Case 18-56669 04 29 2019 ID 11281039 DktEntry 38 Page 1 of 34 No 18-56669 In the United States Court of Appeals for the Ninth Circuit ________________________________ WILLIAM P BARR Attorney General Appellee v REDACTED UNDER SEAL Appellant ________________________________ On Appeal from the United States District Court for the Southern District of California No 3 18-cv-02269-BAS-MDD Hon Cynthia A Bashant U S District Judge BRIEF FOR AMICI CURIAE 16 MEDIA ORGANIZATIONS AND ASSOCIATIONS REPRESENTING JOURNALISTS WRITERS AND RESEARCHERS IN SUPPORT OF APPELLANT Lisa Zycherman Peter Karanjia Davis Wright Tremaine LLP DLA Piper LLP US 1919 Pennsylvania Avenue NW 500 Eighth Street NW Suite 800 Washington DC 20004 Washington DC 20006 E-mail peter karanjia@dlapiper com E-mail lisazycherman@dwt com T 202 973-4280 T 202 973-4280 F 202 863-7855 F 202 973-4480 Attorneys for Amici Curiae Case 18-56669 04 29 2019 ID 11281039 DktEntry 38 Page 2 of 34 CORPORATE DISCLOSURE STATEMENT American Society of News Editors is a private non-stock corporation that has no parent The Associated Press Media Editors has no parent corporation and does not issue any stock Association of Alternative Newsmedia has no parent corporation and does not issue any stock The Associated Press has no parent company and no stock The Center for Investigative Reporting is a California nonprofit public benefit corporation that is tax-exempt under section 501 c 3 of the Internal Revenue Code It has no statutory members and no stock The Center for Public Integrity is a 503 c tax exempt organization that issues no stock and has no parent company First Look Media Works Inc is a non-profit non-stock corporation organized under the laws of Delaware No publicly held corporation owns 10% or more of its stock Hearst Corporation is privately held by the Hearst Family Trust and has no other parent Hearst has no publicly traded subsidiaries or affiliates The McClatchy Company is publicly traded on the New York Stock Exchange American under the ticker symbol MNI Chatham Asset Management LLC and i Case 18-56669 04 29 2019 ID 11281039 DktEntry 38 Page 3 of 34 Cobas Asset Management both own 10% or more of the common stock of The McClatchy Company MPA–The Association of Magazine Media has no parent corporation and no publicly held corporation owns 10% or more of its stock The National Security Archive is a nonprofit corporation based in Washington D C that is tax-exempt under section 501 c 3 of the Internal Revenue Code It has no statutory members and no stock The New York Times Company is a publicly traded company and has no affiliates or subsidiaries that are publicly owned No publicly held company owns 10% or more of its stock Online News Association is a not-for-profit organization It has no parent corporation and no publicly traded corporation owns 10% or more of its stock The Reporters Committee for Freedom of the Press is an unincorporated association of reporters and editors with no parent corporation and no stock Society of Professional Journalists is a non-stock corporation with no parent company WP Company LLC d b a The Washington Post is a wholly-owned subsidiary of Nash Holdings LLC a holding company owned by Jeffrey P Bezos WP Company LLC and Nash Holdings LLC are both privately held companies with no securities in the hands of the public ii Case 18-56669 04 29 2019 ID 11281039 DktEntry 38 Page 4 of 34 TABLE OF CONTENTS Page INTEREST OF AMICI CURIAE 1 SUMMARY OF ARGUMENT 2 ARGUMENT 4 I The Media and Recipients of National Security Letters Have Mutually Reinforcing First Amendment Interests in Contributing to the Public Debate About Government Surveillance Activities 4 II The Media Play an Important Independent Role in Contributing to Meaningful Public Oversight 10 III The Continuing Growth of Online Platforms and Cloud Computing Will Render This Issue Increasingly Salient in the Digital Age 15 CONCLUSION 18 APPENDIX A A-1 i Case 18-56669 04 29 2019 ID 11281039 DktEntry 38 Page 5 of 34 TABLE OF AUTHORITIES Page s Cases Alexander v United States 509 U S 544 1993 4 Buckley v Valeo 424 U S 1 1976 8 Curtis Publ’g Co v Butts 388 U S 130 1967 9 Doe v Ashcroft 334 F Supp 2d 471 S D N Y 2004 12 Doe I v Gonzales 449 F 3d 415 2d Cir 2006 12 Doe v Gonzalez 386 F Supp 3d 66 D Conn 2005 12 Garrison v Louisiana 379 U S 64 1964 9 In re Nat’l Sec Letters No 16-518 JEB 2016 WL 7017215 D D C July 25 2016 14 In re National Security Letter 863 F 3d 1110 9th Cir 2017 12 13 Mills v Alabama 384 U S 214 1966 9 NAACP v Button 371 U S 415 433 1963 10 New York Times Co v Sullivan 376 U S 254 1964 10 Packingham v North Carolina 137 S Ct 1730 2017 17 i Case 18-56669 04 29 2019 ID 11281039 DktEntry 38 Page 6 of 34 Reno v Am Civil Liberties Union 521 U S 844 1997 13 Richmond Newspapers Inc v Virginia 448 U S 555 1980 8 9 Riley v California 573 U S 373 2014 16 17 Sessions v Twitter Inc No 5 17-cv-353-DAE ECF No 19 W D Tex June 21 2017 14 Stanley v Georgia 394 U S 557 1969 5 Statutes U S Const amend I passim U S Const amend IV 18 Other Authorities Priyanka Boghani Gag Order Gone Secrets of a National Security Letter are Revealed PBS Frontline Dec 2 2015 6 Maria Bustillos What It’s Like to get a National-Security Letter The New Yorker Jun 27 2013 7 Cloud-Computing DemographicAge-Group https www statista com statistics 17 Kate Conger Twitter releases national security letters TechCrunch Jan 27 2017 7 Alison Leigh Cown Judges Question Patriot Act in Library and Internet Case N Y Times Nov 3 2005 6 Facebook Transparency Report Government Requests for User Data https transparency facebook com government-datarequests country US 18 Barton Gellman The