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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 19-SS-1024
FACEBOOK, INC., APPELLANT,
V.
JAMES PEPE, APPELLEE,
AND
UNITED STATES, INTERVENOR.
Appeal from the Superior Court of the District of Columbia (CF1-18581-18)
(Hon. Juliet McKenna, Trial Judge)
(Argued January 14, 2020 Decided )
Joshua S. Lipshutz, with whom Naima L. Farrell, Aaron Smith, John K. Roche, Ariel Glickman, Michael J. Holecek, of the bar of the State of California, pro hac vice, by special leave of the court, and Thomas F. Cochrane, of the bar of the State of California, pro hac vice, by special leave of the court, were on the brief, for appellant.
William Collins, Public Defender Service, with whom Samia Fam, Mikel- Meredith Weidman, and Jaclyn S. Frankfurt, Public Defender Service, were on the brief, for appellee.
Andrew W. Laing, Attorney, Appellate Section, Criminal Division, United States Department of Justice, with whom Brian A. Benczkowski, Assistant Attorney General, John P. Cronan, Principal Deputy Assistant Attorney General, Matthew S. 2
Miner, Deputy Assistant Attorney General, Criminal Division, United States Department of Justice, and Nathan P. Judish, Attorney, Computer Crime and Intellectual Property Section, Criminal Division, United States Department of Justice, were on the brief, for intervenor.
Before GLICKMAN and FISHER, Associate Judges, and NEBEKER, Senior Judge.
GLICKMAN, Associate Judge: Appellant Facebook, Inc. (Facebook) filed an
expedited appeal from an order holding it in civil contempt for refusing to comply
with an ex parte subpoena served by appellee James Pepe, and from a related order
directing Facebook not to disclose the existence of the subpoena to any person or
entity other than its counsel until it complied with the subpoena. We issued a
Judgment on January 16, 2020, that affirmed the order holding Facebook in
contempt, but vacated the nondisclosure order. This opinion explains those rulings.
I.
Mr. Pepe’s subpoena sought evidence from Facebook supporting his defense
to then-pending criminal charges arising out of the shooting of Marquette Brown on
December 6, 2018. Mr. Pepe claimed he shot in self-defense after Mr. Brown and
his associates, who had been threatening him, surrounded him on an A6 bus and
pursued him when he got off and tried to walk away from them. Shortly before this 3
encounter, Brown allegedly sent Pepe a disappearing Instagram “Story” 1 in which
Brown menacingly bragged that he had been carrying a weapon during one of their
previous confrontations and warned Pepe not to ride the A6 bus. Mr. Pepe had not
preserved and no longer possessed this Story. It was not included in the voluminous
records that Facebook had produced to the government from Mr. Pepe’s Instagram
account in response to a search warrant (which records the government turned over
to Mr. Pepe in pretrial discovery).
In an effort to obtain the evanescent Instagram Story and other potentially
helpful evidence of Brown’s threats, Mr. Pepe asked the Superior Court to authorize
an ex parte subpoena to Facebook under Superior Court Criminal Rule 17(c). 2 The
subpoena sought (1) communications from Brown’s Instagram account to Pepe’s
1 Instagram is a photo- and video-sharing platform owned by Facebook, on which users may send another user a photo or video “Story” that is accessible on the Instagram platform to both sender and recipient for twenty-four hours, after which it disappears, unless either the sender or the recipient acts to save it. See Instagram Help Center, “When does my Instagram story disappear?”, available at https://help.instagram.com/1729008150678239?helpref=uf_permalink https://perma.cc/2Z8N-PHDD (last accessed Mar. 24, 2020). 2 As we understand Facebook’s counsel to have clarified at oral argument, a Story that has expired from both the sender’s and the recipient’s platform may still be archived by Instagram within the sender’s account and therefore be producible by Facebook even if it is inaccessible to the sender. 4
account, 3 and (2) non-content information pertaining to Brown’s account, such as
message headers identifying other Instagram accounts with which Brown had
communicated around the time of the shooting. The trial court approved the ex parte
subpoena and found that “exceptional circumstances” existed to dispense with
requiring notice of the subpoena to Brown. 4
Facebook moved to quash the subpoena. It principally contended that the
subpoena was unenforceable because the requested records were subject to the
privacy protections of the Stored Communications Act (SCA). 5 After a hearing, the
trial court denied the motion. The court ruled that the requested records fell within
statutory exceptions to the SCA’s prohibitions on disclosure of electronic records
and the contents of electronic communications, and that the SCA did not empower
Facebook to defy an otherwise lawful subpoena for such excepted information.
3 The subpoena did not mention the Instagram Story specifically. 4 When a Rule 17 subpoena “requir[es] the production of personal or confidential information about a victim[,] . . . unless there are exceptional circumstances, the court must require giving notice to the victim so that the victim can move to quash or modify the subpoena or otherwise object.” Super. Ct. Crim. R. 17(c)(3). 5 18 U.S.C. §§ 2701-13 (2018). 5
Facebook also requested the court’s permission to disclose the existence of
the ex parte subpoena to the government or Mr. Brown so it could explore whether
the requested information could be procured without the subpoena – for example, if
the government were to obtain a warrant for the information and thereafter produce
it to Mr. Pepe. Mr. Pepe opposed this request, and the trial court ultimately rejected
it and ordered Facebook not to disclose the subpoena to any person or entity (other
than its counsel) until it had complied with the subpoena. The court concluded that
this restraint on disclosure was justified under Criminal Rule 17(c)(3) to prevent loss
or destruction of the requested evidence and to protect Mr. Pepe from the premature
disclosure of his defense investigation and strategy, and that it did not violate the
First Amendment. 6
Facebook did not comply with the subpoena by the deadline imposed by the
court. The court accordingly held it in civil contempt and stayed the monetary
sanctions it imposed pending Facebook’s expedited appeal. 7
6 Before the court held Facebook in civil contempt for its non-compliance with the subpoena, Facebook took an interlocutory appeal from the non-disclosure order. This court dismissed that appeal for lack of jurisdiction on the grounds that it was not from a final order and did not meet the requirements of the collateral order doctrine. See In re Facebook, Inc., No. 19-SS-761, Order (D.C. Oct. 23, 2019). 7 The United States intervened in this appeal at this court’s invitation because Mr. Pepe argued that the SCA is unconstitutional if it requires or permits Facebook 6
Our January 16, 2020 Judgment in this appeal upheld the subpoena and
affirmed the adjudication of civil contempt. We agreed with the trial court, Mr.
