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Case number 24-5089, being raised, sealed case.

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Mr. Holtzblatt for the appellant, Mr. Lenners for the appellee.

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May I please the court?

[00:00:14] Speaker 02:
Ari Holtzblatt for X. The district court committed two errors.

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Its omnibus non-disclosure order defies 18 USC 2705B in the First Amendment, and the court violated due process by adjudicating X's challenge to the order

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based on ex parte materials.

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The government's 11th hour disclosure of the delegating order underscores both errors.

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The order was withheld even though it contains nothing requiring secrecy.

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And now that we have it, we've learned that it applies to any subpoena issued for the account of any user on any platform in this entire investigation for an entire year, and that it empowers the government, not the court, to determine whether disclosing a specific subpoena

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will result in a statutory harm.

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That's unlawful.

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Section 2705B requires the court to make that assessment, not the government.

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And it requires the court to assess nondisclosure for specific subpoenas, not hypothetical ones.

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Now, that's clear first from the text of the statute, which says the court orders nondisclosure if, quote, it, meaning the court, determines that statutory harms will result

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from disclosing, quote, the subpoena.

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The language tells us who needs to make the assessment, the court, not the government, and what needs to be assessed.

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The subpoena, which means a document that is particular, in existence, not hypothetical.

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Now, there are other cues from the statutory scheme.

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If we compare this to other statutory schemes, 2705A and 2709, for example, allow the government

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alone to demand non-disclosure.

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The Wiretap Act bars disclosure for all wiretaps out of recognition that informing the target of a wiretap will always impede its effectiveness.

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They do not, Your Honor, or I don't know that they do because, and I think the Wiretap Act is a good example.

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Your First Amendment argument here, treat them as prior restraints.

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You made a First Amendment argument here separate from your statutory argument.

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Yes, I think they would.

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I think, for example, the Wiretap Act would be a prior restraint.

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It would have to satisfy strict scrutiny.

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I think it could.

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And the reason is because informing the target of a wiretap is always

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going to impede its effectiveness.

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If someone knows their phone is tapped, then they're going to change the way they speak on the phone.

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And so a categorical judgment serves the compelling interest that the government has.

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That's not the case.

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In fact, Congress made that judgment.

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That's not the case in Rule 6, where witnesses

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generally are permitted to speak about the fact that they've received process.

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And it's not true in 2705, which serves a very important 2705B is serving very important purposes, which is balancing the intrusion on the rights, both of the provider and of the users against the government's, maybe the government's compelling need in

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particular circumstances.

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And so I think where the statutory scheme is serving a different purpose, it's going to operate in a different way.

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And the First Amendment interest will play out differently.

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On the statutory question, I just want to understand, there's several factors, I think, you listed that, in your view, make this NDO improper.

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And one of them is just that there's no specific subpoena in it.

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So just to understand the contours of that, imagine if the government came forward to the judge and said,

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In about a month, we're going to get one specific subpoena getting, but it's a very specific.

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They can describe it at the time.

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Can't a judge in that situation make the determination the statute requires?

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There's reason to believe disclosing that subpoena will cause a listed harm.

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Is it so I'm trying to ask you know, I understand that it's ex ante enough or is it something else about this case?

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There's two points I'd like to make about that, your honor.

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So the first is that even if and I'll address your your honor's hypothetic, but even if that were the case, it would not justify the delegating order.

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in this case, because it's far broader.

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But with respect to your honor's hypothetical, I still think it wouldn't be.

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We don't think that's the best reading of the statute.

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And I want to explain why, which is that facts change.

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Circumstances change.

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A concern that a target may destroy evidence or intimidate a witness or flee might be true if the target is

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on the loose and if they've been arrested, it would no longer be true.

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It may be true if the investigation is covert.

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It may no longer be true if the if the target has been indicted.

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What's the difference on that in that respect from any NDO because the court is always

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making a judgment that not only it might be next week before they serve the subpoena, but they're also deciding an amount of time for which the subpoena can't be disclosed.

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And at least in some respect, there's always something forward-looking and predictive about what the court is doing, isn't there?

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I think that's true, Your Honor.

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But I do think the statute, I mean, I think the text of the statute strikes the balance as to the way this is supposed to work.

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So I suppose the scheme could say,

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The government can come in and say, we want a general non-disclosure regime for this investigation.

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I think that's basically what the not delegating order did here.

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And then we're going to leave it to the government to make assessments on a subpoena basis.

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That's not, I think, the answer the statute provides.

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The answer the statute provides is it says, ex ante, you have to come in with particular, the subpoena, with particular legal process, and make that assessment in advance.

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And it's true that there will be contexts where there's some future-oriented look.

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In fact, I think that generally that's why now NDOs have to be time-limited.

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But I think the more we particularize it, the more we make it in advance, the more it makes sense.

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And I think the statutory context reinforces this.

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So 2705B applies not just to subpoenas, but it also applies to warrants and to deorders.

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With respect to warrants and deorders, the government...

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It's an order that's authorized under 2703 D of the statutes.

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I'm sorry.

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It should not have used the language.

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So there are three types of legal process that are available under the Story Communications Act.

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A subpoena, the government can issue by itself.

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But the 2703 D order and a warrant, the government has to come to the court to seek authorization.

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And so naturally, the government seeks nondisclosure with respect to a particular instrument at the same time.

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And I think it's natural to read

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2705B as working the same way for all three types of legal process that are covered by the statute.

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And there's good reason for this.

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The purposes that are being served by the statute is to permit nondisclosure, yes, in a narrow set of circumstances.

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But Congress is recognizing that this is impacting the rights of providers and users.

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Again, a nondisclosure is orders of prior restraint.

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the rights of the provider, but it also impacts the rights of the user, because if they don't know about the subpoena, they're unable to protect.

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I'm not sure you're in the shoes to speak for them or any injury to them.

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I think it matters for how we construe the statutory scheme.

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So we cited the House report on 2705B, specifically speaking about 2705, and it said one of the purposes

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of Section 2705 is to provide users confidence that they would have an opportunity to protect their own rights.

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They lose that opportunity to protect their own rights if the provider is not permitted to disclose that they've received that subpoena.

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And so I think it's important that when we construe the statutory text, we're not suggesting that we have standing to assert the rights of the users, but in construing the statutory text, I think it matters what Congress's purposes were with the statute.

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And then Judge Garcia's question.

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The government went to court and said, we've got a grand jury engaged in a very, very confidential, but very intense investigation.

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And we are going to have to issue 20 subpoenas.

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And we're going to do it in the next two weeks.

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and then gives a general description obviously to support what those subpoenas are.

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And they cannot be disclosed.

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This is a grand jury.

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Disclosure will reveal the existence of a grand jury and the direction of a grand jury and witnesses and or targets.

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You're one or the other.

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You're getting one of these of the grand jury.

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So uniformly across the board, that's going to happen in these cases.

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And we've got this list of subpoenas we're going to have to issue.

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Would that be permissible under this statute?

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And if not, what in the text forecloses that?

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So I think, again, that's not what the delegating order does here.

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I'm not saying that's true.

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OK.

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But I will.

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It's biomedical, to be clear.

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Right.

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So I think if the government has its 20 subpoenas and it knows which providers and for which accounts and for which users, then it can attach those subpoenas to the non-disclosure order application.

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And I think that would be fine.

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And the court may disagree.

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The court may disagree that,

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It's sufficient if you just provide a description of every meet and bound of the subpoena without actually stapling the subpoena to the application.

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That's not my read of the statute.

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But the court may well disagree with my read of the statute.

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I do think you have to have described who the account is, who the user is, who the platform is, when it's being served, and why the statutory factors

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are satisfied with respect

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364 days from now, I think that predictive judgment is challenging to make.

[00:10:47] Speaker 04:
Well, let me ask you, counsel, then, following up on your response to Judge Millett's question, what is your criticism, then, of the district court's analysis here saying that taking the order that is now moved

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by characterizing what information was provided to the magistrate judge.

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It could have been done in a way that didn't disclose the type of detail that you are suggesting is desirable, but it was sufficient to meet the statutory requirement

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And the district court went through that sort of step by step.

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He dismissed your, you know, article argument and focused on one of the points here about who decides.

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But I need to understand exactly what your criticism, legal criticism is of that approach to an omnibus order.

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Your Honor, I think what matters is the breadth of the order.

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This particular order applies to any subpoena issued for the account of any user.

[00:12:20] Speaker 04:
No, I'm with Judge Millett.

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All right, she's narrowed it down to 20.

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All right, the district court was talking about two.

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So I'm just trying to understand.

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The district court took the position it didn't adopt the interpretation of the statute you were reading.

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that anything with less particularity would fail either as a matter of statute or constitutional law.

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I understood that the district court to have said that the order that the omnibus order that is reflected at supplemental appendix one to two.

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is consistent with the statute in the First Amendment.

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The omnibus order that is found in supplemental appendix 1-2, and we didn't argue this to the district court because this order was not disclosed to us until the red brief on appeal, that order is not limited to a subpoena that was issued to acts for the particular accounts in this case.

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last for an entire year.

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It covers the entire investigation.

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It covers any account on any platform.

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And to just- No, no.

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That's why I'm asking you to give us your argument now that you've seen this order.

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You know, the district court says these things are being issued all over the country.

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And I understand maybe not so far approved other than maybe

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in one of our earlier cases, but he talks about you have a situation that identifies the specific category of providers.

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You recall that, correct?

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The specific category of subpoenas describing the particular legal process and with

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to be used only with the same set of facts.

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I'm just trying to understand how far your argument goes.

[00:14:27] Speaker 02:
Well, yes, Your Honor.

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I think what we're looking at is on supplemental appendix page two, these are the facts that are listed at the supposed limits.

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This is in paragraph five.

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Yes.

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The only specific facts that are identified is that the subpoena is part of the government's investigation, that's the entire investigation, that the account

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Cut is covered by the story communication act so that's the entire statue.

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That it's rather the account is relevant the investigation again that's the entire investigation that it's a subpoena that's any type of subpoena and quote the disclosure of the existence of the subpoena would result in potential targets.

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attempting to evade apprehension or destroy or encrypt evidence or otherwise seriously jeopardize the investigation.

[00:15:13] Speaker 04:
So to the extent that- I understand that counsel, but help me here.

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And maybe you just don't want to answer this question.

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When the district court looked at this, he said, he wasn't going to deal with hypothetical facts, hypothetical subpoenas, but take as a template

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the order that was issued in this case, he at least suggested not that the one that you're looking at now and that we're looking at now, but this is not a categorical decision, that there could be an omnibus order that would meet the statutory requirements as set forth by Congress.

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Well, Your Honor, I guess, I'm sorry if I'm not answering the question, but what I understood the district court to have said is that this order, which I just quoted, complies with the statute in the First Amendment.

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And I think there are two problems with that.

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The first is that the last language I read, those are the 2705B statutory factors.

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So the way that this order is working, it is saying not that the court is assessing those factors, it's saying the government is going to assess those factors.

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The text of the statute says it, the court, has to determine that those factors are satisfied.

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So I think that's- Of course, but I thought Judge Millett's question was trying to get you to respond to the notion that the government files a request

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that lists 20 targets, that lists 20 parties like your client, and it is a year.

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But it's very clear what the government is focusing on.

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So Your Honor, I think that would not be this order or this case.

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And I think we would disagree that that would be authorized under the statute, because we think the statute

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requires that the subpoenas be in existence at the time that the assessment is made.

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But even if the court disagrees with me about that, I think we would still need to reverse here because of the language that I just read, which actually assigned the task of evaluating the factors not to the court, but to the court.

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Yes.

[00:17:33] Speaker 04:
No, I understand that argument.

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Yes.

[00:17:36] Speaker 01:
I just wanted to clarify one thing.

[00:17:39] Speaker 01:
I think this is right.

[00:17:40] Speaker 01:
But your position doesn't really have anything to do with it being multiple subpoenas.

[00:17:44] Speaker 01:
If there were 50 subpoenas in hand, they could come and get a single order, at least on your reading of the statute that you're passing in this case.

[00:17:52] Speaker 02:
Yeah, I agree, Your Honor.

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The two restrictions that I'm identifying are the court, not the government, needs to make the assessment.

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The subpoenas need to be particular and exist.

[00:18:02] Speaker 02:
You can do that with more than one subpoena.

[00:18:04] Speaker 01:
Can I ask about another issue?

[00:18:06] Speaker 05:
Just to follow up on Judge Wright, just super quick.

[00:18:08] Speaker 05:
So is your position now an as-applied challenge only?

[00:18:12] Speaker 05:
For obvious reasons, it was facial in district court.

[00:18:16] Speaker 02:
I guess I'm not sure that our challenge has ever been anything other than as-applied, but it was.

[00:18:20] Speaker 02:
But I agree that our challenge is about the omnibus order which authorized the NDO that was issued in this case.

[00:18:28] Speaker 02:
I'm sorry, just clear.

[00:18:29] Speaker 01:
No, big if.

[00:18:31] Speaker 01:
If we agreed with you that this order is not authorized under the statute, would there be any reason to address any other issue in the case, including this ex parte issue?

[00:18:43] Speaker 02:
Thank you.

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And I realize I'm over time, so I apologize for that.

[00:18:46] Speaker 02:
But I'll obviously answer your question.

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I suppose there wouldn't if the government

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in answer to your question says, if we lose, we will not seek for hearing, and we will not petition for certiorari.

[00:19:00] Speaker 02:
I'd be surprised if my friend is able to make that representation.

[00:19:04] Speaker 02:
But I think the litigation is ongoing.

