In re Search Warrant Issued to Google, Inc.

269 F.Supp.3d 1205

IN RE SEARCH WARRANT ISSUED TO GOOGLE, INC.

CASE NO. 5:17–mj–532–HNJ

United States District Court, N.D. Alabama, Northeastern Division.

Signed September 11, 2017

MEMORANDUM OPINION AND ORDER

HERMAN N. JOHNSON, JR., UNITED STATES MAGISTRATE JUDGE

The United States served on Google, Inc., a search warrant issued by the Court pursuant to the Stored Communications Act, 18 U.S.C. § 2703 et seq. Google challenged the warrant's applicability to information stored in foreign territory, and pursuant to the Government's Motion to Compel the undersigned ordered Google to disclose the foreign-stored data. In the briefing on the Motion to Compel, Google challenged tire Court's directive prohibiting disclosure of the warrant "unless and until otherwise authorized to do so by the Court," and it requests an amendment to the Order to establish a fixed period of nondisclosure to allay First Amendment concerns. For the reasons set forth herein, the Court GRANTS Google's request and ORDERS a 180–day period of nondisclosure for the search warrant, subject to the Government's application, on or before the expiration of the 180–day period, for an extension of the nondisclosure Order.

I. BACKGROUND

Congress enacted the Stored Communications Act as Title II of the Electronic Communications Privacy Act of 1986. Section 2703 of the SCA regulates government access to stored communications, in particular wire or electronic information such as emails, texts, social media communications, etc. 18 U.S.C. § 2703. Section 2705 of the statute provides that a court may order a provider "not to notify any other person of the existence" of a "warrant, subpoena, or court order" regarding certain requested information "for such period as the court deems appropriate ...."¹ A court may enter such nondisclosure orders when "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."

Id.

In the case at bar, the Court issued a warrant pursuant to § 2703 commanding Google to disclose information associated with several email accounts. In addition, pursuant to § 2705(b) the Court ordered Google not to disclose the existence of the warrant "unless and until otherwise authorized to do so by the Court." Google challenges the order as violating the First Amendment because it contemplates an indefinite nondisclosure period.

II. ANALYSIS

As an initial matter, the parties do not dispute that the Order's terms established an indefinite period of nondisclosure. The parties debate several other aspects of the Order, principally whether the SCA permits indefinite nondisclosure periods, and if so, whether such measures violate the First Amendment. As the following analysis portrays, § 2705(b) generally contemplates nondisclosure periods of limited time durations, and this interpretation of § 2705(b) avoids a conflict with the First Amendment.

A. § 2705(b) Does Not Generally Permit Indefinite Nondisclosure Orders

The Government contends § 2705(b) permits nondisclosure orders of indefinite duration. The Court agrees, but only in limited circumstances, not the broad scope lodged by the Government. Construing the SCA and related statutes by reviewing the ordinary meaning of their terms, and the structure of the statutes as a whole, reveals that § 2705(b) does not generally permit nondisclosure orders lacking a termination date.

As stated previously, § 2705(b) permits nondisclosure orders "for such period as the court deems appropriate." In support of its arguments, the Government relies upon several cases holding that these terms permit periods of indefinite duration. Most prominently, in In the Matter of the Search Warrant for [Redacted].com No. 16-2316M, 2017 WL 1450314, 248 F.Supp.3d 970 (C.D. Cal. Mar. 31, 2017), the court held that § 2705(b) permits nondisclosure orders of indefinite duration.

In reaching this conclusion, the court relied upon a particular definition of the term "period":

"8 a : a chronological division (as of a life, a development) : Stage < ∼ of infancy > < ∼ of preparation and training > < ∼ of incubation of a disease > ... c : a time often of indefinite length but of distinctive or specified character : Spell < ∼ of laziness > < ∼s of anxiety > < a ∼ of wet weather > < ∼s of rising prices >"

Id. at 977, at *4 (quoting Webster's Third New International Dictionary (Merriam—Webster Inc. 2002) (brackets in original). The court focused upon the reference to "indefinite length" in the definition, and determined that "the portion of time characterized by the adverse result or results that will occur if the government's warrant or other process is disclosed" may be "indefinite." Matter of Search Warrant for [redacted].com , 248 F.Supp.3d at 977, 2017 WL 1450314, at *4.