FBI’s Secret Scrutiny Wash Post Nov 6 2005 6 ii Case 18-56669 04 29 2019 ID 11281039 DktEntry 38 Page 7 of 34 Library and Internet Case N Y Times Nov 3 2005 6 Microsoft Law Enforcement Requests Report https www microsoft com en-us corporate-responsibility lerr 5 Paul Mozur Jonah M Kessel and Melissa Chan Made in China Exported to the World The Surveillance State N Y Times Apr 24 2019 10 Mukasey et al Elect Frontier Found Apr 5 2016 12 My National Security Letter Gag Order Wash Post Mar 23 2007 6 National-Security Letter The New Yorker Jun 28 2013 7 National Security Letters Yahoo Global Public Policy Jun 1 2016 7 Off Direct Nat’l Intelligence at 38 April 2018 12 Pew Research Center Public Perceptions of Privacy and Security in the Post-Snowden Era 5 Pew Research Center Social Media Fact Sheet 17 Remarks by President Barack Obama on Review of Signals Intelligence Jan 17 2014 10 Report by the Office of the Inspector General of the Department of Justice on the Federal Bureau of Investigation’s Use of Exigent Letters and Other Informal Requests for Telephone Records Hearing Before the Subcomm on the Constitution Civil Rights and Civil Liberties of the H Comm on the Jud Apr 10 2010 6 Report Regarding the Use of National Security Authorities for Calendar Year 2017 “2017 ODNI Report” 12 Report Submitted to Congress Regarding FISA U S Dep’t of Justice Office of Legislative Affairs at 3 April 30 2018 12 R Jeffrey Smith FBI Violations May Number 3 000 Official Says Wash Post Mar 21 2007 7 Termination Procedures for National Security Letter Nondisclosure Requirement 3 14 iii Case 18-56669 04 29 2019 ID 11281039 DktEntry 38 Page 8 of 34 U S Dep’t of Justice Office of the Inspector Gen A Review of the Federal Bureau of Investigation’s Use of National Security Letters 2007 6 U S Dep’t of Justice Office of the Inspector Gen U S Dep’t of Justice A Review of the Federal Bureau of Investigation’s Use of National Security Letters Assessment of Progress in Implementing Recommendations and Examination of Use in 2007 Through 2009 “NSL Report” 13 iv Case 18-56669 04 29 2019 ID 11281039 DktEntry 38 Page 9 of 34 INTEREST OF AMICI CURIAE1 Amici curiae are American Society of News Editors Associated Press Media Editors Association of Alternative Newsmedia The Associated Press The Center for Investigative Reporting The Center for Public Integrity First Look Media Works Inc Hearst Corporation The McClatchy Company MPA–The Association of Magazine Media The National Security Archive The New York Times Company Online News Association The Reporters Committee for Freedom of the Press Society of Professional Journalists and The Washington Post A more detailed description of Amici is contained in Appendix A to this brief Amici file this brief in support of the Appellant in this case—an electronic communications service provider whose identity remains under seal As representatives and members of the news media journalists writers and researchers collectively the “media” amici are committed to the principle of transparency They have a strong interest in exercising their First Amendment rights to inform the public about the extent of government surveillance of citizens including the government’s issuance of National Security Letters “NSLs” —often accompanied by gag orders of indefinite and potentially infinite duration—to electronic communications service providers that store troves of information about individuals 1 No party’s counsel authored any part of this brief No person other than amici or their counsel contributed money intended to fund the brief’s preparation or submission All parties have consented to the filing of this brief Case 18-56669 04 29 2019 ID 11281039 DktEntry 38 Page 10 of 34 SUMMARY OF ARGUMENT Amici agree with Appellant that the nondisclosure orders of unlimited duration that accompany the three NSLs in this case cannot be squared with the First Amendment In particular those gag orders cannot satisfy “strict scrutiny ” which applies because the orders are classic prior restraints and also content-based restrictions on protected speech Amici write separately to emphasize their unique perspective on three issues First amici’s members and communications service provider recipients of NSLs have mutually reinforcing First Amendment interests in disclosure Like Appellant here many service providers want to disclose basic information about the NSLs they have received demanding access to their customers’ private information At the same time the media want to inform the public about these government demands and the public wants to know about them Gag orders—and especially indefinite gag orders of the type here—cut off this virtuous cycle of communication and stymie the interests of amici’s members in contributing to debate on a subject of intense public interest the operations of the government in surveilling its citizens This strikes a severe blow to core First Amendment speech that is central to a functioning democracy Second the media play an important independent role in contributing to meaningful public oversight of government surveillance 2 Though the service Case 18-56669 04 29 2019 ID 11281039 DktEntry 38 Page 11 of 34 provider here had the conviction and wherewithal to launch a lawsuit challenging the gag orders in question the same will not be true for every recipient of an NSL and accompanying nondisclosure order Indeed the limited information that is publicly available about the thousands of secret NSLs that the government now issues each year suggests that only a small fraction are challenged in court In all other cases then it falls to the government to rely on its own