Pepe, and the United States that the SCA neither required nor authorized Facebook’s
refusal to comply with the subpoena. However, we vacated the nondisclosure order. 8
Given Facebook’s unrebutted representation that it had secured any requested
communications and records in its possession, we were not persuaded the
nondisclosure order was justified by a need to preserve the records or by Mr. Pepe’s
confidentiality concerns.
II. Enforceability of the Subpoena
As a provider of electronic communication services, Facebook must comply
with the provisions of the SCA governing its disclosure of customer communications
and records. The provision of the SCA applicable to this case, 18 U.S.C. § 2702,
contains a prohibition on disclosure and exceptions to that prohibition. Subsection
(a) states that “[e]xcept as provided in subsection (b) or (c),” service providers “shall
to defy a criminal defendant’s Rule 17 subpoena for evidence material to the defense. See D.C. App. R. 44(a). In view of our disposition of the appeal on statutory grounds, we do not reach Mr. Pepe’s constitutional claim. 8 Our vacatur of the nondisclosure order was effective immediately, ahead of the new date we set for Facebook to comply with the subpoena or begin suffering the sanctions imposed for its contempt. 7
not knowingly divulge to any person or entity the contents” of electronically stored
communications or “to any governmental entity” “record[s] or other information
pertaining to a subscriber [] or customer” (i.e., records that are not communications).
If one of the exceptions listed in subsections (b) and (c) applies, the provider “may
divulge” the communication, record, or information at issue. 9
In Facebook v. Wint 10 we held that where no statutory exception applies,
§ 2702(a) prohibits a service provider from complying with a criminal defendant’s
subpoena for covered communications and records. In other words, the SCA renders
that subpoena unenforceable against the provider. Our opinion left unanswered the
question whether the SCA similarly precludes a criminal defendant from
subpoenaing material that falls within one of § 2702’s exceptions. That is the
question posed in the present case. Mr. Pepe contends the SCA is no obstacle to the
enforcement of his subpoena, because exceptions in subsections (b) and (c) of § 2702
specifically allow a provider like Facebook to divulge (1) the contents of a covered
communication to, or with the consent of, “an addressee or intended recipient of
9 18 U.S.C. §§ 2702(b), (c). 10 199 A.3d 625 (D.C. 2019). 8
such communication,” 11 and (2) customer records and information other than a
covered communication “to any person other than a governmental entity.” 12
In opposing Mr. Pepe’s invocation of these exceptions, Facebook makes two
principal arguments. First, it argues that Mr. Pepe is not “an addressee or intended
recipient” of an Instagram communication that has, by design, automatically expired
and disappeared from his account. Second, Facebook argues that even if subsections
(b)(1), (b)(3), and (c)(6) permit it to divulge the requested communications and
records to Mr. Pepe, it cannot be compelled to do so by his subpoena because the
SCA preempts such compulsory discovery and commits the disclosure decision in
cases like this to the service provider’s unfettered discretion. Each of these
arguments presents a question of statutory interpretation as to which our review is
de novo. 13 As we stated in construing the SCA in Wint,
We first look to see whether the statutory language at issue is “plain and admits of no more than one meaning.” Peoples Drug Stores, Inc. v. District of Columbia, 470 A.2d 751, 753 (D.C. 1983) (en banc) (internal quotation
11 18 U.S.C. §§ 2702(b)(1), (b)(3). 12 Id. § 2702(c)(6). Governmental access to customer communications or records by warrant, subpoena, or court order is addressed separately in § 2703 of the SCA. 13 Wint, 199 A.3d at 628. 9
marks omitted). We will give effect to the plain meaning of a statute “when the language is unambiguous and does not produce an absurd result.” McNeely v. United States, 874 A.2d 371, 387 (D.C. 2005) (internal quotation marks omitted). “[W]e may also look to the legislative history to ensure that our interpretation is consistent with legislative intent.” Thomas v. Buckley, 176 A.3d 1277, 1281 (D.C. 2017) (internal quotation marks omitted).[14]
For the following reasons, we reject both arguments and conclude that the
SCA does not render Mr. Pepe’s subpoena unenforceable. 15
14 Id. 15 Facebook also makes a non-statutory argument. It contends the subsection (b) exceptions are inapplicable because Mr. Pepe has provided no evidence that he is the holder of the Instagram account that allegedly received messages from Mr. Brown’s account, or that he ever received communications from Brown. On the record before us, however, Mr. Pepe’s status as an account holder and recipient is not in reasonable dispute. The trial court found him to be the account holder based on the sworn evidence presented by the government to obtain the warrant for his Instagram records, and the warrant yielded numerous communications between Pepe and Brown. Service providers often “rely on law enforcement certification under oath” that factual assertions underlying government requests for covered records or communications are “true and accurate,” and their good faith reliance on those assertions relieves them of liability under the SCA. United States v. Caraballo, 963 F. Supp. 2d 341, 349 (D. Vt. 2013), aff’d, 831 F.3d 95 (2d Cir. 2016); see also Alexander v. Verizon Wireless Servs., LLC, 875 F.3d 243, 254 (5th Cir. 2017). We see no reason why providers would cease to rely on the same law enforcement certification when a criminal defendant uses it to seek similar information. 10
A. Mr. Pepe’s Status as an “Addressee or Intended Recipient”
Facebook argues that Mr. Pepe cannot be considered an “addressee or
intended recipient” of Instagram messages that have expired and disappeared from
view on his Instagram platform after twenty-four hours. According to Facebook, a
sender’s use of such an ephemeral format implies the sender meant to limit the
receiver’s continued access to the message and makes the receiver only a former
addressee or intended recipient of the message once it has disappeared. Taken to its
logical conclusion, Facebook’s position is that a receiver must have current access
to a communication when seeking its disclosure in order to be deemed an “addressee
or intended recipient” of it within the meaning of §§ 2702(b)(1) and (b)(3). Mr. Pepe
disagrees, arguing that the plain meaning of “addressee or intended recipient” does
not turn on how long the sender wanted the communication to remain available for
viewing or whether it in fact remains accessible to the receiver. We agree with Mr.
