The Court finds that, as written, the statute impermissibly attempts to circumscribe a court's ability to review the necessity of nondisclosure orders. As noted above, while not a "classic" prior restraint or content-based speech restriction, the NSL nondisclosure provisions significantly infringe on speech regarding controversial government powers. As such, the Court can only sustain nondisclosure based on a searching standard of review, a standard incompatible with the deference mandated by Sections 3511(b) and (c). As written, the statute expressly limits a court's powers to modify or set aside a nondisclosure order to situations where there is "no reason to believe" that disclosure "may" lead to an enumerated harm; and if a specified official has certified that such a ham "may" occur, that determination is "conclusive." The statute's intent -- to circumscribe a court's ability to modify or set aside nondisclosure NSLS unless the essentially insurmountable standard "no reason to believe" that a harm "may" result is satisfied -- is incompatible with the court's duty to searchingly test restrictions on speech. See, e. John Doe, Inc. v. Mukasey, 549 F.3d at 883 ("The fiat of a governmental official, though senior in rank and doubtless honorable in the execution of official duties, cannot displace the judicial obligation to enforce constitutional requirements. 'Under no circumstances should the Judiciary become the handmaiden of the Executive.'

Instead of responding directly to that challenge and filing a motion to compel compliance in the way the Justice Department has responded to past challenges, government attorneys instead filed a lawsuit against the telecom, arguing that by refusing to comply with the NSL and hand over the information it was requesting, the telecom was violating the law, since it was “interfer[ing] with the United States’ vindication of its sovereign interests in law enforcement, counterintelligence, and protecting national security.”

They did this, even though courts have allowed recipients who challenge an NSL to withhold government-requested data until the court compels them to hand it over. The Justice Department argued in its lawsuit that recipients cannot use their legal right to challenge an individual NSL to contest the fundamental NSL law itself.