self-initiated review process under the FBI’s “Termination Procedures ” Those Procedures provide for an initial review of the alleged need for the nondisclosure order on the third anniversary of the relevant investigation and a second review when the investigation ends As this case illustrates however that self-policing mechanism fails to provide the breathing space needed for First Amendment freedoms The media play an important role in contributing to the public debate about government surveillance And they can do that job effectively only if this Court and others make clear that NSL nondisclosure orders must be temporally limited and that the government must make a compelling showing to a court that ongoing secrecy is needed Third as in other areas of the law the digital revolution calls for special consideration of the burdens on constitutional rights With the rapid and continuing growth of online platforms and cloud computing electronic communications service providers—from Facebook to Twitter to cloud computing providers—now store vast troves of individuals’ private information which is increasingly subject to NSLs and 3 Case 18-56669 04 29 2019 ID 11281039 DktEntry 38 Page 12 of 34 other government demands for disclosure The concerns presented by unbounded nondisclosure orders are particularly acute when considered against this backdrop ARGUMENT I The Media and Recipients of National Security Letters Have Mutually Reinforcing First Amendment Interests in Contributing to the Public Debate About Government Surveillance Activities Amici support the challenge by Appellant an electronic communications service provider whose identity remains sealed to the temporally unlimited gag order prohibiting Appellant from publicly disclosing even basic information about the three NSLs it received eight years ago—a classic prior restraint that has no end in sight See Alexander v United States 509 U S 544 550 1993 “ t he term prior restraint is used to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur ” internal quotation marks and citation omitted Both the media and recipients of NSLs have mutually reinforcing First Amendment interests in disclosure As this litigation vividly illustrates many service provider recipients of NSLs want to disclose basic information about the NSLs they have received requiring the production of information about third parties often their customers Appellant is one such recipient and “is committed to providing meaningful transparency to its users and the public about requests it receives to disclose account information or remove content ” Appellant Br at 1 4 Case 18-56669 04 29 2019 ID 11281039 DktEntry 38 Page 13 of 34 Appellant publishes a semi-annual transparency report that discloses information about government and non-government requests for user data and when lawful and appropriate notifies its users when the government is seeking their information Id Several major service providers do the same See e g Microsoft Law Enforcement Requests Report available at https www microsoft com en-us corporate- responsibility lerr “Twice a year we publish the number of legal demands for customer data that we receive from law enforcement agencies around the world” Facebook Transparency Report Government Requests for User Data available at https transparency facebook com government-data-requests describing “ongoing effort to share more information about the requests we have received from governments around the world ” At the same time the media want to report this information to the public which in turn wants to receive it See e g Stanley v Georgia 394 U S 557 564 1969 “‘It is now well established that the Constitution protects the right to receive information and ideas ’” citation omitted Indeed recent surveys confirm that government surveillance and its impact on personal privacy are topics of pressing public concern See e g Mary Madden Public Perceptions of Privacy and Security in the Post-Snowden Era at 3 Pew Research Center Nov 2014 The nondisclosure requirement however cuts off public debate by completely silencing NSL recipients who wish to inform the press and the public 5 Case 18-56669 04 29 2019 ID 11281039 DktEntry 38 Page 14 of 34 about government surveillance Although electronic surveillance methods used by the FBI and other government agencies have been the subject of intense public interest 2 internal audits and reports 3 and congressional review 4 little is known about the extent of the government’s access to private data stored in the cloud Individuals and companies who receive NSLs have persistently tried to engage in meaningful and public debate about the subject For example Nicholas Merrill the owner of an Internet service company spent eleven years battling a nondisclosure order See Priyanka Boghani Gag Order Gone Secrets of a National Security Letter are Revealed PBS Frontline Dec 2 2015 available at https www pbs org wgbh frontline article gag-order-gone-secrets-of-a-nationalsecurity-letter-are-revealed Major communications service providers have also 2 See e g Barton Gellman The FBI’s Secret Scrutiny Wash Post Nov 6 2005 available at http www washingtonpost com wpdyn content article 2005 11 05 AR2005110501366 html Alison Leigh Cowen Judges Question Patriot Act in Library and Internet Case N Y Times Nov 3 2005 available at https www nytimes com 2005 11 03 nyregion judges-questionpatriot-act-in-library-and-internet-case html Anonymous My National Security Letter Gag Order Wash Post Mar 23 2007 available at http www washingtonpost com wp-dyn content article 2007 03 22 AR2007032201882 html 3 See e g U S Dep’t of Justice Office of the