Peter A. Crusco
Peter A. Crusco (NYLJ/Rick Kopstein)

Electronically stored information (ESI) may provide a virtual treasure trove of incriminating evidence, so it is no surprise that such data is the subject of frequent government applications for court orders for Internet providers’ customer account records. Concomitantly, “gag orders” also known as “preclusion-of-notice orders,” issued under Title II of the Electronic Communications Privacy Act of 1986 (ECPA), that is, the Stored Communications Act, 18 U.S.C. §2701 et. seq., are frequently included in these government-inspired investigative demands. Specifically, these judicially authorized nondisclosure demands for data and communications served on providers of electronic communications service (ECS) or remote computing service (RCS) prohibit the providers from notifying their customers, frequently the targets of the investigation, of the government orders. Recently, government requests for nondisclosure orders have come under increasing judicial scrutiny. Questions raised include whether these gag orders violate the First Amendment, and constitute a prior restraint on speech, or violate the Fourth Amendment as an unreasonable search. These and related issues are addressed in this article.

18 U.S.C. 2705(b)

Under §2705(b) of Title 18 of the United States Code, the government may apply to the court under specified circumstances for an order commanding a provider “to whom a warrant, subpoena, or court order is directed, for such period as the court deems appropriate, not to notify any other person of the existence of the warrant, subpoena, or court order.”1 Upon such application, the court shall enter such an order if it determines that there is reason to believe that notification of the existence of the warrant, subpoena, or court order will result in (1) endangering the life or physical safety of an individual; or (2) flight from prosecution; or (3) destruction of or tampering with evidence; or (4) intimidation of potential witnesses; or (5) otherwise seriously jeopardizing an investigation or unduly delaying a trial.2

Section 2705(b) obviously contemplates scenarios where there are valid and compelling reasons to restrict disclosure of law enforcement efforts to obtain the sought after evidentiary records. History’s dustbins are full of cases involving targets of criminal investigations who, after being “tipped off” to detection by law enforcement, tamper with or destroy evidence, or employ various machinations to discover cooperators, and intimidate anyone who may possess incriminating evidence against them. Disclosure of one investigative operation conducted by law enforcement against a target may, of course, frustrate some or all other investigative options against that target and his or her accomplices. The disclosure may restrict the use of informants and undercover officers or place them in jeopardy; frustrate other law enforcement methodologies, strategies and efforts to seize evidence of related crimes; and jeopardize the effectiveness of a Grand Jury investigation, among other potential consequences of premature disclosure.3

Common Law Public Access

The use of the §2705(b) nondisclosure provision, though, stands in direct conflict with the common law presumption of public access to judicial documents and proceedings, and accordingly the courts are initially faced with balancing these interests in deciding whether to issue a gag order on an Internet service provider. The presumption, although subject to rebutting, must not be dismissed lightly given the dangers that come from restrictions on public access. Just as open trials assure the public that procedural rights are respected, and that justice is afforded equally, closed trials breed suspicion of prejudice and arbitrariness, which in turn spawns disrespect for law.4 The same argument has been made against the withdrawal from public view of any step of the judicial process because it makes the ensuing decision appear more like fiat and therefore should require more rigorous justification.

The closed ex parte proceedings that result in gag orders issued for ESI many times stored in the cloud held by third-party Internet service providers have been under special scrutiny by the courts as falling within a suspect spectrum. Of course, the presumed public’s right to access may be outweighed in a certain case by the government’s competing and compelling interest.5 Some courts have attempted to balance these competing interests at the outset by permitting a third-party provider to submit amicus curiae briefs on the legal issue, redacting the name of the target account from the litigation, so as to give the provider the opportunity to submit its contentions to the court. These courts have found that the government has no interest in preventing what amounts to making the legal arguments be made public.

First Amendment and Gag Orders

Courts have been faced with balancing additional interests involved in gag order litigation. For instance, this month the U.S. District Court for the Western District of Washington issued its decision in Microsoft v. U.S. Department of Justice,6 illuminating recent nationwide litigation over these gag orders. Microsoft, a giant ECS and RCS provider, sued the federal government challenging gag orders obtained by prosecutors in applications for data and communications information held by it and seeking a declaratory judgment that §2705(b) is unconstitutional insofar as it permits indefinite nondisclosure orders. The government moved to dismiss Microsoft’s claims. Microsoft argued in response that among its other contentions, the government routinely failed to justify its demands and failed to limit the gag orders to a specific time period. Microsoft alleged that the federal courts have issued more than 3,250 secrecy orders over a 20-month period ending in May 2016, and that nearly two-thirds of those orders were for an indefinite length of time.

In denying the Department of Justice’s motion to dismiss the suit and allowing it to proceed, District Court Judge James L. Robart discussed some the issues being addressed nationally in this evolving area of the law. First, he analogized the gag orders to permanent injunctions preventing speech from taking place before it occurs, and concluded that Microsoft alleged sufficient facts to state a claim that certain provisions of §2705(b) failed the strict scrutiny test and violated the First Amendment.

Specifically, Microsoft contended that §2705(b) was unconstitutional facially and as applied in violation of the First and Fourth Amendments. It contended that §2705(b) inflicts economic injury on it by eroding customer confidence in its cloud services. Section 2705(b) violated the First Amendment right of a business to “talk to customers and to discuss how the government conducts its investigations,” and thereby is overbroad, imposing impermissible prior restraints on speech, including impermissible content-based restrictions, and improperly inhibiting the public’s right to access search warrants. Further, Microsoft contended that 2705(b) is unconstitutional facially, and as applied in violation of the Fourth Amendment right of “people and businesses … to know if the government searches or seizes their property.” The invalidity was premised on the statute’s ability to block notification to individuals of searches and seizures and thereby disclose the intrusion into their personal affairs and private information, and obtain gag orders that unconstitutionally delay such notice and “prohibit providers from telling customers when the government has accessed their private information” without constitutionally sufficient proof and without sufficient tailoring in that Microsoft continues to be restrained from speaking about the topic of government surveillance and investigations even after “secrecy is no longer required to satisfy the government’s interest.”

