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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

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AT SEATTLE

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Microsoft Corporation, 10
Plaintiff, 11
v. 12
The United States Department of Justice, and 13 Loretta Lynch, in her official capacity as
Attorney General of the United States, 14
Defendants. 15

No.
COMPLAINT FOR DECLARATORY JUDGMENT

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Microsoft Corporation (“Microsoft”) alleges as follows.

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INTRODUCTION

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1. Microsoft brings this case because its customers have a right to know when the

19 government obtains a warrant to read their emails, and because Microsoft has a right to tell

20 them. Yet the Electronic Communications Privacy Act (“ECPA”) allows courts to order

21 Microsoft to keep its customers in the dark when the government seeks their email content or

22 other private information, based solely on a “reason to believe” that disclosure might hinder an

23 investigation. Nothing in the statute requires that the “reason to believe” be grounded in the

24 facts of the particular investigation, and the statute contains no limit on the length of time such

25 secrecy orders may be kept in place. 18 U.S.C. § 2705(b). Consequently, as Microsoft’s

26 customers increasingly store their most private and sensitive information in the cloud, the

27 government increasingly seeks (and obtains) secrecy orders under Section 2705(b). This

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1 statute violates both the Fourth Amendment, which affords people and businesses the right to

2 know if the government searches or seizes their property, and the First Amendment, which

3 enshrines Microsoft’s rights to talk to its customers and to discuss how the government

4 conducts its investigations—subject only to restraints narrowly tailored to serve compelling

5 government interests. People do not give up their rights when they move their private

6 information from physical storage to the cloud. Microsoft therefore asks the Court to declare

7 that Section 2705(b) is unconstitutional on its face.

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2. Before the digital age, individuals and businesses stored their most sensitive

9 correspondence and other documents in file cabinets and desk drawers. As computers became

10 prevalent, users moved their materials to local computers and on-premises servers, which

11 continued to remain within the user’s physical possession and control. In both eras, the

12 government had to give notice when it sought private information and communications, except

13 in the rarest of circumstances.

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3. Cloud computing has spurred another profound change in the storage of private

15 information. Today, individuals increasingly keep their emails and documents on remote

16 servers owned by third parties, i.e., in the cloud, using free web-based services such as

17 Microsoft’s Outlook.com. Businesses have also migrated their information technology

18 infrastructure to servers hosted by providers such as Microsoft, which offer productivity

19 software (e.g., Microsoft’s Office365) and the ability to access correspondence and other

20 documents from any device. But the transition to the cloud does not alter the fundamental

21 constitutional requirement that the government must—with few exceptions—give notice when

22 it searches and seizes the private information or communications of individuals or businesses.

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4. The government, however, has exploited the transition to cloud computing as a

24 means of expanding its power to conduct secret investigations. As individuals and business

25 have moved their most sensitive information to the cloud, the government has increasingly

26 adopted the tactic of obtaining the private digital documents of cloud customers not from the

27 customers themselves, but through legal process directed at online cloud providers like

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1 Microsoft. At the same time, the government seeks secrecy orders under 18 U.S.C. § 2705(b)

2 to prevent Microsoft from telling its customers (or anyone else) of the government’s demands.

3 These secrecy orders generally assert that abiding by the centuries-old requirement of seeking

4 evidence directly from its owner would jeopardize the government’s investigation. Most of the

5 time, these secrecy orders prohibit notification for unreasonably long (or even unlimited)

6 periods of time, which Section 2705(b) permits whenever a court has “reason to believe” any of

7 several adverse consequences might otherwise ensue—including any time notice would

8 “seriously jeopardiz[e] an investigation or unduly delay[] a trial.”

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5. Over the past 18 months, federal courts have issued nearly 2,600 secrecy orders

10 silencing Microsoft from speaking about warrants and other legal process seeking Microsoft

11 customers’ data; of those, more than two-thirds contained no fixed end date. (In fact, of the

12 twenty-five secrecy orders issued to Microsoft by judges in this District, none contained a time

13 limit.) These twin developments—the increase in government demands for online data and the

14 simultaneous increase in secrecy—have combined to undermine confidence in the privacy of

15 the cloud and have impaired Microsoft’s right to be transparent with its customers, a right

16 guaranteed by the First Amendment.

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6. There may be exceptional circumstances when the government’s interest in

18 investigating criminal conduct justifies an order temporarily barring a provider from notifying a

19 customer that the government has obtained the customer’s private communications and data.

20 But Section 2705(b) sweeps too broadly. That antiquated law (passed decades before cloud

21 computing existed) allows courts to impose prior restraints on speech about government

22 conduct—the very core of expressive activity the First Amendment is intended to protect—

23 even if other approaches could achieve the government’s objectives without burdening the right

24 to speak freely. The statute sets no limits on the duration of secrecy orders, and it permits prior

25 restraints any time a court has “reason to believe” adverse consequences would occur if the

26 government were not allowed to operate in secret. Under the statute, the assessment of adverse

27 consequences need not be based on the specific facts of the investigation, and the assessment is

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1 made only at the time the government applies for the secrecy order, with no obligation on the

2 government to later justify continued restraints on speech even if circumstances change

3 because, for instance, the investigation is closed or the subject learns of it by other means. It

4 also permits those restraints based on the application of purely subjective criteria, such as a

5 finding that notice would “jeopardiz[e] an investigation” in unspecified ways or “unduly delay

6 a trial.” Section 2705(b) is therefore facially overbroad under the First Amendment, since it

7 does not require the government to establish that the continuing restraint on speech is narrowly

8 tailored to promote a compelling interest.

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7. The statute also violates the Constitution’s protection against unreasonable

10 searches and seizures. The Fourth Amendment’s requirement that government engage only in

11 “reasonable” searches necessarily includes a right for people to know when the government

12 searches or seizes their property. See Wilson v. Arkansas, 514 U.S. 927, 934 (1995). For

13 example, if the government comes into a person’s home to seize her letters from a desk drawer

14 or computer hard drive, that person in almost all circumstances has the right to notice of the

15 government’s intrusion. The same is true when the government executes a search of a business

16 to seize emails from the business’s on-site server. But Section 2705(b) subjects Microsoft’s

17 cloud customers to a different standard merely because of how they store their communications

18 and data: the statute provides a mechanism for the government to search and seize customers’

19 private information without notice to the customer, based upon a constitutionally insufficient

20 showing. In so doing, Section 2705(b) falls short of the intended reach of Fourth Amendment

21 protections, which do not depend on the technological medium in which private “papers and

22 effects” are stored.

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8. For these reasons, Microsoft asks the Court to declare that Section 2705(b) is

24 unconstitutional on its face.

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PARTIES

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9. Microsoft. Microsoft is a corporation organized and existing under the laws of

27 the State of Washington, with its principal place of business at One Microsoft Way, Redmond,

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1 Washington 98052. Microsoft has standing to bring this action because of the repeated

2 invasion of its First Amendment rights through the issuance of indefinite and insufficiently

3 substantiated secrecy orders, its interest in upholding its public commitment to safeguard the

4 privacy of its customers’ sensitive emails and documents without violating court orders, its

5 right to invoke the Fourth Amendment rights of its customers (who have no practical means of

6 enforcing those rights), and its interest in avoiding findings of contempt.

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10. The United States Department of Justice. The United States Department of

8 Justice is an agency of the executive branch of the federal government, employees of which

9 regularly apply for secrecy orders under 18 U.S.C. § 2705(b) and serve those secrecy orders on

10 providers, including Microsoft.

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11. Loretta Lynch. Loretta Lynch, sued in her official capacity only, is the Attorney

12 General of the United States. Attorney General Lynch has ultimate authority over the United

13 States Department of Justice, employees of which regularly apply for secrecy orders under 18

14 U.S.C. § 2705(b) and serve those secrecy orders on providers, including Microsoft.

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JURISDICTION AND VENUE

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12. Jurisdiction. This Court has jurisdiction over this action pursuant to 28 U.S.C.

17 § 1331 because the action concerns federal questions, and pursuant to 28 U.S.C. §§ 2201 and

18 2202 because this is a civil action for a declaratory judgment.

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13. Venue. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(2)

20 because Microsoft has its headquarters and principal place of business in this District and

21 because Microsoft’s speech, in the absence of a secrecy order, would emanate in substantial

22 part from this District.
MICROSOFT’S CLOUD SERVICES 23
14. Cloud Computing. As they migrate their communications and documents to the 24
cloud, individuals and businesses have increasingly entrusted Microsoft and other providers 25
with their most private information—what the Supreme Court has referred to as a “cache of 26
sensitive personal information.” Riley v. California, 134 S. Ct. 2473, 2490 (2014). A customer 27

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1 that stored paper documents in file cabinets or emails on on-site servers would generally know

2 contemporaneously about the execution of a warrant by law enforcement—and would be able

3 to assert any rights concerning any documents or data seized during the search. A customer

4 storing documents and emails remotely in the cloud should be in the same position. That is,

5 cloud customers should be able to trust they will know if they become the targets of warrants or

6 other legal process authorizing the seizure of sensitive information.

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15. Secrecy Orders. Secrecy orders issued under Section 2705(b) allow the

8 government to seek electronic communications and other private data under a veil of prolonged

9 (or even indefinite) secrecy. The government’s use of legal process directed at cloud providers

10 such as Microsoft, when combined with accompanying secrecy orders, amounts to a substantial

11 expansion of law enforcement’s ability to engage in secret search and seizure activity,

12 adversely affecting both Microsoft’s right to communicate with its customers and the

13 customers’ privacy interests—simply because customers have moved their information to the

14 cloud.

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16. The Frequency of Secrecy Orders. Between September 2014 and March 2016,

16 Microsoft received 5,624 federal demands for customer information or data. Of those, nearly

17 half—2,576—were accompanied by secrecy orders, forbidding Microsoft from telling the

18 affected customers that the government was looking at their information. The vast majority of

19 these secrecy orders related to consumer accounts and prevent Microsoft from telling affected

20 individuals about the government’s intrusion into their personal affairs; others prevent

21 Microsoft from telling business customers that the government has searched and seized the

22 emails of individual employees of the customer. Further, 1,752 of these secrecy orders

23 contained no time limit, meaning that Microsoft could forever be barred from telling the

24 affected customer about the government’s intrusion. The government has used this tactic in

25 this District. Since September 2014, Microsoft received 25 secrecy orders issued in this

26 District, none of which contained any time limit. These secrecy orders prohibit Microsoft from

27 speaking about the government’s specific demands to anyone and forbid Microsoft from ever

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1 telling its customers whose documents and communications the government has obtained. The

2 secrecy orders thus prevent Microsoft’s customers and the public at large from ever learning

3 the full extent of government access to private, online information.

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STATUTORY OVERVIEW

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17. Section 2705(b). Congress enacted Section 2705(b) as part of the Electronic

6 Communications Privacy Act of 1986 (“ECPA”). Section 2705(b) provides, in its entirety:

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(b) PRECLUSION OF NOTICE TO SUBJECT OF GOVERNMENTAL

ACCESS.—A governmental entity acting under section 2703,

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when it is not required to notify the subscriber or customer under

section 2703(b)(1), or to the extent that it may delay such notice

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pursuant to subsection (a) of this section, may apply to a court for

an order commanding a provider of electronic communications

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service or remote computing service to whom a warrant,

subpoena, or court order is directed, for such period as the court

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deems appropriate, not to notify any other person of the existence

of the warrant, subpoena, or court order. The court shall enter

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such an order if it determines that there is reason to believe that

notification of the existence of the warrant, subpoena, or court

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order will result in—

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(1) endangering the life or physical safety of an individual;

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(2) flight from prosecution;

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(3) destruction of or tampering with evidence;

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(4) intimidation of potential witnesses; or

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(5) otherwise seriously jeopardizing an investigation or unduly

delaying a trial.

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18. Effect of Statute. Microsoft is a “provider of electronic communications

21 service or remote computing service” as those terms are used in the statute. Under the plain

22 terms of Section 2705(b), a court therefore may order Microsoft “not to notify any other

23 person of the existence” of a legal demand for its customer’s emails and documents. A court

24 may issue such an order “for such period as the court deems appropriate,” without any

25 requirement that the government advise the court of any change in circumstances bearing upon

26 the government’s initial asserted need for nondisclosure. Thus, for example, a secrecy order

27 may prevent Microsoft from informing a customer of the intrusion even after the government’s

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1 investigation ends or becomes public through other means. Under the statute, a court is not

2 required to consider whether a secrecy order is narrowly tailored to further the government’s

3 asserted interests and whether there are less restrictive alternatives. Indeed, the statute

4 contemplates that the court “shall enter such an order” without weighing whether less

5 restrictive alternatives are available. Further, Section 2705(b) allows the court to issue a

6 secrecy order whenever it finds “reason to believe” that any of five adverse results would

7 otherwise occur, including when notification “will result in … otherwise seriously jeopardizing

8 an investigation or unduly delaying a trial.”

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19. Comparison to Section 2705(a). Section 2705(b) is notably different from its

10 parallel provision, Section 2705(a), which applies to certain forms of legal process issued under

11 ECPA, 18 U.S.C. § 2703(b)(1)(B). When the government requires a provider to disclose

12 information under this provision, the government itself has an affirmative obligation to notify

13 the customer. Section 2705(a) permits the government to delay its notice when “there is reason

14 to believe” notification will trigger the same five adverse results listed in Section 2705(b). But

15 even though Section 2705(a) relies on exactly the same government interests as Section

16 2705(b) to justify withholding notice, Section 2705(a) authorizes a delay of only a definite and

17 fixed duration—90 days—and requires the government to justify any further delays in

18 notification. In other words, in Section 2705(a), Congress determined that withholding notice

19 for no more than 90 days satisfied the five government interests enumerated in both Section

20 2705(a) and Section 2705(b), subject only to the government’s right to renew the period of

21 delayed upon making a further showing.

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20. Searches in the Physical World. By allowing the government to operate behind

23 a veil of secrecy, Section 2705(b) also differs from similar forms of process in the physical

24 world. For example, although 18 U.S.C. § 3103a authorizes so-called “sneak and peek”

25 warrants for secret searches—the only permissible means of executing search warrants of

26 physical documents without notice—that provision presumptively requires the government to

27 notify the target of the search “within a reasonable period not to exceed 30 days after the date

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1 of its execution.” 18 U.S.C. § 3103a(b)(3). The statute permits extensions of this deferred

2 notice, but “subject to the condition that extensions should only be granted upon an updated

3 showing of the need for further delay and that each additional delay should be limited to

4 periods of 90 days or less.” 18 U.S.C. § 3103a(c). While these provisions permit delays of

5 longer than 30 and 90 days “if the facts of the case justify a longer period of delay,” the statute

6 imposes temporal baselines lacking in Section 2705(b).

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COUNT I

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REQUEST FOR DECLARATORY RELIEF –

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INVALIDITY OF SECTION 2705(b) UNDER THE FIRST AMENDMENT

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21. Overbreadth Doctrine. “When the Government restricts speech, the

11 Government bears the burden of proving the constitutionality of its actions.” Comite de

12 Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 944 (9th Cir. 2011)

13 (“Comite de Jornaleros”) (internal quotation marks omitted). “In a facial challenge to a law’s

14 validity under the First Amendment, the law may be invalidated as overbroad if a substantial

15 number of its applications are unconstitutional, judged in relation to the statute’s plainly

16 legitimate sweep.” Id. (internal quotation marks omitted).

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22. Presumptive Invalidity of Prior Restraints. A secrecy order “imposes a prior

18 restraint on speech.” In re Sealing and Non-Disclosure of Pen/Trap/2703(d) Orders, 562 F.

19 Supp. 2d 876, 882 (S.D. Tex. 2008) (“In re Sealing”). Any prior restraint “bear[s] heavy

20 presumption against its constitutional validity,” and the government has a “heavy burden of

21 showing justification for the imposition of such a restraint.” Capital Cities Media, Inc. v.

22 Toole, 463 U.S. 1303, 1305 (1983). Thus, because Section 2705 on its face authorizes the

23 issuance of secrecy orders that operate as a prior restraint on Microsoft’s speech, the

24 government’s burden of justifying the restraint is particularly heavy. The statute authorizes

25 secrecy orders that prohibit, ex ante, providers such as Microsoft from engaging in core

26 protected speech under the First Amendment, i.e., speech about the government’s access to

27 customers’ sensitive communications and documents and its increased surveillance on the

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1 Internet. “Whatever differences may exist about interpretations of the First Amendment, there

2 is practically universal agreement that a major purpose of that Amendment was to protect the

3 free discussion of governmental affairs.” Mills v. Alabama, 384 U.S. 214, 218 (1971).

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23. Content-Based Speech Restrictions. Secrecy orders issued under

5 Section 2705(b) also function as content-based restrictions on speech, as “they effectively

6 preclude speech on an entire topic—the [accompanying] order and its underlying criminal

7 investigations.” In re Sealing, 562 F. Supp. 2d at 881. Like prior restraints, “[c]ontent-based

8 regulations are presumptively invalid” and subject to strict scrutiny. R.A.V. v. City of St. Paul,

9 505 U.S. 377, 382 (1992). They may be upheld only if they are “narrowly tailored to promote a

10 compelling Government interest.” United States v. Playboy Entm’t Group, Inc., 529 U.S. 803,

11 813 (2000). “If a less restrictive alternative would serve the Government’s purpose, the

12 legislature must use that alternative.” Id.

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24. Presumptive Openness of Government Records. Secrecy orders also

14 improperly inhibit the public’s right of access to search warrants under both the common law

15 and the First Amendment. Upon application by a party, the press, or the public, search

16 warrants generally must be unsealed after investigations are concluded. See United States v.

17 Bus. of Custer Battlefield Museum & Store, 658 F.3d 1188, 1194-95 (9th Cir. 2011) (access to

18 search warrant materials may be denied only where “compelling reasons” outweigh

19 presumption of disclosure). But when a search warrant is accompanied by an indefinite secrecy

20 order, the public and the press—like the affected customer—may have no idea a warrant has

21 been issued. As a result, even after the government concludes an investigation, the public and

22 the press may have no effective way to learn about, discuss, and debate the government’s

23 actions.

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25. Overbreadth of Section 2705(b). Section 2705(b) facially violates the First

25 Amendment because a substantial number of its applications are unconstitutional under these

26 standards, when judged in relation to the statute’s legitimate sweep. This overbreadth

27 manifests itself in at least three ways.

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1

26. Indefinite Duration. First, Section 2705(b) is unconstitutional because it

2 permits secrecy orders “for such period as the court deems appropriate.” Because this language

3 at least allows a court to issue secrecy orders of a prolonged duration, and has been understood

4 by dozens of courts (including this one) to authorize indefinite secrecy orders, the statute

5 violates the First Amendment because it is not narrowly tailored to satisfy a compelling

6 government interest. Even when circumstances initially justify a secrecy order as the narrowest

7 means available to satisfy a compelling government interest, the First Amendment demands

8 that the provider be free to engage in truthful speech about the government’s activities as soon

9 as secrecy is no longer required to satisfy that interest. In re Sealing, 562 F. Supp. 2d at 895

10 (“As a rule, sealing and non-disclosure of electronic surveillance orders must be neither

11 permanent nor, what amounts to the same thing, indefinite.”); In Matter of Search Warrant for

12 [Redacted]@hotmail.com, 74 F. Supp. 3d 1184, 1185 (N.D. Cal. 2014) (reading Section

13 2705(b) to require a fixed end date on any secrecy order; observing the “First Amendment

14 rights of both Microsoft and the public” were affected by such an order); In the Matter of the

15 Grand Jury Subpoena for: [Redacted]@yahoo.com, 79 F. Supp. 3d 1091, 1091 (N.D. Cal.,

16 2015) (denying government’s application for indefinite order under Section 2705(b) because it

17 would “amount to an undue prior restraint of Yahoo!’s First Amendment right to inform the

18 public of its role in searching and seizing its information”). A secrecy order of a prolonged or

19 indefinite duration will apply beyond the point when a compelling government interest requires

20 it. As a result, to the extent it authorizes issuance of secrecy orders of prolonged or indefinite

21 duration, Section 2705(b) violates the First Amendment on its face. See Butterworth v. Smith,

22 494 U.S. 624, 635-36 (1993) (state statute indefinitely banning witnesses from disclosing

23 testimony given before a grand jury violates the First Amendment).

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27. “Reason to Believe.” Second, Section 2705(b) is unconstitutionally overbroad

25 because it permits a court to issue a secrecy order whenever it has “reason to believe”

26 notification would result in one of five listed adverse results. But the statute does not require

27 that the “reason to believe” be grounded in the specific facts of a particular investigation, as

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1 distinct from the government’s overall experiences or other unspecified considerations.

2 Further, the statute offers no guidance as to the evidentiary burden the government bears in

3 showing a “reason to believe” sufficient to justify a secrecy order. And the “reason to believe”

4 standard fails to require that a secrecy order be the least restrictive means available to further

5 the government’s interest in avoiding the specified adverse results, as the First Amendment

6 requires to justify this sort of restraint. The “reason to believe” standard therefore falls far

7 short of the “heavy burden” the First Amendment imposes when the government seeks to

8 impose a prior restraint on speech.

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28. The Overbroad Catchall. Third, Section 2705(b) allows a court to issue secrecy

10 orders whenever it finds “reason to believe” notification of the target would “otherwise

11 seriously jeopardiz[e] an investigation or unduly delay[] a trial.” This subjective and vaguely-

12 defined provision allows the issuance of secrecy orders in the absence of any compelling

13 interest sufficient to justify a prior restraint or a content-based restriction on speech. There may

14 be compelling circumstances not captured within the “adverse results” specifically enumerated

15 in Section 2705(b)(1)-(4) that would justify a restraint on the provider’s speech, but this

16 catchall provision is substantially broader than necessary to account for those circumstances

17 and provides no meaningful constraints. It therefore violates the First Amendment.

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29. Facial Overbreadth. Because Section 2705(b) is overbroad in each of the ways

19 described in the previous paragraphs, the government cannot overcome the presumption that

20 the provision on its face violates the First Amendment.

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30. Judicial Declaration. A judicial declaration that Section 2705(b) violates the

22 First Amendment is necessary and appropriate so Microsoft may ascertain its obligations under

23 law. Absent such a declaration, the government will continue to seek, and courts will continue

24 to issue, secrecy orders that impermissibly restrict the First Amendment rights of Microsoft and

25 similarly situated providers. And although Microsoft has the right to challenge individual

26 orders (as it has done), the need for Microsoft repeatedly to expend time and effort challenging

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1 orders issued pursuant to a constitutionally flawed statute places an impermissible burden on its
2 First Amendment rights.
3 COUNT II
4 REQUEST FOR DECLARATORY RELIEF—
5 INVALIDITY OF SECTION 2705(b) UNDER THE FOURTH AMENDMENT
6 31. Notice under the Fourth Amendment. Notice to an owner whose property is
7 being searched or seized “is an element of the reasonableness inquiry under the Fourth
8 Amendment.” Wilson v. Arkansas, 514 U.S. 927, 934 (1995); see also United States v. Freitas,
9 800 F.2d 1451, 1456 (9th Cir. 1986).
10 32. Failure to Provide Notice. A statute is facially unconstitutional under the
11 Fourth Amendment if the “applications of the statute in which it actually authorizes or prohibits
12 conduct” are unconstitutional. City of Los Angeles v. Patel, 135 S. Ct. 2443, 2451 (2015).
13 Section 2705(b) is facially unconstitutional because, as discussed above, it permits secrecy
14 orders that prohibit providers from telling customers when the government has accessed their
15 private information and data, without requiring constitutionally sufficient proof of the existence
16 of a compelling government interest and without temporally limiting the prohibition to the least
17 restrictive period sufficient to satisfy the government’s compelling interests. The constitutional
18 injury is exacerbated by the fact that, under 18 U.S.C. § 2703(b)(1)(A), the government need
19 not give any notice to a customer whose content it obtains by warrant. The interaction of these
20 provisions means the government can access a customer’s most sensitive information without
21 the customer having any way to learn about, or challenge, the government’s intrusion. This
22 result flouts fundamental Fourth Amendment principles.
23 33. Standards for Physical Search. Section 2705(b)’s Fourth Amendment
24 deficiency is underscored by comparison to the limits on the government’s authority to conduct
25 a search and seizure in the physical world. It has been established for centuries that, absent
26 exigent circumstances, law enforcement must provide contemporaneous notice when
27

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1 conducting a search or seizure. “The common-law principle that law enforcement officers must

2 announce their presence and provide residents an opportunity to open the door is an ancient

3 one.” Michigan v. Hudson, 547 U.S. 586, 589 (2006). Even when exigent circumstances exist

4 and thus allow law enforcement to conduct a search before providing notice, the government

5 may delay notice only for a limited period of time. See 18 U.S.C. § 3103a; Fed. R. Crim. P.

6 41(f)(1)(C). As a result, if an individual or business elects to maintain its emails on premises,

7 the government could not execute a search warrant for those emails without the customer

8 learning about it and having the ability to assert any rights or privileges it may have. “[W]hen

9 law enforcement seizes property pursuant to a warrant, due process requires them to take

10 reasonable steps to give notice that the property has been taken so the owner can pursue

11 available remedies for its return.” City of West Covina v. Perkins, 525 U.S. 234, 240 (1999);

12 Lavan v. City of Los Angeles, 693 F.3d 1022, 1032 (9th Cir. 2012) (“[T]he government may not

13 take property like a thief in the night; rather, it must announce its intentions and give the

14 property owner a chance to argue against the taking.”) (internal quotation marks and citation

15 omitted).

16

34. Privacy in the Cloud. Here, Microsoft’s customers have decided to store their

17 information and data with Microsoft in the cloud rather than on computers at their own

18 premises. This technological fortuity, however, does not weaken the privacy interests at stake.

19 See Riley, 134 S. Ct. at 2494-95 (“The fact that technology now allows an individual to carry

20 in his hand” a cell phone that contains the “privacies of life,” including thousands of

21 photographs and records of all his communications, “does not make the information any less

22 worthy of the protection for which the Founders fought[.]”). Nevertheless, relying on Section

23 2705(b), the government seeks and executes warrants for electronic communications far more

24 frequently than it sought and executed warrants for physical documents and communications—

25 apparently because it believes it can search and seize those documents and communications

26 under a veil of secrecy. But providing less protection to information stored in the cloud than to

27 information stored in a local server or papers stored in a file cabinet would ignore the Supreme

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1 Court’s admonition not to let “technology [] erode the privacy guaranteed by the Fourth

2 Amendment” and its caution to, when confronted with new technologies, “assure[] preservation

3 of that degree of privacy against government that existed when the Fourth Amendment was

4 adopted.” Kyllo v. United States, 533 U.S. 27, 34 (2001).

5

35. Standards for Standing. When the government serves a warrant on Microsoft

6 seeking a customer’s private information and data, the Fourth Amendment rights described

7 above belong to the customer, whose “papers and effects” are the target of the government’s

8 legal process. But Microsoft has third-party standing to vindicate its customers’ Fourth

9 Amendment rights to notice, particularly when customers lack sufficient knowledge to

10 challenge government action because of the government’s tactic of operating behind a veil of

11 secrecy. See Powers v. Ohio 499 U.S. 400, 410–11 (1991) (permitting third-party standing

12 where: (1) the litigant has constitutional standing (i.e., the litigant has suffered an “injury in

13 fact,” giving him or her a “sufficiently concrete interest” in the outcome of the issue in

14 dispute); (2) the litigant has a “close relation to the third party”; and (3) there is some hindrance

15 to the third party’s ability to protect his or her own interests) (internal quotation marks and

16 citations omitted).

17

36. Microsoft’s Standing. Microsoft satisfies each element of the Powers test.

18 First, Microsoft has a core business interest in safeguarding its customers’ private

19 correspondence and documents. Section 2705(b)’s violation of Microsoft’s customers’ Fourth

20 Amendment rights therefore injures Microsoft by eroding the customer trust that encourages

21 individuals and businesses to migrate their technological infrastructure to Microsoft’s cloud.

22 Further, the Fourth Amendment harms caused by Section 2705(b) are themselves the subject of

23 Microsoft’s forbidden political speech, speech in which Microsoft cannot engage because of

24 secrecy orders issued pursuant to Section 2705(b); accordingly, the Fourth Amendment

25 violations caused by Section 2705(b) compound Microsoft’s First Amendment injury. Second,

26 courts recognize that providers such as Microsoft have a sufficiently close relationship with

27 their customers to allow providers to assert their customers’ constitutional rights under Powers.

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1 See In re Verizon Internet Servs., 257 F. Supp. 2d 244, 258 (D.D.C. 2003) (“Verizon’s

2 relationship with its client subscribers is the kind of relationship that warrants allowing Verizon

3 to assert a First Amendment challenge on their behalf.”), rev’d on other grounds by Recording

4 Industry Ass’n of Am., Inc. v. Verizon Internet Servs., Inc., 351 F.3d 1229, 1239 (D.C. Cir.

5 2003)). Third, by design, Section 2705(b) hinders any effort by Microsoft’s customers to

6 protect their own Fourth Amendment rights.

7

37. Judicial Declaration. A judicial declaration that Section 2705(b) violates the

8 Fourth Amendment is necessary and appropriate so that Microsoft and the government may

9 ascertain their obligations under law. Absent such a declaration, the government will continue

10 to request and obtain secrecy orders that impermissibly restrict the Fourth Amendment rights of

11 Microsoft’s customers and the customers of other, similarly situated providers.

12

PRAYER FOR RELIEF

13

Microsoft prays for an Order and Judgment:

14

(a) Declaring that 18 U.S.C. § 2705(b) is facially unconstitutional under the First

15 Amendment;

16

(b) Declaring that 18 U.S.C. § 2705(b) is facially unconstitutional under the Fourth

17 Amendment;

18

and

19

(c) Granting such other and further equitable or legal relief as the Court deems

20 proper.

21

22

23

24

25

26

27

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1

DATED this 14th day of April, 2016.

2

Davis Wright Tremaine LLP

3

By /s/ Stephen M. Rummage

4

Stephen M. Rummage, WSBA #11168

5

By /s/ Ambika K. Doran

Ambika K. Doran, WSBA #38237

6

1201 Third Avenue, Suite 2200

Seattle, WA 98101

7

Telephone: 206-757-8136

Fax: 206-757-7136

8

E-mail: steverummage@dwt.com,

ambikadoran@dwt.com

9

Laura Handman*

10

Davis Wright Tremaine LLP

1919 Pennsylvania Ave NW #800,

11

Washington, DC 20006

Telephone: (202) 973-4200

12

Fax: (202) 973-4429

E-mail: laurahandman@dwt.com

13

James M. Garland*

14

Alexander A. Berengaut*

Katharine R. Goodloe*

15

Covington and Burling LLP

One CityCenter

16

850 10th St., N.W.

Washington, DC 20001

17

Tel: (202) 662-6000

Fax: (202) 662-6291

18

Email: jgarland@cov.com,

aberengaut@cov.com, kgoodloe@cov.com

19

Bradford L. Smith

20

David M. Howard

Jonathan Palmer

21

Microsoft Corporation

One Microsoft Way

22

Redmond, WA 98052

23

*pro hac vice application to be filed

24

Attorneys for Microsoft Corporation

25

26

27

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1

The Honorable James L. Robart

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

9

10 Microsoft Corporation,

11

Plaintiff,

12

v.

13 The United States Department of Justice, and
Loretta Lynch, in her official capacity as 14 Attorney General of the United States,

No. 2:16-cv-00538-JLR
FIRST AMENDED COMPLAINT FOR DECLARATORY JUDGMENT

15

Defendants.

16 Microsoft Corporation (“Microsoft”) alleges as follows.
17 INTRODUCTION
18 1. Microsoft brings this case because its customers have a right to know when the
19 government obtains a warrant to read their emails, and because Microsoft has a right to tell
20 them. Yet the Electronic Communications Privacy Act (“ECPA”) allows courts to order
21 Microsoft to keep its customers in the dark when the government seeks their email content or
22 other private information, based solely on a “reason to believe” that disclosure might hinder an
23 investigation. Nothing in the statute requires that the “reason to believe” be grounded in the
24 facts of the particular investigation, and the statute contains no limit on the length of time
25 secrecy orders may be kept in place. 18 U.S.C. § 2705(b). Consequently, as Microsoft’s
26 customers increasingly store their most private and sensitive information in the cloud, the
27

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1 government increasingly seeks (and obtains) secrecy orders under Section 2705(b). This

2 statute violates both the Fourth Amendment, which affords people and businesses the right to

3 know if the government searches or seizes their property, and the First Amendment, which

4 enshrines Microsoft’s rights to talk to its customers and to discuss how the government

5 conducts its investigations—subject only to restraints narrowly tailored to serve compelling

6 government interests. People do not give up their rights when they move their private

7 information from physical storage to the cloud. Microsoft therefore asks the Court to declare

8 that Section 2705(b) is unconstitutional, both on its face and as applied to Microsoft and its

9 customers. Microsoft also asks the Court to declare that 18 U.S.C. § 2703 is unconstitutional,

10 both on its face and as applied, to the extent it permits the government to conduct warranted

11 searches and seizures without notice to the target of the warrant.

12

2. Before the digital age, individuals and businesses stored their most sensitive

13 correspondence and other documents in file cabinets and desk drawers. As computers became

14 prevalent, users moved their materials to local computers and on-premises servers, which

15 continued to remain within the user’s physical possession and control. In both eras, the

16 government had to give notice when it sought private information and communications, except

17 in the rarest of circumstances.

18

3. Cloud computing has spurred a profound change in the storage of private

19 information. Today, individuals increasingly keep their emails and documents on remote

20 servers owned by third parties, i.e., in the cloud, using free web-based services such as

21 Microsoft’s Outlook.com. Businesses have also migrated their information technology

22 infrastructure to servers hosted by providers such as Microsoft, which offer productivity

23 software (e.g., Microsoft’s Office365) and the ability to access correspondence and other

24 documents from any device. But the transition to the cloud does not alter the fundamental

25 constitutional requirement that the government must—with few exceptions—give notice when

26 it searches and seizes the private information or communications of individuals or businesses.

27
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1

4. The government, however, has exploited the transition to cloud computing as a

2 means of expanding its power to conduct secret investigations. As individuals and businesses

3 have moved their most sensitive information to the cloud, the government has increasingly

4 adopted the tactic of obtaining the private digital documents of cloud customers not from the

5 customers themselves, but through legal process directed at online cloud providers like

6 Microsoft. At the same time, the government seeks secrecy orders under 18 U.S.C. § 2705(b)

7 to prevent Microsoft from telling its customers (or anyone else) of the government’s demands.

8 These secrecy orders generally assert that abiding by the centuries-old requirement of seeking

9 evidence directly from its owner would jeopardize the government’s investigation. Most of the

10 time, these secrecy orders prohibit notification for unreasonably long (or even unlimited)

11 periods of time, which Section 2705(b) permits whenever a court has “reason to believe” any of

12 several adverse consequences might otherwise ensue—including any time notice would

13 “seriously jeopardiz[e] an investigation or unduly delay[] a trial”—without requiring any case-

14 specific showing to support the belief.

15

5. Over a 20-month period ending in May 2016, federal courts issued more than

16 3,250 secrecy orders silencing Microsoft from speaking about the government’s legal demands

17 for Microsoft customers’ data; of those secrecy orders, nearly two-thirds contained no fixed end

18 date. Further, more than 650 of those secrecy orders accompanied search warrants, and

19 roughly 70 percent of those orders were of indefinite duration. (In fact, the dozens of secrecy

20 orders issued to Microsoft in this District almost without exception contain no time limit.)

21 These twin developments—the increase in government demands for online data and the

22 simultaneous increase in secrecy—have combined to undermine confidence in the privacy of

23 the cloud and have impaired Microsoft’s right to be transparent with its customers, a right

24 guaranteed by the First Amendment.

25

6. There may be exceptional circumstances when the government’s interest in

26 investigating criminal conduct justifies an order temporarily barring a provider from notifying a

27 customer that the government has obtained the customer’s private communications and data.

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1 But Section 2705(b) sweeps too broadly. That antiquated law (passed decades before cloud

2 computing existed) allows courts to impose prior restraints on speech about government

3 conduct—the very core of expressive activity the First Amendment is intended to protect—

4 even if other approaches could achieve the government’s objectives without burdening the right

5 to speak freely. The statute sets no limits on the duration of secrecy orders, and it permits prior

6 restraints any time a court has “reason to believe” adverse consequences would occur if the

7 government were not allowed to operate in secret. Under the statute, the assessment of adverse

8 consequences need not be based on the specific facts of the investigation, and the assessment is

9 made only at the time the government applies for the secrecy order, with no obligation on the

10 government to later justify continued restraints on speech even if circumstances change

11 because, for instance, the investigation is closed or the subject learns of it by other means. It

12 also permits those restraints based on the application of purely subjective criteria, such as a

13 finding that notice would “jeopardiz[e] an investigation” in unspecified ways or “unduly delay

14 a trial.” Section 2705(b) is therefore facially overbroad under the First Amendment, since it

15 does not require the government to establish that the continuing restraint on speech is narrowly

16 tailored to promote a compelling interest applicable to the specific secrecy order. Further,

17 because Microsoft has been subjected to non-disclosure orders entered pursuant to Section

18 2705(b) without adherence to the requisite constitutional standards, Section 2705(b) is also

19 unconstitutional under the First Amendment as applied to Microsoft.