Inspector Gen A Review of the Federal Bureau of Investigation’s Use of National Security Letters 2007 available at https oig justice gov special s0703b final pdf see also infra notes 4 6-7 4 See e g Report by the Office of the Inspector Gen of the Dep’t of Justice on the Federal Bureau of Investigation’s Use of Exigent Letters and Other Informal Requests for Telephone Records Hearing Before the Subcomm on the Constitution Civil Rights and Civil Liberties of the H Comm on the Jud Apr 14 2010 available at https fas org irp congress 2010_hr exigent pdf 6 Case 18-56669 04 29 2019 ID 11281039 DktEntry 38 Page 15 of 34 sought to inform the public—to the extent possible under the onerous restrictions applied by the government—about the NSLs they have received See supra at 5 see also Chris Madsen Yahoo Announces Public Disclosure of National Security Letters Yahoo Global Public Policy Jun 1 2016 available at https yahoopolicy tumblr com post 145258843473 yahoo-announces-publicdisclosure-of-national Kate Conger Twitter releases national security letters TechCrunch Jan 27 2017 available at https techcrunch com 2017 01 27 twitterreleases-national-security-letters In turn the media has responded to the public’s intense interest by reporting what little information is available about NSL practice See e g Maria Bustillos What It’s Like to get a National-Security Letter The New Yorker Jun 27 2013 available at https www newyorker com tech annals-of-technology what-its-liketo-get-a-national-security-letter R Jeffrey Smith FBI Violations May Number 3 000 Official Says Wash Post Mar 21 2007 available at http www washingtonpost com wp-dyn content article 2007 03 20 AR2007032000921 html But because of the secrecy shrouding government surveillance programs the media must rely on recipients of NSLs and other forms of electronic surveillance orders to share information before reporting on this subject Accordingly as long as NSL recipients are prevented from disclosing the existence of NSLs the press is unable 7 Case 18-56669 04 29 2019 ID 11281039 DktEntry 38 Page 16 of 34 to fulfill its constitutionally recognized role of informing the public about government activities including the extent of government surveillance These reciprocal First Amendment interests—a real-world example of how “‘ s unlight is the best of disinfectants ’” Buckley v Valeo 424 U S 1 67 1976 quoting Louis Brandeis Other People’s Money 62 1933 —are severely threatened by a government-issued mandate that muzzles the service provider and inhibits the media’s ability to shine a spotlight on the extent of the government’s requests for individual citizens’ data Although the FBI has adopted procedures providing for two discrete periods of review for NSL nondisclosure orders one on the three-year anniversary of an investigation and another at the close of an investigation as discussed further below those protections fall short in significant ways As a result a nondisclosure order accompanying an NSL may remain in effect in perpetuity Worse still the shortcomings of this intensely secretive regime—highlighted by this case—strike at the heart of the First Amendment’s structural protections of the democratic process “Customarily First Amendment guarantees are interposed to protect communication between speaker and listener But the First Amendment embodies more than a commitment to free expression and communicative interchange for their own sakes it has a structural role to play in securing and fostering our republican system of self-government ” Richmond Newspapers Inc v Virginia 448 U S 555 586-87 1980 Brennan J concurring 8 Case 18-56669 04 29 2019 ID 11281039 DktEntry 38 Page 17 of 34 in the judgment As Justice Brennan explained in Richmond Newspapers this ensures not only that “‘debate on public issues remains uninhibited robust and wide-open ’” but also that it is “informed” and thus contributes to “th e process of communication necessary for a democracy to survive ” Id at 587-88 citing inter alia New York Times Co v Sullivan 376 U S 254 270 1964 see also Garrison v Louisiana 379 U S 64 74-75 1964 “ S peech concerning public affairs is more than self-expression it is the essence of self-government ” overruled on other grounds Curtis Publ’g Co v Butts 388 U S 130 134 1967 Further non-disclosure orders like those challenged here restrict expression at the core of the First Amendment discussion about government actions both by the recipients of NSLs and by the media “ T here is practically universal agreement that a major purpose of the First Amendment was to protect the free discussion of governmental affairs ” Mills v Alabama 384 U S 214 218 1966 Moreover First Amendment concerns are heightened by the risk that the government may use nondisclosure orders to skew the broader debate about the circumstances in which it accesses the online communications and information of ordinary citizens Nondisclosure orders that are unlimited in duration also could be improperly wielded to suppress public scrutiny of government abuses—for example law enforcement 9 Case 18-56669 04 29 2019 ID 11281039 DktEntry 38 Page 18 of 34 action that targets unpopular protected speech or political rivals 5 “ I n the absence of institutional requirements for regular debate—and oversight that is public as well as private or classified—the danger of government overreach becomes more acute And this is particularly true when surveillance technology and our reliance on digital information is evolving much faster than our laws ” Remarks by President Barack Obama on Review of Signals Intelligence Jan 17 2014 II The Media Play an Important Independent Role