[00:19:07] Speaker 02:
And as we've already learned from the presentation in the briefing in this case, some of what has been held ex parte bears on the statutory questions that we've been debating.

[00:19:19] Speaker 02:
And I would be, it's actually why we have a pending, I think it was referred

[00:19:24] Speaker 02:
There's a pending motion regarding the ex parte materials where I think our position is even stronger now that facts have changed in the case than it was even in the district court.

[00:19:34] Speaker 01:
I guess my question is because your access to the ex parte evidence is not, you know, it's not a FOIA case.

[00:19:40] Speaker 01:
It's not disclosure for disclosure's sake.

[00:19:43] Speaker 01:
You want and you move for access to that evidence so you could challenge the order.

[00:19:47] Speaker 01:
And so it strikes me that, you know, if our judgment said,

[00:19:53] Speaker 01:
gets a little bit weird because the case is moved but you know reversed you win.

[00:19:58] Speaker 01:
I don't think a court would ever issue a judgment that also says and even if not we would remand for consideration of the ex parte evidence so I don't want to.

[00:20:11] Speaker 02:
I would love to win on our first issue.

[00:20:13] Speaker 02:
I agree.

[00:20:14] Speaker 02:
I do think there's two reasons.

[00:20:17] Speaker 02:
And if that's the judgment of the court, I understand.

[00:20:20] Speaker 02:
I understand.

[00:20:20] Speaker 01:
But I would absolutely proper right to give dicta about something that's not an alternative holding.

[00:20:27] Speaker 01:
Well, so I sort of a lesser fallback argument.

[00:20:30] Speaker 02:
So I guess I agree.

[00:20:32] Speaker 02:
I can see where the court's coming from.

[00:20:34] Speaker 02:
I'll tell you two reasons why for counter consideration.

[00:20:37] Speaker 02:
So number one.

[00:20:40] Speaker 02:
It appears to me, I can't fully answer this question, but it does appear to me that there are materials within the ex parte materials that may bear on the statutory question.

[00:20:51] Speaker 02:
And if the litigation were to continue on banque or statutory, I would not want to be disabled from addressing those arguments by having access to those materials.

[00:21:02] Speaker 02:
The second is, as your honor noted, we are incapable of repetition, innovating review,

[00:21:09] Speaker 02:
land already.

[00:21:10] Speaker 02:
And so I don't think we would be exactly an advisory opinion.

[00:21:13] Speaker 02:
I think the moodiness issue is the moodiness issue.

[00:21:16] Speaker 02:
But I understand the court's perspective.

[00:21:18] Speaker 02:
Would the court like me to address the ex parte issue as well?

[00:21:21] Speaker 02:
I know I'm well over my time.

[00:21:23] Speaker 05:
I don't want to do that.

[00:21:24] Speaker 05:
It's fine.

[00:21:24] Speaker 05:
I still have some more questions about the statutory argument.

[00:21:29] Speaker 05:
And that is,

[00:21:33] Speaker 05:
If the government were to come in, there's hypotheticals.

[00:21:36] Speaker 05:
You don't have to decide if this is this one or not.

[00:21:40] Speaker 05:
But we're to come in and say, grand jury, press of time, very urgent here.

[00:21:47] Speaker 05:
And we are going to be issuing dozens of subpoenas every week.

[00:21:57] Speaker 05:
and they will go to one of the statutory providers here, but we still haven't figured out exactly which ones, but it will be, and you can limit the order to those that are statutory qualifying providers.

[00:22:10] Speaker 05:
And we will agree to the time limit.

[00:22:13] Speaker 05:
But Your Honor, for efficiency reasons, here's our argument as to why a non-disclosure order will be acquired in every one of those cases, because this is a grand jury.

[00:22:26] Speaker 05:
and disclosure of a grand jury, the fact of a subpoena issuing will in all of those cases reveal the existence of the grand jury and will reveal target and or witness for the grand jury and direction of the grand jury's investigation.

[00:22:52] Speaker 05:
Obviously for some reason the grand jury stops working

[00:22:55] Speaker 05:
We, of course, will not come back with any more subpoenas, so it will be a non-issue.

[00:23:00] Speaker 05:
But if the order is gonna look exactly the same as the non-disclosure order, it'll be a common one that you'll issue in every case.

[00:23:08] Speaker 05:
The findings will be the same because that is the nature of grand jury operations or this grand jury's operations.

[00:23:15] Speaker 05:
Just say this grand jury's operations.

[00:23:16] Speaker 05:
That is the nature of them.

[00:23:18] Speaker 05:
You just can't be revealing this stuff while they're underway.

[00:23:21] Speaker 05:
I don't care if a witness says something later.

[00:23:23] Speaker 05:
There will be no official governmental recognition.

[00:23:26] Speaker 05:
of the existence of this grand jury, its operations, its targets, its witnesses, and the course of its investigation.

[00:23:34] Speaker 05:
Why can't a court, as long as the court makes a judgment upfront that any subpoenas issued in the next year, I'm probably going to want to issue it on day three before since it'll be disclosed on day 365 or 366, but any subpoena issued as part of this grand jury

[00:23:56] Speaker 05:
Grand jury number doing the grand jury investigation against statutorily authorized providers is going to present the exact same harm each and every time.

[00:24:08] Speaker 05:
So it's not transferring the decision to them.

[00:24:10] Speaker 05:
The judge has made the harm finding.

[00:24:13] Speaker 05:
The judge has said only statutorily authorized providers and the judge has said what the time limit is.

[00:24:22] Speaker 05:
I don't see anything in the statutory tax that forecloses that, and what is wrong with that?

[00:24:28] Speaker 02:
So, Your Honor, efficiency is not one of the five statutory factors under 2705Bs.

[00:24:34] Speaker 05:
I'm told you they've made the qualifying statutory findings about it's going to imperil a grand jury investigation.

[00:24:41] Speaker 05:
That's what I meant by exposing the existence of it, the direction, the targets, the witnesses.

[00:24:45] Speaker 02:
Well, Your Honor, I think it's, so I don't think that's what the, I don't think that's the statutory scheme.

[00:24:50] Speaker 02:
The statutory scheme says the court needs to assess the particular subpoena.

[00:24:53] Speaker 05:
And that really requires- We don't have the argument.

[00:24:55] Speaker 02:
But even if the court doesn't buy the argument, it does require that the court itself be the one to make the assessment.

[00:25:00] Speaker 05:
And I think the fact... And I'm telling you, the court has made the assessment.

[00:25:03] Speaker 05:
It's just made it in advance because nothing is going to change.

[00:25:07] Speaker 05:
It is a common... I take this to be sort of the district court's rationale.

[00:25:11] Speaker 05:
It's going to be the same harm will exist in every one of these as long as it's this grand jury with this investigation.

[00:25:18] Speaker 05:
But I'm going to give you a time limit.

[00:25:19] Speaker 02:
Well, Your Honor, I'd like to make two observations about that.

[00:25:23] Speaker 02:
The first is that that's actually not even how Rule 6 works.

[00:25:26] Speaker 02:
So Rule 6, with respect to... So I think that the notion that a witness discovering that there's a grand jury somehow automatically impedes the investigation is actually inconsistent with how Rule 6 works.

[00:25:39] Speaker 02:
And so I think it's problematic in that regard.

[00:25:42] Speaker 05:
And the second point I'd like to make, Your Honor, is that I think this is... Witness can come out and say, I got something, at which point you have no value in telling them anything, right?

[00:25:51] Speaker 05:
There's no reason for you to be telling them.

[00:25:53] Speaker 05:
They're going to find out that they've been the target of this.

[00:25:56] Speaker 05:
And all they have revealed to the public is that.

[00:25:59] Speaker 05:
And they may be...

[00:26:00] Speaker 05:
True, they may be lying, but we, you know, witnesses say things all the time and we don't just draw back the curtain on the grand jury or its direction or its investigation of who else is getting targeted.

[00:26:10] Speaker 05:
That doesn't open the door to this information that's talk witnesses.

[00:26:14] Speaker 05:
And this is all going to be pre-witnesses receiving anything.

[00:26:18] Speaker 02:
That's right, Your Honor.

[00:26:20] Speaker 02:
But X is a grand jury witness in this context.

[00:26:23] Speaker 02:
And so what I'm what I'm saying, Your Honor, is that the mere fact that people learn

[00:26:26] Speaker 02:
of the grand jury investigation is not automatically the statutory factors under 2705B.

[00:26:31] Speaker 02:
And I think an example would help.

[00:26:34] Speaker 05:
They learn that someone has said, some private person has said there's a grand jury and they asked me for something.

[00:26:42] Speaker 05:
That's all they learn.

[00:26:45] Speaker 05:
You want to go talk to the targets of the subpoenas themselves, or they know anything.

[00:26:52] Speaker 02:
Well, Your Honor, an example I think would help illustrate this, because the breadth of the delegating order in this case is not limited to accounts of targets.

[00:27:00] Speaker 02:
It's for any account.

[00:27:01] Speaker 02:
So let me give Your Honor an example.

[00:27:03] Speaker 05:
I guess for any targets or witnesses.

[00:27:05] Speaker 02:
Or anyone.

[00:27:06] Speaker 02:
So Your Honor, anyone's account.

[00:27:08] Speaker 02:
So let me give Your Honor an example.

[00:27:11] Speaker 05:
Whatever the standard is for your injuries, they have to have a plausible relationship to whatever their investigation is.

[00:27:17] Speaker 02:
That's right.

[00:27:17] Speaker 02:
It has to be relevant to the investigation.

[00:27:19] Speaker 02:
But that's hardly a limit.

[00:27:20] Speaker 02:
And Your Honor, an example I think would help illustrate this.

[00:27:22] Speaker 02:
Imagine that the government comes to the court and says, if the target of the investigation learns of this investigation, then they will destroy evidence that they may flee.

[00:27:32] Speaker 02:
And so if that might justify a nondisclosure order for the account,

[00:27:36] Speaker 02:
the target.

[00:27:37] Speaker 02:
Now let's imagine, Your Honor, that the government is seeking account information about your account.

[00:27:42] Speaker 02:
And you're not the target of the investigation.

[00:27:44] Speaker 02:
If you were informed by X that a subpoena had been issued for information about your account, it would not automatically tell you.

[00:27:53] Speaker 02:
There's nothing on the cover of the subpoena that tells you it's an investigation into me.

[00:27:59] Speaker 02:
And there's nothing about that that automatically says that you will tell me.

[00:28:03] Speaker 02:
And so the rationale for having nondisclosure

[00:28:06] Speaker 05:
for subpoena into my account the target is necessarily different than the rationale for nondisclosure as to you but it's the one that's constant across these and that has seriously impeded the investigate i forget the exact statutory phrase but seriously interfere with the investigation

[00:28:20] Speaker 02:
But more facts.

[00:28:22] Speaker 05:
By revealing to me that I've received this, that my account received this subpoena, that there is some grand jury that's somehow interested in me.

[00:28:34] Speaker 05:
And there's some direction.

[00:28:37] Speaker 05:
And if you reveal that one, and you reveal that one, and you reveal that one, and you reveal that one, and you reveal that one, you say you get, what, hundreds of these a week or a month?

[00:28:45] Speaker 02:
That's right.

[00:28:47] Speaker 05:
And I'm going to reveal all of these.

[00:28:49] Speaker 05:
and say, you know, I got these under this grand jury, you're going to reveal the exact mosaic of the investigation.

[00:28:55] Speaker 05:
Well, Your Honor, the notion that the recipient can be trusted to discern when it's safe to release one or the other.

[00:29:02] Speaker 05:
I think it's fair for a judge up front to say we just aren't going to have that happen.

[00:29:07] Speaker 02:
Well, it's not the recipient shouldn't be making that judgment.

[00:29:09] Speaker 02:
And the government shouldn't be making that judgment.

[00:29:11] Speaker 02:
The court needs to, but the analysis.

[00:29:14] Speaker 05:
We can't do it up front and say it's the nature of this grand jury's proceeding.

[00:29:19] Speaker 05:
Why is that not enough of an answer?

[00:29:21] Speaker 02:
Well, it can't because otherwise that would prove far too much.

[00:29:24] Speaker 02:
The statute is supposed to be the same House report that I pointed Your Honor to.

[00:29:28] Speaker 02:
says that the non-disclosure orders are supposed to be provided in quote, a narrow set of circumstances.

[00:29:35] Speaker 02:
If just revealing the fact of a grand jury without knowing, if you're told that there was a subpoena for your account, you have no idea necessarily, you might, but you have no idea that it's an investigation into me.

[00:29:48] Speaker 02:
And so the government to justify non-disclosure

[00:29:51] Speaker 02:
for the second subpoena.

[00:29:53] Speaker 05:
I know it's an investigation that I'm somehow now related to.

[00:29:55] Speaker 02:
That's not enough, Your Honor.

[00:29:56] Speaker 02:
The statute requires more than that.

[00:29:58] Speaker 02:
If the statute was satisfied simply by learning that there was a grand jury investigation, then it would radically... Someone that it's interested in, either as a witness or a target.

[00:30:07] Speaker 02:
That would radically transform the statute.

[00:30:08] Speaker 02:
The statute is supposed to be limited to circumstances where there is a reason to believe that the person who will learn of the subpoena will impede the investigation.

[00:30:17] Speaker 02:
You're going to need specific facts.

[00:30:20] Speaker 05:
If you start telling everybody, there's a lot more information that's leaked out there.

[00:30:25] Speaker 05:
It's not as though you're just going to come tell me.