Pepe.
The SCA does not define or qualify the meaning of an “addressee or intended
recipient” of an electronic communication. “When the terms of a statute are
undefined and not recognized terms of art, we presumptively accord them their 11
ordinary meaning in common usage, taking into account the context in which they
are employed[.]” 16 Facebook has not rebutted that presumption in this case.
In the ordinary sense of the term, being an “addressee or intended recipient”
of a communication is not linked in any way to how long the receiver continues or
is intended to possess it. In general, an “addressee” is simply “one to whom
something is addressed,” and to “address” is simply “to direct to go to” or “to direct
by way of communication.” 17 The status of addressee arises at the time of sending
an addressed item, and this status is not altered by what happens to the item
thereafter, or by what the sender wanted or expected to happen thereafter. We would
not say, for example, that someone ceased to be the addressee of a letter that was
deposited in the mail if the letter was lost in transit or thrown away after receipt.
Similarly, an “intended recipient” is simply “one that receives,” that is, “take[s]
possession or delivery of,” as the sender had “in mind” or in accordance with the
sender’s plans or “designs.” 18 The status of intended recipient does not depend on
whether the recipient keeps the communication or whether the sender intended that
16 Hood v. United States, 28 A.3d 553, 559 (D.C. 2011). 17 WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE, UNABRIDGED 24, 25 (1993). 18 Id. 1175, 1894, 1895 (defining “intended” and “recipient”). 12
it be preserved. For example, a person need not record a phone call in order to be
deemed its intended recipient. Absent any indication to the contrary, the plain and
most natural reading of the term “addressee or intended recipient” in § 2702 is that
it includes people who receive electronic messages that expire at some point after
receipt.
Indeed, the (b)(1) and (b)(3) exceptions would serve little purpose and be
virtually superfluous if they permitted Facebook to disclose electronic
communications only to, or with the consent of, people who still have the
communications. Facebook’s disclosure is unnecessary for those individuals to
obtain or consent to share communications they already control. The (b)(1) and
(b)(3) exceptions are useful when a receiver did not retain possession of, or access
to, a desired electronic communication.
That the sender may have intended a communication to disappear by sending
it in an ephemeral format thus has no bearing on whether the receiver is, in plain
language and with regard to the purposes of the exception, an “addressee or intended
recipient” of that communication. This conclusion does not undermine senders’
reasonable privacy expectations created by the SCA. The SCA itself limits such
expectations by allowing service providers to divulge electronic communications to 13
addressees or intended recipients, or to anyone else with their consent, without
sender authorization. And of course the SCA contains no special provision for
communications that are designed to self-delete; as Facebook acknowledges, the
development of such evanescent messages was not envisioned when Congress
enacted the SCA in 1986. 19 In point of fact, the automatic expiration of an Instagram
Story merely removes it from the recipient’s and the sender’s Instagram platform; it
does not prevent a receiver from preserving it before its deletion by downloading or
other means. 20 The sender of a Story cannot prevent its preservation. Thus, if
anything, the sender’s consent to the receiver’s continued access to the message is
implied by the sender’s decision to send it. 21 Mr. Brown had no reasonable
assurance that a Story he sent to Mr. Pepe would disappear for good.
19 We have found nothing in the legislative history of the SCA indicating that “addressee or intended recipient” should be understood to exclude persons who receive disappearing electronic messages or messages that the sender intended to be destroyed or not disclosed. 20 Instagram’s Data Policy, available to its users, specifically states that “when you share a post or send a message to specific friends or accounts, they can download, screenshot, or reshare that content to others across or off our Products, in person or in virtual reality[.]” Instagram Help Center, “Data Policy: Content others share or reshare about you,” available at https://help.instagram.com/155833707900388 https://perma.cc/D554-J6EL (last accessed Mar. 24, 2020). 21 In enacting the SCA, Congress envisioned that “[i]f conditions governing disclosure or use are spelled out in the rules of an electronic communication service, and those rules are available to users . . . it would be appropriate to imply consent 14
We hold that under §§ 2702(b)(1) and (b)(3), Mr. Pepe is an “addressee or
intended recipient” of any communications sent to his account, and those exceptions
therefore permit Facebook to disclose all such communications to Pepe, including
any Instagram Stories, that are responsive to his subpoena.
B. The Enforceability of a Subpoena for Information the SCA Permits Facebook to Divulge
Facebook contends that even if §§ 2702(b)(1), (b)(3), and (c)(6) permit it to
divulge the communications and records sought by Mr. Pepe, the SCA preempts his
ability to obtain that information from it by subpoena. The SCA does not do so
expressly, but Facebook asserts that it does so implicitly because allowing such use
of compulsory process would create “an obstacle to the accomplishment and
execution of the full purposes of and objectives of Congress” 22 in enacting the SCA.
According to Facebook, the permissive exceptions in the SCA leave disclosure
entirely to the service provider’s unfettered discretion in order to channel discovery
to other entities, such as users who can assert their own privacy interests in the
communications and records at issue. In effect, Facebook argues that Congress
on the part of a user to disclosures or uses consistent with those rules.” H.R. Rep. No. 99-647, at 66 (1986) (hereinafter “House Report”). 22 Murray v. Motorola, Inc., 982 A.2d 764, 771 (D.C. 2009) (quotation and alteration omitted). 15
intended the SCA to create an absolute service provider discovery privilege
whenever the SCA does not specifically require a service provider to permit
discovery.
