In re U.S. for an Order Pursuant to 18 U.S.C. § 2705(b)., 2:15–MC–00669–DN.
| Decision Date | 17 September 2015 |
| Docket Number | No. 2:15–MC–00669–DN.,2:15–MC–00669–DN. |
| Citation | 131 F.Supp.3d 1266 |
| Parties | In re APPLICATION OF THE UNITED STATES FOR AN ORDER PURSUANT TO 18 U.S.C. § 2705(b). |
| Court | U.S. District Court — District of Utah |
The United States (the "Government") has applied (the "Application") for a preclusion-of-notice order under 18 U.S.C. § 2705(b), commanding a provider of electronic communications service or remote computing service not to notify any person of the existence of a grand jury subpoena which the Government has served on the provider. The Government's grand jury subpoena seeks non-content information of the sort enumerated in 18 U.S.C. § 2703(c). The Government's Application is GRANTED for the reasons addressed below.
The two statutes at issue, §§ 2703and 2705, play distinctive roles. They regulate relations between a government entity which seeks information; a service provider which holds information; and the subscriber of the service who owns the information and is therefore a target of investigation. The statutes specify procedures for the acquisition of information by the government and also govern notice to the subscriber target. The information about the subscriber or the subscriber's service activity may contain content or be non-content metadata.
18 U.S.C. § 2703authorizes government acquisition of information in the hands of electronic of a service subscriber, who becomes a target of an information request. The statute requires, in some instances, that the government give notice to the subscriber.
18 U.S.C. § 2705deals with exceptions to the requirement of government notice to the subscriber. Subsection (a) authorizes delay of notice to the subscriber in some instances, and subsection (b) authorizes the government to seek a court order prohibiting the provider from informing the subscriber of the information request.
Section 27031 has three major subsections which authorize different types of requests. Subsection (a) authorizes requests for content from electronic storage providers. These requests may be made "only pursuant to a warrant." Subsection (b) deals with requests for content from remote computing services. These requests may be made by warrant, subpoena or court order. Subsection (c) governs requests for non-content information such as name, address, telephone number or other subscriber identifier, numbers dialed, length of sessions and service, and means of payment. In the modern world, these non-content categories have been translated to authorize requests for email addresses and email message logs.2
Section 2703also deals with government notice to the target subscriber. Section 2703(a), which authorizes warrants directed against content stored by electronic communication services, does not deal with notice, because warrants have their own notice requirements. Similarly, 2703(b)(1)(A) warrants directed to remote computing services do not require government notice to the subscriber. But subsection (b)(1)(B) () requires government notice to the target,3 while subsection 2703(c)(3) specifically states that the government is not required to notify the target subscriber of non-content information requests.4
Section 27055 has two major subsections. Subsection (a) authorizes the Government to delay providing notice to the target subscriber for up to 90—or even 180—days if the content is sought by court order or by subpoena and certain safety concerns are present. Subsection (b), on the other hand, deals with precluding notice instead of delaying notice. While notice from the government to the subscriber may be delayed for a limited time, notice by the provider to the subscriber may be indefinitely restrained. The subsection authorizes the government to seek a court order "commanding a provider ... to whom a warrant, subpoena, or court order is directed ... not to notify any other person of the existence of the warrant, subpoena, or court order."6 This restriction may be effective "for such a period as the court deems appropriate."7
The policy considerations for delaying notice versus precluding notice are different, because the balance of constitutional, commercial and governmental interests is different in these different settings. For example, seeking content of communications is much more sensitive than seeking account information. And commercial providers have little concern about government notice to a subscriber but may want to assure subscribers that they protect privacy and give notice of governmental intrusions on subscriber privacy. Government restraint of an innocent provider from fulfilling contractual notice and privacy obligations raises concerns different than direct government notice to an investigation target. In some limited instances, high government interests may outweigh subscriber awareness of an invasion of Fourth Amendment protections, but those interests are different than the interests of the subscribers and providers. Courts do not weigh the policy considerations which led to the enactments, but courts must construe the statutes as written.
The following table summarizes the statutory authorizations for seeking information under § 2703and the undisputed notice requirements under §§ 2703and 2705.
Notice from Government to Notice from Provider to
Target Subseriber
Type of Request Notice to target required? Delayed notice to target May provider be ordered
permitted? (§ 2705(a)) not to give notice to
subscriber
(§ 2705(b))
From electronic communication provider storage
Warrant for content No (§ 2703(a)) No
Non-content request 8 No (§ 2703(c)(3)) No
From remote computing service
Warrant for content No (§ 2703(b)(1)(A)) No Yes "not required to notify
the subscriber or customer
under section 2703(b)(1)"
Subpoena for content Yes (§ 2703(b)(1)(B)(i)) Yes (§ 2705(a)(1)(b)) Yes "may delay such notice
pursuant to subsection
[2705](a)"
Court order for content Yes (§ 2703(b)(1)(B)(ii)) Yes (§ 2705(a)(1)(a)) Yes "may delay such notice
pursuant to subsection
[2705](a)"
Non-content request8 No (§ 2703(c)(3)) No
It is clear that subsection 2705(b) authorizes restraint of the provider if information is sought under § 2703(b). Subsection 2705(b) states that restraint of a provider is authorized when a government entity is "not required to notify the subscriber or customer under section 2703(b)(1)." When a warrant is issued for content under § 2705(b)(1)(A), notice is not mentioned—so not required under § 2703(b)(1). The combined effect of §§ 2703(b)(1)(A)and 2705(b)is that the subscriber may never receive notice of a warrant to obtain content information from a remote computing service and the government may seek an order under § 2705(b)that restrains the provider indefinitely from notifying the subscriber.9
Subsection 2705(b) also authorizes restraint of the provider if delay of notice to the subscriber-target is authorized under § 2705(a). Delay is only authorized under § 2705(a)if the content is sought from a remote computing service by court order or by subpoena and certain safety concerns are present.
The issue discussed in this order is whether § 2705(b)authorizes an order to a provider when non-content information is sought under § 2703(c). This order finds that § 2705(b)is applicable to government requests under § 2703(c). (The logic of this order would also hold, if the issue were presented, that § 2705(b)authorizes preclusion of notice requests when the government requests information by warrant to an electronic communication storage provider under § 2703(a)).
This same issue was previously addressed on the merits when United States Magistrate Judge Ralph Zarefsky in Central District of California rejected a similar application.10 The Government appealed Magistrate Judge Zarefsky's Order to United States District Judge R. Gary Klausner. Judge Klausner considered the Government's Ex Parte Application for review of the order denying the application for an order to the provider, and determined that Magistrate Judge Zarefsky's Order was "clearly erroneous and contrary to law."11 Without analysis, Judge Klausner ruled that "[t]he plain language permit[s] the government to apply for an order precluding notice under § 2705(b)in connection with a grand jury subpoena for information under 18 U.S.C. § 2703(c)(1)."
In another case in that same district,12 Judge Michael R. Wilner noted that "[a]t least two other magistrate judges of this Court have previously denied similar applications [for orders to providers]," but he granted the application. Judge Wilner's opinion is not published. It contains no citation to either of the two opinions it mentions though it does mention Judge Zarefsky as the author of one opinion.
With this background, analysis proceeds to the statute in question.
When interpreting a statute, courts are to give effect to the intent of Congress, and in doing so, a court's first reference is to the literal meaning of...
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