20

7. Further, ECPA violates the Constitution’s protection against unreasonable

21 searches and seizures. The Fourth Amendment’s requirement that government engage only in

22 “reasonable” searches necessarily includes a right for people to know when the government

23 searches or seizes their property. See Wilson v. Arkansas, 514 U.S. 927, 934 (1995). For

24 example, if the government comes into a person’s home to seize her letters from a desk drawer

25 or computer hard drive, that person in almost all circumstances has the right to notice of the

26 government’s intrusion. The same is true when the government executes a search of a business

27 to seize emails from the business’s on-site server. But 18 U.S.C. § 2703 combines with Section

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1 2705(b) to subject Microsoft’s cloud customers to a different standard merely because of how

2 they store their communications and data: Section 2703 allows the government to search and

3 seize customers’ private information without providing any notice to the customer, while

4 Section 2705(b) permits the government to obtain an order gagging the cloud services provider

5 based upon a constitutionally insufficient showing. Section 2703, to the extent it authorizes

6 warranted searches and seizures without notice to the warrant’s target, and Section 2705(b)

7 together fall short of the intended reach of Fourth Amendment protections, which do not

8 depend on the technological medium in which private “papers and effects” are stored.

9

8. For these reasons, Microsoft asks the Court to declare that Section 2703, to the

10 extent it permits the government to conduct warranted searches and seizures without notice to

11 the target, and Section 2705(b) are unconstitutional on their face and as applied.

12

PARTIES

13

9. Microsoft. Microsoft is a corporation organized and existing under the laws of

14 the State of Washington, with its principal place of business at One Microsoft Way, Redmond,

15 Washington 98052. Microsoft has standing to bring this action because of the repeated

16 invasion of its First Amendment rights through the issuance of indefinite and insufficiently

17 substantiated secrecy orders, its interest in upholding its public commitment to safeguard the

18 privacy of its customers’ sensitive emails and documents without violating court orders, its

19 right to invoke the Fourth Amendment rights of its customers (who have no practical means of

20 protecting those rights), and its interest in avoiding findings of contempt.

21

10. The United States Department of Justice. The United States Department of

22 Justice is an agency of the executive branch of the federal government, employees of which

23 regularly apply for secrecy orders under 18 U.S.C. § 2705(b), serve those secrecy orders on

24 providers, including Microsoft, and obtain the contents of electronic communications without

25 notice to affected Microsoft customers under 18 U.S.C. § 2703.

26

11. Loretta Lynch. Loretta Lynch, sued in her official capacity only, is the Attorney

27 General of the United States. Attorney General Lynch has ultimate authority over the United

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1 States Department of Justice, employees of which regularly apply for secrecy orders under 18

2 U.S.C. § 2705(b), serve those secrecy orders on providers, including Microsoft, and obtain the

3 contents of electronic communications without notice to affected Microsoft customers under 18

4 U.S.C. § 2703.

5

JURISDICTION AND VENUE

6

12. Jurisdiction. This Court has jurisdiction over this action pursuant to 28 U.S.C.

7 § 1331 because the action concerns federal questions, and pursuant to 28 U.S.C. §§ 2201 and

8 2202 because this is a civil action for a declaratory judgment.

9

13. Venue. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(2)

10 because Microsoft has its headquarters and principal place of business in this District and

11 because Microsoft’s speech, in the absence of a secrecy order, would emanate in substantial

12 part from this District.
MICROSOFT’S CLOUD SERVICES 13
14. Cloud Computing. As they migrate their communications and documents to the 14
cloud, individuals and businesses have increasingly entrusted Microsoft and other providers 15
with their most private information—what the Supreme Court has referred to as a “cache of 16
sensitive personal information.” Riley v. California, 134 S. Ct. 2473, 2490 (2014). A customer 17
that stored paper documents in file cabinets or emails on on-site servers would generally know 18
contemporaneously about the execution of a warrant by law enforcement—and would be able 19
to assert any rights concerning any documents or data seized during the search. A customer 20
storing documents and emails remotely in the cloud should be in the same position. That is, 21
cloud customers should be able to trust they will know if they become the targets of warrants or 22
other legal process authorizing the seizure of sensitive information. 23
15. Secrecy Orders. Secrecy orders issued under Section 2705(b) combine with the 24
government’s ability to obtain electronic communications and data without notice to the target 25
under Section 2703 to give the government a double-barreled weapon, allowing it to seek 26
electronic communications and other private data under a veil of prolonged (or even indefinite) 27

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1 secrecy. The government’s use of legal process directed at cloud providers such as Microsoft,

2 when combined with accompanying secrecy orders, amounts to a substantial expansion of law

3 enforcement’s ability to engage in secret search and seizure activity, adversely affecting both

4 Microsoft’s right to communicate with its customers and the customers’ privacy interests—

5 simply because customers have moved their information to the cloud.

6

16. The Frequency of Secrecy Orders. Between September 2014 and May 2016,

7 Microsoft received more than 6,000 federal demands for customer information or data. Of

8 those demands, more than 3,250 were accompanied by secrecy orders (including more than 650

9 secrecy orders served with search warrants), forbidding Microsoft from telling the affected

10 customers that the government was looking at their information. The vast majority of these

11 secrecy orders related to consumer accounts and prevent Microsoft from telling affected

12 individuals about the government’s intrusion into their personal affairs; others prevent

13 Microsoft from telling business customers that the government has searched and seized the

14 emails of individual employees of the customer. Further, more than 2,000 of these federal

15 secrecy orders (including more than 450 secrecy orders accompanying search warrants)

16 contained no time limit, meaning that Microsoft could forever be barred from telling the

17 affected customer about the government’s intrusion. The government has used this tactic in

18 this District. Since September 2014, Microsoft received at least 63 secrecy orders issued in this

19 District pursuant to Section 2705(b), which almost without exception contained no time limit.

20 These secrecy orders prohibit Microsoft from speaking about the government’s specific

21 demands to anyone and forbid Microsoft from ever telling its customers whose documents and

22 communications the government has obtained. The secrecy orders thus prevent Microsoft’s

23 customers and the public at large from ever learning the full extent of government access to

24 private, online information.

25

STATUTORY OVERVIEW

26

17. Section 2703. Congress enacted Section 2703 as part of the Electronic

27 Communications Privacy Act of 1986 (“ECPA”). Section 2703 authorizes the government to

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1 obtain the contents of electronic communications pursuant to a warrant without the government

2 providing notice to the person whose communications are being seized and searched.

3

18. Section 2705(b). Congress also enacted Section 2705(b) as part of ECPA.

4 Section 2705(b) provides, in its entirety:

5

(b) PRECLUSION OF NOTICE TO SUBJECT OF GOVERNMENTAL

ACCESS.—A governmental entity acting under section 2703,

6

when it is not required to notify the subscriber or customer under

section 2703(b)(1), or to the extent that it may delay such notice

7

pursuant to subsection (a) of this section, may apply to a court for

an order commanding a provider of electronic communications

8

service or remote computing service to whom a warrant,

subpoena, or court order is directed, for such period as the court

9

deems appropriate, not to notify any other person of the existence

of the warrant, subpoena, or court order. The court shall enter

10

such an order if it determines that there is reason to believe that

notification of the existence of the warrant, subpoena, or court

11

order will result in—

12

(1) endangering the life or physical safety of an individual;

13

(2) flight from prosecution;

14

(3) destruction of or tampering with evidence;

15

(4) intimidation of potential witnesses; or

16

(5) otherwise seriously jeopardizing an investigation or unduly

delaying a trial.

17

18

19. Effect of Statute. Microsoft is a “provider of electronic communications

19 service or remote computing service” as those terms are used in ECPA. Under the plain terms

20 of Section 2705(b), a court therefore may order Microsoft “not to notify any other person of

21 the existence” of a legal demand for its customer’s emails and documents. A court may issue

22 such an order “for such period as the court deems appropriate,” without any requirement that

23 the government advise the court of any change in circumstances bearing upon the government’s

24 initial asserted need for nondisclosure. Thus, for example, a secrecy order may prevent

25 Microsoft from informing a customer of the intrusion even after the government’s investigation

26 ends or becomes public through other means. And under Section 2703, the government itself

27
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1 has no obligation to provide notice when it seizes and searches the contents of electronic

2 communications pursuant to a warrant.

3

20. Grounds for Secrecy Order under Section 2705(b). Section 2705(b) does not

4 require a court to consider whether a secrecy order is narrowly tailored to further the

5 government’s asserted interests in a particular case and whether there are less restrictive

6 alternatives in that case. Indeed, the statute contemplates that the court “shall enter such an

7 order” without weighing whether less restrictive alternatives are available. Further, Section

8 2705(b) allows the court to issue a secrecy order whenever it finds “reason to believe” that any

9 of five adverse results would otherwise occur, including when notification “will result in …

10 otherwise seriously jeopardizing an investigation or unduly delaying a trial.” Nothing in

11 Section 2705(b) requires a court to base its finding of a “reason to believe” on a showing of

12 specific facts applicable to the particular request for secrecy.

13

21. Comparison to Section 2705(a). Section 2705(b) is notably different from its

14 parallel provision, Section 2705(a), which applies to certain forms of legal process issued under

15 ECPA, 18 U.S.C. § 2703(b)(1)(B). When the government requires a provider to disclose

16 information under this provision, the government itself has an affirmative obligation to notify

17 the customer. Section 2705(a) permits the government to delay its notice when “there is reason

18 to believe” notification will trigger the same five adverse results listed in Section 2705(b). But

19 even though Section 2705(a) relies on exactly the same government interests as Section

20 2705(b) to justify withholding notice, Section 2705(a) authorizes a delay of only a definite and

21 fixed duration—90 days—and requires the government to justify any further delays in

22 notification. In other words, in Section 2705(a), Congress determined that withholding notice

23 for no more than 90 days satisfied the five government interests enumerated in both Section

24 2705(a) and Section 2705(b), subject only to the government’s right to renew the period of

25 delayed upon making a further showing.

26

22. Searches in the Physical World. By allowing the government to operate behind

27 a veil of secrecy, Sections 2703 and 2705(b) also differ from similar forms of process in the

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1 physical world. For example, although 18 U.S.C. § 3103a authorizes so-called “sneak and

2 peek” warrants for secret searches—the only permissible means of executing search warrants of

3 physical documents without notice—that provision presumptively requires the government to

4 notify the target of the search “within a reasonable period not to exceed 30 days after the date

5 of its execution.” 18 U.S.C. § 3103a(b)(3). The statute permits extensions of this deferred

6 notice, but “subject to the condition that extensions should only be granted upon an updated

7 showing of the need for further delay and that each additional delay should be limited to

8 periods of 90 days or less.” 18 U.S.C. § 3103a(c). While these provisions permit delays of

9 longer than 30 and 90 days “if the facts of the case justify a longer period of delay,” the statute

10 imposes temporal baselines lacking in Sections 2703 and 2705(b).

11

COUNT I

12

REQUEST FOR DECLARATORY RELIEF –

13

INVALIDITY OF SECTION 2705(b) UNDER THE FIRST AMENDMENT

14

23. Overbreadth Doctrine. “When the Government restricts speech, the

15 Government bears the burden of proving the constitutionality of its actions.” Comite de

16 Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 944 (9th Cir. 2011)

17 (internal quotation marks and citation omitted). “In a facial challenge to a law’s validity under

18 the First Amendment, the law may be invalidated as overbroad if a substantial number of its

19 applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.”

20 Id. (internal quotation marks and citation omitted).

21

24. Presumptive Invalidity of Prior Restraints. A secrecy order “imposes a prior

22 restraint on speech.” In re Sealing and Non-Disclosure of Pen/Trap/2703(d) Orders, 562 F.

23 Supp. 2d 876, 882 (S.D. Tex. 2008) (“In re Sealing”). Any prior restraint “bear[s] a heavy

24 presumption against its constitutional validity,” and the government has a “heavy burden of

25 showing justification for the imposition of such a restraint.” Capital Cities Media, Inc. v.

26 Toole, 463 U.S. 1303, 1305 (1983). Thus, because Section 2705 on its face authorizes the

27 issuance of secrecy orders that operate as a prior restraint on Microsoft’s speech, the

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1 government’s burden of justifying the restraint is particularly heavy. The statute authorizes

2 secrecy orders that prohibit, ex ante, providers such as Microsoft from engaging in core

3 protected speech under the First Amendment, i.e., speech about the government’s access to

4 customers’ sensitive communications and documents and its increased surveillance on the

5 Internet. “Whatever differences may exist about interpretations of the First Amendment, there

6 is practically universal agreement that a major purpose of that Amendment was to protect the

7 free discussion of governmental affairs.” Mills v. Alabama, 384 U.S. 214, 218 (1971).

8

25. Content-Based Speech Restrictions. Secrecy orders issued under Section

9 2705(b) also function as content-based restrictions on speech, as “they effectively preclude

10 speech on an entire topic—the [accompanying] order and its underlying criminal

11 investigation.” In re Sealing, 562 F. Supp. 2d at 881. Like prior restraints, “[c]ontent-based

12 regulations are presumptively invalid” and subject to strict scrutiny. R.A.V. v. City of St. Paul,

13 505 U.S. 377, 382 (1992). They may be upheld only if they are “narrowly tailored to promote a

14 compelling Government interest.” United States v. Playboy Entm’t Group, Inc., 529 U.S. 803,

15 813 (2000). “If a less restrictive alternative would serve the Government’s purpose, the

16 legislature must use that alternative.” Id.

17

26. Presumptive Openness of Government Records. Secrecy orders also

18 improperly inhibit the public’s right of access to search warrants under both the common law

19 and the First Amendment. Upon application by a party, the press, or the public, search

20 warrants generally must be unsealed after investigations are concluded. See United States v.

21 Bus. of Custer Battlefield Museum & Store, 658 F.3d 1188, 1194-95 (9th Cir. 2011) (access to

22 search warrant materials may be denied only where “compelling reasons” outweigh

23 presumption of disclosure). But when a search warrant is accompanied by an indefinite secrecy

24 order, the public and the press—like the affected customer—may have no idea a warrant has

25 been issued. As a result, even after the government concludes an investigation, the public and

26 the press may have no effective way to learn about, discuss, and debate the government’s

27 actions.

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1

27. Overbreadth of Section 2705(b). Section 2705(b) facially violates the First

2 Amendment because a substantial number of its applications are unconstitutional under these

3 standards, when judged in relation to the statute’s legitimate sweep. This overbreadth

4 manifests itself in at least three ways.

5

28. Indefinite Duration. First, Section 2705(b) is unconstitutional because it

6 permits secrecy orders “for such period as the court deems appropriate.” Because this language

7 at least allows a court to issue secrecy orders of a prolonged duration, and has been understood

8 by dozens of courts (including this one) to authorize indefinite secrecy orders, the statute

9 violates the First Amendment because it is not narrowly tailored to satisfy a compelling

10 government interest. Even when case-specific circumstances initially justify a secrecy order as

11 the narrowest means available to satisfy a compelling government interest, the First

12 Amendment demands that the provider be free to engage in truthful speech about the

13 government’s activities as soon as secrecy is no longer required to satisfy that interest. In re

14 Sealing, 562 F. Supp. 2d at 895 (“As a rule, sealing and non-disclosure of electronic

15 surveillance orders must be neither permanent nor, what amounts to the same thing,

16 indefinite.”); In Matter of Search Warrant for [Redacted]@hotmail.com, 74 F. Supp. 3d 1184,

17 1185 (N.D. Cal. 2014) (reading Section 2705(b) to require a fixed end date on any secrecy

18 order; observing the “First Amendment rights of both Microsoft and the public” were affected

19 by such an order); In the Matter of the Grand Jury Subpoena for: [Redacted]@yahoo.com, 79

20 F. Supp. 3d 1091, 1091 (N.D. Cal., 2015) (denying government’s application for indefinite

21 order under Section 2705(b) because it would “amount to an undue prior restraint of Yahoo!’s

22 First Amendment right to inform the public of its role in searching and seizing its

23 information”). A secrecy order of a prolonged or indefinite duration will apply beyond the

24 point when a compelling government interest requires it. As a result, to the extent it authorizes

25 issuance of secrecy orders of prolonged or indefinite duration, Section 2705(b) violates the

26 First Amendment on its face. See Butterworth v. Smith, 494 U.S. 624, 635-36 (1993) (state

27
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1 statute indefinitely banning witnesses from disclosing testimony given before a grand jury

2 violates the First Amendment).

3

29. “Reason to Believe.” Second, Section 2705(b) is unconstitutionally overbroad

4 because it permits a court to issue a secrecy order whenever it has “reason to believe”

5 notification would result in one of five listed adverse results. But the statute does not require

6 that the “reason to believe” be grounded in the specific facts of the particular investigation, as

7 distinct from the government’s overall experiences or other unspecified considerations.

8 Further, the statute offers no guidance as to the evidentiary burden the government bears in

9 showing a “reason to believe” sufficient to justify a secrecy order. And the “reason to believe”

10 standard fails to require that a secrecy order be the least restrictive means available to further

11 the government’s interest in avoiding the specified adverse results in the particular case, as the

12 First Amendment requires to justify this sort of restraint. The “reason to believe” standard

13 therefore falls far short of the “heavy burden” the First Amendment imposes when the

14 government seeks to impose a prior restraint on speech.

15

30. The Overbroad Catchall. Third, Section 2705(b) allows a court to issue secrecy

16 orders whenever it finds “reason to believe” notification of the target would “otherwise

17 seriously jeopardiz[e] an investigation or unduly delay[] a trial.” This subjective and vaguely-

18 defined provision allows the issuance of secrecy orders in the absence of any case-specific

19 compelling interest sufficient to justify a prior restraint or a content-based restriction on speech.

20 There may be compelling circumstances not captured within the “adverse results” specifically

21 enumerated in Section 2705(b)(1)-(4) that would justify a restraint on the provider’s speech, but

22 this catchall provision is substantially broader than necessary to account for those

23 circumstances and provides no meaningful constraints. It therefore violates the First

24 Amendment.

25

31. Facial Overbreadth. Because Section 2705(b) is overbroad in each of the ways

26 described in the previous paragraphs, the government cannot overcome the presumption that

27 the provision on its face violates the First Amendment.

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1

32. Invalidity as Applied to Microsoft. For the same reasons that Section 2705(b) is

2 facially invalid, it is also unconstitutional as applied to Microsoft. Of the federal secrecy orders

3 issued to Microsoft in the 20-month period ending in May 2016, more than 2,000 (including

4 more than 450 secrecy orders accompanying search warrants) were indefinite, and all were

5 issued under the deficient “reason to believe” standard, without any statutory requirement for

6 case-specific factual showings. Further, it appears a substantial number of the orders may have

7 relied on the unconstitutionally vague catchall provision to justify the restraint on speech.

8 Almost without exception, the secrecy orders issued in this District pursuant to Section 2705(b)

9 likewise were indefinite in duration, and all were issued pursuant to the defective “reason to

10 believe” standard, without any statutory requirement for a case-specific evidentiary showing,

11 and are therefore constitutionally deficient under these standards.

12

33. Judicial Declaration. A judicial declaration that Section 2705(b) violates the

13 First Amendment is necessary and appropriate so Microsoft may ascertain its obligations under

14 law. Absent such a declaration, the government will continue to seek, and courts will continue

15 to issue, secrecy orders that impermissibly restrict the First Amendment rights of Microsoft and

16 similarly situated providers. And although Microsoft has the right to challenge individual

17 orders (as it has done), the need for Microsoft repeatedly to expend time and effort challenging

18 orders issued pursuant to a constitutionally flawed statute places an impermissible burden on its

19 First Amendment rights.

20 COUNT II
21 REQUEST FOR DECLARATORY RELIEF—
22 INVALIDITY OF SECTIONS 2703 AND 2705(b) UNDER FOURTH AMENDMENT
23 34. Notice under the Fourth Amendment. Notice to an owner whose property is
24 being searched or seized “is an element of the reasonableness inquiry under the Fourth
25 Amendment.” Wilson v. Arkansas, 514 U.S. 927, 934 (1995); see also United States v. Freitas,
26 800 F.2d 1451, 1456 (9th Cir. 1986).
27

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1

35. Failure to Provide Notice. A statute is facially unconstitutional under the

2 Fourth Amendment if the “applications of the statute in which it actually authorizes or prohibits

3 conduct” are unconstitutional. City of Los Angeles v. Patel, 135 S. Ct. 2443, 2451 (2015).

4 Section 2703 is facially unconstitutional to the extent it absolves the government of the

5 obligation to give notice to a customer whose content it obtains by warrant, without regard to

6 the circumstances of the particular case. Section 2705(b) exacerbates the constitutional injury

7 because, as discussed above, it permits secrecy orders that prohibit providers from telling

8 customers when the government has accessed their private information and data, without

9 requiring constitutionally sufficient proof of the existence of a compelling government interest

10 and without temporally limiting the prohibition to the least restrictive period sufficient to

11 satisfy the government’s compelling interests. The interaction of these provisions means the

12 government can access a customer’s most sensitive information without the customer having

13 any way to learn about, or challenge, the government’s intrusion. This result flouts

14 fundamental Fourth Amendment principles.

15

36. Standards for Physical Search. Sections 2703 and 2705(b)’s Fourth

16 Amendment deficiencies are underscored by comparison to the limits on the government’s

17 authority to conduct a search and seizure in the physical world. It has been established for

18 centuries that, absent exigent circumstances, law enforcement must provide contemporaneous

19 notice when conducting a search or seizure. “The common-law principle that law enforcement

20 officers must announce their presence and provide residents an opportunity to open the door is

21 an ancient one.” Michigan v. Hudson, 547 U.S. 586, 589 (2006). Even when exigent

22 circumstances exist and thus allow law enforcement to conduct a search before providing

23 notice, the government may delay notice only for a limited period of time. See 18 U.S.C. §

24 3103a; Fed. R. Crim. P. 41(f)(1)(C). As a result, if an individual or business elects to maintain

25 its emails on premises, the government could not execute a search warrant for those emails

26 without the customer learning about it and having the ability to assert any rights or privileges it

27 may have. “[W]hen law enforcement agents seize property pursuant to a warrant, due process

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1 requires them to take reasonable steps to give notice that the property has been taken so the

2 owner can pursue available remedies for its return.” City of West Covina v. Perkins, 525 U.S.

3 234, 240 (1999). “[T]he government may not take property like a thief in the night; rather, it

4 must announce its intentions and give the property owner a chance to argue against the taking.”

5 Lavan v. City of Los Angeles, 693 F.3d 1022, 1032 (9th Cir. 2012) (internal quotation marks

6 and citation omitted).

7

37. Privacy in the Cloud. Here, Microsoft’s customers have decided to store their

8 information and data with Microsoft in the cloud rather than on computers at their own

9 premises. This technological fortuity, however, does not weaken the privacy interests at stake.

10 See Riley, 134 S. Ct. at 2494-95 (“The fact that technology now allows an individual to carry

11 ... in his hand” a cell phone containing the “privacies of life,” including thousands of

12 photographs and records of all his communications, “does not make the information any less

13 worthy of the protection for which the Founders fought[.]”) (internal quotation marks and

14 citation omitted). Nevertheless, relying on Sections 2703 and 2705(b), the government seeks

15 and executes warrants for electronic communications far more frequently than it sought and

16 executed warrants for physical documents and communications—apparently because it believes

17 it can search and seize those documents and communications under a veil of secrecy. But

18 providing less protection to information stored in the cloud than to information stored in a local

19 server or papers stored in a file cabinet would ignore the Supreme Court’s admonition not to let

20 “technology ... erode the privacy guaranteed by the Fourth Amendment” and its caution to,

21 when confronted with new technologies, “assure[] preservation of that degree of privacy

22 against government that existed when the Fourth Amendment was adopted.” Kyllo v. United

23 States, 533 U.S. 27, 34 (2001).

24

38. Standards for Standing. When the government serves a warrant on Microsoft

25 seeking a customer’s private information and data, the Fourth Amendment rights described

26 above belong to the customer, whose “papers and effects” are the target of the government’s

27 legal process. But Microsoft has third-party standing to vindicate its customers’ Fourth

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1 Amendment rights to notice, particularly when customers lack sufficient knowledge to

2 challenge government action because of the government’s tactic of operating behind a veil of

3 secrecy. See Powers v. Ohio 499 U.S. 400, 410–11 (1991) (permitting third-party standing

4 where: (1) the litigant has “suffered an injury in fact, thus giving him or her a sufficiently

5 concrete interest in the outcome of the issue in dispute”; (2) the litigant has a “close relation to

6 the third party”; and (3) there is “some hindrance to the third party’s ability to protect his or her

7 own interests”) (internal quotation marks and citations omitted).

8

39. Microsoft’s Standing. Microsoft satisfies each element of the Powers test.

9 First, Microsoft has a core business interest in safeguarding its customers’ private

10 correspondence and documents. Sections 2703 and 2705(b)’s violation of Microsoft’s

11 customers’ Fourth Amendment rights therefore injures Microsoft by eroding the customer trust

12 that encourages individuals and businesses to migrate their technological infrastructure to

13 Microsoft’s cloud. Further, the Fourth Amendment harms caused by Sections 2703 and

14 2705(b) are themselves the subject of Microsoft’s forbidden political speech, speech in which

15 Microsoft cannot engage because of secrecy orders issued pursuant to Section 2705(b);

16 accordingly, the Fourth Amendment violations caused by Sections 2703 and 2705(b)

17 compound Microsoft’s First Amendment injury. Second, courts recognize that providers such

18 as Microsoft have a sufficiently close relationship with their customers to allow providers to

19 assert their customers’ constitutional rights under Powers. See In re Verizon Internet Servs.,

20 257 F. Supp. 2d 244, 258 (D.D.C. 2003) (“Verizon’s relationship with its client subscribers is

21 the kind of relationship that warrants allowing Verizon to assert a First Amendment challenge

22 on their behalf.”), rev’d on other grounds by Recording Industry Ass’n of Am., Inc. v. Verizon

23 Internet Servs., Inc., 351 F.3d 1229, 1239 (D.C. Cir. 2003)). Third, by design, Sections 2703

24 and 2705(b) combine to thwart any effort by Microsoft’s customers to protect their own Fourth

25 Amendment rights.

26

40. Invalidity as Applied. For the same reasons that Sections 2703 and 2705(b) on

27 their face violate the Fourth Amendment, they are also unconstitutional as applied to Microsoft

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1 and its customers. The absence of a government notice obligation, combined with the

2 imposition of secrecy orders on Microsoft, has resulted, and will continue to result, in an

3 unconstitutional delay of notice to Microsoft’s customers, in violation of their Fourth

4 Amendment rights.

5

41. Judicial Declaration. A judicial declaration that Sections 2703 and 2705(b)

6 violate the Fourth Amendment is necessary and appropriate so that Microsoft and the

7 government may ascertain their obligations under law. Absent such a declaration, the

8 government will continue to request and obtain secrecy orders that impermissibly restrict the

9 Fourth Amendment rights of Microsoft’s customers and the customers of other, similarly

10 situated providers.

11

PRAYER FOR RELIEF

12

Microsoft prays for an Order and Judgment:

13

(a) Declaring that 18 U.S.C. § 2705(b) is unconstitutional under the First

14 Amendment;

15

(b) Declaring that 18 U.S.C. § 2705(b) is unconstitutional under the Fourth

16 Amendment;

17

(c) Declaring that 18 U.S.C. § 2703 is unconstitutional under the Fourth

18 Amendment, at least to the extent it permits warranted searches and seizures without the

19 government providing notice to the person whose communications are being searched and

20 seized;

21

and

22

(d) Granting such other and further equitable or legal relief as the Court deems

23 proper.

24

25

26

27
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DATED this 17th day of June, 2016.

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Davis Wright Tremaine LLP
By /s/ Stephen M. Rummage Stephen M. Rummage, WSBA #11168 Ambika K. Doran, WSBA #38237 1201 Third Avenue, Suite 2200 Seattle, WA 98101 Telephone: 206-757-8136 Fax: 206-757-7136 E-mail: steverummage@dwt.com, ambikadoran@dwt.com
Laura Handman* Davis Wright Tremaine LLP 1919 Pennsylvania Ave NW #800, Washington, DC 20006 Telephone: (202) 973-4200 Fax: (202) 973-4429 E-mail: laurahandman@dwt.com
James M. Garland* Alexander A. Berengaut* Katharine R. Goodloe* Covington and Burling LLP One CityCenter 850 10th St., N.W. Washington, DC 20001 Tel: (202) 662-6000 Fax: (202) 662-6291 Email: jgarland@cov.com, aberengaut@cov.com, kgoodloe@cov.com
Bradford L. Smith David M. Howard Jonathan Palmer Microsoft Corporation One Microsoft Way Redmond, WA 98052
*Admitted pro hac vice
Attorneys for Microsoft Corporation
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CERTIFICATE OF SERVICE 1
I hereby certify that on June 17, 2016, I electronically filed the foregoing First Amended 2
Complaint for Declaratory Judgment with the Clerk of the Court using the CM/ECF system, 3

which will send notification of such filing to those attorneys of record registered on the 4
CM/ECF system. I further hereby certify that I have mailed by United States Postal Service the 5

document to the following non CM/ECF participant: 6

Stephen P. Wallace

7

1116 Sheffer Road – Apt. F

Aurora, IL 60505 8

9

DATED this 17th day of June, 2016.

10

Davis Wright Tremaine LLP

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Attorneys for HAL Defendants

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By s/ Stephen M. Rummage

Stephen M. Rummage, WSBA #11168

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1201 Third Avenue, Suite 2200

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Seattle, Washington 98101-3045 Telephone: (206) 622-3150

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Fax: (206) 757-7700

E-mail: steverummage@dwt.com

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 Case 2:16-cv-00538-JLR Document 38 Filed 07/22/16 Page 1 of 32

1

The Honorable James L. Robart

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3

4

5

6 UNITED STATES DISTRICT COURT FOR THE

7

WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

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10 11 MICROSOFT CORPORATION,

NO. 16-cv-00538JLR

12

13

v.

UNITED STATES DEPARTMENT OF 14 JUSTICE, and LORETTA LYNCH, in her official

15 capacity as Attorney General of the United States.

Note on Motions Calendar: Sept. 23, 2016 Oral Argument Requested

16

17

MOTION TO DISMISS PURSUANT TO

18

FED. R. CIV. P. 12(B)(1) AND 12(B)(6)

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21

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25

26

27

28

Microsoft v. United States Department of Justice 16-CV-538JLR Motion to Dismiss

United States Department of Justice Federal Programs Branch
20 Mass. Ave. NW, Washington, DC 20002 202-353-0533

Case 2:16-cv-00538-JLR Document 38 Filed 07/22/16 Page 2 of 32

1

TABLE OF CONTENTS

2

3 INTRODUCTION ........................................................................................................................................... 1
4

5 STATUTORY BACKGROUND...................................................................................................................3
6

7 ARGUMENT..................................................................................................................................................... 5
8

9

10

I.

Microsoft’s Claims Should Be Dismissed for Lack of Jurisdiction........................................5

11

12

A. Article III Requires That Constitutional Claims Be Resolved

13

In The Concrete Context Of An Actual Case or Controversy,

14

Not In The Abstract........................................................................................................5

15

16

B. Microsoft Lacks Standing to Challenge Section 2705 Because It Has Not

17

Identified A Concrete And Particularized Injury Sufficient For

18

Article III Jurisdiction ..................................................................................................... 6

19

20

C. Microsoft Lacks Standing to Challenge Section 2705(b) Because A

21

Favorable Judgment Would Not Redress Its Alleged Injury .................................... 8

22

23

D. Microsoft Lacks Standing to Bring Its Fourth Amendment Claims ........................ 9

24

25

1. Microsoft’s Users Have No Fourth Amendment Rights in Most Information

26

Obtained Pursuant to Section 2703 .............................................................................. 9

27

28

2. Microsoft Lacks Standing To Bring Its Fourth Amendment

Microsoft v. United States Department of Justice 16-CV-538JLR Motion to Dismiss - 1

United States Department of Justice Federal Programs Branch
20 Mass. Ave. NW, Washington, DC 20002 202-353-0533

Case 2:16-cv-00538-JLR Document 38 Filed 07/22/16 Page 3 of 32

1

Claims Even For Any Information Obtained Via Section 2703

2

To Which The Fourth Amendment Applies .................................................10

3

4 II. Microsoft’s Complaint Should Be Dismissed on Prudential Grounds ...............................12
5

6 A. Comity Considerations Should Bar Microsoft’s Section
7 2705(b) Claims................................................................................................................12
8

9

10

B. There is No Prudential Standing for Microsoft’s Fourth

11

Amendment Claims.......................................................................................................13

12

13

III. Microsoft’s Complaint Fails to State a First Amendment Claim for Relief........................14

14

15

A. Microsoft’s Overbreadth Challenge to § 2705(b) Fails to

16

State a Claim ...................................................................................................................14

17

18

B. Microsoft Does Not Have An Absolute Right To Make The

19

Disclosure At Issue........................................................................................................15

20

21

C. Even If Nondisclosure Requirements In This Context Implicate

22

The First Amendment, The Procedures In Place Are

23

Constitutionally Sufficient ............................................................................................16

24

25

D. The First Amendment Permits Nondisclosure Orders of

26

Indefinite Duration........................................................................................................18

27

28

Microsoft v. United States Department of Justice 16-CV-538JLR Motion to Dismiss - 2

United States Department of Justice Federal Programs Branch
20 Mass. Ave. NW, Washington, DC 20002 202-353-0533

Case 2:16-cv-00538-JLR Document 38 Filed 07/22/16 Page 4 of 32

1

E. The First Amendment Permits Nondisclosure Orders of

2

Indefinite Duration........................................................................................................20

3

4 IV. Microsoft’s Complaint Fails to State a Fourth Amendment Claim for Relief ...................21
5

6 A. There Is No Constitutional Right To Notice of Legal Process
7 To Third Parties .............................................................................................................22
8

9

10

B. Even If Microsoft’s Users Have a Right to Notice, Those Rights

11

Have No Bearing on the Constitutionality of Section 2705(b)...............................23

12

13

C. Microsoft Has Not Met the Standards for Successful

14

Facial Challenge..............................................................................................................24

15

16

V. Microsoft’s “As Applied” First and Fourth Amendment Challenges

17

Are a Nullity .................................................................................................................................24

18

19 CONCLUSION...............................................................................................................................................24

20

21

22

23

24

25

26

27

28

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1

The Honorable James L. Robart

2

3

4

5

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON

6

AT SEATTLE

7 8 MICROSOFT CORPORATION,

NO. 16-cv-00538JLR

9 v.
10 UNITED STATES DEPARTMENT OF
11 JUSTICE, and LORETTA LYNCH, in her official
12 capacity as Attorney General of the United States.

MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(B)(1) AND 12(B)(6)
Noted on Motions Calendar: Sept. 23, 2016

13

Oral Argument Requested

14

15

INTRODUCTION

16

The public has a compelling public interest in keeping criminal investigations confidential

17 when a judge has found that there is reason to believe that disclosure will endanger the life or

18 physical safety of a person, result in the destruction of evidence, or cause serious jeopardy to a
19 criminal investigation. In the First Amended Complaint (“FAC”), Microsoft challenges the 20 constitutionality of 18 U.S.C. §§ 2703 and 2705(b), statutes that set forth a court-supervised process 21 for ensuring that obtaining electronic information from companies like Microsoft does not result in 22 such adverse consequences.1 Microsoft’s extraordinary request to facially invalidate these provisions 23 does not set forth claims in the concrete context required for Article III jurisdiction, and ignores 24 that these statutes provide for advance review by a neutral and detached magistrate, the cornerstone
of constitutional protections in the First and Fourth Amendment context. 25

26 1 Microsoft refers to these provisions as the Electronic Communications Privacy Act (“ECPA”). However, both §§ 2703

27

and 2705 are part of the Stored Communications Act (“SCA”), enacted as Title II of ECPA in 1986. See Pub. L. No. 99508, 199 Stat. 1848 (codified in scattered sections of Title 18 of the United States Code). ECPA created or amended

28

three separate statutes, including the SCA, that determine how the Government may obtain records and information pertaining to customers and subscribers of providers of electronic communications services and remote communications

services (“ECSPs”).

