Google LLC v. UNITED STATES OF AMERICA
Filing
22
ORDER: The attached opinion dated November 2, 2019 was originally filed under seal. The parties have agreed on limited redactions. The redacted copy will now be filed publicly, not under seal. SO ORDERED. (Signed by Judge John G. Koeltl on 3/10/2020) (ks)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
USDC SDi'-1';
DO CUM [t'sff
FLE CTRm~lCALL Y F:LECI
DOC'# _ _ _
D.t.. TE FILED: ··-
_ I _------\fl(~ _a:o
GOOGLE LLC,
Plaintiff,
- against -
19-mc-478 (JGK)
ORDER
UNITED STATES OF AMERICA,
Defendant .
JOHN G. KOELTL , District Judge:
The attached opinion dated November 2, 2019 was originally
filed under seal. The parties have agreed on limited redactions.
The redacted copy will now be filed publicly , not under seal.
SO ORDERED .
Dated:
New York, New York
March 10 , 2020
Koeltl
District Judge
,,
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
GOOGLE LLC ,
19-mc-478 (JGK)
Plaintiff,
MEMORANDUM OPINION &
ORDER
- against UNITED STATES OF AMERICA,
UNDER SEAL
Defendant.
JOHN G. KOELTL, District Judge:
The plaintiff , Google LLC ("Google") moves this Court to
vacate or modify the September 19 , 2019 non-disclosure order
signed by Magistrate Judge Wang ("NDO"). The NDO was issued in
connection with a search warrant, also issued by Magistrate
Judge Wang on September 19, 2019 , that was directed to Google
for records pursuant to 18 U.S.C.
§
2703 (c) (1) (A)
§
2703(b) (1) (A) and
("Warrant"). The plaintiff also moves to stay
the deadline for producing outstanding information responsive to
the Warrant until the motion to vacate or modify the NDO has
been dec ided. The Government cross moves to compel the immediate
compliance with the production obligations of the Warrant. For
the reasons stated below, the plaintiff's motions are denied and
the Government's motion is granted.
I.
The following facts are taken from the submissions of the
parties.
The plaintiff provides cloud storage and computing services
to individuals and enterprise customers. Through its "G Suite,"
the plaintiff offers enterprise customers products that include
email, word processing, storage, and more, to help simplify the
workplace. Enterprise customers can host their online business
data and email with Google for a fee. This means that the
enterprise's business data and email are stored and supported by
Google, the service provider, rather than by the enterprise
itself.
As part of an ongoing criminal investigation being
conducted by the United States Attorney's Office for the
Southern District of New York and the Federal Bureau of
Investigation, the Government applied for a search warrant and
submitted an affidavit from a Special Agent of the Federal
Bureau of Investigation to Magistrate Judge Wang. Carroll Deel.
Ex. A. Pursuant to 18 U.S.C. § 2703(b)(l)(A) and§ 2703(c)(l)(A)
of the Stored Communications Act ("SCA") and Federal Rule of
Criminal Procedure 41, Magistrate Judge Wang found probable
cause to believe that six email accounts maintained at premises
controlled by the plaintiff contained the evidence, fruits, and
instrumentalities of crime and issued a warrant for records,
2
which were to be provided to the Government within 30 days of
September 19, 2019. 1 Id. at l. The Warrant called for all content
and information 2 within Google's possession, custody, or control
from three
accounts associated with three
individuals
various time periods, beginning on either January 1, 2017 or
January 1, 2018, th rough December 31, 2018 . Id. at 4.
