Full opinion text
OPINION DECISION AND ORDER MARRERO, District Judge. TABLE OF CONTENTS PAGE I. INTRODUCTION 385 II. BACKGROUND ..........................................................387 A. SECTION 2709 ........................................................387 B. DOE I................................................................388 C. THE REVISED NONDISCLOSURE PROVISION........................388 D. THE FBI’S USE OF NSLs.............................................389 E. PLACING NSLs ISSUED UNDER § 2709 IN CONTEXT.................392 1. Administrative Subpoenas...........................................392 2. Pen Registers, Wiretaps, and Foreign Intelligence Surveillance...........392 3. Secrecy in Grand Jury Proceedings...................................394 III. DISCUSSION.............................................................395 A STANDARD OF REVIEW .............................................396 B. STANDING...........................................................396 C. STRICT SCRUTINY...................................................396 D. PROCEDURAL SAFEGUARDS.......'.................................399 1. The Freedman Safeguards...........................................399 2. Application of Freedman ............................................401 3. The NSL Statute Fails to Satisfy Freedman ...........................405 E. DISCRETION.........................................................406 F. PRESCRIBING THE STANDARD OF JUDICIAL REVIEW..............409 1. Congress Cannot Legislate a Standard of Review at Odds with First Amendment Jurisprudence.........................................409 a. Historical Context of Cheeks and Balances and Separation of Powers......................................................409 b. Application of the Principles Separation of Powers..................411 c. Prospective Concerns............................................413 2. The Review Prescribed by § 3511(b) Does Not Comport with First Amendment Jurisprudence.........................................416 G. NARROW TAILORING................................................419 H. SCOPE OF 18 U.S.C. §§ 3511(d) AND 3511(e).............................422 1. Closure of Hearings and Sealing of Records............................422 2. Consideration of Ex Parte and In Camera Evidence.....................423 I. SEVERANCE.........................................................424 IV. CONCLUSION.........................................'...................425 V. STAY OF JUDGMENT.....................................................425 VI. ORDER ..................................................................425 I. INTRODUCTION Plaintiffs John Doe, American Civil Liberties Union, and American Civil Liberties Union Foundation (collectively, “Plaintiffs”) initially brought this case in 2004, challenging the constitutionality of 18 U.S.C. § 2709, amended by the USA Patriot Act (the “Patriot Act”), Pub.L. No. 107-56, 115 Stat. 272 (Oct. 26, 2001) (“ § 2709”). Section 2709 was originally enacted as part of Title II of the Electronic Communication Privacy Act of 1986 (“ECPA”), Pub.L. No. 99-508, § 201, 100 Stat. 1848, 1867-68 (1986), and governs the issuance of National Security Letters (“NSLs”) by the Federal Bureau of Investigation (“FBI”) to wire and electronic communication service providers (“ECSPs”). This Court, in a lengthy decision dated September 28, 2004, granted Plaintiffs’ motion for summary judgment and declared § 2709 unconstitutional on its face, under the First and Fourth Amendments. See Doe v. Ashcroft, 334 F.Supp.2d 471 (S.D.N.Y.2004) (“Doe 7”). “Considering the implications of its ruling and the importance of the issues involved,” the Court stayed enforcement of its judgment pending appeal. See id. at 526. Shortly after this Court’s decision, a court in the District of Connecticut enjoined the Government from enforcing the nondisclosure requirement of § 2709(c) insofar as it prevented the plaintiff in that case from revealing its identity as a recipient of an NSL, holding that § 2709(c) failed to satisfy strict scrutiny because it was not narrowly tailored to serve a compelling state interest. See Doe v. Gonzales, 386 F.Supp.2d 66, 82 (D.Conn.2005) (“Doe II”). While appeals in Doe I and Doe II were pending, Congress passed the USA Patriot Improvement and Reauthorization Act of 2005, Pub.L. No. 109-177, 120 Stat. 192 (Mar. 9, 2006) (the “Reauthorization Act.”). The Reauthorization Act effectuated substantial changes to § 2709 and added several provisions relating to judicial review of NSLs which were codified at 18 U.S.C. § 3511 (“§ 3511”). As a result of these amendments, the Second Circuit remanded the Doe I appeal to enable this Court, if the parties were to continue the litigation in light of the amendments to the statute, to consider the validity of the revised § 2709(c) and the new procedures codified in § 3511. See Doe v. Gonzales, 449 F.3d 415, 419 (2d Cir.2006). Plaintiffs filed a second amended complaint and have moved for summary judgment, seeking a declaratory judgment that the amended nondisclosure provision of § 2709(c) and § 3511(b) are unconstitutional on their face and as applied under the First Amendment and the principle of separation of powers, and that § 3511(d) and (e) are unconstitutional on their face under the First and Fifth Amendments. Defendants Alberto Gonzales, Robert Mueller, and Valerie E. Caproni (collectively, the “Government”) have cross-moved for dismissal of the complaint or, in the alternative, summary judgment. Having reviewed the briefs submitted by the parties, as well as the briefs submitted by amicus curiae in support of Plaintiffs’ motion, and having heard oral arguments, the Court finds that several aspects of the revised nondisclosure provision of the NSL statute violate the First Amendment and the principle of separation of powers. The Court therefore holds that §§ 2709(c) and 3511(b) are facially unconstitutional. However, the statutory provisions governing hearings, proceedings, and judicial review of evidence related to a challenge to an NSL, §§ 3511(d) and (e) respectively, are constitutional. Accordingly, Plaintiffs’ motion for summary judgment is GRANTED in part and DENIED in part, and the Government’s cross-motion for dismissal or summary judgment is DENIED. II. BACKGROUND A. SECTION 2709 The FBI is authorized by § 2709 to issue NSLs requesting a range of information about an ECSP’s subscribers and their telephone or internet activity. Section 2709(a) states that an ECSP “shall comply” with a request for “subscriber information and toll billing records information, or electronic communication transactional records” made by the FBI. 18 U.S.C. § 2709(a). Section 2709(b) requires that, in order for the FBI to request “the name, address, length of service, and local and long distance toll billing records” of a person or entity, the Director of the FBI, or his designee, must certify that such information is “relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities.” 18 U.S.C. § 2709(b). As the Court noted in Doe I, “the statute’s reference to ‘transactional records’ creates ambiguity regarding the scope of the information required to be produced by the NSL recipient.” 