Furthermore, the court compared § 2705(b)'s terms with § 2705(a)'s delayed notice provision. Section 2705(a) permits the government to delay notice to a target of a court order or subpoena for 90 days. As the court stated, " 'where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.' " Matter of Search Warrant for [redacted].com , 248 F.Supp.3d at 977, 2017 WL 1450314, at *4 (quoting Kucana v. Holder , 558 U.S. 233, 249, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010) ). Pursuant to the distinction between §§ 2705(a) and (b), the court declared that § 2705(b) does not require a specified duration of time. Matter of Search Warrant for [redacted].com , 248 F.Supp.3d at 977, 2017 WL 1450314, at *4.

The afore-discussed decision, as well as the Government in the dispute at bar, rely upon two other district court cases permitting nondisclosure orders of indefinite duration. See In re Application of the U.S. For An Order Pursuant To 18 U.S.C. § 2705(b) , 131 F.Supp.3d 1266, 1270 (D. Utah 2015) ( Section 2705(b)"deals with precluding notice instead of delaying notice. While notice from the government to the subscriber may be delayed for a limited time [under Section 2705(a) ], notice by the provider to the subscriber may be indefinitely restrained [under Section 2705(b) ].") (emphasis in original); Microsoft Corp. v. United States Dep't of Justice , 233 F.Supp.3d 887, 895 (W.D. Wash. 2017) (" 'The combined effect of [ Sections 2703 ] and 2705(b) is that ... the government may seek an order under § 2705(b) that restrains the provider indefinitely from notifying the subscriber.' ") (quoting In re Application of the U.S. , 131 F.Supp.3d at 1271 ) (brackets in original).

The undersigned respectfully disagrees with the holding that § 2705(b) permits nondisclosure orders of indefinite duration, in particular if a court orders such nondisclosure "unless and until authorized to do so by the court." The ordinary-meaning canon of statutory interpretation posits that although "common English words have a number of dictionary definitions, some of them quite abstruse and rarely intended[,] [o]ne should assume the contextually appropriate ordinary meaning unless there is reason to think otherwise." Antonin Scalia & Bryan A. Garner, Reading Law: the Interpretation of Legal Texts 70 (2012); see also James Kent, Commentaries on American Law 432 (1826) ("The words of a statute are to be taken in their natural and ordinary signification and import ....") (cited in, Scalia, supra , at 69 n. 1). As a matter of textual interpretation, Congress intended the ordinary meaning of the term "period" to apply under § 2705(b).

The ordinary meaning of the term "period" connotes a limited duration of time, not an indefinite length. Several other dictionaries assume this more common definition of the word "period." See Webster's New Universal UNABRIDGED DICTIONARY 1071 (1989) ("1. a rather large interval of time that is meaningful in the life of a person, in history, etc., because of its particular characteristics: a period of illness; a period of expansion for a company; a period of social unrest in Germany. 2. any specified division or portion of time: architecture of the period 1530–1800 .... 13. the time during which anything runs its course.) (emphasis in original); Webster's New World Compact School and Office Dictionary 318 (1989) (1. the interval between successive occurrences of an event 2. a period of time characterized by certain processes, etc. [a period of change] ) (emphasis in original); Webster's II New Riverside University Dictionary 874 (1984) ("1. An interval of time marked by the occurrence of certain conditions or events < a period of six weeks> ... 8. A point or portion of time at which something is ended....") (emphasis in original); see also The American Heritage Dictionary of the English Language (Sept. 8, 2017), https://ahdictionary.com/word/search.html?q=PERIOD ("1. An interval of time characterized by the occurrence of a certain condition, event, or phenomenon: a period of economic prosperity .... 8. A point or portion of time at which something is ended; a completion or conclusion....").

One presumes Congress intended the phrase "period as the court deems appropriate" to guide courts in establishing a specific time duration, i.e., a "period of six weeks." The ordinary meaning of the term "period," especially when qualified by the phrase "as the court deems appropriate," connotes a portion of time with specified duration, particularly when the length of time corresponds to the occurrence of particular events listed in § 2705(b). That is, the selection of an appropriate period should reflect the duration of time necessary to allay the risk: to someone's life or physical safety; a flight from prosecution; the destruction...