Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 11 of 35
party.
See Gallo v. Prudential Residential Serva., 22 F.3d
1219, 1223 (2d Cir. 1994).
B. NON-DISCLOSURE ORDERS UNDER sicTIONS 2709 AND 3511
On June 2, 2015, Congress enacted the USA FREEDOM Act,
which, among other statutory changes, revises Sections 2709
and
3511.
The
Government
has
indicated
its
belief
that
these changes to Sections 2709 and 3511 "ratify and codify
the Second Circuit's decision in
Mem.
at 2.)
[Mukasey]."
(Gov• t
The Government notes that the House Committee
Report explicitly indicated that the revisions
3511
Reply
~correct[
to Section
) the constitutional defects in the issuance
of NSL nondisclosure orders found
[in Mukasey]
and adopts
the concepts suggested by that court for a constitutionally
sound process."
(Gov't Reply Mem. at 2 n.2 {quoting H. Rep.
No. 114-109, at 24 (2015)) .)
In Mukasey,
Second
Circuit
disclosure
because of disagreement on the panel,
left
orders
open
were
less-exacting
scrutiny. 5
either
of
level
the
question
subject
~
scrutiny,
to
549
whether
strict
F.3d
however,
at
the
NSL
scrutiny
877-78.
Second
the
nonor
a
Under
Circuit
• The second Circuit did note that, for purposes of the specific
litigation before it in Mukasey, the Oovei:nment •conceded that strict
scrutiny is the applicable standard.•
549 .F.Jd at 878. Here, too, the
Government has conceded that the "high, indleed strict, scrutiny applied
by [Mukaaeyl controls this case.• IGov•t He•. at 11.)
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