334 F.Supp.2d at 507. That ambiguity is compounded because the NSL directs the recipient to determine for itself whether any information it maintains regarding the target of the NSL “may be considered ... to be an electronic communication transaction record” in accordance with § 2709, but not “contents” of communications within the meaning of 18 U.S.C. § 2510(8). Such information might include the “to,” “from,” “date,” and “time” fields of all emails sent or received, activity logs indicating dates and times that the target accessed the internet, the contents of queries made to ' search engines, and histories of websites visited. See generally Jonathan Zittrain, Searches and Seizures in a Networked World, 119 Harv. L.Rev. F. 83 (2005). Information requested by NSLs issued pursuant to § 2709 can also reveal the identity of an internet user associated with a certain email address, Internet Protocol address, or screen name. B. DOE I Although familiarity with the Court’s decision in Doe I is presumed, a brief review of that decision is useful in order to emphasize the conclusions the Court previously reached in this action, as well as to put in proper context the deficiencies in the prior version of § 2709 that Congress attempted to remedy in enacting the substantial revisions embodied in the Reau-thorization Act. Prior to the Reauthorization Act, as read by this Court, § 2709(c) prohibited “the NSL recipient, or its officers, employees, or agents, from revealing the existence of an NSL inquiry the FBI pursued under § 2709 in every case, to any person, in perpetuity, with no vehicle for the ban to be lifted from the recipient or other person affected, under any circumstances, either by the FBI itself, or pursuant to judicial process.” Doe I, 334 F.Supp.2d at 476. Consequently, the Court concluded that § 2709 “violate[d] the Fourth Amendment because, at least as applied, it effectively bar[red] or substantially deter[red] any judicial challenge to the propriety of an NSL request.” Id. at 475. Moreover, § 2709’s “all-inclusive sweep” failed to “pass muster under the exacting First Amendment standards” the Court found to be applicable. Id. at 476. The Court concluded that § 2709(c) was a prior restraint, reasoning that “axiomatically the categorical nondisclosure mandate embodied in § 2709(c) functions as a prior restraint because of the straightforward observation that it prohibits speech before it occurs.” Id. at 511-12; see also Doe II, 386 F.Supp.2d at 73 (“Section 2709(c) unquestionably prohibits speech in advance of it having occurred.”). Moreover, the Court held that § 2709(c) was a content-based restriction on speech in that it “prohibits any discussion of the firsthand experiences of NSL recipients” and thus closes off “that ‘entire topic’ from public discourse.” Doe I, 334 F.Supp.2d at 513 (citations omitted). As a prior restraint and a content-based restriction on speech, the provision was subject to strict scrutiny. The Court pointed out that there likely existed less restrictive alternatives available to the government that would be as effective in achieving the purpose of the NSL statute. See id. at 520-21. The Court went on to acknowledge that while the blanket prohibition against disclosure in § 2709(c) could not be justified, “the Government should be accorded a due measure of deference when it asserts that secrecy is necessary for national security purposes in a particular situation involving particular persons at a particular time.” Id. at 524 (emphasis in original). The Court held that the nondisclosure provision of § 2709 was unconstitutional on its face, and because the Court could not sever § 2709(c) from the remainder of the statute, the Court enjoined the government from using § 2709 in any case as a means of gathering information. Id. at 525-26. C. THE REVISED NONDISCLOSURE PROVISION As indicated above, while the Government’s appeals were pending before the Second Circuit, Congress enacted the Reauthorization Act. The Government contends that the revised § 2709(c) and the newly enacted § 3511 directly addresses the concerns raised by this Court in its Doe I decision and rectifies any constitutional deficiencies. Instead of a categorical, blanket prohibition on disclosure with respect to the issuance of any NSL, § 2709(c) now calls for a case-by-case determination of the need for a nondisclosure order to accompany an NSL. Specifically, the statute provides that a recipient of an NSL is barred from disclosing that the FBI “has sought or obtained access to information or records” under the NSL statute if the Director of the FBI, or his designee, “certifies” that disclosure “may result” in “a danger to the national security of the United States, interference with a criminal, counterterrorism, or counterintelligence investigation, interference with diplomatic relations, or danger to the life or physical safety of any person” (here collectively referred to as the “Enumerated Harms”). 18 U.S.C. § 2709(c)(1). The newly enacted § 8511 provides an opportunity for judicial review of NSLs. Section 3511(a) explicitly allows the recipient of an NSL to petition a United States district court “for an order modifying or setting aside the request,” which the court “may” grant “if compliance would be unreasonable, oppressive, or otherwise unlawful.” 18 U.S.C. § 3511(a). Additionally, under § 3511(b), an NSL recipient may seek an order modifying or setting aside a nondisclosure requirement. If a petition to modify or set aside the nondisclosure requirement is filed within one year of the NSL request, the reviewing court may grant such relief only if it finds that “there is no reason to believe” disclosure “may result” in one or more of the Enumerated Harms. 18 U.S.C. § 3511(b)(2). Moreover, if one of several authorized senior FBI officials “certifies that disclosure may endanger the national security of the United States or interfere with diplomatic relations, such certification shall be treated as conclusive unless the court finds that the certification was made in bad faith.” Id. If the petition to modify or set aside the nondisclosure requirement is filed one year or more after the NSL request was issued, the FBI must either terminate the nondisclosure requirement or re-certify that disclosure may result in one of the Enumerated Harms, in which case the court could grant the petition only in accordance with the standards described above. See 18 U.S.C. § 3511(b)(3). Additionally, if the court denies the petition, the NSL recipient is precluded from filing another petition for one year. See id. As § 3511 now explicitly permits challenges to NSLs, Plaintiffs do not renew their Fourth Amendment challenge. However, Plaintiffs contend that the amendments do not cure the statute’s First Amendment deficiencies, and that it remains an unconstitutional prior restraint and a content-based restriction on speech because it (1) fails to provide constitutionally mandated procedural safeguards, (2) invests the FBI with unbridled discretion to suppress speech, (3) forecloses reviewing courts from applying a constitutionally mandated standard of review, and (4) authorizes the issuance of nondisclosure orders that are not narrowly tailored. As the Second Circuit vacated this Court’s prior decision in light of the Reau-thorization Act, the Court must now consider whether the nondisclosure provision, with the judicial review now contemplated, still runs afoul of the First Amendment. For the reasons set forth below, the Court finds that it does. D. THE FBI’S USE OF NSLs Doe I detailed the history of NSLs