A court order to not disclose the existence of a grand jury subpoena for records under the Stored Communications Act led to a search warrant for additional data. The order to not disclose is based on grand jury secrecy, and it survives strict scrutiny under the First Amendment. In re Application of Subpoena 2018R00776, 2020 U.S. App. LEXIS 842 (3d Cir. Jan. 10, 2020):
This case requires us to determine whether the First Amendment permits a court, acting pursuant to the Stored Communications Act (SCA), to restrain a grand jury witness from disclosing its receipt of service to a third party. A grand jury issued a subpoena to ABC Corp., an electronic service provider, for the data of one of its customer’s employees who was under criminal investigation. A search warrant later demanded additional data regarding the same subscriber. These requests were accompanied by nondisclosure orders (NDOs) prohibiting ABC Corp. from notifying anyone of the existence of the data requests. ABC Corp. complied with both requests but challenges the constitutionality of the NDOs, arguing that they infringe upon its freedom of speech. ABC Corp. asks to amend the NDOs to permit disclosure to an individual who, it argues, poses no risk to the grand jury investigation. We must determine whether the First Amendment tolerates such a restraint on speech.
Our conclusion, which we explain below, is that the governmental interest in maintaining grand jury secrecy is sufficiently strong for the NDOs to withstand strict scrutiny. Disclosure to anyone outside of the grand jury process would undermine the proper functioning of our criminal justice system. We will affirm the District Court’s denial of ABC Corp.’s motion to amend the NDOs.