Posted: February 16, 2018

Magistrate Judge Orenstein Denies Government Motion to Bar Subpoena Recipient From Disclosing Existence of Subpoena And Directs That Future Requests To Seal Such Motions Be Of Limited Duration

Posted by Solomon N. Klein, Litigation Partner

Magistrate Judge James Orenstein continues his series of influential rulings on electronic surveillance and evidence gathering. (In re Grand Jury Subpoena, 18-MC-0334 (E.D.N.Y. Feb. 5, 2018) (JO)). In this recent ruling, Magistrate Judge Orenstein denied a government request under the Stored Communications Act, 18 U.S.C. § 2701, et seq. (the “SCA”) to prohibit the recipient from disclosing the existence of the subpoena for one year because the request was “boilerplate” “formulaic” and “conclusory”. The Court also doubled down on an October 2017 decision that “requested” that the government not seek indefinite sealing of the court records on motions for non-disclosure orders, and rather limits the requests to seal to an initial 90 days. The Court noted that the “request” should now be treated as a “directive.”

The general background: The SCA provides a statutory framework for allowing the government to obtain a court order directing “a provider of electronic communications service or remote computing service” not to disclose to the customer or subscriber the existence of the subpoena. (For example, a subpoena issued to Google for email communications relating to a particular account with an order that it not notify the user of the subpoena.) The SCA allows for delayed notice to the customer for 90 days (with additional 90-day extensions) upon a determination by a court that notice would result in harm, such as, causing the target to flee or destroy evidence.

The structure of the statute would seem to contemplate successive requests by the government for extensions every 90 days. However, the apparent government practice has been to request a one-year delay of notice at the outset – one-year being the maximum under a policy by the Department of Justice. However, on October 2017, Magistrate Judge Orenstein “requested” in a footnote that, in the future, the government’s request to seal the court records of the application for a non-disclosure order should be limited to around 90 days subject to further extensions if needed.

In this case, the Court first took issue with the government’s description of the subpoena recipient as “a provider of an electronic communication service, as defined in 18 U.S.C. § 2510(15), and/or a remote comput[ing] service, as defined in 18 U.S.C. § 2711(2).” The Court rejected this description because in the absence of the recipient being Google or Facebook, it did not provide the Court the ability to determine for itself whether the recipient truly was a “covered service provider” of electronic communication/remote computing services under the statute. As an example of the need for a court to make an independent determination, the Court used the government’s recent position (rejected by a Magistrate Judge in D.C.) that a cruise ship company is a covered service provider because it furnishes Wi-Fi service to its guests. “Such a theory would apply with equal force to many stores, restaurants, schools, and individual homeowners – none of which could plausibly be considered a service provider within the law’s meaning. See id. at 2-3 & n.2. It is thus apparent that the government is willing to read the definitional provisions of the Stored Communications Act so expansively that a court should be wary of accepting at face value a conclusory assertion that the statute applies to a given entity about which no additional information is provided.” (In re Grand Jury Subpoena, 18-MC-0334 (E.D.N.Y. Feb. 5, 2018) (JO)).

The Court then rejected the factual underpinnings of the government’s request as “conclusory” and “boilerplate” that, if sufficient, would effectively justify a delayed-notice order for every subpoena to a covered service provider:

[T]he government engages in pure speculation about the potential adverse consequences of disclosure. It writes that notice would give the target “an opportunity” to flee and obstruct, and that is undoubtedly true. But it tells me nothing about whether it is reasonable to believe that the target “will” engage in such conduct, which is the question I must answer. Some context would help: if, for example, the target is being investigated on the basis of an anonymous tip for the misdemeanor of fraudulently displaying the emblem of the 4-H clubs, see 18 U.S.C. § 707, I might hesitate to conclude that the target of such an investigation, upon discovering his status, would either embrace the life of a fugitive or risk the far more severe sanctions for obstruction of justice. On the other hand, I would think it entirely likely that the target of a well-predicated murder investigation might make such choices if given the chance. As the record currently stands, I can engage in no such analysis.

Similarly, the government tacitly assumes that in any investigation involving either electronically stored records or electronic communications – which is to say, in essentially every criminal investigation in which a non-disclosure order would potentially be available under Section 2705(b) – a person’s awareness that she is under investigation supports a finding that she will delete or encrypt evidence so as to make it unavailable to law enforcement. Neither experience nor logic supports such a syllogism. It is of course true that the technology that allows a person to store and transmit information electronically also allows such information to be hidden or destroyed (even if it is harder to do so effectively than many targets would suspect or than the government would have me assume). But that truism, without more, does not reasonably support the conclusion that every investigative target will do so if possible.

The risk that persons who learn they are under investigation will engage in obstruction is a real one, but it arises to different degrees in different circumstances. Congress could have chosen to address that risk in blunderbuss fashion by universally prohibiting the recipient of any warrant, order, or subpoena from disclosing its existence, but it plainly chose not to do so. Nor did Congress choose to alleviate that risk either by requiring a non-disclosure order either where obstruction is merely a possibility, or by committing the discretion to secure relief to the executive branch (as it effectively did, by contrast, with respect to pen registers). Instead, it prescribed a more nuanced approach, circumscribing both the persons who could be subjected to silencing, and the circumstances in which a court may (and must) order it.

(In re Grand Jury Subpoena, 18-MC-0334 (E.D.N.Y. Feb. 5, 2018) (JO)).

Finally, the Court reminded the government that it had ignored the Court’s previous “request” that the application to seal the record of motions for non-disclosure orders be limited initially to 90 days, and that it should now treat the “request” as a “directive”:

I note that the government again, as it did in Google EDNY, seeks to silence a subpoena recipient for an entire year – the maximum permitted under a recent change in Justice Department policy – and seeks to have its Application and proposed order sealed indefinitely, all without explaining the need for those proposed durations. See Google EDNY, I questioned the need in Google EDNY for such a lengthy restriction of the subpoena recipient’s speech and secrecy, ordered the application sealed for 90 days (with a 90-day extension available upon a showing of continued need), and “respectfully request[ed] that in all future sealing requests, the government submit proposed orders with a similar temporal limitation absent a showing of need to do otherwise.” Id. *5 & n.3. I respectfully remind the government of the request it has thus far ignored and invite it to treat the request as a directive in the future; should that prove ineffective, I will consider more effective measures to avoid needless secrecy.

(In re Grand Jury Subpoena, 18-MC-0334 (E.D.N.Y. Feb. 5, 2018) (JO)).

Posted by Solomon N. Klein, Litigation Partner

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