and the revisions embodied in the Patriot Act which expanded their usefulness as an investigatory tool. See 334 F.Supp.2d at 480-85. The Patriot Act expanded the government’s authority to use NSLs under the four existing NSL statutes and created a fifth category of NSLs. However, at the time that Doe I was decided, little was publicly known about how NSLs were being used by the FBI under the new relaxed standards required for issuance after the Patriot Act. As part of the Reauthorization Act, Congress directed the Department of Justice, Office of the Inspector General (“OIG”), to review the “effectiveness and use, including any improper or illegal use, or national security letters issued by the Department of Justice.” See Pub.L. No. 109-177, § 119. In March, 2007, the OIG issued its first public report pursuant to this statute, entitled “A Review of the Federal Bureau of Investigation’s Use of National Security Letters” (the “OIG Report”). The OIG Report addresses the FBI’s use of NSLs for calendar years 2003 through 2005. The OIG Report confirms that the Patriot Act transformed NSLs into a much more frequently employed investigatory tool. Specifically, it states that “the FBI issued approximately 8,500 NSL requests in CY 2000, the year prior to passage of the Patriot Act. After the Patriot Act, according to FBI data, the number of NSL requests increased to approximately 39,000 in 2003, approximately 56,000 in 2004, and approximately 47,000 in 2005.” (OIG Report 120.) While the number of NSL requests issued under each separate NSL provision is not publicly available, the report does indicate that “the overwhelming majority of the NSL requests sought telephone toll billing records information, subscriber information (telephone or e-mail), or electronic communication transactional records” under § 2709. (Id. 36-37.) In considering these statistics, it is important to distinguish between “NSLs” and “NSL requests”' — a single NSL may contain multiple requests for information. (See id. 120.) The OIG Report specifies that “the 39,000 NSL requests in 2003 were contained in approximately 12,000 letters, and the 47,000 requests in 2005 were contained in approximately 19,000 letters.” (Id.) According to the OIG Report, there are three main reasons for the dramatic increase in the number of NSL requests issued starting in 2003. (See id. 45.) First, the Patriot Act eliminated the requirement that an NSL be issued only if “there are specific and articulable facts giving reason to believe that the person or entity to whom the information sought pertains is a foreign power or an agent of a foreign power.” 18 U.S.C. § 2709(b) (2000). Instead, the information must currently satisfy only the lower standard of being “relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities.” 18 U.S.C. § 2709(b). Second, whereas previously an NSL had to be approved by a senior FBI official at FBI headquarters, NSLs can now be authorized by Special Agents in Charge at FBI field offices. As a result, approval is no longer a lengthy process, and generally takes only two to five days. (See OIG Report 25.) Third, in 2003, the Attorney General issued revised guidelines governing the use of NSLs in FBI national security investigations (the “NSI Guidelines”). The revised NSI Guidelines permit NSLs to be issued during preliminary investigations; under the prior NSI Guidelines, they could be issued only during full investigations. (See OIG Report 40.) The OIG Report concludes that “[t]aken together, these three expansions of the FBI’s [NSL] authorities resulted in significantly greater use” of NSLs. (Id. 45). FBI officials describe NSLs as “indispensable investigative tools that serve as building blocks in many counterterrorism and counterintelligence investigations.” (Id. xlvi.) In particular, the most important use of § 2709 NSLs, as described by FBI officials, is “to support FISA applications for electronic surveillance, physical searches, or pen register/trap and trace orders.” (Id. 48.) NSLs are also important in that they assist the FBI in collecting information sufficient to eliminate concerns about investigative subjects and close national security investigations with a greater degree of confidence. (See id. 44.) Moreover, often the target of an NSL is not necessarily the main target of an investigation, and an NSL thus serves as a key tool in allowing the FBI to follow leads. As the OIG Report notes, “[f]or example, if the response to an NSL for toll billing records on the subject’s telephone number identifies a telephone number that the subject contacted frequently during a time period relevant to the investigation, the FBI may issue another NSL requesting subscriber information for that telephone number.” (Id. 118.) While the OIG Report provides helpful background on how NSLs are actually used by the FBI, Plaintiffs emphasize that the report also details significant misuse of NSLs by the FBI, which Plaintiffs claim supports their argument that the statute, in its current form, is too susceptible to abuse to survive First Amendment scrutiny. Specifically, the OIG Report found that in addition to significantly under-reporting the number of NSL requests issued, the FBI: (1) under-reported violations arising from the use of NSLs; (2) sought information not permitted by the statute; (3) issued NSLs without proper authorization; (4) issued over 700 “exigent letters” requesting the type of information covered by § 2709 without following the process for obtaining an NSL; and (5) repeatedly failed to properly adhere to the FBI’s own internal documentation requirements for the approval of an NSL. (See id. 66-107.) In summary, while noting the significant challenges and major structural changes the FBI was facing during the period covered and the lack of any misuse rising to the level of criminal misconduct, the OIG Report nonetheless concluded that “the FBI used NSLs in violation of applicable NSL statutes, Attorney General Guidelines, and internal FBI policies.” (Id. 124.) E. PLACING NSLs ISSUED UNDER § 2709 IN CONTEXT As discussed at length in Doe I, the issuance of NSLs under § 2709 is just one of many investigatory tools the government uses to gather information. See 334 F.Supp.2d at 484-91. The Government stresses, as it did in Doe I arguments, that the nondisclosure provision in the revised § 2709 is not unique in requiring secrecy in the context of confidential investigations. However, a review of those other investigatory tools reveals that, in comparison to statutes which allow for the imposition of secrecy in other contexts, the revised § 2709, even with the limited judicial review contemplated in § 3511, remains a very broad and substantially onerous secrecy provision. 