Case 4:14-cv-04480-YGR Document 328 Filed 04/17/20 Page 1 of 11
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
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`TWITTER, INC.,
`Plaintiff,
`
`v.
`WILLIAM P. BARR, ET AL.,
`Defendants.
`
`
`
`
`Case No. 14-cv-04480-YGR
`
`ORDER GRANTING GOVERNMENT’S
`MOTION FOR SUMMARY JUDGMENT;
`DENYING TWITTER’S CROSS-MOTION FOR
`SUMMARY JUDGMENT
`
`DKT. NOS. 309, 311
`
`
`
`
`This long-pending case has morphed through myriad iterations and legislative changes.
`That plaintiff has continued to pursue the action merely underscores the tension between the First
`Amendment and national security and the future impact of the proceedings. The Court now
`addresses the cross-motions of plaintiff Twitter, Inc. (“Twitter”) and defendants William P. Barr,
`et al. (“the Government”) for summary judgment. (Dkt. Nos. 309, 311.) The Court having
`considered the parties’ briefing in support of and in opposition to the cross-motions, the
`admissible evidence1 (including evidence presented in camera2), and the prior proceedings and
`
`
`1 Twitter requests judicial notice of publicly available reports prepared by the Director of
`the Administrative Office of the U.S. Courts, Office of the Director of National Intelligence, and
`the U.S. Department of Justice Office of Legislative Affairs (Dkt. No. 315) in support of Twitter’s
`cross-motion and opposition. In connection with its reply briefing, Twitter also filed a
`supplemental request for judicial notice of transparency reports published by five companies
`(Adobe, Cisco, Automattic, Wickr, and Nest) and that such reports include statements that they
`companies have received zero national security process requests during one or more reporting
`periods. (Dkt. No. 327.) The Government did not oppose either request. The Court finds that it is
`proper to take judicial notice of the fact of these reports and their contents, not the truth of any
`statements therein. The requests for judicial notice are GRANTED.
`2 Twitter argues that the Government’s motion should be denied for the further reason that
`it needs access to the Classified Tabb Declaration in order to meaningfully counter the
`Government’s claim that the restrictions it has imposed on the Draft Transparency Report pass
`constitutional muster. The Court finds that the classified declaration of EAD Tabb cannot be
`disclosed to counsel for Twitter based upon the national security concerns it raises, despite
`counsel’s clearance approval. Thus, Twitter’s motion for summary judgment on these alternative
`grounds, as well as its motion for access of cleared counsel, are DENIED.
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`arguments in this matter, and for the reasons stated herein, ORDERS that the Government’s motion
`for summary judgment is GRANTED and Twitter’s cross-motion for summary judgment is DENIED.
`I.
`BACKGROUND
`A.
`Allegations of the Operative Complaint
`Twitter’s Second Amended Complaint (Dkt. No. 114, “SAC”) is the operative pleading in
`this action. The SAC seeks declaratory and injunctive relief based upon the Government’s alleged
`“prohibitions on [Twitter’s] speech in violation of the First Amendment,” specifically the
`Government’s prohibition on publishing its Draft Transparency Report “describing the amount of
`national security legal process3 it received, if any for the period July 1 to December 31, 2013.”
`(SAC ¶ 1, 4, emphasis in original.) Twitter further alleges that it “seeks to disclose that it
`received ‘zero’ FISA orders, or ‘zero’ of a specific kind of FISA order, for that period, if either of
`those circumstances is true.” (Id. ¶ 4, emphasis in original.) More particularly, Twitter alleges that
`it seeks to publish a report disclosing the following categories of quantitative data to its users for
`the relevant period:
`
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`The number of NSLs and FISA orders Twitter received, if any, in actual
`a.
`aggregate numbers (including “zero,” to the extent that that number was
`applicable to an aggregate number of NSLs or FISA orders or to specific kinds of
`FISA orders that Twitter may have received);
`b.
`The number of NSLs and FISA orders received, if any, reported
`separately, in ranges of one hundred, beginning with 1–99;
`c.
`The combined number of NSLs and FISA orders received, if any, in
`ranges of twenty-five, beginning with 1–24;
`d.
`A comparison of Twitter’s proposed (i.e., smaller) ranges with those
`authorized by the [Government in its earlier communication from then-Deputy
`Attorney General James M. Cole to the General Counsels for Facebook, Google,
`LinkedIn, Microsoft and Yahoo!, referred to as the] DAG Letter;
`e.