The government opposed Microsoft’s claims on the basis that it lacked standing as a third-party custodian of the records, failed to state a claim, failed to identify a particularized injury, and that the government did not need to satisfy the strict scrutiny test as the speech involved did not address matters of public concern.

Judge Robart determined that Microsoft alleged an injury-in-fact to a legally protected interest, and a likelihood of future injury finding that §2705(b) orders that indefinitely prevent Microsoft from speaking about government investigations implicate Microsoft’s First Amendment rights. Moreover, the routine use of indefinite gag orders was ostensibly unconstitutional, given that they act as a “forever” application of prior restraint.7

Fifth Amendment Due Process

Courts have also found that the Fifth Amendment is also implicated in the issuance of a gag order on the service provider. One court finding that a gag order with respect to a demand for records of a Twitter account called into question Twitter’s due process rights under the Fifth Amendment determined that Twitter had a right to be heard before being condemned to “suffer grievous loss of any kind,” even though it may not involve the stigma and hardship of a criminal conviction.8 The court, therefore, requested Twitter to intervene as a respondent.

Fourth Amendment Standing

In Microsoft, Microsoft also claimed standing to sue under the Fourth Amendment invoking its protections on behalf of its customers’ rights. Nevertheless, the court rejected Microsoft’s claim to vindicate it customer’s Fourth Amendment rights, acknowledging that established and binding precedent of the U.S. Supreme Court holds that Fourth Amendment rights are personal rights under the so-called third-party doctrine that cannot be asserted vicariously. The court acknowledged that its decision created a “difficult situation” for customers subject to government searches and seizures under §§2703 and 2705(b) in that, by application of the third-party doctrine, “the indefinite nondisclosure orders allowed under §2705(b) mean that some customers may never know that the government has obtained information in which those customers have a reasonable expectation of privacy.”

State Non-Disclosure Orders

By comparison, under New York state grand jury secrecy law per Criminal Procedure Law §190.25(4), a witness may reveal his or her own testimony based on First Amendment considerations, but there appears to be no direct authority restricting a court’s inherent power to order nondisclosure on a temporary basis where it is properly justified. On the state level, courts have generally required a specific showing of compelling circumstances or need for secrecy before they will impose a limited secrecy order on the recipient of the grand jury subpoena.9

Conclusion

Nothing in either New York state or federal law prohibits a court from making a temporary nondisclosure order based upon specific compelling circumstances as part of its inherent power to control the proceedings, maintain grand jury secrecy, and protect the integrity of lawful investigations. Nevertheless, 18 U.S.C. §2705(b) nondisclosure orders under the federal Stored Communications Act, issued with no temporal limitations served on third-party Internet service providers for customer accounts have been challenged by those third-party providers on several grounds, including that the orders are essentially injunctions preventing the companies from engaging in speech about the government surveillance and investigation with their customers before the speech actually occurs, and therefore restrained them from speaking about these same topics even after the secrecy is no longer required to satisfy the government’s interest. Some of these challenges have survived initial motions to dismiss by the government. It remains to be seen whether these challenges, which essentially contend that the orders impermissibly burden the Internet service providers’ First Amendment rights to discuss government’s surveillance tactics and investigation with their customers, will be determined to outweigh the government’s interest in a certain case in the integrity of an investigation of criminal activity.

Endnotes:

1. See generally In re U.S. for an Order Pursuant to 18 U.S.C. §2703(D), 707 F.3d 283, 296 (4th Cir. 2013).

2. See generally In Matter of Search Warrant for [Redacted]@hotmail.com, No. 14-MJ-71388-(PSG), 74 F. Supp. 3d 1184 (N.D. Cal. Nov. 25, 2014) (unlimited nondisclosure order prohibited).

3. See, e.g, In re Grand Jury Subpoena Duces Tecum, 575 F. Supp. 93, 94 (1983); Times Mirror Co. v. United States, 873 F.2d 1210, 1273 (9th Cir. 1989).

4. See Richmond Newspapers v. Virginia, 448 U.S. 555, 595 (1980); Times Mirror, 873 F.2d 1210.

5. See, e.g., In re §2703(d), 787 F. Supp. 2d 430, 438 (E.D. Va. 2011).

6. Microsoft v. Department of Justice, 2017 U.S. Dist. LEXIS, 18691 (W.D. Wash., Feb. 8, 2017, Robart, D.C. J.); see also In Matter of Search Warrant for [Redacted]@hotmail.com, 74 F. Supp. 3d 1184 (court would not issue unlimited nondisclosure order); In re Sealing & Non-Disclosure, 562 F. Supp. 2d 876, 877 (S.D. Tex. 2008) (court adopted a 180-day period as a protocol for sealing and non-disclosure orders unless further certifications for extensions were sought).

7. See also In re Sealing & Non-Disclosure, 562 F. Supp. 2d 876.

8. In re United States for Nondiclosure Order Pursuant to 18 U.S.C. §2705(b), 2014 U.S. Dist. LEXIS 43950 (D.C. March 31, 2014).

9. See Butterworth v. Smith, 494 U.S. 624, 626 (1990) (Florida law that prohibits a grand jury witness from disclosing his own testimony after the term of the Grand Jury has ended violates the First Amendment); see, e.g., Matter of Grand Jury Applications for Court-Ordered Subpoenas and Nondisclosure Orders, 142 Misc. 2d 241 (N.Y. Co. Sup. 1988).