269 F. Supp. 3d 1205
N.D. Ala.2017Background
- The government obtained a § 2703 search warrant directed to Google for email account data and issued a § 2705(b) nondisclosure order forbidding Google from notifying anyone of the warrant "unless and until otherwise authorized to do so by the Court."
- Google challenged the indefinite nondisclosure language on First Amendment grounds and sought a fixed nondisclosure period.
- The government argued § 2705(b)’s phrase "for such period as the court deems appropriate" permits nondisclosure orders of indefinite duration.
- The court examined statutory text, related SCA/ECPA provisions, and dictionary usage to interpret the term "period" and to compare § 2705(b) with other nondisclosure provisions (e.g., § 2709 and 18 U.S.C. § 3123(d)(2)).
- The court applied constitutional-avoidance principles and First Amendment analysis (including Cooper v. Dillon) to assess whether indefinite nondisclosure orders are permissible.
- Ruling: the court limited the existing nondisclosure order to 180 days from entry and allowed the government to apply for extensions before expiration; indefinite nondisclosure is generally disfavored and permissible only in rare, narrow circumstances with proper showing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2705(b) permits nondisclosure orders of indefinite duration | Google: indefinite orders chill speech and raise First Amendment problems; request a fixed period | Government: § 2705(b) "for such period as the court deems appropriate" allows indefinite duration | Court: § 2705(b) generally does not permit indefinite-duration orders; "period" implies a definite term |
| Whether nondisclosure orders like § 2705(b) are a content-based prior restraint requiring strict scrutiny | Google: nondisclosure is a prior restraint and content-based (suppresses speech about investigations) | Government: nondisclosure is justified by investigative/litigation interests and may warrant lesser scrutiny | Court: § 2705(b) orders are content-based prior restraints; strict scrutiny applies |
| Whether indefinite nondisclosure orders can satisfy First Amendment strict scrutiny | Google: indefinite orders are not narrowly tailored and unnecessarily suppress speech | Government: compelling interests (safety, evidence preservation, flight, witness intimidation, jeopardizing investigation) justify nondisclosure | Court: compelling interests present, but indefinite nondisclosure is not narrowly tailored and risks First Amendment violation |
| Appropriate remedy for the warrant at issue | Google: request a fixed nondisclosure period to avoid chill | Government: seeks to maintain the existing indefinite language | Court: grants a 180-day nondisclosure period; government may apply for extensions before expiration; nondisclosure continues while extension is pending |
Key Cases Cited
- Cooper v. Dillon, 403 F.3d 1208 (11th Cir.) (content-based nondisclosure statutes and prior restraints require strict scrutiny)
- Matter of Search Warrant for [redacted].com, 248 F. Supp. 3d 970 (C.D. Cal.) (construed § 2705(b) to permit indefinite nondclosure; court adjusted order on First Amendment grounds)
- In re National Security Letter, 863 F.3d 1110 (9th Cir.) (interpretation of NSL nondisclosure and statutory termination/AG review procedures)
- Microsoft Corp. v. United States Dep’t of Justice, 233 F. Supp. 3d 887 (W.D. Wash.) (analyzed § 2705(b) and indefinite nondisclosure; applied First Amendment concerns)
- In re Sealing and Non-Disclosure of Pen/Trap/2703(d) Orders, 562 F. Supp. 2d 876 (S.D. Tex.) (empirical evidence on long-lived seals and discussion of prior restraint characteristics)
- Smith v. Maryland, 442 U.S. 735 (1979) (third-party pen-register/metadata privacy analysis referenced for comparison)
- Butterworth v. Smith, 494 U.S. 624 (1990) (grand jury/witness disclosure precedents on First Amendment limits)
- Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978) (protecting public discussion of governmental affairs under the First Amendment)
- Alexander v. United States, 509 U.S. 544 (1993) (definition and limits of prior restraints)