[00:30:27] Speaker 05:
You're going to tell every single person.

[00:30:30] Speaker 05:
That's your First Amendment claim to tell it to everybody.

[00:30:34] Speaker 05:
And that you're saying the statute allows you to tell it to every single person when you get hundreds of these.

[00:30:39] Speaker 02:
The government needs to actually show that with evidence that that problem would exist.

[00:30:43] Speaker 02:
Now, there may be circumstances where that's true, and there's others where it's not.

[00:30:48] Speaker 02:
My proposition, which is the premise of the statutory scheme, is that this is a serious intrusion on both the rights of providers and on the rights of users.

[00:30:57] Speaker 02:
The purpose of this statute was to ensure that the government could obtain non-disclosure when it was truly necessary under the limited statutory factors that are listed, but also to balance that against the intrusion that it's placing on providers who are facing a prior restraint and on users who are losing their opportunity to protect their own rights.

[00:31:16] Speaker 02:
And the reason I'm trying to explain the circumstances may differ when, depending on whose account is at issue,

[00:31:24] Speaker 02:
depending on the factual circumstances, when the disclosure occurs, whether someone has been arrested by that point, or there has been a publicity around the investigation, is because the facts that are particular to the subpoena matter to the assessment the court needs to make that the statute requires.

[00:31:43] Speaker 05:
I assume these non-disclosure orders can go be attached, assuming the appropriate statutory showing is made.

[00:31:51] Speaker 05:
The subpoena is coming from any corner of the government, right?

[00:31:57] Speaker 02:
The court needs to, the nondisclusion order needs to be issued by the court on application by the government.

[00:32:07] Speaker 05:
I understand, but like the subpoenas to which they could attach could come from all manner of investigatory, civil or criminal investigatory.

[00:32:14] Speaker 02:
I believe that's correct.

[00:32:15] Speaker 05:
Right.

[00:32:16] Speaker 05:
And so my question is focused very narrowly as a district court did here on the subset.

[00:32:23] Speaker 05:
And so it's not empty in the statute to say that there are particular categories of investigative activity in which

[00:32:34] Speaker 05:
uniformly, the harms will be implicated.

[00:32:38] Speaker 05:
And if, and I understand you're saying you don't think that's accurate, but if it were at that uniformly, the disclosure of grand jury subpoenas would impair, if just a second, I've heard your arguments as to why am I not, but if we get past that and say, if we were to conclude that uniformly disclosure of grand jury subpoenas,

[00:33:02] Speaker 05:
would seriously interfere with the grand jury investigation, if we found that, then would there still be a statutory problem with the district court?

[00:33:14] Speaker 05:
I understand your argument.

[00:33:16] Speaker 05:
This is hypothetically clear.

[00:33:19] Speaker 02:
Again, I don't think that would justify the non-disclosure order in this case.

[00:33:21] Speaker 02:
I'm not actually certain, and I want to withdraw my prior statement.

[00:33:26] Speaker 02:
I actually need to confirm

[00:33:28] Speaker 02:
the question of whether the subpoenas could be beyond use in a criminal prosecution.

[00:33:33] Speaker 05:
But I do think that this would not have to be grand juries.

[00:33:40] Speaker 02:
The paradigmatic use of 2703 is in service of a grand jury investigation.

[00:33:47] Speaker 02:
And I think it would be at odds with the statutory language, which speaks of endangering the life or physical safety of individual flight from prosecution, destruction, or tampering with evidence, intimidation of potential witnesses.

[00:34:01] Speaker 02:
Those are the catch-all about seriously jeopardizing an investigation or unduly delaying a trial.

[00:34:06] Speaker 02:
All of these are about criminal investigation.

[00:34:09] Speaker 02:
and the first four in the list are about very serious intrusions.

[00:34:14] Speaker 05:
The construction of evidence can also happen with civil enforcement cases.

[00:34:18] Speaker 02:
Your honor, this statute is intended to deal with criminal investigations and the first four and the first four items in the list I think dictate

[00:34:30] Speaker 02:
the degree of seriousness of intrusion on the investigation.

[00:34:33] Speaker 02:
I mean, we're talking about endangering the life or physical safe, flight from prosecution, destruction or tampering with evidence, intimidation of a potential witness, and then seriously jeopardizing.

[00:34:44] Speaker 02:
So the fact that there may be some, yeah, I understand that it is inconvenient, just as with any witness to a grand jury, that there is some information that may be disclosed.

[00:34:53] Speaker 02:
But that is not consistent with Congress's judgment that this should be available only in a, quote, narrow set of circumstances.

[00:35:00] Speaker 05:
I understand then you're and I may just be right.

[00:35:03] Speaker 05:
I'm really asking the question about how broadly this thing applies.

[00:35:06] Speaker 05:
So maybe it's just criminal matters.

[00:35:08] Speaker 05:
And if it's the legislative history show that it's really only about grand juries.

[00:35:14] Speaker 02:
I don't have an answer to your honest question.

[00:35:16] Speaker 02:
But what I can say is that even

[00:35:19] Speaker 02:
I think the kind of categorical judgment that your honor is describing is not consistent with the statutory text or context, which speaks about the court making assessment with respect to a particular subpoena.

[00:35:31] Speaker 02:
And I don't think that the ability to make categorical judgments, as your honor is describing, would be consistent with the concerns that Congress had to protect the rights of providers and

[00:35:43] Speaker 02:
and users.

[00:35:46] Speaker 02:
And I also certainly don't think it would justify the non-disclosure order, the delegating order, in this particular context.

[00:35:53] Speaker 02:
But, Your Honor, even setting that all aside, even in the context of a grand jury investigation, there are significant circumstances that can change.

[00:36:03] Speaker 02:
The target of the investigation can be indicted.

[00:36:06] Speaker 02:
The target can die.

[00:36:07] Speaker 02:
The target may be arrested.

[00:36:09] Speaker 02:
And so they are no longer at risk of intimidating witnesses or at flight.

[00:36:13] Speaker 02:
Even setting aside, even if the court believes that every grand jury investigation, revealing any grand jury investigation.

[00:36:21] Speaker 05:
What does that mean?

[00:36:22] Speaker 05:
So if the person's indicted, grand jury is not going to issue any more subpoenas with nondisclosure orders, with an omnibus nondisclosure order attached to them after that moment in time.

[00:36:33] Speaker 02:
I wish that were so, Your Honor.

[00:36:35] Speaker 02:
That is not the case.

[00:36:36] Speaker 02:
It has been our experience.

[00:36:37] Speaker 05:
So you're saying one person might be indicted, but maybe others that are still being investigated.

[00:36:41] Speaker 02:
No, even after a particular individual has been indicted, the government may continue to investigate them.

[00:36:46] Speaker 05:
But does the grand jury continue?

[00:36:47] Speaker 02:
The grand jury may continue.

[00:36:48] Speaker 02:
A different grand jury may continue into the same individual, into the same course.

[00:36:53] Speaker 02:
It may be the same course of conduct.

[00:36:55] Speaker 02:
It may be the same.

[00:36:56] Speaker 05:
This really is just my ignorance.

[00:36:58] Speaker 05:
I would have thought once the grand jury indicted a person for a particular crime, the grand jury would no longer investigate that person for that particular crime.

[00:37:06] Speaker 02:
The work of any grand jury may continue into the same course of conduct with respect to the same target.

[00:37:13] Speaker 02:
And this is not hypothetical.

[00:37:15] Speaker 05:
We have lots of experience with the other people are interested in or other crimes that that person may have committed.

[00:37:21] Speaker 05:
But as to that crime, that's right.

[00:37:24] Speaker 02:
But once that individual has if it's if it is a crime as a part of a general course of conduct, once the that individual has been indicted, they know that they are now the subject of governmental investigation.

[00:37:37] Speaker 02:
And even if the even if the government could still at that point justify a nondisclosure order,

[00:37:42] Speaker 02:
The analysis is different.

[00:37:44] Speaker 02:
The assessment is different.

[00:37:46] Speaker 02:
Because now the court needs to assess the factual circumstance in light of the fact that... That's why it's different.

[00:37:52] Speaker 05:
Aren't they going to come back and make the same showing?

[00:37:54] Speaker 05:
They're going to say, look, this grand jury is not done.

[00:37:58] Speaker 05:
We are still looking for compatriots.

[00:38:01] Speaker 05:
for co-defendants, for co-conspirators.

[00:38:03] Speaker 05:
We are still looking for aiders and abettors.

[00:38:06] Speaker 05:
We don't think this may be all the crimes this person did.

[00:38:09] Speaker 05:
And so the last person we want to know is that the people that we are still probing to let them know that we're still working.

[00:38:17] Speaker 05:
I think it's going to be the same thing, that it's going to seriously interfere with the ongoing law enforcement grand jury part of the investigation.

[00:38:25] Speaker 02:
So Your Honor, I think even then the assessment would be different.

[00:38:30] Speaker 02:
But even the justice manual, that's not what the justice manual says, Your Honor.

[00:38:33] Speaker 02:
I mean, even the justice manual, the Department of Justice.

[00:38:36] Speaker 02:
Well, I think it bears on the plausibility of whether or not

[00:38:43] Speaker 02:
the 2705B assessment changes depending on the factual context.

[00:38:49] Speaker 02:
And so the Department of Justice itself says that as an investigation becomes more public, the justification for a nondisclosure order diminishes.

[00:38:59] Speaker 02:
So that's exactly the example I'm providing, Your Honor.

[00:39:02] Speaker 02:
As an investigation.

[00:39:04] Speaker 04:
What we're trying to explore is why you think the statute

[00:39:12] Speaker 04:
is inconsistent with what I'm going to call a very particularized order that's anonymous.

[00:39:25] Speaker 04:
The subpoena doesn't name the person, but the government is doing this massive investigation and you probably know much better than I. I mean, the government's always doing massive investigations and we rarely hear about them and they rarely become public because a lot of them don't result in any indictment or legal process that becomes public.

[00:39:55] Speaker 04:
I mean, that's the very nature of the grand jury.

[00:39:58] Speaker 04:
So I don't know how we can view Congress to have sort of written a statute saying we're changing the nature of the government's ability to investigate through the grand jury, subject to certain limitations.

[00:40:17] Speaker 04:
But I hear you basically

[00:40:21] Speaker 04:
making an argument that I really don't see in the legislative history you cited us to, even if there's a stray comment here or there.

[00:40:32] Speaker 04:
And now you're asking us to

[00:40:36] Speaker 04:
In this case that troubles me about this capable of repetition yet evading review, I mean, one of the concerns I had in the beginning is how are we supposed to make some judgments about things we don't know?

[00:40:53] Speaker 04:
And yet this statute is written with the protection you emphasize that a judicial officer, a judge,

[00:41:04] Speaker 04:
has to approve this omnibus order.

[00:41:10] Speaker 04:
And I think what Judge Millett is doing so much better than I is trying to explore with you just how far you're going to take this.

[00:41:20] Speaker 04:
Because what I hear you saying is, you know, unless you, and I don't mean this in a negative way, but unless you and your clients are informed, nothing can happen.

[00:41:34] Speaker 04:
in the way of criminal investigations?

[00:41:38] Speaker 02:
Well, Your Honor, I think we have a separate argument about our access to the ex parte materials, which I think it's certainly.

[00:41:45] Speaker 02:
Right.

[00:41:45] Speaker 04:
I understand that.

[00:41:46] Speaker 02:
And I'm happy to address that if that's Your Honor's question.

[00:41:50] Speaker 02:
But with respect to the statute itself, I think the question before the court is actually limited to what appears on supplemental appendix pages one to two.

[00:42:00] Speaker 02:
This is the omnibus order that the magistrate judge authorized.

[00:42:05] Speaker 04:
And that omnibus order in paragraph five, Romanette three says- I think counsel, what our questions are getting at, and I can't speak for my colleagues, is we don't want to write something that goes beyond what is necessary to decide this case if indeed we have jurisdiction

[00:42:31] Speaker 04:
under the capable of repetition, yet evading review doctrine.

[00:42:37] Speaker 02:
Yes.

[00:42:37] Speaker 02:
So your honor, let me, maybe I could, I think the, I think the court could decide this case in that perhaps the narrowest way the court can decide this case would be to say,

[00:42:47] Speaker 02:
This is, in this case, the government attained an omnibus order that specifically told the government that it was going to make the judgment that the statute assigns to the court.

[00:42:56] Speaker 02:
That's what appears on supplemental appendix two, paragraph five, Romanette three.

[00:43:03] Speaker 02:
And I think that cannot, there is no way that an order which says, we're making a judgment over this investigation as a whole, and now you, after the fact, the government are going to make those judgments, not the court,

[00:43:16] Speaker 02:
that that can be square with the statute.

[00:43:18] Speaker 02:
We've taken, we believe the statute requires more than that.

[00:43:21] Speaker 02:
I understand that from your honor's questions that you, I may not have persuaded you, but I do think that with respect to the assignment of who has to make this judgment, the fact that the order in this case itself says that the government is going to be the one making that judgment for the course of the entire year for the whole investigation for any subpoena as to any account

[00:43:40] Speaker 02:
cannot be squared with the statute.

[00:43:42] Speaker 02:
Now, Your Honor, you also asked about capable of repetition.

[00:43:45] Speaker 04:
But let me just be clear.

[00:43:47] Speaker 04:
When I ask questions, I'm not saying this is the way I think about an issue.

[00:43:54] Speaker 04:
I am trying to understand the issue and get counsel's perspectives.

[00:44:01] Speaker 04:
That's all.

[00:44:04] Speaker 02:
I appreciate that, Your Honor.

