Summary
The D.C. Circuit reviewed a district court's denial of X Corp.'s motion to vacate a Section 2705(b) nondisclosure order attached to a grand jury subpoena. The court held that the magistrate judge failed to comply with the Stored Communications Act because she did not make a specific "reason to believe" determination that disclosure of each potential future subpoena would result in statutory harm. Although the case became moot after the underlying order was vacated, the court exercised jurisdiction under the "capable of repetition yet evading review" exception. The judgment of the district court was reversed on statutory grounds without reaching the constitutional claims.
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Practice areas
Questions Presented
- Whether the D.C. Circuit had jurisdiction to review the district court's denial of X Corp.'s motion to vacate or modify the nondisclosure order.
- Whether the capable-of-repetition-yet-evading-review exception to mootness applied after the nondisclosure order was vacated.
- Whether 18 U.S.C. § 2705(b) permits a court to prospectively authorize the government to attach a nondisclosure order to unidentified future subpoenas without the court itself making the required reason-to-believe determination for the subpoenas covered by the order.
- Whether the nondisclosure order violated the First Amendment or whether the district court improperly relied on ex parte evidence.
Holdings
- The district court's denial was a final decision reviewable under 28 U.S.C. § 1291 because it conclusively resolved the validity of the nondisclosure order and left no related issue pending.
- Although the appeal became moot after the nondisclosure order was vacated, the court could review the recurring dispute because the challenged orders were too short-lived for full litigation and X reasonably expected to face similar nondisclosure orders again.
- The nondisclosure order did not comply with § 2705(b) because the court did not itself determine that there was reason to believe disclosure of each subpoena covered by the order would result in a statutory harm.
- The court declined to decide whether § 2705(b) categorically bars prospective authorization for future subpoenas. It held that a single order covering multiple subpoenas is not inherently unlawful, so long as the court makes the required reason-to-believe determination for the covered subpoenas.
Key quotations
“The order does not conform to the Act because a court did not find “reason to believe” that disclosure “will” risk a statutory harm.” (at 2)
“The statute’s text thus requires that a court make a “reason to believe” determination for any subpoena (or other legal document) covered by its order.” (at 8)
“But that provision only confirms the statutory violation. The statute requires “[t]he court” to “determine[]” that disclosure of the subpoena’s existence “will result in” harm.” (at 11)
“Here, we hold that the court did not make the required finding before issuing these orders and thus did not conform to Section 2705(b).” (at 11)
“This nondisclosure order violates the statute not because it applies to multiple subpoenas, but because the court failed to make the required “reason to believe” determination for those subpoenas.” (at 12)
Factual background
The government sought authority to attach a Stored Communications Act nondisclosure order to any of numerous subpoenas for user records issued during a specified investigation over the following year. The magistrate judge authorized the practice and required the government to determine, for each subpoena, whether disclosure would risk specified harms. The government later served X Corp. with a grand jury subpoena for records associated with two user profiles and attached the nondisclosure order. The order was subsequently vacated while the appeal was pending.
Procedural history
The United States applied to a magistrate judge for a prospective order authorizing nondisclosure orders for subpoenas issued during a one-year investigation. The magistrate judge issued the requested orders, and the government later served X Corp. with a grand jury subpoena accompanied by the nondisclosure order. The district court upheld the order and denied X's motion to vacate or modify it. While the appeal was pending, the nondisclosure order was vacated, but the D.C. Circuit reviewed the recurring statutory issue and reversed.