In re Search Info. Associated With Specified E-Mail Accounts
| Decision Date | 24 September 2019 |
| Docket Number | Case No. 18-MJ-723 (PK) |
| Citation | 470 F.Supp.3d 285 |
| Parties | In the MATTER OF the SEARCH OF INFORMATION ASSOCIATED WITH SPECIFIED E-MAIL ACCOUNTS |
| Court | U.S. District Court — Eastern District of New York |
Alexander A. Solomon, United States Attorneys Office, Ian Craig Richardson, U.S. Attorney's Office, Eastern District of New York, Brooklyn, NY, for USA.
On-line service provider Microsoft Corporation ("Microsoft") challenges on First Amendment grounds a Non-Disclosure Order ("NDO") (Dkt. 3), compelling it not to disclose the existence of a search warrant (the "Search Warrant") to any person, including the subscriber of two e-mail accounts which are the subject of the Search Warrant. The subscriber of the accounts is a corporate Microsoft customer ("Customer"), and the two e-mails are assigned to two of its employees. Microsoft argues that the NDO is an overbroad prior restraint on its speech and requests that the NDO be modified to allow it to notify "an appropriate individual" at the Customer of the existence of the Search Warrant. (Microsoft's Mem. of Law at 12, Dkt. 14.) For the reasons stated herein, the "Motion to Modify Non-Disclosure Order" ("Motion") (Dkt. 12) is denied.
On August 3, 2018, Magistrate Judge Marilyn D. Go issued the Search Warrant, upon a showing of probable cause, for the search of information associated with two e-mail accounts "that is stored at premises owned, maintained, controlled, or operated by" Microsoft. (Search Warrant at 3, Dkt. 2.) It directs Microsoft, as the service provider for those accounts, to disclose certain information "within the possession, custody, or control of Microsoft" associated with these two accounts, including usage records and data, as well as the contents of emails, text messages and voicemails. (Id. ) In a detailed supporting affidavit, the Government asserts, among other things, that the individual users of the two e-mail accounts, along with others, committed violations of wire fraud ( 18 U.S.C. § 1343 ), money laundering ( 18 U.S.C. § 1956 ), and the International Emergency Economic Powers Act ("IEEPA") ( 50 U.S.C. §§ 1701 - 1705 ). (Affidavit in Support of an Application for Search Warrants ("SW Affidavit") at 3, ¶ 5, Dkt. 1.) It further states that the individual users are employed by a multinational corporation that has conspired with another multinational corporation "to violate IEEPA by sending and attempting to send U.S. origin goods to [a company] in [a foreign country], in contravention of U.S. sanctions." (Id. at 10-11, ¶ 25.) The affidavit provides details from e-mails which the Government obtained through prior search warrants, in which the individual user of one of the e-mail accounts — a customer service representative of a wholly owned subsidiary of the Customer — communicates with senior employees of the other company regarding the shipment of goods manufactured in the United States to a country where such goods would otherwise be banned from export. (Id. at 15-20, ¶¶ 35-47.) The individual user of the second e-mail account, also an employee of the Customer subsidiary, is copied on many of those e-mails. (Id. )
Along with the Search Warrant, the Government requested an order that Microsoft "not disclose the existence of the attached warrant, or this Order of the Court, to the listed subscriber or to any other person, for the period of one year from the date of this Order...." (NDO at 1.) Judge Go concluded that "there is reason to believe that notification of the existence of the attached warrant will seriously jeopardize the investigation or unduly delay a trial, including by giving targets an opportunity to flee or continue flight from prosecution, destroy or tamper with evidence, change patterns of behavior, and intimidate potential witnesses." (Id. at 1.) Accordingly, Judge Go issued the NDO pursuant to 18 U.S.C. § 2705(b). (Id. )
On September 7, 2018, Microsoft filed the Motion. The Government opposed the Motion (Govt.’s Mem. of Law, Dkt. 23.), and the Court heard oral argument from both parties.1
The Electronic Communications Privacy Act, 18 U.S.C. §§ 2510 et seq. , was designed "to protect legitimate law enforcement needs while minimizing intrusions on the privacy of system users as well as the business needs of electronic communications system providers." 132 CONG. REC. S14449 (daily ed. Oct. 1, 1986) (statement of Sen. Leahy). In balancing these interests, Tide II, the Stored Communications Act, 18 U.S.C. §§ 2701, et seq. ("SCA"), generally precludes electronic communication services and remote computing services from disclosing certain information, while also empowering the Government to compel a service provider to disclose records, information and contents of such communications in specific circumstances, through use of a warrant, subpoena or court order. 18 U.S.C. § 2703 (a) - (c).
