Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 9 of 35
activities;
once
and
NSL
an
(3)
that,
recipient
under
has
sections
been
2709
permitted
and
to
3511,
identify
himself, to identify the target of the NSL, and to disclose
the outcome of the NSL, then the FBI cannot continue a nondisclosure
Merrill
order
argues
contribute
regards
that
to
"electronic
as
he
public
other
seeks
as
to
transaction
NSL.
of
the
in
order
to
the
types
of
that
the
disclosure
discussion
communications
aspects
records"
FBI has sought and continues to seek through NSLs.
For the reasons discussed below,
the
Government
has
not
the court finds that
satisfied
its
burden
of
demonstrating a •good reason" to expect that disclosure of
the NSL Attachment in its entirety will risk an enumerated
harm,
pursuant
to
Sections
2709
and
3511.
Therefore,
Merrill's motion for summary judgment is GRANTED,
and the
Government's cross-motion to dismiss the complaint or,
in
the alternative, for summary judgment is DENIED.
II.
OISCUSSigN
A. STANDARD OF REVIEW
Merrill
Rule
56.
has moved
and
the
for summary
Government
has
judgment,
cross-moved
pursuant
to dismiss,
pursuant to Federal Rule of Civil Procedure l2(b)(6)
l2(b)(6)"),
or
in
the
alternative
- 9 -
for
to
summary
("Rule
judgment,
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