Elec. Frontier Found. v. DOJ, No. 17-03263, 2019 WL 2098084 (N.D. Cal. May 14, 2019) (Chhabria, J.)

Elec. Frontier Found. v. DOJ, No. 17-03263, 2019 WL 2098084 (N.D. Cal. May 14, 2019) (Chhabria, J.)

Re:  Request for records concerning National Security Letter procedures

Disposition:  Granting plaintiff's motion for partial summary judgment; denying defendant's motion for partial summary judgment

• Exemption 7(E):  The court holds that "the government must disclose the names of companies that have received 'termination letters' – that is, letters by which the FBI lifts the requirement that companies refrain from disclosing their prior receipt of a particular national security letter, based on the FBI's determination that nondisclosure of that national security letter is no longer necessary to protect an investigation or national security."  The court relates that "[b]ecause the government's allegation that aggregate disclosure of termination letters would reveal a law enforcement trend is so dubious, it was incumbent on the government to illustrate in a classified document – perhaps using specific examples – how requiring the government to turn over this seemingly stale and harmless information would constitute disclosure of a law enforcement technique or procedure, or why it would risk assisting criminals in avoiding FBI detection."  "But the declaration . . . does not accomplish that."  The court relates that "[t]he 'technique' the government alleges could be revealed by aggregate disclosure of terminations is a potential trend regarding the overall issuance of national security letters – that is, which companies are receiving more national security letters and which companies are receiving fewer."  "This matters, according to the government, because criminals could then use this information to migrate to the communication platforms of companies that the criminals believe are less likely to receive national security letters."  "But the government's assertion that aggregate disclosure of terminations would reveal any trend in the issuance of national security letters is dubious, for several reasons."  "As an initial matter, the number of termination letters is minute compared to the overall number of national security letters."  "Relatedly, the terminations merely shed light on past decisions made by the FBI to issue national security letters, as opposed to decisions the FBI is currently making."  "What's more, many companies already regularly disclose to the public their receipt of national security letters once nondisclosure requirements are lifted."