1. Administrative Subpoenas Several federal statutes authorizing administrative subpoenas, for example, “permit the investigating agency to apply for a court order to temporarily bar disclosure of the inquiry, generally during specific renewable increments or for an appropriate period of time fixed by the Court, where such disclosure could jeopardize the investigation.” Id. at 485 (citing 12 U.S.C. § 3409(b), 15 U.S.C. § 78u(h)(4)(A), 18 U.S.C. § 2705(b), and 18 U.S.C. § 3486(a)(6)(A)). Significantly, these provisions generally both place the burden on the government to seek a court-issued nondisclosure order and specifically contemplate a time limit on any secrecy imposed. See id. 2. Pen Registers, Wiretaps, and Foreign Intelligence Surveillance In Doe I, the Court noted that there were only three federal statutes “arguably analogous” to § 2709 in terms of the breadth of its nondisclosure rules. See id. at 514-15. The Court stated: First, communications firms are categorically barred, unless otherwise ordered by a court, from ever disclosing that a pen register or trap and trace device is in effect. Second, communications firms are categorically barred, subject to a similar exception “as may otherwise be required by legal process,” from ever disclosing that a wiretap or electronic surveillance is in place. Third, recipients of a subpoena under FISA are categorically prohibited from ever disclosing to any person, “other than those persons necessary to produce” the records sought, that the subpoena was ever issued. Id. Addressing this point, the Government emphasizes that these three statutes — 18 U.S.C. § 3123(d)(2) (pen registers), 18 U.S.C. § 2511(2)(a)(ii) (wiretaps), and 50 U.S.C. § 1861(d) (Foreign Intelligence Surveillance Act (“FISA”) subpoenas)— “permit the government to preserve the secrecy of its investigations by prohibiting disclosure by non-government actors, automatically and with no special procedural protections.” (Gov’t Opp. 20.) Thus, the Government argues, the “NSL statute, which explicitly permits judicial review, provides more procedural protection than the long-standing wiretap and pen register statutes, in which nondisclosure is automatic ‘unless or until ordered by the court,’ the only procedure for judicial review is ex parte and does not require the government to justify non-disclosure, and the statute sets forth no standard or time limit for lifting the prohibition on disclosure.” (Id. 21.) However, the Court’s observation in Doe I highlights what still remains a relevant and critical distinction between these provisions and § 2709 those statutes generally “apply in contexts in which a court authorizes the investigative method in the first place,” 334 F.Supp.2d at 515, and indeed provide for judicial review safeguards not only prior to surveillance, but also after is has concluded. The lone exception is that certain FISA surveillance orders may be obtained solely based on a certification by the Attorney General that the surveillance meets the statutory requirements. See id. at 515 n. 208 (noting that this exception may be justified because “the FISA orders are specifically limited to electronic surveillance of foreign governments and their agents” and consequently do not implicate the First Amendment rights of American citizens). Thus, while a telephone company may be prohibited from disclosing the existence of a wiretap on one of its customers, that wiretap can not be legally installed in the first instance without an Article III judge determining, pursuant to application by the government, and in advance of the restraint on constitutional rights, that there is “probable cause” for the government to believe both that the target of the wiretap is engaged in illegal activity and that the wiretap will assist in obtaining communications concerning that activity, and also that the government has demonstrated to the court’s satisfaction that normal investigative procedures have failed or are unlikely to succeed. See 18 U.S.C. § 2518(3). The standard for obtaining a pen register or trap-and-trace device is less rigorous. See 18 U.S.C. § 3123(a) (simply requiring certification from a law enforcement official that information sought would be “relevant to an ongoing criminal investigation”). Clearly, the lower standard reflects that installation of a pen register or trap-and-trace device on an individual’s phone is far less intrusive than a wiretap which allows law enforcement access to the contents of the target’s communications. Nevertheless, installation of a pen register or trap-and-trace device does require judicial review and a showing of relevance to an ongoing investigation. Moreover, both surveillance tools place durational limits on their use. Wiretaps are generally limited to no more than thirty-day periods, after which the government must apply for an extension. See 18 U.S.C. § 2518(5). Pen registers and trap- and-trace devices are limited to sixty-day periods, after which the government must apply for an extension. See 18 U.S.C. § 3121(c). Significantly, with respect to wiretaps, once the wiretap intercept has concluded, an additional judicial safeguard goes into effect. Within ninety days the issuing judge “shall cause to be served ... an inventory” which notifies the targets of the wiretap (and possibly others) of the occurrence of the surveillance, unless the government makes an ex parte showing of good cause that the serving of the inventory should be postponed. See 18 U.S.C. § 2518(8)(d). The wiretap and pen register statutes do not specify precisely when the restriction on disclosure by the communications provider terminates. With respect to wiretaps, the communications provider is prohibited from disclosing “the existence of’ any interception or surveillance, except as otherwise required by law and only after prior notification of law enforcement authorities. See 18 U.S.C. § 2511 (2)(a)(ii). As for pen registers, “the person owning or leasing the line or other facility” to which the device is attached may not disclose the “the existence of’ the device or “the existence of’ the investigation “unless and until otherwise ordered by the court.” See 18 U.S.C. § 3123(d). The wording of both statutes, and in particular their use of the phrase “the existence of,” implies that communications providers might be free to discuss wiretaps and pen registers, as well as their knowledge of underlying criminal investigations, after those investigations are completed. After that time, the government presumably has no interest in prohibiting the communications provider from revealing its role in the investigation, and it is unlikely that a permanent ban on disclosure could be justified under the First Amendment. 3. Secrecy in Grand Jury Proceedings Federal Rule of Criminal Procedure 6(e) governs secrecy in grand jury proceedings. The “federal rules impose stringent secrecy requirements on certain grand jury participants, including the attorneys, court reporters, and grand jurors.” Doe I, 334 F.Supp.2d at 486. However, witnesses called before the grand jury are not under an obligation of secrecy. See In re Grand Jury, 490 F.3d 978, 985 (D.C.Cir.2007) (“[T]he theory of grand jury secrecy is that the witness is guaranteed against compulsory disclosure, the privilege must therefore be that of the witness, and rests upon his consent.”) (citations omitted). The majority of states follow the approach of the federal rules and generally exempt witnesses from grand jury secrecy obligations. See 1 S. Beale & W. Bryson, Grand Jury Law and Practice § 5.5 (2d ed.2006). Several states, however, do impose some secrecy obligations on grand jury witnesses. See id. (“[T]en [states] impose an obligation of secrecy on witnesses, but exempt communications between the witness and his attorney; and three impose an obligation of secrecy on witnesses without such an exemption.”). The secrecy governing grand jury proceedings is justified by its function, which is to “inquire into all information that might possibly bear on its investigation until it has identified an offense or has