Posted by Orin Kerr:
Nondisclosure Orders and the First Amendment:
http://volokh.com/archives/archive_2008_12_14-2008_12_20.shtml#1229361852
The Second Circuit has handed down [1]an opinion on when nondisclosure
orders served on an ISP comply with the First Amendment. The opinion
both interprets and in some ways rewrites Congress's work with
National Security Letters. Here's the key:
[We] rule that subsections 2709(c) and 3511(b) are unconstitutional
to the extent that they impose a nondisclosure requirement without
placing on the Government the burden of initiating judicial review
of that requirement, and (5) rule that subsections 3511(b)(2) and
(b)(3) are unconstitutional to the extent that, upon such review, a
governmental official�s certification that disclosure may endanger
the national security of the United States or interfere with
diplomatic relations is treated as conclusive.
Hat tip: Howard.
References
1.
http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA3LTQ5NDMtY3Zfb3BuLnBkZg==/07-4943-cv_opn.pdf
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