[00:44:05] Speaker 02:
And the example that I've tried to provide

[00:44:09] Speaker 02:
Of why the facts and circumstances may change between different subpoenas or different points in time is is is how I've tried to answer your honest questions about why the.

[00:44:20] Speaker 02:
even setting aside the statutory tax, why it's critical that there be a subpoena-specific determination.

[00:44:26] Speaker 02:
Because what was true for one subpoena as to one account is not necessarily true for a different subpoena for a different account.

[00:44:33] Speaker 02:
And what was true at time one is not necessarily true at time two.

[00:44:37] Speaker 02:
And even if the ultimate conclusion still is the same, the assessment is different.

[00:44:43] Speaker 02:
And because the statute assigns the assessment to the court, it is important that the

[00:44:49] Speaker 02:
that when the facts and circumstances change, that those different facts and circumstances be able to be presented to the court so the court can still make that assessment.

[00:44:57] Speaker 01:
Counsel, I appreciate you've already given this answer, but I just want to make sure I have it.

[00:45:01] Speaker 01:
As to what are the material circumstances that could change between time one and time two, I have things like the targets could be taken into custody, which would mean they're less able to destroy evidence, or they could find out in another way somehow about the scope of the investigation.

[00:45:18] Speaker 01:
What else was on your list?

[00:45:21] Speaker 02:
So the concerning evidence might be preserved.

[00:45:25] Speaker 02:
So there are actually authority under the Stored Communications Act

[00:45:29] Speaker 02:
the demand preservation of certain evidence.

[00:45:32] Speaker 02:
The target of the investigation may die.

[00:45:37] Speaker 02:
I wish it weren't the case, but we have had circumstances where the government has obtained a nondisclosure order about an investigation into a deceased individual.

[00:45:46] Speaker 02:
So there are all sorts of circumstances that may change.

[00:45:49] Speaker 02:
And of course, as I explained, I think the nature of the account may matter.

[00:45:54] Speaker 02:
If the account at issue is the target,

[00:45:58] Speaker 02:
considerations are going to be different than if the account is someone who's not the target.

[00:46:04] Speaker 02:
And again, the ultimate conclusion may be the same, but the factual sinew that connects the request to the conclusion, I think, may differ.

[00:46:16] Speaker 02:
I've used a lot of the court.

[00:46:18] Speaker 02:
Sorry.

[00:46:18] Speaker 05:
You'll bear with us.

[00:46:20] Speaker 02:
Right.

[00:46:20] Speaker 02:
Well, I do.

[00:46:21] Speaker 02:
Yeah.

[00:46:22] Speaker 02:
The court, the court, your honors have asked about the ex parte question and also about capable repetition.

[00:46:27] Speaker 02:
If I can address those questions, I also can address more about the statute if the court has other questions.

[00:46:33] Speaker 02:
I want to make sure to answer all your questions.

[00:46:34] Speaker 05:
I appreciate that.

[00:46:37] Speaker 05:
I'm trying to have a, so for now, we have an as applied challenge to this particular non-disclosure order.

[00:46:47] Speaker 05:
How do we know that this one is capable of repetition as opposed to ones that have, it's sort of some of the hypotheticals that we've been posing?

[00:46:57] Speaker 02:
Well, first, because the government has told us.

[00:46:59] Speaker 02:
I mean, in the government's brief, it said, we're going to do the same thing with the same order.

[00:47:03] Speaker 02:
And so that's as good a capable repetition, I think, as you could ask for.

[00:47:07] Speaker 05:
And we're clear, and maybe they're the ones that better answer this, that they will have the exact type of content here and nothing more.

[00:47:16] Speaker 02:
Well, hopefully not, because I hope the court will rule in our favor.

[00:47:19] Speaker 02:
But they have said, we will pursue the same omnibus order

[00:47:24] Speaker 02:
And so I think it's capable of repetition in that sense.

[00:47:27] Speaker 02:
I think there's other reasons for that.

[00:47:30] Speaker 05:
OK, go ahead with the other reasons, because what counts as omnibus or order is a little confusing to me as content.

[00:47:36] Speaker 02:
That's fair, Your Honor.

[00:47:38] Speaker 02:
This is under seal still, so I'll speak at the highest level of generality.

[00:47:43] Speaker 02:
But in the district court, the government cited to several other dockets where they said we are using omnibus orders as well.

[00:47:51] Speaker 02:
I will tell you.

[00:47:52] Speaker 02:
from experience, that the practice is even more capacious, not less capacious than we have here.

[00:47:59] Speaker 02:
Now, we asked, actually in the district court, we asked the government to give us the actual orders that they had cited in their brief.

[00:48:07] Speaker 02:
They said, these are examples of omnibus orders.

[00:48:09] Speaker 02:
We said to the government, you're citing these examples in support of your legal argument.

[00:48:13] Speaker 02:
We'd like to see them so that we can understand and respond to them.

[00:48:16] Speaker 02:
The government refused to give them to us.

[00:48:18] Speaker 02:
I think that's emblematic of the broader ex parte

[00:48:21] Speaker 02:
problem that's presented here.

[00:48:23] Speaker 02:
But certainly, there appear to be other examples by the description of the government and our own experience that resemble this.

[00:48:32] Speaker 02:
The particular, what I've pointed the court to at pages one and two of the supplemental appendix, is not something I've seen before.

[00:48:39] Speaker 02:
Because we, the providers, don't usually get the authorizing order.

[00:48:44] Speaker 02:
We just get the omnibus order itself.

[00:48:51] Speaker 02:
is concerned about this.

[00:48:52] Speaker 02:
I think truly concerned about it.

[00:48:54] Speaker 02:
I think that perhaps the solution is to order the government to give us and the court examples.

[00:49:01] Speaker 01:
In its brief, it says this order is illustrative, referring to that the order you're talking about.

[00:49:07] Speaker 01:
So I would think that's enough to show that

[00:49:10] Speaker 01:
this dispute, uh, will repeat such that we can resolve, right?

[00:49:15] Speaker 02:
I think that that is my main, that is my main submission.

[00:49:19] Speaker 02:
Um, I also, you know, the, the capable repetition issue was presented in our case last term or last year, uh, around the Trump Warren case and the, and I, and that's maybe illustrative here.

[00:49:30] Speaker 02:
The government in that case argued, well, we're never going to seek

[00:49:34] Speaker 02:
the former president's Twitter account again.

[00:49:36] Speaker 02:
And so it's not capable of repetition, innovating review.

[00:49:40] Speaker 02:
And this court rejected that argument and said, no, no.

[00:49:42] Speaker 02:
There's going to be circumstances where the government is going to seek user information, and Axe is going to object to that.

[00:49:49] Speaker 02:
And there may be user's rights at stake, and that makes it capable of repetition, innovating review.

[00:49:54] Speaker 02:
I think that's the level of generality that makes this capable of repetition, innovating review.

[00:50:01] Speaker 05:
I had some questions about the First Amendment, but I want to make sure my colleagues don't have questions on the other issues.

[00:50:07] Speaker 01:
Just some questions about the ex parte issue.

[00:50:13] Speaker 01:
I guess the fundamental one is one of the best cases for the government, at least seemingly is, this malaria case.

[00:50:20] Speaker 01:
I don't know if you're familiar with that, but it resolves a First Amendment claim.

[00:50:25] Speaker 01:
adversely to a plaintiff based on ex parte evidence.

[00:50:28] Speaker 01:
And it's because the evidence was protected by state secrets privilege.

[00:50:35] Speaker 01:
And so national security concerns there grand jury concerns here.

[00:50:38] Speaker 01:
I'm just wondering how that all you would have us distinguish that case.

[00:50:43] Speaker 02:
Sure.

[00:50:43] Speaker 02:
So I think the test is the same.

[00:50:45] Speaker 02:
The test is there have to be extraordinary circumstances, and there has to be a compelling interest.

[00:50:51] Speaker 02:
And maybe most important, there have to be, or for the purposes here and maybe for distinguishing Your Honor's example, the amount withheld has to be the minimum necessary to actually serve that compelling interest.

[00:51:04] Speaker 02:
And so I think that you could, that doesn't mean that it's impossible to have a case where the government could have

[00:51:10] Speaker 02:
state secrets basis to decide the merits of a dispute on the basis of ex parte evidence, it's going to depend on the showing in the particular case and the materials that are withheld.

[00:51:20] Speaker 02:
And so to march through that analysis here, I think it sort of illustrates the problem.

[00:51:25] Speaker 01:
One.

[00:51:26] Speaker 01:
Wait.

[00:51:26] Speaker 01:
So I understand there's a lot of fact-specific arguments that could be made.

[00:51:33] Speaker 01:
Do you think, just in the abstract, the interest in grand jury secrecy, if we assumed this disclosure would

[00:51:40] Speaker 01:
would violate the important precept of grand jury secrecy.

[00:51:44] Speaker 01:
Would you argue that somehow on a lower ranking in the hierarchy than the state secrecy privilege, or you would have it?

[00:51:53] Speaker 01:
Instead, you'd be making a fact-specific argument.

[00:51:55] Speaker 02:
So I don't think grand jury secrecy cast as grand jury secrecy is the compelling interest.

[00:52:01] Speaker 02:
I think there's a more particularized interest that underlies grand jury secrecy.

[00:52:05] Speaker 02:
Douglas Oil, I think, illustrates this.

[00:52:07] Speaker 02:
Douglas Oil, which was an interpretation

[00:52:09] Speaker 02:
of Rule 6E3Ei, which is actually a mechanism for obtaining disclosure of grand jury materials, talks about the particular interests that are served by grand jury secrecy.

[00:52:23] Speaker 02:
And there's three that Douglas Oil describes.

[00:52:26] Speaker 02:
One is witness intimidation.

[00:52:27] Speaker 02:
One is the risk of flight or destruction of evidence by the target.

[00:52:31] Speaker 02:
And the third is impugning the reputation of the target.

[00:52:35] Speaker 02:
So I think that the way I would think about the problem

[00:52:38] Speaker 02:
here is that I accept that the government has a compelling interest in those underlying interests that are served by grand jury secrecy.

[00:52:47] Speaker 02:
And I think then the question becomes whether the particular materials that are being withheld are actually necessary to be withheld in order to serve that interest.

[00:52:57] Speaker 02:
I actually think that's the same way that Douglas Oil, although I think there's some differences between the tests, I think that's the same way that Douglas Oil is telling courts to think about the problem of whether or not

[00:53:08] Speaker 02:
to avoid injustice, you should disclose grand jury materials under 6E3Ei, which is to look at the interests of the party who is losing access to the materials and to then think about the government's particular interests in those material or the grand jury particular interests in those materials as set forth in Douglas Oil and to then

[00:53:32] Speaker 02:
weigh them.

[00:53:33] Speaker 02:
Now, what I think is illustrative about the case law around 6E3E little i, maybe I screwed that up, is that the kind of case we have here is actually the paradigmatic case for disclosure under that provision, which is where one party has the materials and the other one does not.

[00:53:55] Speaker 02:
And so we cited two examples of this in our briefs where it actually was reversed.

[00:54:00] Speaker 02:
A criminal defendant had

[00:54:02] Speaker 02:
because they'd been through the criminal process, and a civil division of the government did not.

[00:54:07] Speaker 02:
And the civil division of the government was saying, we need access to these materials.

[00:54:10] Speaker 02:
It's not fair for this case to be adjudicated where one party has access to them and the other does not.

[00:54:16] Speaker 02:
And in that circumstance, the court ordered disclosure of the materials.

[00:54:20] Speaker 02:
And so I think the kind of problem we have in this case, which is- In which case is that?

[00:54:25] Speaker 02:
So the In re grand jury proceedings

[00:54:30] Speaker 02:
76-4, that's 800 F-second, 1293 from the Fourth Circuit is the case.

[00:54:39] Speaker 02:
And we cite another in the, I think the other we cited was in the, in the, in DDC, 430 F-stop, 639.

[00:54:46] Speaker 02:
And so those are, I think examples of that problem.

[00:54:49] Speaker 01:
I appreciate, I understand that position.

[00:54:52] Speaker 01:
I want to make sure we get to Judge Millett's First Amendment questions.

[00:54:55] Speaker 05:
Mr. Judge, do you have anything on the non-First Amendment issues?

[00:54:58] Speaker 04:
No, thank you.

[00:54:59] Speaker 05:
So just to be clear upfront on one thing, characterizes speech interest is in informing the subscriber that the subpoena has been issued for them.

[00:55:12] Speaker 05:
But in fact, if you have a First Amendment interest, wouldn't be limited to that.

[00:55:18] Speaker 05:
Your company would have the ability every time one of these subpoenas comes in to broadcast on its platform to the world.

[00:55:26] Speaker 05:
Today, federal grand jury in whatever city issued subpoena for, just hypothesize, you know, a Senator from the 52nd state.

[00:55:38] Speaker 05:
To the Senator.

[00:55:40] Speaker 05:
Next day, to the Senator's spouse.

[00:55:44] Speaker 05:
Senator staff members by name.

[00:55:48] Speaker 05:
The neighbors.

[00:55:50] Speaker 05:
The best buddy.

[00:55:53] Speaker ?:
Uh-oh.

[00:55:54] Speaker 05:
Senator from the 53rd state got one.

[00:55:59] Speaker 05:
That's your First Amendment right.

[00:56:02] Speaker 05:
So we're dealing here with... You can advertise all of these to the world, not just talking.

[00:56:06] Speaker 05:
It's nice to talk about telling the subscriber.

