This post examines a recent opinion issued by a U.S. District Judge who sits in the U.S. District Court for the District of Columbia: In re Application of the
United States of America for Nondisclosure Order, 2014 WL 1273227 (2014) (“In re Application, supra”).
The judge opens his opinion with this observation:
This Court is in receipt of an Application from the
government pursuant to 18 U.S. Code § 2705(b) requesting that Twitter,
Inc., be prohibited from notifying any person of the existence or content of federal
grand jury subpoena # GJ2014032122836 for a period of either ninety (90) days,
or until further order of this Court, whichever is shorter. . . .
In re Application,
supra. Section 2705(b) of Title 18
of the U.S. Code provides as follows:
A governmental entity acting under [18U.S. Code §] 2703, when it is not required to notify the subscriber or
customer under section 2703(b)(1), or to the extent that it may delay such
notice pursuant to subsection (a) of this section, may apply to a court for an
order commanding a provider of electronic communications service or remote
computing service 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. 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—
The judge begins the substantive part of his opinion by
explaining that the
present Application, made pursuant
to 18 U.S. Code § 2705(b), is the third the Court has received in recent
weeks. With respect to the first two applications, the Court requested that
Yahoo!, Inc. and Twitter, respectively, intervene as respondents and indicate
whether they wish to be heard before the Court rules on the government's
applications. . . .
In separate Orders, the Court also
ordered the government to file public, redacted copies of its applications
because of the `common law right of access to court documents’ which requires
that `as much material as possible [ ] be made public.’ Order, Misc.
Case No. 14–287[# 4] (D.D.C. Mar. 24, 2014); see also Order, Misc. Case
No. 14–296[# 4](D.D.C. Mar. 24, 2014). The government has since filed interlocutory appeals of those Orders -- which were not final and did not address the merits
of the applications -- and moved Chief Judge Richard W. Roberts to reach the
merits of the applications and issue the government's proposed orders
himself.
In re Application,
supra.
He then notes that the “present Application, while related
to a different grand jury investigation and subpoena, is identical to the
previous two applications with respect to the legal issues raised.” In re
Application, supra. You can read an overview of how federal
prosecutors use grand juries to investigate potential criminal activity here.
The judge then
explains what is involved in the “present Application”:
The government asks this Court to issue
what is, essentially, a `gag order’: Twitter would be prohibited from
communicating certain information to a certain individual for a certain period
of time. This would implicate Twitter's rights under the 1st Amendment because
it would be both a content-based restriction of speech and a prior restraint on
speech. See In re Sealing and Non–Disclosure of Pen/Trap/2703(d)
Orders, 562 F.Supp.2d 876, 881–883 (U.S. District Court for the
Southern District of Texas 2008) (holding that an open-ended gag order violates
the 1st Amendment) (hereinafter In re Sealing). Magistrate Judge
Stephen Smith's opinion in In Re Sealing is persuasive, and
his conclusions regarding the 1st Amendment rights at issue when a gag order is
issued are correct.
In re Application,
supra.
He also pointed out
that
[i]t is equally true that the
Application implicates Twitter's due process rights under the 5th Amendment.
The Supreme Court has long recognized that `the right to be heard before being
condemned to suffer grievous loss of any kind, even though it may not involve
the stigma and hardships of a criminal conviction, is a principle basic to our
society.’ Joint Anti–Fascist Refugee Comm. v. McGrath, 341 U.S. 123 (1951) (Frankfurter, Justice, concurring) . . . . A content-based restriction
on the fundamental right to free speech certainly meets this standard as the 1st
Amendment is `hostil[e]’ to such restrictions. Consol. Edison Co. of New York, Inc. v. Pub. Serv. Comm'n of New York, 447 U.S. 530 (1980).
In re Application,
supra.
The judge then began to address what needed to happen in
this case:
Defining the scope of `what procedures
due process may require under any given set of circumstances must begin with a
determination of the precise nature of the government function involved as well
as the private interest that has been affected by governmental action.’ Goldberg v. Kelly, 397 U.S. 2254 (1970).
In this case, due process requires that
Twitter be given an opportunity to be heard before the ninety-day gag order is
issued. The government's need for the secrecy of the grand jury proceedings is
protected by temporarily restraining Twitter from divulging any information
about the underlying grand jury subpoena until after this Court issues a final
ruling in this matter. At the same time, Twitter is given an affirmative
opportunity to come before the Court and assert, if it chooses, its 1st
Amendment rights.
In re Application,
supra.
He also pointed out, however, that in its interlocutory
appeals, the U.S. Department of Justice took a
different view: `if the government
demonstrates to the satisfaction of a court there is reason to believe that
notification of a subpoena's existence to any other person will result in one
or more of the five enumerated conditions, the “court shall enter
such an order.”’ Government's Appeal 14–287 at 5; Government's
Appeal 14–296 at 5. . . .
This argument fails for two reasons.
First, the Court has not yet issued a ruling on whether the government has
carried its burden. The government presumably will, which is
why the Court is granting the government the same preliminary relief that it
seeks as final relief and thus Orders Twitter to not disclose information about
the grand jury subpoena until this Court rules otherwise. Second, and more
importantly, the Court cannot issue an order that would
violate the Constitution by violating Twitter's due process rights. Thus, until
Twitter has an opportunity to be heard, this Court will not issue a final order
in this matter.
In re Application, supra
(emphasis in the original).
The judge also explained that
[i]nstead,
the government appears to believe that the appropriate course of action is for
the Court to issue the gag order and for Twitter to either violate the order
and defend itself in a contempt hearing or move to quash. Given the
circumstances, however, those options place too much of a burden on Twitter.