As the Supreme Court has emphasized, “preemption cannot be based on a
freewheeling judicial inquiry into whether a state [rule] is in tension with federal
objectives.” 23 For Facebook’s implicit preemption argument to succeed, it “must be
grounded ‘in the text and structure of the statute at issue.’” 24 We conclude that the
necessary grounding is lacking.
There is, to begin with, a weighty and well-settled presumption against
inferring that Congress silently intended to foreclose or restrict the availability of a
core component of the judicial process such as the subpoena power. As we reiterated
in Wint,
[I]t is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense[.] . . . [E]xceptions to the demand for every man’s evidence are
23 Kansas v. Garcia, 140 S. Ct. 791, 801 (2020) (internal punctuation omitted, quoting Chamber of Commerce v. Whiting, 563 U.S. 582, 607 (2011)). 24 Id. at 804 (quoting CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993)). 16
not lightly created nor expansively construed, for they are in derogation of the search for truth.[25]
Thus, a “clear and strong indication” of Congressional intent “is required before it
may be implied that the policy of prohibition is of such force as to dominate the
broad objective of doing justice” by preempting the ordinary rules of discovery in
the judicial process. 26
Such clear intent exists for us to conclude that when § 2702(a)’s general
prohibition on disclosure is applicable, it precludes a provider from complying with
a criminal defendant’s subpoena; we so held in Wint, as have other courts. 27 But
when the (b)(1), (b)(3), and (c)(6) exceptions to the prohibition apply and expressly
25 Wint, 199 A.3d at 632 (quoting United States v. Nixon, 418 U.S. 683, 709- 10 (1974)). 26 Id. (quoting Freeman v. Seligson, 405 F.2d 1326, 1348 (D.C. Cir. 1968); see also Facebook v. Superior Court (Hunter), 417 P.3d 725, 751 (Cal. 2018) (“[T]here should be a clear expression of congressional intent before relevant information essential to the fair resolution of a lawsuit will be deemed absolutely and categorically exempt from discovery and not subject to the powers of the court[.]”); cf. Ajemian v. Yahoo!, Inc., 84 N.E.3d 766, 774-78 (Mass. 2017) (holding that absent “clear congressional intent” to preempt an “‘area[] of traditional State regulation,’” § 2702(a) of the SCA did not preempt state probate law allowing personal representatives to consent to release of information on behalf of decedent) (citing Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 151 (2001)). 27 See Wint, 199 A.3d at 628-29. 17
permit disclosure, they remove that barrier to subpoena compliance and enable
service providers to comply with compulsory process. The subsections do not
purport to authorize providers to refuse to do so at their own option, let alone to vest
them with a novel privilege to withhold evidence from discovery for any or no
reason.
Facebook argues that subsections (b) and (c) state that providers “may
divulge” information under certain conditions, and that “the permissive ‘may’ rather
than the imperative ‘shall’” 28 indicates that the decision to divulge is discretionary.
This assertion is too sweeping. As the California Supreme Court has explained
the subdivision[s] [in § 2702] where ‘may’ appears [are] framed not as a grant of discretionary power . . . but as a special exception to a general prohibition. In such a context all ‘may’ means is that the actor is excused from a duty, liability, or disability otherwise imposed by the prohibition.[29]
28 Cruz v. United States, 165 A.3d 290, 293 (D.C. 2017). 29 Hunter, 417 P.3d at 751 (emphasis in the original; internal quotation marks omitted) (holding that § 2702 does not give electronic service providers discretion to defy otherwise lawful subpoenas from criminal defendants where an exception in § 2702 permits the disclosure of the subpoenaed materials). 18
Indeed, underscoring that point, some of the excepted circumstances in which
subsections (b) and (c) say a provider “may divulge” information are, in fact,
circumstances in which the provider must divulge it. 30
And “while ‘may’ suggests discretion, it does not necessarily suggest
unlimited discretion.” 31 That the SCA grants providers certain exemptions from its
general prohibition on disclosure does not imply that it grants providers exemptions
from mandatory disclosure requirements imposed by other law. Although the SCA
preempts other disclosure laws to the extent they would require providers to violate
the SCA, that is no reason to think the SCA also preempts laws that require
disclosures the SCA expressly permits. 32 When the SCA lifts the bar on disclosure
of electronic communications in § 2702(a) and explicitly permits providers to
disclose information, the requisite indication of congressional intent to preclude
30 E.g., 18 U.S.C. §§ 2702(b)(2) and (c)(1) (referencing mandatory disclosures to governmental entities pursuant to warrants or other means specified in § 2703); §§ 2702(b)(6) and (c)(5) (referencing mandatory reporting to the National Center for Missing and Exploited Children). 31 Zadvydas v. Davis, 533 U.S. 678, 697 (2001). 32 See Hunter, 417 P.3d at 751. 19
compulsory process is absent. It does not appear in the statutory text, and we have
not found it in the legislative history of the SCA. 33
Accordingly, we hold that the SCA did not authorize Facebook’s refusal to
comply with Mr. Pepe’s subpoena for information that SCA §§ 2702(b)(1), (b)(3),
and (c)(6) allowed Facebook to divulge to him. Our conclusion accords with the
substantial weight of authority from other jurisdictions. 34 While a few courts have
33 House Report, at 64-67; S. Rep. No. 99-451, at 36-38 (1986). 34 See, e.g., Hunter, 417 P.3d at 751; Negro v. Superior Court, 179 Cal. Rptr. 3d 215, 230-34 (Cal. Ct. App. 2014); O’Grady v. Superior Court, 44 Cal. Rptr. 3d 72, 88 (Cal. Ct. App. 2006) (in holding that civil subpoena for contents of communications violated the SCA, noting “[c]opies may still be sought from the [service provider] if the discovery can be brought within one of the statutory exceptions—most obviously, a disclosure with the consent of a party to the communication”); Mafille v. Kaiser-Francis Oil Co., No. 18-CV-586-TCK-FHM, 2019 WL 1933747, at *4 (N.D. Okla. May 1, 2019) (civil subpoena to Google did not violate the SCA where the plaintiff could consent to disclosure under § 2702(b)(3)); Super Vitaminas, S.A., No. 17-mc-80125-SVK, 2017 WL 5571037, at *3-4 (N.D. Cal. Nov. 20, 2017) (civil subpoena to provider for email contents between litigant and third party did not violate the SCA where litigants were recipients of the emails and consented to the disclosure of the contents thereof because “the exception provided [under § 2702(b)(3)] for disclosure applies”); Lee v. Glob. Tel*Link Corp., No. CV15-2495-ODW(PLAx), 2017 WL 10575166, at *7 (C.D. Cal. Sept. 6, 2017) (in holding that provider could disclose customer information to litigant under § 2702(c)(6), stating, “the Court is not aware of[] any case holding that a federally-recognized privilege exists that prohibits a telephone company from disclosing customer information”); Al Noaimi v. Zaid, No. 11–1156– EFM, 2012 WL 4758048, at *3 (D. Kan. Oct. 5, 2012) (denying motion to quash subpoena to service provider where plaintiff could consent to disclosure of his own requested email communications under § 2702(b)(3)); Two Rivers Fin. Grp., Inc. v. 20
held or, in dicta, suggested otherwise, 35 their opinions do not rebut our reasoning
and we do not find them persuasive.