satisfied itself that none has occurred.” United States v. R. Enterprises, Inc., 498 U.S. 292, 297, 111 S.Ct. 722, 112 L.Ed.2d 795 (1991). Thus, the grand jury “can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.” United States v. Morton Salt Co., 338 U.S. 632, 642-43, 70 S.Ct. 357, 94 L.Ed. 401 (1950). The secrecy of the proceedings ensures that witnesses feel free to testify fully and frankly, that those under investigation are not tipped off to the proceeding, and that those exonerated by the grand jury are not publicly embarrassed. See In re Grand Jury Subpoena, Judith Miller, No. 04-3138, 3139, 3140, 2007 WL 1855055, at *2, (D.C.Cir.2007) (citations omitted). Because grand jury secrecy provisions are justified by the government’s need to keep its investigations confidential, their duration is generally limited to the term of the grand jury or the period of investigation. See, e.g., Butterworth v. Smith, 494 U.S. 624, 626, 110 S.Ct. 1376, 108 L.Ed.2d 572 (1990) (“We hold that insofar as the Florida law prohibits a grand jury witness from disclosing his own testimony after the term of the grand jury has ended, it violates the First Amendment to the United States Constitution.”); Hoffmann-Pugh, v. Keenan, 338 F.3d 1136, 1137 (10th Cir.2003) (upholding Colorado grand jury secrecy statute that “precludes the witness from divulging her testimony even after the term of the grand jury has ended if the investigation of the crime continues.”). III. DISCUSSION As the Court observed in Doe I, this case presents novel issues involving both the security of the nation and the rights of citizens under the First Amendment. The government’s use of NSLs to obtain private information about activities of individuals using the internet is a matter of the utmost public interest. As the OIG Report evenhandedly documents, the NSL serves as a critical tool to enable the government to perform investigations and law enforcement functions vital to the nation’s safety and security. But, as powerful and valuable as it may be as a means of surveillance, and as crucial the purpose it serves, the NSL nonetheless poses profound concerns to our society, not the least of which, as reported by the OIG, is the potential for abuse in its employment. Through the use of NSLs, the government can unmask the identity of internet users engaged in anonymous speech in online discussions. It can obtain an itemized list of all of the emails sent and received by the target of the NSL, and it can then seek information on individuals communicating with that person. It may even be able to discover the websites an individual has visited and queries submitted to search engines. In light of the seriousness of the potential intrusion into the individual’s personal affairs and the significant possibility of a chilling effect on speech and association — particularly of expression that is critical of the government or its policies — a compelling need exists to ensure that the use of NSLs is subject to the safeguards of public accountability, checks and balances, and separation of powers that our Constitution prescribes. Accordingly, the issue now before the Court is not whether, or under what circumstances, the government should possess the authority to issue NSLs. Rather, the more fundamental question is the extent of the authority that the First Amendment allows the government to exercise in keeping its use of NSLs secret, insofar as such secrecy inhibits freedom of speech. The Court’s review of First Amendment jurisprudence yields two primary conclusions. First, the government’s use of nondisclosure orders must be narrowly-tailored on a case-by-case basis. That is, a nondisclosure order may not be broader in either scope or duration than the degree of secrecy required to serve the government’s interest in protecting national security. Second, the nondisclosure 'orders must be subject to meaningful judicial review. To conform to prevailing constitutional norms as read by this Court, taking into account the unique latitude and added flexibility national security needs demand under ordinary circumstances, as well as the practicalities of surveillance work before a target is adequately identified, in issuing an NSL the government must either affirmatively terminate the nondisclosure requirement or bear the burden of justifying to a court why continued secrecy is necessary within a reasonable period of time after the FBI issues an NSL containing a nondisclosure order. Additionally, and in many ways most troubling, this Court finds that the standard of review the Reauthorization Act directs that the courts must apply when a nondisclosure order is challenged, offends the fundamental constitutional principles of checks and balances and separation of powers. Independent of the First Amendment deficiencies identified by the Court, the deferential standard of review imposed on reviewing courts by § 3511(b) fails not only because it creates too great a danger that constitutionally protected speech will be suppressed, but more fundamentally because it reflects an attempt by Congress and the executive to infringe upon the judiciary’s designated role under the Constitution. To conform with § 3511(b) as drafted, a court reviewing a nondisclosure order must apply not the standard of review the judge determines is mandated by constitutional law, but an overly deferential standard imposed by Congress. It is axiomatic that in our system of government it is the province of the courts to say what the law is. When Congress attempts to curtail or supersede this role, it jeopardizes the delicate balance of powers among the three branches of government and endangers the very foundations of our constitutional system. Thus, for this reason as well, § 3511(b) fails. A.STANDARD OF REVIEW Plaintiffs have moved for summary judgment, pursuant to Fed.R.Civ.P. 56(c), and the Government has cross-moved to dismiss, pursuant to Fed.R.Civ.P. 12(b), or in the alternative, for summary judgment. In considering a motion to dismiss, the “court may only rely on the factual allegations set forth in the complaint itself and not on additional matters asserted in affidavits, exhibits or other papers submitted in conjunction with the motion.” See Friedl v. City of New York, 210 F.3d 79, 83-84 (2d Cir.2000). Because both sides have submitted affidavits and other materials, the Government’s motion must be considered a motion for summary judgment. See id. at 83. The Court may grant summary judgment only if it finds that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c). Here, the Court concludes that no facts material to the disposition of the case are in dispute and that this case presents only legal questions appropriate for decision on summary judgment. B. STANDING Plaintiffs assert a facial and as-applied challenge to § 2709 and § 3511. “It is well established that in the area of freedom of expression an overbroad regulation may be subject to facial review and invalidation, even though its application in the case under consideration may be constitutionally unobjectionable.” Forsyth County, Georgia v. The Nationalist Movement, 505 U.S. 123, 129, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992). This rule applies because “the very existence of some broadly written laws has the potential to chill the expressive activity of others not before the Court.” Id. As the Supreme Court has observed, “[m]any