In re Sealed Case
| Docket Number | 23-5044 |
| Decision Date | 18 July 2023 |
| Citation | 77 F.4th 815 |
| Parties | IN RE: SEALED CASE. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
77 F.4th 815
IN RE: SEALED CASE.
No. 23-5044
United States Court of Appeals, District of Columbia Circuit
Argued May 19, 2023
Reissued August 9, 2023
Decided July 18, 2023
Appeal from the United States District Court for the District of Columbia (No. 1:23-sc-00031).
Ari Holtzblatt argued the cause for appellant. With him on the briefs was Whitney Russell.
James I. Pearce, Assistant Special Counsel, U.S. Department of Justice, argued the cause for appellee. With him on the brief were J.P. Cooney, Deputy Special Counsel, Raymond N. Hulser, Counselor to the Special Counsel, and Cecil W. Van-Devender and John M. Pellettieri, Assistant Special Counsels.
Before: Pillard, Childs and Pan, Circuit Judges.
Pan, Circuit Judge:*
The district court issued a search warrant in a criminal case, directing appellant Twitter, Inc. ("Twitter") to produce information to the government related to the Twitter account "@realDonaldTrump."1 The search warrant was served along with a nondisclosure order that prohibited Twitter from notifying anyone about the existence or contents of the warrant. Twitter initially delayed production of the materials required by the search warrant while it unsuccessfully litigated objections to the nondisclosure order. Although Twitter ultimately complied with the warrant, the company did not fully produce the requested information until three days after a court-ordered deadline. The district court thus held Twitter in contempt and imposed a $350,000 sanction for its delay.
In this appeal, Twitter argues that the nondisclosure order violated the First Amendment and the Stored Communications Act; that the district court should have stayed its enforcement of the search warrant until after Twitter's objections to the nondisclosure order were resolved; and that the district court abused its discretion by holding Twitter in contempt and imposing the sanction. We affirm the district court in all respects.
The Stored Communications Act (the "Act"), 18 U.S.C. § 2701 et seq., establishes procedures for law enforcement officers to obtain evidence from electronic service providers in criminal cases. The Act permits the government to obtain a search warrant or court order that directs the service provider to turn over "the contents of [a subscriber's] wire or electronic communication" or "a record or other information pertaining to a subscriber." 18 U.S.C. § 2703(b)(1), (c)(1). A service provider that receives an order to produce subscriber data can move to quash or modify the order by showing that the information requested is "unusually voluminous" or that compliance "would cause an undue burden." Id. § 2703(d). Service providers that give information to the government under the procedures prescribed by the Act are immunized from liability. Id. § 2703(e).
The Act allows the government to seek a nondisclosure order, which directs service providers "not to notify any other person" of a warrant or order's existence "for such period as the court deems appropriate." Id. § 2705(b). A court "shall enter" such a nondisclosure order if "there is reason to believe that notification of the existence of the warrant" or order will result in one of five enumerated harms: "(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.
Since November 18, 2022, Special Counsel Jack Smith has overseen an ongoing criminal investigation into potential interference with the peaceful transfer of power following the 2020 presidential election. The investigation encompasses events related to the riot that took place on January 6, 2021, at the United States Capitol. See
In re N.Y. Times Co., No. 1:22-mc-100 (BAH), — F.Supp.3d —, —, 2023 WL 2185826, at *4 (D.D.C. Feb. 23, 2023); U.S. DEP'T OF JUSTICE, APPOINTMENT OF A SPECIAL COUNSEL (Nov. 18, 2022), https://perma.cc/34GU-BESD. "Despite the intense media attention" surrounding that investigation, it "proceeds behind doors that remain closed to the public." In re Press Application for Access to Jud. Rees. Ancillary to Certain Grand Jury Proc. Concerning Former Vice President Pence, No. 1:23-mc-35 (JEB), — F.Supp.3d —, —, 2023 WL 3931384, at *1 (D.D.C. June 9, 2023). The instant case arises from the Special Counsel's investigation.