In connection with the Warrant, Magistrate Judge Wang also
issued an NDO, pursuant to 18 U.S.C. § 2705(b), finding that
[T]here is reason to believe that notification of the
existence of this warrant will result in destruction
of or tampering with evidence, and/or intimidation of
potential witnesses, or otherwise will seriously
jeopa rdize an ongoing investigation. Accordingly, it
is hereby ordered that the Provider shall not disclose
the existence of this War ra nt and Order to the listed
subscriber, to the enterprise account holder or its
representatives, or to any other person for a period
of one year from the date of this Order
. except
that Provider may disclose this Warrant and Order to
1
30 days from the date of the warrant is October 19, 2019. The parties
do not dispute that because the 30-day period ended on a Saturday, the
deadline for production fell on Monday, October 21, 2019. See Fed. R.
Crim. P. 45 (a) (1) (C).
2
The Warrant specifically requested email content, address book
information, subscriber and payment information, transactiona l
records, customer correspondence, search and web history, Google
Payments, Google Drive content, Google Docs, Google Calendar, chats
and instant messages, location history, info rmation regarding linked
accounts, device information, android services, and preserved or
backup records. Carroll Deel. Ex. A at 4-6.
3
an attorney for Provider for the purpose of rec eiv ing
legal advice.
Id . at 2.
The Government served the Warrant and NDO on the plaintiff
on September 19 , 2019. Carroll Deel.
I 2. As of October 21 ,
2019, the plaintiff had provided the Government with the records
responsive to the Warrant for the three
for individuals. Id. at
accounts
I 5. The plaintiff has preserved the
information and files responsive to the Warrant that are
associated with the enterprise accounts, which are ready for
production but have not yet been produced. Id.
The plaintiff argues that the NDO is a content-based,
prior restraint on its freedom of speech that is subject to
strict scrutiny review. It argues that the NDO does not
survive strict scrutiny review because the NDO does not
appear to be narrowly tailored to serve a compelling state
inte rest.
3
The plaintiff also seeks a stay of the Warrant's
deadline for the production of information until the
decision on its motion to vacate or modify the NDO is
issued. In response, the Government argues that the NDO
survives strict scrutiny. Further, it contends that the
plaintiff has not borne its burden to justify a stay of a
3
The plaintiff does not dispute that the Government has a compelling
interest in maintaining the secrecy of its criminal investigation, but
objects that the NDO is not narrowly tailored to accomplish that
interest .
4
deadline for production imposed by the Warrant, the
validity of which is uncontested, and moves to compel
production of the outstanding information pursuant to the
Warrant.
II.
The decision of a neutral and detached magistrate to issue
a warrant upon a finding of probable cause serves as a
protection for both the service provider and the customer's
privacy interests. SeeMatter of Warrant to Search a Certain EMail Account Controlled
&
F.3d 53, 56 (2d Cir. 2017)
Maintained by Microsoft Corp., 855
("[S]ince the [warrant] was issued by
a neutral magistrate judge upon a showing of probable cause
[the] warrant has satisfied the most stringent privacy
protections our legal system affords."). The Court reviews the
Magistrate Judge's findings de nova to evaluate if the findings
were correct. See Matter of Application of United States of Am.
for an Order of Nondisclosure Pursuant to 18 U.S.C. §2705(b) for
Grand Jury Subpoena# GJ2014031422765,
(D.D.C. 2014)
41 F. Supp.
3d 1,
4-5,
8
(reviewing a magistrate judge's non-disclosure
order under 18 U.S.C. § 2705(b) de novo); see also In re Search
of Info. Associated with [redacted]@gmail.com that is Stored at
Premises Controlled by Google, Inc., No. 16-MJ-00757 (BAH), 2017
WL 3445634, at *2-5 (D.D.C. July 31, 2017)
5
(reviewing a
magistrate judge's issuing of a warrant under 18 U.S.C. § 2703
de novo) .
III.
"The term prior restraint is used to describe
administrative and judicial orders forbidding certain
communications when i ssued in advance of the time that such
communications are to occur.
U.S. 54 4, 550
( 1993)
11
Alexander v. United States, 509
(internal quotation marks and citation
omitted). Prior restraints on protected speech are subjec t t o a
"heavy presumption 11 against their constitutional validity and
"carr[y] a heavy burden of showing justification for the
imposition of such restraint[s] . 11 Org . for a Better Austin v.