[00:56:09] Speaker 05:
Your First Amendment right as a prior restraint would be to tell anybody and everybody.

[00:56:14] Speaker 02:
I do think that the nondisclosure order is a prior restraint.

[00:56:17] Speaker 02:
It's also a content-based prior restraint.

[00:56:19] Speaker 05:
Am I wrong in saying that your First Amendment claim would be to tell the world

[00:56:23] Speaker 05:
about every single grand jury subpoena you receive.

[00:56:27] Speaker 05:
I'm not saying you would make that corporate judgment.

[00:56:29] Speaker 02:
Yeah, I do think that we would have a first amendment right that would be intruded whenever a prior restraint is opposed, and then it may be that strict scrutiny could be satisfied in many of those circumstances.

[00:56:41] Speaker 02:
I think that 2705B is an attempt by Congress to implement.

[00:56:47] Speaker 05:
How strict scrutiny could be satisfied, given your arguments about the lack of a real interest in keeping this confidential.

[00:56:53] Speaker 02:
Well, I don't think that's certainly not our position, Your Honor.

[00:56:59] Speaker 02:
The 2705B factors, I think, are demanding, but they can be satisfied.

[00:57:04] Speaker 02:
And those factors are about particular types of intrusions on the ability of the government to carry out an investigation.

[00:57:13] Speaker 05:
And our position is not- Your position will be that's our free speech.

[00:57:16] Speaker 02:
Well, free speech.

[00:57:17] Speaker 05:
Not often that the people who want to engage in free speech are willing to concede that strict scrutiny will prevent them from doing it.

[00:57:24] Speaker 05:
Well, then maybe this will be the... You will argue against in those cases.

[00:57:27] Speaker 05:
You will say we have a right to do it and the statute hasn't been met and so we get to do it.

[00:57:31] Speaker 05:
Well, I don't... I can't prejudge... You get a full-time job for your legal team because you're gonna have to do it in every single case.

[00:57:36] Speaker 02:
Right?

[00:57:37] Speaker 02:
Your Honor, I can't prejudge how the facts of a particular case will come out.

[00:57:41] Speaker 02:
But I do think we read 2705B and the particular statutory factors that 2705B is laying out as an attempt to actually implement the First Amendment concerns that are implicated by imposing a content-based prior restraint.

[00:57:57] Speaker 05:
I thought you had a facial, in the district court, a facial First Amendment claim on the statute.

[00:58:02] Speaker 05:
Is that incorrect or correct?

[00:58:04] Speaker 05:
Maybe I misunderstood.

[00:58:06] Speaker 02:
I don't want to dance around what is facial or what is as applied.

[00:58:12] Speaker 02:
But our challenge in this case has always been that the nondisclosure order in this case that was imposed on X both violates the statute and that it violates the First Amendment.

[00:58:23] Speaker 02:
Now, that doesn't mean that the government couldn't satisfy the First Amendment.

[00:58:27] Speaker 02:
This court held in the prior case that a particular nondisclosure order could satisfy.

[00:58:31] Speaker 05:
What do you want us to say?

[00:58:33] Speaker 05:
And you're just, what is it that we're supposed to say violates the First Amendment?

[00:58:40] Speaker 05:
I had thought it was an attack on this.

[00:58:43] Speaker 05:
I could be wrong.

[00:58:44] Speaker 05:
So now you're telling me it's an attack on this particular non-disclosure order as violating the First Amendment.

[00:58:51] Speaker 05:
Is your First Amendment argument now confined?

[00:58:53] Speaker 05:
Because you did not make that argument in district court because you couldn't have.

[00:58:56] Speaker 05:
So is your argument now confined to

[00:58:59] Speaker 05:
And you couldn't have made it in your opening brief.

[00:59:01] Speaker 05:
You didn't get the disclosure until the good brief.

[00:59:03] Speaker 05:
So is it now confined to this particular non-disclosure order violates the First Amendment?

[00:59:11] Speaker 02:
I believe it's always been confined to this particular nondisclosure or are the evidence that we've seen it before.

[00:59:16] Speaker 05:
You didn't know what it said before.

[00:59:18] Speaker 02:
Well, we we were eight.

[00:59:20] Speaker 02:
That's correct.

[00:59:21] Speaker 02:
We were able to to surmise that the government had attained an order that had the features that we now learn is is the case.

[00:59:31] Speaker 02:
And we and we directed our argument throughout the litigation to the an order where the assessment of the statutory factors was not being made by the court and where

[00:59:41] Speaker 02:
The particular legal process had not been presented to the court and that is the that is the substance of our of our First Amendment argument.

[00:59:50] Speaker 02:
We do think that the argument we've made to the court here is that in order this order on pages one and two of the supplemental appendix can't satisfy First Amendment.

[01:00:00] Speaker 02:
strict scrutiny under the First Amendment for two reasons.

[01:00:03] Speaker 02:
One is that the causal link that strict scrutiny requires be established can't be established when the assessment is being made in the abstract of this sort.

[01:00:13] Speaker 02:
But two, and maybe even more powerfully, this is by definition not narrowly tailored because there is by definition a more narrowly tailored order that the government could have obtained, which would be an order that is limited to one

[01:00:25] Speaker 05:
uh subject to particular subpoenas as opposed to across if the government makes the statutorily required showing to a court and the court fine the court finds that statutory showing has been met in an individual case you have no first amendment claim no prior restraint claim well i want to be uh

[01:00:47] Speaker 02:
I'm reluctant to make a commitment about a hypothetical case with respect to the company's First Amendment rights.

[01:00:53] Speaker 02:
But I think that if the court has, as a general matter, if the court has assessed a particular legal process and made the judgment that 2705B requires and imposed it for a sufficiently short period of time, that we would still have a First Amendment claim, but I think strict scrutiny would

[01:01:12] Speaker 02:
ordinarily be satisfied in those circumstances.

[01:01:17] Speaker 05:
And this may be my misunderstanding, it seems to be a bit of a moving target here.

[01:01:22] Speaker 05:
I thought your first response to me was, oh, no, no, no.

[01:01:24] Speaker 05:
It's not a First Amendment problem if the statutory factors are met.

[01:01:28] Speaker 05:
But now you're saying, even if it's not an omnibus order, it's a single subpoena non-disclosure order attached, the court checks statutory binding boxes, one, two, three, or four of them, imposes it for a limit of a year or six months.

[01:01:46] Speaker 05:
Do you still have a First Amendment prior restraint argument or not?

[01:01:51] Speaker 02:
Well, I'm sorry if I'm being a confusing order.

[01:01:54] Speaker 02:
The First Amendment doesn't go away.

[01:01:55] Speaker 02:
We still have a First Amendment right.

[01:01:56] Speaker 02:
It's still a prior restraint.

[01:01:58] Speaker 02:
Our First Amendment rights are still being intruded on.

[01:02:01] Speaker 02:
it may well be justified under those circumstances.

[01:02:03] Speaker 02:
The First Amendment.

[01:02:04] Speaker 05:
You're not willing to say, because I thought your first answer was that these factors were meant to address the First Amendment, but now you're saying they may not.

[01:02:13] Speaker 05:
That in every individual place where there's going to be an individual non-disclosure order, does the court, the court has to both decide.

[01:02:21] Speaker 05:
So this is now, and we're going to have, and our magistrate judges are going to be doing this 800 times a day.

[01:02:26] Speaker 05:
They're going to have to both decide the statutory factors are met and

[01:02:31] Speaker 05:
under your theory, your legal approach, that it satisfies strict scrutiny.

[01:02:36] Speaker 05:
I just want to make sure what your position is.

[01:02:37] Speaker 02:
You'll have to issue opinions on both of those.

[01:02:39] Speaker 02:
Your Honor, it is a prior restraint.

[01:02:41] Speaker 05:
It is a content-based... Is the answer yes or no to my question that those findings will have to be made in each case?

[01:02:46] Speaker 02:
Well, the statutory factors need to be found.

[01:02:48] Speaker 02:
In the minor of cases, the statutory factors will satisfy the First Amendment.

[01:02:51] Speaker 05:
I cannot... I don't know what minor order means.

[01:02:53] Speaker 05:
Does the district court... So the district court doesn't have to do it up front?

[01:02:56] Speaker 05:
They can say this... No, I do think the district court... I absolutely... Why isn't the court bound?

[01:03:01] Speaker 05:
A court that's taken an oath to uphold the Constitution would seem to me, if you're saying it's a prior restraint, then they have to both apply the statute and the constitutional test every single time they get an application.

[01:03:15] Speaker 02:
I do think that's the case, Your Honor.

[01:03:17] Speaker 02:
I do think that's the point.

[01:03:18] Speaker 02:
I think that that's the purpose of the statute, is to implement the First Amendment concern there.

[01:03:22] Speaker 02:
But I absolutely believe that before a court imposes a content-based prior restraint, that it should do so

[01:03:30] Speaker 05:
in in in appreciation of the serious intrusion of the application of constitutional analysis in every case and then so my my second question then is you have asserted um and i know we assumed this in our prior case so it's a perfectly fine assertion on your part strict scrutiny applies um i'm having difficulty understanding why that would be true under reinhardt

[01:03:52] Speaker 05:
We have a case, FEC versus International Funding Institute.

[01:03:58] Speaker 05:
There's other cases where this is, the fact of the subpoenas is it's, I don't know if we can call it government speech given the nature of a grand jury, but it is not, this is not your own originated information.

[01:04:09] Speaker 05:
You essentially want to take information.

[01:04:12] Speaker 05:
It's almost like the discovery cases, right?

[01:04:14] Speaker 05:
You want to take, like in Reinhart, you want to take information that you have learned

[01:04:18] Speaker 05:
from the government and broadcast it out as a commercial business.

[01:04:28] Speaker 05:
What is your best case that strict scrutiny applies in that context?

[01:04:31] Speaker 02:
Well, this court certainly assumed that strict scrutiny applies.

[01:04:34] Speaker 02:
I think the Reed case from the Supreme Court sets forth the test for content-based restrictions and asks

[01:04:42] Speaker 02:
is the restriction turn on the content of the speech?

[01:04:47] Speaker 02:
This statute certainly.

[01:04:48] Speaker 05:
Well, regulated industry and party regulations is participation of the statutory schemes, regulatory schemes like this.

[01:04:55] Speaker 05:
And the information, you have to be the conduit for the government.

[01:04:59] Speaker 05:
And all I've said is, you would not know this information otherwise.

[01:05:04] Speaker 05:
And what the government has said, well, when we necessarily have to share this information with you,

[01:05:09] Speaker 05:
It has to be done under confidentiality rules.

[01:05:12] Speaker 05:
And we argue about the statute and the confidentiality rules.

[01:05:15] Speaker 05:
Would we assume they're met?

[01:05:17] Speaker 02:
Your Honor, we're a convenient with the government.

[01:05:19] Speaker 05:
That is merits strict scrutiny.

[01:05:22] Speaker 02:
Your Honor, we are not a regulated institution in any way that that term has ever been used.

[01:05:26] Speaker 02:
We are a convenient source of information for the government.

[01:05:30] Speaker 02:
But when we talk about regulated institutions, we're talking about banks that are subject to an entire regulatory regime.

[01:05:36] Speaker 02:
We're not talking about an entity that happens to have a large amount of information the government is interested in, and that because the government is interested in that information, that alone

[01:05:45] Speaker 02:
because that's the, the, the only, the stored communications act is, you know, this provision of it is, is setting up a regime to gain information, uh, from the company.

[01:05:54] Speaker 02:
Now, your honor mentioned the Reinhart case, and I do think there's a very significant difference in that case.

[01:05:58] Speaker 02:
In the Reinhart case, uh, the, uh, the newspaper in that case had used

[01:06:04] Speaker 02:
the compulsive force of civil discovery to obtain information.

[01:06:09] Speaker 02:
And then having actually used the coercive powers of the court to get information, it then wanted to talk about that information.

[01:06:18] Speaker 02:
And that makes no sense, because there's a quid pro quo that if you're going to get the benefit of having used the coercive powers of the court to gain information, if the court then says if you're going to get that information, it now has to be subject to restrictions,

[01:06:31] Speaker 02:
That's very different when in this circumstance, X has not gained anything from the government.

[01:06:36] Speaker 05:
It has simply received the very piece of information you want to broadcast to the world is something that comes from, and I'm characterizing a grand jury is coming from the government.

[01:06:46] Speaker 05:
It's not something you've originated or created or your business is generated.

[01:06:50] Speaker 02:
There's much information that people learn from the government.

[01:06:52] Speaker 02:
That's the very entire point of the first amendment is that when parties learn what the government is up to,

[01:06:57] Speaker 02:
they have the choice about whether to speak about that.

[01:07:00] Speaker 02:
And that is because investigations may be of all stripes and shapes, and there may be serious malfeasance that's reflected in that investigation.

[01:07:09] Speaker 02:
Now, X is a steward of its users' information.

[01:07:12] Speaker 02:
That is the commitment it makes in its terms of service, but it's also the purpose of the Stored Communications Act.

[01:07:18] Speaker 02:
The purpose of the Stored Communications Act was to assign to X and other providers to be reliable stewards of their users' information.

[01:07:28] Speaker 05:
To also make it possible, it's not just one way.

[01:07:32] Speaker 05:
It's a balanced statute, and it very much wants to make it possible for very important governmental interests, the law and order,

[01:07:41] Speaker 05:
to be able to get this information.

[01:07:44] Speaker 05:
And it's sort of a deal, all right?