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1

The provisions challenged by Microsoft go to the heart of the ECPA—comprehensive

2 legislation governing the disclosure of stored records and electronic information by ECSPs that was

3 enacted for the precise purpose of “promoting communications privacy, while protecting legitimate

4 law enforcement needs and promoting technological innovation.” See Sen. Report 99-541 at 4

5 (1986). Section 2703 sets out the legal process the Government must use to obtain information

6 from Microsoft regarding the users of its online services, including subpoenas, court orders, and

7 warrants, and authorizes the Government to provide notice of SCA warrants in the same way it does

8 with respect to all other warrants (i.e., as set forth in Federal Rule of Criminal Procedure 41, to

9 Microsoft, at the place to be searched). Microsoft asserts that section 2703 violates the Fourth

10 Amendment because the statute does not also require the Government to provide notice of those

11 warrants to Microsoft’s users. Section 2705(b) reinforces section 2703 by authorizing a court to

12 order Microsoft not to share details of legal process “for such period as the court deems

13 appropriate” if the court finds “there is reason to believe that [disclosure] will result in” one of five

14 statutorily enumerated types of harm. Microsoft asserts that this section violates its First

15 Amendment rights and the Fourth Amendment rights of users.

16

Microsoft lacks standing to raise any of these claims. Individual court orders, not the statute or

17 the Government, impose the nondisclosure obligations challenged by Microsoft in its section

18 2705(b) claims. Microsoft’s challenge effectively asks this Court to adjudicate the lawfulness of

19 thousands of such court orders from across the United States, without regard to the basis for, and

20 terms of, those 2705(b) orders, which necessarily vary from case to case. Microsoft does not allege

21 any concrete injury grounded in the specific facts and circumstances of any individual order, and

22 absent such a concrete injury, there is no “Case” or “Controversy” within the meaning of Article III

23 of the Constitution. Further, these orders do not preclude Microsoft from speaking about the statute

24 or its impact on the company’s business operations; rather, they simply limit Microsoft from

25 disclosing the fact of a particular request. Any injury from this narrow limitation arises only from

26 specific orders and would not be redressable because this Court cannot relieve Microsoft from its

27 obligation to comply with orders issued by numerous other courts.

28

Microsoft’s Fourth Amendment claims against sections 2705(b) and 2703 also should be

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1 separately dismissed for lack of jurisdiction. Microsoft does not assert its own Fourth Amendment

2 rights, and Microsoft cannot bring a Fourth Amendment claim on behalf of others. Microsoft also

3 cannot demonstrate that it meets the requirements for establishing third-party standing, nor does it

4 even acknowledge that many section 2705(b) orders relate to requests for information in which there

5 is no legitimate expectation of privacy and thus no possible Fourth Amendment injury.

6

Even assuming, arguendo, that this Court could exercise jurisdiction over Microsoft’s claims, the

7 FAC fails to state a claim upon which relief can be granted. Microsoft cannot demonstrate that any

8 individual application of either section is unconstitutional, the standard it would have to meet to

9 succeed in a facial challenge to a statutory provision. And Microsoft’s effort to challenge the statutes

10 “as applied” fares no better because the notice aspect of section 2703 challenged here does not apply

11 to Microsoft, and Microsoft has not demonstrated that any application – let alone all applications –

12 of section 2705(b) as applied to it are unconstitutional. Indeed, Microsoft cannot demonstrate any

13 legal right that would be violated by the sections it challenges. Finally, the right that Microsoft

14 claims—to disclose criminal process to its users—is appropriately limited in this context by a court

15 order upon a showing of the compelling public interests set forth in section 2705(b). Finally, the

16 procedural requirements for a court to issue a nondisclosure order satisfy the First Amendment, and

17 the procedures for notice pursuant to section 2703 and Federal Criminal Rule 41 satisfy the Fourth

18 Amendment. For all of these reasons, Microsoft’s claims should be dismissed.

19

STATUTORY BACKGROUND

20

Section 2703 defines how the Government obtains records and information pertaining to the

21 users of electronic services from ECSPs, including (1) basic user information, such as subscriber

22 name, billing records, and Internet Protocol (“IP) addresses; (2) other non-content data, such as

23 email addresses of others with whom the user has communicated and log files showing the IP

24 address from which those communications originated; and (3) the contents of electronic

25 communications. See generally 18 U.S.C. § 2703 (a)-(c). The Government can obtain basic user

26 information using a grand jury or trial subpoena, an administrative subpoena authorized by Federal

27 or State statute, a court order under section 2703(d), or a search warrant. See id. § 2703(c)(2).

28 Additional non-content information may be obtained by a 2703(d) order, or a search warrant

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1 pursuant to Federal Criminal Rule 41 or similar state procedures. See id. § 2703(c)(1).2 The 2 Government is not required to provide notice to the user when it obtains non-content information. 3 See id. § 2703(c)(3). Finally, the Government may obtain the contents of email or other stored 4 electronic data by seeking a warrant.3 See id. § 2703(a), (b)(1)(A). If the Government obtains content

5 pursuant to a warrant following the procedures in Rule 41 or a state equivalent, section 2703 does

6 not require notice to the user whose information is obtained. See id.

7

Section 2705(b) complements section 2703 by allowing the Government to seek a court order

8 to prevent Microsoft from disclosing the fact it has received section 2703 process regarding a user in

9 those circumstances where the Government is not already required to provide such notice. Compare

10 id. § 2705(a) (authorizing the Government to seek an order delaying § 2703 notice) with id. § 2705(b).

11 At the Government’s request, a court may issue a nondisclosure order “for such period as the court

12 deems appropriate,” id. § 2705(b), if it “determines that there is reason to believe that notification of

13 the existence of the [2703 process] will result” in: (1) endangerment of a person’s life or physical

14 safety; (2) flight from prosecution; (3) destruction of or tampering with evidence; (4) intimidation of

15 potential witnesses; or (5) seriously jeopardizing an investigation or unduly delaying a trial. Id. As the

16 FAC acknowledges, the Government does not seek 2705(b) orders from Microsoft in every

17 instance, but only in connection with about 54% of the legal process served on Microsoft. See FAC ¶

18 16 (noting thousands of instances where no 2705(b) order was sought).

19

Section 2703 process, and related section 2705(b) orders, are employed in a wide array of

20 contexts, often involving pre-indictment investigations that are not yet public. The Government may

21 seek basic subscriber information at an early stage of an investigation, when investigators know

22 nothing more than an IP or email address, and the identity of the individual is unknown, as is

23 frequently the case in investigations involving the sexual exploitation of children. See, e.g., U.S. v.

24 Orisakwe, 624 F. App’x. 149 (5th Cir. 2015). The Government may use a court order under section

25 2 Rule 41(f)(1)C) provides several alternatives for notice (or “receipt”) of a warrant, including “to the person from

26

whom, or from whose premises, the property was taken.” 3 While section 2703(b)(1)(B) allows the Government to obtain content without a warrant, Microsoft challenges only

27

“warranted searches,” FAC ¶ 8, and the authority to obtain content without a warrant is rarely used in any event. Many ECSPs, including Microsoft, refuse to produce content without a search warrant in reliance on U.S. v. Warshak, 631 F.3d

28

266 (6th Cir. 2010), which held that obtaining the contents of emails from a commercial internet service provider using a section 2703(d) court order violates the Fourth Amendment. See Microsoft Transparency Hub, Principles, Policies, and

Practices FAQ, available at https://www.microsoft.com/about/csr/transparencyhub/pppfaq/

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1 2703(d) to gather further information, such as identifying information about individuals with whom 2 a suspect is communicating, see, e.g., U.S. v. Lang, 78 F. Supp. 3d 830, 837 (N.D. Ill. 2015), which is 3 often important in investigations of criminal networks or potential terrorist activity. Where probable

4 cause exists to believe user information includes evidence of a crime, warrants are sought to obtain

5 such evidence, often before the existence of the investigation is public and therefore before law

6 enforcement has been able to secure relevant evidence that could be destroyed. Also, there may be

7 accomplices unknown, or against whom cases are still being built. Cf. U.S. v. Barber, --- F. Supp. 3d --

8 -, 15-cr-40043 (D. Kan. Apr. 27, 2016). In all of these situations, absent the limited secrecy provided

9 for under the law, the ability of law enforcement to accumulate evidence and identify wrongdoers

10 would be seriously undermined by Microsoft’s decision to inform the target of process issued in a

11 criminal investigation. See Times Mirror Co. v. U.S., 873 F.2d 1210, 1215-18 (9th Cir. 1989).

12

ARGUMENT

13 I. Microsoft’s Claims Should Be Dismissed For Lack of Jurisdiction.

14

A. Article III Requires That Constitutional Claims Be Resolved In The Concrete

Context Of An Actual Case or Controversy, Not In The Abstract.

15

“No principle is more fundamental to the judiciary’s proper role in our system of government

16

than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.”

17

Raines v. Byrd, 521 U.S. 811, 818 (1997). “[T]o decide an important question of constitutional law . . .

18

[a court] must find that the question is presented in a ‘case’ or ‘controversy’ that is, in James

19

Madison’s words, ‘of a Judiciary Nature.’” DaimlerChrysler v. Cuno, 547 U.S. 332, 342 (2006). This

20 jurisdictional restriction requires that the issues presented to the court must be “definite and

21 concrete, not hypothetical or abstract.” Ry. Mail Ass’n v. Corsi, 326 U.S. 88, 93 (1945); accord Gov’t &

22 Civic Emps. Org. Comm., CIO v. Windsor, 353 U.S. 364 (1957) (“Federal courts will not pass upon

23 constitutional contentions presented in an abstract rather than in a concrete form.”).

24

The Constitution’s case-or-controversy requirement is enforced, inter alia, by the requirements

25 of Article III standing, which “assures an actual factual setting” in which “a court may decide the

26 case with some confidence.” Valley Forge Christ. Coll. v. Ams. United, 454 U.S. 464, 472 (1982). The

27 requirement of standing must be applied “especially rigorous[ly] when reaching the merits . . . would

28 force [the Court] to decide whether an action taken by one of the other two branches of the Federal

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1 Government was unconstitutional.” Raines, 521 U.S. at 819-20. As discussed below, Article III does

2 not permit claims like those asserted here, in part because such claims fail to describe a concrete

3 injury grounded in the facts of a particular controversy and because any “injury” could only arise

4 from an order issued on review by a coordinate court, precluding redressability.4

5

B. Microsoft Lacks Standing to Challenge § 2705 Because It Has Not Identified A

6

Concrete And Particularized Injury Sufficient For Article III Jurisdiction.

7

To meet its burden to establish constitutional standing, Microsoft must satisfy three elements.

8 First, it must identify an injury-in-fact: “an invasion of a legally protected interest which is (a)

9 concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan v.

10 Defenders of Wildlife, 504 U.S. 555, 560 (1992). Second, Microsoft must show “a causal connection

11 between the injury” and the challenged action. Id. “Third, it must be likely, as opposed to merely

12 speculative, that the . . . injury will be redressed by a favorable decision.” Id. at 561; Vt. Agency of Nat.

13 Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 771 (2000) (redressability requires “substantial likelihood” that

14 “relief will remedy the alleged injury”).

At the pleading stage, a plaintiff must “clearly . . . allege facts demonstrating” an injury in fact. 15

Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). Article III’s requirement of a concrete, 16
particularized injury is intended to “assure that the legal questions presented to the court will be 17
resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context 18
conducive to a realistic appreciation of the consequences of judicial action.” Valley Forge, 454 U.S. at 19
472; see Lujan at 560. Microsoft has alleged only generally that courts have ordered Microsoft not to 20
disclose certain section 2703 process, without identifying any particular order that this Court could 21
analyze to determine the existence, nature, and extent of any injury. Article III does not permit 22
Microsoft to abstract a generalized injury and assert it in this way, untethered from the “concrete 23
factual context” in which individual judges entered nondisclosure orders of “appropriate” duration. 24
Multiple components of the FAC demonstrate the lack of a proper case or controversy here. 25
First, because section 2705(b) authorizes courts to issue nondisclosure orders for legal process that 26
seeks only non-content information, as well as for warrants that seek content information,
27

28 4 This “fundamental limit[] on federal judicial power” also undergirds many of the other Article III jurisdictional
doctrines, including “mootness, ripeness, political question, and the like.” Allen v. Wright, 468 U.S. 737, 750 (1984)

(quoting Vander Jagt v. O’Neill, 699 F.2d 1166, 1178–79 (D.C. Cir. 1983) (Bork, J., concurring)).

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1 Microsoft’s claims fuse together dissimilar types of process seeking dissimilar information from 2 which no common legal principle can be derived under the First and Fourth Amendments. See FAC 3 ¶ 5 (alleging service of 3,250 nondisclosure orders, of which only about “650… accompanied search

4 warrants”). As the Sixth Circuit recognized in rejecting one facial challenge to sections 2703 and

5 2705, the various types of applications that these statutes permit present “a legal question that may

6 be answered differently in different settings . . . depend[ing] [on] . . . complex factual issues.”

7 Warshak v. U.S., 532 F.3d 521, 528 (6th Cir. 2008); see also In re Application . . . Pursuant To 18 U.S.C. §

8 2705(b), 131 F. Supp. 3d 1266, 1270 (D. Utah 2015) (“the balance of constitutional, commercial and

9 governmental interests is different” across the subparts of section 2703).5

10

Second, Section 2705(b) orders are sought in a wide range of investigations and under many

11 different circumstances, and in each instance a court has determined that the requirements of the

12 statute are met and an order of “appropriate” duration is justified. Microsoft readily acknowledges,

13 as it must, the constitutionality of some nondisclosure orders that specify a limited duration. See

14 FAC ¶ 6. Thus, it is apparent that the determination of whether such nondisclosure orders are

15 constitutional requires a fact-specific inquiry, as other courts to consider the lawfulness of section

16 2705(b) orders have recognized. See, e.g., Matter of Application of U.S.A., 45 F. Supp. 3d 1, 6 (D.D.C.

17 2014) (considering “scope of the criminal investigation” in 2705(b) inquiry); U.S. v. Scully, 108 F.

18 Supp. 3d 59, 86 (E.D.N.Y. 2015) (evaluating specific facts relied on for section 2705(b) order).

19

Further, Microsoft itself posits that this case should be resolved using legal tests that are

20 context and fact-specific. See, e.g., FAC ¶ 24 (Government bears “heavy burden” of showing

21 “justification for the imposition” of section 2705(b) orders); id. ¶ 26 (Government may satisfy First

22 Amendment by showing that “compelling reasons outweigh presumption of disclosure”); id. ¶ 34

23 (Constitution requires a “reasonableness inquiry under the Fourth Amendment”). The need for such

24 individualized consideration confirms that “the operation of the statute . . . will be better grasped

25 when viewed in light of a particular application.” Warshak, 532 F.3d at 528.

26

Finally, section 2705(b) provides for nondisclosure orders “for such period as the court deems

27

28 5 Ninth Circuit case law amply demonstrates the importance of such distinctions. Compare, e.g., U.S. v. Golden Valley Elec.,
689 F.3d 1108 (9th Cir. 2012) (analyzing Fourth Amendment standard for administrative subpoenas) with U.S. v. Wong,

334 F.3d 831, 836 (9th Cir. 2003) (analyzing probable cause standard for warrants).

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1 appropriate,” not “indefinite” orders, the manner in which Microsoft chooses to characterize a

2 subset of the orders. See FAC ¶¶ 5, 9. What Microsoft describes as “indefinite” includes both orders

3 that terminate on a specific, yet indeterminate date, e.g., when an indictment issues, as well as those

4 that could last longer. Whether each of those “indefinite” orders is “appropriate” necessarily

5 requires individualized consideration of the context, and any court policies that might govern sealing

6 and unsealing of warrants. All of these elements demonstrate the “necessity” of deciding the legal

7 issues raised by Microsoft in the context of a “particular case[],” DaimlerChrysler, 547 U.S. at 340-41,

8 and thus, the lack of standing to challenge section 2705(b).

9

C. Microsoft Lacks Standing to Challenge Section 2705(b) Because A Favorable

10

Judgment Would Not Redress Its Alleged Injury.

11

Redressability is also absent for Microsoft’s challenge to section 2705(b), because no available

12 relief would “remedy [the] alleged injury.” See Lujan, 504 U.S. at 568. To the extent Microsoft has

13 alleged a cognizable Article III injury at all, that injury is imposed by the individual nondisclosure

14 orders issued in numerous individual cases by this and other courts. A favorable judgment in this

case would not release Microsoft from those individual orders, so its alleged injury would not be 15

remedied and redressability is therefore lacking. See S.D. Myers v. City & Cnty. of S.F. 253 F.3d 461, 16

475 (9th Cir. 2001) (“a plaintiff satisfies the redressability requirement [if] a favorable decision will 17

relieve a discrete injury”). 18
Section 2705(b) does not give rise to any nondisclosure obligations absent a judicial conclusion 19
that the standards in the statute have been met. See 18 U.S.C. § 2705(b). In each case where an order 20
is requested, the court must determine that disclosure “will result in… endangering the life or 21
physical safety of an individual[,] flight from prosecution,” jeopardizing an investigation, or one of 22
the other enumerated harms. Id. Microsoft has neither asked that this Court declare individual 23
nondisclosure orders to be invalid, nor alleged that the nondisclosure orders are invalid in all 24
circumstances. See FAC ¶ 6. At most, based on any order that would issue in this case, individual 25
judges might revisit their earlier orders, and might find that in some particular cases, they had arrived
26 at incorrect conclusions about the “appropriate” duration of a nondisclosure order. But this

27 possibility is insufficient for Article III jurisdiction. Lujan, 504 U.S. at 562 (where relief from injury is

28 dependent “on the unfettered choices made by independent actors [who] exercise [] broad and

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1 legitimate discretion,” there is no redressability); Whitmore v. Ark., 495 U.S. 149, 159 (1990) (no 2 standing where it is “not possible for a litigant to prove in advance” that any particular court order 3 will issue); Clapper v. Amnesty Int’l, 133 S. Ct. 1138, 1149-50 (2013) (speculation about effect on future 4 court orders insufficient for standing). Moreover, courts possess inherent authority to order 5 nondisclosure of search warrants and other judicial materials, and even a broad order invalidating

6 2705(b) could not lift individual nondisclosure orders issued by other judges. See, e.g., Matter of Sealed

7 Affidavit(s) to Search Warrants, 600 F.2d 1256, 1257 (9th Cir. 1979) (citing Nixon v. Warner Commcn’s.,

8 435 U.S. 589, 598-99 (1978) (“Every court has supervisory power over its own records . . . the

9 decision as to access is one best left to the sound discretion of the trial court”)); accord U.S. v.

10 Jacobson, 785 F. Supp. 563, 567-68 (E.D. Va. 1992) (analyzing Government’s motion for

11 nondisclosure order under Court’s “inherent authority”). Therefore, Microsoft’s First Amendment

12 claim and its Fourth Amendment challenge to 2705(b) should be dismissed for lack of jurisdiction.

13

D. Microsoft Lacks Standing To Bring Its Fourth Amendment Claims.

14

1. Microsoft’s Users Have No Fourth Amendment Rights in Most Non-Content

15

Information Obtained Pursuant to Section 2703.

16

This Court also lacks jurisdiction over Microsoft’s claims that sections 2703 and 2705(b)

17 violate the Fourth Amendment because Microsoft disclaims any reliance on its own Fourth

18 Amendment rights, see FAC ¶ 39, and its users have no Fourth Amendment rights in much of the

19 information sought. Microsoft explicitly asserts only whatever Fourth Amendment rights might

20 belong to its users. See id. Absent a physical trespass, a Fourth Amendment “search” occurs only

21 when “government officers violate a person’s reasonable expectation of privacy.” U.S. v. Jones, 132 S.

22 Ct. 945, 950 (2012) (quoting Katz v. U.S., 389 U.S. 347, 360 (1967)). But no Fourth Amendment

23 interests of Microsoft users are implicated when the Government seeks from Microsoft most non-

24 content records and information, such as names, IP addresses, or other basic subscriber data.

25 Because a user must disclose such information in order to obtain service, it is well-established that

26 non-content information obtained under section 2703 using a subpoena or 2703(d) order is

27 information in which Microsoft’s users do not have a reasonable expectation of privacy. See U.S. v.

28 Forrester, 512 F.3d 500, 510 (9th Cir. 2008) (“e-mail and Internet users have no expectation of

privacy in the to/from addresses of [e-mails] or the IP addresses of the websites they visit”); U.S. v.

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1 Graham, --- F.3d ---, 2016 WL 3068018, *7 (4th Cir. May 31, 2016) (en banc) (same); U.S. v. Christie,

2 624 F.3d 558, 573 (3d Cir. 2010) (collecting cases). Since Microsoft acknowledges that the majority

3 of the orders issued during the relevant period do not relate to search warrants,6 and, as described in

4 note 3, supra, Microsoft will not disclose content without a warrant, the majority of 2705(b) orders

5 Microsoft alleges it has received pertain to information in which its users do not have any Fourth

6 Amendment rights. Without a legally-protected interest, there can be no constitutional injury, see

7 Lujan, 504 U.S. at 560, and thus, Microsoft lacks standing to bring a Fourth Amendment challenge

8 based on the absence of notice to its users in those situations.

9

2. Microsoft Lacks Standing To Bring Its Fourth Amendment Claims Even For Any

10

Information Obtained Via § 2703 To Which The Fourth Amendment Applies.

11

a. Microsoft Does Not Have Standing to Bring a Claim on Behalf of its Users.

Even where the Government obtains information to which the Fourth Amendment applies, 12
Microsoft cannot establish standing because it asserts only the Fourth Amendment interests of its 13
customers. See FAC ¶ 38. “Fourth Amendment rights are personal rights which, like some other 14
constitutional rights, may not be vicariously asserted.” Alderman v. U.S., 394 U.S. 165, 174 (1969); 15
accord Steagald v. U.S., 451 U.S. 204, 219 (1981) (“[R]ights such as those conferred by the Fourth 16
Amendment are personal in nature”). Accordingly, “only the person whose Fourth Amendment

17 rights were violated can sue to vindicate those rights.” Moreland v. Las Vegas P.D., 159 F.3d 365, 369

18 (9th Cir. 1998); see Rakas v. Illinois, 439 U.S. 128, 134 (1978) (“A person who is aggrieved by an illegal

19 search and seizure only through the introduction of damaging evidence secured by a search of a

20 third person[] . . . has not had any of his Fourth Amendment rights infringed”). In Rakas, as in most

21 cases addressing the personal nature of Fourth Amendment rights, a criminal defendant sought to

22 exclude evidence obtained by a search or seizure of a third party’s premises. See 439 U.S. at 134.

23 While Rakas framed the requirement that an individual must assert his or her own Fourth

24 Amendment rights as an issue of substantive Fourth Amendment law, see id. at 139-40, Microsoft’s

25 inability to bring a claim on behalf of its users is properly viewed as an absence of the personal

26

27

6 The FAC alleges that out of over 3250 requests accompanied by nondisclosure orders, only “more than 650,” or approximately 20%, were served with search warrants. And although the FAC does not challenge § 2703 as to non-

28

content information obtained without a warrant, the Fourth Amendment challenge to § 2705(b) is not limited to warranted searches. See FAC at 18 ¶¶ (b) – (c).

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1 injury required for Article III standing. See Moreland, 159 F.3d at 369. Microsoft cannot establish “a

2 personal stake or interest in the outcome of the controversy” because its Fourth Amendment rights

3 are not at issue. Rakas, 439 U.S. at 132 n.2.

4

b. Microsoft Does Not Have Standing to Bring a Claim on Its Users’ Behalf.

5

Microsoft cannot sidestep the absence of a personal injury by invoking the narrow exception

6 for third-party standing. A “plaintiff generally must assert his own legal rights and interests, and

7 cannot rest his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin, 422 U.S.

8 490, 499 (1975). While the “fundamental restriction” on a court’s authority to hear a claim that is

9 based “on the legal rights or interests of third parties” is subject to “certain, limited exceptions,” a

10 plaintiff seeking such standing must satisfy “three important criteria,” at least two of which are not

11 met here. Powers v. Ohio, 499 U.S. 400, 410-11 (1991).

12

First, Microsoft cannot allege the type of close relationship with its users that would permit it

13 to bring this action, id. at 411, precisely because Fourth Amendment rights cannot be vicariously

14 asserted. Microsoft’s reliance on In re Verizon Internet Servs., 257 F. Supp. 2d 244, 258 (D.D.C. 2003),

15 rev’d, 351 F.3d 1229, 1239 (D.C. Cir. 2003), is unavailing in this context. Finding Verizon had

16 standing to bring a First Amendment claim, the court relied on the Supreme Court’s alteration of

17 traditional standing rules to permit facial First Amendment overbreadth challenges by persons

18 whose rights are not violated. See 257 F. Supp. 2d at 257-58. No such corollary principle exists for

19 challenges under the Fourth Amendment. See, e.g., Kowalski v. Tesmer, 543 U.S. 125, 130 (2004) 20 (noting “lessening of prudential limitations on standing” in the First Amendment context);7 U.S. v.

21 Salerno, 481 U.S. 739, 745 (1987) (“we have not recognized an ‘overbreadth’ doctrine outside the 22 limited context of the First Amendment”).8 Rather, Rakas and other authorities demonstrate that 23 Fourth Amendment rights are inherently personal and thus cannot be asserted by third parties

24

25

7A court’s standing inquiry “involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise.” Warth, 422 U.S. at 498. While a plaintiff’s ability to rest its claim for relief on the legal rights

26

or interests of third parties is an element of prudential standing, see Ray Charles Found’n. v. Robinson, 795 F.3d 1109 n.9 (9th Cir. 2015), as discussed above, an injury in fact is required to demonstrate Article III standing.

27

8 The cases cited by the putative intervenors, see ECF No. 38 at 3, are no more helpful to Microsoft’s standing. Craig v. Boren, 429 U.S. 190, 195 (1976), involved “a vendor with standing” itself to bring the challenge, and in U.S. v. Westinghouse

28

Elec., 638 F.2d 570, 574 (3d Cir. 1980), the company asserted not only an employer-employee relationship, but a doctorpatient relationship with regard to employee medical records. These cases do not recognize third-party standing in a

commercial relationship similar to that among Microsoft and its users.

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1 whose own privacy rights and interests are not affected by the actions alleged.

2

This is especially true with respect to Microsoft’s challenge to section 2703, because the notice

3 aspect of that provision does not apply to Microsoft. Rather, section 2703 determines when the

4 Government—not Microsoft—must provide notice to the user. See 18 U.S.C. § 2703(b)(1). Even if

5 Microsoft could assert a Fourth Amendment claim on behalf of its users, which it cannot, it surely

6 could not do so to challenge a provision that does not prescribe or otherwise affect its conduct. See

7 Kowalski, 543 U.S. at 130 (noting that the Supreme Court has allowed third-party standing when

8 “enforcement of the challenged restriction against the litigant would result indirectly in the violation of

9 third parties’ rights”) (quoting Warth, 422 U.S. at 510).

10

For similar reasons, Microsoft cannot satisfy the second Powers criteria: that it independently

11 meet the requirements of Article III standing. See 499 U.S. at 411; Kowalski, 543 U.S. at 129-30.

12 Microsoft has not demonstrated an injury in fact with respect to its claim that section 2705(b) is

13 unconstitutional, see Part I.B, infra, and while Microsoft claims an amorphous and abstract injury to a

14 “business interest” in “customer trust,” its failure to plead a connection between this alleged harm

15 and its economic performance leaves this allegation too ethereal to confer Article III standing. See

16 MAI Sys. v. UIPS, 856 F. Supp. 538 (N.D. Cal. 1994) (abstract theory of “economic injury” did not

17 satisfy Article III); Spokeo, 136 S. Ct. at 1548 (a “concrete” injury must “actually exist” and be

18 “real”).9 Moreover, any allegation that section 2705(b) affects user behavior requires speculation that

19 a particular user decision was caused by the fact that the user did not receive notice of legal process,

20 as opposed to the fact that the Government obtained the user’s information. Such conjectural

21 allegations, premised on the supposed actions of third party users, do not demonstrate the requisite

22 injury, causation, or redressability for Article III standing. See Lujan, 504 U.S. at 560-62.

23 II. Microsoft’s Complaint Should Be Dismissed on Prudential Grounds.

24

A. Comity Considerations Should Bar Microsoft’s Section 2705(b) Claims.

25

Microsoft’s First and Fourth Amendment challenges to section 2705(b) should also be

26 dismissed on comity grounds. It is a settled principle that a challenge to an order of a coordinate

27 court may not be heard by a different court. See Lapin v. Shulton, 333 F.2d 169, 172 (9th Cir. 1964)

28
9 Microsoft does not elaborate on the manner in which this alleged harm to “customer trust” becomes a concrete injury

to the company, and it is Microsoft’s burden to do so. Lujan, 504 U.S. at 561.

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1 (“[I]t is clear, as a matter of comity and of the orderly administration of justice, that [a] court should 2 refuse to exercise its jurisdiction to interfere with the operation of a decree of another federal 3 court.”); Treadaway v. Acad. of Motion Picture Arts & Scis., 783 F.2d 1418, 1422 (9th Cir. 1986) (“When 4 a court entertains an independent action for relief from the final order of another court, it interferes

5 with and usurps the power of the rendering court just as … if it were reviewing that court’s equitable

6 decree.”). Because, as discussed above, adjudicating Microsoft’s section 2705(b) claims requires

7 second-guessing the orders of other, coordinate courts, comity strongly suggests that dismissal of

8 Microsoft’s section 2705(b) claims is appropriate here.10 See Delson Group, Inc. v. GSM Ass’n, 570 F.

9 Appx. 690 (9th Cir. 2014) (upholding dismissal on comity grounds).

10

Comity likewise precludes a declaratory judgment or other equitable relief if it would conflict

11 with the orders of co-equal courts. “[W]hen exercising its equitable powers . . . [a] [c]ourt[] ordinarily

12 should not award injunctive relief that would cause substantial interference with another court’s

13 sovereignty.” U.S. v. AMC Entm’t, 549 F.3d 760, 770 (9th Cir. 2008). This is because “a court must

14 be mindful of any effect its decision might have outside its jurisdiction,” particularly to the decisions

15 of coordinate courts. Id. The same analysis strongly counsels against exercise of the Court’s

16 discretionary jurisdiction under the Declaratory Judgment Act to review the effects of section

17 2705(b) orders of other courts. See Gov’t Emps. Ins. Co. v. Dizol, 133 F.3d 1220, 1223 (9th Cir. 1998)

18 (Declaratory Judgment Act “is deliberately cast in terms of permissive, rather than mandatory,

19 authority”); FDIC v. Aaronian, 93 F.3d 636, 639 (9th Cir. 1996) (constitutional challenge to foreign

20 judgment is “disfavored”). Nor does judicial efficiency favor an exercise of jurisdiction here; to the

21 contrary, the volume of orders likely affected enhances the need for judicial comity. For these 22 reasons, the Court should not exercise discretionary jurisdiction here.11

23

B. There is No Prudential Standing for Microsoft’s Fourth Amendment Claims.

24

Prudential considerations also warrant the dismissal of Microsoft’s Fourth Amendment claims

25 10 There is no redressability here because Microsoft has not pleaded that any particular court order is invalid, see Part I.C,

26

and the comity principles described herein demonstrate that the FAC should not be read to include such challenge. 11 The analysis is no different as to the propriety of second-guessing decisions made by other judges of this Court, rather

27

than those in other jurisdictions. See Wright, Miller & Cooper, 18B Federal Practice and Procedure § 4478, at 637 (“The courts are reluctant to open a ruling once made. This general reluctance is augmented by comity concerns when one

28

judge or court is asked to reconsider the ruling of a different judge or court.”); accord Long v. Dick, 38 F. Supp. 214, 218 (S.D. Cal. 1941) (“The general rule is that a matter which is decided by any District Judge within the District should be,

as a matter of comity without re-examination by another judge, so decided”).

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1 because Microsoft’s interests here are not within the zone of interests protected by the Fourth 2 Amendment. See City of L.A. v. Cty. of Kern, 581 F.3d 841, 845 (9th Cir. 2009) (discussing prudential 3 standing). “[T]he zone of interests test, which governs claims under the Constitution,” counsels 4 against a court’s exercise of jurisdiction “if the plaintiff’s interests are . . . marginally related to or 5 inconsistent with the purposes implicit in the relevant constitutional provision.”12 Id. at 846-47. 6 Microsoft’s commercial interest in attracting users to its various types of services, FAC ¶ 39, is not 7 related to the purpose of the Fourth Amendment, which concerns “[t]he right of the people to be 8 secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” 9 U.S. Const. amend. IV. Therefore, Microsoft cannot show that it has prudential standing to raise its 10 Fourth Amendment claim as to section 2703 or 2705(b). See Kern, 581 F.3d at 848 (recyclers lacked 11 prudential standing to raise Commerce Clause claim because interest in shipping waste intrastate was 12 not even “marginally related” to the chief, interstate, purpose of the Clause).

13 III. Microsoft’s Complaint Fails to State a First Amendment Claim For Relief.

14

A. Microsoft’s Overbreadth Challenge To § 2705(b) Fails To State A Claim.

15

“As-applied challenges are the basic building blocks of constitutional adjudication,” Gonzales v.

16 Carhart, 550 U.S. 124, 168 (2007), and, as a party subject to numerous section 2705(b) orders,

17 Microsoft is wrong to suggest that it may seek invalidation of that section pursuant to the

18 “overbreadth doctrine.” See FAC ¶ 23. This is particularly true where, as here, Microsoft’s challenge

19 arises only from the application of section 2705(b) by individual courts, not the text of the statute.

20

The overbreadth doctrine is not an always-available exception to the rule that constitutional

21 challenges be assessed in the context of a particular case. See FAC ¶ 23. To the contrary, “a person

22 to whom a statute may constitutionally be applied will not be heard to challenge that statute on the

23 ground that it may conceivably be applied unconstitutionally to others, in other situations not before

24 the Court.” Parker v. Levy, 417 U.S. 733, 759 (1974). Here, “the lawfulness of the particular

25 application[s] of the law[] should ordinarily be decided first.” Bd. of Trs. of State Univ. of N.Y. v. Fox,

26 492 U.S. 469, 485 (1989). The Supreme Court elaborated:

27

28 12 The Ninth Circuit has not addressed whether the Supreme Court’s recent holding in Lexmark Int’l v. Static Control,
that “‘prudential standing’ is a misnomer as applied to the zone-of-interests analysis” for statutory claims, 134 S. Ct.

1377, 1387 (2014), impacts its zone of interests jurisprudence for a claim arising under the Constitution.

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1

It is not the usual judicial practice, however, nor do we consider it generally desirable, to

proceed to an overbreadth issue unnecessarily-that is, before it is determined that the

2

statute would be valid as applied. Such a course would convert use of the overbreadth

3

doctrine from a necessary means of vindicating the plaintiff’s own right not to be bound

by a statute that is unconstitutional into a means of mounting gratuitous wholesale

4

attacks upon state and federal laws.

5 Id. at 484-85. Microsoft’s reliance on the overbreadth doctrine is precisely what the Supreme Court

6 forbade: an effort to avoid adjudication of Microsoft’s “right not to be bound” in particular

7 instances in favor of a “gratuitous wholesale attack[]” on the law. Id. at 485.

8

Further, absent an inquiry into the actual circumstances in which section 2705(b) orders have

9 been issued, it is simply not possible to determine that any application of section 2705(b) is

10 unconstitutional, let alone a “substantial number.” New York State Club Ass’n, Inc. v. City of New York,

11 487 U.S. 1, 14 (1988). As the Supreme Court observed, in an overbreadth challenge, a plaintiff “must

12 demonstrate from the text of [the law] and from actual fact that a substantial number of instances

13 exist in which the Law cannot be applied constitutionally.” Id. Yet the only fact alleged by Microsoft

14 to support its facial challenge is the number of purportedly “indefinite” orders, FAC ¶ 26, which

15 says nothing about whether the application has been applied constitutionally in those instances.

16 Indeed, the need to consider Microsoft’s claims in context is especially acute given Microsoft’s focus

17 on orders of “indefinite” duration, since “indefinite” appears nowhere in the text of 2705(b). Given

18 the wide range of circumstances to which 2705(b) may be applied, it is insufficient for Microsoft

19 merely to hypothesize scenarios in which an order might potentially be unconstitutional and assert

20 that those scenarios appear on the statute’s face. See Parker, 417 U.S. at 760.