Keefe, 402 U.S. 415,
Spring,
419
(1971); accord Lusk v. Vill. of Cold
475 F.3d 480, 485 (2d Cir. 2007). Content-based prior
restraints are generally subject to strict scrutiny. See United
States v. Playboy Entm't Grp., Inc., 529 U.S . 803, 813 (2000).
Under strict scrutiny review,
"the Government must demonstrate
that the nondisclosure requirement is narrowly ta i lored to
promote a compelling Government interest, and that there are no
less restrictive alternatives that would be at least as
effective in achieving the legitimate purpose" of the
Government. John Doe, Inc. v. Mukasey,
Cir. 2008), as modified (Mar. 26, 2009}
marks and citat ions omitted).
6
549 F.3d 861, 878
(2d
(internal quotation
Assuming, without deciding that the NDO must satisfy the
strict scrutiny test,
4
the NDO survives strict scrutiny review
because it is narrowly tailored to protect a compelling
Government interest and there is no less restrictive alternative
that would be at least as effective in serving the Government's
legitimate purpose. The Government has a compelling interest in
maintaining the secrecy of an ongoing criminal investigation.
The investigation of crime is a core government function that
secures the safety of people and property. "[T]here are some
kinds of government operations that would be totally frustrated
if conducted openly. A classic example is that the proper
functioning of our grand jury system depends upon the secrecy of
grand jury proceedings." Press-Enter. Co. v. Superior Court of
California for Riverside Cty., 478 O.S. 1, 9 (1986). The
Government has a compelling interest in maintaining the
confidentiality of the existence of the Warrant, and the
specific accounts being investigated, in order to avoid
revealing the existence of its ongoing criminal investigation of
individuals and entities who may be involved in the very conduct
under investigation. Giving notice of requests to third parties
"would substantially increase the ability of persons who have
someth i ng to hide to impede legitimate investigations.
4
fl
The Government concedes that for the purposes of these motions, the
NDO is content-based and strict scrutiny applies.
7
S.E.C. v. Jerry T. O'Brien, Inc., 467 U.S. 735, 736 (1984).
Thus, the Government's interest in safeguarding the
confidentiality of an ongoing criminal investigation is
legitimate and compelling.
Further, the NDO is narrowly tailored because it prohibits
only the disclosure of the existence of the Warrant and of the
investigation. The plaintiff is still free to speak publicly
about search warrants and government investigations, as long as
it does not disclose the existence of this Warrant and the
Government's investigation. The NDO is also limited to a oneyear time period.
The plaintiff argues that the NDO does not appear to be
narrowly tailored in scope and duration because:
(1) the NDO
failed to select any particular statutory factor and lists that
one "and/or" another of the statutory factors under 18 U.S.C.
§ 2705(b) were present, which suggests that the Government
failed to substantiate a specific reason to justify the NDO and
the Magistrate Judge did not consider whether the NDO was
narrowly tailored to serve any spec i fically articulated
interest;
(2) the NDO does not reveal that the Government
provided any facts and evidence in its ex parte application
about why the harms may occur;
(3) the NDO does not indicate why
a less restrictive alternative does not exist, specifically the
ability of the plaintiff to tell the general counsel or other
8
legal representatives of its enterprise customers about the
Warrant; and (4) the NDO fails to explain why an NDO of shorter
duration would be insufficient to achieve the Government's
interests. None of these arguments have merit.
The Court turns to the plaintiff's first two arguments.
When the Government makes an application for non-disclosure
under 18 U.S.C. § 2705(b), a court is required to issue a nondisclosure order to the person or entity to whom the warrant is
directed, if it finds that there is "reason to believe that
notification of the existence of the warrantll would result in at
least one of the statute's five enumerated harms. In its search
warrant application, the Government provided a lengthy affidavit
setting out particularly detailed evidence regarding the
relationship of the data sought to the subjects of the
investigation and to activities involved in the alleged crime.
