In re U.S. for an Order Pursuant to 18 U.S.C. § 2705(B)
289 F. Supp. 3d 201
D.C. Cir.2018Background
- In 2017 the government sought a nondisclosure order under 18 U.S.C. § 2705(b) directing Airbnb not to notify anyone of a grand jury subpoena seeking basic subscriber records under § 2703(c)(2).
- A Magistrate Judge initially granted an August 2017 § 2705(b) order, Airbnb produced records, but a later October and December application was denied by a different Magistrate Judge who held Airbnb was a "user" not a "provider" under the SCA.
- The government filed an amended application and this objection, arguing Airbnb provides an electronic messaging system that allows user‑to‑user communications and therefore qualifies as an "electronic communication service" (ECS) under the SCA.
- Airbnb’s platform requires user accounts and includes a “smart messaging system” enabling hosts and guests to send/receive messages (including text and images) to one another; Airbnb’s public materials state it treats law‑enforcement requests under SCA standards.
- The district court reviewed the magistrate’s denial de novo and concluded the messaging feature gives users the ability to send/receive electronic communications, bringing Airbnb within the SCA for purposes of the government’s subpoena and nondisclosure request.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Airbnb is an ECS or RCS provider under the SCA | Airbnb’s messaging system lets users send/receive electronic communications to/from other users, so Airbnb is an ECS provider for the records sought | Airbnb is a "user" of electronic communications rather than a provider and thus not covered by the SCA | Airbnb is an ECS provider (for the messaging service at issue); the magistrate’s denial reversed and § 2705(b) order granted |
| Whether provision of ECS must be a primary business function | Government: no — statutory definition is functional and context‑sensitive; ancillary ECS suffices | Airbnb: (implicit) its primary business is lodging marketplace, not communications provider | Provision of ECS need not be a primary business function; ancillary messaging suffices to trigger SCA coverage |
| Relevance of Airbnb’s own representations about SCA coverage | Government: Airbnb’s public statements treating requests under § 2703 are instructive and support SCA coverage | Airbnb: (previously represented it would not challenge SCA applicability if properly served) | Airbnb’s representations that it treats requests under the SCA are relevant and corroborative (not dispositive alone) |
| Scope of records obtainable via grand jury subpoena under § 2703(c)(2) | Government: basic subscriber records for Airbnb messaging users are § 2703(c)(2) records and may be subpoenaed; nondisclosure available under § 2705(b) upon showing | Airbnb: argued not a covered provider and thus not subject to § 2703 subpoena/nondisclosure scheme | Court held the subpoena targets records of an ECS and § 2705(b) nondisclosure order is appropriate and granted |
Key Cases Cited
- Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107 (3d Cir. 2003) (entity providing e‑mail service to employees can be an ECS provider)
- United States v. Mullins, 992 F.2d 1472 (9th Cir. 1993) (travel‑agency computer reservation system qualified as ECS in context)
- In re United States, 665 F. Supp. 2d 1210 (D. Or. 2009) (distinguishing provider status as context‑sensitive and focused on particular communications)
- Council on Am.-Islamic Relations Action Network, Inc. v. Gaubatz, 793 F. Supp. 2d 311 (D.D.C. 2011) (statutory definitions are functional; providing ECS to customers can trigger SCA protections)
- JetBlue Airways Corp. Privacy Litig., 379 F. Supp. 2d 299 (E.D.N.Y. 2005) (distinguishing services that merely enable communication with the company from services that provide user‑to‑user ECS)