On January 17, 2023, the government applied for, and obtained, a search warrant that directed Twitter to produce data and records related to the "@realDonald Trump" Twitter account. At the same time, the government applied for, and obtained, a nondisclosure order, which prohibited Twitter from disclosing the existence or contents of the search warrant to any person. Based on ex parte affidavits, the district court found probable cause to search the Twitter account for evidence of criminal offenses. Moreover, the district court found that there were "reasonable grounds to believe" that disclosing the warrant to former President Trump "would seriously jeopardize the ongoing investigation" by giving him "an opportunity to destroy evidence, change patterns of behavior, [or] notify confederates." J.A. 1; see 18 U.S.C. § 2705(b).2 The warrant required Twitter to turn over all requested information by January 27, 2023. The nondisclosure order was to remain in effect for 180 days after its issuance.
The government faced difficulties when it first attempted to serve Twitter with the warrant and nondisclosure order. On January 17, 2023, the government tried to submit the papers through Twitter's website for legal requests, only to find out that the website was inoperative. Two days later, on January 19, 2023, the government successfully served Twitter through that website. On January 25, 2023, however, when the government contacted Twitter's counsel to check on the status of Twitter's compliance, Twitter's counsel stated that she "had not heard anything about [the] [w]arrant." J.A. 50. She informed the government that an on-time production "would be a very tight turnaround," but she confirmed that the account's available data was preserved. Id. at 50-51.
On February 1, 2023 — four days after the compliance deadline — Twitter objected to producing any of the account information. Although the company did not question the validity of the search warrant, it asserted that the nondisclosure order was facially invalid under the First Amendment. Twitter informed the government that it would not comply with the warrant until the district court assessed the legality of the nondisclosure order.
On February 2, 2023, Twitter filed a motion to vacate or modify the nondisclosure order; meanwhile, the government moved for an order to show cause as to why Twitter should not be held in contempt of court for its noncompliance with the warrant.
In its motion challenging the nondisclosure order, Twitter argued that the order violated the company's First Amendment right to communicate with its subscriber, former President Trump. The company asserted that compliance with the warrant before resolution of the motion to vacate
or modify the nondisclosure order would preclude the former President from asserting executive privilege to shield communications made using his Twitter account. Although Twitter acknowledged that it "may not have standing to raise [executive privilege] issues," and took "no position on the applicability of executive privilege," the company asserted that prompt compliance with the warrant would nevertheless "impede its ability to effect its First Amendment rights to provide meaningful notice to its user." J.A. 15, 17-18. Citing Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), and Thomas v. Chicago Park District, 534 U.S. 316, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002), Twitter argued that the district court was obligated to maintain the status quo and "stay any production obligation" while the parties litigated the constitutionality of the nondisclosure order. J.A. 18.
The government raised two counterarguments in its motion for an order to show cause. First, it asserted that the warrant and nondisclosure order "are different court orders, imposing different obligations." J.A. 24. Thus, it reasoned, Twitter's compliance with the warrant should not depend on how the court resolved any issues related to the nondisclosure order. Second, the government insisted that neither the warrant nor the Act "provide for intervention by a third party [such as Twitter] before compliance with" a warrant. Id. Accordingly, Twitter's obligation to promptly produce account information in response to the warrant was clear, and the government requested a hearing for Twitter to show cause why it should not be held in contempt. Id.
The district court set distinct schedules for resolving each of the two outstanding motions. The district court set a hearing on February 7, 2023, on the government's show-cause motion; but it put Twitter's motion challenging the nondisclosure order on a slower track, ordering the government to file a response to that motion by February 16, 2023, with Twitter's reply due on February 23, 2023.
At the February 7 hearing, the district court heard arguments from both parties about Twitter's noncompliance with the search warrant. Although Twitter requested that the court stay its enforcement of the warrant until after it adjudicated Twitter's motion to vacate or modify the nondisclosure order, the court denied that request and found Twitter in contempt of court.
In an oral ruling, the court rejected Twitter's argument that the First Amendment required adjudication of the nondisclosure order before enforcement of the warrant. Adopting Twitter's requested approach would "invite intervention by Twitter — let alone every other electronic communications provider — to delay execution of any [warrant] . . ....
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