E.D.N.Y.: Gov’t doesn’t satisfy burden for gag order re grand jury subpoena for email records

The government’s conclusory statement in a grand jury subpoena that a gag order was needed is inadequate to satisfy the requirement of the Stored Wire and Electronic Communications and Transactional Records Access, 18 U.S.C. § 2701 et seq. In re Search Warrant to [Redacted, Inc.], 2018 U.S. Dist. LEXIS 18647 (E.D. N.Y. Feb. 5, 2018):

In the instant matter, the grand jury has issued a subpoena to an entity that the government describes — using the kind of boilerplate language it routinely uses in such circumstances — as “a provider of an electronic communication service, as defined in 18 U.S.C. § 2510(15), and/or a remote comput[ing] service, as defined in 18 U.S.C. § 2711(2).” Docket Entry (“DE”) 1 (Application) at 1. The government provides no other information about the entity. The government goes on to explain the basis for the required factual finding as follows: …

. . .

The risk that persons who learn they are under investigation will engage in obstruction is a real one, but it arises to different degrees in different circumstances. Congress could have chosen to address that risk in blunderbuss fashion by universally prohibiting the recipient of any warrant, order, or subpoena from disclosing its existence, but it plainly chose not to do so. Nor did Congress choose to alleviate that risk either by requiring a non-disclosure order either where obstruction is merely a possibility, or by committing the discretion to secure relief to the executive branch (as it effectively did, by contrast, with respect to pen registers). Instead, it prescribed a more nuanced approach, circumscribing both the persons who could be subjected to silencing, and the circumstances in which a court may (and must) order it.

By relying on the conclusory, formulaic, and universally applicable assertions set forth in the instant Application, the government essentially seeks to negate that legislative choice and replace it with the blanket prohibition that Congress eschewed. A court cannot accede to that effort. The applicable law requires a factual finding; making such a finding requires facts. The sparse facts and speculative assertions in the Application do not suffice to allow the finding the government seeks.

It is of course entirely possible that in this case and others, applying the law as Congress wrote it will put an investigation at risk. Every investigation must start somewhere, and in the early stages of some cases the government will simply lack the information needed to secure the nondisclosure order necessary to avert a real — albeit as yet unprovable — risk of obstruction. But that concern does not allow a court to jettison an applicable legal standard. The government has not provided information that would support a finding that notification of the existence of the subpoena at issue will result in a cognizable harm to the investigation. I therefore deny the Application. I respectfully direct the Clerk to file the Application and proposed Order on the docket and maintain each under seal until May 6, 2018, subject to a 90-day extension upon a showing of continuing need for secrecy. This Memorandum and Order may be filed on the public docket, as it includes no information that can compromise the government’s investigation.