The gag order provisions of the SCA requires the government show that disclosure “will” hamper the investigation, but the government only showed “may,” and that’s not enough. Denied without prejudice to show “will.” In re Grand Jury Subpoena, 2016 U.S. Dist. LEXIS 190319 (E.D. N.Y. May 12, 2016):
First, while it is unquestionably true that a service provider’s disclosure of a subpoena for customer records “may” alert the target of an investigation to its existence, it is just as true that disclosure may not have that effect. To cite just one example, sometimes subpoenas for service providers’ records seek information from the account of a target’s victim (who might well fall within the definition of an investigative “subject”), or from some other person whose interests are not aligned with the target’s but who may nevertheless have information relevant to the investigation. In such circumstances, there is simply no reason to presume that disclosure of the subpoena to the customer whose records the government seeks will harm the investigation in any way at all. Thus, before I can conclude that disclosure “will” result in such harm as the statute requires, I must have information about the relationship, if any, between the customer whose records are sought and any target of the investigation. The sole fact asserted by the government to date — the targets’ ignorance of the existence of an ongoing criminal investigation — does not support an inference that a service provider’s disclosure of a subpoena to the pertinent customer will have any effect on the investigation.
Second, there is no reason to assume that tipping off an investigative target to the investigation’s existence necessarily “will” result in one of the harms contemplated by the SCA. To be sure, such information can easily have such an effect. But if Congress presumed that providing such information to an investigative target would inevitably lead to such consequences, the judicial finding the SCA requires would be meaningless. There will plainly on occasion be circumstances in which an investigative target either lacks the ability or the incentive to flee, to tamper with evidence, or otherwise to obstruct an investigation. To cite just two possibilities: the target may be incarcerated and lack effective access to evidence and witnesses; alternatively, the target may be a public figure with a strong incentive to affect a public posture of innocence and cooperation with law enforcement. In most cases, it seems likely that the government can easily make a showing that there is reason to believe that a target’s knowledge of an investigation will indeed lead to obstructive behavior — but not in every case.
In short, the government contends that notification necessarily will lead to obstruction. But the SCA precludes such reasoning; to the contrary, it allows a court to issue a non-disclosure order only “if it determines that there is reason to believe that notification of the existence of the warrant, subpoena, or court order will result[.]” 18 U.S.C. § 2705(b). That language inherently assumes that sometimes notifying the target of the existence of an investigation will result in certain types of misconduct but that other times it will not, and that it is up to a judge to make the necessary determination in a given case based on the available evidence. As a result, in the absence of any case specific information aside from the assertion that the target of an investigation does not know of its existence, it is impossible to make the factual determination necessary for a non-disclosure order.
Finally, the government’s assertion that “[i]f alerted to the existence of the subpoena, the subjects under investigation could destroy that evidence[,]” Application at 2 (emphasis added), is manifestly insufficient. The SCA requires a determination that disclosure “will” have certain adverse effects, not that it “could” do so.
Government prosecutors and agents have a difficult job investigating crime, and one that is made more difficult by the fact that some of the investigative techniques they must rely on can backfire by alerting criminals to the fact of the investigation. The SCA provides some measure of relief against that risk, but it does not do so indiscriminately. The government cannot, consistent with the statute, obtain an order that constrains the freedom of service providers to disclose information to their customers without making a particularized showing of need. The boilerplate assertions set forth in the government’s applications do not make such a showing, and I therefore deny all of the pending requests for non-disclosure orders. The ruling is without prejudice to the government’s right to renew its requests on the strength of additional facts about each investigation that permit a finding that disclosure of a subpoena will result in an identifiable form of harm to the investigation.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)