`A comparison of the aggregate numbers of NSLs and FISA orders
`received, if any, by Twitter and the five providers to whom the DAG Letter was
`addressed; and
`f.
`A descriptive statement about Twitter’s exposure to national security
`surveillance, if any, to express the overall degree of government surveillance it is
`or may be subject to.
`(Id. ¶ 56, emphasis in original.)
`The Government has prohibited publication of that Draft Transparency Report since
`
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`3 Those national security legal process requests include national security letters (“NSLs”)
`and other orders under the Foreign Intelligence Surveillance Act (“FISA”).
`2
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`Twitter submitted it for review on April 1, 2014, asserting that certain portions of the report
`contained classified information. (Id. ¶¶ 55, 57, 58.) In two counts of the SAC, Twitter alleges
`that the Government has classified information in the Draft Transparency Report improperly and
`therefore put unlawful prior restraints on its speech in violation of the First Amendment. Twitter
`alleges that these actions are both violations of the First Amendment and “final agency action”
`subject to challenge under the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. (SAC at ¶¶
`71-86 and 87-91.)4
`B.
`Procedural History
`The lengthy procedural history of this case is detailed in the Court’s prior orders. (See
`October 14, 2015 Order Denying Motion to Dismiss as Moot (Dkt. No. 85); May 2, 2016 Order
`Granting In Part and Denying In Part Motion to Dismiss Amended Complaint (Dkt. No. 113); July
`6, 2017 Order Denying Government’s Motion for Summary Judgment Without Prejudice;
`Granting Twitter’s Motion for Order Directing Defendants to Expedite Security Clearance (Dkt.
`No. 172)); November 27, 2017 Order Denying Motion for Reconsideration (Dkt. No. 186). The
`Court sets forth herein an abbreviated summary of the history as relevant to the instant motions.
`The Government previously moved for summary judgment (Dkt. No. 145) based upon a
`classified and a redacted declaration of Michael Steinbach, Executive Assistant Director (“EAD”)
`of the National Security Branch of the Federal Bureau of Investigation (“FBI”). (See Notice of
`Lodging of Classified Declaration of Michael Steinbach for In Camera, Ex Parte Review, Dkt.
`No. 144.) The Court reviewed the Classified Steinbach Declaration in camera and, based upon
`that review, denied the Government’s motion without prejudice. The Court found that, under the
`applicable constitutional standards, the Classified Steinbach declaration was inadequate to meet
`the Government’s burden to overcome the strong presumption of unconstitutionality of its content-
`based prior restrictions on Twitter’s speech. (Dkt. No. 172 at 17-18.) The Court found:
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`The Government’s restrictions on Twitter’s speech are content-based prior
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`4 Twitter alleges a third count seeking injunctive relief barring Government prosecution
`under the Espionage Act, 18 U.S.C. § 793(d) should Twitter disclose information in the Draft
`Transparency Report. (SAC ¶¶ 92-96.)
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`Case 4:14-cv-04480-YGR Document 328 Filed 04/17/20 Page 4 of 11
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`restraints subject to the highest level of scrutiny under the First Amendment. The
`restrictions are not narrowly tailored to prohibit only speech that would pose a
`clear and present danger or imminent harm to national security. The Government
`argues that the limitations imposed on Twitter are necessary because disclosure of
`data concerning the number and type of national security legal process that it
`received in a time period would impair national security interests and is properly
`classified. However, the Government has not presented evidence, beyond a
`generalized explanation, to demonstrate that disclosure of the information in the
`Draft Transparency Report would present such a grave and serious threat of
`damage to national security as to meet the applicable strict scrutiny standard.
`(Id. at 2.) The Court denied the motion without prejudice, offering the Government leave to
`submit additional evidence to support its restrictions. (See, e.g., Dkt. No. 182, Transcript of Case
`Management Conference, at 4:3-23.) The Government declined to do so. (Id.)
`Following a formal request by Twitter (Dkt. No. 250), the Court issued an Order to Show
`Cause (“OSC”) why the Classified Steinbach Declaration should not be disclosed to Twitter’s
`counsel who had been granted a security clearance. (Dkt. No. 261.) The Government filed a
`response to the OSC which included a motion to dismiss the action based on an assertion of the
`state secrets privilege. (Dkt. No. 281.) In connection with that response, the Government
`submitted in camera the Classified Declaration of Acting EAD Michael C. McGarrity. (See Dkt.