in Contributing to Meaningful Public Oversight In applying First Amendment doctrine to the facts of this case amici respectfully urge the Court to consider the important independent role that the media can play in shedding light on the use of NSLs That is especially the case where as here neither relying on potential legal challenges from service provider recipients of NSLs nor an infrequent and self-initiated government review provides sufficient “‘breathing space’” to safeguard First Amendment freedoms Sullivan 376 U S at 272 quoting NAACP v Button 371 U S 415 433 1963 5 The potential misuse of governmental surveillance programs is a topic of global concern See e g Paul Mozur Jonah M Kessel and Melissa Chan Made in China Exported to the World The Surveillance State N Y Times Apr 24 2019 discussing misuse of extensive surveillance apparatus by Ecuador’s former president to further authoritarian measures available at https www nytimes com 2019 04 24 technology ecuador-surveillance-cameraspolice-government html action click module Top%20Stories pgtype Homepage 10 Case 18-56669 04 29 2019 ID 11281039 DktEntry 38 Page 19 of 34 The media’s role is unique because NSLs often evade both public scrutiny and review by the courts In many cases although not here the service provider in question may simply accede to unlimited gag orders prohibiting any disclosures about NSLs and choose to forego judicial review The affected individuals—for instance consumers who post reviews on websites users of social networking sites or users who entrust vast amounts of their private data to cloud computing providers—may be none the wiser that their information is being turned over to the government and with a nondisclosure rule of unlimited duration they may never learn about this The broader public too is left entirely in the dark Moreover given the costs and risks entailed by challenging a gag order accompanying an NSL and potentially the underlying NSL itself in court a legal regime that relies in large part on the discretion of a service provider to challenge otherwise indefinite gag orders may place users of smaller and less established services—with less financial resources—at a systematic disadvantage And the extremely limited information that is publicly available about the use of NSLs suggests that for whatever reason many service providers choose the path of least resistance Although it is impossible to determine with certainty how many NSLs the government has issued and how many are actually challenged in court given the secrecy that surrounds NSLs it appears that the vast majority of NSLs go uncontested The FBI issued 111 144 requests for NSLs during the 2007-2009 11 Case 18-56669 04 29 2019 ID 11281039 DktEntry 38 Page 20 of 34 period averaging 37 048 annual requests 6 The most recent data show that in 2017 the FBI issued 12 762 NSLs containing over 41 579 requests 7 Historically the average annual figure is close to 50 000 requests 8 And a majority of the requests relate to investigations of United States persons 9 Yet despite the proliferation of annual requests only a handful of challenges by NSL recipients have come to light See e g In re Nat’l Sec Letter 863 F 3d 1110 9th Cir 2017 Doe v Ashcroft 334 F Supp 2d 471 S D N Y 2004 vacated by Doe I v Gonzales 449 F 3d 415 2d Cir 2006 Doe v Gonzales 386 F Supp 2d 66 68-69 D Conn 2005 citing case with NSL amendment violations Internet Archives et al v Mukasey et al Elec Frontier Found Apr 5 2016 available at 6 See U S Dep’t of Justice Office of the Inspector Gen A Review of the Federal Bureau of Investigation’s Use of National Security Letters Assessment of Progress in Implementing Recommendations and Examination of Use in 2007 Through 2009 “NSL Report” at 64 2014 available at https oig justice gov reports 2014 s1408 pdf discussing NSLs issued by the FBI 7 Office of the Dir of Nat’l Intelligence Statistical Transparency Report Regarding the Use of National Security Authorities for Calendar Year 2017 at 38 “2017 ODNI Report” April 2018 available at https www dni gov files documents icotr 2018-ASTR----CY2017----FINAL-forRelease-5 4 18 pdf 8 See NSL Report supra note 6 at 65 9 See id at 62 providing graphic of NSL requests relating to investigation of U S citizens compare 2017 ODNI Report supra note 7 at 38 reporting 12 762 NSLs with Annual Report Submitted to Congress Regarding FISA U S Dep’t of Justice Office of Legislative Affairs at 3 April 30 2018 reporting FBI made 9 006 NSL requests in 2017 for information concerning United States persons 12 Case 18-56669 04 29 2019 ID 11281039 DktEntry 38 Page 21 of 34 https www eff org cases archive-v-mukasey reporting on Internet Archive’s complaint challenging NSL request which the FBI later withdrew Thus the available public records suggest that only small fraction of the thousands of NSLs issued by the government each year are ultimately subject to judicial review The possibility that any given NSL will never even come to light is therefore extremely high As a result the media can only perform their role of informing the public on the extent of government issuance of NSLs if the courts’ application of the governing rules places meaningful limits on the scope and duration of gag orders and holds the government to its burden of showing an ongoing and compelling need for nondisclosure The First Amendment requires no less This Court has previously recognized that the nondisclosure obligations that routinely accompany NSLs are content-based restrictions that warrant strict scrutiny In re Nat’l Sec Letter 863 F 3d at 1123 To survive such scrutiny the government’s speech-suppressing measures