[01:07:47] Speaker 05:
And we've discussed here what showings have to be made, but Congress's assumption is that when the appropriate statutory showing is made, so I assume that for these questions, and this information comes into you that you will treat it with confidentiality.

[01:08:03] Speaker 05:
If that's the balance, then I don't know how that's a full-throated First Amendment strict scrutiny argument.

[01:08:12] Speaker 02:
Well, Your Honor, it is the deal.

[01:08:15] Speaker 02:
It is a balance.

[01:08:17] Speaker 02:
And the balance that the statute is trying to strike is between not just the providers but the users having the ability to protect their rights and at the same time

[01:08:27] Speaker 02:
the government being able to obtain non-disclosure when it's truly necessary.

[01:08:34] Speaker 02:
And the way that the statute strikes that balance is that there be judicial assessment of the statutory factors on a subpoena by subpoena basis.

[01:08:46] Speaker 02:
And I wholly accept that in the minor enough cases, that framework will satisfy

[01:08:52] Speaker 02:
the First Amendment.

[01:08:53] Speaker 02:
I don't think that that means that the provider's First Amendment rights disappear.

[01:08:57] Speaker 02:
It simply means that under those circumstances, the compelling interests and the narrow tailoring that the First Amendment demands and that the statute demands have been satisfied.

[01:09:08] Speaker 02:
And I think that I can't sign away the idea that there will not be particular cases where the First Amendment balance will strike, will come out differently.

[01:09:20] Speaker 05:
Maintaining grand jurors.

[01:09:21] Speaker 05:
Jury secrecy, a compelling interest, restricts scrutiny purposes?

[01:09:25] Speaker 02:
By itself, no, Your Honor.

[01:09:27] Speaker 02:
And this, in fact, not even what this court said in its decision in our case from the prior.

[01:09:31] Speaker 02:
term, what the court said is that grand jury secrecy serves compelling interests, not that itself is a compelling interest.

[01:09:38] Speaker 02:
And the interest that it serves have to do with concern about witness intimidation or witness's willingness to speak candidly.

[01:09:46] Speaker 05:
Financial interference within law enforcement investigation, with an investigation.

[01:09:50] Speaker 02:
Yeah, it's serious.

[01:09:51] Speaker 02:
I think that is destroying evidence, intimidating witnesses.

[01:09:54] Speaker 05:
The fourth category, the fourth statutory category

[01:09:58] Speaker 02:
Yes, and it needs to be read in light of the four that interest as long as it's read in light of the compelling the four that come before it and that it is truly a serious jeopardizing of the investigation.

[01:10:09] Speaker 02:
Yes.

[01:10:09] Speaker 02:
If that's not, I mean, you know, this is where providers are not alone in raising these concerns.

[01:10:14] Speaker 02:
Congress very recently issued a report saying

[01:10:16] Speaker 02:
that the non-disclosure orders had become, quote, a box checking exercise.

[01:10:21] Speaker 02:
I do not think that a box checking exercise is consistent with the statute or the First Amendment.

[01:10:27] Speaker 05:
Congress is concerned they can amend the statute, but I'm not sure what we're supposed to do with that.

[01:10:30] Speaker 02:
Well, I think we have to, Your Honor, from the beginning, the Congress enacted the statute that has demanding requirements.

[01:10:39] Speaker 02:
It said in its legislative history that it was supposed to apply in a, quote, narrow set of circumstances, and that one of its purposes was to give users confidence that they would have the opportunity to protect their rights.

[01:10:49] Speaker 02:
Your Honor, of course, we cannot amend the statute.

[01:10:51] Speaker 02:
We're asking the court simply to enforce the statute as it's written.

[01:10:54] Speaker 02:
And the non-disclosure order in this case did not do that because, among other things, this is a statute that assigns the responsibility for assessing the statutory factors to the court.

[01:11:05] Speaker 02:
And the order that was obtained in this case

[01:11:07] Speaker 02:
Instead, delegated those responsibilities to the government.

[01:11:10] Speaker 02:
So yes, X is very concerned about abuse of the nondisclosure process and asks only that the court enforce the statute as it is written, which was not the case here.

[01:11:22] Speaker 02:
And that is the concern that we've raised.

[01:11:25] Speaker 05:
Just one more question.

[01:11:26] Speaker 05:
You began early in your argument listing a number of other statutes that include nondisclosure orders.

[01:11:36] Speaker 05:
So your position that every one of those statutes also requires before its issuance, not just statutory compliance, but a strict scrutiny analysis.

[01:11:46] Speaker 05:
case by case basis.

[01:11:48] Speaker 02:
I do think that whenever the government imposes a content based prior restraint on speech, that it has to satisfy strict scrutiny.

[01:11:53] Speaker 02:
So I think, as I described with the wiretap act, I think that the rationale that undergirds non-disclosure of the wiretap act is always- Any cases that provide strict scrutiny under these other statutes say the wiretap act?

[01:12:06] Speaker 02:
Well, the Mukasey case from the Second Circuit, I don't think we've cited in this case, but we've cited in prior cases,

[01:12:15] Speaker 02:
But like this court's decision in the practice, assume that strict scrutiny applies in this context.

[01:12:22] Speaker 02:
The government has not argued that strict scrutiny does not apply.

[01:12:24] Speaker 02:
I'm not familiar with a court not applying strict scrutiny in these cases.

[01:12:28] Speaker 05:
I'm really just asking the question.

[01:12:30] Speaker 02:
No, I don't.

[01:12:30] Speaker 05:
It's here that are similar to this and have been in operation for a very long time.

[01:12:36] Speaker 05:
And would we be the first court to hold that strict scrutiny of this?

[01:12:42] Speaker 02:
So I think the Butterworth decision of the Supreme Court is perhaps close here, Your Honor.

[01:12:48] Speaker 02:
In the Butterworth decision, the court struck down a Florida statute, which in the context of a Florida grand jury, not a federal grand jury, prohibited witnesses from being able to speak about information that was on their own knowledge

[01:13:03] Speaker 02:
I'm simply because they've been called to testify before the grand jury and so that that's a context where because of the the party's engagement interaction with.

[01:13:11] Speaker 02:
They, in that case, floored a grand jury.

[01:13:13] Speaker 02:
They were prohibited from speaking about information they already knew.

[01:13:19] Speaker 05:
And as a result, before the grand jury, it was a permanent ban.

[01:13:22] Speaker 05:
Justice Scalia wrote quite a different question as presented by a witness disclosure of grand jury proceedings, which is knowledge he acquires not on his own, but only by virtue of being made a witness.

[01:13:33] Speaker 05:
It discloses those proceedings, right?

[01:13:36] Speaker 05:
Not what he knew, right?

[01:13:38] Speaker 05:
That's, I mean, Justice Scalia

[01:13:40] Speaker 02:
That's correct, Your Honor.

[01:13:41] Speaker 05:
It's a very, very distinction that we've been talking about here.

[01:13:44] Speaker 02:
He did for himself, but not for the court.

[01:13:47] Speaker 05:
That case was dealing with the witness's own information and had police separate and apart from the grand jury.

[01:13:54] Speaker 02:
I acknowledge, Your Honor, that was presenting a different question, but I think what that case illustrates is the fact that one has engaged with

[01:14:02] Speaker 02:
law enforcement in the grand jury investigation and law enforcement has decided to be able to speak about the topic at hand.

[01:14:09] Speaker 02:
That is going to trigger strict scrutiny and will raise the same for some of the concerns that we've raised here.

[01:14:15] Speaker 02:
Now, Your Honor, I cannot point, Your Honor, to a particular example exactly on point.

[01:14:21] Speaker 02:
this case nor can the government.

[01:14:24] Speaker 05:
That's a fair I'm really just asking because there's other statutes here which haven't been briefed to us for obvious reasons it would be a first for us to hold the strict scrutiny applies to non-disclosed statutory non-disclosure orders in criminal investigatory contexts.

[01:14:38] Speaker 02:
Well, what this court did previously and what the Mukasey court did was to assume.

[01:14:42] Speaker 05:
I'm fully aware of what we've done previously.

[01:14:45] Speaker 05:
I'm just trying to answer the simple fact.

[01:14:47] Speaker 02:
I'm not aware.

[01:14:48] Speaker 05:
You don't know.

[01:14:49] Speaker 02:
No, I'm not aware.

[01:14:51] Speaker 02:
I don't have to cite for the government and for the court.

[01:14:54] Speaker 02:
I'm sorry.

[01:14:55] Speaker 02:
An example of a court affirmatively holding that strict scrutiny applies in this context.

[01:15:01] Speaker 02:
I believe it does for all the reasons we've said, which is that it's a prior restraint.

[01:15:06] Speaker 02:
It is content based under all

[01:15:07] Speaker 02:
relevant tasks.

[01:15:08] Speaker 02:
And I think the cases that have been referred to, like the Reinhart case, is wholly distinguishable.

[01:15:15] Speaker ?:
All right.

[01:15:15] Speaker 05:
Do my colleagues have any other questions?

[01:15:17] Speaker 05:
Judge Rogers, any more questions?

[01:15:19] Speaker 05:
Oh, thank you.

[01:15:20] Speaker 05:
All right.

[01:15:21] Speaker 05:
We kept you up for a little bit longer.

[01:15:24] Speaker 02:
I'm happy to answer the court's questions.

[01:15:25] Speaker 02:
And obviously, if the court has others, I'd be happy to answer them as well.

[01:15:28] Speaker 05:
We're very grateful for your time.

[01:15:29] Speaker 05:
And we'll give you some rebuttal time as well if you want to talk more.

[01:15:33] Speaker 05:
Thank you, Your Honor.

[01:15:38] Speaker 05:
Okay, excuse me, counsel.

[01:15:40] Speaker 05:
I think we're just going to take a quick five minute break.

[01:15:42] Speaker 05:
Is that okay?

[01:15:44] Speaker 05:
Quick five minute recess.

[01:15:45] Speaker 05:
Thank you.

[01:15:48] Speaker 05:
This honorable court is again in session.

[01:15:50] Speaker 05:
Be seated, please.

[01:15:52] Speaker 00:
Thank you, Your Honor.

[01:15:53] Speaker 00:
Good afternoon, and may it please the court, Dan Lenners for the United States.

[01:15:57] Speaker 00:
If I might briefly touch upon mootness, we did not argue that the arguments raised by ex-corp were moot because of the high level of generality at which they raised them initially, that no multi-sapiena, multi-provider, non-disclosure order can possibly comply with 2705B, and that they are absolutely entitled to under due process

[01:16:22] Speaker 00:
to access to the ex parte evidence the government provided as part of its application.

[01:16:29] Speaker 00:
As this litigation has progressed, those arguments appear to have become more fact specific.

[01:16:34] Speaker 00:
For example, the ex parte argument, at least as I read the reply brief, turned in large part on things that had been made public about the targets of this investigation.

[01:16:46] Speaker 00:
That more fact-specific application, in my view, appears to be moot under this court's precedent in PETA that we cited in our brief.

[01:16:55] Speaker 00:
The more that the outcome of the case turns on the particular facts, the more likely it is to be moot.

[01:17:01] Speaker 00:
And so we don't think that the high-level challenges are moot.

[01:17:05] Speaker 00:
They are capable of repetition, yet evading review.

[01:17:08] Speaker 00:
But the more fact-specific applications may well be.

[01:17:11] Speaker 05:
In terms of the... Which category does your omnibus order in this case fall into given, as Judge Garcia pointed out earlier, you said it's illustrative.

[01:17:21] Speaker 05:
So does that fall into high level?

[01:17:25] Speaker 00:
So certainly the question whether the statute categorically prohibits any potential omniprovider multi subpoena.

[01:17:34] Speaker 05:
No, no, no, try again.

[01:17:36] Speaker 05:
Whether it prohibits this illustrative omnibus order.

[01:17:41] Speaker 00:
So my understanding is that this order has a lot in common with these orders, but is not identical to all of them.

[01:17:49] Speaker 00:
One typical difference is that orders are often limited to non-disclosure of subpoenas that seek information for the particular targets accounts.

[01:18:01] Speaker 00:
Whereas this order, as the court noted, is more broad insofar as it restricts disclosure for any accounts, not just targets accounts.

[01:18:10] Speaker 00:
But the other aspects of this order, my understanding, are largely common, mostly in common with the kinds of orders at least issued in this jurisdiction or sought by the government in this jurisdiction.

[01:18:26] Speaker 05:
Different in different jurisdictions?

[01:18:28] Speaker 00:
I can't speak to that.

[01:18:29] Speaker 01:
I just don't know the answer to that.

[01:18:30] Speaker 01:
You're saying the typical order.

[01:18:33] Speaker 01:
that's this kind of ex ante omnibus order would be limited to accounts.

[01:18:37] Speaker 01:
The government believes are associated with identified individuals, but this one is not.

[01:18:42] Speaker 01:
And that's the respect in which that's my, that's my understanding, your honor.

[01:18:46] Speaker 00:
I can't say that every other order is limited to the targets of the investigation, but I think it's more common that they are.

[01:18:54] Speaker 00:
And this order is, it doesn't contain that limitation, but the other limitations in the order meaning

[01:19:01] Speaker 00:
that they have to be part of this investigation, limited to certain kinds of providers, have to be for grand jury subpoenas, for subscriber information, and that the underlying facts are the same, I think are common across the orders sought by the government.

[01:19:18] Speaker 05:
And it's- When you say most common, is this a one-off or is this 20% and 80% or the other way?

[01:19:29] Speaker 00:
I don't know, Your Honor.

[01:19:31] Speaker 00:
I haven't seen enough of it.