`No. 282, Notice of Lodging of Classified Declaration of Michael C. McGarrity for Ex Parte In
`Camera Review.) Drafted in support of the Government’s assertion of the state secrets privilege,
`the Classified Declaration of EAD McGarrity provided a more complete explanation and
`justification of the Government’s basis for restricting the information that may be published in the
`Draft Transparency Report, and the grave and imminent harm that could reasonably be expected to
`arise from its disclosure, in far greater detail than the Government provided previously.
`After considering McGarrity’s declaration provided in camera, the Court, on June 21,
`2019, issued an OSC indicating it was inclined to reconsider its prior order denying the
`Government’s summary judgment motion (Dkt. No. 301), stating:
`
`The Court is inclined to find that classified McGarrity Declaration meets the
`Government’s burden under strict scrutiny to justify classification and restrict
`disclosure of information in the Draft Transparency Report, based upon a
`reasonable expectation that its disclosure would pose grave or imminent harm to
`national security, and that no more narrow tailoring of the restrictions can be
`made. Further, the Court is inclined to conclude that the classified McGarrity
`Declaration cannot be disclosed to counsel for Twitter based upon the national
`security concerns it raises.
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`Case 4:14-cv-04480-YGR Document 328 Filed 04/17/20 Page 5 of 11
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`(Id. at 2.) On August 23, 2019, the parties jointly responded to the June 21, 2019 Order
`to Show Cause and asked that the classified McGarrity declaration not be used to inform
`the Court’s reconsideration of the Government’s motion for summary judgment. Instead,
`the Government requested to submit a new summary judgment motion supported by a
`new declaration, which would incorporate aspects of the information proffered in the
`Classified McGarrity Declaration germane to the merits of the case. (Dkt. No. 306 at 2–
`3.) The Court granted the Government’s request as well as Twitter’s request to file a
`cross-motion for summary judgment.
`C.
`The Instant Cross-Motions
`The Government filed its motion seeking summary judgment on all claims in Twitter’s
`SAC on the grounds that the newly submitted classified and unclassified declarations of Jay S.
`Tabb, Jr., EAD of the National Security Branch of the FBI to establish that disclosure of the data
`contained in Twitter’s 2014 Draft Transparency Report reasonably could be expected to result in
`national security harms such that the Government’s restrictions on the report are constitutionally
`valid. Twitter’s cross-motion contests the Government’s arguments and seeks summary judgment
`on the grounds that: (1) the Government has not satisfied strict scrutiny under the Pentagon
`Papers5 standard; (2) the Government’s decision to restrict the disclosures in Twitter’s 2014 Draft
`Transparency Report lacked any of the procedural safeguards required by Freedman v. Maryland,
`380 U.S. 51 (1965); and (3) Twitter’s cleared counsel6 must be given access to the classified
`version of the Tabb Declaration in order for it to respond fully to the Government’s arguments.
`II.
`LEGAL STANDARD
`Summary judgment is appropriate when “there is no genuine dispute as to any material fact
`and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[W]hen
`parties submit cross-motions for summary judgment, each motion must be considered on its own
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`5 N.Y. Times Co. v. United States, 403 U.S. 713 (1971), commonly referred to as the
`Pentagon Papers case.
`6 Twitter’s lead counsel Lee H. Rubin has had his security clearance “favorably
`adjudicated” by the FBI as of September 17, 2018. (Dkt. No. 250-1, Rubin Decl. Exh. A.)
`5
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`merits.” Fair Hous. Council of Riverside Cty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th
`Cir. 2001) (alteration and internal quotation marks omitted). Thus, “[t]he court must rule on each
`party’s motion on an individual and separate basis, determining, for each side, whether a judgment
`may be entered in accordance with the Rule 56 standard.” Id. (quoting Wright, et al., FEDERAL
`PRACTICE AND PROCEDURE § 2720, at 335–36 (3d ed. 1998)). However, the court must consider
`the evidence proffered by both sets of motions before ruling on either one. Riverside Two, 249
`F.3d at 1135–36; Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 960 (9th Cir. 2011)
`(“Because the parties filed cross-motions for summary judgment, we consider each party’s
`evidence to evaluate whether summary judgment was appropriate.”) “[C]redibility
`determinations, the weighing of the evidence, and the drawing of legitimate inferences from facts
`are jury functions, not those of a judge.” George v. Edholm, 752 F.3d 1206, 1214 (9th Cir.
`2014) (alteration in original) (quotation omitted).