must be narrowly tailored to the government’s asserted interest and the burden rests squarely on the government to make that showing Id at 1121 “A restriction is not narrowly tailored ‘if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve ’” Id at 1124 quoting Reno v Am Civil Liberties Union 521 U S 844 874 1997 And here a less restrictive means—i e court-ordered review of the nondisclosure obligations of NSLs at more 13 Case 18-56669 04 29 2019 ID 11281039 DktEntry 38 Page 22 of 34 frequent intervals with the burden on the government to demonstrate on ongoing compelling need for secrecy—is readily available and can preserve the government’s interests Indeed other courts have ordered this relief See e g Sessions v Twitter Inc No 5 17-cv-353-DAE ECF No 19 W D Tex June 21 2017 imposing a nondisclosure order requiring triennial judicial review In re Nat’l Sec Letters No 16-518 JEB 2016 WL 7017215 D D C July 25 2016 same The court below should have done the same here 10 The District Court instead pointed to the FBI’s Termination Procedures as a potential backstop to protect First Amendment interests But those Procedures provide cold comfort because the government-initiated review process they entail is riddled with loopholes 11 First the Procedures themselves are not codified in a 10 Although this Court held that the statutory regime authorizing NSLs is not unconstitutional on its face the Court recognized the importance of meaningful judicial review of particular nondisclosure orders “ A s part of the judicial review process a court may require the government to justify the continued necessity of nondisclosure on a periodic ongoing basis or may terminate the nondisclosure requirement entirely if the government cannot certify that one of the four enumerated harms may occur ” In re Nat’l Sec Letter 863 F 3d at 1127 citations omitted To the extent that the court below believed that this Court’s rejection of a facial challenge to the underlying statute precludes meaningful judicial oversight of nondisclosure orders on a case-by-case basis it was mistaken 11 Under the Termination Procedures review is initiated solely by the government See Termination Procedures for National Security Letter Nondisclosure Requirement at 2 available at https www fbi gov filerepository nsl-ndp-procedures pdf view “The FBI also will review all NSL nondisclosure determinations on the three-year anniversary of the initiation of the 14 Case 18-56669 04 29 2019 ID 11281039 DktEntry 38 Page 23 of 34 statute and the government has not clearly conceded that they are legally binding requirements See Appellant Br at 25 Second it is not even clear whether the procedures apply to NSLs—like the three here—that were issued before the FBI adopted the Procedures in November 2015 Third even if the procedures do apply here for ongoing investigations that have not yet reached their three-year anniversary there is not even a suggestion that the government should undertake a refreshed assessment of the presumed need for secrecy And once the three-year anniversary has passed investigations may remain open for many years or even decades Thus an NSL gag order may remain in place long after there is no genuine need for continued secrecy See In re Nat’l Sec Letter 863 F 3d at 1126 “ I f an investigation extends for many years the Termination Procedures do not provide for any interim review between the third-year anniversary and the date the investigation closes” emphasis added For all these reasons this Court should conclude that the Termination Procedures do not save the NSL gag orders here III The Continuing Growth of Online Platforms and Cloud Computing Will Render This Issue Increasingly Salient in the Digital Age Finally the First Amendment concerns discussed above are particularly acute in today’s digital marketplace With the rapid and continuing growth of online platforms and cloud computing electronic communications service providers— full investigation and terminate nondisclosure at that time unless the FBI determines that one of the statutory standards for nondisclosure is satisfied ” 15 Case 18-56669 04 29 2019 ID 11281039 DktEntry 38 Page 24 of 34 from Facebook to Twitter to cloud computing providers—store vast troves of information that are increasingly subject to government demands for disclosure including via NSLs See infra at 17-18 As the Supreme Court has recognized the digital age raises unique concerns that require ever more vigilance toward constitutional rights Riley v California 573 U S 373 393-97 2014 Although Riley addressed a separate constitutional right the right to be free from unreasonable searches and seizures the Court’s basic point—that constitutional concerns may take on special salience and demand a more solicitous approach when addressing the challenges presented by new technology— rings true here as well Noting the unique concerns presented when traditional doctrine allowing law enforcement to conduct searches “incident to” lawful arrest is applied to searches of cell phones and “smartphones” in particular the Court explained that “many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone” and contain “immense storage capacity ” which has “several interrelated consequences for privacy ” Id at 393-94 Indeed “ t he sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates locations and descriptions ” while “the same cannot be said of a photograph or two of loved ones tucked into a wallet ” Id This technology therefore “implicate s privacy concerns far beyond those implicated” by more conventional searches Id 16 Case 18-56669 04 29 2019 ID 11281039 DktEntry 38 Page 25 of 