Case 1:14-cv-09763-VM Document 44 Filed 08/28/15 Page 12 of 35
identified two limitations required by the First Amendment:
(l)
the Government must
disclosure
requirements
non-disclosure
initiate
if
an
requirement
j1.1dicial review of non-
individual
so
this
that,
(1)
second
limitation,
the
and
requests,
judicial review must be meaningful.
to
subject
See
second
~
the Government has the burden to
(2)
reason exists to expect that
(3)
an NSL will risk an enumerated
harm.'~~
the
that
at 878-83. As
Circuit
to satisfy First Amendment procedural
(2)
to
indicated
requirements,
show that a good
disclosure of receipt of
at 881.
First, by placing the burden on the government to show
a good reason,
a district court does not have to •find a
negative,
that no good reason exists to believe that
i.e.,
disclosure may risk one of the enumerated harms."
Id.
at
876. Second, as to the ''good reason" requirement:
[A) reason will not qualify as 'good' if it surmounts
only a standard of frivolous.,ess. We understand the
statutory requirement of a f i•ding that an enumerated
harm •may result' to mean more than a conceivable
' When Mukasey was decided, Section 3511 provided that a court could
modify or set aside a nondisclosure requirement if it found •no reason
to believe that disclosure may endanger ~he national security Of the
United St•tes,
interfere with a
critinal,
counterterrorism,
or
counterintelligence investigation, interfe~e with diplomatic relations,
or endanger the life or physical safety .of any person.• 18 u.s.c. 5
3Sll(b)(2)-(3)
(in effect Mar. 9, 2006 - June l, 2015)
(emphash
added). At that time, under Section 3511, a court was also to treat an
official certification of that danger as •conclusive• absent a finding
of bad faith. This version of the statute remained in effect -- except
in the Second Circuit aa modified by Mulfaaey - - until June 2, 2015,
when the USA FREEDOM Act took effect,
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