5
The affidavit also set out sufficient detail as to why premature
disclosure of the Warrant and the existence of the investigation
could reasonably lead to the destruction of or tampering with
evidence and intimidation of potential witnesses, thus making
information inaccessible to investigators, and how the
disclosure could seriously jeopardize the ongoing investigation.
Significantly, the Government did not rely on other statutory
5
The details provided in the affidavit support the Magistrate Judge's
finding of probable cause to issue the Warrant.
9
factors,
specifically endangering the life or physical safety of
an individual or flight from prosecution . See 18 U.S . C.
§§ 2705(b} (1)-(2). The three factors listed by the Magistrate
Judge were limited to the bases presented in the Government's
affidavit.
The Magistrate Judge ' s Order was just i fied by the evidence
provided by the Government, which followed the guidance outlined
in the DOJ policy memorandum that the plaintiff cites in its
brief. See Memorandum for Heads of Department Law Enforcement
Components, et al., from Rod J. Rosenstein, Deputy Attorney
Gen., Policy Regarding Applications for Protective Orders
Pursuant to 18 U.S.C. § 2705(b), at 2 (U . S. Dept. of Justice,
Oct. 19, 2017)
(available at https://www . justice . gov/criminal-
ccips/page/file/1005791/download). The Government's submissions
contained specifically articulated interests, not boilerplate
assertions, that justified the issuing of the NDO, and the
Magistrate Judge did not use indeterminate language in the NDO.
Furthermore, the plaintiff acknowledges that i t has not seen the
ex parte application that the Government submitted in support of
its request for the NDO. Thus, the plaintiff's arguments that
the Government's evidence in support of the NDO was insufficient
are unjustified speculation .
With respect to the plaintiff's third argument, the
Government has shown in its affidavit why notifying the general
10
counsel or other legal representa tive of the plaintiff's
enterprise customers about the Warrant would not be a reasonable
alternative and would not be as effective as the NDO. The DOJ
White Paper that the plaintiff cites provides multiple examples
of practical cons i dera tions, such as the inability of law
enforcement "to find a trustworthy point of contact (or,
perhaps, any point of contact) at the enterprise,n that would
leave the Government "with no choice but to seek disclosure
directly from the provider.n U.S. Dep't of Justice, Seeking
Enterprise Customer Data Held by Cloud Service Providers, at 3
(Dec. 2017)
(available at https://www.justice.gov/criminal-
cc ips/file/1017511/download). The supporting affidavit explained
why t hat was true in this case. The Mag·i strate Judge was
justified in concluding that there was reason to believe that
notification of the Warrant and Order would result in several of
the harms specified in t he statute.
Finally, given the scope and complexity of the Government's
i nvest igation as detailed in the supporting affidavit, a oneyear time frame is wholly justified . The plaintiff argues that
one year is longer than necessary to achieve the Government's
interest and cites other statutes, such as 18 U.S.C. § 2705(a),
that allow for periods of shorter delay. A provision in that
statute, 18 U.S.C. § 2 705{a) {1), limits an order delaying the
notification of the existence of a document request under 18
11
U.S.C. § 2703(b) to 90 days, with extensions of the delay of up
to 90 days allowed under§ 2705 (a) (4). However, t he statute
imposes no comparable time limit in this case. The Government
obtained a warrant from Magistrate Judge Wang pursuant to 18
U.S. C. § 2 703(b) (1) (A), which does not require the Government to
notify a subscriber or customer of its reques t when it has
obtained a warran t . Thus, the section of 18 U.S.C. § 2705 that
applies to this case is§ 2705(b), not § 2705(a). Under 18
U.S.C. § 2705(b), a court may enter a non-disclosure order "for
such a period as the court deems appropriate.ll Magistrate Judge
Wang, a neutral magistrate, found that the one-year time frame
was appropriate based on the Government's evidence presented in
its affidavit. The supporting affidavit details a far-ranging
and complex investigation of which these six accounts constitute
only a piece. It is wholly reasonable to conclude that this
investigation would take at least one year to complete and
premature disclosure would trigger the consequences sought to be
prevented by the NDO. Judge Preska has recently rejected similar
arguments asserted by Google to the effect that:
(1) Google
should have the option to notify an officer at the enterprise of
the existence of the Government's document requests and (2) the
one-year duration of two NDOs was too long. See In re Grand Jury
Subpoena to Google LLC Dated March 20, 2019, Nos. 19 Mag. 2821,
19 Mag.
3232
(LAP), slip op. at 32-35 (S.D.N.Y. June 3, 2019) ,
12
appeal filed, No. 19-1891 (2d Cir.)
(finding that two NDOs
prohibiting disclosure of two SCA orders survived strict
scrutiny).
The Government also argues that the plaintiff's First
Amendment Rights are limited in this case because the plaintiff
learned of the underlying investigation only through the Warrant
and NDO and not from independent sources. The Government
analogizes the type of analysis to be applied to the standards
used to assess confidentiality orders in civil litigation, a
standard less exacting than strict scrutiny. See Seattle Times
Co. v. Rhinehart, 467 U.S. 20, 33 (1984). Because the Government
has assumed for the sake of argument on these motions that
strict scrutiny should apply in this case and because the NDO
passes strict scrutiny, it is unnecessary to reach any
challenges to the strict scrutiny standard to determine the
validity of this NDO.
IV.
The plaintiff also moves to stay the deadline for producing
outstanding information responsive to the Warrant. "[T]he
issuance of a stay is left to the court's discretionu but this
"does not mean that no legal standard governs that discretion.u
Nken v. Holder, 556 U.S. 418, 434
(2009}. The legal principles
that a court should consider in granting a stay are
13
(1) whether the stay applicant has made a strong
showing that he is likely to succeed on the merits;
(2) whether the applicant will be irreparably injured
absent a stay; (3) whether issuance of the stay will
substantially injure the other parties interested in
the proceeding; and (4) where the public interest
lies.
Id.
The plaintiff cannot "bear the burden of showing that the
circumstances justify an exercise of [the court's] discretion.u
Nken, 556 U.S. at 433-34. For the reasons explained above, the
plaintiff cannot show a likelihood of success on the merits of
its motion to vacate or modify the NDO. Indeed, that application
is denied. Any restrictions on the plaintiff's speech is
justified by the Government's compelling interest. Moreover, the
plaintiff has not shown that the issuance of a stay will not
substantially injure the Government. The Government argues,
persuasively, that any further delay in the production of the
materials responsive to the Warrant increases the risk that
evidence will be lost or destroyed, heightens the chance that
targets will learn of the investigation, and jeopardizes the
Government's ability to bring any prosecution in a timely
fashion. The public interest is served by prompt compliance with
the Warrant.
In any event, the plaintiff sought a stay of the deadline
to produce information pertaining to the enterprise accounts
14
pursuant to the Warrant only until the reso l ution of the
p l aintiff 1 s challenge to th e NDO . Because that challenge has now
been resolved, the plaintiff's motion for a s t ay is moot and is
therefore denied . The Government's motion to compel production
is granted .
CONCLUSION
The Court has considered all of the arguments ra i sed by the
parties . To the extent not specifically addressed, the arguments
are either moot or without merit. For the reasons stated above,
the plaintiff's motions to vacate or modify the NDO and to stay
the deadline for producing outstanding information responsive to
the Warran t are denied . The Government ' s motion to compel the
immedia t e compliance with the production obligations of the
Warrant is granted. The Cle r k is directed to close this case,
Docket No . 19-mc-478.
SO ORDERED.
Dated :
New York , New York
November 2 , 2019
Uni ted States District Judge
15
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?