Ralston, No. 3:11-cv-00152-CRW-CFB, 2012 WL 13018842, at *2 (S.D. Iowa July 9, 2012) (ordering provider to comply with defendant’s subpoena for her own email communications, as “18 U.S.C. § 2702(b)(1) . . . does allow the disclosure of the . . . communication to ‘the addressee or intended recipient of such communication . . . ’”); Columbia Pictures Indus., Inc. v. Fung, No. CV 06-5578 SVW(JCx), 2007 WL 9627899, at *4 (C.D. Cal. May 31, 2007) (“[A]s the court has ordered the production of essentially only those private forum messages to which defendants or their agents are privy because they are a party or participant thereto, and as defendants have the ability to consent to the disclosure thereof, the Stored Communications Act does not provide a basis to withhold such data which is clearly within defendants' possession, custody and control.”).
Courts are particularly uniform in demanding that service providers comply with subpoenas for information that falls within the § 2702(c)(6) exception for non- content information. See, e.g., CineTel Films, Inc. v. Does 1-1,052, 853 F. Supp. 2d 545, 555 n.5 (D. Md. 2012); First Time Videos, LLC v. Does 1-500, 276 F.R.D. 241, 247 (N.D. Ill. 2011); Viacom Int’l Inc. v. YouTube Inc., 253 F.R.D. 256, 265 (S.D.N.Y. 2008); Sines v. Kessler, No. 18-mc-80080-JCS, 2018 WL 3730434, at *10-11 (N.D. Cal. Aug. 6, 2018); Haw. Reg’l Council of Carpenters v. Yoshimura, No. 16-00198 ACK-KSC, 2017 WL 738554, at *3-4 (D. Haw. Feb. 17, 2017); Site B, LLC v. Does 1-51, No. 13 C 5295, 2014 WL 902688, at *4 (N.D. Ill. Mar. 7, 2014); TCYK, LLC v. Does 1-87, No. 13 C 3845, 2013 WL 5567772, at *3 (N.D. Ill. Oct. 9, 2013). 35 See United States v. Wenk, 319 F. Supp. 3d 828, 829 (E.D. Va. 2017); PPG Indus., Inc. v. Jiangsu Tie Mao Glass Co., 273 F. Supp. 3d 558, 561 (W.D. Pa. 2017); State v. Johnson, 538 S.W.3d 32, 69-70 (Tenn. Crim. App. 2017); In re Facebook, 923 F. Supp. 2d 1204, 1206 (N.D. Cal. 2012); Schweickert v. Hunts Point Ventures, Inc., No. 13-CV-675RSM, 2014 WL 6886630, at *13 (W.D. Wash. Dec. 4, 2014). 21
III. The Nondisclosure Order
A. Background
At the hearing in the trial court on its motion to quash Mr. Pepe’s subpoena,
Facebook’s counsel asked the court to defer ruling on the issue of its enforceability
under the SCA because the subpoenaed materials might be otherwise procurable. 36
To that end, counsel asked the court to “clarify that there is no gag order on
Facebook” so that it could talk to the government about the subpoena, and argued
that any restraint on its ability to speak about the subpoena would violate the First
Amendment. The court responded that it had not imposed a “gag” order on
Facebook and doubted it had the authority to do so; as permitted by Rule 17(c)(3),
it simply had excused the defense from having to notify Mr. Brown that his records
were being requested.
At that point, Mr. Pepe’s counsel asserted that the court did have the authority
to preclude Facebook from disclosing the existence of the subpoena to anyone.
36 A party seeking a subpoena duces tecum under Rule 17 must show “(1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production[;] and (4) that the application is made in good faith and is not intended as a ‘fishing expedition.’” Grady v. United States, 180 A.3d 652, 658 (D.C. 2018) (quotation and alteration omitted). 22
Counsel stated that Mr. Pepe had a compelling interest in maintaining the
confidentiality of his trial strategy and defense investigation. The court noted that
Mr. Pepe’s strategy was no secret, as he had said in pretrial filings and open court
that he would rely on a claim of self-defense. Defense counsel then voiced concern
that Mr. Brown might delete his Instagram messages if he were to learn of the
subpoena. The court agreed to counsel’s request to provide supplemental briefing
with respect to a nondisclosure order.
