In re the Search Warrant for [redacted].com, 248 F. Supp. 3d 970

Background

In Nov. 2016 the court issued a sealed warrant under 18 U.S.C. § 2703 directed to Adobe with a nondisclosure/notice-preclusion order (NPO) that contained no expiration date. Adobe sought to limit the NPO’s duration; the government opposed.\
Adobe has a policy of notifying subscribers when their data is sought unless legally prohibited; it also publishes an annual transparency report with aggregate government-request statistics.\
Adobe filed an ex parte application asking the court to require a finite expiration for the NPO; the government defended the NPO’s indefinite duration under § 2705(b).\
The court considered statutory interpretation of the SCA (18 U.S.C. §§ 2701–2712) and § 2705(b)’s phrase "for such period as the court deems appropriate."\
The court concluded § 2705(b) does not itself require a finite time limit but held the First Amendment requires a date-certain limit in this case and set the NPO to expire in 180 days (subject to government reapplication).\
The court also ordered limited unsealing: briefs and the order to be unsealed in 20 days (government may remove declarations/exhibits), while declarations/exhibits remain sealed.

Issues

Issue	Plaintiff's Argument (Adobe)	Defendant's Argument (Government)	Held
Whether § 2705(b) requires a finite expiration for an NPO	Statute requires the court to specify a date certain; an indeterminate NPO renders "period" meaningless	§ 2705(b) permits orders "for such period as the court deems appropriate," which can be indefinite; Congress limited § 2705(a) but not (b)	§ 2705(b) does not, by its plain language, require a finite period
Whether the NPO implicates the First Amendment	Adobe: the NPO restricts Adobe’s speech (notification) and triggers First Amendment protection	Government: notice to subscriber during a grand-jury investigation is not protected or is outside First Amendment scope	Court: NPO implicates First Amendment speech rights; Butterworth does not bar review
Whether the NPO is a prior restraint and content-based restriction	Adobe: NPO is a content-based prior restraint because it forbids speech about the warrant itself	Government: NPO is akin to discovery protective orders and is not content-based because general disclosures remain allowed	Court: NPO is a content-based prior restraint subject to strict scrutiny
Whether an indefinite NPO survives strict scrutiny	Adobe: indefinite duration is not narrowly tailored; less restrictive alternatives exist (e.g., 180-day limit + renewals)	Government: indefinite duration is presumptively justified early in investigations; courts cannot perfectly predict timeline	Court: Government failed to show indefinite NPO is narrowly tailored; imposed 180-day limit with ability to seek extension

Key Cases Cited

Konop v. Hawaiian Airlines, 302 F.3d 868 (9th Cir.) (discussing ECPA privacy scope)
Warshak v. United States, 532 F.3d 521 (6th Cir.) (SCA and user privacy jurisprudence)
In re Zynga Privacy Litig., 750 F.3d 1098 (9th Cir.) (distinguishing ECS and RCS providers)
Butterworth v. Smith, 494 U.S. 624 (Supreme Court) (grand jury limits and First Amendment considerations)
Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908 (9th Cir.) (statutory-construction principle against surplusage)
Robinson v. Shell Oil Co., 519 U.S. 337 (Supreme Court) (text-first statutory interpretation approach)
Leocal v. Ashcroft, 543 U.S. 1 (Supreme Court) (ordinary meaning and dictionary use in statutory interpretation)
Kucana v. Holder, 558 U.S. 233 (Supreme Court) (inference from inclusion/exclusion within statute)
Reed v. Town of Gilbert, 576 U.S. 155 (Supreme Court) (content-based speech test and strict scrutiny)
Playboy Entm't Grp., Inc. v. United States, 529 U.S. 803 (Supreme Court) (least restrictive means requirement)
Seattle Times Co. v. Rhinehart, 467 U.S. 20 (Supreme Court) (protective orders and limits on information gathering)
Bartnicki v. Vopper, 532 U.S. 514 (Supreme Court) (disclosure as protected speech)