Wednesday, April 02, 2014

Twitter, the Grand Jury and the Gag Order

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—

(1) endangering the life or physical safety of an individual;

(2) flight from prosecution;

(3) destruction of or tampering with evidence;

(4) intimidation of potential witnesses; or

(5) otherwise seriously jeopardizing an investigation or unduly delaying a trial.

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.   

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