`As a general matter, where the party moving for summary judgment would bear the burden
`of proof at trial, that moving party bears the initial burden of proof at summary judgment as to
`each material fact to be established in the complaint and must show that no reasonable jury could
`find other than for the moving party. See S. California Gas Co. v. City of Santa Ana, 336 F.3d
`885, 888 (9th Cir. 2003) (citing William W Schwarzer, et al., CALIFORNIA PRACTICE GUIDE:
`FEDERAL CIVIL PROCEDURE BEFORE TRIAL (Rutter Group) § 14:124–127 (2001)). Where the
`moving party would not bear the burden at trial, the motion need only specify the basis for
`summary judgment and identify those portions of the record, if any, which it believes demonstrate
`the absence of a genuine issue of material fact on some essential element of the claims. Celotex
`Corp. v. Catrett, 477 U.S. 317, 323, (1986). The burden then shifts to the opposing party to
`establish the existence of material disputes of fact that may affect the outcome of the case under
`the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
`In the context of a First Amendment challenge, however, the ultimate burdens of proof are
`placed upon the Government. When the Government restricts speech, it bears the burden of
`proving the constitutionality of its actions. United States v. Playboy Entm’t Grp., Inc., 529 U.S.
`803, 816–17 (2000) (citing Greater New Orleans Broadcasting Assn., Inc. v. United States, 527
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`U.S. 173, 183 (1999); Reno v. American Civil Liberties Union, 521 U.S. 844, 879 (1997)). “When
`the Government seeks to restrict speech based on its content, the usual presumption of
`constitutionality afforded [to its actions] is reversed.” Playboy, 529 U.S. at 816–17. Because
`“[c]ontent-based regulations are presumptively invalid,” R.A.V. v. St. Paul, 505 U.S. 377, 382
`(1992), “the Government bears the burden to rebut that presumption.” Playboy, 529 U.S. at 817.
`“When First Amendment compliance is the point to be proved, the risk of nonpersuasion—
`operative in all trials—must rest with the Government, not with the citizen.” Id. at 818 (internal
`citation omitted).
`III. DISCUSSION
`A.
`Strict Scrutiny Standard
`
`1.
`Strict Scrutiny Applies
`The Government argues that it is entitled to summary judgment on several grounds. First,
`it argues that, although it disagrees with the Court on the applicable constitutional standard, it
`nevertheless has met the strict scrutiny standard since its restrictions on Twitter’s speech are
`sufficiently “narrowly tailored to serve a compelling state interest” (quoting In re NSL, 863 F.3d
`1110, 1123 (9th Cir. 2017) and Reed v. Town of Gilbert, 135 S.Ct. 2218, 2226 (2015)). Twitter
`counters that this Court previously decided the applicable standard is strict scrutiny, and the
`Government has not met it.
`In denying the Government’s original motion for summary judgment, the Court
`determined that the restrictions on Twitter’s speech are subject to strict scrutiny as a content-based
`restriction and a prior restraint. (Dkt. No. 172 at 15, citing numerous cases.) That is the law of the
`case and the Government provides no substantive reason to revisit that determination.
`
`
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`The Declarations In the Record Satisfy the Government’s Substantive
`Burden Under Strict Scrutiny
`The Court applies the strict scrutiny standard to the challenged restrictions and finds that
`the Government’s restrictions on the information Twitter may report are, in fact, narrowly tailored
`in substance. The Court bases its decision on the totality of the evidence provided in this case,
`including the classified declarations of EAD Steinbach, Acting EAD McGarrity and EAD Tabb.
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`2.
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`Each built on the same basis for the Government’s position, and each bring a perspective to the
`Court’s analysis to resolve this action. The Court sees no reason to disregard any of the
`previously submitted declarations. The declarations explain the gravity of the risks inherent in
`disclosure of the information that the Government has prohibited Twitter from stating in its Draft
`Transparency Report, including a sufficiently specific explanation of the reasons disclosure of
`mere aggregate numbers, even years after the relevant time period in the Draft Transparency
`Report, could be expected to give rise to grave or imminent harm to the national security. The
`Court finds that the declarations contain sufficient factual detail to justify the Government’s
`classification of the aggregate information in Twitter’s 2014 Draft Transparency Report on the
`grounds that the information would be likely to lead to grave or imminent harm to the national
`security, and that no more narrow tailoring of the restrictions can be made.
`B.