34 As the Court in Riley recognized modern cell phones are just the tip of the iceberg because “with increasing frequency” Americans are “taking advantage of cloud computing ” which is “the capacity of Internet-connected devices to display data stored on remote servers rather than on the device itself ” Id at 397 These services allow for the remote storage of significantly more user data—by a staggeringly large multiplier—than a single cell phone As of May 2017 61% of adults aged 18-29 participating online used cloud computing services with an additional 42% of users aged 30-59 doing so as well 12 The use of social media which has allowed digital media companies to collect virtual treasure troves of personal data has also skyrocketed—with fully 70% of Americans now using social media to communicate access the news and share personal information 13 The Supreme Court recently confirmed the primacy of these digital spaces for expressive activity observing that “ w hile in the past there may have been difficulty in identifying the most important places in a spatial sense for the exchange of views today the answer is clear It is cyberspace—the ‘vast democratic forums of the Internet’ in general and social media in particular ” Packingham v North Carolina 137 S Ct 1730 1735 2017 quoting Reno v Am Civil Liberties Union 12 See https www statista com statistics 710972 us-cloud-computing-demographicage-group 13 See Pew Research Center Social Media https www pewinternet org fact-sheet social-media 17 Fact Sheet at Case 18-56669 04 29 2019 ID 11281039 DktEntry 38 Page 26 of 34 521 U S 844 868 1997 Yet all of these services are prime targets of NSLs and gag orders that bar their users and the broader public from ever learning about them And they are now issued at a breathtaking pace seeking massive volumes of information See supra at 11-12 Facebook for instance reports that it may have received up to 499 such requests during a single six-month period January–June 2018 14 Just as Fourth Amendment doctrine developed for an analog world cannot be transplanted wholesale into the digital era the First Amendment analysis here should take account of the current pervasive use of NSLs and the unprecedented volumes of information those requests can covertly sweep into the hands of government In this context the First Amendment demands that meaningful constrains be placed on nondisclosure orders that attach to NSLs CONCLUSION For the foregoing reasons the Court should reverse the District Court’s judgment and remand the case to the District Court so that new and more temporally limited nondisclosure obligations if any are still needed can be narrowly tailored to the interest asserted by the government through the NSLs 14 See https transparency facebook com government-data-requests country US 18 Case 18-56669 04 29 2019 ID 11281039 DktEntry 38 Page 27 of 34 Dated April 29 2019 Respectfully submitted s Peter Karanjia Lisa Zycherman Davis Wright Tremaine LLP 1919 Pennsylvania Avenue NW Washington DC 20006 Suite 800 E-mail lisazycherman@dwt com T 202 973-4280 F 202 973-4480 Peter Karanjia DLA Piper LLP US 500 Eighth Street NW Washington DC 20004 E-mail peter karanjia@dlapiper com T 202 799-4135 F 202 863-7855 Attorneys for Amici Curiae 19 Case 18-56669 04 29 2019 ID 11281039 DktEntry 38 Page 28 of 34 APPENDIX A SUPPLEMENTAL INFORMATION ABOUT AMICI American Society of News Editors “ASNE” is an organization—with some 500 members—that includes directing editors of daily newspapers throughout the Americas In 2009 ASNE broadened its membership to include editors of online news providers and academic leaders Founded in 1922 as American Society of Newspaper Editors ASNE is active in a number of areas of interest to top editors with priorities on improving freedom of information diversity readership and the credibility of newspapers The Associated Press Media Editors “APME” is a nonprofit tax-exempt organization of newsroom leaders and journalism educators that works closely with The Associated Press to promote journalism excellence APME advances the principles and practices of responsible journalism supports and mentors a diverse network of current and emerging newsroom leaders and champions the First Amendment and promotes freedom of information Association of Alternative Newsmedia “AAN” is a not-for-profit trade association for approximately 110 alternative newspapers in North America AAN newspapers and their websites provide an editorial alternative to the mainstream press AAN members have a total weekly circulation of seven million and a reach of over 25 million readers A-1 Case 18-56669 04 29 2019 ID 11281039 DktEntry 38 Page 29 of 34 The Associated Press “AP” is a news cooperative organized under the Notfor-Profit Corporation Law of New York The AP’s members and subscribers include the nation’s newspapers magazines broadcasters cable news services and Internet content providers The AP operates from 280 locations in more than 100 countries On any given day AP’s content can reach more than half of the world’s population The Center for Investigative Reporting “CIR” founded in 1977 is the nation’s first nonprofit investigative journalism organization CIR produces investigative journalism for its website its national public radio show and podcast and various documentary projects The Center for Public Integrity is a non-profit non-partisan international organization that produces investigative journalism in the public interest To pursue its mission the Center generates high-quality accessible investigative reports databases and contextual analysis on issues of public importance The Center’s coverage