E.D.N.Y.: Under SCA, govt has to show disclosure of inquiry to target “will” hamper investigation, not just “may”

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.

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