In re Grand Jury Subpoena to Google, LLC
| Decision Date | 03 June 2019 |
| Docket Number | 19 Mag. 3232 (LAP),19 Mag. 2821 (LAP) |
| Parties | In re Grand Jury Subpoena to Google, LLC Dated March 20, 2019, [Redacted] In re Application of the United States of America for Order to Disclose Non-Content Information Pursuant to 18 U.S.C. § 2703(d), [Redacted] |
| Court | U.S. District Court — Southern District of New York |
UNDER SEAL
Google LLC ("Google") moves to vacate or modify (1) a March 20, 2019 non-disclosure order signed by Magistrate Judge James L. Cott (the "Subpoena NDO"), which accompanied a grand jury subpoena directed to Google for records pursuant to 18 U.S.C. § 2703(c)(2) (the "Subpoena"), and (2) a April 2, 2019 non-disclosure order signed by Magistrate Judge Robert W. Lehrburger (the "Section 2703(d) NDO"), which was issued in connection with an order to Google, pursuant to 18 U.S.C. § 2703(d), to produce non-content information about certain account holders (the "Section 2703(d) Order").1 (See Notice of Google LLC's Motion toVacate Gag Orders and Quash or Modify Order Issued Pursuant to 18 U.S.C. § 2703(D) (the "Motion"), dated Apr. 15, 2019.)
For the reasons stated below, the Motion is denied.
Google provides free email services to the public under the email account domain "@gmail.com." It also offers businesses and other paying organizations online services registered under customizable email domains hosted by Google, i.e., enterprise account domains. As part of an ongoing grand jury investigation, on March 21, 2019, the Government served on Google the Subpoena requiring Google to produce certain records, including [Redacted] . The Subpoena seeks records for specifically identified email accounts under the Google enterprise account domains [Redacted] .2 The enterprise account holders andseveral of the identified accounts appear to relate to [Redacted] The Subpoena did not seek [Redacted] .
The Subpoena was accompanied by the Subpoena NDO signed by Magistrate Judge James L. Cott pursuant to 18 U.S.C. § 2705(b), who found, based upon the Government's written application, reason to believe that notification of the existence of the Subpoena would seriously jeopardize the grand jury investigation.3 The Subpoena was accompanied by a preservation request4 that Google preserve all information related to theaccounts identified in the subpoena for 90 days pursuant to 18 U.S.C. § 2703(f)(1). Google's response to the Subpoena was due on April 3, 2019.
On April 2, 2019, the Government served Google with the Section 2703(d) Order, signed by Magistrate Judge Robert W. Lehrburger and issued pursuant to 18 U.S.C. § 2703(d), requiring Google to produce certain non-content records associated with nine specified accounts and any accounts existing under the enterprise account domains [Redacted] For the nine identified accounts, the Section 2703(d) Order requires Google to produce: [Redacted](See Exhibit 4 to Tyler Decl. at 4-5.) In addition, for any email account registered under one of the aforementioned enterprise domains, Google was required to provide [Redacted] (Id.) The Section 2703(d) Order does not require the production of [Redacted] . The Section 2703(d) Order also prohibits Google from disclosing the "the existence of this Application and/or Order, or the existence of the investigation, to the listed subscribers or to any other person" for one year based on a finding that such disclosure "would seriously jeopardize the investigation." (Id. at 1-2.) Google was required to produce the records covered by the Section 2703(d) Order on or before April 12, 2019.
Upon receipt of the Subpoena, preservation request, and Subpoena NDO (and before receipt of the Section 2703(d) Order), Google preserved email communications associated with the accounts identified in the Subpoena. (See Exhibit 6 to Tyler Decl. at 3.) Google has not provided notice to any customers pending the outcome of the Motion. (Id.)