21

B. Microsoft Does Not Have An Absolute Right To Make The Disclosures At Issue.

22

Microsoft’s First Amendment claim also fails because the First Amendment does not

23 authorize one to share information obtained solely as part of involvement in a confidential,

24 judicially-supervised investigatory process. For example, in Butterworth v. Smith, the Supreme Court,

25 enumerating some limits on grand-jury nondisclosure orders, distinguished two types of

26 information: that “which [a witness] was in possession before he testified,” and that he “obtained as

27 a result of his participation in the proceedings.” 494 U.S. 624, 632 (1990); see id. at 636 (Scalia, J.,

28 concurring) (“[q]uite a different question is presented . . . by a witness’ disclosure of the grand jury

proceedings, which is knowledge he acquires not ‘on his own’ but only by virtue of being made a

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1 witness.”); In re Subpoena, 864 F.2d 1559, 1562 (11th Cir. 1989) (same). Restrictions on information

2 not “possessed prior to becoming” part of the proceeding are not subject to the same type of

3 constitutional scrutiny. Hoffmann-Pugh v. Keenan, 338 F.3d 1136, 1140 (10th Cir. 2003). This principle

4 has been extended to confidential judicial misconduct investigations, see Kamasinski v. Judicial Review

5 Council, 44 F.3d 106 (2d Cir. 1994), as well as to nondisclosure orders issued in civil discovery. See

6 Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32 (1984) (noting that parties “gained the information they

7 wish to disseminate only by virtue of the trial court’s discovery processes”). Because section 2705(b)

8 nondisclosure orders restrict only a limited category of information (i.e., the existence of legal process

9 regarding a particular user), and this is information Microsoft learned only through its receipt of

10 judicially-authorized legal process, Microsoft may be constitutionally prohibited from disclosing this

11 information. Butterworth, 494 U.S. at 632.

12

Significantly, nondisclosure orders issued pursuant to section 2705 do not limit Microsoft’s

13 ability to disseminate information to the public at large about, inter alia, the fact of receipt of an

14 order, the time or place in which the order was received, or the total number of orders it receives,

15 i.e., the “matters of public concern” at the apex of First Amendment protection. U.S. v. Richey, 924

16 F.2d 857, 860 (9th Cir. 1991); compare Snyder v. Phelps, 562 U.S. 443, 452 (2011) (“where matters of

17 purely private significance are at issue, First Amendment protections are often less rigorous”). Thus,

18 as Microsoft has done in its pleadings, Microsoft or other service providers may freely discuss their

19 experience with section 2703 legal process requiring the disclosure of user identities or information,

20 and section 2705(b) orders protecting the confidentiality of such process. This reinforces the

21 conclusion that Microsoft may be restrained from disclosing limited information about confidential

22 criminal investigations without offending the First Amendment.

23

C. Even If Nondisclosure Requirements In This Context Implicate The First

Amendment, The Procedures In Place Are Constitutionally Sufficient.

24

In light of the reduced First Amendment interests in information obtained only through

25

participation in investigative processes, courts have rejected claims that such limits constitute a prior

26

restraint subject to extraordinary standards of First Amendment review. See FAC ¶ 24. For example,

27 courts have concluded that nondisclosure requirements issued in conjunction with national security

28 letters (“NSLs”) (a type of administrative subpoena issued in national security investigations) are not

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1 “typical prior restraints” subject to such heightened scrutiny. Doe v. Mukasey, 549 F.3d 861, 863, 877

2 (2d Cir. 2008); In re NSLs, 930 F. Supp. 2d 1064, 1071 (N.D. Cal. 2013). This is true even though

3 such nondisclosure orders are issued solely on the initiative of the Executive Branch, without prior

4 judicial review as required by § 2705(b). E.g., 18 U.S.C. § 2709; 12 U.S.C. § 3414; 15 U.S.C. § 1681v.

5

Even if Microsoft were correct that the nondisclosure orders here constitute prior restraints,

6 however, the substantive basis and procedural safeguards provided by section 2705(b) are sufficient

7 to satisfy even the most searching First Amendment inquiry imposed in the prior restraint context.

8 In Freedman v. Maryland, 380 U.S. 51 (1965), the Supreme Court examined an exceptionally

9 burdensome prior restraint on political and artistic expression: a “censorship statute” that made it

10 unlawful to exhibit any film unless it was first “duly approved and licensed by” a state Board of

11 censors. 380 U.S. at 52 n.1. Freedman set forth a series of procedural safeguards necessary to validate

12 such a prior restraint, and section 2705’s procedures are sufficient to satisfy the Freedman standards

13 for the narrow restrictions on speech at issue here.

14

As elaborated in Thomas v. Chicago Park Dist., 534 U.S. 316 (2002), Freedman requires that “‘(1)

15 any [administrative] restraint prior to judicial review can be imposed only for a specified brief period

16 . . . (2) expeditious judicial review [] must be available; and (3) the censor must bear the burden of

17 going to court to suppress the speech and must bear the burden of proof once in court.’” Id. at 321.

18 Here, each criterion is met. First, there is no restraint imposed “prior to judicial review.” Id. Rather,

19 section 2705(b) provides for advance judicial authorization of any nondisclosure requirement – even

20 where the legal process is of a form, such as a subpoena, that could be served on Microsoft without

21 advance judicial involvement. The Government “bear[s] the burden of going to court” in advance of

22 any nondisclosure order, and such advance review is, by definition, expeditious. Id. By requiring that

23 the Government persuade the court that there is “reason to believe” one of five enumerated harms

24 “will result” absent a nondisclosure order, section 2705(b) also satisfies the requirement that the

25 Government “bear the burden of proof.”

26

Nor has Microsoft demonstrated any likelihood that the judicially-approved 2705(b) orders to

27 which it is subject would fail the substantive First Amendment requirements for content-based

28 restrictions on speech. See U.S. v. Playboy Entm’t Grp., 529 U.S. 803, 813 (2000) (a statute must be

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1 “narrowly tailored to promote a compelling” interest and be “the least restrictive means” of doing 2 so). Here, nondisclosure orders are imposed in criminal investigations for the purposes of ensuring 3 that the subject of the investigation does not flee, intimidate witnesses, threaten others, destroy 4 evidence, or change his or her behavior to thwart the investigation, thereby leading to the subject

5 remaining a threat to public safety. It is well-established that this interest in protecting the integrity

6 of a criminal investigation and thereby assuring public safety is a compelling one.13 See Va. Dep’t of

7 State Police v. Wash. Post, 386 F.3d 567, 579 (4th Cir. 2004); Schall v. Martin, 467 U.S. 253, 264 (1984).

8

The limits on what the recipient of investigative process may disclose are also tailored

9 narrowly to the Government’s interests. Section 2705(b) is limited in reach to facts about the

10 existence of particular 2703 process, the precise information Congress concluded could create the

11 requisite harm, leaving Microsoft free to speak on other matters of public importance. Further, by

12 placing the question of the “appropriate” length of nondisclosure order in the hands of a court,

13 Congress has provided a procedure to tailor the duration of 2705(b) orders narrowly to the

14 circumstances. See ACLU v. Holder, 673 F.3d 245, 257 (4th Cir. 2011) (statute authorizing sealing was

15 narrowly-tailored where sealing order stemmed from “federal court’s independent decision” on the

16 basis for secrecy).14 Thus, section 2705(b) satisfies the relevant First Amendment legal standards.

17

D. The First Amendment Permits Nondisclosure Orders Of Indefinite Duration

18

Microsoft’s First Amendment claims are premised on an assertion that the First Amendment

19 bars “indefinite” nondisclosure orders. This contention is without merit, particularly with regard to

20 13 To be sure, the Government’s reasons for seeking nondisclosure orders may, in many cases, be described generally,

but this is to be expected: the manner in which these harms inure from disclosure in one case may parallel another. See
21 Scully, 108 F. Supp. 3d at 86-87 (noting that the “general [] nature” of harms supporting a section 2705(b) request does

22

not “suggest that the non-disclosure order was based on an overly broad affidavit”). For example, because: (1) requests for information under 2703 are often made at early stages of a case (in many instances, before the identity of the target is

23

known), and (2) the evidence involved is electronic and therefore can be altered, or destroyed easily, it is unsurprising that the Government frequently may point to destruction of evidence as a likely outcome if an order is disclosed to a

24

user. See id. (“legitimate basis . . . for the seal and order of nondisclosure” where law enforcement officer explained that drug traffickers “actively search for criminal affidavits and search warrants via the internet, and disseminate them to

25

other criminals”). In light of the compelling Government interests in avoiding these harms, the absence of case “specific facts applicable to the particular request,” FAC ¶ 20, particularly early in an investigation, does not indicate an absence of

26

narrow tailoring. But cf. In re Fifteen Subpoenas at 8 (concluding that a fact-specific showing is a requirement of the statute). 14 Here, where determining the appropriate duration requires predictions about the future course of an investigation and

27

future law enforcement harms, narrow tailoring does not require that these predictions be perfect. See Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656, 1671 (2015) (“narrowly tailored” does not equal “perfectly tailored”); cf. First Am. Coalition, 784

28

F.2d 479 (similarly relying on predictive judgments about future harms). This is particularly true at early stages of a multistep investigation, and Congress has provided courts with the discretion to assess whether the proffered predictions are

persuasive and to determine the appropriate duration of secrecy.

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1 criminal warrants and other elements of confidential investigations. For example, in the grand jury 2 context, the Federal Rules of Criminal Procedure require that “[r]ecords, orders, and subpoenas … 3 must be kept under seal… as long as necessary to prevent the unauthorized disclosure of a matter 4 occurring before a grand jury,” Fed. R. Crim. Proc. 6 (emphasis added), and this Rule does not

5 violate the First Amendment. See Hoffmann-Pugh, 338 F.3d at 1140. As the Supreme Court has

6 explained, grand jury nondisclosure requirements may properly outlive a particular grand jury,

7 because the “effects of disclosure” may include “effect[s] [on] the functioning of future grand

8 juries.” Douglas Oil Co. of Calif. v. Petrol Stops Nw., 441 U.S. 211, 222 (1979)).

9

In Times Mirror, the Ninth Circuit explained that the “polic[ies] behind grand jury secrecy apply

10 with equal force to warrant proceedings,” and those interests include preventing those “under

11 suspicion of criminal activity [from] destroy[ing] evidence [or] flee[ing]” and assuring “that persons

12 who are accused but exonerated . . . will not be held up to public ridicule.”15 873 F.2d at 1215-16,

13 1221 (“The district courts’ orders maintaining the warrant materials under indefinite seal are affirmed”)

14 (emphasis added); cf. Certain Interested Indivs. v. Pulitzer Publ’g., 895 F.2d 460, 466 (8th Cir. 1990)

15 (appropriate to continue nondisclosure of warrants to protect personal privacy when no indictments

16 have issued). And courts have found that enduring Government interests may authorize perpetual

17 nondisclosure requirements in other contexts. See First Am. Coalition v. Judicial Inquiry & Review Bd.,

18 784 F.2d 467, 468, 478-79 (3d Cir. 1986) (provision of Pennsylvania Constitution permanently

19 barring “public access to records” in cases where judicial discipline did not ensue “does not violate

20 the [U.S.] constitution”). Therefore, it is not the case that orders that do not contain a definite end

21 date are unconstitutional in a substantial number of cases, especially given the procedural 22 protections and substantive standards set forth in sections 2703 and 2705.16

23

Finally, a nondisclosure order with no fixed end date “does not constitute a permanent bar on

24

25

15 U.S. v. Bus. of Custer Battlefield Museum & Store, 658 F.3d 1188, 1194-96 (9th Cir. 2011) (cited at FAC ¶ 26) held that there is a common law right of access to warrants after an investigation is finished, but that, even at that point in time,

26

warrants may remain sealed if there is “both a compelling reason and a factual basis” for doing so. 16 The cases Plaintiff cites also recognize that lasting nondisclosure orders may be warranted by individualized

27

circumstances, if confined to narrow categories of information. See, e.g., In re Sealing & Non-Disclosure of Pen/Trap/2703(d) Orders, 562 F. Supp. 2d 876, 895 (S.D. Tex. 2008) (some “[l]egitimate confidentiality interests” may need to be

28

“accommodated by redacting the troublesome words or passages”); In Matter of Search Warrant for [Redacted]@hotmail.com, 74 F. Supp. 3d 1184, 1186 (N.D. Cal. 2014) (“If the court were dealing with a grand jury subpoena . . . perhaps an

infinite period of Microsoft silence would be appropriate”). Section 2705(b) meets this standard.

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1 . . . disclosure,” as long as the recipient can “challenge the nondisclosure order again in the future.”

2 Doe v. Holder, 665 F. Supp. 2d 426, 433 (S.D.N.Y. 2009) (applying First Amendment on remand from

3 Mukasey). This legal principle refutes Microsoft’s claim that an order with “no time limit” constitutes

4 a “forever [] bar[]” on disclosure, FAC ¶ 16, because Microsoft can request that the court lift a

5 section 2705(b) order at any time. For these reasons, Microsoft must challenge specific applications

6 of the statute rather than asserting that indefinite section 2705(b) orders are per se unlawful.

7

E. Microsoft’s Other First Amendment Theories Are Without Merit.

8

Microsoft’s Complaint also briefly sketches out several other possible First Amendment legal

9 theories, all of which can be summarily dismissed for the same reasons as the principal First

10 Amendment claims addressed above. First, Microsoft contends that “the public and the press” are

11 harmed by section 2705(b) orders because they lack the information needed to ensure “openness of

12 government records.” FAC ¶ 26. However, as explained above, Microsoft may challenge the

13 continued need for secrecy at any time, and therefore lacks standing to raise the claims of those who

14 lack the information to challenge nondisclosure. Further, the standard of review under this aspect of

15 the First Amendment is no higher than the standards described above, so this claim should be

16 dismissed for the same reasons as Microsoft’s other First Amendment claims. See, e.g., First Amend.

17 Coalit., 784 F.2d at 479; cf. Microsoft Corp. v. Motorola, 2012 WL 5476846, at *1-*2 (W.D. Wash. Nov.

18 12, 2012) (post-trial sealing granted where “documents contain sufficiently confidential information

19 to outweigh the public’s interest in access to public records”).

20

Second, Microsoft asserts that the “reason to believe” standard in section 2705(b) is

21 unconstitutional because it need not be “grounded in the specific facts of a particular investigation,

22 as distinct from the government’s overall experiences.” FAC ¶ 29. But the Supreme Court and

23 Ninth Circuit have confirmed that “the possible effect upon the functioning of future”

24 investigations is a valid basis for deciding whether nondisclosure orders are proper in the grand jury

25 context. Douglas Oil, 441 U.S. at 222; In re Grand Jury Proceedings, 62 F.3d 1175, 1179 n.2 (9th Cir.

26 1995). There is no basis for imposing a different standard on secrecy for investigations where the

27 need for secrecy “appl[ies] with equal force.” Times Mirror, 873 F.2d at 1215; see Matter of EyeCare

28 Physicians of Am, 100 F.3d 514, 519 (7th Cir. 1996). Moreover, it is impossible for this court to judge

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1 whether the rationale for any given order is sufficiently specific, given that Microsoft has not placed

2 a particular order before the court.

3

Nor is it the case that the judicial standard in section 2705(b), requiring a court to have “reason

4 to believe” that disclosure “will result in” one of the specified enumerated harms, is constitutionally

5 inadequate. For a nearly-identical list of potential harms in the grand jury context, the Ninth Circuit

6 has concluded that, even where the risk of such harm is “slight,” nondisclosure is warranted unless

7 the “need for disclosure is greater than the need for continued secrecy.” In re Grand Jury Proceedings,

8 62 F.3d at 1179 & n.2. In other contexts, courts also have held that “good reason” to believe a harm

9 will occur is the standard that adequately protects First Amendment rights. See McGehee v. Casey, 718

10 F.2d 1137, 1148 (D.C. Cir. 1983); Doe, 549 F.3d at 874. 2705(b) satisfies either of these standards,

11 and thereby ensures that the Government “bear the burden of proof.” Thomas, 534 U.S. at 321.

12

Finally, there is no merit to Microsoft’s contention that the Government does not have

13 sufficiently-important interests in avoiding “undu[e] delay [of] a trial” or “serious[] jeopard[y] [to] an

14 investigation.” FAC ¶ 30 (quoting section 2705(b)). To the contrary, any disclosure that “will result”

15 in undercutting an investigation implicates compelling interests in public safety and “protecting the

16 community from crime.” Schall, 467 U.S. at 264; accord Salerno, 481 U.S. at 745. The Supreme Court

17 has likewise recognized the “compelling interest in prompt trials,” an interest that stems from the

18 “Sixth Amendment’s guarantee of a Speedy Trial.” Flanagan v. U.S., 465 U.S. 259, 264-65 (1984). Far

19 from being a “catch-all,” FAC ¶ 30, this provision—like the other enumerated harms in §2705(b) —

20 extends nondisclosure only to circumstances where critical Government interests are at stake.

21 IV. Microsoft’s Complaint Fails To State A Fourth Amendment Claim For Relief.

22

Microsoft’s claims that sections 2703 and 2705(b) are “facially unconstitutional under the

23 Fourth Amendment,” FAC ¶ 35, are without merit. Microsoft challenges only the provisions of

24 section 2703 authorizing “warranted searches”, id. at 18, and any challenge to section 2705(b) is

25 necessarily limited to orders issued in connection with information in which Microsoft users have a 26 Fourth Amendment interest. 17 This Court should reject Microsoft’s attempt to frame its challenge

27 17 Many section 2705(b) nondisclosure orders are issued to keep confidential efforts to procure non-content information,

28

most of which is not protected by the Fourth Amendment and for which the Constitution does not require a warrant. See, e.g., In re Fifteen Subpoenas, No. 16-mc-1300 (E.D.N.Y. May 12, 2016). No Fourth Amendment right to notice can

possibly exist for material outside the Fourth Amendment’s protections.

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1 to these sections as violating its users’ Fourth Amendment privacy interests, id. ¶ 37, because every

2 2703 warrant and 2705(b) order is issued by a “neutral magistrate,” the core “safeguard” of the

3 Fourth Amendment, U.S. v. Gooch, 506 F.3d 1156, 1159 (9th Cir. 2007). Moreover, these statutes

4 were enacted “to ensure the continuing vitality of the [F]ourth [A]mendment” by extending privacy

5 protections, not diminishing them. S. Rep. 99-541 at *5; see Graham, 2016 WL 3060818, at *11.

6

A. There Is No Constitutional Right to Notice of Legal Process To Third Parties.

7

Microsoft’s Fourth Amendment claim relies on its allegation that its users have a Fourth

8 Amendment right to notice of legal process issued to Microsoft, FAC ¶ 38, but no such right is

9 established in the law. Microsoft ignores that the provisions they challenge accord the privacy

10 interests of its users the highest protection available under the Fourth Amendment by providing for

11 advance review by a neutral magistrate, the principal means of protecting privacy interests against

12 governmental intrusion. See Riley v. California, 134 S. Ct. 2473, 2493 (2014) (reaffirming the basic

13 principle that a warrant suffices to protect privacy interests in electronically stored data); U.S. v.

14 Grubbs, 547 U.S. 90, 99 (2006) (“The Constitution protects property owners . . . by interposing, ex

15 ante, the deliberate, impartial judgment of a judicial officer ... between the citizen and the police”).

16

In essence, Microsoft asks that a new Fourth Amendment right to notice be created due to the

17 choice by its users to store some data in places “owned [and controlled] by third parties.” FAC ¶¶ 2-

18 5. But the scope of criminal process has historically extended to obtaining evidence from third

19 parties (such as communications companies) without recognition of a right to notice to the “target”

20 in such circumstances. See Newfield v. Ryan, 91 F.2d 700 (5th Cir. 1937) (subpoenas issued to Western

21 Union for telegrams); In re Horowitz, 482 F.2d 72, 75-80 (2d Cir. 1973) (Friendly, J.) (subpoena to

22 accountant for client records); Postal Laws and Regulations of 1913 § 522 (“[s]ealed matter not to be

23 opened except on warrant”) (emphasis added). This is reflected in the fact that—with the Fourth

24 Amendment in mind—Congress decided not to require notice to a user when the Government

25 obtains a section 2703 warrant using the procedures described in Federal Criminal Rule 41. Rule

26 41(f)(1)(C) provides several alternatives for notice, including “to the person from whom, or from

27 whose premises, the property was taken,” – here, Microsoft. See U.S. v. Bansal, 663 F.3d 634, 662-63

28 (3d Cir. 2011) (defendant could not argue that evidence from his email accounts should be

suppressed on the grounds that he was not given a copy of the warrant, where notice was provided

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1 to service provider in conformance with Rule 41); Scully, 108 F. Supp. 3d at 83-89 (rejecting claim 2 based on Rule 41 and the Fourth Amendment on similar grounds); see also SEC v. O’Brien, 467 U.S. 3 735, 743 (1984) (prior Supreme Court rulings “disable respondents from arguing that notice of

4 subpoenas issued to third parties is necessary to allow a target to prevent an unconstitutional search

5 or seizure of his papers”). Nor does U.S. v. Freitas, 800 F.2d 1451, 1456 (9th Cir. 1986), establish a

6 right to user notice. Freitas addressed only the right of a defendant to notice of a warrant authorizing

7 a surreptitious search of his own home, rather than a warrant issued to a third party, and “the

8 Fourth Amendment draws a firm line at the entrance to the house.” 18 Kyllo v. U.S., 533 U.S. 27, 40

9 (2001). The core safeguard of the Fourth Amendment is review by a neutral and detached

10 magistrate, and such review is provided here. Therefore, Microsoft’s Fourth Amendment claim fails.

11

B. Even if Microsoft’s Users Have a Right to Notice, Those Rights Have No Bearing

12

on the Constitutionality of Section 2705(b).

13

Moreover, even if the Fourth Amendment entitles Microsoft’s users to notice of legal process

14 issued to Microsoft, those rights would have no bearing on the constitutionality of section 2705(b).

“The central purpose of the Fourth Amendment is to safeguard the privacy and security of 15

individuals against arbitrary invasions by government officials.” S. Dakota v. Opperman, 428 U.S. 364, 16

377 (1976) (Powell, J., concurring) (emphasis added); accord Olmstead v. U.S., 277 U.S. 438, 478 (1928) 17

(Brandeis, J., dissenting) (“The protection guaranteed by the [Fourth and Fifth] amendments is 18

[from] . . . unjustifiable intrusion by the government”). The Government is subject to the notice 19

requirements in section 2703, and 2705(b) does not separately operate on the Government. 20
Therefore, any decision by this Court as to the constitutionality of section 2705(b) will only affect 21
Microsoft, not require the Government to provide notice of legal process. Nor could any hypothetical 22
Fourth Amendment right require that Microsoft provide such notice. Any Fourth Amendment 23
rights of Microsoft’s users must run against the Government, not against Microsoft.19 24

25 18 The Supreme Court has never explicitly held that there is any right to notice under the Fourth Amendment. Wilson v.

26

Ark., 514 U.S. 927, 934 (1995), did not address a right to notice per se, but rather spoke to whether “unannounced entry into a home” is reasonable. A home is “the center of our privacy interest.” Freitas, 800 F.2d at 1456; see also Katz, 389

27

U.S. n.16 (contrasting reasons for a rule that officers must knock and announce their identity and purpose before entry to home with issues presented by notice of judicially authorized surveillance); Hudson v. Mich., 547 U.S. 586, 593 (2006).

28 19 The logical extension of Microsoft’s argument would be that users’ Fourth Amendment rights turn on a particular
ECSP’s policy regarding the provision of notice to users, and thus, that a user’s Fourth Amendment rights are violated

when service providers do not provide notice. But the Fourth Amendment does not regulate private parties in this way.

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1

C.

Microsoft Has Not Met the Standards for a Successful Facial Challenge.

2

Microsoft’s Fourth Amendment claims also fail to meet the standard for a valid facial

3 challenge. Such challenges are “the most difficult . . . to mount successfully,” Salerno, 481 U.S. at 745,

4 because the plaintiff must show that “there are no circumstances under which the… provision may

5 be constitutionally applied,” Patel v. City of L.A., 738 F.3d 1058, 1065 (9th Cir. 2013), and federal

6 statutes challenged under the Fourth Amendment have a “strong presumption of constitutionality.”

7 U.S. v. Watson, 423 U.S. 411, 416 (1976). Microsoft cannot show that there are no circumstances

8 under which sections 2703 and 2705(b) can be constitutionally applied. As discussed above, there is

9 no reasonable expectation of privacy in most non-content information, such as the “to/from”

10 addresses of e-mails. See Forrester, 512 F.3d at 510. Thus, in cases where the Government obtains

11 such information pursuant to section 2703 and obtains a 2705(b) order, the Fourth Amendment is

12 not implicated as a matter of law. Further, as Microsoft acknowledges, contemporaneous notice is

13 not necessarily required even when the Fourth Amendment applies. See FAC ¶ 33; Dalia v. U.S., 441

14 U.S. 238, 246 (1979) (not the case that “the Fourth Amendment prohibits covert entry of private

15 premises in all cases, irrespective of the reasonableness of the entry”); Wilson, 415 U.S. at 936

16 (“although a search or seizure of a dwelling might be constitutionally defective … without prior

17 announcement, law enforcement interests may also establish the reasonableness of an unannounced

18 entry”); Freitas, 800 F.2d at 1456 (“the Fourth Amendment does not prohibit all surreptitious

19 entries”).20 Therefore, sections 2703 and 2705(b) are not facially invalid. See Patel, 738 F.3d at 1065.

20 V. Microsoft’s “As Applied” First and Fourth Amendment Challenges Are a Nullity.

21

Finally, the FAC purports to assert “as-applied” challenges alongside each of its facial claims.

22 But Microsoft’s invocation of this phrase is inapposite here, where Microsoft has not pleaded a

23 concrete challenge based on a specific instance. “When faced with a claim that application of a

24 statute renders it unconstitutional, a court must analyze the statute as applied to the particular case,

25 i.e., how it operates in practice against the particular litigant and under the facts of the instant case.”

26

27

20 Further, in assessing the reasonableness of a particular search, a court “must balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged

28

to justify the intrusion.” Tenn. v. Garner, 471 U.S. 1, 8 (1985). This balancing is inherently an individualized inquiry based on the facts of the search at issue, and the Government’s interests may dominate in many cases such as those

enumerated in 2705(b), including threats of violence, flight, or to the integrity of evidence. See Wilson, 514 U.S. at 936.

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1 Wal-Mart v. City of Turlock, 483 F. Supp. 2d 987, 996-97 (E.D. Cal. 2006). As noted above, however,

2 Microsoft has not provided specific facts about any instance of the application of sections 2703 and

3 2705(b) in support of its claims “as applied to Microsoft.” Instead, the only “fact” alleged in support

4 of Microsoft’s “as applied” allegation is the total number of orders to it, see FAC ¶ 32, which

5 provides no information about any particular instance or order. Necessarily, “[a]s-applied challenges

6 . . . are fact-specific in nature,” ProtectMarriage.com-Yes on 8 v. Bowen, 752 F.3d 827, 840 (9th Cir. 2014),

7 and “[a]n as-applied challenge goes to the nature of the application rather than the nature of the law

8 itself.” Desert Outdoor Advert. v. Oakland, 506 F.3d 798, 805 (9th Cir. 2007). Thus, Microsoft’s effort

9 to rely on “the same reasons” (as in its purported facial challenges) for claiming that sections 2703

10 and 2705(b) are unconstitutional as applied, see FAC ¶ 40, fails to state a claim for relief.

11

CONCLUSION

12

For the foregoing reasons, the Court should grant Defendants’ motion to dismiss all claims.

13 Dated: July 22, 2016
14

15

16

BENJAMIN C. MIZER Principal Deputy Assistant

17

Attorney General

Respectfully submitted,
ANNETTE L. HAYES United States Attorney Western District of Washington

18

ANTHONY J. COPPOLINO

19

Deputy Director Federal Programs Branch

20

21

_/s/ ERIC J. SOSKIN _______

22

ERIC J. SOSKIN, PA Bar #200663

JENNIE L. KNEEDLER

23

Trial Attorneys

24

U.S. Department of Justice Civil Division

25

Federal Programs Branch

P.O. Box 883

26

Washington, D.C. 20044

27

(202) 353-0533 (telephone) Eric.Soskin@usdoj.gov

28

HELEN J. BRUNNER Appellate Chief
KERRY KEEFE Civil Chief

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1

CERTIFICATE OF SERVICE

2

3

I hereby certify that, on this 22nd day of July, I electronically filed Defendants’ Motion to

4 Dismiss with the Clerk of the Court using the CM/ECF system which will send notification of such 5
filing to the attorneys of record who are registered as such on the CM/ECF system. I also certify 6 7 that I have caused to be mailed by the U.S. Postal Service the document to Stephen P. Wallace, 1116

8 Sheffer Road – Apt. F, Aurora, IL 60505, who is a non CM/ECF participant.

9

10 Dated: July 22, 2016

/s/ Eric J. Soskin

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ERIC J. SOSKIN

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1

The Honorable James L. Robart

2

3

4

5

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON

6

AT SEATTLE

7 8 MICROSOFT CORPORATION,

NO. 16-cv-00538JLR

9 v.
10 UNITED STATES DEPARTMENT OF
11 JUSTICE, and LORETTA LYNCH, in her official
12 capacity as Attorney General of the United States.

13

14

[PROPOSED] ORDER

15

16 Upon consideration of Defendants’ Motion to Dismiss and any responses and replies 17 thereto, the Court ORDERS that the motion is granted and the above-captioned action is 18 dismissed with prejudice. 19

20 IT IS SO ORDERED 21

22 DATED this _____ day of June, 2016 23

24 ________________________________
25 Hon. James L. Robart
26 United States District Judge
27

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1 Presented by:
2 U.S. Department of Justice, Civil Division 3
Attorneys for Defendants 4

5 /s/ ERIC J. SOSKIN _______

6 ERIC J. SOSKIN, PA Bar #200663

JENNIE L. KNEEDLER 7 Trial Attorneys

8 U.S. Department of Justice Civil Division

9 Federal Programs Branch

10

P.O. Box 883 Washington, D.C. 20044

11 (202) 353-0533 (telephone) Eric.Soskin@usdoj.gov

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Microsoft v. United States Department of Justice 16-CV-538JLR Motion to Dismiss

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2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9

10 MICROSOFT CORPORATION,

CASE NO. C16-0538JLR

11

Plaintiff,

ORDER ON MOTIONS TO

INTERVENE

12

v.

13 UNITED STATES DEPARTMENT OF JUSTICE, et al.,
14 Defendants.
15
I. INTRODUCTION 16
Before the court are two motions to intervene: (1) Stephen P. Wallace’s 17
Emergency Motion to Intervene for Declaratory Judgment Under “Bivens Claim” 18
Violations (Wallace Mot. (Dkt. # 12)) and (2) the American Civil Liberties Union 19
Foundation and the American Civil Liberties Union (collectively, “the ACLU”)’s Motion 20
to Intervene (ACLU Mot. (Dkt. #13)). Microsoft Corporation (“Microsoft”) opposes Mr. 21
Wallace’s motion (Microsoft Resp. I (Dkt. # 19)), but does not oppose the ACLU’s 22

ORDER- 1

1 motion (Microsoft Resp. II (Dkt # 34)). Defendant United States Department of Justice

2 (“the DOJ”) opposes the ACLU’s motion (DOJ Resp. (Dkt. # 33)), but did not respond to

3 Mr. Wallace’s motion (see generally Dkt.). Both Mr. Wallace and the ACLU filed reply

4 briefs in support of their motions to intervene. (Wallace Reply (Dkt. # 32)); (ACLU

5 Reply (Dkt. # 37)). The court has considered the motions, all related submissions, the 6 balance of the record, and the applicable law. Being fully advised,1 the court DENIES 7 the motions to intervene and GRANTS the ACLU amicus curiae status.2

8

II. BACKGROUND

9

This case is about whether the Constitution allows the government to collect a

10 person’s electronically stored information from the person’s service provider without

11 giving notice to the affected person. It is also about whether the Constitution permits

12 court orders forbidding service providers from notifying their customers of the

13 government’s information requests. The statutes that allow for these actions—which

14 Microsoft challenges—are part of the Electronic Communications Privacy Act of 1986

15 (“ECPA”).

16 //

17 //

18

19

1 Although the ACLU requests oral argument on its motion to intervene, the court finds

that oral argument is unnecessary to the court’s disposition of the motion. (See ACLU Mot. at

20 1); Local Rules W.D. Wash. LCR 7(b)(4) (“Unless otherwise ordered by the court, all motions will be decided by the court without oral argument.”).

21

2 On August 26, 2016, the ACLU filed an opposition to the DOJ’s pending motion to

22

dismiss. (See Resp. (Dkt. # 43).) The ACLU requests leave to file its opposition brief as amicus curiae if the court denies the ACLU’s motion intervene. (Id. at 1 n.1.)

ORDER- 2

1 A. ECPA

2

ECPA “addresses various areas of electronic surveillance, including wiretaps,

3 tracking devices, stored wire and electronic communications, pen registers, and trap and

4 trace devices.” See United States v. Anderson, Case No. 2:15-cr-00200-KJD-PAL, 2016

5 WL 4191045, at *7 (D. Nev. Apr. 27, 2016). ECPA focuses on “two types of computer

6 services” in terms of government surveillance: “electronic communications services

7 (e.g., the transfer of electronic messages, such as email, between computer users) and

8 remote computing services (e.g., the provision of offsite computer storage or processing

9 of data and files).” In re Zynga Privacy Litig., 750 F.3d 1098, 1103 (9th Cir. 2014).

10 Accordingly, an electronic communications service provider (“ECS provider”) is an

11 entity that provides “any service which provides to users thereof the ability to send or

12 receive wire or electronic communications,” 18 U.S.C. § 2510(15), and a remote

13 computing service provider (“RCS provider”) is an entity that provides “to the

14 public . . . computer storage or processing services by means of an electronic

15 communications system,” 18 U.S.C. § 2711(2). A subscriber is a person who uses those

16 services. See, e.g., In re Application of the U.S. for an Order Pursuant to 18 U.S.C.

17 § 2705(b), 131 F. Supp. 3d 1266, 1268 (D. Utah 2015) (discussing subscribers as those

18 individuals who use electronic communications and remote computing services).

19

1. The Stored Communications Act

20

Title II of ECPA—the Stored Communications Act (“SCA”)—governs the

21 government’s access to “electronic information stored in third party computers.” In re

22 Zynga, 750 F.3d at 1104. Two SCA statutes, 18 U.S.C. § 2703 and 18 U.S.C. § 2705,

ORDER- 3

1 “regulate relations between a government entity which seeks information; a service

2 provider which holds information; and the subscriber of the service who owns the

3 information and is therefore a target of investigation.” In re Application of the U.S., 131

4 F. Supp. 3d at 1268. The information sought from ECS and RCS providers “may contain

5 content or . . . non-content metadata.” Id.

6

a. Section 2703 of the SCA

7

Section 2703 authorizes the government to acquire a subscriber’s information

8 from a service provider when the subscriber is a “target” of the government’s information

9 request. See 18 U.S.C. § 2703. The provision “establishes a complex scheme pursuant to

10 which a governmental entity can, after fulfilling certain procedural and notice

11 requirements, obtain information from [a service provider] via administrative subpoena 12 or grand jury or trial subpoena.” Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 13 974-75 (C.D. Cal. 2010) (citing 18 U.S.C. § 2703(b)). Section 2703 requires the 14 government to give notice to subscribers that it has obtained their information from a 15 service provider in some circumstances, but not in others. See 18 U.S.C. § 2703(a)-(c)

16 (describing various notice requirements for communication contents and records in

17 electronic storage and remote computing services).

18

b. Section 2705 of the SCA

19

Section 2705 addresses when the government may withhold notice that is

20 otherwise required under Section 2703. See 18 U.S.C. § 2705(a)-(b); In re Application of

21 the U.S., 131 F. Supp. 3d at 1268. Under Section 2705(a), the government may delay

22 giving notice to the subscriber that the government has collected the subscriber’s

ORDER- 4

1 information if certain requirements are met; under Section 2705(b), the government may

2 apply for “a preclusion-of-notice order,” which “command[s] a provider of electronic

3 communications service or remote computing service not to notify any person of the

4 existence of a grand jury subpoena [or other acceptable court order under the SCA] which

5 the Government has served on the provider.” Id. at 1267. A court can issue such a

6 “preclusion-of-notice order” if the court

7

determines that there is reason to believe that notification of the existence

of the warrant, subpoena, or court order will result in (1) endangering the

8

life or physical safety of an individual; (2) flight from prosecution; (3)

destruction of or tampering with evidence; (4) intimidation of potential

9

witnesses; or (5) otherwise seriously jeopardizing an investigation or

unduly delaying a trial.
10 18 U.S.C. § 2705(b). “The combined effect of [§§ 2703] and 2705(b) is that the

11 subscriber may never receive notice of a warrant to obtain content information from a

12 remote computing service and the government may seek an order under § 2705(b) that

13 restrains the provider indefinitely from notifying the subscriber.” In re Application of the

14 U.S., 131 F. Supp. 3d at 1271.

15 B. Microsoft’s Suit

16

On April 14, 2016, Microsoft, a service provider under ECPA,3 filed a complaint

17 against the DOJ seeking declaratory relief (Compl. (Dkt. # 1)), and later amended its

18 complaint on June 17, 2016 (Am. Compl. (Dkt. # 28)). The gravamen of Microsoft’s

19 complaint is that Section 2705(b) is unconstitutional under the First and Fourth

20

21

3 Microsoft is both an ECS provider and an RCS provider. See Crispin, 717 F. Supp. 2d

22 at 978 (citing United States v. Weaver, 636 F. Supp. 2d 769, 770 (C.D. Ill. 2009)).

