In re [Redacted].Com

• Decision Date: 31 March 2017
• Docket Number: No. 16-2316M (FFM).,16-2316M (FFM).
• Citation: 248 F.Supp.3d 970
• Parties: In the MATTER OF the SEARCH WARRANT FOR [REDACTED].COM
• Court: U.S. District Court — Central District of California

248 F.Supp.3d 970

In the MATTER OF the SEARCH WARRANT FOR [REDACTED].COM

No. 16-2316M (FFM).

United States District Court, C.D. California.

Signed March 31, 2017

ORDER GRANTING IN PART ADOBE SYSTEMS INCORPORATED'S EX PARTE APPLICATION TO AMEND INDEFINITE NONDISCLOSURE ORDER ACCOMPANYING SEARCH WARRANT

FREDERICK F. MUMM, United States Magistrate Judge

I. PROCEEDINGS AND BACKGROUND

On November 22, 2016, this Court issued under seal a search warrant (the "Warrant") pursuant to 18 U.S.C. § 2703 (" Section 2703") and Federal Rule of Criminal Procedure 41(c). The Warrant was directed to Adobe Systems Incorporated ("Adobe") and included a notice preclusion order (the "NPO"). The NPO precludes Adobe from notifying anyone, including the investigation's target (the "Subscriber"), of the Warrant's existence. The Warrant does not specify a duration for the NPO. Upon receipt of the Warrant, Adobe requested via correspondence that the agency in question seek an amendment of the Warrant to limit the NPO's duration. Counsel for the United States (the "government") declined to do so.

On December 6, 2016, Adobe filed an ex parte application (the "Application" or "Appl.") to amend the NPO to include a date certain for its expiration. Adobe provides evidence that it has a policy of notifying its subscribers whenever someone asks for their information, unless Adobe is legally prohibited from doing so. If Adobe receives a court order requiring that notice be delayed, Adobe delays notice for the period specified and then notifies the subscriber once the order expires.

Adobe provides evidence, in addition, that for each fiscal year, it publishes a "Government Requests Transparency Report." The report publicly discloses information regarding Adobe's receipt of government subpoenas, warrants, etc. for information pertaining to Adobe users and their data. Adobe discloses general information such as the number of information requests and NPOs received; the number of user accounts affected; and the Adobe services for which the requests sought information.

The government filed an opposition (the "Opposition" or "Oppo.") to the Application on January 12, 2017. Adobe filed a reply (the "Reply") on January 27, 2017 and submitted a supplemental reply (the "Suppl. Reply") on February 6, 2017. The matter came for hearing on February 8, 2017.

The matter thus stands submitted. For the reasons that follow, the Court grants the Application in part.

II. ANALYSIS

A. Section 2705(b) does not require a finite period for the NPO.

Adobe first contends that 18 U.S. § 2750(b) ("Section 2705(b)") requires that the Court provide a date certain for the NPO's expiration. The government contends that Section 2705(b) allows for NPOs of indefinite duration. The Court agrees with the government.

(1) Overview of the ECPA and the SCA.

The Electronic Communications Privacy Act of 1986 (the "ECPA"), 18 U.S.C. §§ 2510 et seq. ,"was intended to afford privacy protection to electronic communications." Konop v. Hawaiian Airlines, Inc. , 302 F.3d 868, 874 (9th Cir. 2002). The ECPA regulates "various areas of electronic surveillance, including wiretaps, tracking devices, stored wire and electronic communications, pen registers, and trap and trace devices." Microsoft Corp. v. United States Dep't of Justice , 2016 WL 4506808, *1 (W.D. Wash. August 29, 2016) (internal quotation marks omitted); see 18 U.S.C. §§ 2510 et seq. Title II of the ECPA, 18 U.S.C. §§ 2701 – 2712, is commonly referred to as the Stored Communications Act (the "SCA"). The SCA "was designed to address[ ] access to stored wire and electronic communications and transactional records." Konop , 302 F.3d at 874 (internal quotation marks omitted).