`Freedman’s Procedural Safeguards
`Twitter argues that, in the alternative, it is entitled to summary judgment because the
`procedures under which portions of its 2014 Draft Transparency Report were classified and
`restricted do not satisfy the procedural safeguards required for such a prior restraint of speech
`under Freedman v. Maryland and its progeny. More specifically, Twitter argues that Freedman
`requires an expedited, government-initiated judicial review of a restraint on aggregate reporting,
`and that such requirements are not met by the classification guidelines that the Government
`applied nor the “statutory authority under which that classification review was conducted.”
`(Twitter’s Cross-Motion for Summary Judgment, Dkt. No. 311, at 2:12-13, citing 50 U.S.C. §
`1874(c)).7
`The Government counters on two grounds. First, it contends that Twitter has not alleged a
`challenge under Freedman in the SAC. Further, the Government argues the procedural
`
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`7 Twitter’s characterization of the section 1874(c) is incorrect. The Government’s
`classification authority under Executive Order 13526 is completely distinct from its authority
`under section 1874(c) to allow persons subject to nondisclosure provisions to report legal process
`and orders received in a different manner than the numerical bands scheme set forth in section
`1874(a) and (b). See 50 U.S.C. § 1874(c) (“Nothing in this section prohibits the Government and
`any person from jointly agreeing to the publication of information referred to in this subsection in
`a time, form, or manner other than as described in this section.”).
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`protections required by Freedman do not apply to its decision that the information in the Draft
`Transparency Report was national security information properly classified under Executive Order
`13526.
`As a general matter, and as the Court previously determined, even if a particular content-
`based restriction is permitted under the strict scrutiny standard, “the government does not have
`unfettered freedom to implement such a restriction through ‘a system of prior administrative
`restraints.’” In re NSL, 863 F.3d at 1122 (citing Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70,
`83 (1963)). The government’s restrictions must have “narrow, objective, and definite standards to
`guide” them, as well as procedural safeguards to reduce the dangers of excessive restriction. See
`Thomas v. Chi. Park Dist., 534 U.S. 316, 321 (2002) (citing Freedman, 380 U.S. at 58–60). With
`respect to such a system of prior restraints, Freedman requires that: (1) any restraint imposed prior
`to judicial review must be limited to “a specified brief period”; (2) any further restraint prior to a
`final judicial determination must be limited to “the shortest fixed period compatible with sound
`judicial resolution”; and (3) the burden of going to court to suppress speech and the burden of
`proof in court must be placed on the government. See Freedman, 380 U.S. at 58–59; FW/PBS, Inc.
`v. City of Dallas, 493 U.S. 215, 227 (1990)); Thomas v. Chicago Park District, 534 U.S. 316, 321
`(2002); John Doe, Inc. v. Mukasey, 549 F.3d 861, 871 (2d Cir. 2008), as modified (Mar. 26, 2009).
`Thus, in In re Nat'l Sec. Letter, the Ninth Circuit considered whether nondisclosure
`requirements as to specific national security process requests were constitutional. The In re Nat'l
`Sec. Letter case was a facial challenge to the NSL statutes.8 The Ninth Circuit held that the NSL
`law met all the procedural safeguard requirements of Freedman because the 2015 revisions
`implemented a system of judicial review of a nondisclosure decision on an expedited basis, and
`required the government to initiate the review and carry the burden of substantiating the
`nondisclosure at the request of a contesting party. In re Nat'l Sec. Letter, 863 F.3d at 1129-31
`(questioning whether Freedman applied to individuals who did not “intend to speak” before
`
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`8 The Ninth Circuit held that plaintiffs were raising a facial challenge to the NSL law,
`rather than an as-applied challenge to a particular application of the law to their speech. Id. at
`1121.
`9
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`receiving the government’s prohibition, but nevertheless finding procedural protections satisfied
`Freedman).