persons, rather than undertake the considerable burden (and sometimes risk) of vindicating their rights through case-by-case litigation, will choose simply to abstain from protected speech— harming not only themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas.” Virginia v. Hicks, 539 U.S. 113, 119, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003). Consideration of the Plaintiffs’ facial challenge is appropriate here because, as detailed below, the statutory provisions at issue are broadly written and certainly have the potential to suppress constitutionally protected speech. C. STRICT SCRUTINY The Court’s analysis begins by noting that for the same reasons articulated in Doe I, see 334 F.Supp.2d at 511-13, the nondisclosure provision of the revised § 2709, like its predecessor, embodies both a prior restraint and a content-based restriction on speech. The nondisclosure provision of the amended § 2709 still acts as a prior restraint because it still prohibits speech before it occurs. See id. at 511— 12; see also Doe II, 386 F.Supp.2d at 73. In granting the FBI authority to certify that an NSL recipient cannot disclose to any person information about receipt of the NSL, and in including this prescription in the actual NSL letter issued, the amended § 2709(c) “authorizes suppression of speech in advance of its expression.” Ward v. Rock Against Racism, 491 U.S. 781, 795 n. 5, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989); see also Alexander v. United States, 509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993) (“The term prior restraint is used to ‘describe administrative and judicial orders forbidding certain communications in advance of the time that such communications are to occur.’ ”) (quoting M. Nimmer, Nimmer on Freedom of Speech § 4.03, at 4-14 (1984)) (emphasis added in Alexander). Additionally, the amended § 2709(c) continues to act as a content-based restriction on speech. In Doe I, the Government argued that § 2709(c) was not a content-based restriction because it prohibited disclosure irrespective of a speaker’s viewpoint. See 334 F.Supp.2d at 512. The Court disagreed, finding that although the pre-Reauthorization Act § 2709(c) was neutral with respect to viewpoint, it nonetheless functioned as a content-based restriction because it closed off an “entire topic” from public discourse. See id. at 513 (“ ‘The First Amendment’s hostility to content-based regulation extends not only to restrictions of particular viewpoints, but also to prohibition of public discussion of an entire topic.’ ”) (quoting Consolidated Edison Co. of New York v. Public Serv. Comm’n, 447 U.S. 530, 537, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980)). The nondisclosure requirement of the revised § 2709(c) continues to close off discussion of an entire topic. Prohibiting an NSL recipient from discussing anything about the NSL it received, including even the mere fact of receipt, means that “the first-hand experiences of NSL recipients,” id. at 513, are completely excluded from the public debate. Likewise, the Doe II court, which also found § 2709(c) to be a content-based restriction, stated that it had “the practical impact of silencing individuals with a constitutionally protected interest in speech and whose voices are particularly important to an ongoing, national debate about the intrusion of governmental authority into individual lives.” 386 F.Supp.2d at 75. Indeed, Plaintiffs indicate that as a result of the nondisclosure requirement enforced in this case, they have been precluded from fully contributing to the national debate over the government’s use of surveillance tools such as NSLs, perhaps most particularly consequential in inhibiting their ability to speak and inform public discourse on the issue during Congress’s consideration of the Reauthorization Act. Presumably, Congress’s intention in amending 2709(c) to allow the FBI to certify on a case-by-case basis whether nondisclosure is necessary was to more narrowly tailor the statute to reduce the possibility of unnecessary curtailment of speech. Unfortunately, one necessary consequence of the resulting discretion now afforded the FBI is that the amended 2709(c) creates the risk not only that an “entire topic” of public debate will be foreclosed, but also the risk that the FBI might engage in actual viewpoint discrimination. By now allowing the FBI to pick and choose which NSL recipients are prohibited from discussing the receipt of an NSL, conceivably the FBI can engage in viewpoint discrimination by deciding to certify nondisclosure when it believes the recipient may speak out against the use of the NSL and not to require nondisclosure when it believes the recipient will be cooperative. Thus, the statute has the potential to “contravene the fundamental principle that underlies [the Supreme Court’s] concern about ‘content-based’ speech regulations: that ‘government may not grant the use of a forum to people whose views if finds acceptable, but deny use to those wishing to express less favored or more controversial views.’ ” City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48-49, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986) (quoting Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 95-96, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972)). The Government’s position is that the FBI’s discretion does not create the opportunity for viewpoint discrimination because the prohibition on nondisclosure is premised not on the content of any expected speech but on the circumstances of the counter-terrorism or counterintelligence investigation, which may require secrecy in order to preserve the integrity of the investigation. Although this response suggests a relevant point, the Government’s alleged concern solely with the effect of speech rather than the speech itself does not render 2709(c) any more content-neutral. See Forsyth County, 505 U.S. at 134, 112 S.Ct. 2395 (“Listeners’ reaction to speech is not a content-neutral basis for regulation.”). As a prior restraint and content-based restriction, the amended statute is hence subject to strict scrutiny. See Doe I, 334 F.Supp.2d at 511. The Government indicates that, although it reserves the issue of the appropriate level of scrutiny for appeal, it does not argue this issue in light of the Court’s prior determination in Doe I. {See Gov’t Opp. 11.) The statute can survive strict scrutiny only if it is “narrowly tailored to promote a compelling government interest,” United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000), and there are no “less restrictive alternatives [that] would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.” Reno v. ACLU, 521 U.S. 844, 874, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997). Any restriction on speech which is content-based and acts as a prior restraint is presumed unconstitutional, and the government bears the burden of demonstrating that the provision satisfies strict scrutiny. See R.A.V. v. City of St. Paul, 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (“Content based restrictions are presumptively invalid.”); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963) (“Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.”); Playboy Entm’t Group, 529 U.S. at 816, 120 S.Ct. 1878 (“When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions.”). As Doe I also acknowledged, the government’s