In the briefing that followed, Mr. Pepe claimed, on information and belief,
that the government was unaware of the threatening Instagram Story that Mr. Brown
allegedly sent to Mr. Pepe. Disclosure to the government of its possible existence,
Mr. Pepe argued, would prompt a government investigation that “may lead someone
close to Mr. Brown to attempt to tamper with the photo or video” or persons with
whom Mr. Brown may have communicated about the threats to alter their own social
media profiles. Mr. Pepe also pointed out that the government would need to seek
significant additional information from Facebook or the defense in order to discern
“whether it could or would seek a warrant” for Mr. Brown’s Instagram records. Both
the risk of spoliation and governmental intrusion in the defense investigation would
“undermine Mr. Pepe’s defense.” 23
After considering these arguments, the trial court found “(1) that Mr. Pepe has
a compelling interest in having his defense theory, strategy, and investigation remain
confidential, that (2) sealing would serve that interest, (3) that in the absence of
sealing, that interest would be harmed, and (4) that there are no alternatives to
sealing.” The court further found, as required by Rule 17(c)(3), that “exceptional
circumstances” justified not giving notice of the subpoena to Mr. Brown, “including
the likelihood that ‘evidence might be lost or destroyed . . . or where the defense
would be unfairly prejudiced by premature disclosure of a sensitive defense
strategy.’” 37 Accordingly, the court ordered Facebook not to disclose the existence
of the subpoena to any other person or entity, with the exception of its own counsel,
until after Facebook had complied with the subpoena.
B. Discussion
Ordinarily, a decision to issue a subpoena ex parte or enter a protective order
is reviewed for abuse of discretion. 38 The nondisclosure order, however, implicates
37 Super. Ct. Crim. R. 17(c)(3) comment to 2017 amendments. 38 Mampe v. Ayerst Labs., 548 A.2d 798, 803-04 (D.C. 1988); Super. Ct. Crim. R. 17(c)(3) comment to 2017 amendments (“The Committee leaves to the judgment of the court a determination as to whether the judge will permit the 24
a question of law – whether it impermissibly burdens Facebook’s First Amendment
rights – as to which our review is de novo. 39
We start with the understanding that witnesses and other third parties in
possession of evidence relating to a civil or criminal proceeding generally have a
robust First Amendment right, whether they are under subpoena or not, to speak
freely about their knowledge and their involvement in the proceeding whenever and
with whomever they please. This right extends to sharing the evidence they possess
with either side in the litigation; witnesses do not belong to one side or the other. 40
We do not say the right is absolute; in exceptional circumstances it may be subject
question whether such exceptional circumstances exist to be decided ex parte and authorize service of the third-party subpoena without notice to anyone.”). 39 In re Access to Jury Questionnaires, 37 A.3d 879, 885 (D.C. 2012) (applying de novo review to Superior Court’s refusal to allow press access to jury questionnaires); United States v. Doe, 968 F.2d 86, 88 (D.C. Cir. 1992) (whether Park Service regulation met requirements of a time, place, and manner restriction “is of course a question of law, to be reviewed by an appellate court de novo”); In re Nat’l Sec’y Ltr., 863 F.3d 1110, 1121 (9th Cir. 2017) (“Constitutional questions of fact (such as whether certain restrictions create a ‘severe burden’ on an individual’s First Amendment rights) are reviewed de novo.”) (quotation and alteration omitted). 40 Gregory v. United States, 369 F.2d 185, 188-89 (D.C. Cir. 1966) (prosecutor’s advice to eyewitness not to speak with defense unless prosecutor was present denied appellant a fair trial). 25
to reasonable curtailment. But deviations from the norm of non-constraint require
strong justification.
The judicial order in this case mandated that Facebook refrain from discussing
the subpoena for its evidence with anyone (except its counsel). Such a “naked
prohibition against disclosure[]” of its involvement in this litigation “is fairly
characterized as a regulation of pure speech.” 41 That regulation is both content-
based, because it prohibits the discussion of a particular topic (the subpoena), 42 and
a prior restraint on speech, as it “forbid[s] certain communications . . . in advance of
the time that such communications are to occur” or before the speaker has the
opportunity to make them. 43 Content-based prior restraints are normally subject to
review under strict scrutiny, 44 and prior restraints come with a “heavy presumption”
41 Bartnicki v. Vopper, 532 U.S. 514, 526 (2001). 42 Reed v. Town of Gilbert, Arizona, 135 S. Ct. 2218, 2227 (2015); In re Sealing & Non-Disclosure of Pen/Trap/2703(d) Orders, 562 F. Supp. 2d 876, 881 (S.D. Tex. 2008). 43 Alexander v. United States, 509 U.S. 544, 550 (1993). 44 Matter of Subpoena 2018R00776, 947 F.3d 148, 155 (3d Cir. 2020); In re Nat’l Sec’y Ltr., 863 F.3d at 1121-22; In re Search Warrant Issued to Google, Inc., 269 F. Supp. 3d 1205, 1213 (N.D. Ala. 2017). 26
against their constitutional validity. 45 A content-based prior restraint violates the
First Amendment unless it serves a compelling state interest and is narrowly tailored
so as to “limit[] speech as little as possible.” 46
Section 2705 of the SCA itself provides that governmental entities may apply
to a court for a nondisclosure order similar to the one issued here in order to delay
notification to customers or subscribers of electronic communication services that
their records or communications are subject to a warrant or subpoena. 47 Courts have
reviewed such orders under strict scrutiny, 48 even though the statute arguably
45 In re J.D.C., 594 A.2d 70, 74 n.6 (D.C. 1991) (quoting Org. for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971)). 46 In re Ti.B., 762 A.2d 20, 30 (D.C. 2000); see also Reed, 135 S. Ct. at 2226. 47 18 U.S.C. § 2705(b); see also §§ 2709(a), (c) (allowing the Federal Bureau of Investigation to request subscriber or customer information from providers and, subject to judicial review, prevent providers from disclosing those requests). 48 See, e.g., Matter of Subpoena 2018R00776, 947 F.3d at 155-56; Microsoft Corp. v. United States Dep’t of Justice, 233 F. Supp. 3d 887, 906 & n.7 (W.D. Wash. 2017); Matter of Search Warrant for [redacted].com, 248 F. Supp. 3d 970, 980-82 (C.D. Cal. 2017); In re Search Warrant Issued to Google, 269 F. Supp. 3d at 1213- 15; In re Sealing & Non-Disclosure of Pen/Trap/2703(d) Orders, 562 F. Supp. 2d at 881-82, 886; see also John Doe v. Mukasey, 549 F.3d 861, 877-78 (2d Cir. 2008) (declining to decide whether strict scrutiny or some less “exacting” form of review applied to FBI nondisclosure order issued under § 2709). 27