The
government loses nothing by allowing Twitter to first be heard on whether it
objects to being gagged. This Court has repeatedly emphasized this point, but
will do so again: on a preliminary basis, this Memorandum Opinion and Order
bars Twitter from disclosing any information about the grand jury subpoena at
issue. Twitter should first be heard before the Court restricts its right to
free speech.
In re Application,
supra.
Then, in a section
of the opinion captioned as “The Court Has Inherent Power to Ask Non-Parties to
Express Their Views”, the judge points out that
[w]hile §
2705(b) does not explicitly allow a service provider to serve as a
respondent, it also does not forbid a service provider from
doing so. Federal courts certainly have the inherent authority to ask
individuals or organizations to intervene as amicus curiae. See,
e.g., In re Application of the United States of America for an Order
for Disclosure of Telecommunications Records and Authorizing the Use of a Pen
Register and Trap and Trace, 405 F.Supp.2d 435 (U.S. District Court
for the Southern District of New York 2005) (On an ex parte application
under 18 U.S. Code § 2703(d), the court `asked the Federal Defenders of
New York, Inc. to appear as amicus curiae. The Court greatly
benefited from the briefing provided by both sides.’).
Here,
Twitter cannot be asked to intervene as an amicus because
Twitter is the object of the government's Application. Twitter is more
appropriately considered a respondent, as it -- and only it -- will be affected
by whatever order this Court ultimately issues. Thus, under the Court's own
inherent authority, it is appropriate to ask Twitter to intervene as a
respondent. See U.S. v. Moussaoui, 483 F.3d 220 (U.S. Court of Appeals for the 4th Circuit 2007) (`Inherent powers are “governed not by
rule or statute but by the control necessarily vested in courts to manage their
own affairs so as to achieve the orderly and expeditious disposition of cases”’).
. . .
Although
a court should exercise caution in using its inherent powers, `a court has the
inherent authority to control various aspects of the cases before that
court’”. U.S. v. Moussaoui, supra
(emphasis in original). Asking Twitter to intervene as a respondent is an
appropriate exercise of this Court's inherent authority, especially given the 1st
and 5th Amendment implications of not permitting Twitter to be heard.
In re Application, supra.
The judge then took
up a different issue: publicity.
It
is well established that the common law `presumes a right to access all judicial
records and documents, but this presumption can be rebutted if the public's
right of access is outweighed by competing interests.’ In re
Application of the United States of America for an Order Pursuant to18
U.S.C. Section 2703(D), 707 F.3d 283 (U.S. Court of Appeals for the 4th Circuit 2013). . . . In this Circuit, the appropriate test to balance these
interests is somewhat unclear.
In In
re Application of New York Times Company for Access to Certain Sealed Court
Records, 585 F.Supp.2d 83 (U.S. Court of Appeals for the District of Columbia Circuit 2008) (hereinafter In re Application of New York
Times), then-Chief Judge Royce Lamberth indicated that the six-factor
test from United States v. Hubbard, 620 F.2d 293 (U.S. Court of Appeals for the District of Columbia Circuit 1981) should be
used to determine whether the common law right of access applies. Under that
test, a court should consider: (1) the need for public access to the documents
at issue; (2) the public use of the documents; (3) the fact of objection and
the identity of those objecting to disclosure; (4) the strength of the
generalized property and privacy interests asserted; and (5) the possibility of
prejudice. In re
Application of New York Times, supra.
However,
a decade before Chief Judge Lamberth's ruling, the D.C. Circuit itself did not
apply the Hubbard test. See Washington Legal Found. v.
U.S. Sentencing Comm'n, 89 F.3d 897 (U.S. Court of Appeals for the
District of Columbia Circuit 1996). Instead, that court indicated that courts `should
proceed to balance the government's interest in keeping the document secret
against the public's interest in disclosure,” and it specified that “the court
should focus on the specific nature of the governmental and public interests as
they relate to the document itself, as well as the general public interest in
the openness of governmental processes.’ Washington Legal Found. v. U.S.
Sentencing Comm'n, supra.
In re Application, supra.
The judge therefore
found that
[u]nder
either standard, . . . it is clear that the government must make a public,
redacted version of its Application available because it has no interest in
preventing what amount to legal arguments from being made public. Furthermore,
there is a significant public interest in allowing the public to know that the
government is affirmatively seeking to silence an entity that is not a party to
any judicial proceedings. All this Court is doing is making the government
disclose its intention to silence Twitter. This would in no way prejudice the
underlying grand jury proceedings or render them public in any way.
In re Application, supra.
He consequently
issued this ruling:
For
the reasons stated above, the Court invites Twitter to intervene as a
respondent in this matter so that it may be heard on the merits of the
government's Application. Twitter has a 5th Amendment due process right to be
heard before being subjected to a gag order. This is certainly not to say that
Twitter will prevail on a 1st Amendment claim -- as Magistrate Judge Smith's
opinion made clear, the balance between the need for law enforcement to keep
certain information secret and the 1st Amendment rights of an entity like
Twitter suggest that nondisclosure is appropriate when the gag order is for a
discrete period of time, . . . but
Twitter nevertheless has a right to be heard. Furthermore, the Court wishes to
receive adversarial briefing on whether statutory authority exists for the
government's requested order.
Although
the government's Application remains under seal, the docket in this matter will
be public. The Court will Order that the government file a public, redacted
copy of the Application and its proposed order by April 2, 2014. Twitter should
file a notice on ECF by April 4, 2014, indicating whether it wishes to be heard
on the merits of the government's Application. All filings in this matter
should be public and not under seal unless expressly authorized by the Court.
In re Application, supra.
No comments:
Post a Comment