[01:19:33] Speaker 00:
I think I could ask my colleague, but I personally don't know the answer to that.

[01:19:39] Speaker 05:
Well, we kind of need to know that to know if there's a real mootness thing here.

[01:19:46] Speaker 04:
Well, one of the concerns I had is the fact that in this

[01:19:49] Speaker 04:
case, the government request was granted by the magistrate judge on the same day as the request was submitted.

[01:19:58] Speaker 04:
And certainly we have had instances of expedited appeals.

[01:20:03] Speaker 04:
And I just thought maybe that's the better way to do this in terms of

[01:20:14] Speaker 04:
just as you say, the reply brief said a lot of things because information became available to it.

[01:20:19] Speaker 04:
Now, at oral argument, you're providing the court with additional information as to why what's in the supplemental appendix may not be illustrative.

[01:20:33] Speaker 04:
And to the extent that what the government's interest here is seeking broader guidance

[01:20:44] Speaker 04:
I'm just wondering what kind of guidance can you get from us other than an advisory opinion where the arguments are going to change, things are going to happen.

[01:21:01] Speaker 04:
I'm just very troubled by this.

[01:21:04] Speaker 04:
I'm not sure what we are going to say other than that there's some interesting arguments about how this statute should be interpreted.

[01:21:15] Speaker 00:
I certainly think the court could say the statute does not.

[01:21:19] Speaker 04:
It could say.

[01:21:20] Speaker 04:
I understand that.

[01:21:21] Speaker 04:
And it could say, as I understood the argument, that unlike where X started, the statute didn't bar anything other than a very particularized order.

[01:21:42] Speaker 04:
And I thought that's what your brief was focusing on.

[01:21:46] Speaker 00:
Yes, Your Honor.

[01:21:47] Speaker 00:
I think the court could resolve this dispute, which is not moot, which is the question whether 2705B categorically prohibits any multi-provider, multi-subpoena non-disclosure order.

[01:22:01] Speaker 00:
The more fact-specific question as to whether this particular order

[01:22:05] Speaker 00:
Is lawful?

[01:22:07] Speaker 00:
I think the answer that my colleague gave is even he doesn't know how often the orders contain the additional limitation that they are limited to accounts held by the targets of the investigation.

[01:22:20] Speaker 01:
Let me ask it this way.

[01:22:22] Speaker 01:
Are you able to commit that the government will not again seek a omnibus NDO order that is not limited to identified targets of an investigation?

[01:22:31] Speaker 01:
I am not able to make that commitment, Your Honor.

[01:22:34] Speaker 01:
OK.

[01:22:34] Speaker 01:
So I think that's the case we have.

[01:22:37] Speaker 01:
And at least it seems to me that it's sufficiently likely to repeat.

[01:22:42] Speaker 01:
And it should include that feature of the case.

[01:22:46] Speaker 00:
I have no basis to push against that, Your Honor.

[01:22:49] Speaker 00:
But I think, for example, on the ex parte nature arguments, to the degree they deal with public information or information about the investigation having become public, those likely are moot, that more specific argument rather than the more general due process right to any ex parte evidence.

[01:23:07] Speaker 04:
In terms of compliance with the statute, the district court correctly found that nothing- But counsel, could I just, so I'm clear on your position, I understand your answer to Judge Garcia.

[01:23:20] Speaker 04:
I thought part of the capable of repetition yet evading review doctrine was a timeliness concern.

[01:23:33] Speaker 04:
that you couldn't get a decision if there were to be an appeal.

[01:23:38] Speaker 04:
And of course it's a petition for cert, et cetera.

[01:23:42] Speaker 04:
So that I appreciated that, but I wondered sort of what use this is going to be to you.

[01:23:54] Speaker 00:
Well, so my understanding of the timeliness question, as this court set forth in sealed case, is that you have to have review before these orders expire.

[01:24:04] Speaker 00:
And by their own terms, they typically expire no later than a year.

[01:24:08] Speaker 00:
And in that case, it was 180 days.

[01:24:11] Speaker 00:
And this court has said that anything that would become moot in less than two years satisfies the evading review aspect of capable of repetition, yet evading review.

[01:24:24] Speaker 00:
And so because these orders are typically per DOJ guidance, sought for no longer than a year, and oftentimes shorter, we think this is capable of repetition yet evading review.

[01:24:36] Speaker 00:
And I'm sorry, the government's not here asking the court to review this and bless this.

[01:24:42] Speaker 00:
X brought a challenge.

[01:24:44] Speaker 00:
We think the order was correctly issued under the statute, and that under this court's guidance from Seale case, it's not moot.

[01:24:53] Speaker 00:
So we think the court should rule in the government's favor because we think the district court correctly found that nothing in the statute.

[01:24:59] Speaker 04:
Well, I understood it.

[01:25:00] Speaker 04:
Yeah, okay.

[01:25:01] Speaker 04:
Okay, I'm back.

[01:25:03] Speaker 04:
I won't take up any more time.

[01:25:04] Speaker 01:
Get us started on the statutory authority question.

[01:25:07] Speaker 01:
Can I just direct you to at least one of the things that seems odd here is that on supplemental appendix two, it's the provision that your opposing counsel highlight.

[01:25:16] Speaker 01:
It requires the government

[01:25:20] Speaker 01:
to check whether disclosure of the existence of the subpoena would result in one of the listed harms.

[01:25:25] Speaker 01:
And if your position is the court made that determination for all potential hypothetical future subpoenas, I think the question is, why is that there?

[01:25:37] Speaker 00:
Well, I'm not sure why it's there.

[01:25:39] Speaker 00:
I think the important language from that provision is the first sentence, which is that the facts proffered in the government's application for this omnibus order must apply to each and every subpoena to which the order is attached.

[01:25:50] Speaker 01:
And so our view is that the court found... And who checks that the facts in the application apply to each and every subpoena to which the order is attached?

[01:26:02] Speaker 01:
It's not the court.

[01:26:03] Speaker 00:
Correct.

[01:26:03] Speaker 00:
It's the government.

[01:26:04] Speaker 00:
But that's not a legal determination.

[01:26:06] Speaker 00:
It's a factual determination.

[01:26:07] Speaker 00:
So the court has found that facts a B and C are true today and most often one of those facts is going to be that the target is unaware of the government's investigation and the court says if those facts remain true.

[01:26:19] Speaker 00:
The government may attach the non-disclosure order to subpoenas meeting these criteria and so.

[01:26:26] Speaker 00:
The court has made the determination that under Facts A, B, and C, which continue to exist, as the government evaluates them... That seems to be the whole nub of the case, right?

[01:26:38] Speaker 01:
The judge does not know and cannot determine that those facts will continue to exist.

[01:26:43] Speaker 01:
That's why the last provision is here.

[01:26:46] Speaker 01:
I, the magistrate judge, have no idea

[01:26:49] Speaker 01:
whether whenever you decide to pursue a subpoena, the target will know about the investigation.

[01:26:54] Speaker 01:
So you government check.

[01:26:56] Speaker 01:
And I guess the concern is that seems directly contrary to the statute because it's the government making that determination.

[01:27:03] Speaker 01:
It's not the court.

[01:27:04] Speaker 00:
So I think it's a different determination.

[01:27:06] Speaker 00:
The court has to find that under the world of facts, that there is a reason to believe that notification of the existence of the subpoena will result in a statutory harm.

[01:27:17] Speaker 00:
So the court is the one who says, yes, if facts A, B, and C are true, the statutory harm will result.

[01:27:23] Speaker 00:
The government isn't making the determination that a statutory harm will result.

[01:27:26] Speaker 00:
That's for the court.

[01:27:28] Speaker 00:
It's simply making the determination that the world of facts described in its application that were true at the time the court entered its order remain true.

[01:27:36] Speaker 00:
And again, typically one of those facts is that the target is unaware of the investigation.

[01:27:41] Speaker 00:
And so the court, the government's not making a legal conclusion that the target's unawareness will lead to a statutory harm.

[01:27:49] Speaker 00:
The court has made that determination.

[01:27:50] Speaker 00:
The government's just looking out at what it knows about the real world and the facts that exist in the real world.

[01:27:56] Speaker 01:
When the statute, I guess the difficulty I have with that is that when the statute says the court has to find reason to believe, for example, destruction of evidence will result.

[01:28:07] Speaker 01:
That's a legal question, sure.

[01:28:09] Speaker 01:
That's a factual question.

[01:28:12] Speaker 01:
The court checks whether the facts are true.

[01:28:14] Speaker 01:
And as you're laying it out, this order delegates, outsources to the executive branch, the power to decide if the facts remain true.

[01:28:23] Speaker 01:
And the facts, again, the facts are, that the facts remain true is an essential part of the determination the statute requires, isn't it?

[01:28:32] Speaker 00:
I don't think so, Your Honor.

[01:28:33] Speaker 00:
The court doesn't evaluate whether the facts are true.

[01:28:36] Speaker 00:
The government proffers facts.

[01:28:37] Speaker 00:
There's no independent investigation as to whether this remains true.

[01:28:41] Speaker 00:
The government proffers that these things are true, and that based on that, the court concludes that applying that factual world, a statutory harm will result from notification.

[01:28:55] Speaker 00:
And so the government's not making a legal conclusion about whether these facts add up to the requisite

[01:29:01] Speaker 00:
harm, they're simply evaluating whether these facts remain true.

[01:29:05] Speaker 00:
And I don't think that replaces the role of the judge as set forth by the statute.

[01:29:11] Speaker 01:
So I appreciate that argument.

[01:29:13] Speaker 01:
The other aspect of it that opposing counsel emphasized, as I already noted, is the breadth.

[01:29:18] Speaker 01:
And so the idea that this is just limited to anything the government later deems relevant to the investigation, which I think you've acknowledged could mean different people in different circumstances.

[01:29:32] Speaker 01:
would seem to be an even more sort of hypothetical determination.

[01:29:36] Speaker 01:
The magistrate judge doesn't know who the future targets could be.

[01:29:40] Speaker 01:
And so it can't tell whether disclosure to those people would jeopardize the investigation, can it?

[01:29:48] Speaker 00:
So as again, I think that would be, that is a limitation that could be put in to these orders to say,

[01:29:57] Speaker 00:
The targets at this time are person A and B and only subpoena seeking their accounts meet the statutory criteria that the court may find that that's necessary for a future looking order to see you have an argument that it's not necessary since this order doesn't have it.

[01:30:22] Speaker 00:
I think it's the same concern that regardless of who is notified of the existence of the subpoena, a court could find that that will lead to a statutory harm.

[01:30:33] Speaker 00:
So they don't have to evaluate whose account is being subpoenaed, because if that person is notified, then the targets could find out, and it could lead to the records of statutory harm.

[01:30:43] Speaker 01:
So I don't want to be argumentative about it, but it is the right thing.

[01:30:46] Speaker 01:
The court could find.

[01:30:48] Speaker 01:
But the whole problem with there not being a limit to the targets is that it could just be a subpoena to someone who the government believes has information.

[01:30:56] Speaker 01:
They have no idea.

[01:30:56] Speaker 01:
They have no connection to the two targets.

[01:30:59] Speaker 01:
There's no basis to believe they.

[01:31:01] Speaker 01:
If I get a subpoena, I have no idea it's about an inquiry into these two people, and then I'm going to tell them.

[01:31:08] Speaker 01:
And this order, by hypothesis at least, the magistrate judge has somehow determined that anyone in my situation or any of the other situations

[01:31:18] Speaker 01:
would somehow have a risk of either deleting their own evidence or notifying the targets of the investigation.

[01:31:25] Speaker 01:
And it just seems like we're in a, I actually don't think the magistrate judge would have any belief that they were making that determination in this case.

[01:31:34] Speaker 00:
Because you can't.

[01:31:38] Speaker 00:
Certainly in that situation, if X Corp, for example, is not limited by a nondisclosure order, they aren't just limited to notifying

[01:31:47] Speaker 00:
the recipients of the subpoena, but as Judge Mollett put out, they could just publish it on their website.

[01:31:52] Speaker 00:
We received these subpoenas for these people.

[01:31:55] Speaker 00:
And so a court could make the requisite finding that a savvy target who's aware of that happening

[01:32:02] Speaker 00:
would be tipped off and destroy evidence.

[01:32:06] Speaker 00:
Again, if the court's going to rule that these are consistent with 2705B so long as they are limited to the targets of the investigation, that I don't think would require a significant change from what I understand to be the government's most common practice in this jurisdiction.

[01:32:22] Speaker 00:
And I think most often, these orders are issued when there are, in fact, large groups of targets

[01:32:32] Speaker 00:
who are creating many, many accounts.

[01:32:36] Speaker 00:
And thus, the efficiencies and the time consumed in going back to the court every time you find a new account are sufficient that the government wants an order that allows it to issue the same non-disclosure order once a new account is discovered.

[01:32:59] Speaker 01:
Can you just help us understand what kind of burden that actually is?

[01:33:03] Speaker 01:
As Judge Rodgers noted, I mean, this order was entered the same day that it was requested.

[01:33:10] Speaker 01:
How much?

[01:33:11] Speaker 01:
And I think X concedes you could do it in batches.

[01:33:14] Speaker 01:
You can come forward with the 30 subpoenas you've decided to issue every two weeks and get your NDO.

[01:33:23] Speaker 01:
You just can't do it two weeks in advance.

[01:33:27] Speaker 00:
My understanding is that there are cases in which it's a significant part where you're talking about, say, hypothetically, a group of 15 hackers who are setting up, you know, dozens or hundreds of accounts and that the government is sort of trying to move rapidly and identifying these accounts and who they belong to.