appears to allow for their issuance under a less stringent standard, a “reason to
believe” that disclosure will result in:
(A) endangering the life or physical safety of an individual; (B) flight from prosecution; (C) destruction of or tampering with evidence; (D) intimidation of potential witnesses; or (E) otherwise seriously jeopardizing an investigation or unduly delaying a trial.[49]
Strict scrutiny is applied to avoid the “substantial risk” to First Amendment rights
posed by the approval of these orders, which are content-based prior restraints. 50 In
these cases, the compelling interest prong of strict scrutiny is generally satisfied
where there is a “reason to believe” disclosure would lead to the adverse
consequences enumerated in § 2705(b). 51 On the narrow-tailoring prong, orders that
issue for an indefinite time period fail to satisfy strict scrutiny, but orders limiting
disclosure for a defined time period have generally been upheld. 52
49 18 U.S.C. § 2705(b). 50 In re Search Warrant Issued to Google, 269 F. Supp. 3d at 1215; Matter of Search Warrant for [redacted].com, 248 F. Supp. 3d at 982. 51 See, e.g., In re Search Warrant Issued to Google, 269 F. Supp. 3d at 1215 (“calamitous circumstances” enumerated in § 2705(b) “satisfy the compelling interest prong of the strict scrutiny analysis”); Matter of Subpoena 2018R00776, 947 F.3d at 156-57; In re Sealing & Non-Disclosure of Pen/Trap/2703(d) Orders, 562 F. Supp. 2d at 883. 52 See, e.g., In re Sealing & Non-Disclosure of Pen/Trap/2703(d) Orders, 562 F. Supp. 2d at 895 (upholding 180 day nondisclosure order and allowing the 28
We see no reason why a lesser standard of scrutiny should apply where a
defendant, allowed under Rule 17(c)(3) to withhold notification, 53 seeks a further
order preventing the recipient of the subpoena from disclosing it. Mr. Pepe cites
cases arising in other contexts – e.g., where a litigant or third party seeks to disclose
confidential information learned in discovery – in which the would-be speaker’s
involvement in litigation or investigation has been held to allow restraints on speech
under a standard somewhat less rigorous than strict scrutiny. 54 In one such context
(involving orders or regulations restraining speech about pending trial matters by
prosecutors or defense attorneys), that standard has been articulated as requiring a
litigant to show that without the order a “substantial likelihood of prejudice” will
result. 55 It is this test that Mr. Pepe urges us to apply, arguing that the contents of
government to seek an extension upon its expiration if it could show sufficient justification to do so); In re Search Warrant Issued to Google, 269 F. Supp. 3d at 1218 (reforming application for indefinite nondisclosure order and limiting it to 180 days); Matter of Search Warrant for [redacted].com, 248 F. Supp. 3d at 983. At least one court has held that a § 2705(b) order lasting one year satisfies strict scrutiny. Matter of Subpoena 2018R00776, 947 F.3d at 157-59. 53 We assume arguendo that it was not an abuse of discretion to delay notification of the subpoena to Mr. Brown under this rule, and Facebook has not made any contention to the contrary on appeal. 54 E.g., Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 (1984); Gentile v. State Bar of Nevada, 501 U.S. 1030, 1072-75 (1991). 55 United States v. Brown, 218 F.3d 415, 427-28 (5th Cir. 2000) (collecting cases). 29
his subpoena (and the fact of its issuance) are matters Facebook learned of only
because of its involvement in a discovery dispute.
The SCA cases concerning similar government requests have rejected the
application of standards less exacting than strict scrutiny. For example, in Matter of
Search Warrant for [redacted].com, the court acknowledged that a § 2705(b)
nondisclosure order was “akin to a protective order limiting the disclosure of
information learned in pretrial discovery,” yet still applied strict scrutiny because,
unlike in the protective order context, the service provider did not “‘gather’ the
information in question from the government, with the aim of advancing [their]
interests in a lawsuit;” 56 that is, the provider, like Facebook in this case, did not itself
choose to obtain the information in question. The Northern District of Alabama also
rejected a lesser form of scrutiny over a nearly identical order, holding that learning
of the fact of a government warrant under § 2703 is distinct from learning of the
content of the request as a result of litigation, the service provider having a greater
interest in disclosing the existence of the former in order to “publiciz[e] the extent
to which the Government invades the privacy of internet users via search warrants
56 248 F. Supp. 3d at 980-81. 30
and other devices.” 57 While a defendant’s subpoena may not implicate privacy
concerns identical to the law enforcement surveillance of internet users’ electronic
activity, the court approval of a private litigant’s gaining access to the account
information and communications of others certainly implicates “core” First
Amendment issues of governmental affairs and accountability. 58
At any rate, whether the standard is strict scrutiny or a somewhat lesser
standard, it is still a rigorous one. Our own cases addressing First Amendment
limitations on protective orders have required that any order be “necessary to ensure
a fair trial . . . or to prevent the abuse of the discovery process” and “carefully drawn
. . . so as to limit speech as little as possible.” 59 And the cases cited by Mr. Pepe as
requiring a showing of a “substantial likelihood of prejudice” ask at a minimum
whether an applicant for a nondisclosure order has presented sufficient facts to
persuade a court that the prejudice identified “might well be realized” and whether
57 In re Search Warrant Issued to Google, 269 F. Supp. 3d at 1217. 58 Id. at 1217-18. 59 Coulter v. Gerald Family Care, P.C., 964 A.2d 170, 186 (D.C. 2009) (quotations and alteration omitted). 31
the proposed restriction is “essential to the protection of the particular governmental
interest involved.” 60 Mr. Pepe has not met either prong of even this standard.
