D.C.Cir.: SW nondisclosure order under SCA was reasonable under 1A

The district court’s nondisclosure order under the Stored Communications Act to Twitter’s search warrant account holder was a reasonable restriction on free speech to prevent destruction of evidence or other feared actions. The order was limited to 180 days and could be extended another 180 days. Also, Twitter had no right to refuse to comply with the warrant while litigating the warrant. The contempt sanction for failure to timely comply is also affirmed, In re Sealed Case, 2023 U.S. App. LEXIS 20733 (D.C.Cir. Aug. 9, 2023):

The government proffered two compelling interests that supported nondisclosure of the search warrant: preserving the integrity and maintaining the secrecy of its ongoing criminal investigation of the events surrounding January 6, 2021. Gov’t Br. 20. Those interests are “particularly acute where, as here, the investigation is ongoing.” In re Subpoena, 947 F.3d at 156. Investigating criminal activity is a “core government function that secures the safety of people and property.” Google LLC, 443 F. Supp. 3d at 452. In addition, the government’s interest is heightened where an investigation has national security implications, for “no governmental interest is more compelling than the security of the Nation.” Haig v. Agee, 453 U.S. 280, 307 (1981). Thus, the government’s interest was particularly strong here because its ongoing investigation aimed to “[f]erret[] out activity intended to alter the outcome of a valid national election for the leadership of the Executive Branch of the federal government … and [to assess] whether that activity crossed lines into criminal culpability.” J.A. 372-73.

Moreover, secrecy is paramount to ensuring that ongoing investigations can proceed without interference from targets or interested parties. See Google LLC, 443 F. Supp. 3d at 453. Breaching the investigation’s confidentiality could open the door to evidence-tampering, witness intimidation, or other obstructive acts. See 18 U.S.C. § 2705(b); see also In re Subpoena, 947 F.3d at 156 (“[P]rotecting the secrecy of an investigation” is a compelling government interest.). Here, the district court specifically found reason to believe that disclosure of the warrant would jeopardize the criminal investigation. See J.A. 1. We therefore conclude that the government’s asserted interests were unquestionably compelling.

The nondisclosure order was also “narrowly tailored to advance the State’s compelling interest through the least restrictive means.” Williams-Yulee v. Fla. Bar, 575 U.S. 433, 452 (2015). It bears emphasis that, under the strict-scrutiny standard, a restriction must be narrowly tailored, not “perfectly tailored.” Id. at 454 (quoting Burson v. Freeman, 504 U.S. 191, 209 (1992)). Here, the nondisclosure order was initially limited in duration to 180 days. Thus, any concerns associated with indefinite nondisclosure orders are of no moment here. Cf, e.g., United States v. Apollomedia Corp., No. 99-20849, 2000 WL 34524449, at *3 (5th Cir. June 2, 2000) (recognizing the “substantial constitutional questions raised by a nondisclosure order without any limitation as to time”); In re Grand Jury Subpoena for: [Redacted]@yahoo.com, 79 F. Supp. 3d 1091, 1093 (N.D. Cal. 2015) (positing that § 2705(b) restricts nondisclosure orders’ duration to “some limit less than infinity”). Moreover, the speech restricted — disclosure of the existence or contents of the warrant — was limited to information that Twitter obtained only by virtue of its involvement in the government’s investigation. Courts have suggested that such information, procured from the government itself or pursuant to a court-ordered procedure, is entitled to less protection than information a speaker possesses independently. See Butterworth v. Smith, 494 U.S. 624, 636 (1990) (Scalia, J., concurring) (distinguishing constitutional protection of what grand jury witnesses know beforehand from what they learn “only by virtue of being made a witness”); Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 (1984) (“[A]n order prohibiting dissemination of discovered information before trial is not the kind of classic prior restraint that requires exacting First Amendment scrutiny.”). Importantly, Twitter remained free to raise general concerns about warrants or nondisclosure orders, and to speak publicly about the January 6 investigation.

Twitter’s contrary arguments are unpersuasive. …

. . .

Thus, the district court was not obligated to implement Freedman-style procedures while considering a motion to vacate an order that merely precluded “disclosure of a single, specific piece of information that was generated by the government” — i.e., that the government obtained a court order compelling production of a user’s data. In re Nat ‘l Sec. Letter, 33 F.4th at 1077. A nondisclosure order is not the type of “classic prior restraint” addressed by Freedman, and Twitter received considerable process before the warrant and nondisclosure order were even issued. See In re Warrant to Search a Certain E-Mail Account Controlled & Maintained by Microsoft Corp., 855 F.3d 53, 56 (2d Cir. 2017) (Camey, J., concurring in denial of reh’ g en banc) (observing that a warrant “issued by a neutral magistrate judge upon a showing of probable cause … satisfie[ s] the most stringent privacy protections our legal system affords”).