Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 5 of 35 2709(c) and 35ll(b) unconstitutional on their face. The court ruled that the nondisclosure requirement violated the First Amendment because scope or duration. it was Further, not narrowly the court found tailored the in judicial review provision violated the constitutional principles of checks and balances, as well as separation of powers. ~' The Government appealed affirmed in part and Mukasey, 54 9 F. 3d 861 reversed and the Second Circuit in part. (2d Cir. 2008) . See John Doe v. The second Circuit invalidated two primary aspects of sections 2709 and 3511: (1) that FBI certification of certain risks is entitled to a conclusive presumption (absent bad faith) and (2) judicial the failure review. to See provide id. at for by the courts; Government-initiated 884. The Circuit Court construed the remaining parts of Sections 2709 and 3511 to provide certain procedural safeguards (as discussed infE!l), and held that, with those safeguards, See~ sections were constitutional. The second determine reading provided, Circuit whether, of the in then the statute and the of statutory at 883-85. remanded light those to the this Court Circuit procedural to Court's guidance it the non-disclosure requirement was constitutional as-applied to the NSL issued to Merrill. On remand, - 5 - in Doe