`Here, Twitter’s SAC does not allege a challenge, facial or otherwise, based upon the
`principles in Freedman. Count 1 of the SAC alleges that the information in the Draft
`Transparency Report was not properly classified under Executive Order No. 13526, and that the
`Government cannot demonstrate that the information poses a threat to national security. (SAC ¶¶
`76, 79.) Count 2 of the SAC alleges that the Government’s decision regarding the Draft
`Transparency Report was a “final agency action” that violated the First Amendment. Nowhere in
`the SAC does Twitter seek declaratory or injunctive relief requiring the Government to comply
`with any procedural safeguards, such as temporal limitations on prohibition orders, or
`government-initiated judicial review, required by Freedman. The SAC does not direct a challenge
`to lack of procedural safeguards in Executive Order 13526 itself, nor does it challenge the lack of
`process with respect to the specific application of Executive Order 13526 to the Draft
`Transparency Report.9 Likewise, to the extent Twitter asserts that any restrictions on it emanate
`from the statutory reporting scheme set forth in 50 U.S.C. section 1874, the SAC does not
`challenge the lack of procedural safeguards therein. In short, nothing in the SAC challenges a
`“system of prior restraints” as in Freedman. Consequently, the Court cannot grant Twitter
`affirmative relief based upon lack of compliance with the procedural protections in Freedman.10
`
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`9 The Court notes that Section 1.8 of Executive Order 13526 provides that “[a]uthorized
`holders of information who, in good faith, believe that its classification status is improper are
`encouraged and expected to challenge the classification status of the information in accordance
`with agency procedures established under paragraph (b) of this section.” Executive Order 13526 §
`1.8(a). Those procedures should cover all authorized holders of information “including authorized
`holders outside the classifying agency.” Id. § 1.8(b). Neither party has cited to or argued for
`application of any regulations governing a challenge to the classification here. However, the
`Court notes that federal regulations implementing Executive Order 13526 have been enacted at 6
`C.F.R., Chapter I, Part 7, subpart B; see, e.g., 6 C.F.R. § 7.31(a) (“Authorized holders may submit
`classification challenges in writing to the original classification authority with jurisdiction over the
`information in question. If an original classification authority cannot be determined, the challenge
`shall be submitted to the Office of the Chief Security Officer, Administrative Security Division”).
`10 The SAC alleges a facial constitutional challenge to FISA’s secrecy provisions to the
`extent they categorically prohibit the reporting of aggregate data. The Court does not find that
`they do so restrict the aggregate data at issue here. The Government has, in part, argued that
`FISA’s statutory nondisclosure provisions, applicable to the existence and contents of individual
`orders, logically prohibit reporting of aggregate data about the number of such orders. The Court
`has never found the Government’s logic persuasive on this point. The requirement not to disclose
`10
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`Northern District of California
`United States District Court
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`Case 4:14-cv-04480-YGR Document 328 Filed 04/17/20 Page 11 of 11
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`Because the Court finds that Twitter has not alleged an affirmative claim for relief based
`upon Freedman, it need not reach the question of whether the Government’s decision here
`satisfied those procedural safeguards.11
`IV. CONCLUSION
`In sum, given the specific reasons identified in the classified declarations submitted, the
`Court finds that strict scrutiny is satisfied both substantively and procedurally. The Government’s
`motion for summary judgment is GRANTED and Twitter’s motion for summary judgment is
`DENIED.12
`The Court leaves for another action whether the procedural safeguards—if any—applicable
`to a system of prior constraints premised upon deeming information “classified” pursuant to
`Executive Order 13526 meets the standards set forth in Freedman.
`This terminates Docket Nos. 309, 311.
`IT IS SO ORDERED.
`Dated: April 17, 2020
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`______________________________________
`YVONNE GONZALEZ ROGERS
`UNITED STATES DISTRICT JUDGE
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`a particular order is completely distinct from disclosing the aggregate number of orders. And,
`indeed, that logic is contradicted by the statutory provision for aggregate data reporting set forth in
`50 U.S.C. § 1874, which permits “a person subject to a nondisclosure requirement accompanying
`an order . . . or a national security letter” to report publicly the aggregate number of such orders or
`letters within certain numerical bands. 50 U.S.C. § 1874(a) (emphasis supplied). Regardless,
`these allegations are not directed at a lack of procedural safeguards as required by Freedman.
`11 The Court notes that the Ninth Circuit in In re Nat'l Sec. Letter emphasized that
`Freedman’s procedural safeguards have been extended to a variety of situations in which the
`government “requires a speaker to submit proposed speech for review and approval” before
`publicizing it. In re Nat'l Sec. Letter, 863 F.3d 1110, 1128 (9th Cir. 2017); see also John Doe, Inc.
`v. Mukasey, 549 F.3d 861, 871 (2d Cir. 2008) (“Where expression is conditioned on governmental
`permission . . . the First Amendment generally requires procedural protections to guard against
`impermissible censorship.”). The sort of pre-disclosure review and approval process that restricts
`speech about metadata compiled by a recipient closely resembles the censorship systems raised in
`Freedman and its progeny. The Government here offered no applicable procedural protections
`similar to those cited with approval in In re Nat’l Security Letter or Doe v. Mukaskey.
`12 In light of this Order, the third count is dismissed as moot.
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