asserted interest in seeking to impose a gag on NSL recipients — protecting the nation’s security by preventing terrorism — is certainly compelling in appropriate circumstances. See 334 F.Supp.2d at 513 (“[T]he Government’s interest in protecting the integrity of international terrorism and counterintelligence investigations is a compelling one.”); see also Haig v. Agee, 453 U.S. 280, 307, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981) (“It is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.”) (quoting Aptheker v. Secretary of State, 378 U.S. 500, 509, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964)); Detroit Free Press v. Ashcroft, 303 F.3d 681, 706 (6th Cir.2002) (“The Government certainly has a compelling interest in preventing terrorism.”). Thus, the Court must consider whether § 2709(c), in light of the judicial review now afforded by § 3511(b), constitutes a sufficiently narrowly tailored means of advancing the government’s compelling interest in national security. As was the case with the Court’s initial decision, fundamentally this ruling is “about the process antecedent to the substance of any particular challenge.” Id. at 475 (emphasis in original). Thus, the Court first considers whether the process relating to the issuance and review of an NSL requiring nondisclosure is sufficiently narrowly tailored to ensure that First Amendment rights are not unnecessarily abridged. When a statute confers discretion on government officials to suppress speech, as § 2709(c) does, that discretion must be reasonably limited by objective criteria. See Thomas v. Chicago Park Dist., 534 U.S. 316, 324, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002). Moreover, the government must exercise its discretion within a system that allows for “procedural safeguards designed to obviate the dangers of a censorship system.” Freedman v. Maryland, 380 U.S. 51, 58, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). Such safeguards must include an opportunity for meaningful judicial review. Finally, even where the government has demonstrated a compelling interest justifying the restriction of expression, any such restriction must be narrowly tailored both in scope and duration. As detailed below, the nondisclosure provision of § 2709(c), even with the safeguard of the judicial review afforded by § 3511(b), prescribes a process that is constitutionally deficient under the First Amendment in several respects. D. PROCEDURAL SAFEGUARDS Plaintiffs contend that the NSL nondisclosure provision, § 2709(c), constitutes a “paradigmatic licensing scheme,” in that “the FBI is invested with the discretion to determine, on a case-by-case basis, whether a gag order should be issued with respect to any given NSL.” (Memorandum of Law in Support of Motion for Partial Summary Judgment (“Pis.’ Mem.”), dated Sept. 8, 2006, at 11.) Plaintiffs argue that § 2709(c) is therefore unconstitutional because it fails to provide the requisite procedural safeguards set forth by the Supreme Court in Freedman. 1. The Freedman Safeguards Freedman involved a Maryland motion picture censorship statute that made it unlawful to exhibit a motion picture prior to obtaining the approval of the Maryland State Board of Censors (the “Board”), which was empowered to bar the exhibition of any film that it considered “obscene” or that, in its opinion, tended to “debase or corrupt morals or incite to crimes.” 380 U.S. at 52 & nn. 2-3, 85 S.Ct. 734. Under the statute, a film exhibitor was required to submit the film to the Board for approval prior to showing it, and the exhibitor could appeal a disapproval to a Maryland state court. The Freedman Court held that such a system “avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system.” Id. at 58, 85 S.Ct. 734 (emphasis added). In particular, the Supreme Court held that the following safeguards are required: (1) any restraint in advance of judicial review may be imposed only for “a specified brief period,” (2) any further restraint prior to “a final judicial determination on the merits” must be limited to “the shortest fixed period compatible with sound judicial resolution,” and (3) the burden of going to court to suppress the speech and the burden of proof once in court must rest on the censoring government. Id. at 58-59, 85 S.Ct. 734. The Supreme Court held the Maryland statute unconstitutional because it placed no time limits on a determination by the Board, gave no assurance of prompt judicial review, and placed the burden of challenging the Board’s determination on the exhibitor rather than the government. See id. at 59-60, 85 S.Ct. 734. The Court recognized that “[b]ecause the censor’s business is to censor, there inheres the danger that he may well be less responsive than a court — part of an independent branch of government — to the constitutionally protected interests in free expression.” Id. at 57-58, 85 S.Ct. 734. Additionally, the “exhibitor’s stake in any one picture may be insufficient to warrant a protracted and onerous course of litigation.” Id. at 59, 85 S.Ct. 734. Consequently, the Supreme Court concluded that without adequate procedural safeguards ensuring prompt judicial review, “the censor’s determination may in practice be final.” Id. at 58, 85 S.Ct. 734. As a preliminary matter, this Court finds that § 2709(c) does constitute a form of licensing. In Doe I, the Government argued that the prior version of § 2709(c) did not create a licensing scheme in which the FBI had discretion to pick and choose among speakers to restrain. See 334 F.Supp.2d at 512. The Court commented that such a system “works identically to the most severe form of a licensing system — one in which no licenses are granted.” Id. (emphasis in original); see also Doe II, 386 F.Supp.2d at 74 (“The suppression of speech here is broader than any licensing scheme. It constitutes a categorical prohibition on the use of any fora for speech, on all topics covered by § 2709(c), as contrasted with a licensing scheme, which limits only a particular forum.”). The current version of § 2709(c) does grant the FBI discretion to determine which disclosures it believes must be restricted. Specifically, as outlined above, the FBI may issue a nondisclosure order when the Director of the FBI, or his desig-nee, certifies that disclosure of the NSL “may result” in one of the Enumerated Harms. See 18 U.S.C. § 2709(c)(1). The addition of this discretion to the revised § 2709(c) scheme transforms it from a “blanket proscription on future speech,” Doe I, 334 F.Supp.2d at 512, to a system in which the FBI, based on its own case-by-ease assessment, now has broad discretion to grant some NSL recipients permission to disclose certain information pertaining to their receipt of an NSL and to deny others that freedom. Determining that § 2709(c) embodies a form of licensing, however, does not end the inquiry as to whether the procedural safeguards set forth in Freedman must apply to it. Since Freedman, the Supreme Court has addressed a broad range of licensing systems, and it has decided, on a case-by-case basis, whether Freedman’s procedural protections are required to validate the licensing at issue. See, e.g., Thomas, 534 U.S. at 322, 122 S.Ct. 775 (Freedman inapplicable to licensing scheme that represented a content-neutral time, place, and manner regulation of the use of a public forum); FW/PBS v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (first two Freedman safeguards applicable to city ordinance regulating sexually oriented businesses); Riley v. Nat’l Fed’n of the Blind of North Carolina, Inc., 487 U.S. 781, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988) (Freedman safeguards applicable to professional licensing statute); National Socialist Party of Am. v. Village of Skokie, 432 U.S. 43, 97 S.Ct. 2205, 53 L.Ed.2d 96 (1977) (Freedman safeguards applicable to a state court injunction prohibiting a parade); Blount v. Rizzi, 400 U.S. 410, 91 S.Ct. 423, 27 L.Ed.2d 498 (1971) (Freedman safeguards applicable to statute permitting Postmaster General to block letters and payments related to the sale of allegedly obscene materials). As these cases illustrate, Freedman has been applied in diverse contexts. There is no basis justifying a conclusion that Freedman is limited to cases involving obscenity or sexually-oriented expression, as the Government suggests, or that it is somehow not applicable to cases that involve national security. (See Gov’t Opp. 19.) 