ORDER- 5

1 Amendments and that Section 2703 is unconstitutional under the Fourth Amendment “to

2 the extent it permits warranted searches and seizures without the government providing

3 notice to the person whose communications are being searched and seized.” (Id.)

4

In Microsoft’s view, “the government has increasingly adopted the tactic of

5 obtaining the private digital documents of cloud4 customers not from the customers

6 themselves, but through legal process directed at online cloud providers like Microsoft.”

7 (Id. ¶ 4. (footnote added)) The government then “seeks secrecy orders under 18 U.S.C.

8 § 2705(b) to prevent Microsoft from telling its customers (or anyone else) of the

9 government’s demands” for that information. (Id.) According to Microsoft, “[t]he vast

10 majority of these secrecy orders relate[] to consumer accounts and prevent Microsoft

11 from telling affected individuals about the government’s intrusion into their personal

12 affairs; others prevent Microsoft from telling business customers that the government has

13 searched and seized the emails of individual employees of the customer.” (Id. ¶ 16.)

14 Microsoft alleges that federal courts have issued “more than 3,250 secrecy orders” over a

15 20-month period ending May 2016. (Id. ¶ 5.) Nearly two-thirds of the orders are

16 allegedly for an indefinite length of time. (Id.)

17 //

18

19 4 The “cloud” is “a metaphor for the ethereal internet.” In re U.S.’s Application for a

20 Search Warrant to Seize & Search Elec. Devices from Edward Cunnius, 770 F. Supp. 2d 1138, 1144 n.5 (W.D. Wash. 2011) (internal quotations omitted) (quoting David A. Couillard,

21 Defogging the Cloud: Applying Fourth Amendment Principles to Evolving Privacy Expectations in Cloud Computing, 93 Minn. L. Rev. 2205, 2216 (2009)). “An external cloud platform is

22

storage or software access that is essentially rented from (or outsourced to) a remote public cloud service provider, such as Amazon or Google.” Id.

ORDER- 6

1

Microsoft contends that Section 2705(b) is unconstitutional on its face and as

2 applied because it violates the First Amendment right of a business to “talk to [the

3 business’s] customers and to discuss how the government conducts its investigations.”

4 (Id. ¶ 1.) Specifically, Microsoft contends that Section 2705(b) is overbroad; imposes

5 impermissible prior restraints on speech, imposes impermissible content-based

6 restrictions on speech, and improperly inhibits the public’s right to access search

7 warrants. (Id. ¶¶ 23-26).

8

Microsoft also alleges that Sections 2705(b) and 2703 are unconstitutional on their

9 faces and as applied because they violate the Fourth Amendment right of “people and

10 businesses . . . to know if the government searches or seizes their property.” (Id. ¶ 33.)

11 Microsoft contends that the statutes are facially invalid insofar as they allow the

12 government to forgo giving notice of its searches and seizures, and to obtain secrecy

13 orders that “prohibit providers from telling customers when the government has accessed

14 their private information” without constitutionally sufficient proof and without sufficient

15 tailoring. (Id. ¶ 35.) Microsoft further alleges that Sections 2703 and 2705(b) are

16 unconstitutional as applied because “[t]he absence of a government notice obligation,

17 combined with the imposition of secrecy orders on Microsoft, has resulted, and will

18 continue to result, in unconstitutional delay of notice to Microsoft’s customers, in

19 violation of their Fourth Amendment rights.” (Id. ¶ 40.) Microsoft asserts that it has

20 third-party standing to “vindicate” its customers’ rights to notice of search and seizure

21 under the Fourth Amendment. (Id. ¶¶ 38-39.)

22

ORDER- 7

1 C. 2

Mr. Wallace’s Motion Mr. Wallace filed his pro se “emergency motion” to intervene on May 17, 2016.5

3 (See generally Wallace Mot.) In his motion, Mr. Wallace contends that he and his sister

4 are victims of embezzlement and conversion of their “$40+ million Irrevocable 5 Spendthrift Trust Estate” (id. at 1), and that two federal judges have “hack[ed] ALL of 6 [Mr. Wallace’s] private Microsoft E-Mail Accounts” (id. at 2 (emphasis in original

7 omitted)). In addition, Mr. Wallace attaches a number of documents to his “emergency 8 motion,” which appear to be primarily about prior—and unrelated—litigation in which

9 Mr. Wallace was involved. (See id. at 3-45.)

10

Microsoft opposes Mr. Wallace’s motion to intervene, arguing that Mr. Wallace

11 does not satisfy the standards under Federal Rule of Civil Procedure 24 for either

12 intervention as of right or permissive intervention. (Microsoft Resp. I at 1-2); see also 13 Fed. R. Civ. P. 24. Mr. Wallace also filed a “supplement/amended memorandum” in 14 which he “asserts his Standing as Private Attorney General,” reiterates his allegations of

15 embezzlement and fraud, and further discusses unrelated litigation in which he was 16 involved. (Reply (Dkt. # 32) at 1-6.) The court construes Mr. Wallace’s

17 “supplement/amended memorandum” as a reply brief in support of his “emergency 18 //

19

20

5 The court construes Mr. Wallace’s “emergency motion” to intervene as a Federal Rule

21 of Civil Procedure 24 motion to intervene as of right or, in the alternative, permissively. (See Wallace Mot.) Mr. Wallace is proceeding pro se and therefore the court must liberally construe

22 his filings. See Blaisdell v. Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013).

ORDER- 8

1 motion” to intervene.6 See Blaisdell, 729 F.3d at 1241. The DOJ did not respond to Mr.

2 Wallace’s intervention motion. (See generally Dkt.)

3 D. 4

The ACLU’s Motion The ACLU moved to intervene in this matter on May 26, 2016. (See generally

5 ACLU Mot.) The ACLU is a Microsoft customer that relies “on Microsoft Corporation’s

6 email and cloud-computing services to store and transmit sensitive records and

7 communications.” (Id. at 1.) As a Microsoft customer, the ACLU argues that it has “an

8 acute interest in ensuring that the government’s demands for the records of Microsoft’s

9 customers are constitutional.” (Id.) It seeks to intervene “to vindicate [its] Fourth

10 Amendment right to notice of searches and seizures that implicate their constitutionally

11 protected privacy interests. Specifically, [the ACLU] seeks to ensure that the government

12 . . . will notify [the ACLU] in the event it obtains [the ACLU’s] communications from

13 Microsoft.” (Id.) The ACLU further contends that intervening may be its only way to

14 challenge the constitutionality of Section 2703 because “customers deprived of notice

15 are, by definition, unaware of the government’s secret searches of their communications,

16 but once customers learn of a search, they no longer need the notice that the government

17 failed to provide.” (Id. at 2.) The ACLU argues that it may intervene as of right, but, if

18 //

19 6 Mr. Wallace also filed an “objection” to Microsoft’s counsel apparently in response to

20 Microsoft’s opposition to his motion and a “notice of spoliation of evidence in victim’s supplemental memorandum.” (See Obj. (Dkt. # 21); Not. (Dkt. # 36).) Mr. Wallace’s

21 “objection” and “notice” are unrelated to any of the issues Mr. Wallace raises in his motion to intervene or any of the issues Microsoft raises in its opposition to Mr. Wallace’s motion. (See

22

Obj.; Not.) Accordingly, the court has not considered them in ruling on Mr. Wallace’s motion to intervene.

ORDER- 9

1 the court finds that it may not, asks that the court exercise its discretion to nevertheless

2 permit the ACLU to intervene. (Id. at 4, 11.)

3

Microsoft does not oppose the ACLU’s motion to intervene. (Microsoft Resp. II

4 at 1 (“Microsoft has no objection to entry of an Order granting the ACLU’s Motion and

5 allowing the filing of the ACLU’s proposed Complaint in Intervention for Declaratory

6 and Injunctive Relief.”).) The DOJ, on the other hand, argues that the ACLU cannot

7 establish that it is entitled to intervene as a matter of right or that the court may exercise 8 its discretion to permit the ACLU to intervene.7 (See DOJ Resp. at 7-12.) Specifically,

9 the DOJ contends that the ACLU has not met the four requirements to intervene as of

10 right. (Id. at 7-11.) The DOJ also argues that permissive intervention should not be

11 granted because the “ACLU’s speculative claims . . . would not provide the Court with

12 additional concrete context for the constitutional challenges here.” (Id. at 12.)

13

III. ANALYSIS

14 A. Standards to Intervene

15

1. Intervention as of Right

16

Federal Rule of Civil Procedure 24 provides for two types of intervention:

17 intervention as of right and permissive intervention. Under Rule 24(a), a prospective 18 intervenor may intervene as of right when a federal statute confers an unconditional right 19 to intervene or when the prospective intervenor claims an interest that may, as a practical

20

21

7 The DOJ also argues that the ACLU may not intervene because the ACLU lacks

independent standing or standing derived from another party. (See id. at 4-7.) The court

22

declines to decide that issue at this time, however, because it has determined that the ACLU has not met the requirements to intervene as of right or permissively.

ORDER- 10

1 matter, be impaired by disposition of the pending action and that interest is not

2 adequately represented by existing parties. See Fed. R. Civ. P. 24(a). The Ninth Circuit

3 has held that to intervene as of right, a prospective intervenor must: (1) file a timely

4 motion; (2) identify a significant protectable interest related to the subject matter of the

5 action; (3) suffer practical impairment of an interest if intervention is not granted; and (4)

6 be inadequately represented by existing parties. Arakaki v. Cayetano, 324 F.3d 1078,

7 1083 (9th Cir. 2003), as amended (May 13, 2003). Failure to satisfy any of these

8 requirements is fatal to a motion to intervene, and the court “need not reach the remaining

9 elements if one of the elements is not satisfied.” Perry v. Proposition 8 Official

10 Proponents, 587 F.3d 947, 950 (9th Cir. 2009). The court, however, construes Rule 24(a)

11 broadly in favor of intervention, id., and must accept as true the nonconclusory

12 allegations of the motion and proposed answer, Sw. Ctr. for Biological Diversity v. Berg,

13 268 F.3d 810, 819 (9th Cir. 2001). The party seeking to intervene bears the burden of

14 showing that all of the requirements for intervention have been met. United States v.

15 Alisal Water Corp., 370 F.3d 915, 919 (9th Cir. 2004).

16

2. Permissive Intervention

17

A proposed intervenor may also intervene by seeking the court’s permission under

18 Rule 24(b). Fed. R. Civ. P. 24(b). The Ninth Circuit has held that a court may 19 permissively allow intervention when the prospective intervenor meets three threshold 20 requirements: (1) files a timely application; (2) shares a common question of law or fact 21 with the main action; and (3) demonstrates that the court has an independent basis for 22 jurisdiction over the intervenor’s claims. Donnelly v. Glickman, 159 F.3d 405, 412 (9th

ORDER- 11

1 Cir. 1998). Unlike intervention as of right, even if all three requirements are satisfied, the

2 district court has considerable discretion to deny permissive intervention. Id. at 412; Fed.

3 R. Civ. P. 24(b). “In exercising its discretion, the court must consider whether the

4 intervention will unduly delay or prejudice the adjudication of the original parties’

5 rights.” Fed. R. Civ. P. 24(b)(3); see also Donnelly, 159 F.3d at 412. The court should

6 also consider whether the interests of the proposed intervenor are adequately represented

7 in the proceedings already, Venegas v. Skaggs, 867 F.2d 527, 530 (9th Cir. 1989), and

8 whether the party seeking intervention “will significantly contribute to full development

9 of the underlying factual issues in the suit and to the just and equitable adjudication of the

10 legal issues presented,” Spangler v. Pasadena Bd. of Educ., 552 F.2d 1326, 1329 (9th Cir.

11 1977).

12

3. Notice and Pleading Requirements for Motion to Intervene

13

In addition, Rule 24(c) provides that a motion to intervene “must state the grounds

14 for intervention and be accompanied by a pleading that sets out the claim or defense for

15 which intervention is sought.” Fed. R. Civ. P. 24(c) (stating notice and pleading

16 requirements). The Ninth Circuit has approved motions to intervene without a pleading

17 or with some other technical defect, but only “as long as the prospective intervenor fully

18 states the legal and factual grounds for intervention.” S.E.C. v. Small Bus. Capital Corp., 19 No. 5:12-CV-03237-EJD, 2014 WL 3749900, at *7 n.2 (N.D. Cal. July 29, 2014) (citing 20 Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 474 (9th Cir. 1992) (“Courts, 21 including this one, have approved intervention motions without a pleading where the 22 court was otherwise apprised of the grounds for the motion.”)).

ORDER- 12

1 B. Mr. Wallace’s Motion

2

Even liberally construing Mr. Wallace’s pro se motion as the court must, see

3 Blaisdell, 729 F.3d at 1241, Mr. Wallace’s motion and the documents accompanying it

4 do not adequately state grounds to intervene in this matter. (See Mot. at 1-2 (stating 5 general allegations of conversion, embezzlement, and email hacking).) Given that Mr. 6 Wallace alleges embezzlement, fraud, and hacking of his email by federal judges, the

7 court cannot ascertain on what legal basis Mr. Wallace is moving to intervene. 8 Accordingly, his motion to intervene is denied.

9

However, even if Mr. Wallace had adequately stated grounds to intervene, the

10 court finds that he may not intervene as of right or permissively. First, he has not 11 identified a legally protectable interest related to the subject matter of the action that

12 would allow him to intervene as of right. See Arakaki, 324 F.3d at 1083. Assuming that 13 Mr. Wallace has identified a legally protectable interest through his allegations of 14 conversion, embezzlement, and email hacking, those interests are not related to the

15 subject matter of this action—that Sections 2703 and 2705(b) are unconstitutional under 16 the First and Fourth Amendments.8 Id. For the same reason, the court declines to permit

17 Mr. Wallace to intervene because his proposed claims do not share a common question of 18 law or fact with Microsoft’s First and Fourth Amendment claims. See Donnelly, 159 19 F.3d at 412 (holding that a proposed intervenor must meet three threshold requirements).

20

21

8 Because the court has found that Mr. Wallace fails to meet this element, which is fatal

22

to his motion to intervene, it will not further analyze the other elements. See Perry, 587 F.3d at 950.

ORDER- 13

1 Thus, Mr. Wallace has not established that he is entitled to intervene as of right, and the

2 court will not allow Mr. Wallace to intervene permissively, given that the allegations in

3 his motion have no nexus to this case.

4 C. The ACLU’s Motion

5

1. Intervention as of Right

6

The ACLU has not established that it may intervene in this case as of right.

7 Where, as here, a party and the proposed intervenor share the same ultimate objective, the

8 court presumes that the party will adequately represent the proposed intervenor’s

9 interests. See Perry, 587 F.3d at 951 (internal quotation marks and citations omitted).

10 The ACLU has not presented the court with compelling reasons to overcome that

11 presumption. Because the court’s finding that the ACLU has not established this element 12 is fatal to the ACLU’s motion to intervene as of right, the court does not address the other

13 elements required for intervention as of right. See id. at 950.

14

a. Adequate Representation

15

It is well established that “[w]here the party and the proposed intervenor share the

16 same ultimate objective, a presumption of adequacy of representation applies, and the

17 intervenor can rebut the presumption only with a compelling showing to the contrary.”

18 Id. at 951 (internal quotation marks and citations omitted). “Divergence of tactics and

19 litigation strategy is not tantamount to divergence over the ultimate objective of the suit.”

20 Id. at 949. In determining whether a would-be intervenor’s interests will be adequately

21 represented by an existing party, the court considers: (1) whether the interest of a present

22 party is such that it will undoubtedly make all of the intervenor’s arguments; (2) whether

ORDER- 14

1 the present party is capable of and willing to make such arguments; and (3) whether the

2 would-be intervenor would offer any necessary elements to the proceedings that other

3 parties would neglect. Berg, 268 F.3d at 822. The most important factor is “how the

4 interest compares with the interests of existing parties.” Arakaki, 324 F.3d at 1086. The

5 proposed intervenor “bears the burden of demonstrating that the existing parties may not

6 adequately represent its interest.” Berg, 268 F.3d at 822-23. Even though the burden is

7 “minimal,” it is “not without teeth.” Prete v. Bradbury, 438 F.3d 949, 956 (9th Cir.

8 2006).

9

The ACLU contends that Microsoft may not adequately represent its interests in

10 this litigation because the ACLU’s interests “are sufficiently different from Microsoft’s.”

11 (ACLU Mot. at 9.) Specifically, the ACLU identifies three purportedly distinct interests:

12 (1) as a customer, the ACLU is “uniquely positioned to articulate the necessity of

13 government-provided notice”; (2) the ACLU seeks “to enforce solely the government’s

14 constitutional obligation to provide notice” under the Fourth Amendment, while

15 Microsoft’s “primary focus” is on communicating with its customers about the

16 government’s searches and seizures; and (3) the ACLU can better provide “the factual

17 context” necessary to help the court understand why a customer’s right to notice under

18 the Fourth Amendment is important. (Id. at 9-10.) These interests are not sufficiently

19 different—and therefore do not present sufficiently compelling reasons—to overcome the

20 presumption that Microsoft will adequately represent the ACLU’s interests.

21

First, the ACLU contends that, as a Microsoft customer, it is uniquely situated in

22 relationship to Microsoft’s position “[a]s a public company” whose “interests are

ORDER- 15

1 diverse” and whose “ultimate responsibility is to its shareholders.” (ACLU Mot. at 14.)

2 But both parties challenge Section 2703 as unconstitutional to the extent it allows the

3 government to obtain communications without providing notice to subscribers, and there

4 is no indication that Microsoft’s challenge to Section 2703 is somehow significantly

5 different because Microsoft is a public company with “diverse” interests. (Compare

6 ACLU Mot. at 11 (seeking “a declaration that 18 U.S.C. § 2703 is unconstitutional to the

7 extent it permits the government to obtain electronic communications without providing

8 notice to the Microsoft customers or subscribers whose communications it has obtained”)

9 with Am. Compl. at 18 (seeking a declaration “that 18 U.S.C. § 2703 is unconstitutional

10 under the Fourth Amendment, at least to the extent it permits warranted searches and

11 seizures without the government providing notice to the person whose communications

12 are being searched and seized”).) Put simply, the ACLU and Microsoft share the same

13 ultimate objective—they want the court to find that Section 2703 violates the Fourth

14 Amendment’s notice requirement. Merely pointing to the different roles they occupy—

15 the ACLU as customer and Microsoft as a public company—does not explain why

16 Microsoft will not adequately represent the ACLU’s interests, particularly when they

17 share this same objective.

18

Second, the court finds the ACLU’s argument that Microsoft will somehow

19 inadequately litigate the issue of whether the government must provide notice under the

20 Fourth Amendment because Microsoft also asserts that it has the right to notify customers

21 of government searches and seizures to be unpersuasive. (See ACLU Mot. at 15.)

22 Microsoft’s claim that Section 2703 is unconstitutional because it allows the government

ORDER- 16

1 to refrain from providing notice to subscribers is the same claim that the ACLU seeks to

2 bring. (Compare ACLU Mot. at 11 (seeking “a declaration that 18 U.S.C. § 2703 is

3 unconstitutional to the extent it permits the government to obtain electronic

4 communications without providing notice to the Microsoft customers or subscribers

5 whose communications it has obtained”) with Am. Compl. at 18 (seeking a declaration

6 “that 18 U.S.C. § 2703 is unconstitutional under the Fourth Amendment, at least to the

7 extent it permits warranted searches and seizures without the government providing

8 notice to the person whose communications are being searched and seized”).) The fact

9 that Microsoft also has other claims does not mean that it will necessarily give short shrift

10 to the one the ACLU champions. In addition, Microsoft asserts that it has third-party

11 standing “to vindicate its customers’ Fourth Amendment rights to notice” (Am. Compl.

12 ¶ 38), which further demonstrates its intent to fully pursue this claim. Accordingly, the

13 court has no reason to believe that Microsoft will not or is unable to fully litigate its claim

14 that Section 2703 is unconstitutional insofar as it allows the government to refrain from

15 giving notice to subscribers. See Berg, 268 F.3d at 822.

16

Finally, the court finds that the ACLU is not in a better position to provide “factual

17 background” in this case and therefore would not offer any necessary elements that

18 Microsoft would neglect. Id. The ACLU’s conclusory statement that its “participation

19 will ensure that the interests of Microsoft’s customers are directly before the [c]ourt”

20 (ACLU Mot. at 16) does not tell the court what “factual background” the ACLU would

21 bring to bear in this matter. The ACLU does not contend that the government has

22

ORDER- 17

1 obtained its information from Microsoft without notice,9 so it is unclear what factual

2 information the ACLU could provide that Microsoft will not. This is all the more true

3 because Microsoft has allegedly been required to turn over subscribers’ information in

4 thousands of cases and, in some of those cases, required to stay silent. (See generally

5 Am. Compl.) Therefore, Microsoft, not the ACLU, is in the best position to provide the

6 court with factual background to advance the argument that Section 2703 is

7 unconstitutional.

8

The reasons the ACLU advances for why it is entitled to intervene are not

9 sufficiently compelling to overcome the presumption that Microsoft will adequately

10 represent their shared interests. Thus, the ACLU is not entitled to intervene as a matter of

11 right.

12

2. Permissive Intervention

13

The court also declines to exercise its discretion to permit the ACLU to intervene

14 in this case. Assuming that the ACLU establishes the three threshold requirements for

15 permissive intervention and that there would be no undue delay or prejudice in allowing 16 the ACLU to intervene, see Donnelly, 159 F.3d at 412, the court finds that other

17 considerations counsel against allowing intervention, see id. (stating that a 18 court has broad discretion to deny permissive intervention even if a proposed intervenor 19 establishes the threshold requirements).

20

21

9 The Court acknowledges the ACLU’s contention that the ACLU may not know if the

government has obtained its information because Section 2703 allows the government to

22

withhold notice in some instances (see ACLU Mot. at 7), but that contention does not bolster the ACLU’s argument that it has helpful “factual background” such that it is entitled to intervene.

ORDER- 18

1

First, the ACLU’s interests are adequately represented by Microsoft for the

2 reasons discussed above. See Venegas, 867 F.2d at 530 (holding that a court may

3 consider whether the proposed intervenor’s interests are already adequately represented

4 in exercising the court’s discretion). The ACLU and Microsoft have the same ultimate

5 objective—a determination that Section 2703 is unconstitutional. Accordingly, the court

6 presumes that Microsoft will adequately represent the ACLU’s interests in this case. See

7 Perry, 587 F.3d at 951 (“[A] presumption of adequacy of representation applies” where

8 “the party and the proposed intervenor share the same ultimate objective.”) The ACLU

9 has offered no compelling justification to rebut that presumption because it has not

10 demonstrated that Microsoft is incapable or unwilling to make all available arguments in

11 support of the objectives it holds in common with the ACLU, or that the ACLU will

12 contribute some element necessary to the adjudication of this case that would otherwise

13 be omitted. See Berg, 268 F.3d at 822 (listing factors to consider in determining whether

14 a proposed intervenor’s interests would be adequately represented by an existing party).

15 For this reason, the court declines to permit the ACLU to intervene.

16

Second, the ACLU will not significantly contribute to the “full development of the

17 underlying factual issues in the suit.” Spangler, 552 F.2d at 1329. Even though the

18 ACLU is a Microsoft customer, the ACLU has not, as far as it knows, been deprived of

19 government notice based on the government obtaining its information from Microsoft

20 under Section 2703. It is therefore unlikely to be able to provide any helpful background

21 information in this matter.

22

ORDER- 19

1

Finally, if the court were to allow the ACLU to intervene, there would be no

2 principled basis for denying intervention to any other Microsoft customer, absent an 3 untimely request to do so.10 See Venegas, 867 F.3d at 531 (holding that “judicial

4 economy is a relevant consideration” in exercising direction on motion to permissively

5 intervene). In seeking to intervene, the ACLU focuses on the fact that it is an

6 organization that “rel[ies] on Microsoft Corporation’s email and cloud-computing

7 services to store and transmit sensitive records and communications,” and that it

8 “agree[s] with Microsoft that [Microsoft’s] customers have a Fourth Amendment right to

9 notice.” (ACLU Mot. at 6.) The ACLU’s position does not appear to be meaningfully

10 different from any other Microsoft customer that contends that the government must

11 notify it if the government obtains its information from Microsoft. The court therefore

12 concludes that, to effectively manage its docket and prevent undue delay in the

13 disposition of this case, it will not permit the ACLU to intervene.

14

3. Amicus Curiae Status

15

The court has “broad discretion” to appoint amicus curiae. Hoptowit v. Ray, 682

16 F.2d 1237, 1260 (9th Cir. 1982), abrogated on other grounds by Sandin v. Conner, 515

17 U.S. 472 (1995). The ACLU filed a brief in opposition to the DOJ’s pending motion o 18 dismiss and asked the court to grant the ACLU leave to file it as an amicus curiae brief 19 should the court deny the ACLU’s motion to intervene. (Resp. at 1 n.1.) Because the

20

21

10 Whether a motion to intervene is timely is determined by three factors: “(1) the stage of

the proceeding at which an applicant seeks to intervene; (2) the prejudice to other parties; and (3)

22

the reason for and length of the delay.” Cal. Dep’t of Toxic Substances Control v. Commercial Realty Projects, Inc., 309 F.3d 1113, 1119 (9th Cir. 2002).

ORDER- 20

1 ACLU has expressed its desire to weigh in on this litigation and believes that it has a

2 particular perspective that may not otherwise be before the court, the court GRANTS the

3 ACLU amicus curiae status and GRANTS the ACLU’s request to file its opposition to 4 the DOJ’s motion to dismiss as an amicus curiae brief.11

5

In the absence of local rules governing the role of amicus curiae, the court will

6 adhere to the applicable rules found in the Federal Rules of Appellate Procedure.

7 Accordingly, the ACLU must in the future file any memorandum commenting on a

8 party’s memorandum no later than seven days after “the principal brief of the party being

9 supported is filed.” See Fed. R. App. P. 29(e). Further, any amicus curiae brief filed by

10 the ACLU will be limited to no more than one-half the maximum length authorized by

11 this court’s local rules for a party’s principal brief. (See Dkt. # 40); Fed. R. App. P.

12 29(d). The ACLU shall not file reply memoranda or participate in oral argument unless

13 authorized in advance by the court. See Fed. R. App. P. 29(f), (g).

14

IV. CONCLUSION

15

For the foregoing reasons, the court DENIES the motions to intervene (Dkt. ## 12,

16 13) and GRANTS the ACLU amicus curiae status (Dkt. # 43).

17

Dated this 29th day of August, 2016.

18 19

A

JAMES L. ROBART

20

United States District Judge

21

22

11 The court therefore considers the ACLU’s opposition to the DOJ’s motion to dismiss, which the ACLU filed on August 26, 2016 (see generally Resp.), as an amicus curiae brief.

ORDER- 21

 
 Case 2:16-cv-00538-JLR Document 107 Filed 02/08/17 Page 1 of 47

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9 MICROSOFT CORPORATION,

CASE NO. C16-0538JLR

10

Plaintiff,

ORDER ON MOTION TO

11 v.

DISMISS

12 UNITED STATES DEPARTMENT

13

OF JUSTICE,

14

Defendant.

15

16

I. INTRODUCTION

17

Before the court is Defendant United States Department of Justice’s (“the

18 Government”) motion to dismiss Plaintiff Microsoft Corporation’s first amended

19 complaint. (Mot. (Dkt. # 38).) Microsoft opposes the Government’s motion. (Resp.

20 (Dkt. # 44).) The court has considered the Government’s motion, Microsoft’s opposition

21 to the Government’s motion (Resp. (Dkt. # 44)), the Government’s reply (Reply (Dkt.

22 # 92)), the filings of amici (Amici Br. (Dkt. ## 43, 48, 49, 56, 57, 58, 61, 66, 71)), the

ORDER - 1

Case 2:16-cv-00538-JLR Document 107 Filed 02/08/17 Page 2 of 47

1 relevant portions of the record, and the applicable law. In addition, the court heard

2 argument from the parties on January 23, 2017. (1/23/17 Min. Entry (Dkt. # 105).)

3 Being fully advised, the court GRANTS IN PART and DENIES IN PART the

4 Government’s motion for the reasons set forth below.

5

II. BACKGROUND

6 A. Statutory Background

7

The Electronic Communications Privacy Act of 1986 (“ECPA”), 18 U.S.C.

8 § 2510, et seq., “addresses various areas of electronic surveillance, including wiretaps,

9 tracking devices, stored wire and electronic communications, pen registers, and trap and

10 trace devices.” See United States v. Anderson, No. 2:15-cr-00200-KJD-PAL, 2016 WL

11 4191045, at *7 (D. Nev. Apr. 27, 2016). ECPA addresses “electronic communications

12 services (e.g., the transfer of electronic messages, such as email, between computer users)

13 and remote computing services (e.g., the provision of offsite computer storage or

14 processing of data and files).” In re Zynga Privacy Litig., 750 F.3d 1098, 1103 (9th Cir.

15 2014). Under ECPA, an electronic communications service provider (“ECS provider”) is

16 an entity that offers “any service which provides to users thereof the ability to send or

17 receive wire or electronic communications,” 18 U.S.C. § 2510(15), and a remote

18 computing service provider (“RCS provider”) is an entity that provides “to the

19 public . . . computer storage or processing services by means of an electronic

20 communications system,” 18 U.S.C. § 2711(2). A subscriber is a person who uses one or

21 more of those services. See, e.g., In re Application of the U.S. for an Order Pursuant to

22 18 U.S.C. § 2705(b), 131 F. Supp. 3d 1266, 1268 (D. Utah 2015).

ORDER - 2

Case 2:16-cv-00538-JLR Document 107 Filed 02/08/17 Page 3 of 47

1

Title II of ECPA—the Stored Communications Act (“the SCA”), 18 U.S.C.

2 § 2701, et seq.—governs the government’s access to “electronic information stored in

3 third party computers.” In re Zynga, 750 F.3d at 1104; see also Stephen Wm. Smith,

4 Gagged, Sealed & Delivered: Reforming ECPA’s Secret Docket, 6 HARV. L. & POL’Y

5 REV. 313, 324 (2012) [hereinafter “Reforming ECPA’s Secret Docket”] (“Title II of the

6 ECPA . . . prescribes requirements and procedures under which the government can

7 obtain court orders (known as § 2703(d) orders) compelling access to stored wire and

8 electronic communications, as well as related subscriber and customer account

9 information.”). Two sections of the SCA, 18 U.S.C. § 2703 and 18 U.S.C. § 2705,

10 “regulate relations between a government entity which seeks information; a service

11 provider which holds information; and the subscriber of the service who owns the

12 information and is therefore a target of investigation.” In re Application of the U.S., 131

13 F. Supp. 3d at 1268. The information sought from ECS and RCS providers may contain

14 “content” or “non-content” data. Id. Content includes items such as emails and

15 documents, while non-content data includes things like email addresses and IP addresses.

16 See, e.g., Req. for Int’l Judicial Assistance from the Turkish Ministry of Justice, No.

17 16-mc-80108-JSC, 2016 WL 2957032, at *1 (N.D. Cal. May 23, 2016); Integral Dev.

18 Corp. v. Tolat, No. C 12-06575 JSW (LB), 2013 WL 1389691, at *1 (N.D. Cal. May 30,

19 2013).

20

Section 2703 of the SCA authorizes the government to acquire a subscriber’s

21 information from a service provider when the subscriber is a “target” of the government’s

22 information request. See 18 U.S.C. § 2703. The provision “establishes a complex

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1 scheme pursuant to which a governmental entity can, after fulfilling certain procedural

2 and notice requirements, obtain information from [a service provider] via administrative

3 subpoena or grand jury or trial subpoena.” Crispin v. Christian Audigier, Inc., 717 F.

4 Supp. 2d 965, 974-75 (C.D. Cal. 2010) (citing 18 U.S.C. § 2703(b)). Section 2703

5 requires the government to give notice to subscribers that it has obtained their

6 information from a service provider in some but not all circumstances. See 18 U.S.C.

7 § 2703(a)-(c) (describing various notice requirements for communication contents and

8 records in electronic storage and remote computing services).

9

Section 2705 of the SCA addresses when the government may withhold notice that

10 is otherwise required under Section 2703. See 18 U.S.C. § 2705(a)-(b); In re Application

11 of the U.S., 131 F. Supp. 3d at 1268. Under Section 2705(a), the government may delay

12 giving notice to the subscriber that the government has collected the subscriber’s

13 information if certain requirements are met. Id. at 1267. Under Section 2705(b), the

14 government may apply for “a preclusion-of-notice order.” Id. Such an order

15 “command[s] a provider of electronic communications service or remote computing

16 service not to notify any person of the existence of a grand jury subpoena [or other

17 acceptable court order under the SCA] which the Government has served on the

18 provider.” Id.; see also Reforming ECPA’s Secret Docket at 325 (“The SCA does

19 authorize the court to issue a gag order (called ‘preclusion of notice’) to service

20 providers, commanding them not to notify any other person of the existence of the court

21 order.”). A court may issue such a “preclusion-of-notice order” if the court

22 //

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1

determines that there is reason to believe that notification of the existence of

the warrant, subpoena, or court order will result in (1) endangering the life

2

or physical safety of an individual; (2) flight from prosecution; (3)

destruction of or tampering with evidence; (4) intimidation of potential

3

witnesses; or (5) otherwise seriously jeopardizing an investigation or unduly

delaying a trial.

4 18 U.S.C. § 2705(b). “The combined effect of [Sections 2703] and 2705(b) is that the

5 subscriber may never receive notice of a warrant to obtain content information from a

6 remote computing service and the government may seek an order under § 2705(b) that

7 restrains the provider indefinitely from notifying the subscriber.” In re Application of the

8 U.S., 131 F. Supp. 3d at 1271.

9 Since Congress passed the SCA in 1986, the technological landscape has

10 changed considerably. See Orin Kerr, The Next Generation Communications Privacy

11 Act, 162 U. PA. L. REV. 373, 375 (2014) (“In recent years, ECPA has become widely

12 perceived as outdated.”); see also id. at 376 (noting that at the time Congress passed

13 ECPA, “[a]ccess to stored communications was a lesser concern,” but “[s]ervice

14 providers now routinely store everything, and they can turn over everything to law

15 enforcement”). As technology changes, the public has vigorously debated the

16 appropriate reach of the government’s electronic surveillance of its citizens. See, e.g.,

17 Reforming ECPA’s Secret Docket at 313-14; Jonathan Manes, Online Service Providers

18 & Surveillance Law Technology, 125 Yale L.J. F. 343, 346 (Mar. 3, 2016) (“Over the

19 past two-and-a-half years, we have had the most robust public discussion about

20 surveillance in a generation.”). As former Magistrate Judge Paul S. Grewal noted,

21 “[w]arrants for location data, cell phone records[,] and especially email rule the day.” In

22

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1 Matter of Search Warrant for [Redacted]@hotmail.com, 74 F. Supp. 3d 1184, 1185

2 (N.D. Cal. 2014). And according to Magistrate Judge Stephen Wm. Smith, the “ECPA

3 docket . . . handles tens of thousands of secret cases every year.” Reforming ECPA’s

4 Secret Docket at 313.

5

The public debate has intensified as people increasingly store their information in

6 the cloud1 and on devices with significant storage capacity. See In re Grand Jury

7 Subpoena, JK-15-029, 828 F.3d 1083, 1090 (9th Cir. 2016) (quoting United States v.

8 Cotterman, 709 F.3d 952, 964 (9th Cir. 2013)) (noting that “electronic storage devices

9 such as laptops ‘contain the most intimate details of our lives: financial records,

10 confidential business documents, medical records[,] and private emails,’” which “‘are

11 expected to be kept private’”). Government surveillance aided by service providers

12 creates unique considerations because of the vast amount of data service providers have

13 about their customers. For example, “[i]nternet service providers know the websites we

14 have viewed. Google keeps records of our searches. Facebook keeps records of our

15 ‘friends,’ our communications, and what we ‘like.’” Online Service Providers &

16 Surveillance Law Technology at 349. These developments have led several courts to

17 conclude that certain material stored with providers deserves constitutional protection.