We do not deny the possibility that the risks Mr. Pepe identified could be great
enough to pose a substantial likelihood of prejudice to his defense and/or satisfy the
compelling interest test.61 Generally speaking, criminal defendants “should be
permitted to make an ex parte application for pretrial production of documents”
under Rule 17 “where notice of a subpoena duces tecum would compromise defense
60 Brown, 218 F.3d at 428-29. 61 See In re Search Warrant Issued to Google, Inc., 269 F. Supp. 3d at 1215 (§ 2705(b) order to prevent destruction or tampering with evidence or interference with investigation would satisfy compelling interest test). Nor do we intend to cast doubt on the propriety, under the First Amendment, of the relatively routine issuance, at the trial court’s discretion, of protective orders in Superior Court over the government and the defense themselves where a party makes a “particularized, specific showing” that pretrial disclosure of certain materials would interfere with the privacy interests of others, posing a concrete risk of harm. United States v. Dixon, 355 F. Supp. 3d 1, 4 (D.D.C. 2019) (construing standard for issuance of protective order under Federal Criminal Rule 16(d) identical to our Criminal Rule 16(d)); see also Harris v. United States, 594 A.2d 546, 549 (D.C. 1991) (holding “it was not unreasonable for the trial court to place a temporary and limited restriction” on defense counsel’s sharing of potential Jencks Act material with his client “during the period of time it took the court to complete the screening of that material”). We see no reason why a showing of such a protectable interest would not ordinarily be sufficient to indicate that the order is “necessary to ensure a fair trial . . . or prevent the abuse of the discovery process.” Coulter, 964 A.2d at 186. 32
counsel’s trial strategy.” 62 And, in assessing whether further nondisclosure orders
over the subpoena are justified, or whether notice to a victim should be delayed under
Rule 17(c)(3), attention to circumstances where notification could result in evidence
spoliation is important. 63 If a third-party subject to a discovery order loses or
destroys evidence, it might prove difficult to fashion appropriate remedial sanctions,
unlike circumstances in which courts can address, through sanctions or dismissal,
the government’s failure to preserve discoverable evidence. Merely raising these
risks, however, is not enough to support the curtailment of a subpoenaed party’s First
Amendment rights.
As the Superior Court noted, the government was fully aware that Mr. Pepe
was asserting a self-defense theory, and defense counsel had even emphasized the
potential strength of the defense claim to the government. The government may
have been unaware of the nature of the photo and video evidence Mr. Pepe sought,
but it is unclear (and he has not shown) how his defense would have been harmed if
62 United States v. Sellers, 275 F.R.D. 620, 625 (D. Nev. 2011); see also United States v. Reyes, 162 F.R.D. 468, 470 (S.D.N.Y. 1995); Super. Ct. Crim. R. 17 comment to 2017 amendments. 63 Super. Ct. Crim. R. 17 comment to 2017 amendments (“exceptional circumstances” justifying delayed notice may include circumstances where “evidence might be lost or destroyed”). 33
the government were to learn of it. 64 Moreover, it is far from a foregone conclusion
that the government would have learned what Mr. Pepe was seeking had Facebook
been permitted to inform the government of the existence of the subpoena. The
subpoena does not disclose that information, and the SCA likely would have
prevented Facebook from disclosing the contents of the requested communications
and records to the government without a warrant or the consent of either Mr. Pepe
or Mr. Brown. 65 So Mr. Pepe did not establish a substantial risk that Facebook’s
disclosure of the existence of his subpoena to the government would even result in
revealing any additional details of his self-defense strategy.
Mr. Pepe also did not show an appreciable risk of spoliation. It is true that at
the time the Superior Court entered the nondisclosure order, Facebook had not yet
represented that it had secured the requested materials, leaving their alteration or
64 A party’s common strategic desire to keep potentially favorable evidence under wraps until the eve of trial is not a substitute for a showing that pre-trial disclosure of the evidence at issue in this case would in some way “compromise defense counsel’s trial strategy.” Sellers, 275 F.R.D. at 625. Superior Court Criminal Rule 16 provides that if a party intends to “use the [evidence] in [their] case-in-chief at trial” they must permit their opponent to inspect it upon their opponent’s request. 65 18 U.S.C. §§ 2702(a)-(c) (precluding disclosure of communications and non-content records to governmental entities except where authorized under § 2703 or other exceptions for disclosure to the government not applicable here). 34
destruction a conceivable possibility. However, the likelihood that notice of the
subpoena to the government or Mr. Brown would have led to interference with or
the deletion of the evidence Mr. Pepe sought was speculative. We think it highly
unlikely that informing only the government of the subpoena would have introduced
any risk of spoliation; the government would have no interest in allowing evidence
to be destroyed and therefore no interest in informing Mr. Brown or his associates
of the request without appropriate precautions. Nor does the record make clear that
Mr. Brown or others would have been able to destroy information in Facebook’s
possession responsive to the subpoena even if they wanted to do so.66 But even
assuming the danger of spoliation of the subpoenaed material was sufficient to
justify a protective order of some kind and duration before Facebook secured that
material, that danger would, and did, cease after Facebook did so. Because Facebook
had the ability to preserve the information subject to Mr. Pepe’s request, the order
barring disclosure until after Facebook had complied with the subpoena was more
restrictive than was “essential to the protection of the particular [defense] interest
involved,” 67 and therefore interfered excessively with Facebook’s First Amendment
66 We must discount, as entirely hypothetical, the possibility that Brown, or his associates, might have been inspired and able to destroy other, unknown electronic evidence of value to the defense. 67 Brown, 218 F.3d at 429. 35
rights. It would have been enough for the order to allow disclosure on Facebook’s
assurance (which it provided when it first appealed the nondisclosure order) that it
had preserved the requested materials from possible loss or destruction.
IV.
These now articulated rationales support our order of January 16, 2020,
affirming the Superior Court’s order holding Facebook in contempt and its order
denying Facebook’s motion to quash the subpoena, and vacating the Superior
Court’s nondisclosure order.