areas include politics—at both the national and state levels business environment workers’ rights immigration and national security First Look Media Works Inc “First Look” is a non-profit digital media venture that produces The Intercept a digital magazine focused on national-security reporting A-2 Case 18-56669 04 29 2019 ID 11281039 DktEntry 38 Page 30 of 34 Hearst Corporation is one of the nation’s largest diversified media information and services companies with more than 360 businesses Its major interests include ownership of 24 daily and 60 weekly newspapers including the San Francisco Chronicle Houston Chronicle and Albany Times Union hundreds of magazines around the world including Cosmopolitan Good Housekeeping ELLE Harper’s BAZAAR and O The Oprah Magazine 34 television stations such as KCRA-TV in Sacramento Calif and KSBW-TV in Monterey Salinas California which reach a combined 19 percent of U S viewers ownership in leading cable television networks such as A E HISTORY Lifetime and ESPN and significant holdings in other businesses The McClatchy Company is a publisher of iconic brands such as The Miami Herald The Kansas City Star The Sacramento Bee The Charlotte Observer The Raleigh News and Observer and The Fort Worth Star-Telegram McClatchy operates media companies in 28 U S markets in 14 states providing each of its communities with high-quality news and advertising services in a wide array of digital and print formats McClatchy is headquartered in Sacramento California MPA – The Association of Magazine Media “MPA” is the largest industry association for magazine publishers The MPA established in 1919 represents over 175 domestic magazine media companies with more than 900 magazine titles The MPA represents the interests of weekly monthly and quarterly publications that A-3 Case 18-56669 04 29 2019 ID 11281039 DktEntry 38 Page 31 of 34 produce titles on topics that cover politics religion sports industry and virtually every other interest avocation or pastime enjoyed by Americans The MPA has a long history of advocating on First Amendment issues The National Security Archive “the Archive” founded in 1985 is an independent nongovernmental research institute and library affiliated with George Washington University The Archive collects and serves as a publicly available library of government records on a wide range of topics pertaining to the nationalsecurity intelligence and economic policies of the United States The Archive won the 1999 George Polk Award for “piercing the self-serving veils of government secrecy guiding journalists in the search for the truth and informing us all ” The New York Times Company is the publisher of The New York Times and The International Times and operates the news website nytimes com Online News Association “ONA” is the world’s largest association of online journalists ONA’s mission is to inspire innovation and excellence among journalists to better serve the public ONA’s more than 2 000 members include news writers producers designers editors bloggers technologists photographers academics students and others who produce news for the Internet or other digital delivery systems ONA is dedicated to advancing the interests of digital journalists and the public generally by encouraging editorial integrity and independence journalistic excellence and freedom of expression and access A-4 Case 18-56669 04 29 2019 ID 11281039 DktEntry 38 Page 32 of 34 The Reporters Committee for Freedom of the Press the “Reporters Committee” is an unincorporated nonprofit association The Reporters Committee was founded by leading journalists and media lawyers in 1970 when the nation’s news media faced an unprecedented wave of government subpoenas forcing reporters to identify their confidential sources Today its attorneys provide pro bono legal representation and resources to protect First Amendment freedoms and the newsgathering rights of journalists Society of Professional Journalists “SPJ” is dedicated to improving and protecting journalism It is the nation’s largest and most broad-based journalism organization dedicated to encouraging the free practice of journalism and promoting high standards of ethical behavior Founded in 1909 as Sigma Delta Chi SPJ promotes the free flow of information vital to a well-informed citizenry works to inspire and educate the next generation of journalists and protects First Amendment guarantees of freedom of speech and press The Washington Post formally WP Company LLC is a news organization based in Washington D C It publishes The Washington Post daily newspaper the website www washingtonpost com and a number of digital and mobile news products A-5 Case 18-56669 04 29 2019 ID 11281039 DktEntry 38 Page 33 of 34 CERTIFICATE OF COMPLIANCE This amicus brief complies with the lengths permitted by Federal Rule of Appellate Procedure 29 a 5 because it contains 5 190 words excluding the portions exempted by Federal Rule of Appellate Procedure 32 f The brief complies with Federal Rule of Appellate Procedure 32 a 5 and 6 because it has been prepared using Microsoft Office Word 2016 and has a typeface of 14-point Times New Roman Dated April 29 2019 s Peter Karanjia Peter Karanjia Case 18-56669 04 29 2019 ID 11281039 DktEntry 38 Page 34 of 34 CERTIFICATE OF SERVICE I hereby certify that on April 29 2019 I electronically filed this brief with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit using the appellate CM ECF system I certify that all participants in the case are registered CM ECF users and that service will be accomplished by the appellate CM ECF system Dated April 29 2019 s Peter Karanjia Peter Karanjia