S.C. § 2709(a)–(b). The FBI can order an
NSL recipient not to “disclose to any person that the [FBI]

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6 I N RE THREE NATIONAL SECURITY L ETTERS
has sought or obtained access to information” if a senior FBI
official certifies that disclosure may endanger national
security or “the life or physical safety of any person,” affect
diplomatic relations, or interfere with “a criminal,
counterterrorism, or counterintelligence investigation.”
18 U.S.C. §§ 2709(c)(1)(A), (B)(i)–(iv).1
An NSL recipient may at any time petition in the district
court for judicial review of a nondisclosure requirement; in
the alternative, the recipient may request the government to
petition for such judicial review and the government must do
so within thirty days of the request. Id. §§ 2709(d), 3511(a),
(b)(1)(A)–(B). In judicial review, regardless of the initiating
party, the government must justify continued nondisclosure;
if it does so, the district court “shall issue a nondisclosure
order or extension thereof” that “includes conditions
appropriate to the circumstances.” Id. §§ 3511(b)(1)(C),
(b)(2)–(3); see In re Nat’l Sec. Letter, 2022 WL 1495038, at
*12. Although a provider cannot disclose information
identifying a specific NSL, 18 U.S.C. § 2709(c)(1)(A), it can
report certain information in annual or semiannual reports,
such as the aggregate number of NSLs received in bands of
1,000, see 50 U.S.C. § 1874(a)(1)(A).
The NSL provisions were enacted as part of the
Electronic Communications Privacy Act of 1986 and
amended by the USA Patriot Improvement and
Reauthorization Act of 2005. See In re Nat’l Sec. Letter,
2022 WL 1495038, at *3 (citing Pub. L. No. 99-508, § 201,
1 The certifying official must be the Director of the FBI, “his
designee in a position not lower than Deputy Assistant Director at
Bureau headquarters or a Special Agent in Charge in a Bureau field
office designated by the Director.” 18 U.S.C. § 2709(b). Disclosure is
allowed under some circumstances not relevant to this case. See
18 U.S.C. § 2709(c)(2).

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I N RE THREE NATIONAL SECURITY L ETTERS 7
100 Stat. 1848, 1867; Pub. L. No. 109-177, §§ 115, 116(a),
120 Stat. 192, 211–17 (2006)). In 2008, the Second Circuit
found the statutory scheme unconstitutional because “in the
absence of Government-initiated judicial review, subsection
3511(b) is not narrowly tailored to conform to First
Amendment procedural standards.” John Doe, Inc. v.
Mukasey, 549 F.3d 861, 881 (2d Cir. 2008). In response,
Congress amended § 3511 and required the Attorney
General to promulgate internal procedures for review of
NSL nondisclosure requirements and termination when “the
facts no longer support nondisclosure.” USA Freedom Act
of 2015 (“USAFA”), Pub L. No. 114-23, Title V, § 502(f),
129 Stat. 268, 288 (codified at 12 U.S.C. § 3414 note).
“Congress’s primary purpose . . . was apparently to clarify
that judicial review was available to recipients of NSLs.”
ACLU v. Clapper, 785 F.3d 787, 807 (2d Cir. 2015).
The FBI then adopted procedures requiring internal
review of a nondisclosure requirement three years after an
investigation begins and again when it ends; the FBI must
terminate the nondisclosure requirement after that review
unless it determines that statutory authorization for
nondisclosure continues. Termination Procedures for
National Security Letter Nondisclosure Requirement, Fed.
Bureau of Investigation, 2–3 (Nov. 24, 2015),
https:///www.fbi.gov/file-repository/nsl-ndp-procedures.pdf
(“Termination Procedures”). Thus, absent intervening
judicial review under 18 U.S.C. § 3511, the FBI reviews a
nondisclosure requirement once if the related NSL
investigation ends before the three-year anniversary and
twice if the investigation ends thereafter. Id.
B. In re National Security Letter.
In re National Security Letter holds that the amended
statutory nondisclosure scheme is facially constitutional.

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8 I N RE THREE NATIONAL SECURITY L ETTERS
See 2022 WL 1495038, at *10, 13. In that case, providers
subject to nondisclosure requirements had argued that the
scheme violated the First Amendment because it prevented
“disclosure of the bare fact of receiving the NSL.” Id. at *10.
The providers also asserted that the availability of judicial
review under § 3511 did not save the scheme because it was
“triggered only if a recipient challenges the nondisclosure
order.” Id. at *11 n.18. But we refused “to divorce the
nondisclosure requirement from the availability of judicial
review,” and found it irrelevant that “some, or even most,
NSL recipients do not seek judicial review.” Id. at *12.
The providers also argued that the nondisclosure scheme
“is not narrowly tailored because it authorizes restraints of
overly long or indefinite duration.” Id. But we found that
the Termination Procedures “reduce[d] the likelihood that an
overly long nondisclosure requirement will be imposed” and
“are supplemented by the availability of judicial review.” Id.
We also noted that under § 3511, “a reviewing court would
be bound to ensure” that nondisclosure requirements are
imposed no longer than necessary, and that periodic judicial
review could address “any constitutional concerns regarding
the duration of the nondisclosure requirement.” Id. at *12–
13. Thus, we found the statutory scheme narrowly tailored
“both as to inclusiveness and duration.” Id. at *13.2
2 We also rejected the argument that the nondisclosure requirements
amounted to an unconstitutional censorship or licensing scheme, finding
that “the NSL law is more similar to governmental confidentiality
requirements that have been upheld by the courts.” In re Nat’l Sec.
Letter, 2022 WL 1495038, at *14. We nonetheless concluded that the
statutory scheme had “the sorts of procedural safeguards required for
censorship and licensing schemes.” Id. at *14–15.