2. Application of Freedman With respect to § 2709(c), the' first and second Freedman protections, which require the availability of expeditious judicial review and that any restraint prior to judicial review must be brief, are satisfied by the procedures set forth in § 3511(b) as it relates to NSL recipients. That provision permits an NSL recipient to petition a court for an order modifying or setting aside a nondisclosure requirement. The nondisclosure prohibition is mandated as part of the NSL itself, and the recipient may challenge that restriction at any time after receipt of the NSL. In Beal v. Stern, the Second Circuit held that “prompt access to judicial review in state courts” would satisfy the first two Freedman protections. 184 F.3d 117, 129 (2d Cir.1999). This conclusion holds true with respect to judicial review in federal courts as well. The third Freedman safeguard, the requirement that the government bear the burden both of initiating judicial review and, once in court, of justifying the prior restraint, is not satisfied by § 3511(b), which places the burden of challenging the nondisclosure order on the NSL recipient. The question for the Court, therefore, is whether, on the premise that Freedman applies to the statutory design of § 2709, the First Amendment requires that the third Freedman procedural safeguard govern the validity of § 2709(c). Specifically, the Court must determine whether, as Plaintiffs argue, the reasoning and analysis underlying the Freedman decision apply with equal force in this context, or whether, as the Government counters, the form and scope of the First Amendment harm as well as the compelling national security interests at issue differ so substantially that this procedural protection is not demanded in this case. Comparing the licensing scheme embodied in § 2709(c) with that at issue in Freedman, many shared characteristics are apparent. Both statutes give an agency of the executive branch broad discretion to restrict a particular category of speech, on a case-by-case basis, based solely on its content. The decision to limit speech is made by the government agent prior to any judicial determination as to whether the restriction is constitutional. Although the context of the public exhibition of motion pictures differs substantially from the asserted national security interests entailed in the disclosure of an NSL, both situations present a serious risk of unconstitutionally restricting speech. Importantly, both licensing schemes involve the inherent danger that the government agency might be “less responsive than a court ... to the constitutionally protected interests in free expression,” Freedman, 380 U.S. at 57-58, 85 S.Ct. 734, as well as the substantial likelihood that the censored party — in this case the ECSP — will not have an adequate incentive to challenge the nondisclosure order in court. As in Freedman, “[b]ecause the censor’s business is to censor,” 380 U.S. at 57, 85 S.Ct. 734, the ultimate concern is that, in the absence of adequate procedural safeguards, the licensing determination “may in practice be final,” id. at 58, 85 S.Ct. 734, resulting in a broad de facto power to censor constitutionally protected speech. Two essential considerations distinguish the licensing scheme at issue here from that in Freedman. First, Freedman addressed a system aimed at discerning obscene films, which presumably would not be entitled to First Amendment protection, from those that the Board viewed as “moral and proper,” id. at 52 n. 2, 85 S.Ct. 734. In contrast, here the speech in question— information regarding the government’s monitoring of its citizens’ activities, especially when the actions surveilled encompass legitimate expression' — is a central concern of the First Amendment. See Gentile v. State Bar of Nevada, 501 U.S. 1030, 1034, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991) (“There is no question that speech critical of the exercise of the State’s power lies at the very center of the First Amendment.”); Butterworth, 494 U.S. at 632, 110 S.Ct. 1376 (“[I]nformation relating to alleged governmental misconduct [is] speech which has traditionally been recognized as lying at the core of the First Amendment.”). The risk of investing the FBI with unchecked discretion to restrict such speech is that government agents, based on their own self-certification, may limit speech that does not pose a significant threat to national security or other compelling governmental interest. See New York Times v. United States, 403 U.S. 713, 727 n. *, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (“[T]here is no question but that the material sought to be suppressed is within the protection of the First Amendment; the only question is whether, notwithstanding that fact, its publication may be enjoined for a time because of the presence of an overwhelming national interest.”) (Brennan, J., concurring). If the Supreme Court found the Freedman safeguards necessary even in the narrow context of potentially unprotected expression encompassed by obscenity restrictions, logically the safeguards are all the more appropriate in ensuring that core political speech is not suppressed in the absence of a compelling government interest. Second, Freedman involved what the Government refers to as “the classic form of licensing censorship” (Gov’t Opp. 17), in which an individual proposes to communicate certain ideas or expressions of that person’s own creation, and a governmental agency then passes judgment on whether the individual should be restricted from speaking to others about the prohibited subject. In the context of § 2709(c), the information that is encompassed by the restriction on its communication is that the FBI has served the NSL on the recipient. The recipient acquires this information only through its interaction with the government and, not having created or initiated the information, has no prior intent to communicate it. The Government argues on this basis that § 2709(c) is “a far cry from the pure form of prior-restraint censorship addressed in Freedman.” (Gov’t Opp. 18.) Accordingly, the Government contends that § 2709(c) requires none of the procedural safeguards outlined in Freedman. The question for the Court, therefore, is whether the fact that government is the source of the information at issue mandates that communica