In pertinent part, the SCA regulates the government's access to electronic communications and information stored by two types of service providers: (1) electronic communication service ("ECS") providers; and remote computing service ("RCS") providers. See 18 U.S.C. § 2703 ; In re Zynga Privacy Litig. , 750 F.3d 1098, 1103 (9th Cir. 2014) ; Warshak v. United States , 532 F.3d 521, 523 (6th Cir. 2008). An ECS provider is an entity that offers "any service which provides to users ... the ability to send or receive wire or electronic communications"—e.g. , an email service provider. 18 U.S.C. § 2510(15) ; see 18 U.S.C. §§ 2510(12), 2711(1) ; Warshak , 532 F.3d at 523. An RCS provider is an entity that provides to the public "computer storage or processing services by means of an electronic communications system"—e.g. , a cloud computing services provider such as Adobe. 18 U.S.C. § 2711(2) ; see 18 U.S.C. §§ 2510(14), 2711(1) ; Warshak , 532 F.3d at 523. A "user" or "subscriber" is a person who uses those services. See 18 U.S.C. §§ 2510(13), 2703(b) - (c) ; see also In re Application of the U.S. For An Order Pursuant To 18 U.S.C. 2705(b) , 131 F.Supp.3d 1266, 1268 (D. Utah 2015) (discussing subscribers as those individuals who use electronic communications and remote computing services).

(2) Sections 2703 and 2705.

Within the SCA, Section 2703 regulates the government's acquisition of a subscriber's electronic communications, and certain other records and information, from a service provider. 18 U.S.C. § 2703(a) - (c). Section 2703 provides for different means of obtaining the evidence, and different levels of privacy protection, depending on the type of evidence sought and the type of provider possessing it. Id. ; Warshak , 532 F.3d at 523. As relevant to these proceedings, under Section 2703(b)(1), the government may obtain communications from an RCS provider via a warrant, administrative subpoena, grand jury subpoena, trial subpoena, or court order. 18 U.S.C. § 2703(b)(1)(A)–(B). If the government uses a subpoena or court order, it must provide prior notice of the subpoena or order to the subscriber, although such notice may be delayed. 18 U.S.C. § 2703(b)(1)(B) ; see discussion, infra . However, if the government secures a warrant for the communications, the government may obtain the communications "without [providing the] required notice to the subscriber or customer. " 18 U.S.C. § 2703(b)(1)(A) (emphasis added); In re Application of the U.S. , 131 F.Supp.3d at 1271.¹

Section 2705, in turn, sets forth the circumstances in which the government may delay notifying a subscriber that his data has been searched, and/or preclude the service provider from doing the same. See 18 U.S.C. § 2705(a) - (b). As relevant, under Section 2705(a), if the government obtains evidence from an RCS provider via a subpoena or court order, the government may delay notifying the subscriber for up to 90 days upon demonstrating or certifying that notification "may" have a specified "adverse result." 18 U.S.C. § 2705(a)(1)(A)–(B), (a)(2)(A)–(E). The 90–day period may be extended, but only in 90–day increments and only if the government demonstrates or certifies that notification "will" have a specified "adverse result." See 18 U.S.C. § 2705(a)(4), (b).

Section 2750(b) provides:

(b) Preclusion of notice to subject of governmental access. —A governmental entity acting under section 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.²

18 U.S.C. § 2705(b) (emphasis added). Thus, if the government obtains a warrant for a subscriber's communications pursuant to Section 2703(b)(1)(A) —and may thus proceed "without required notice to the subscriber or customer "—the government may obtain an NPO directed to the RCS provider "for such period as the court deems appropriate." In re Application of the U.S. , 131 F.Supp.3d at 1271–72 (emphasis added). The same is true of non-communication records and information obtained pursuant to Section 2703(c). Id. at 1274–76.

(3) Limiting the Section 2705(b) NPO.

Section 2705(b) does not set forth an explicit limit—e.g. , 90 days—on the permissible duration of a Section 2705(b) NPO obtained in connection with a warrant under Section 2703(b)(1)(A) or 2703(c). Adobe nonetheless contends that the term "for such period as the court deems appropriate" means that the court must specify a finite notice preclusion period. (Appl. at 3.) If the court did not have to specify a finite period, Adobe contends, the "appropriate period" provision would be "mere surplusage," because the court could render an NPO indefinite simply by not specifying any time limit. (Id. ) In Adobe's view, "an ‘indeterminate’ [NPO] has no time period at all." (Reply at 2.)

Adobe is correct to the extent that "[i]t is a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant." Planned Parenthood of Idaho, Inc. v. Wasden , 376 F.3d 908, 928 (9th Cir. 2004) (internal quotation marks omitted; citing, inter alia , TRW Inc. v. Andrews , 534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001) ). However, the Court does not agree that Section 2705(b)'s "appropriate period" provision would be rendered superfluous by reading the statute to allow for indefinite NPOs.

"Our first step in interpreting a statute is to...