On March 30, 2019, Google first notified the Government that it would move to vacate the Subpoena NDO on the ground that"subpoenas . . . regarding enterprise data are more properly directed to the enterprise itself, not Google." (Exhibit 5 to Tyler Decl. at 9.) On April 2, 2019, Google filed a pre-motion conference letter with Magistrate Judge Cott, requesting permission to file a motion to vacate or modify the Subpoena NDO. (See Exhibit 6 to Tyler Decl.)5 Magistrate Judge Cott instructed Google to file its motion with the Part I Judge. (See Exhibit 7 to Tyler Decl.) On April 15, 2019, Google filed the Motion. To date, Google has not produced any records in response to the Subpoena or Section 2703(d) Order.
In the Motion, Google requests that the Court "vacate the [NDOs] in their entirety and permit Google to provide notice to the enterprises and Gmail account-holders identified in the Subpoena and [Section] 2703(d) Order . . . about the pending legal process" because they "are in the proper position to review the requests and their own records, and then assert their own constitutional rights." (Memorandum of Law in Support of Google LLC's Motion to Vacate Gag Orders and Quash or Modify Order Issued Pursuant to 18 U.S.C. § 2703(D) ("Mem."), dated Apr. 15, 2019, 2, 17.) Specifically, Google argues that suchnotice is necessary here because the enterprise account holders and several of the identified accounts [Redacted]
In addition, Google argues that the NDOs should be vacated because "they are content-based prior restraints on speech that cannot satisfy strict scrutiny (as they are not narrowly tailored) and because they cannot satisfy the requirements of the Stored Communications Act ('SCA'), 18 U.S.C. § 2705(b)." (Id. at 2.) Finally, Google argues that the Court "should quash or modify" the Section 2703(d) Order "because it is overbroad and seeks unusually voluminous electronic records related to a swath of unknown accounts that the Government has not even identified." (Id.) The Court finds no merit to any of Google's arguments.
The SCA, and specifically 18 U.S.C. § 2703, establishes procedures by which the Government may obtain access to electronic communications and information. Section 2703distinguishes between "contents" and non-content "records." 18 U.S.C. § 2703. If the Government seeks content information about a communication, that is, "information concerning the substance, purport, or meaning of that communication," paragraphs (a) and (b) apply, and the Government is required to obtain a warrant based on a showing of probable cause. See 18 U.S.C. §§ 2510(8), 2703(a)-(b), 2711. If the Government seeks non-content records, as it does here, paragraph (c) controls. See 18 U.S.C. § 2703(c). Under Section 2703(c)(2), the Government may obtain, pursuant to a subpoena, among other things, subscriber information. See 18 U.S.C. § 2703(c)(2).
The SCA authorizes limited challenges to orders issued under Section 2703. A service provider from whom disclosure is ordered may make a prompt motion to "quash or modify such order, if the information or records requested are unusually voluminous in nature or compliance with such order otherwise would cause an undue burden on such provider." 18 U.S.C. § 2703(d). A subscriber or customer, by contrast, may not generally bring pre-execution challenges to subpoenas. Instead, their remedies are limited to a statutory challenge to a Section 2703 order issued pursuant to 18 U.S.C. § 2704 or post-execution remedies set forth elsewhere in the chapter. Under Section 2704, the subscriber or customer may only challenge an order containing arequirement that the service provider create a backup copy of certain communication contents. 18 U.S.C. § 2704(b)(1)(A).
The SCA also authorizes the government to obtain, and a court to issue, non-disclosure orders in connection with legal process for electronic information based on an independent judicial determination that disclosure would result in one or more of an enumerated list of harms. See 18 U.S.C. § 2705(b). Specifically, Section 2705 states:
18 U.S.C. § 2705(b).
A. Standing
"[N]o principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies." DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006) (internal quotation marks and citations omitted); see also Sprint Commc'n Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 128 (2008) (). "That case-or-controversy requirement is satisfied only where a plaintiff has standing." Sprint Commc'n Co., 554 U.S. at 128.
"The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches." Clapper v. Amnesty Int'l USA, 568 U.S. 398, 408 (2013). Therefore, a court's standing inquiry is "especially rigorous" when the merits of the case would require the court "to decide whether an action taken by one of the other two branches of the...
To continue reading
Request your trial