18 See, e.g., In re Grand Jury Subpoena, 828 F.3d at 1090 (“[E]mails are to be treated as

19

20 1 The “cloud” is “a metaphor for the ethereal internet.” In re U.S.’s Application for a

21

Search Warrant to Seize & Search Elec. Devices from Edward Cunnius, 770 F. Supp. 2d 1138, 1144 n.5 (W.D. Wash. 2011) (internal quotations omitted) (quoting David A. Couillard,

22

Defogging the Cloud: Applying Fourth Amendment Principles to Evolving Privacy Expectations in Cloud Computing, 93 MINN. L. REV. 2205, 2216 (2009)).

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Case 2:16-cv-00538-JLR Document 107 Filed 02/08/17 Page 7 of 47

1 closed, addressed packages for expectation-of-privacy purposes.”); Search of Info.

2 Associated with Email Addresses Stored at Premises Controlled by Microsoft Corp.,

3 --- F. Supp. 3d ---, 2016 WL 5410401, at *8 (D. Kan. Sept. 28, 2016) (“In considering the

4 email context specifically, courts have held an individual enjoys a right to privacy in his

5 or her emails.”); United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010) (holding

6 that “a subscriber enjoys a reasonable expectation of privacy in the contents of emails”).

7 B. This Lawsuit

8

Against this statutory and technological backdrop, Microsoft2 filed this suit on

9 April 14, 2016 (Compl. (Dkt. # 1)), and later amended its complaint on June 17, 2016

10 (FAC (Dkt. # 28)). Microsoft seeks declaratory relief. (See id. ¶¶ 33, 41.) The gravamen

11 of Microsoft’s complaint is that Section 2705(b) is unconstitutional under the First and

12 Fourth Amendments and that Section 2703 is unconstitutional under the Fourth

13 Amendment “to the extent it absolves the government of the obligation to give notice to a

14 customer whose content it obtains by warrant, without regard to the circumstances of the

15 particular case.” (Id. ¶ 35.) In Microsoft’s view, “the government has increasingly

16 adopted the tactic of obtaining the private digital documents of cloud customers not from

17 the customers themselves, but through legal process directed at online cloud providers

18 like Microsoft.” (Id. ¶ 4.) The government then “seeks secrecy orders under 18 U.S.C.

19 § 2705(b) to prevent Microsoft from telling its customers (or anyone else) of the

20 government’s demands” for that information. (Id.) According to Microsoft, “[t]he vast

21 2 Microsoft is both an ECS provider and an RCS provider. See Crispin, 717 F. Supp. 2d
22 at 978 (citing United States v. Weaver, 636 F. Supp. 2d 769, 770 (C.D. Ill. 2009)).

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Case 2:16-cv-00538-JLR Document 107 Filed 02/08/17 Page 8 of 47

1 majority of these secrecy orders relate[] to consumer accounts and prevent Microsoft

2 from telling affected individuals about the government’s intrusion into their personal

3 affairs; others prevent Microsoft from telling business customers that the government has

4 searched and seized the emails of individual employees of the customer.” (Id. ¶ 16.)

5 Microsoft alleges that federal courts have issued “more than 3,250 secrecy orders” over a

6 20-month period ending in May 2016, and that nearly two-thirds of those orders are for

7 an indefinite length of time. (Id. ¶ 5.)

8

Microsoft contends that Section 2705(b) is unconstitutional facially and as applied

9 because it violates the First Amendment right of a business to “talk to [the business’s]

10 customers and to discuss how the government conducts its investigations.” (Id. ¶ 1.)

11 Specifically, Microsoft contends that Section 2705(b) is overbroad, imposes

12 impermissible prior restraints on speech, imposes impermissible content-based

13 restrictions on speech, and improperly inhibits the public’s right to access search

14 warrants. (Id. ¶¶ 23-26.)

15

Microsoft also alleges that Sections 2705(b) and 2703 are unconstitutional facially

16 and as applied because they violate the Fourth Amendment right of “people and

17 businesses . . . to know if the government searches or seizes their property.” (Id. ¶ 33.)

18 Microsoft contends that the statutes are facially invalid because they allow the

19 government to (1) forgo notifying individuals of searches and seizures, and (2) obtain

20 secrecy orders that “prohibit providers from telling customers when the government has

21 accessed their private information” without constitutionally sufficient proof and without

22 sufficient tailoring. (Id. ¶ 35.) Microsoft further alleges that Sections 2703 and 2705(b)

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Case 2:16-cv-00538-JLR Document 107 Filed 02/08/17 Page 9 of 47

1 are unconstitutional as applied because “[t]he absence of a government notice obligation,

2 combined with the imposition of secrecy orders on Microsoft, has resulted, and will

3 continue to result, in unconstitutional delay of notice to Microsoft’s customers, in

4 violation of their Fourth Amendment rights.” (Id. ¶ 40.) Microsoft asserts that it has

5 third-party standing to vindicate its customers’ rights to notice of search and seizure

6 under the Fourth Amendment. (Id. ¶¶ 38-39.)

7

The Government moves to dismiss Microsoft’s first amended complaint for lack

8 of standing and failure to state a claim. (See Mot.)

9

III. ANALYSIS

10 A. Legal Standards

11

1. Motion to Dismiss Under Rule 12(b)(1)

12

“Article III of the Constitution limits federal courts’ jurisdiction to certain ‘Cases’

13 and ‘Controversies.’” Clapper v. Amnesty Int’l USA, --- U.S. ---, 133 S. Ct. 1138, 1146 14 (2013). The case or controversy requirement demands that a plaintiff have standing. See 15 id.; see also Spokeo, Inc. v. Robins, --- U.S. ---, 136 S. Ct. 1540, 1547 (2016) (“Standing 16 to sue is a doctrine rooted in the traditional understanding of a case or controversy.”). To 17 establish standing, a plaintiff must demonstrate three elements: (1) a “concrete, 18 particularized, and actual or imminent” injury that is (2) “fairly traceable to the 19 challenged action” and (3) “redressable by a favorable ruling.” Monsanto Co. v. 20 Geertson Seed Farms, 561 U.S. 139, 149 (2010). These requirements are more 21 succinctly referred to as injury, causation, and redressability. Nw. Immigrant Rights 22 //

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Case 2:16-cv-00538-JLR Document 107 Filed 02/08/17 Page 10 of 47

1 Project v. United States Citizenship & Immigration Servs., --- F.R.D. ---, 2016 WL

2 5817078, at *6 (W.D. Wash. Oct. 5, 2016).

3

Special standing considerations apply to a declaratory judgment action.

4 “Declaratory judgment is not a corrective remedy and should not be used to remedy past

5 wrongs.” Williams v. Bank of Am., No. 2:12-cv-2513 JAM AC PS, 2013 WL 1907529, at

6 *5-6 (E.D. Cal. May 7, 2013). Accordingly, when a “plaintiff[] seeks declaratory and

7 injunctive relief only,” “there is a further requirement that [the plaintiff] show a very

8 significant possibility of future harm” in addition to the three Article III standing

9 elements. See San Diego Cty. Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126 (9th Cir.

10 1996); see also Canatella v. California, 304 F.3d 843, 852 (9th Cir. 2002) (“In the

11 particular context of injunctive and declaratory relief, a plaintiff must show that he has

12 suffered or is threatened with a concrete and particularized legal harm . . . coupled with a

13 sufficient likelihood that he will again be wronged in a similar way.” (citations and

14 internal quotation marks omitted)); Sample v. Johnson, 771 F.2d 1335, 1340 (9th Cir.

15 1985) (“[P]laintiffs must demonstrate a credible threat exists that they will again be

16 subject to the specific injury for which they seek injunctive or declaratory relief.”

17 (internal quotations omitted)). In other words, a plaintiff may not “demonstrate only a

18 past injury.” San Diego Cty. Gun Rights, 98 F.3d at 1126.

19

“The plaintiff, as the party invoking federal jurisdiction, bears the burden of

20 establishing these elements.” Spokeo, 136 S. Ct. at 1547. “Where . . . a case is at the

21 pleading stage, the plaintiff must ‘clearly . . . allege facts demonstrating’ each element,”

22 id. (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)), and “[t]he court analyzes

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Case 2:16-cv-00538-JLR Document 107 Filed 02/08/17 Page 11 of 47

1 standing claim by claim,” Antman v. Uber Techs., Inc., No. 15-cr-01175-LB, 2015 WL

2 6123054, at *9 (N.D. Cal. Oct. 19, 2015). “When a motion to dismiss attacks

3 subject-matter jurisdiction under Rule 12(b)(1) on the face of the complaint, the court

4 assumes the factual allegations in the complaint are true and draws all reasonable

5 inferences in the plaintiff’s favor.” City of L.A. v. JPMorgan Chase & Co., 22 F. Supp.

6 3d 1047, 1052 (C.D. Cal. 2014). “The jurisdictional question of standing precedes, and

7 does not require, analysis of the merits” of the plaintiff’s claims. Equity Lifestyle Props.,

8 Inc. v. Cty. of San Luis Obispo, 548 F.3d 1184, 1189 n.10 (9th Cir. 2007).

9

2. Motion to Dismiss Under Rule 12(b)(6)

10

When considering a motion to dismiss under Federal Rule of Civil Procedure

11 12(b)(6), the court construes the complaint in the light most favorable to the nonmoving

12 party. Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir.

13 2005). The court must accept all well-pleaded allegations of material fact as true and

14 draw all reasonable inferences in favor of the plaintiff. See Wyler Summit P’ship v.

15 Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir. 1998). “To survive a motion to

16 dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a

17 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

18 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Telesaurus

19 VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010). “A claim has facial plausibility

20 when the plaintiff pleads factual content that allows the court to draw the reasonable

21 inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

22 //

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1 B. First Amendment Claim

2

The Government contends that Microsoft’s First Amendment challenge fails on

3 several grounds. The court addresses each of the Government’s arguments in turn.

4

1. Standing

5

The Government first argues that Microsoft lacks standing to challenge Section

6 2705(b) under the First Amendment because Microsoft fails to identity a concrete and

7 particularized injury or a favorable judgment that would redress Microsoft’s alleged

8 injury. (Mot. at 10-13.) Specifically, the Government argues that Microsoft has not

9 identified a concrete and particularized injury and contends that a favorable judgment

10 would not redress Microsoft’s alleged injury. (See id. at 10-12.)

11

a. Injury in Fact and Likelihood of Future Injury

“To establish injury in fact, a plaintiff must show that he or she suffered ‘an 12

invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or 13

imminent, not conjectural or hypothetical.’” Spokeo, 136 S. Ct. at 1548 (quoting Lujan v. 14

Defenders of Wildlife, 504 U.S. 555, 560 (1992)). An injury is particularized when it 15

“affect[s] the plaintiff in a personal and individual way.” Lujan, 504 U.S. at 560 n.1. An 16

17 injury is concrete when it actually exists. See Spokeo, 136 S. Ct. at 1548 (“A ‘concrete’

18 injury must be ‘de facto’; that is, it must actually exist.”). In addition, because it seeks

declaratory relief, Microsoft must allege a likelihood of future injury. See Canatella, 304 19

F.3d at 852. 20

Microsoft alleges that Section 2705(b) impinges on its First Amendment rights 21

because the statute allows court orders that imposes prior restraints and content-based 22

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Case 2:16-cv-00538-JLR Document 107 Filed 02/08/17 Page 13 of 47

1 restrictions on speech. (See FAC ¶¶ 24 (“The statute authorizes secrecy orders that

2 prohibit, ex ante, providers such as Microsoft from engaging in core protected speech

3 under the First Amendment, i.e., speech about the government’s access to customers’

4 sensitive communications and documents and its increased surveillance on the Internet.”),

5 25 (“Secrecy orders issued under Section 2705(b) also function as content-based

6 restrictions on speech . . . .”).) Microsoft also asserts that orders issued under Section

7 2705(b) “improperly inhibit the public’s right of access to search warrants under both the

8 common law and the First Amendment.” (Id. ¶ 26.) In its response to the Government’s

9 motion, Microsoft contends that it has suffered “thousands of concrete, particularized

10 injuries” in the form of “the secrecy orders to which Microsoft has been subject since

11 2014.” (Resp. at 12 (emphasis omitted) (citing FAC ¶ 16).) Microsoft further argues that

12 “Section 2705(b) also inflicts economic injury on Microsoft by eroding customer

13 confidence in its cloud services.” (Id. at 13 (citing FAC ¶¶ 5, 39)); see also San Diego

14 Cty. Gun Rights, 98 F.3d at 1130 (“Economic injury is clearly a sufficient basis for

15 standing.”). Microsoft contends that the Government’s arguments regarding the injury

16 element are misplaced because the arguments “preview the Government’s flawed merits

17 argument that Section 2705(b) passes constitutional muster, just because some 2705(b)

18 orders must be constitutional.” (Resp. at 13.)

19

The court finds that Microsoft has sufficiently alleged an injury-in-fact and a

20 likelihood of future injury. Microsoft alleges “an invasion of” its “legally protected

21 interest” in speaking about government investigations due to indefinite nondisclosure

22

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Case 2:16-cv-00538-JLR Document 107 Filed 02/08/17 Page 14 of 47

1 orders issued pursuant to Section 2705(b).3 (FAC ¶¶ 1 (“[Section 2705(b)]

2 violates . . . the First Amendment, which enshrines Microsoft’s rights to talk to its

3 customers and to discuss how the government conducts its investigations . . . .”); 5

4 (alleging that non-disclosure orders “have impaired Microsoft’s right to be transparent

5 with its customers, a right guaranteed by the First Amendment”); 24; 32-33.) The court

6 concludes that Section 2705(b) orders that indefinitely prevent Microsoft from speaking

7 about government investigations implicate Microsoft’s First Amendment rights.

8

First Amendment rights must be balanced against “the substantial burden openness

9 [may] impose on government investigations.” Times Mirror Co. v. United States, 873

10 F.2d 1210, 1217 (9th Cir. 1989) (holding that the First Amendment did not guarantee

11 public access to warrant applications while a pre-indictment investigation was ongoing,

12 but declining to decide whether there was such a right post-indictment); see also In re

13 § 2703(d), 787 F. Supp. 2d 430, 438 (E.D. Va. 2011) (noting that First Amendment

14 interests may have to “yield to the investigatory process” under certain circumstances).

15 In at least some circumstances, however, the Government’s interest in keeping

16 investigations secret dissipates after an investigation concludes and at that point, First

17 Amendment rights may outweigh the Government interest in secrecy. See In re Sealing

18 & Non-Disclosure of Pen/Trap/2703(d) Orders, 562 F. Supp. 2d 876 (S.D. Tex. 2008); In

19 Matter of Search Warrant, 74 F. Supp. 3d at 1186 (“If the court were dealing with a

20

21

3 In arguing that Microsoft has failed to state a First Amendment claim, the Government

22

argues that Microsoft does not have an “absolute right” to speak about the Government’s investigations. The court addresses that argument infra § III.C.3.a.

ORDER - 14

Case 2:16-cv-00538-JLR Document 107 Filed 02/08/17 Page 15 of 47

1 grand jury subpoena, with its historical presumption of secrecy, perhaps an infinite period

2 of Microsoft silence would be appropriate. But in the absence of such a historical

3 presumption, the First Amendment rights of both Microsoft and the public, to say nothing

4 of the rights of the target, must be given at least some consideration.”). When the

5 government’s concern dissipates, the First Amendment’s protection of speech about

6 governmental activity—including criminal investigations—warrants consideration. See

7 Gentile v. State Bar of Nev., 501 U.S. 1030, 1034 (1991) (“There is no question that

8 speech critical of the exercise of the State’s power lies at the very center of the First

9 Amendment.”); Landmark Commc’ns., Inc. v. Virginia, 435 U.S. 829, 838 (1978)

10 (“[T]here is practically universal agreement that a major purpose of [the First]

11 Amendment was to protect the free discussion of governmental affairs.”).

12

Accordingly, the court concludes that Microsoft has adequately alleged an injury

13 to a “legally protected interest.” For example, the Southern District of Texas considered

14 whether “electronic surveillance court orders may properly be kept secret, by sealing and

15 non-disclosure provisions, for an indefinite period beyond the underlying criminal

16 investigation.” Id. at 877. The court concluded that “setting a fixed expiration date on

17 sealing and non-disclosure of electronic surveillance orders is not merely better practice,

18 but required by . . . the First Amendment prohibition against prior restraint of speech.”

19 Id. at 878. In a case involving grand jury proceedings, the Supreme Court similarly held

20 that a “Florida law [that] prohibit[ed] a grand jury witness from disclosing his own

21 testimony after the term of the grand jury has ended . . . violates the First Amendment to

22 the United States Constitution.” Butterworth v. Smith, 494 U.S. 624, 626 (1990). And,

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Case 2:16-cv-00538-JLR Document 107 Filed 02/08/17 Page 16 of 47

1 finally, the Ninth Circuit Court of Appeals decided that there is no First Amendment right

2 to access warrant application materials during an ongoing investigation pre-indictment,

3 but expressly left open the question of whether the public has such a right after an

4 indictment issues. Times Mirror Co., 873 F.2d at 1217; see also United States v. Bus. of

5 Custer Battlefield Museum & Store, 658 F.3d 1188, 1194-95 (9th Cir. 2011) (stating that

6 the Ninth Circuit had “expressly reserved whether the public has a constitutional right of

7 access after an investigation has been terminated”). These cases either necessarily imply

8 or suggest that indefinite non-disclosure orders that extend beyond the life of an ongoing

9 investigation implicate First Amendment rights.

10

In addition to alleging an injury to a legally protected interest, Microsoft

11 adequately alleges that this “invasion” is “particularized” because the injury Microsoft

12 complains of “affect[s] [Microsoft] in a personal and individual way.” Lujan, 504 U.S. at

13 560 n.1. Microsoft’s alleged injury is also concrete because Microsoft alleges that it has

14 personally been subjected to thousands of indefinite non-disclosure orders that implicate

15 its First Amendment Rights. (See, e.g., FAC ¶ 5); see also Spokeo, 136 S. Ct. at 1548

16 (“A ‘concrete’ injury must be ‘de facto’; that is, it must actually exist.”) For these

17 reasons, the court concludes that Microsoft has adequately alleged an injury-in-fact.

18

The Government makes several arguments to demonstrate that Microsoft has not

19 alleged a First Amendment injury, but those arguments flow from the same premises:

20 that the nondisclosure orders to which Microsoft is subject under Section 2705(b) contain

21 different terms, were issued according to the specific context in which they arose, and

22 require individualized consideration of the context in which each order was issued. (See

ORDER - 16

Case 2:16-cv-00538-JLR Document 107 Filed 02/08/17 Page 17 of 47

1 Mot. at 11.) Essentially, the Government argues that Microsoft alleges a generalized

2 grievance that cannot confer standing. (See Reply at 2-3.)

3

The court is unpersuaded. A generalized grievance is an “asserted harm” that is

4 “shared in substantially equal measure by all or a large class of citizens.” Warth, 422

5 U.S. at 499. Accordingly, a generalized grievance presents “abstract questions of wide

6 public significance.” Valley Forge, 454 U.S. at 474-75. Here, however, Microsoft

7 alleges that it has been subjected to thousands of nondisclosure orders that Microsoft

8 asserts violate its First Amendment rights. (See Compl. ¶ 5.) Microsoft reasonably

9 believes that it is likely to be subject to similar orders in the future. (Id. ¶ 33.) Although

10 the privacy issues underpinning these nondisclosure orders may be of widespread public

11 interest, Microsoft seeks to vindicate its own First Amendment rights. Whether or not the

12 orders were issued under varying circumstances or the ultimate issues in this case may

13 have to be resolved “using legal tests that are context[-] and fact-specific” (Mot. at 11),

14 Microsoft has alleged a concrete and particularized First Amendment injury.

15

In addition, the Government’s arguments assail the merits of Microsoft’s First

16 Amendment claim, not Microsoft’s standing. (See Mot. at 10-11.) For example, the

17 Government argues that Microsoft has not “identif[ied] any particular order that this

18 [c]ourt could analyze to determine the existence, nature, and extent of injury.” (Id. at 10.)

19 The Government further argues that the Government obtains the nondisclosure orders via

20 different procedures, which means the court can “derive[] . . . no common legal

21 principle” by which to analyze the orders under the First Amendment. (Id. at 10-11.) At

22 this stage, however, Microsoft is not required to provide evidence to support its claims. It

ORDER - 17

Case 2:16-cv-00538-JLR Document 107 Filed 02/08/17 Page 18 of 47

1 must only allege that it has suffered an injury in fact, City of L.A., 22 F. Supp. 3d at 1052,

2 and the court finds that Microsoft has adequately done so.

3

Microsoft also sufficiently alleges a likelihood of similar harm in the future. See

4 Canatella, 304 F.3d at 854. Specifically, Microsoft asserts that without a declaration that

5 Section 2705(b) is unconstitutional insofar as it permits indefinite nondisclosure orders,

6 “the government will continue to seek, and courts will continue to issue, secrecy orders

7 that impermissibly restrict the First Amendment rights of Microsoft and similarly situated

8 providers.” (FAC ¶ 33.) Microsoft bolsters its prediction by alleging that over a

9 20-month period preceding this lawsuit, the Government sought and obtained 3,250

10 orders–at least 4504 of which accompanied search warrants—that contained indefinite

11 nondisclosure provisions. (Id. ¶¶ 5, 32.) In addition, Microsoft alleges that in this

12 District alone, it has received at least 63 such orders since September 2014. (Id. ¶ 16.)

13 Because these orders have been frequent and issued recently, the Government will likely

14 continue to seek and obtain them. Accordingly, Microsoft’s “fears” of similar injuries in

15 the future are not “merely speculative.”5 Mendia v. Garcia, 165 F. Supp. 3d 861, 895

16 (N.D. Cal. 2016).

17
4 In different places in its first amended complaint, Microsoft alleges that either 450 or 18 650 nondisclosure orders accompanied search warrants. (Compare FAC ¶ 5, with id. ¶ 32.)

19

5 At oral argument, Microsoft styled its challenge to the constitutionality of Section

2705(b) as a kind of pre-enforcement challenge. A pre-enforcement challenge raises ripeness

20 questions. See ProtectMarriage.com-Yes on 8 v. Bowen, 752 F.3d 827, 839 (9th Cir. 2014). Ripeness is a jurisdictional consideration because it implicates Article III’s case or controversy

21

requirement. See Guatay Christian Fellowship v. Cty. of San Diego, 670 F.3d 957, 980 (9th Cir. 2011). However, due to the overwhelming importance of the rights protected by the First

22

Amendment, courts relax the usual standing principles and apply a three-part test to determine whether a plaintiff has established standing to pursue a First Amendment claim when the

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1

For the foregoing reasons, the court concludes that Microsoft has adequately

2 alleged an injury and a likelihood of similar future injury for the purposes of establishing

3 standing to pursue its First Amendment claim.

4

b. Causation

5

“To show causation, the plaintiff must demonstrate a causal connection between

6 the injury and the conduct complained of—the injury has to be fairly traceable to the

7 challenged action of the defendant, and not the result of the independent action of some

8 third party not before the court.” Salmon Spawning & Recovery All. v. Gutierrez, 545

9 F.3d 1220, 1227 (9th Cir. 2008). “Although the traceability of a plaintiff’s harm to the

10 defendant’s actions need not rise to the level of proximate causation, Article III does

11 require proof of a substantial likelihood that the defendant’s conduct caused plaintiff’s

12 injury in fact.” Native Village of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863,

13 877 (N.D. Cal. 2009) (internal quotation marks omitted).

14

Neither party substantively addresses the causation element of the standing

15 inquiry. (See Mot.; Resp.) However, the court has an independent duty to ensure that it

16 has subject matter jurisdiction over this action. See Arbaugh v. Y&H Corp., 546 U.S.

17 500, 514 (2006). Microsoft alleges that indefinite nondisclosure orders issued pursuant to

18

19

plaintiff has not yet suffered an actual injury. See Alaska Right to Life Political Action Comm. v.

20 Feldman, 504 F.3d 840, 851 (9th Cir. 2007); see also Wolfson v. Brammer, 616 F.3d 1045, 1058 (9th Cir. 2010). Despite this characterization, however, the court finds for the reasons noted

21

above that Microsoft need not allege facts regarding the three elements necessary to mount a pre-enforcement challenge. See Brammer, 616 F.3d at 1058. Because Microsoft has alleged a

22

past injury, it need only allege a likelihood of similar injury in the future in this action for declaratory relief. See, e.g., Canatella, 304 F.3d at 852.

ORDER - 19

Case 2:16-cv-00538-JLR Document 107 Filed 02/08/17 Page 20 of 47

1 Section 2705(b) prevent Microsoft from engaging in protected speech. (See generally

2 FAC.) This alleged injury—the curtailing of Microsoft’s speech—is fairly traceable to

3 the conduct complained of—indefinite nondisclosure orders issued pursuant to Section

4 2705(b). Accordingly, the court finds that Microsoft has sufficiently alleged causation.

5

c. Redressability

6

A plaintiff establishes redressability by demonstrating “a ‘substantial likelihood’

7 that the requested relief will remedy the alleged injury in fact.” Vermont Agency of Nat.

8 Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 771 (2000). “[A] plaintiff satisfies the

9 redressability requirement when he shows that a favorable decision will relieve a discrete

10 injury[, but he] need not show that a favorable decision will relieve his every injury.”

11 Larson v. Valente, 456 U.S. 228, 243 n.15 (1982) (plurality opinion). “In the context of

12 declaratory relief, a plaintiff demonstrates redressability if the court’s statement would

13 require the defendant to act in any way that would redress past injuries or prevent future

14 harm.” Viet. Veterans of Am. v. C.I.A., 288 F.R.D. 192, 205 (N.D. Cal. 2012) (internal

15 quotation marks omitted); accord Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,

16 108 (1998) (“If respondent had alleged a continuing violation or the imminence of a

17 future violation, the injunctive relief requested would remedy that alleged harm.”). A

18 plaintiff is entitled to a presumption of redressability where he “seeks declaratory relief

19 against the type of government action that indisputably caused him injury.” Mayfield v.

20 United States, 599 F.3d 964, 971 (9th Cir. 2010) (determining whether redressability

21 requirement was met in a declaratory judgment action involving the constitutionality of

22 the Foreign Intelligence Surveillance Act (“FISA”)).

ORDER - 20

Case 2:16-cv-00538-JLR Document 107 Filed 02/08/17 Page 21 of 47

1

The Government argues that even if the court declared Section 2705(b)

2 unconstitutional, that declaration would not redress Microsoft’s injury. (See Mot. at

3 12-13.) The Government contends that “[a] favorable judgment in this case would not

4 release Microsoft from those individual [nondisclosure] orders, so its alleged injury

5 would not be remedied and redressability is therefore lacking.” (Id. at 12.) Microsoft

6 responds that it “is not asking this [c]ourt to ‘release’ it from secrecy orders.” (Resp. at

7 15.) Rather, Microsoft “seeks a declaration that Section 2705(b) violates the First

8 Amendment, relief that would prevent the Government from continuing to rely on the

9 statute to restrain Microsoft’s speech in the future.” (Id.) The Government views

10 Microsoft’s response as an attempt to “time-shift” the basis for its standing by seeking

11 redress that would prevent future injuries rather than remedy past injuries. (Mot. at 3.)

12

The declaratory relief Microsoft seeks would not remedy its past injuries, but it

13 would “prevent likely future injuries” in the form of additional indefinite nondisclosure

14 orders. Mayfield, 599 F.3d at 972. Although Microsoft alleges a past injury—being

15 subjected to thousands of indefinite nondisclosure orders since 2014—that past injury

16 strengthens Microsoft’s allegation that it faces a substantial likelihood of the same kind

17 of harm in the future. (FAC ¶ 33.) Microsoft alleges that without a declaration from the

18 court regarding Section 2705(b)’s constitutionality, “the [G]overnment will continue to

19 seek, and courts will continue to issue, secrecy orders that impermissibly restrict the First

20 Amendment rights of Microsoft.” (Id.) Thus, a declaration that Section 2705(b) is

21 unconstitutional because it permits courts to issue indefinite nondisclosure orders would

22 //

ORDER - 21

Case 2:16-cv-00538-JLR Document 107 Filed 02/08/17 Page 22 of 47

1 redress Microsoft’s future injuries. In the context of declaratory relief, such allegations

2 suffice. See Viet. Veterans of Am., 288 F.R.D. at 205.

3

2. Prudential Considerations

4

The Government next argues that “comity grounds” support dismissing

5 Microsoft’s First Amendment claims because “[i]t is a settled principle that a challenge to

6 an order of a coordinate court may not be heard by a different court.”6 (Mot. at 16 (citing

7 Lapin v. Shulton, 333 F.2d 169, 172 (9th Cir. 1964); Treadaway v. Acad. of Motion

8 Picture Arts & Scis., 783 F.2d 1418, 1422 (9th Cir. 1986)).) Microsoft responds that this

9 argument fails because “Microsoft is not bringing a collateral attack on other courts’

10 orders; rather, it seeks a judgment that will be binding on the Government when it seeks

11 secrecy orders in other courts.” (Resp. at 15 n.2.)

12

The cases the Government cites establish that when a party seeks to modify or

13 revoke an injunction or final order, the party must seek relief from the court that issued

14 the order. See Lapin, 333 F.2d at 170 (“[T]he present proceedings to secure dissolution

15 of an injunction on the grounds here asserted should have been brought in the issuing

16 court, the District Court of Minnesota.”); Treadaway, 783 F.2d at 1422 (“When a court

17 entertains an independent action for relief from the final order of another court, it

18 interferes with and usurps the power of the rendering court just as much as it would if it

19

20

6 The Government also argues that Microsoft’s Fourth Amendment claims should be

dismissed on prudential grounds because those claims do not fall within the Fourth

21

Amendment’s zone of interests. However, the court does not address this argument or the Government’s arguments that Microsoft has failed to state a Fourth Amendment claim because

22

the court concludes that Microsoft may not pursue such claims due to Supreme Court and Ninth Circuit precedent. See infra § III.C.

ORDER - 22

Case 2:16-cv-00538-JLR Document 107 Filed 02/08/17 Page 23 of 47

1 were reviewing that court’s equitable decree.”). “[F]or a nonissuing court to entertain an

2 action for such relief would be seriously to interfere with, and substantially to usurp, the

3 inherent power of the issuing court.” Lapin, 333 F.2d at 172. Accordingly,

4 “considerations of comity and orderly administration of justice demand that the

5 nonrendering court . . . decline jurisdiction.” Id.

6

Here, however, Microsoft does not seek to have this court invalidate other courts’

7 orders. Rather, Microsoft asks the court to determine whether Section 2705(b) is

8 constitutional insofar as it permits future courts to indefinitely prevent disclosure of the

9 circumstances of government investigations. For this reason, the comity concerns that

10 the Ninth Circuit addressed in Lapin and Treadaway do not apply, and the court declines

11 to dismiss Microsoft’s First Amendment claim on this basis.

12

3. Stating a First Amendment Claim

13

The Government also argues that Microsoft fails to state a First Amendment claim

14 for which relief may be granted. The court now analyzes the Government’s arguments in

15 favor of dismissal.

16

a. Prior Restraints and Content-Based Regulations

17 The Government first contends that Microsoft has no absolute right to discuss the

18 Government’s requests for information or the substance of any nondisclosure orders to

19 which Microsoft is bound. (See Mot. at 19; Reply at 8-9.) As Microsoft acknowledges

20 (FAC ¶ 28), First Amendment rights are not absolute, see Neb. Press Ass’n v. Stuart, 427

21 U.S. 539, 570 (1976). However, as the court explained above, Microsoft alleges that

22 indefinite nondisclosure orders implicate its First Amendment rights because the orders

ORDER - 23

Case 2:16-cv-00538-JLR Document 107 Filed 02/08/17 Page 24 of 47

1 impinge on its right to speak about governmental affairs and the public’s right to access

2 search warrants. See supra § III.B.1.a; (FAC ¶¶ 24-26.) Microsoft also alleges that the

3 orders categorically bar Microsoft from speaking about the existence of the orders and

4 therefore constitute content-based prior restraints. (FAC ¶¶ 25, 28-30.)

5

“The First Amendment reflects ‘a profound national commitment to the principle

6 that debate on public issues should be uninhibited, robust, and wide-open.’” Snyder v.

7 Phelps, 562 U.S. 443, 452 (2011) (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270

8 (1964)). “[S]peech on public issues occupies the highest rung of the hierarchy of First

9 Amendment values, and is entitled to special protection.” Connick v. Myers, 461 U.S.

10 138, 145 (1983). For these reasons, prior restraints of and content-based restrictions on

11 speech regarding matters of public concern are often impermissible.

12

“The term prior restraint is used to describe administrative and judicial orders

13 forbidding certain communications when issued in advance of the time that such

14 communications are to occur.” Alexander v. United States, 509 U.S. 544, 550 (1993)

15 (internal quotation marks and emphasis omitted). Prior restraints are “the most serious

16 and the least tolerable infringement on First Amendment rights.” Neb. Press Ass’n, 427

17 U.S. at 559. Although prior restraints are not unconstitutional per se, there is a heavy

18 presumption against their constitutionality. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215,

19 225 (1990). Accordingly, the Government bears the burden of “showing justification for

20 the imposition of such a restraint.” Capital Cities Media, Inc. v. Toole, 463 U.S. 1303,

21 1305 (1983).

22 //

ORDER - 24

Case 2:16-cv-00538-JLR Document 107 Filed 02/08/17 Page 25 of 47

1

Similarly, “[c]ontent-based laws—those that target speech based on its

2 communicative content—are presumptively unconstitutional and may be justified only if

3 the government proves that they are narrowly tailored to serve compelling state

4 interests.” Reed v. Town of Gilbert, Ariz., --- U.S. ---, 135 S. Ct. 2218, 2226 (2015).

5 Content-based restrictions are subject to strict scrutiny, id., and are presumptively invalid,

6 United States v. Alvarez, --- U.S. ---, 132 S. Ct. 2537, 2544 (2012). A regulation of

7 speech “is content-based if either the underlying purpose of the regulation is to suppress

8 particular ideas or if the regulation, by its very terms, singles out particular content for

9 differential treatment.” Berger v. City of Seattle, 569 F.3d 1029, 1051 (9th Cir. 2009) (en

10 banc) (internal citation omitted).

11

The Government argues that even if the nondisclosure orders constitute a prior

12 restraint, “the substantive basis and procedural safeguards provided by [S]ection 2705(b)

13 are sufficient to satisfy even the most searching First Amendment inquiry imposed in the

14 prior restraint context.” (Mot. at 21 (citing Freedman v. Maryland, 380 U.S. 51 (1965)).)

15 The Government also argues that Microsoft has not “demonstrated any likelihood that the

16 judicially-approved 2705(b) orders to which it is subject would fail the substantive First

17 Amendment requirements for content-based restrictions on speech.” (Id.) Microsoft

18 counters that it has adequately alleged that the indefinite orders are both prior restraints

19 and content-based regulations and that the statute fails to satisfy strict scrutiny. (Resp. at

20 20; see also FAC ¶¶ 24-25.)

21

The court begins its analysis by determining whether Microsoft has adequately

22 stated a claim that the Section 2705(b) orders at issue violate the First Amendment as

ORDER - 25

Case 2:16-cv-00538-JLR Document 107 Filed 02/08/17 Page 26 of 47

1 impermissible prior restraints. Section 2705(b) allows for indefinite nondisclosure

2 orders, which restrain Microsoft from speaking about government investigations without

3 any time limit on that restraint. For this reason, at least two other district courts have

4 concluded that indefinite nondisclosure orders pursuant to Section 2705(b) constitute

5 prior restraints on speech. See Matter of Grand Jury Subpoena for:

6 [Redacted]@yahoo.com, 79 F. Supp. 3d 1091, 1091 (N.D. Cal. 2015) (“[A]n indefinite

7 order would amount to an undue prior restraint of Yahoo!’s First Amendment right to

8 inform the public of its role in searching and seizing its information.”); In re Sealing, 562

9 F. Supp. 2d at 878, 881 (holding that an indefinite nondisclosure order would violate “the

10 First Amendment prohibition against prior restraint of speech” and stating that

11 “indefinitely sealed means permanently sealed”); see also In re Application of the U.S.,

12 131 F. Supp. 3d at 1270-71 (concluding that under Section 2705(b), “notice by the

13 provider to the subscriber may be indefinitely restrained,” and “[g]overnment restraint of

14 an innocent provider from fulfilling contractual notice and privacy obligations raises

15 concerns different than direct government notice to an investigation target”).

16

Nonetheless, the Government contends that even if certain Section 2705(b) orders

17 impose prior restraints on speech, Section 2705(b) contains sufficient procedural

18 safeguards. (Mot. at 21.) “Where expression is conditioned on governmental permission,

19 such as a licensing system for movies, the First Amendment generally requires

20 procedural protections to guard against impermissible censorship.” John Doe, Inc. v.