[01:33:50] Speaker 00:
And that's all they're doing here.

[01:33:51] Speaker 00:
All they're doing is getting subscriber information.

[01:33:53] Speaker 00:
And so the speed at which the government's discovering new accounts and the number of accounts would require quite an administrative burden both on the government and the court for the government to go back and reapply for a non-disclosure order every time it

[01:34:09] Speaker 05:
uh finds a new account why is that you still have to do the subpoena if you get a subpoena in each and every one of those cases and presumably that's going to make some showing to the grand jury and or a judge if you want it enforced um and so you're already having to make the subpoena showing and then you know this is a computer age right most of this non-disclosure order is not going to change but you will have the obligation to sort of update

[01:34:33] Speaker 05:
you know, who and why you're going after this so that it's merits the exception of non-disclosure, right?

[01:34:42] Speaker 05:
Non-disclosure is the exception under the statute.

[01:34:46] Speaker 00:
Non-disclosure is the exception under the statute, Your Honor, but I don't want to minimize the burden.

[01:34:50] Speaker 00:
The grand jury subpoena, issuing a grand jury subpoena, mailing it off, or uploading it to X's website, however it's done these days, is very different than resubmitting a court order, changing the non-disclosure order to account for the specific subpoena, uploading those things to PACER, burdening the magistrate judge, whoever it is,

[01:35:11] Speaker 00:
potentially a daily basis or a weekly basis with reviewing these materials.

[01:35:15] Speaker 05:
Is it not possible to group them as Judge Garcia was suggesting?

[01:35:19] Speaker 00:
it's certainly possible to group them.

[01:35:21] Speaker 05:
And I think that's- If nothing would stop you from having here are a thousand accounts that have been identified as potentially related to X, sorry, I shouldn't use X here, Y person's conduct.

[01:35:35] Speaker 05:
And that person is unaware of the investigation and nothing else.

[01:35:38] Speaker 05:
You just have to, is still unaware of the investigation to our knowledge.

[01:35:41] Speaker 05:
That's all you have to add.

[01:35:43] Speaker 00:
It's certainly true that the government could group them.

[01:35:45] Speaker 00:
And I think X's concession that that would be permissible in its reply brief is not entirely consistent with its argument at the outset that the statutory language argument has evolved, but that's because the government sort of, you know.

[01:35:59] Speaker 05:
through a whole new information and to the case of the at the appaly stage of appaly brief stage of this this case.

[01:36:08] Speaker 05:
So, you know, it's it's fair for them to clarify and evolve the position.

[01:36:13] Speaker 05:
But the position that we are now the question we are now dealing with, I still am having a little trouble understanding the computer era.

[01:36:21] Speaker 05:
Why the government can't group these together because presumably it's not

[01:36:30] Speaker 05:
doing one, you know, if it just discovers something new every hour, it could just, here's today, here's what we've got today, let's send it in.

[01:36:38] Speaker 05:
Let's make sure we have that staffed.

[01:36:41] Speaker 00:
I want to be clear, the government can group them.

[01:36:44] Speaker 00:
Yes, that is a possibility.

[01:36:46] Speaker 00:
We don't think this statute requires it.

[01:36:48] Speaker 05:
But it is feasible.

[01:36:50] Speaker 00:
It is feasible.

[01:36:51] Speaker 00:
And it adds, as my understanding is, as an appellate attorney who doesn't file these things, a non-negligible administrative burden on both the government and the courts to get a multi subpoena, multi provider non-disclosure order.

[01:37:08] Speaker 00:
That applies to a discrete set of facts and a discrete set of subpoenas.

[01:37:11] Speaker 05:
The most you can be saying is it's a non-negligible burden.

[01:37:15] Speaker 00:
That's the most I can say, yes, Your Honor.

[01:37:19] Speaker 00:
But again, we don't think that burden, the statutory, whether these comply with the statute, turns on the nature of the burden.

[01:37:25] Speaker 00:
It's certainly, whether it's permissible under the statute,

[01:37:30] Speaker 00:
The doing this for the courts, you know, to help the court with its administrative tasks and to avoid burden by the government is why the government started using this.

[01:37:41] Speaker 05:
That may be off-putting well, but if the statutory determination, which is to be made by the court, that harm will occur, is not being made.

[01:37:52] Speaker 05:
This is not being made in this order.

[01:37:53] Speaker 05:
This order says the government must decide that the harm will happen.

[01:38:00] Speaker 05:
This factual, I mean, the Senate's legal is just listing the statutory types of harm that can be there.

[01:38:06] Speaker 05:
That's all that this order does.

[01:38:08] Speaker 05:
And then it says the government must decide that that harm will occur as to the subpoena.

[01:38:15] Speaker 05:
And the statute says the court will decide that question.

[01:38:20] Speaker 05:
So I think it's not just efficiencies.

[01:38:23] Speaker 05:
There is a material.

[01:38:25] Speaker 05:
This is just what Judge Garcia was raising with you.

[01:38:27] Speaker 05:
There's a material change in how the process is working under the statute.

[01:38:33] Speaker 05:
If the mandatory judge had found upfront that this will apply, my findings of harm will apply to subpoenas issued by this grand jury under X, Y, and Z circumstances,

[01:38:46] Speaker 05:
That would be a different case.

[01:38:48] Speaker 05:
We don't have a will binding by the magistrate judge.

[01:38:52] Speaker 00:
I disagree that this order doesn't comply with the act for the reasons I stated to Judge Garcia.

[01:38:58] Speaker 00:
The magistrate found that facts A, B, and C were true, and that based on those facts, it had a reason to believe that notification will result in a statutory harm.

[01:39:09] Speaker 05:
Where did it say it had a reason to believe

[01:39:12] Speaker 05:
that statutory harm will occur for every ensuing subpoena for the next year.

[01:39:17] Speaker 00:
That's the required statutory finding.

[01:39:20] Speaker 05:
Tell me what language you're finding that in.

[01:39:23] Speaker 00:
So rule 27 of 5B says... I'm sorry, where are you finding it in this order?

[01:39:29] Speaker 05:
I apologize, in this order.

[01:39:30] Speaker 00:
Oh, well, the court may only issue this order

[01:39:37] Speaker 00:
And it says in the second sentence, having carefully considered the application, the court finds reasonable.

[01:39:42] Speaker 00:
I'm sorry, the first paragraph, second sentence.

[01:39:45] Speaker 00:
Having carefully considered the application, the court finds reasonable grounds to believe that disclosure of such subpoenas will result in flight, destruction, or tampering with evidence, intimidation of witnesses, and serious jeopardy.

[01:39:59] Speaker 05:
That's talking about in that time or is it talking about in the it's just there's a confusion between that will and then the government must in paragraph five.

[01:40:07] Speaker 05:
What are we supposed to do about that?

[01:40:09] Speaker 00:
So the application set forth the world of facts that are ex parte that the government proffered to establish that there is a reason to believe that disclosure of this category of subpoenas will result in a statutorily enumerated harm.

[01:40:30] Speaker 00:
My understanding of paragraph five is that requires that those facts remain true at any time the government uses this non-disclosure order.

[01:40:39] Speaker 05:
So the government has to determine that.

[01:40:41] Speaker 05:
So the magistrate judge, she was not predetermining that that would be true in every situation.

[01:40:46] Speaker 00:
Correct.

[01:40:48] Speaker 00:
Correct.

[01:40:49] Speaker 05:
So as the best example, that's a shift from the statute, which requires the court to find that it will happen for each subpoena.

[01:40:58] Speaker 00:
So I think the court has already actually hear about the difference, the gap between the two.

[01:41:03] Speaker 00:
And I don't see the gap.

[01:41:04] Speaker 00:
The court has found that facts A, B, and C are true.

[01:41:06] Speaker 00:
And based on those facts, a subject orally enumerated harm will result.

[01:41:14] Speaker 00:
And if facts A, B, and C are true on December 20th,

[01:41:19] Speaker 00:
the government and there's remain true on December 21st, I don't see what any reason why the statute would require the government to go back for a new application or on January 1st.

[01:41:28] Speaker 05:
November 18th of the next year, they're still true?

[01:41:32] Speaker 00:
Particularly, yes.

[01:41:34] Speaker 00:
If those facts, for example, as the justice manual points out, the most typical fact for this kind of subpoena is that the target is unaware of the existence of the government's investigation.

[01:41:45] Speaker 00:
And the court could certainly find that once this target finds out, whenever that is, that target is likely to destroy evidence or intimidate witnesses.

[01:41:55] Speaker 00:
And so if that fact remains true, then that the target doesn't know, then a statutory harm is likely to result by the target being informed by an electronic communication service provider.

[01:42:11] Speaker 05:
But if the government

[01:42:14] Speaker 01:
You would agree that if the person finds out in the ordinary case, the person learns about the investigation before the subpoena is issued.

[01:42:23] Speaker 01:
And at the time the subpoena issues, there is no reason to believe that disclosure of the subpoena would lead to these listed harms.

[01:42:32] Speaker 01:
I think that's the concession.

[01:42:34] Speaker 00:
I think that's often, but not always true.

[01:42:38] Speaker 00:
Certainly a person can understand that they're under investigation

[01:42:42] Speaker 00:
for A, B, and C and think the government doesn't know about their secret email account under an alias that they're using to intimidate witnesses.

[01:42:51] Speaker 00:
And so that would be a fact-specific determination.

[01:42:53] Speaker 00:
But it's certainly a fact that if it changes and the government still thinks that disclosure would result in harm, it would have to go back to the magistrate judge.

[01:43:02] Speaker 00:
If that fact, for example, set forth an application, that's a factual change.

[01:43:07] Speaker 00:
And the government may still think that the legal test is met, but it would have to, under this order, go back to the magistrate to get a new nondisclosure order.

[01:43:15] Speaker 05:
Why wouldn't?

[01:43:15] Speaker 05:
Because a magistrate judge allows the government to decide that there's still a risk, a statutory risk of harm.

[01:43:23] Speaker 00:
That is part of the order, but I think the important part of the order is the first sentence of paragraph five, which is that the facts proffered apply to each and every subpoena.

[01:43:33] Speaker 00:
So that's not that the legal conclusion applies.

[01:43:36] Speaker 00:
It is that the facts are set forth in the government's application remain true today.

[01:43:46] Speaker 00:
I'm happy to talk about the government's use of ex parte materials.

[01:43:52] Speaker 00:
or the First Amendment.

[01:43:54] Speaker 00:
Judge Mollett, to answer a question you have from my opposing counsel, the Third Circuit in in-race subpoena in 2020 did apply strict scrutiny to nondisclosure orders issued under 2705B.

[01:44:07] Speaker 05:
Did it hold what the law requires or it just assumed?

[01:44:11] Speaker 00:
It held that, Your Honor.

[01:44:14] Speaker 00:
The government argued that a lesser form of scrutiny applied and the court rejected that argument.

[01:44:24] Speaker 00:
Oh, and then just another, I guess, hanging fruit.

[01:44:27] Speaker 00:
Your honor asked about whether 2705B only applies to grand jury subpoenas.

[01:44:34] Speaker 00:
The answer to that is no.

[01:44:35] Speaker 00:
2705A talks about delayed notification and speaks in terms of a governmental entity and where an administrative subpoena authorized by a federal or state statute.

[01:44:49] Speaker 00:
is obtained.

[01:44:51] Speaker 00:
And then B says, when it is a governmental entity acting when it is not required to notify the subscriber or customer under Section 2703B1, or to the extent that it may delay such notice pursuant to subsection A. So I think taken together, it makes clear that the government may seek a non-disclosure order under 27.5B when, for example, it issues an administrative subpoena

[01:45:17] Speaker 00:
under that for which it would have to be able to delay notification under 27 or five a. These apply to civil as well as criminal subpoenas.

[01:45:29] Speaker 05:
I'm sure they mean by administrative here.

[01:45:31] Speaker 00:
So I don't know the answer to that.

[01:45:33] Speaker 00:
Just looking at the statute, it speaks of a governmental entity and an administrative subpoena.

[01:45:37] Speaker 00:
I suspect that means civil subpoenas, but I don't know enough about how that I don't practice with the statute.

[01:45:44] Speaker 00:
So I don't know the answer to that.

[01:45:46] Speaker 01:
Just one question on the First Amendment.

[01:45:48] Speaker 01:
I think X on the narrow tailoring argument essentially says can't be narrowly tailored because there's a less restrictive alternative.

[01:45:54] Speaker 01:
You could wait till you have the specific subpoena and the actual current facts and have that adjudicated.

[01:46:01] Speaker 01:
And that's just less of a X anti-restriction on speech than the case-by-case approach.

[01:46:09] Speaker 01:
And I'm not, what is your response to that in terms of the First Amendment?

[01:46:13] Speaker 00:
So I think I have two responses.

[01:46:15] Speaker 00:
The first is that as this court made clear in sealed case last year, First Amendment requires narrow tailoring, not perfect tailoring.

[01:46:22] Speaker 00:
And the second is that regardless of any of that, the non-disclosure order that's ultimately issued to each provider restricts the same narrow slice of speech, which is the ability to inform the subscriber or anyone else about the existence of the subpoena.

[01:46:40] Speaker 00:
which is information they only learned as a result of being a grand jury witness.

[01:46:45] Speaker 00:
They are limited in time duration, and X remains free to speak about anything else, X or any other provider.

[01:46:52] Speaker 00:
And so the reasons that this court found last year that narrow tailoring satisfies a single nondisclosure order.

[01:47:03] Speaker 01:
The omnibus order has