In re U.S. for an Order Pursuant to 18 U.S.C. § 2705(B)

289 F. Supp. 3d 201
CourtCourt of Appeals for the D.C. Circuit
DecidedJanuary 29, 2018
DocketMisc. Action No. 17–2490 (BAH)
StatusPublished
Cited by1 cases

This text of 289 F. Supp. 3d 201 (In re U.S. for an Order Pursuant to 18 U.S.C. § 2705(B)) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re U.S. for an Order Pursuant to 18 U.S.C. § 2705(B), 289 F. Supp. 3d 201 (D.C. Cir. 2018).

Opinion

BERYL A. HOWELL, Chief Judge

In October 2017, the government sought an order, pursuant to 18 U.S.C. § 2705(b) of the Stored Communications Act ("SCA"), 18 U.S.C. §§ 2701, et seq. , precluding Airbnb, Inc., from disclosing the existence of a grand jury subpoena to any person for a period of at least one year. See Application of the United States for Nondisclosure Order Pursuant to 18 U.S.C. § 2705(b) ("App."), ECF No. 1. This application, as well as an amended application providing additional background and argument demonstrating that "Airbnb qualifies as a 'provider' of an 'electronic communication service' " under the SCA, see Amended Application of the United States for Nondisclosure Order Pursuant to 18 U.S.C. § 2705(b) ("Amended App.") at 1, ECF No. 3, was denied by a Magistrate Judge on the ground that Airbnb is a "user, rather than a provider," of electronic communication services ("ECS") and remote computing services ("RCS"), and thus is not an entity covered by the SCA. See Order dated Oct. 6, 2017 ("First Order"), ECF No. 2; Order dated Dec. 22, 2017 ("Second Order"), ECF No. 4. Now pending before the Court is the government's Ex Parte Objection to the Magistrate Judge's Denial of Amended Application of the United States for an Order Pursuant to 18 U.S.C. § 2705(b) ("Obj."), ECF No. 6.

Whether an entity is an ECS or RCS provider, and regulated as such by the SCA, carries significant consequences: the SCA's statutory scheme bestows upon covered entities greater responsibilities regarding the disclosure and safeguarding of their customers' electronic information, and each violation of that Act risks civil, criminal, and administrative penalties. See 18 U.S.C. §§ 2701(b), 2707(a) - (d). For the reasons stated herein, Airbnb is, for the purposes of the government's applications and objection, an ECS provider under the SCA by virtue of the electronic messaging system it provides to users of its service. Accordingly, the government's objection is sustained, the Magistrate Judge's order is reversed, and the government's application is granted.

I. BACKGROUND

The procedural history of this matter is summarized briefly below, followed by a description of Airbnb's electronic communication services as relevant to the application at issue.

*204A. Procedural History

The government filed its first application for an order, under 18 U.S.C. § 2705(b), on August 17, 2017, in a separately captioned matter, seeking an order precluding Airbnb from disclosing the existence of a grand jury subpoena. See Application of the United States for Nondisclosure Order Pursuant to 18 U.S.C. § 2705(b) ("August App.") at 1, In re Application of the United States of America for an Order Pursuant to 18 U.S.C. § 2705(b) ("First Proceeding "), No. 17-mc-2011, ECF No. 1. In support of this application, the government asserted that "Airbnb provides an 'electronic communications service,' as defined in 18 U.S.C. § 2510(15), and/or 'remote computing service,' as defined in 18 U.S.C. § 2711(2)," but did not provide additional information about the specific Airbnb services at issue. Id. ¶ 4. That application was summarily granted by a Magistrate Judge the next day. See Order dated Aug. 18, 2017, First Proceeding , No. 17-mc-2011, ECF No. 2. The government then served the order and subpoena on Airbnb, and Airbnb subsequently produced responsive records. Obj. at 2.

The government filed a second application on October 4, 2017, again requesting an order under § 2705(b) precluding Airbnb from disclosing the existence of another grand jury subpoena and again asserting that Airbnb is a provider of ECS or RCS, as defined by the SCA. App. ¶¶ 4-6. Like the August application, the second application expressly noted that the government's investigation had revealed reason to believe that specific Airbnb user accounts were being used to facilitate violations of federal law. Id. ¶ 2. Aside from certain differences in the facts attendant to each application, the August and October applications were identical. Nevertheless, the latter application was denied on October 6, 2017, by a different Magistrate Judge, who concluded that "Airbnb, Inc. is a user, rather than a provider, of electronic communication service, and that an order pursuant to Section 2705(b) thus cannot lie." First Order at 1.

On December 4, 2017, the government filed an amended application for a § 2705(b) order. See Amended App. at 1. Like the original application, the amended application sought "the same basic subscriber information from Airbnb as the August 2017 subpoena, but it requested that information for a different time period."

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Bluebook (online)
289 F. Supp. 3d 201, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-us-for-an-order-pursuant-to-18-usc-2705b-cadc-2018.