21 Mukasey, 549 F.3d 861, 871 (2d Cir. 2008) (citing Freedman, 380 U.S. at 58). The

22 required procedural protections are: (1) “any restraint prior to judicial review can be

ORDER - 26

Case 2:16-cv-00538-JLR Document 107 Filed 02/08/17 Page 27 of 47

1 imposed only for a specified brief period during which the status quo must be

2 maintained”; (2) “expeditious judicial review of that decision must be available”; and (3)

3 “the censor must bear the burden of going to court to suppress the speech and must bear

4 the burden of proof once in court.” Thomas v. Chi. Park Dist., 534 U.S. 316, 321 (2002)

5 (quoting FW/PBS, 493 U.S. at 227). However, the indefinite nondisclosure orders that

6 Section 2705(b) allows are not administrative prior restraints imposed by a licensing

7 scheme because Section 2705(b) itself does not impose the prior restraint; rather, the

8 statute allows a court to issue an order imposing a prior restraint on speech. See 18

9 U.S.C. § 2705(b). Accordingly, the orders at issue here are more analogous to permanent

10 injunctions preventing speech from taking place before it occurs. See, e.g., Alexander,

11 509 U.S. at 550 (1993) (“Temporary restraining orders and permanent injunctions—i.e.,

12 court orders that actually forbid speech activities—are classic examples of prior

13 restraints.”); Oakley, Inc. v. McWilliams, 879 F. Supp. 2d 1087, 1089-90 (C.D. Cal.

14 2012). For this reason, the Freedman procedural safeguards do not appear to apply in

15 this context.

16

In any event, even if the procedural safeguards outlined in Freedman are met, the

17 Government must show that the statute in question meets strict scrutiny.7 See In re Nat’l

18

19

7 At oral argument, the Government argued for the first time that the speech at issue here

is subject to lesser scrutiny because the speech does not address matters of public concern. Even

20 if the Government had properly presented this theory, the court disagrees with the Government’s characterization. See Snyder, 562 U.S. at 452 (describing matters of public concern as matters

21

related to political, social, or other concerns to the community); First Nat’l Bank of Boston v. Bellotti, 432 U.S. 765, 777 (1978) (“The inherent worth of the speech in terms of its capacity for

22

informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.”).

ORDER - 27

Case 2:16-cv-00538-JLR Document 107 Filed 02/08/17 Page 28 of 47

1 Sec. Letter, 930 F. Supp. 2d 1064, 1071 (N.D. Cal. 2013) (holding that the Government

2 must “meet the heightened justifications for sustaining prior-restraints announced in

3 Freedman v. Maryland” and that the restraint “must be narrowly tailored to serve a

4 compelling government interest”), 1074 (“Simply because the government chose to meet

5 the Freedman safeguards in issuing and seeking to compel the [National Security Letter]

6 at issue here, does not foreclose Petitioner’s ability to challenge the constitutionality of

7 the statute’s provisions.”); Admiral Theatre v. City of Chi., 832 F. Supp. 1195, 1203

8 (N.D. Ill. 1993) (noting that even if procedural safeguards are met “the system is still

9 subject to ‘least restrictive means’ scrutiny to determine its constitutionality”). Microsoft

10 alleges that the indefinite nondisclosure orders are prior restraints because they prohibit

11 Microsoft from engaging in protected speech before Microsoft actually engages in that

12 speech. (FAC ¶ 24.) Microsoft further alleges that the orders are not narrowly tailored to

13 serve the government’s interest in conducting sensitive investigations because Microsoft

14 continues to be restrained from speaking even after “secrecy is no longer required to

15 satisfy” the government’s interest. (Id. ¶ 28; see also id. ¶ 6.) Specifically, Microsoft

16

17

As the Government points out (MTD at 21; Reply at 10), the Second Circuit has held in

the National Security Letter context that “the nondisclosure requirement of subsection 2709(c) is

18 not a typical prior restraint or a typical content-based restriction warranting the most rigorous

First Amendment scrutiny.” John Doe, 549 F.3d at 877. However, the court is not persuaded to

19 apply the same logic here. First, the Second Circuit based its conclusion in large part on the

national security context in which Section 2709(c) operated. See generally id. Although Section

20 2705(b) made be utilized in national security investigations, nothing indicates that national security investigations are the sole use or purpose of nondisclosure orders under Section 2705(b).

21

Second, the statutory provision at issue in John Doe imposed temporal limits on the nondisclosure orders. Id. at 877. Such temporal limitations are not required under Section

22

2705(b), and according to Microsoft’s amended complaint, are frequently absent from orders issued pursuant to that statute. (See FAC ¶ 33).

ORDER - 28

Case 2:16-cv-00538-JLR Document 107 Filed 02/08/17 Page 29 of 47

1 contends that for purposes of issuing an indefinite nondisclosure order under Section

2 2705(b), “the assessment of adverse consequences need not be based on the specific facts

3 of the investigation” and “the assessment is made only at the time the government applies

4 for the secrecy order.” (Id. ¶ 6 (emphasis omitted).) For these reasons, Microsoft’s

5 complaint contains sufficient facts that—taken as true and viewed in the light most

6 favorable to Microsoft—state a claim to relief that is plausible on its face. See Iqbal, 556

7 U.S. at 678.

8

In addition, Microsoft alleges that Section 2705(b) orders preclude Microsoft from

9 speaking about an entire topic—government surveillance and investigations. (See FAC

10 ¶¶ 16, 25.) Microsoft states that of the more than 6,000 demands for customer

11 information that is has received, a majority of the demands are coupled with orders

12 “forbidding Microsoft from telling the affected customers that the government was

13 looking at their information.” (Id. ¶ 16.) This prohibition amounts to a content-based

14 restriction on speech, which, like a prior restraint, is subject to strict scrutiny. See Reed,

15 135 S. Ct. at 2226.

16

Microsoft further alleges that three parts of Section 2705(b) fail strict scrutiny

17 review: (1) that Section 2705(b) “allows a court to issue secrecy orders of a prolonged

18 duration (FAC ¶ 28), (2) that “reason to believe standard” in Section 2705(b) “fails to

19 require that a secrecy order be the least restrictive means available” in a particular case

20 (id. ¶ 29), and (3) that Section 2705(b) allows an indefinite nondisclosure order “in the

21 absence of any case-specific compelling interest,” is “substantially broader than

22 necessary,” and “provides no meaningful constraints, (id. ¶ 30). The court concludes that

ORDER - 29

Case 2:16-cv-00538-JLR Document 107 Filed 02/08/17 Page 30 of 47

1 Microsoft has alleged sufficient facts that when taken as true state a claim that certain

2 provisions of Section 2705(b) fail strict scrutiny review and violate the First Amendment.

3

However, even if a lesser standard of review applies to Microsoft’s First

4 Amendment claim, Microsoft’s allegations support the reasonable inference that

5 indefinite nondisclosure orders impermissibly burden Microsoft’s First Amendment

6 rights. See, e.g., Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 757

7 (1985) (citing Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), and describing the

8 balancing test that is applied in First Amendment cases involving matters of private

9 concern); In re § 2703(d), 787 F. Supp. 2d at 438 (describing a balancing approach for

10 evaluating First Amendment rights in the context of government investigations). For

11 example, Microsoft alleges that indefinite nondisclosure orders continue to burden its

12 First Amendment rights after the government’s interest in keeping investigations secret

13 dissipates. (FAC ¶¶ 28, 32.) In addition, Microsoft alleges that courts do not have

14 occasion to revisit the indefinite orders unless Microsoft challenges the individual orders

15 in court. (Id. ¶ 19). Accepting these allegations as true, Microsoft’s First Amendment

16 rights may outweigh the state’s interest such that indefinite disclosure orders

17 impermissibly burden Microsoft’s rights. Accordingly, Microsoft’s complaint contains

18 sufficient factual allegations to support a First Amendment claim.

19

For these reasons, the court concludes Microsoft has adequately alleged a facially

20 plausible First Amendment claim. See Iqbal, 556 U.S. at 678.

21 //

22 //

ORDER - 30

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1

b. Overbreadth Doctrine

2

The Government also argues that Microsoft fails to state a First Amendment

3 overbreadth claim because “as a party subject to numerous [S]ection 2705(b) orders,

4 Microsoft is wrong to suggest that it may seek invalidation of that section pursuant to the

5 ‘overbreadth doctrine.’”8 (Mot. at 18.) In addition, the Government contends that the

6 overbreadth challenge should be dismissed because “the only fact alleged by Microsoft to

7 support its facial challenge is the number of purportedly ‘indefinite’ orders, . . . which

8 says nothing about whether the application has been applied constitutionally in those

9 instances.” (Id. at 19.) Microsoft responds that it can assert an overbreadth challenge

10 even though “it bases its allegations on the thousands of unconstitutional secrecy orders

11 that stifle its own speech.” (Resp. at 17 (emphasis omitted).) Microsoft contends that it

12 challenges three aspects of Section 2705(b) on First Amendment grounds, that “[i]f any

13 one of these provisions is invalid, the statute is unconstitutional on its face,” and that it

14 has thus adequately stated an overbreadth claim. (Id.)

15

“The First Amendment doctrine of overbreadth is an exception to [the] normal rule

16 regarding standards for facial challenges.” Virginia v. Hicks, 539 U.S. 113, 118 (2003).

17

8 The Government’s briefing contests Microsoft’s overbreadth challenge on Rule 12(b)(6) 18 grounds. (See Mot. at 18-19.) At oral argument, however, counsel for the Government framed

its challenge to this claim as an attack on subject matter jurisdiction under Rule 12(b)(1).

19 Although courts typically view the overbreadth doctrine as relaxing prudential limits on standing, see United States v. Elcom Ltd., 203 F. Supp. 2d 1111, 1132 (N.D. Cal. 2002), that

20 view of the doctrine is inapplicable where, as here, the plaintiff asserts an overbreadth challenge to a statute that has also been applied to the plaintiff, see, e.g., Fox, 492 U.S. at 484. In addition,

21

courts generally evaluate a challenge to prudential standing under Rule 12(b)(6). See Cetacean Cmty. v. Bush, 386 F.3d 1169, 1175 (9th Cir. 2004); Elizabeth Retail Props., LLC v. KeyBank

22

Nat’l Ass’n, 83 F. Supp. 3d 972, 985-86 (D. Or. 2015) (“While constitutional standing is evaluated under Rule 12(b)(1), prudential standing is evaluated under 12(b)(6).”).

ORDER - 31

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1 Generally, “[i]n a facial challenge on overbreadth grounds, the challenger contends that

2 the statute at issue is invalid because it is so broadly written that it infringes unacceptably

3 on the First Amendment rights of third parties.” Elcom, 203 F. Supp. 2d at 1132.

4 However, the overbreadth doctrine may “be invoked in the unusual situation . . . where

5 the plaintiff has standing to challenge all the applications of the statute he contends are

6 unlawful, but his challenge to some of them . . . will fail unless the doctrine of

7 overbreadth is invoked.”9 Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 484

8 (1989) (emphasis omitted). As the Ninth Circuit has pointed out, “[t]echnically, the

9 overbreadth doctrine does not apply if the parties challenging the statute engage in the

10 allegedly protected expression[, but this technicality] does not mean that plaintiffs cannot

11 challenge an ordinance on its face . . . if the ordinance restricts their own constitutionally

12 protected conduct.” Nunez by Nunez v. City of San Diego, 114 F.3d 935, 949 (9th Cir.

13 1997). “[T]hus, whether the ‘overbreadth doctrine’ applies to [a plaintiff’s] First

14 Amendment challenge is more of a technical academic point than a practical concern.”

15 Id. In any event, “[i]t is not the usual judicial practice . . . to proceed to an overbreadth

16 issue unnecessarily—that is, before it is determined that the statute would be valid as

17

18

19 9 Microsoft states in its response to the Government’s motion to dismiss that it “has third-

20 party standing to assert the First Amendment rights of its customers, who receive no notice and therefore cannot exercise their own First Amendment rights to speak out about government

21

scrutiny.” (Resp. at 19 n.7.) However, besides asserting an overbreadth challenge and the public’s right to access warrant information, Microsoft does not allege that it has third-party

22

standing to assert its customers’ First Amendment rights and makes no substantive argument on these points. (See FAC; Resp.)

ORDER - 32

Case 2:16-cv-00538-JLR Document 107 Filed 02/08/17 Page 33 of 47

1 applied.” Fox, 492 U.S. at 484-85. Accordingly, “the lawfulness of the particular

2 application of the law should ordinarily be decided first.”10 Id. at 485.

3

“For a statute to be facially invalid on overbreadth grounds, it must be

4 substantially overbroad.” Acosta v. City of Costa Mesa, 694 F.3d 960, 970 (9th Cir.

5 2012). “A statute is substantially overbroad if a substantial number of its applications are

6 unconstitutional, judged in relation to the statute’s legitimate sweep.” United States v.

7 Perelman, 695 F.3d 866, 870 (9th Cir. 2012) (internal quotation marks omitted). “The

8 first step in overbreadth analysis is to construe the challenged statute; it is impossible to

9 determine whether a statute reaches too far without first knowing what the statute

10 covers.” United States v. Williams, 553 U.S. 285, 293 (2008).

11

The court rejects the Government’s argument that Microsoft may not proceed with

12 an overbreadth challenge. Although a plaintiff generally brings an overbreadth challenge

13 to assert that a law violates the First Amendment rights of parties that are not before the

14 court, a plaintiff may nevertheless assert an overbreadth challenge to a law that the

15 plaintiff contends also violates its own First Amendment rights.11 See Fox, 492 U.S. at

16
10 An as-applied challenge “contends that the law is unconstitutional as applied to the 17 litigant’s particular speech activity, even though the law may be capable of valid application to
others.” Foti v. City of Menlo Park, 146 F.3d 629, 635 (9th Cir. 1998). “A paradigmatic 18 as-applied attack . . . challenges only one of the rules in a statute, a subset of the statute’s
applications, or the application of the statute to a specific factual circumstance, under the 19 assumption that a court can ‘separate valid from invalid subrules or applications.’” Hoye v. City
of Oakland, 653 F.3d 835, 857 (9th Cir. 2011) (quoting Richard H. Fallon, Jr., As-Applied and 20 Facial Challenges and Third-Party Standing, 113 HARV. L. REV. 1321, 1334 (2000)). “[T]he
substantive legal tests used in the two challenges are invariant.” Id. (internal quotation marks 21 omitted).
11 Further, Microsoft contends that indefinite nondisclosure orders under Section 2705(b) 22 impinge on the public’s right of access to court documents. (See FAC ¶ 26 (stating that orders

ORDER - 33

Case 2:16-cv-00538-JLR Document 107 Filed 02/08/17 Page 34 of 47

1 484; Nunez, 114 F.3d at 949. In addition, Microsoft alleges that “a substantial number”

2 of Section 2705(b)’s applications are unconstitutional compared to Section 2705(b)’s

3 “legitimate sweep.” See Perelman, 696 F.3d at 870; (FAC ¶¶ 23, 27-31.) Specifically,

4 Microsoft alleges that Section 2705(b)’s “overbreadth manifests itself in at least three

5 ways”: (1) by permitting nondisclosure orders “for such period as the court deems

6 appropriate”; (2) by permitting a court to issue a nondisclosure order when the court has

7 “reason to believe” notification would result in one of five outcomes listed in Section

8 2705(b); and (3) by allowing a court to issue a nondisclosure order when notification to

9 the target would “otherwise seriously jeopardiz[e] an investigation or unduly delay[] a

10 trial.” (FAC ¶¶ 27-31.) Contrary to the Government’s characterization, these allegations

11 adequately support Microsoft’s claim that Section 2705(b) is unconstitutionally

12 overbroad.12

13

14 issued under 2705(b) “improperly inhibit the public’s right of access to search warrants under both the common law and the First Amendment”).) Thus, as to at least one of the First

15 Amendment rights Microsoft asserts, Microsoft alleges that Section 2705(b) is “so broadly written that it infringes unacceptably on the First Amendment rights of third parties.” Elcom

16

Ltd., 203 F. Supp. 2d at 1132; see also Times Mirror Co., 873 F.2d at 1217 (holding that there is no First Amendment right of public access to warrant materials before an indictment issues);

Custer Battlefield Museum & Store, 658 F.3d at 1194-95 (stating that the court “expressly 17 reserved” the issue of “whether the public has a constitutional right of access after an

investigation has been terminated”). 18

12 At this stage of the litigation, Microsoft need not present evidence of unconstitutional

19 applications of Section 2705(b)—it must only allege “a claim to relief that is plausible on its

face.” Twombly, 550 U.S. at 570; see also Comite de Jornaleros de Redondo Beach v. City of

20 Redondo Beach, 657 F.3d 936, 944 (9th Cir. 2011) (stating on review of a district court’s grant of summary judgment that “[t]he party challenging the law need not necessarily introduce

21

admissible evidence of overbreadth, but generally must at least ‘describe the instances of arguable overbreadth of the contested law’” (quoting Wash. State Grange v. Wash. State

22

Republican Party, 552 U.S. 442, 449 n.6 (2008))); Martinez v. City of Rio Rancho, --- F. Supp. 3d ---, 2016 WL 3919491, at *10 (D. N.M. July 20, 2016) (“The plaintiff bears the burden of

ORDER - 34

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1

c. Other First Amendment Theories

2

The Government also argues that Microsoft’s “other possible First Amendment

3 legal theories” fail. (MOT. at 24.) Specifically, the Government contends that

4 “Microsoft may challenge the continued need for secrecy at any time” and “lacks

5 standing to raise the claims of” third parties (id.), that Section 2705(b)’s “reason to

6 believe” standard is sufficient (id.), and that Section 2705(b) is constitutional because the

7 Government has sufficiently important interests in avoiding the list of harms under which

8 the Government can seek a nondisclosure order (id. at 25).

9

The court rejects the Government’s ancillary arguments. First, although Microsoft

10 may challenge whether any given order should subject Microsoft to continued secrecy,

11 that ability does not prevent Microsoft from bringing a constitutional challenge to the

12 statute under which the orders may be issued. See, e.g., In re Sealing, 562 F. Supp. 2d at

13 878, 881 (concluding that indefinite nondisclosure orders under 2705(b) may be

14 unconstitutional); [Redacted]@yahoo.com, 79 F. Supp. 3d 1091 (same). Further,

15 Microsoft has standing to assert its First Amendment claims because Microsoft alleges

16 that it has suffered a First Amendment injury and will likely suffer similar injuries in the

17 future. See supra § III.B.1.a. Microsoft therefore need not show third-party standing as

18 to its First Amendment claim. Finally, the Government’s arguments that the “reason to

19

20 demonstrating substantial overbreadth exists from the text of the statute and the facts of the case.”).

21

Further, because the court is not deciding the constitutionality of Section 2705(b) as-applied to Microsoft, it is of no moment that the court ordinarily decides an as-applied

22

challenge before deciding an overbreadth challenge. (See FAC ¶ 32); Serafine v. Branaman, 810 F.3d 354, 364 (5th Cir. 2016).

ORDER - 35

Case 2:16-cv-00538-JLR Document 107 Filed 02/08/17 Page 36 of 47

1 believe” standard that Microsoft contends is unconstitutional and that it has compelling

2 interests sufficient to justify indefinite nondisclosure orders under Section 2705(b) are

3 not properly before the court at this stage of litigation. For these reasons, the court rejects

4 Microsoft’s ancillary arguments to dismiss Microsoft’s First Amendment claims.

5

4. As-Applied Challenge

6

The Government’s final argument against Microsoft’s First Amendment claim

7 assails Microsoft’s as-applied challenge on the basis that Microsoft has not pleaded

8 sufficiently particular facts to support such a challenge. (Mot. at 28-29.) Specifically,

9 the Government asserts that “Microsoft has not provided specific facts about any instance

10 of the application of [S]ections 2703 and 2705(b) in support of its claims ‘as applied to

11 Microsoft’” and “provides no information about any particular instance or order.” (Id. at

12 29.) Microsoft counters that “[t]he distinction between facial and as-applied challenges

13 ‘goes to the breadth of the remedy employed by the [c]ourt, not what must be pleaded in

14 a complaint.’” (Resp. at 25 (quoting Citizens United v. Fed. Election Comm’n, 558 U.S.

15 310, 331 (2010)).)

16

A plaintiff asserting an as-applied challenge must allege sufficient facts to

17 demonstrate a statute’s “unconstitutionality as applied to [the plaintiff’s] activities.”

18 Pickup v. Brown, No. 2:12-cv-02497-KJM-EFB, 2016 WL 4192406, at *4 (E.D. Cal.

19 Aug. 9, 2016). “[A]n as-applied challenge requires an allegation that a law is

20 unconstitutional as applied to a particular plaintiff’s speech activity, even though it may

21 be valid as applied to others.” Venice Justice Comm. v. City of L.A., --- F. Supp. 3d ---,

22 2016 WL 4724557, at *4 (C.D. Cal. Sept. 9, 2016).

ORDER - 36

Case 2:16-cv-00538-JLR Document 107 Filed 02/08/17 Page 37 of 47

1

Although the Government is correct that “‘[a]n as-applied challenge goes to the

2 nature of the application rather than the nature of the law itself’” (Mot. at 29 (quoting

3 Desert Outdoor Advert. v. Oakland, 506 F.3d 798, 805 (9th Cir. 2007))), that observation

4 does not warrant dismissal of Microsoft’s as-applied challenge. Microsoft alleges in its

5 complaint that Section 2705(b) has been unconstitutionally applied to Microsoft because

6 in a 20-month period ending in May 2016, courts have issued more than 450 indefinite

7 nondisclosure orders accompanying a warrant. (FAC ¶ 32.) Each order allegedly

8 prevents Microsoft from speaking about the government investigations it is required to

9 participate in. (Id.) In addition, Microsoft alleges that all of those orders were issued

10 under Section 2705(b)’s “reason to believe standard,” which Microsoft contends does not

11 meet strict scrutiny, and that “it appears that a substantial number of the orders may have

12 relied on the . . . catchcall provision” that Microsoft also asserts is unconstitutional. (Id.

13 ¶¶ 29, 32.) The court finds that Microsoft has sufficiently stated an as-applied challenge

14 because Microsoft alleges that Section 2705(b) has been unconstitutionally applied to

15 Microsoft’s speech with acts that—taken as true—support a plausible claim for relief.

16 C. Fourth Amendment Claim

17

The Government argues that the court must dismiss Microsoft’s Fourth

18 Amendment claims because Microsoft cannot assert the Fourth Amendment rights of its

19 users.13 (Mot. at 14.) Specifically, the Government contends that Fourth Amendment

20 13 The Government frames this issue as one of standing. (Mot. at 14 (“Microsoft’s

21

inability to bring a claim on behalf of its users is properly viewed as an absence of the personal injury requirement for Article III standing.”).) However, the Supreme Court has held that

22

“definition of [Fourth Amendment] rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing.” Rakas v. Illinois, 439 U.S.

ORDER - 37

Case 2:16-cv-00538-JLR Document 107 Filed 02/08/17 Page 38 of 47

1 rights are personal rights that a third party cannot assert. (Id.) Microsoft counters by

2 stating that it meets the test for third-party standing developed in Powers v. Ohio, 499

3 U.S. 400 (1991),14 which Microsoft contends allows third-party standing “where the

4 absent party is hindered from protecting its Fourth Amendment interests.” (Resp. at 28

5 n.13.) Because Microsoft addressed the Government’s argument only in a footnote, the

6 court invited the parties to file supplemental briefing on this particular issue in advance of

7 oral argument. (See 1/19/17 Order (Dkt. # 103); Msft. Supp. Br. (Dkt. # 104).)

8

In its supplemental brief, Microsoft concedes that two Supreme Court cases,

9 Alderman v. United States, 394 U.S. 165 (1969), and Rakas v. Illinois, 439 U.S. 128

10 (1978), establish a general rule against a third party vicariously asserting the Fourth

11 Amendment rights of another person, but Microsoft argues that this general rule yields in

12 “special circumstances,” such as where a person cannot assert his own Fourth

13

14 128, 140 (1978); see also Minnesota v. Carter, 525 U.S. 83, 88 (1998) (“Central to our analysis

15

was the idea that in determining whether a defendant is able to show the violation of his (and not someone else’s) Fourth Amendment rights, the definition of those rights is more properly placed

16

within the purview of substantive Fourth Amendment law than within that of standing.” (internal quotation marks omitted)). On the other hand, the Ninth Circuit continues to refer to the analysis

as addressing standing. See, e.g., Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 371 17 (9th Cir. 1998) (“Regardless of whether Appellants have standing to assert a Fourth Amendment

claim based on Douglas’s death, they each may assert a Fourteenth Amendment claim based on

18 the related deprivation of their liberty interest arising out of their relationship with Douglas.”);

Ellwest Stereo Theatres, Inc. v. Wenner, 681 F.2d 1243, 1248 (9th Cir. 1982) (“Ellwest has no

19 standing to assert the [F]ourth [A]mendment rights of its customers.”). Whether the analysis is

viewed as one of substantive law or standing, however, does not impact the court’s subsequent

20 analysis.

21

14 In Powers, the Supreme Court held that a plaintiff has standing to vindicate violations

of a third party’s constitutional rights when the plaintiff demonstrates (1) an injury in fact, (2) a

22

close relationship with the third party, and (3) a hindrance to the third party’s ability to protect its own legal interests. 499 U.S. at 411.

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Case 2:16-cv-00538-JLR Document 107 Filed 02/08/17 Page 39 of 47

1 Amendment rights.15 (Msft. Supp. Br. at 3.) Microsoft argues that even in the context of

2 the Fourth Amendment, third-party standing jurisprudence allows a plaintiff to bring suit

3 on another person’s behalf where the person could not “‘effectively vindicate[]’” his

4 rights “‘except through an appropriate representative before the Court.’” (Id. at 6

5 (quoting N.A.A.C.P. v. Alabama, 357 U.S. 449, 459 (1958).) Microsoft contends that

6 Alderman explicitly contemplates this outcome because in that case, the Court concluded

7 that no “special circumstances” warranted allowing the plaintiff to assert the Fourth

8 Amendment rights of a party not before the Court. (See id. at 3-4.) Finally, Microsoft

9 argues that “courts do conduct Powers analyses to determine whether litigants may bring

10 claims based on infringement of others’ Fourth Amendment rights.” (Id. at 6.)

11

Having reviewed this area of Fourth Amendment law, the court concludes that the

12 Supreme Court and the Ninth Circuit have routinely held in a variety of circumstances

13 that a plaintiff may not assert the Fourth Amendment rights of another person. See, e.g.,

14 Alderman, 394 U.S. at 174 (stating the “general rule that Fourth Amendment rights are

15 personal rights which, like some other constitutional rights, may not be vicariously

16 asserted”); Rakas, 439 U.S. at 134. In Alderman, the Supreme Court unequivocally

17 stated that “Fourth Amendment rights are personal rights which, like some other

18 constitutional rights, may not be vicariously asserted.” 394 U.S. at 174. Based on this

19 principle, the Supreme Court concluded that a third party may not invoke the

20 exclusionary rule “because it is proper to permit only defendants whose Fourth

21

22

15 The Government did not file a supplemental brief. (See Dkt.)

ORDER - 39

Case 2:16-cv-00538-JLR Document 107 Filed 02/08/17 Page 40 of 47

1 Amendment rights have been violated to benefit from the rule’s protections.” Rakas, 439

2 U.S. at 134; see also United States v. Salvucci, 448 U.S. 83, 95 (1980) (“[T]he values of

3 the Fourth Amendment are preserved by a rule which limits the availability of the

4 exclusionary rule to defendants who have been subjected to a violation of their Fourth

5 Amendment rights.”). Specifically, the Supreme Court held that “[a] person who is

6 aggrieved by an illegal search and seizure only through the introduction of damaging

7 evidence secured by a search of a third person’s premises or property has not had any of

8 his Fourth Amendment rights infringed.” Id. at 134. In fashioning this rule, the Supreme

9 Court noted that “[t]here is no reason to think that a party whose rights have been

10 infringed will not, if evidence is used against him, have ample motivation to move to

11 suppress it.” Id.; see also Alderman, 394 U.S. at 174 (“None of the special circumstances

12 which prompted NAACP v. Alabama . . . and Barrows v. Jackson . . . are present here.”).

13 For this reason, third parties cannot benefit from the exclusionary rule when the third

14 party’s Fourth Amendment rights have not been violated. See id.

15

Courts also apply this rule outside of the exclusionary rule context. For example,

16 the Supreme Court and the Ninth Circuit have prevented plaintiffs in cases brought under

17 42 U.S.C. § 1983 from invoking another person’s Fourth Amendment rights. In Plumhoff

18 v. Rickard, the Supreme Court refused to allow the respondent, who was driving a car, to

19 show that the number of shots fired in a police interaction was constitutionally excessive

20 due to the presence of a passenger in the front seat. --- U.S. ---, 134 S. Ct. 2012, 2022

21 (2014). The Court based its decision on the fact that “Fourth Amendment rights are

22 personal rights which . . . may not be vicariously asserted” and concluded that the

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Case 2:16-cv-00538-JLR Document 107 Filed 02/08/17 Page 41 of 47

1 passenger’s “presence in the car [could not] enhance [the respondent’s] Fourth

2 Amendment rights.” Id. The Ninth Circuit has also held that “the general rule is that

3 only the person whose Fourth Amendment rights were violated can sue to vindicate those

4 rights.” Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 369 (9th Cir. 1998)

5 (noting an exception to that general rule based on a statute that allowed “the survivors of

6 an individual killed as a result of an officer’s excessive use of force [to] assert a Fourth

7 Amendment claim on that individual’s behalf if the relevant state’s law authorizes a

8 survival action” (citing 42 U.S.C. § 1988(a))); see also Mabe v. San Bernardino Cty.,

9 Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1111 (9th Cir. 2001) (citing United States v.

10 Taketa, 923 F.2d 665, 670 (9th Cir. 1991)) (“[The plaintiff] has no standing to claim a

11 violation of [the plaintiff’s daughter’s] Fourth Amendment rights.”).

12

As Microsoft points out, a “general rule” often has exceptions and courts have

13 found “special circumstances” to give rise to third-party standing. (See Msft. Supp. Br. at

14 3-4); Alderman, 394 U.S. at 174. However, the Supreme Court and Ninth Circuit have

15 also adhered to the principle that a third party may not sue to vindicate another person’s

16 Fourth Amendment rights in cases that did not involve the exclusionary rule or Section

17 1983. For example, in a case involving facts similar to those here, bank customers, a

18 bank, and a bankers’ association filed suit to challenge the constitutionality of the Bank

19 Secrecy Act of 1970. Cal. Bankers Ass’n v. Shultz, 416 U.S. 21, 25 (1974). “Under the

20 Act, the Secretary of the Treasury [was] authorized to prescribe by regulation certain

21 recordkeeping and reporting requirements for banks and other financial institutions in the

22 country” to combat “the unavailability of foreign and domestic bank records of customers

ORDER - 41

Case 2:16-cv-00538-JLR Document 107 Filed 02/08/17 Page 42 of 47

1 thought to be engaged in activities entailing criminal or civil liability.” Id. at 26. Among

2 other claims, the plaintiffs asserted a Fourth Amendment claim that the financial

3 transaction details the Act required banks to give to the Government amounted to an

4 unreasonable search. Id. at 64. The Supreme Court did not allow “the California

5 Bankers Association or the Security National Bank [to] vicariously assert such Fourth

6 Amendment claims on behalf of bank customers in general.” Id. at 69.

7

The Ninth Circuit also held that a threat of “dragnet searches” and “spying” did

8 not threaten a theater’s privacy interests under the Fourth Amendment, but rather “the

9 interests of its patrons.” Ellwest, 681 F.2d at 1248. The Court held that because “Fourth

10 [A]mendment rights are personal rights . . . which may not be vicariously asserted,”

11 “Ellwest ha[d] no standing to assert the [F]ourth [A]mendment rights of its customers.”

12 Id. Other federal courts have reached similar conclusions. See, e.g., Daniels v. Southfort,

13 6 F.3d 482, 484 (7th Cir. 1993) (holding that the plaintiff “lacks standing to complain

14 about injuries to his friends” because “Fourth Amendment rights cannot be asserted

15 vicariously” in a case involving a Fourth Amendment challenge to Chicago Police

16 Department harassment against the plaintiff and “his friends”); Keller v. Finks, No.

17 13-03117, 2014 WL 1283211, at *6 (C.D. Ill. Mar. 31, 2014) (citing Salvucci, 448 U.S. at

18 86-87) (stating that “[t]he rule against third-party standing is especially strong in the

19 context of the Fourth Amendment” and holding that “the rule against third-party standing

20 in the context of the Fourth Amendment bars Plaintiff’s claim”); Haitian Refugee Ctr. v.

21 Gracey, 809 F.2d 794, 809 (D.C. Cir. 1987) (summarizing “[t]he Supreme Court’s

22 rejection of litigants’ attempts to raise the [F]ourth [A]mendment rights of third parties”);

ORDER - 42

Case 2:16-cv-00538-JLR Document 107 Filed 02/08/17 Page 43 of 47

1 but see Heartland Acad. Cmty. Church v. Waddle, 427 F.3d 525, 532-33 (8th Cir. 2005)

2 (holding that a school had associational standing to assert the Fourth Amendment rights

3 of its students and distinguishing this case from cases that involve the exclusionary rule).

4 Taken together, these cases embody a particularly narrow view of third-party standing in

5 the Fourth Amendment realm.16

6

Microsoft argues that in all of these cases, the person to whom the Fourth

7 Amendment right belonged could go to court to vindicate his own right, whereas

8 Microsoft contends that its customers cannot do so here. (See Msft. Supp. Br. at 2-5.)

9 On this basis, Microsoft encourages the court to apply the three-part Powers test and

10 conclude that it has standing to pursue these Fourth Amendment claims. (Id. at 5-6); see

11 also supra n.18. Specifically, Microsoft contends that this case involves “special

12 circumstances” similar to those present in N.A.A.C.P. and Barrows v. Jackson, 346 U.S.

13 249 (1953). (Id. at 6.) In those cases, the Supreme Court allowed an organization to

14 assert its members’ rights and white property owners to assert the Fourteenth Amendment

15 rights of property owners of color. See N.A.A.C.P., 357 U.S. at 459 (allowing the

16 N.A.A.C.P. associational standing to assert the constitutional rights of its members to

17 resist an order that required the N.A.A.C.P. to release its membership list); Barrows, 346

18 //

19

20

16 The general policies behind prudential limits on standing further support this

conclusion. The Supreme Court instructs that “[f]ederal courts must hesitate before resolving a

21

controversy, even one within their constitutional power to resolve, on the basis of the rights of third persons not parties to the litigation.” Singleton v. Wulff, 428 U.S. 106, 114 (1976). The

22

Supreme Court cautions courts not to “adjudicate such rights unnecessarily” and indicates that “third parties themselves usually will be the best proponents of their own rights.” Id. at 113-14.

ORDER - 43

Case 2:16-cv-00538-JLR Document 107 Filed 02/08/17 Page 44 of 47

1 U.S. at 255 (allowing white residents standing to assert the constitutional rights of other

2 people to invalidate a racially discriminatory restrictive covenant).

3

In addition, Microsoft cites four cases in which federal courts applied the Powers

4 test to determine whether a plaintiff had third-party standing to assert a Fourth

5 Amendment claim. (See Msft. Supp. Br. at 6); DeRaffele v. City of Williamsport, No.

6 4:14-cv-01849, 2015 WL 5781409, at *7 (M.D. Pa. Aug. 19, 2015) (applying the Powers

7 test and concluding that the plaintiff lacked standing to assert his tenants’ First, Fourth,

8 Fifth, and Fourteenth Amendment rights because “he ha[d] not shown that the tenants

9 face[d] a substantial obstacle to asserting their own rights and interests”); Al-Aulaqi v.

10 Obama, 727 F. Supp. 2d 1, 24 (D.D.C. 2010) (applying Powers to a Fourth Amendment

11 claim and concluding that the plaintiff could not “show that a parent suffers an injury in

12 fact if his adult child is threatened with a future extrajudicial killing”); Franklin v.

13 Borough of Carteret Police Dep’t, No. 10-1467 (JLL), 2010 WL 4746740, at *4 (D.N.J.

14 Nov. 15, 2010) (applying Powers to a Fourth Amendment claim and determining that the

15 plaintiff had third-party standing); Daly v. Morgenthau, No. 98 CIV. 3299(LMM), 1998

16 WL 851611, at *4 (S.D.N.Y. Dec. 9, 1998) (citing both Rakas and Powers and finding

17 that “there is no indication that” the person not before the court was “hindered in her

18 ability to protect her own interests”). These cases are not binding on the court.

19 Moreover, the court finds them unpersuasive in light of the Supreme Court’s and the

20 Ninth Circuit’s broad language and the wide range of applications in which those Courts

21 have applied the principle against third-party standing in the Fourth Amendment context.

