In re Grand Jury Subpoena to [Redacted, 18-MC-0334 (JO)

IN RE GRAND JURY SUBPOENA TO [REDACTED,] INC.

18-MC-0334 (JO)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

February 5, 2018

MEMORANDUM AND ORDER

James Orenstein, Magistrate Judge:

The government seeks an order requiring the recipient of a subpoena not to notify any person of the existence of the subpoena for a period of one year. For the reasons set forth below, I deny the government's motion.

I assume the reader's familiarity with the relevant statutory scheme that authorizes a court, under certain circumstances, to grant the kind of relief the government now seeks. See, e.g., In re Grand Jury Subpoena to Google Inc., 2017 WL 4862780, at *1 (E.D.N.Y. Oct. 26, 2017) ("Google EDNY"); In re Grand Jury Subpoena to Facebook, 2016 WL 9274455, at *1 (E.D.N.Y. May 12, 2016); In re Search Warrant Issued to Google, Inc., 269 F. Supp. 3d 1205, 1208 (N.D. Ala. 2017). Briefly stated, when a warrant, subpoena, or court order is issued to "a provider of electronic communications service or remote computing service" (which I shall call a "service provider" for ease of reference), the court "shall" order the service provider not to disclose its existence if the court "determines that there is reason to believe that notification ... will result in" any of several adverse consequences to a criminal investigation or trial. 18 U.S.C. § 2705(b).

In the instant matter, the grand jury has issued a subpoena to an entity that the government describes — using the kind of boilerplate language it routinely uses in such circumstances — as "a provider of an electronic communication service, as defined in 18 U.S.C. § 2510(15), and/or a remote comput[ing] service, as defined in 18 U.S.C. § 2711(2)." Docket Entry ("DE") 1 (Application) at 1. The government provides no other information about the entity. The government goes on to explain the basis for the required factual finding as follows:

In this case, [the requested] order would be appropriate because the attached subpoena relates to an ongoing criminal investigation that is neither public nor known to targets of the investigation, and there is reason to believe that its disclosure will alert targets to the ongoing investigation. Specifically, the account listed in the subpoena is believed to be used by an individual who is the target of the investigation, who is at large, and who does not yet know of the investigation. Accordingly, there is reason to believe that notification of the existence of the attached subpoena will seriously jeopardize the investigation, including by giving targets an opportunity to flee or continue flight from prosecution, destroy or tamper with evidence, change patterns of behavior or intimidate potential witnesses. See 18 U.S.C. § 2705(b). Some of the evidence in this investigation is stored electronically and can be completely and permanently erased. Some of the evidence in this investigation involves communications that can be transferred to alternate platforms (including encrypted platforms and platforms beyond the jurisdictional reach of U.S. legal process). If alerted to the existence of the subpoena, there is reason to believe that the targets under investigation will destroy that evidence and change their patterns of behavior.

Application at 1-2.

There are several reasons I cannot issue the requested order based on the existing record. First, it is not clear from the face of the Application that the subpoenaed entity is actually the kind of service provider that the statute regulates. To be sure, the government makes a conclusory assertion that it is one "and/or" the other of the two types of providers to which the statute refers, but it provides no information that would allow me to assess that assertion. Were the subpoena directed to a well-known company such as Google or Facebook, each of which plainly fits the pertinent definitions, I would not hesitate in this regard. But as explained below, I cannot simply rely on the government's conclusory assertion on this issue. The government has previously taken the position, for example, that a cruise ship company is a covered service provider because it furnishes Wi-Fi service to its guests. See In re Application of the United States of America for an Order Pursuant to 18 U.S.C. § 2703(d), No. 17-MC-2682 (DAR), DE 2 (Memorandum and Order) (D.D.C Nov. 29, 2017). Such a theory would apply with equal force to many stores, restaurants, schools, and individual homeowners — none of which could plausibly be considered a service provider within the law'smeaning. See id. at 2-3 & n.2.¹ It is thus apparent that the government is willing to read the definitional provisions of the Stored Communications Act so expansively that a court should be wary of accepting at face value a conclusory assertion that the statute applies to a given entity about which no additional information is provided.

Second, even assuming that the entity is indeed a covered service provider — as is plausible, given the subpoena recipient's corporate name and the fact, mentioned in the subpoena itself but not in the Application, that the "account" to which the subpoena is directed is an email account — I have no way to determine if the account at issue is in fact associated in any way with the investigative target.² The government writes only that "the account listed in the subpoena is believed to be used by ... the target of the investigation."³ The government discloses neither the identity of the person — investigative agent or prosecutor — who holds such a belief nor the facts upon whichthat belief is predicated. See Google EDNY, 2017 WL 4862780, at *2 (noting same problem in earlier application). As with the government's assertion that the subpoenaed entity is a covered service provider, I am asked to accept on faith the unidentified government employee's professed belief.

Indeed, the government does not even explain whether, in using the passive voice once again to assert that the account "is used by ... the target," it means that the target is the account subscriber, or if instead that phrasing connotes some more attenuated connection between the target and the account. Here, too, the imprecision matters: if the target is the account's subscriber (under either a true name or an alias), then in the absence of a nondisclosure order it may be likely that the subpoena recipient will notify the target of the subpoena's existence (although the government has similarly provided no information supporting that assumption). But if the target is not the subscriber, and merely uses the account in some unspecified way, then I would need to know about the nature and extent of the usage, and the relationship between the subscriber and the target to be able to make in good faith the factual finding that allowing the company to notify its customer of the subpoena would eventually lead to the target's acquisition of such notice, and thence to the obstructive...