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I N RE THREE NATIONAL SECURITY L ETTERS 9
C. Facts.
In 2011, the FBI issued three NSLs with indefinite
nondisclosure requirements to the appellant communications
service provider (“Provider”). Provider complied and took
no action until 2018, when it requested that the government
initiate judicial review pursuant to 18 U.S.C.
§ 3511(b)(1)(A)–(B). The government promptly petitioned
for review, seeking continued nondisclosure. Provider did
not contest the need for continued nondisclosure but asked
the district court to impose a nondisclosure requirement
“fixed and appropriate to the circumstances.”
The district court then reviewed in camera confidential
declarations pertaining to the three NSLs and found
continued nondisclosure statutorily authorized. The district
court noted that although it had the discretion to schedule
future review, “the current procedures in place have been
deemed sufficient to ensure the nondisclosure requirements
are constitutional.” Scheduling future review was not
required, the district court also noted, because “[n]othing
prevents [Provider] from seeking judicial review should it
deem one necessary.” The court therefore ordered Provider
to comply with the nondisclosure requirements “unless and
until the Government informs it otherwise.”3
Provider timely appealed. We have jurisdiction of that
appeal under 28 U.S.C. § 1291. We review de novo the
district court’s legal conclusions and “constitutional
questions of fact (such as whether certain restrictions create
a ‘severe burden’ on an individual’s First Amendment
3 The district court found unproblematic the absence of review
before the USAFA was passed in 2015 because the government showed
in 2018 that continued nondisclosure remained necessary.

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10 I N RE THREE NATIONAL SECURITY L ETTERS
rights).” Prete v. Bradbury, 438 F.3d 949, 960 (9th Cir.
2006).
II. Discussion.
The issue for decision is whether the nondisclosure
requirements in the district court’s order are narrowly
tailored to serve the government’s compelling interest in
national security. “A restriction is not narrowly tailored ‘if
less restrictive alternatives would be at least as effective in
achieving the legitimate purpose.’” In re Nat’l Sec. Letter,
2022 WL 1495038, at *10 (quoting Reno v. ACLU, 521 U.S.
844, 874 (1997)). But narrow tailoring is not perfect
tailoring. Id. (citing Williams-Yulee v. Fla. Bar, 135 S. Ct.
1656, 1671 (2015)). We therefore should “‘decline to wade
into the swamp’ of calibrating the individual mechanisms of
a restriction.” Id. (quoting Williams-Yulee, 135 S. Ct.
at 1671) (cleaned up).
The district court reviewed the three NSLs and related
materials in camera and found that, given the important
government interests at stake, nondisclosure remained
authorized for an indefinite period and court-scheduled
review was unnecessary to ensure that nondisclosure
continues no longer than justified. Provider does not contest
the government’s compelling interest or the necessity of
continued nondisclosure. Nor does it claim that the NSL
statute expressly mandates that the district court schedule
future review. Rather, Provider asserts that although In re
National Security Letter held that the burden placed on an
NSL recipient in seeking initial judicial review was de
minimis, a district court must itself schedule periodic review
to achieve narrow tailoring.
However, neither the NSL statute nor In re National
Security Letter compels the district court to schedule

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I N RE THREE NATIONAL SECURITY L ETTERS 11
periodic judicial review in every case. To be sure, “as part
of the judicial review process, a court may require the
government to justify the continued necessity of
nondisclosure on a periodic, ongoing basis,” In re Nat’l Sec.
Letter, 2022 WL 1495038, at *13 (emphasis added), but it is
not required to do so absent a request from the parties.
Rather, we leave to the district court’s discretion whether
“periodic review should be one of the ‘conditions
appropriate to the circumstances.’” Id. (quoting 18 U.S.C.
§ 3511(b)(1)(C)).
Provider argues that even if neither the NSL statute nor
our precedents resolve the issue, court-ordered periodic
review is constitutionally required because such a regime
would be less restrictive than nondisclosure subject to
review at Provider’s request. But there is no practical
difference between the statutory regime and the one that
Provider proposes. Provider may seek judicial review—or
require the government to do so—whenever it wants and as
many times as it wants. See 18 U.S.C. § 3511(b)(1)(A)–(B).
If Provider simply writes a brief request, as it did here, the
government is required to petition for review, and bears the
burden in subsequent judicial proceedings of showing that
nondisclosure remains statutorily authorized. See 18 U.S.C.
§§ 3511(b)(1)(C), (b)(2)–(3); see also In re Nat’l Sec. Letter,
2022 WL 1495038, at *7, 11. Indeed, even if the district
court had scheduled periodic review, a provider can request
judicial review on a more expedited basis.
Provider asserts that “persistently seeking and re-seeking
judicial review is more burdensome than asking for it once,”
noting that a provider might conceivably be subject to many
NSLs and nondisclosure requirements. But, Provider did not
argue below—nor does it suggest on appeal—that these
three nondisclosure requirements or its particular

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12 I N RE THREE NATIONAL SECURITY L ETTERS
circumstances make requesting judicial review burdensome.
And, even assuming that court-scheduled periodic review
would be less burdensome for some providers, our
observation that “the burden of obtaining review is de
minimis,” In re Nat’l Sec. Letter, 2022 WL 1495038, at *11
n.18, applies equally to an initial request for review and to
subsequent ones.
We need not decide today whether, under circumstances
not presented here, a district court might abuse its discretion
by declining to schedule periodic review. We simply hold
that neither the governing statutes nor the First Amendment
require this in every case. Because that is Provider’s sole
argument, we affirm the order of the district court.
AFFIRMED.

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