Furthermore, Section 2705(b) of the SCA permits the government to prevent a service provider from notifying any person of the existence of a such a warrant, subpoena or court order by obtaining a non-disclosure order, and directs that "[t]he 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" one or more of the following 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." 18 U.S.C. § 2705(b).
Microsoft argues that the NDO constitutes a prior restraint under the First Amendment and, therefore, must satisfy strict scrutiny in order to be valid. (Microsoft's Mem. of Law at 1.) It contends that the NDO fails strict scrutiny because it is not the "least restrictive means" of achieving the Government's interest. (Id. ) A "less restrictive alternative," in its view, would be notifying an appropriate individual at the Customer (other than the individual users whose e-mail accounts are to be searched) of the Search Warrant. (Id. at 11.) It argues there are good reasons for exercising this alternative. (Id. ) Microsoft has made commitments to its customers, embodied in its customer contracts, that, "if compelled to disclose customer data to law enforcement, Microsoft will promptly notify the [customer] and provide a copy of the demand, unless legally prohibited from doing so." (Id. at 6-7.) In addition, working with a person within the Customer to respond to the Search Warrant could help identify documents subject to privilege and assist Microsoft in its compliance with the law of the foreign jurisdiction where the Customer and its subsidiary are located.2
In support of this proposed notification, Microsoft cites the document entitled Seeking Enterprise Customer Data Held by Cloud Service Providers , issued by the U.S. Department of Justice Criminal Division Computer Crime and Intellectual Property Section, dated December 2017 ("DOJ Recommended Practices"), available at: https://www.justice.gov/criminal-ccips/file/1017511/download). (Microsoft's Mem. of Law at 2, 4; see also Ex. 1 to Joachim Decl., Dkt. 15.) This document identifies "recommended practices" for seeking information belonging to a subscriber which is an organization rather than an individual. (DOJ Recommended Practices at 1.) It encourages prosecutors to "seek data directly from the enterprise, rather than its cloud-storage provider if doing so will not compromise the investigation." (Microsoft's Mem. of Law at 2, citing DOJ Recommended Practices at 1.)
Microsoft suggests that someone in executive management at the Customer, a member of its Board of Directors, or the General Counsel would be "plausible candidates for notification." (Microsoft's Mem. of Law at 6, 11.) Conceding that it does not know who that person might be, since it is not privy to the details of the Government's investigation, it proposes that the parties confer and jointly identify that person. (Id. at 12.) Microsoft finds it "implausible" that in "a major conglomerate with [thousands of] employees worldwide," there is not one individual who can be notified "without compromising the Government's investigation," especially since the two users of the e-mails are employed by a "discrete business unit" of the Customer. (Id. at 7, 11.) It argues that the Government has failed to show that this alternative will be ineffective to achieve the Government's goals. (Id. at 11-12.)
The Government questions whether strict scrutiny should be applied to the NDO. Citing language in John Doe, Inc. v. Mukasey, 549 F.3d 861, 878 (2d Cir. 2008), it argues that restrictions on this type of speech may not "raise the same specter of government censorship" as in other situations. (Govt.’s Mem. of Law at 7.) Nevertheless, it contends that the NDO "survives even strict scrutiny" since it is already narrowly tailored to achieve the Government's "compelling interest in protecting the integrity of its ongoing investigation." (Id. at 7.) It notes that the First Amendment requirement of "narrowly tailored" does not mean it must prove that there is "no person employed by Microsoft's subscriber who could be notified" without resulting harm.3 (Id. at 9 (emphasis in original).)
The First Amendment to the United States Constitution prohibits the enactment of laws "abridging the freedom of speech."
Reed v. Town of Gilbert, Ariz. , 576 U.S. 155, 135 S. Ct. 2218, 2226, 192 L. Ed. 2d 236 (2015) (quoting U.S. Const., Amdt. 1). In general, it precludes the government "from proscribing speech, or even expressive conduct, because of disapproval of the ideas expressed." R.A.V. v. City of St. Paul, Minn. , 505 U.S. 377, 382, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992) (internal quotations omitted). Courts...
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