On Dec. 15, 2008, in John Doe v. Mukasey, No. 07-4943-cv, the United States Court of Appeals for the Second Circuit affirmed in part and reversed in part a Southern District of New York decision declaring National Security Letters ("NSLs") unconstitutional. 18 U.S.C. 2709 authorizes the Federal Bureau of Investigation (FBI) to issue NSLs to providers of electronic communication services, under which the providers must disclose subscriber information, billing information and transactional records to assist in the investigation of international terrorism or clandestine intelligence activities. Further, the providers are prohibited from disclosing receipt of the NSL to any third party.

The lower court, in its Sept. 7, 2007 decision, had held that the statute's nondisclosure provisions, as well as its provisions allowing limited judicial review of NSLs, were unconstitutional, and ultimately invalidated all of section 2709 because it deemed the unconstitutional provisions not severable from the other provisions of the statute. The court then enjoined the FBI from issuing NSLs and from enforcing the nondisclosure provisions, although the injunction was stayed pending appeal.

The appellate court affirmed that some of the nondisclosure-related provisions of the NSL statute were unconstitutional, but concluded that the unconstitutional provisions could be severed from the valid provisions, leaving the remaining provisions in force. The court addressed the constitutionality issues with nondisclosure and judicial review by placing the burden on the government to certify that disclosure may result in harm related to a terrorism investigation or clandestine intelligence activities, and to show that good reason exists to expect that disclosure of the NSL would cause such harm. As part of the requirement that the government show cause, the provisions of the statute creating a conclusive presumption of correctness upon such certification by the FBI were stricken.

In order to comply with the statute as interpreted by the appellate court, the government must notify the provider that the nondisclosure provision is subject to judicial review, after which the provider has 10 days to request such review. If the provider does so, the government has 30 days in which to consider whether to seek judicial review, and, if it does so, a court must adjudicate the issue within 60 days. During the review period, the nondisclosure obligations still apply.

The net result is that the government can continue to use NSLs for intelligence gathering, but will not be able to invoke the nondisclosure provisions of the statute in every case.