22 //

ORDER - 44

Case 2:16-cv-00538-JLR Document 107 Filed 02/08/17 Page 45 of 47

1 Indeed, the cases Microsoft cites do not directly address the Supreme Court and Ninth

2 Circuit case law that the court examines above.

3

Based on the foregoing analysis, the court concludes that Microsoft may not bring

4 a claim to vindicate its customers’ Fourth Amendment rights. Although the Supreme

5 Court and the Ninth Circuit routinely employ the third-party standing doctrine to cases

6 involving constitutional rights, that doctrine is in tension with Fourth Amendment

7 jurisprudence. Indeed, the court has identified only one non-binding case in which a

8 court has employed the Powers test to allow third-party standing when the party bringing

9 suit seeks to vindicate another person’s Fourth Amendment rights. See Franklin, 2010

10 WL 4746740, at *3-4 (holding that a parent had standing to bring an excessive force

11 claim on the parent’s minor child’s behalf). On the other hand, the court has not

12 identified any binding case law or compelling rationale to limit the Supreme Court’s and

13 Ninth Circuit’s general holdings that Fourth Amendment rights are personal rights to

14 cases involving the exclusionary rule or to Section 1983 suits.

15

The court acknowledges the difficult situation this doctrine creates for customers

16 subject to government searches and seizures under Sections 2703 and 2705(b). As

17 Microsoft alleges, the indefinite nondisclosure orders allowed under Section 2705(b)

18 mean that some customers may never know that the government has obtained information

19 in which those customers have a reasonable expectation of privacy. (FAC ¶¶ 7 (“Section

20 2703 allows the government to search and seize customers’ private information without

21 providing any notice to the customer, while Section 2705(b) permits the government to

22 obtain an order gagging the cloud services provider based upon a constitutionally

ORDER - 45

Case 2:16-cv-00538-JLR Document 107 Filed 02/08/17 Page 46 of 47

1 insufficient showing.”), 35 (“The interaction of these provisions means the government

2 can access a customer’s most sensitive information without the customer having any way

3 to learn about, or challenge, the government’s intrusion.”).) For this reason, some of

4 Microsoft’s customers will be practically unable to vindicate their own Fourth

5 Amendment rights. (Id. ¶ 38 (“[C]ustomers lack sufficient knowledge to challenge

6 government action because of the government’s tactic of operating behind a veil of

7 secrecy.”)); see also Reforming ECPA’s Secret Docket at 328 (“[T]he suppression

8 remedy is no consolation to the law-abiding citizen who is never charged with a crime

9 and who never learns, even after the fact, that her emails and phone records have been

10 obtained and reviewed by the government.”). This conundrum, however, is not unique to

11 this case; it is also true of the victim of an unreasonable search in a stranger’s home. See

12 Alderman, 394 U.S. at 134. The source of the court’s conclusion is thus the product of

13 established and binding precedent, which precludes the court from allowing Microsoft to

14 vindicate Fourth Amendment rights that belong to its customers. This court cannot

15 faithfully reconcile the broad language of those cases and Microsoft’s theory of Fourth

16 Amendment standing on the facts of this case; that task is more properly left to higher

17 courts.17

18

17 A court should freely give leave to amend “when justice so requires.” Fed. R. Civ. P.

19 15(a)(2). However, a court need not grant leave to amend where amendment would be futile.

Miller v. Rykoff–Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988). A proposed amendment is

20 futile if it would not state a “cognizable legal theory” or “sufficient facts.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). Because of the binding authority regarding

21

third-party standing in the Fourth Amendment context, which the court addressed in detail supra, the court concludes that any amendment of Microsoft’s Fourth Amendment claim on behalf of its

22

customers would be futile. For this reason, the court declines to grant Microsoft leave to amend this claim.

ORDER - 46

Case 2:16-cv-00538-JLR Document 107 Filed 02/08/17 Page 47 of 47

1

IV. CONCLUSION

2

For the foregoing reasons, the court GRANTS IN PART and DENIES IN PART

3 the Government’s motion to dismiss (Dkt. # 38).

4

Dated this 8th day of February, 2017.

5

6

A

7 JAMES L. ROBART

8

United States District Judge

9

10

11

12

13

14

15

16

17

18

19

20

21

22

ORDER - 47

 
 Case 2:16-cv-00538-JLR Document 117 Filed 10/24/17 Page 1 of 8

The Honorable James L. Robart 1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9
MICROSOFT CORPORATION, 10
Plaintiff, 11
v. 12
THE UNITED STATES DEPARTMENT OF 13 JUSTICE, and JEFFERSON B. SESSIONS, III,
in his official capacity as Attorney General of the 14 United States,

No. 16-cv-00538 - JLR
MICROSOFT CORPORATION’S UNOPPOSED MOTION FOR VOLUNTARY DISMISSAL
Noted for Consideration: October 24, 2017

15

Defendants.

16

17

Pursuant to Fed. R. Civ. P. 41(a)(2), Microsoft Corporation asks the Court to enter an

18 Order dismissing this case without prejudice. Defendants have authorized Microsoft to advise

19 the Court that they do not oppose the request for a dismissal without prejudice.

20

On April 14, 2016, Microsoft Corporation filed this lawsuit, asking the Court to declare

21 unconstitutional 18 U.S.C. § 2705(b), the statute that permits the Department of Justice

22 (“DOJ”) to obtain orders prohibiting service providers, including Microsoft, from telling their

23 customers (and others) when the government obtains legal process requiring the production of

24 customer information. Microsoft contended that the law violates the First and Fourth

25 Amendments to the U.S. Constitution, alleging that nearly two-thirds of the thousands of

26 Section 2705(b) orders it had received contained no end-date; that DOJ interpreted the law to

27 allow law enforcement to seek non-disclosure orders without providing case-specific facts

UNOPPOSED MOTION TO DISMISS (No. 16-cv-00538-JLR) - 1
4820-8591-3169v.3 0025936-002444

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:16-cv-00538-JLR Document 117 Filed 10/24/17 Page 2 of 8

1 sufficient to justify a prior restraint on speech; and that thousands of non-disclosure orders had

2 been issued under authority of Section 2705(b) restraining Microsoft’s speech without

3 sufficient justification under governing constitutional standards, in violation of the First

4 Amendment, and without the government providing notice to Microsoft’s customers, in

5 violation of the Fourth Amendment.

6

On February 8, 2017, the Court denied the DOJ’s Motion to Dismiss Microsoft’s First

7 Amendment claim, but granted DOJ’s Motion to Dismiss Microsoft’s Fourth Amendment

8 claim, holding that Microsoft had no right to bring a claim to vindicate its customers’ Fourth

9 Amendment rights. As a result, only Microsoft’s First Amendment claim remains in this Court.

10

On October 19, 2017, the Deputy Attorney General issued a binding policy (“the

11 Policy”) governing requests for non-disclosure orders by federal law enforcement under

12 authority of Section 2705(b), which is to be added to the U.S. Attorney’s Manual. DOJ made

13 the Policy publicly available through its website on October 24, 2017, and it is attached to this

14 Motion as Exhibit A. The Policy expressly recognizes that “[e]ach § 2705(b) order should have

15 an appropriate factual basis and each order should extend only as long as necessary to satisfy

16 the government’s interest.” Ex. A at 1. Further, it requires prosecutors to “conduct an

17 individualized and meaningful assessment ... prior to seeking an § 2705 order and only seek an

18 order when circumstances require.” Id. at 2. Consistent with these newly articulated

19 principles, the Policy directs federal prosecutors to apply for Section 2705(b) non-disclosure

20 orders only when the facts of the case support the issuance of the orders; generally forbids the

21 use of indefinite orders; and precludes federal prosecutors from seeking orders lasting more

22 than one year, absent exceptional circumstances and with the written concurrence of

23 supervisory officials within the DOJ or a U.S. Attorney’s office.

24

Because the new Policy significantly improves DOJ practices under Section 2705(b),

25 Microsoft has determined not to proceed with this case. As explained above, the Policy

26 addresses the most important issues Microsoft raised in this matter. The Policy significantly

27 increases transparency, enhances the privacy rights of Microsoft’s customers, and represents an

UNOPPOSED MOTION TO DISMISS (No. 16-cv-00538-JLR) - 2
4820-8591-3169v.3 0025936-002444

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:16-cv-00538-JLR Document 117 Filed 10/24/17 Page 3 of 8

1 important step forward for both privacy and free expression. Accordingly, rather than continue

2 this litigation, Microsoft intends to monitor the DOJ’s implementation of the Policy to ensure

3 that prosecutors faithfully implement its directions and comply with constitutional standards,

4 and to advocate for amendments to the Stored Communications Act to modernize the statute.

5

In light of the foregoing, Microsoft respectfully asks the Court to dismiss this lawsuit

6 pursuant to Fed. R. Civ. P. 41(a)(2) without prejudice.

7

DATED this 24th day of October, 2017.

Davis Wright Tremaine LLP

8

Attorneys for Microsoft Corporation

9

By s/ Stephen M. Rummage

Stephen M. Rummage, WSBA #11168

10

Ambika K. Doran, WSBA #38237

1201 Third Avenue, Suite 2200

11

Seattle, WA 98101-3045

Phone: 206-622-3150, Fax: 206-757-7700

12

E-mail: steverummage@dwt.com

E-mail: ambikadoran@dwt.com

13

Laura Handman (pro hac vice)

14

Davis Wright Tremaine LLP

1919 Pennsylvania Ave NW #800,

15

Washington, DC 20006

Phone: (202) 973-4200, Fax: (202) 973-4429

16

E-mail: laurahandman@dwt.com

17

James M. Garland (pro hac vice)

Alexander A. Berengaut (pro hac vice)

18

Katharine R. Goodloe (pro hac vice)

Covington and Burling LLP

19

One CityCenter

850 10th St., N.W.

20

Washington, DC 20001

Phone: (202) 662-6000, Fax: (202) 662-6291

21

Email: jgarland@cov.com,

aberengaut@cov.com, kgoodloe@cov.com

22

Bradford L. Smith

23

David M. Howard

Jonathan Palmer

24

Microsoft Corporation

One Microsoft Way

25

Redmond, WA 98052

26

Attorneys for Microsoft Corporation

27

UNOPPOSED MOTION TO DISMISS (No. 16-cv-00538-JLR) - 3
4820-8591-3169v.3 0025936-002444

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:16-cv-00538-JLR Document 117 Filed 10/24/17 Page 4 of 8

1

CERTIFICATE OF SERVICE

2

I hereby certify that on October 24, 2017, I electronically filed the foregoing with the

3 Clerk of the Court using the CM/ECF system, which will send notification of such filing to

4 those attorneys of record registered on the CM/ECF system.

5

DATED this 24th day of October, 2017.

6

Davis Wright Tremaine LLP

7

Attorneys for Microsoft Corporation

8

By s/ Stephen M. Rummage

Stephen M. Rummage, WSBA #11168

9

Ambika K. Doran, WSBA #38237

1201 Third Avenue, Suite 2200

10

Seattle, Washington 98101-3045

11

Telephone: (206) 622-3150

Fax: (206) 757-7700

12

E-mail: steverummage@dwt.com

E-mail: ambikadoran@dwt.com

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

UNOPPOSED MOTION TO DISMISS (No. 16-cv-00538-JLR) - 4
4820-8591-3169v.3 0025936-002444

Davis Wright Tremaine LLP
LAW OFFICES 1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax

Case 2:16-cv-00538-JLR Document 117 Filed 10/24/17 Page 5 of 8
EXHIBIT A

Case 2:16-cv-00538-JLR Document 117 Filed 10/24/17 Page 6 of 8 U.S. Department of Justice Office of the Deputy Attorney General

The Deputy Attorney General

Washington, D.C. 20530
October 19, 2017

MEMORANDUM FOR HEADS OF DEPARTMENT LAW ENFORCEMENT COMPONENTS

DEPARTMENT LITIGATING COMPONENTS

THE DIRECTOR, EXECUTIVE OFFICE FOR U.S. ATTORNEYS

ALL UNITED STATES ATTORNEYS

FROM:

Rod J. Rosenste~

~

Deputy Attorney G1 eral

SUBJECT:

Policy Regarding Applications for Protective Orders Pursuant to 18 U.S.C. § 2705(b)

This memorandum provides guidance and direction for Department of Justice attorneys and agents seeking protective orders pursuant to 18 U.S.C. § 2705(b) of the Stored Communications Act (SCA). 1 This guidance applies prospectively to all applications seeking protective orders, including both new orders and renewals, fi led on or after 30 days of the date this memorandum is issued.

The SCA permits the government to obtain certain records and information from providers of electronic communications services or remote computing services relating to their customers or subscribers. Under the SCA, the government may compel the disclosure of different categories of information via subpoena, a court order under 18 U.S .C. § 2703(d), or a search warrant. The SCA does not by default forbid a provider from notifying anyone. Providers wi ll be prohibited from voluntarily notifying their users of the receipt oflegal process under the SCA only if the government obtains a protective order under 18 U.S.C. § 2705(b), based on a need for protection from disclosure.

Each § 2705(b) order should have an appropriate factual basis and each order should extend only as long as necessary to satisfy the government' s interest. Prosecutors who are applying for§ 2705(b) orders must follow the steps outlined below:

1 T his guidance is inte nded only to improve the internal ma nagement of the Department of Justice. It is not intended to and does not create any right, benefit, trust, or respons ibility, whether substantive or procedural, e nforceab le at law or equi ty by a party against the United States, its departments, agencies, instrumentalities, entities, officers, employees, or any person, no r does it create any right of review in an admi nistrative, judicial, or any othe r proceeding. This memorandum does not impact or a lter existing procedures governing protective orders pursuant to any other authority, including 18 U.S.C. § 2709(c) or the Term ination Procedures for National Security Letter Nondisclosure Requirement, Federal Bureau of Investigation (Nov. 24, 20 15).

Case 2:16-cv-00538-JLR Document 117 Filed 10/24/17 Page 7 of 8

Distribution List

Page 2

l . Prosecutors must conduct an individualized and meaningful assessment regarding the need for protection from disclosure prior to seeking an § 2705(b) order and only seek an order when circumstances require.

2. In applying fo r a§ 2705(b) order, prosecutors should tailor the application to include the avai lable facts of the specific case and/or concerns attendant to the particular type of investigation. The prosecutor should identify which of the facto rs set forth in § 2705(b)( l )-(5) apply and explain why. For example, prosecutors might choose to include information about the relationship of the data sought to the subject(s) of the investigation or describe the potentia l for related accounts or data to be destroyed or otherwise made inaccessible to investigators. Simi larly, prosecutors may identify concerns attendant to the risk of flight or harm to public safety in that particular investigation, including those concerns based on experience with similar types of investigations. The factors justifying protection from disclosure may be similar in many cases, parti cularly at the outset of an investigation. As ap propriate, prosecutors may state the extent to which the stage of the investigation limits the avai labi lity of specific facts justi fying the§ 2705(b) order. 2

3. Prosecutors may seek a single protective order that covers multiple grand jury subpoenas issued as part of the same investigation, or a single protective order that covers other sets of nearl y-identical legal process in a discrete investigation. A single protective order for mu ltiple items of process should be sought only if the facts j ustify ing protection from disclosure are the same for all items of process covered by the order. Prosecutors should ensure that a copy of the protective order is served with each item of process covered by the order.

4. Barring exceptional circumstances, prosecutors fi ling§ 2705(b) applications may only seek to delay notice for one year or less.3

2 When applying for a § 2705(b) order to accompany a subpoena seeking basic subscriber information in an ongoing investigation that is not public or known to the subject(s) of the investigation, stating the reasons fo r protection from d isclosure under § 2705(b)-such as the risk that subject(s) will flee, destroy or tamper with evidence, change patte rns of behavior, or notify confederates-usually wi ll suffice. At a later stage of the investigation, for example, whe n a search warra nt is being sought, the prosecutor shou Id include more specific facts, as avai lable, in support o f the protecti ve order.
3 There may be exceptional c ircu mstances in which orde rs of longer duration are necessary, such as in cert ain nationa l security investigations that mate rially di ffer from routine cri m inal investigations. Orders seeking to delay notice beyond the time lim it listed above shall be sought only with the written concurrence of a supervisor designated by the United States Attorney or the appropriate Assistant
Attorney General, based upon facts and concerns that support a longer delay (e.g., the suspect is an
overseas fugitive who may travel internationa lly at some future time, if not a lerted to the investigation).

Case 2:16-cv-00538-JLR Document 117 Filed 10/24/17 Page 8 of 8

Distribution List

Page 3

5. The Department recognizes that judges may direct shorter or longer periods for orders, consistent with the language of§ 2705(b).

6. If factors justifying protection from disclosure continue to exist at the expiration of the original order, subsequent extensions of equal or Jess duration may be sought. Requests should be supported with such additional, specific facts as may have been developed through the investigation.
The guidance was developed with input from many Department components and will be added to the U.S. Attorney' s Manual. Nothing in this guidance is intended to indicate or imply that any existing protective order(s) issued by any court may be improper. If you have questions relating to the interpretation or recommended implementation of this guidance, please contact the Computer C rime and Intellectual Property Section of the Criminal Division at 202-514- 1026.

 
 U.S. District Court United States District Court for the Western District of Washington (Seattle)
CIVIL DOCKET FOR CASE #: 2:16-cv-00538-JLR

Microsoft Corporation v. United States Department of Justice et al Assigned to: Judge James L. Robart Cause: 28:2201 Declaratory Judgment

Date Filed: 04/14/2016 Date Terminated: 10/25/2017 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

Plaintiff Microsoft Corporation

represented by Alexander Adelman Berengaut COVINGTON & BURLING LLP (DC) ONE CITY CENTER 850 TENTH STREET, NW WASHINGTON, DC 20001 202-662-5367 Email: aberengaut@cov.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Ambika K Doran DAVIS WRIGHT TREMAINE (SEA) 1201 THIRD AVENUE STE 2200 SEATTLE, WA 98101-3045 206-757-8030 Email: ambikadoran@dwt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

James McMackin Garland COVINGTON & BURLING LLP (DC) ONE CITY CENTER 850 TENTH STREET, NW WASHINGTON, DC 20001 202-662-5337 Email: jgarland@cov.com LEAD ATTORNEY

V.
Defendant
United States Department of Justice

PRO HAC VICE ATTORNEY TO BE NOTICED
Katharine Reams Goodloe COVINGTON & BURLING LLP (DC) ONE CITY CENTER 850 TENTH STREET, NW WASHINGTON, DC 20001 202-662-6000 Email: kgoodloe@cov.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Laura R. Handman DAVIS WRIGHT TREMAINE (DC) 1919 PENNSYLVANIA AVE NW STE 800 WASHINGTON, DC 20006 202-973-4200 Email: laurahandman@dwt.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen M. Rummage DAVIS WRIGHT TREMAINE (SEA) 1201 THIRD AVENUE STE 2200 SEATTLE, WA 98101-3045 206-622-3150 Email: steverummage@dwt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Eric Soskin US DEPT. OF JUSTICE, CIVIL DIVISION FEDERAL PROGRAMS BRANCH 20 MASSACHUSETTS AVE NW

Defendant
Loretta Lynch in her official capacity as Attorney General of the United States

WASHINGTON, DC 20002 202-353-0533 Email: Eric.Soskin@usdoj.gov ATTORNEY TO BE NOTICED
Helen J Brunner US ATTORNEY'S OFFICE (SEA) 700 STEWART ST STE 5220 SEATTLE, WA 98101-1271 206-553-7970 Email: Micki.Brunner@usdoj.gov ATTORNEY TO BE NOTICED
Jennie L. Kneedler US DEPARTMENT OF JUSTICE (CIVIL - 20 MASS) CIVIL DIVISION FEDERAL PROGRAMS 20 MASSACHUSETTS AVE NW STE 7300 WASHINGTON, DC 20530 202-305-8662 Email: Jennie.L.Kneedler@usdoj.gov ATTORNEY TO BE NOTICED
Kerry Jane Keefe US ATTORNEY'S OFFICE (SEA) 700 STEWART ST STE 5220 SEATTLE, WA 98101-1271 206-553-2640 Email: kerry.keefe@usdoj.gov ATTORNEY TO BE NOTICED
represented by Eric Soskin (See above for address) ATTORNEY TO BE NOTICED
Helen J Brunner (See above for address) ATTORNEY TO BE NOTICED
Jennie L. Kneedler

V. Interested Party Stephen P. Wallace individually TERMINATED: 08/29/2016
Amicus American Civil Liberties Union

(See above for address) ATTORNEY TO BE NOTICED
Kerry Jane Keefe (See above for address) ATTORNEY TO BE NOTICED
represented by Stephen P. Wallace 1116 SHEFFER ROAD APT F AURORA, IL 60505 PRO SE
represented by Alex Abdo AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 BROAD STREET FLOOR 18 NEW YORK, NY 10004 212-549-2500 Email: aabdo@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Eliza Sweren-Becker AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 BROAD ST 18TH FL NEW YORK, NY 10004 212-549-2500 Email: esweren-becker@aclu.org TERMINATED: 08/10/2016 PRO HAC VICE
Emily Chiang ACLU OF WASHINGTON 901 FIFTH AVENUE SUITE 630 SEATTLE, WA 98164

Amicus American Civil Liberties Union Foundation
Amicus Former Law Enforcement Officials

206-624-2184 Email: echiang@aclu-wa.org ATTORNEY TO BE NOTICED
represented by Alex Abdo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew J. Pincus MAYER BROWN LLP (DC) 1999 K ST NW WASHINGTON, DC 20006-1101 202-263-3220 Email: apincus@mayerbrown.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Eliza Sweren-Becker (See above for address) TERMINATED: 08/10/2016 PRO HAC VICE
Emily Chiang (See above for address) ATTORNEY TO BE NOTICED
represented by Jeremy E Roller YARMUTH WILSDON PLLC 1420 5TH AVENUE SUITE 1400 SEATTLE, WA 98101 206-516-3800 Fax: 206-516-3888 Email: jroller@yarmuth.com ATTORNEY TO BE NOTICED
Kristina Silja Bennard YARMUTH WILSDON PLLC 1420 5TH AVENUE SUITE 1400 SEATTLE, WA 98101

Amicus Law Professors

206-516-3800 Email: kbennard@yarmuth.com TERMINATED: 11/10/2016
represented by Alexander H. Southwell GIBSON DUNN & CRUTCHER LLP (NY) 200 PARK AVENUE 48TH FLOOR NEW YORK, NY 10166-0193 212-351-3981 Email: asouthwell@gibsondunn.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David Ian Freeburg DLA PIPER US LLP (WA) 701 FIFTH AVE STE 7000 SEATTLE, WA 98104-7044 206-839-4800 Fax: 206-839-4801 Email: david.freeburg@dlapiper.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gabriel Gillett GIBSON DUNN & CRUTCHER LLP (NY) 200 PARK AVENUE 48TH FLOOR NEW YORK, NY 10166-0193 212-351-2656 Email: GGillett@gibsondunn.com TERMINATED: 10/17/2017 LEAD ATTORNEY PRO HAC VICE
Johnathan Manes UNIVERSITY OF BUFFALO SCHOOL OF LAW 613 O'BRIAN HALL, NORTH

Amicus
Reporters Committee for Freedom of the Press

CAMPUS BUFFALO, NY 14260-1100 716-645-6222 Email: jmmanes@buffalo.edu LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Todd T Williams CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP 1001 4TH AVE STE 3900 SEATTLE, WA 98154-1051 206-625-8600 Email: twilliams@corrcronin.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Aaron W Scherzer ORRICK HERRINGTON & SUTCLIFFE (NY) 51 W. 52ND STREET NEW YORK, NY 10019 212-506-5000 Email: ascherzer@orrick.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bruce Brown REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS 1156 15TH STREET NW STE 1250 WASHINGTON, DC 20005 202-795-9300 Email: bbrown@rcfp.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica L Goldman SUMMIT LAW GROUP

Amicus The Seattle Times Company

315 5TH AVE S STE 1000 SEATTLE, WA 98104 206-676-7000 Fax: FAX 206-676-7001 Email: jessicag@summitlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip S McCune SUMMIT LAW GROUP 315 5TH AVE S STE 1000 SEATTLE, WA 98104 206-676-7000 Fax: FAX 676-7001 Email: philm@summitlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert M Loeb ORRICK HERRINGTON & SUTCLIFFE (DC) COLUMBIA CENTER 1152 15TH STREET NW WASHINGTON, DC 20005 202-339-8400 Email: rloeb@orrick.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mark Steven Parris ORRICK HERRINGTON & SUTCLIFFE LLP (SEA) 701 FIFTH AVENUE STE 5600 SEATTLE, WA 98104 206-839-4300 Fax: 206-839-4301 Email: mparris@orrick.com ATTORNEY TO BE NOTICED
represented by Aaron W Scherzer (See above for address)

Amicus The Associated Press

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bruce Brown (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica L Goldman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip S McCune (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert M Loeb (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mark Steven Parris (See above for address) ATTORNEY TO BE NOTICED
represented by Bruce Brown (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica L Goldman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
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Amicus Fox News Network, LLC
Amicus National Public Radio, Inc.

represented by Bruce Brown (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica L Goldman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip S McCune (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Aaron W Scherzer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bruce Brown (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica L Goldman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip S McCune (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert M Loeb (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus Washington Post
Amicus Association of Alternative Newsmedia

Mark Steven Parris (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron W Scherzer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bruce Brown (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica L Goldman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip S McCune (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert M Loeb (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mark Steven Parris (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron W Scherzer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bruce Brown (See above for address)

Amicus American Society of News Editors

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica L Goldman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip S McCune (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert M Loeb (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mark Steven Parris (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron W Scherzer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bruce Brown (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica L Goldman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip S McCune (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Association of American Publishers, Inc.
Amicus First Amendment Coalition

Robert M Loeb (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mark Steven Parris (See above for address) ATTORNEY TO BE NOTICED
represented by Bruce Brown (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica L Goldman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip S McCune (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Aaron W Scherzer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bruce Brown (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica L Goldman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus First Look Media Works, Inc.

Philip S McCune (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert M Loeb (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mark Steven Parris (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron W Scherzer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bruce Brown (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica L Goldman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip S McCune (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert M Loeb (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mark Steven Parris

Amicus International Documentary Association
Amicus Investigative Reporting Workshop at American University

(See above for address) ATTORNEY TO BE NOTICED
represented by Aaron W Scherzer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bruce Brown (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica L Goldman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip S McCune (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert M Loeb (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mark Steven Parris (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron W Scherzer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bruce Brown (See above for address) LEAD ATTORNEY

Amicus The McClatchy Company

PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica L Goldman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip S McCune (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert M Loeb (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mark Steven Parris (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron W Scherzer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bruce Brown (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica L Goldman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip S McCune (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus The Media Institute
Amicus National Association of Black Journalists

Robert M Loeb (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mark Steven Parris (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron W Scherzer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bruce Brown (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica L Goldman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip S McCune (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert M Loeb (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mark Steven Parris (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron W Scherzer (See above for address)

Amicus The National Press Club

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bruce Brown (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica L Goldman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip S McCune (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert M Loeb (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mark Steven Parris (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron W Scherzer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bruce Brown (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica L Goldman (See above for address) LEAD ATTORNEY

Amicus
National Press Photographers Association

ATTORNEY TO BE NOTICED
Philip S McCune (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert M Loeb (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mark Steven Parris (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron W Scherzer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bruce Brown (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica L Goldman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip S McCune (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert M Loeb (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus Newspaper Association of America
Amicus Reporters Without Borders

Mark Steven Parris (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron W Scherzer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bruce Brown (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica L Goldman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip S McCune (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert M Loeb (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mark Steven Parris (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron W Scherzer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bruce Brown (See above for address)

Amicus Tully Center for Free Speech

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Amicus Freedom of the Press Foundation
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California Newspaper Publishers Association
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Amicus Online News Association

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Amicus Radio Television Digital News Association
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Amicus
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Amicus Society of Professional Journalists
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Amicus the Center for Democracy and Technology
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Amicus Alaska Airlines, Inc.
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BP America Inc.
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Amicus Eli Lilly and Company Amicus Getty Images (US), Inc.

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Amicus Glaxosmithkline LLC
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Amicus Electronic Frontier Foundation
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Box, Inc.
Amicus Cisco Systems, Inc.
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Amicus Evernote Corporation
Amicus Google Inc.
Amicus LinkedIn Corporation
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Amicus salesforce.com, inc.
Amicus Snapchat, Inc.
Amicus

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Yahoo! Inc. Amicus Amicus Apple Inc., Lithium Technologies, Mozilla and Twilio Inc. TERMINATED: 09/06/2016
Amicus

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Twitter, Inc.
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Amicus Lithium Technologies
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Amicus Twilio Inc.

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Date Filed 04/14/2016
04/14/2016 04/14/2016

# Docket Text
1 COMPLAINT for Declaratory Judgment against defendant(s) Loretta Lynch, United States Department of Justice (Receipt # 0981-4413056), filed by Microsoft Corporation. (Attachments: # 1 Civil Cover Sheet, # 2 Summons (DOJ), # 3 Summons (Loretta Lynch US AG))(Rummage, Stephen) (Entered: 04/14/2016)
2 CORPORATE DISCLOSURE STATEMENT Filed pursuant to Fed.R.Civ.P 7.1. Filed by Microsoft Corporation (Rummage, Stephen) (Entered: 04/14/2016)
Judge James L. Robart added. (ST) (Entered: 04/14/2016)

04/14/2016 04/14/2016
04/15/2016 04/15/2016
04/15/2016 04/15/2016 04/15/2016 04/15/2016

3 Summons electronically issued as to defendant(s) Loretta Lynch, United States Department of Justice. (Attachments: # 1 Summons)(ST) (Entered: 04/14/2016)
NOTICE TO FILER: Upon case opening, the filer is responsible for entering party text exactly as it appears on the complaint. For example, "in her official capacity as Attorney General of the United States" should have been added as party text for Loretta Lynch . If you have questions about party text, please refer to the Attorney's Guide to Opening a Civil Case on the court's website. The docket has now been corrected. Thank you. (ST) (Entered: 04/14/2016)
4 APPLICATION OF ATTORNEY FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiff Microsoft Corporation (Fee Paid) Receipt No. 0981-4414730 (Doran, Ambika) (Entered: 04/15/2016)
5 ORDER re 4 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Laura R. Handman for Microsoft Corporation, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 04/15/2016)
6 APPLICATION OF ATTORNEY Alexander Adelman Berengaut FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiff Microsoft Corporation (Fee Paid) Receipt No. 0981-4414867 (Rummage, Stephen) Added PHV Applicant's Name on 4/15/2016 (DS). (Entered: 04/15/2016)
7 APPLICATION OF ATTORNEY James McMackin Garland FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiff Microsoft Corporation (Fee Paid) Receipt No. 0981-4414880 (Rummage, Stephen) Added PHV Attorney's Name on 4/15/2016 (DS). (Entered: 04/15/2016)
8 APPLICATION OF ATTORNEY Katharine Reams Goodloe FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiff Microsoft Corporation (Fee Paid) Receipt No. 0981-4414892 (Rummage, Stephen) Added PHV Applicant's Name on 4/15/2016 (DS). (Entered: 04/15/2016)
9 ORDER re 6 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Alexander Adelman Berengaut for Microsoft Corporation, by Clerk William M McCool. No document associated with this docket entry, text only.

04/15/2016
04/15/2016
05/17/2016 05/19/2016 05/26/2016 05/26/2016 05/26/2016

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 04/15/2016)
10 ORDER re 7 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney James McMackin Garland for Microsoft Corporation, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 04/15/2016)
11 ORDER re 8 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Katharine Reams Goodloe for Microsoft Corporation, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 04/15/2016)
12 Emergency MOTION to Intervene for Declaratory Judgment Under "Bivens Claim" Violations by Interested Party Stephen P. Wallace. (AD) (Entered: 05/18/2016)
Noting Date Set/Reset re 12 MOTION to Intervene : Noting Date 6/3/2016, (CC) (Entered: 05/19/2016)
13 MOTION to Intervene Attorney Emily Chiang added to party American Civil Liberties Union(pty:intvp), Attorney Emily Chiang added to party American Civil Liberties Union Foundation(pty:intvp)by Intervenor Plaintiffs American Civil Liberties Union, American Civil Liberties Union Foundation. Oral Argument Requested. (Attachments: # 1 Exhibit Proposed Complaint in Intervention) Noting Date 6/24/2016, (Chiang, Emily) (Entered: 05/26/2016)
14 APPLICATION OF ATTORNEY Alex Abdo FOR LEAVE TO APPEAR PRO HAC VICE for Intervenor Plaintiffs American Civil Liberties Union, American Civil Liberties Union Foundation (Fee Paid) Receipt No. 0981-4464713 (Chiang, Emily) (Entered: 05/26/2016)
15 APPLICATION OF ATTORNEY Eliza Sweren-Becker FOR LEAVE TO APPEAR PRO HAC VICE for Intervenor Plaintiffs American Civil

05/26/2016
05/26/2016
05/27/2016 05/31/2016 06/01/2016 06/02/2016 06/03/2016 06/03/2016

Liberties Union, American Civil Liberties Union Foundation (Fee Paid) Receipt No. 0981-4464719 (Chiang, Emily) (Entered: 05/26/2016)
16 ORDER re 14 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Alex Abdo for Intervenor-Plaintiffs American Civil Liberties Union and American Civil Liberties Union Foundation, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(CDA) (Entered: 05/26/2016)
17 ORDER re 15 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Eliza Sweren-Becker for Intervenor-plaintiffs American Civil Liberties Union and American Civil Liberties Union Foundation, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(CDA) (Entered: 05/26/2016)
18 MOTION for Extension of Time From the 6/3/2016 Hearing Set on 5/19/2016 to Secure Competent Counsel Under Pro Se Law by Interested Party Stephen P. Wallace. (AD) (Entered: 05/31/2016)
19 RESPONSE, by Plaintiff Microsoft Corporation, to 12 MOTION to Intervene. (Rummage, Stephen) (Entered: 05/31/2016)
The court GRANTS Stephen P. Wallace's motion for an extension 18 and DIRECTS the Clerk to re-note Mr. Wallace's motion to intervene 12 for June 24, 2016. Mr. Wallace's reply memorandum in support of his motion to intervene is due by June 24, 2016. (docket entry mailed to Stephen P. Wallace) (CC) (Entered: 06/01/2016)
21 OBJECTION to plaintiff's counsel by Interested Party Stephen P. Wallace. (AD) (Entered: 06/03/2016)
20 NOTICE of Appearance by attorney Eric Soskin on behalf of Defendants Loretta Lynch, United States Department of Justice. (Soskin, Eric) (Entered: 06/03/2016)
22 NOTICE of Appearance by attorney Jennie L. Kneedler on behalf of Defendants Loretta Lynch, United States Department of Justice. (Kneedler, Jennie) (Entered: 06/03/2016)

06/06/2016 06/08/2016 06/13/2016 06/14/2016 06/17/2016 06/17/2016 06/20/2016 06/22/2016 06/23/2016
06/23/2016

23 AFFIDAVIT of Mailing of Summons and Complaint to Department of Justice and Loretta Lynch on 4/15/2016, filed by Plaintiff Microsoft Corporation. (Rummage, Stephen) (Entered: 06/06/2016)
24 ORDER REGARDING INITIAL DISCLOSURES AND JOINT STATUS REPORT Joint Status Report due by 7/13/2016, FRCP 26f Conference Deadline is 6/22/2016, Initial Disclosure Deadline is 7/6/2016, by Judge James L. Robart. (CC) (Entered: 06/08/2016)
25 STIPULATION AND PROPOSED ORDER for Amended Complaint and Briefing Schedule on Motion to Dismiss by parties (Rummage, Stephen) (Entered: 06/13/2016)
26 STIPULATION AND ORDER FOR AMENDED COMPLAINT AND BRIEFING SCHEDULE ON MOTION TO DISMISS by Judge James L. Robart. (AD) Modified on 6/14/2016 cc Stephen Wallace (AD). (Entered: 06/14/2016)
27 Stipulated MOTION and Order for Response to Motion to Intervene and Reply Thereto by Defendants Loretta Lynch, United States Department of Justice. Noting Date 6/17/2016, (Kneedler, Jennie) (Entered: 06/17/2016)
28 AMENDED COMPLAINT for Declaratory Judgment against defendant(s) United States Department of Justice, Loretta Lynch, filed by Microsoft Corporation.(Rummage, Stephen) (Entered: 06/17/2016)
29 ORDER by Judge James L. Robart granting 27 Stipulated Motion for Response to Motion to Intervene and Reply Thereto. ACLU's 13 MOTION to Intervene is re-noted to 7/8/2016. (AD) Modified on 6/20/2016 cc Stephen Wallace (AD). (Entered: 06/20/2016)
30 STIPULATION AND PROPOSED ORDER Regarding Rule 26(f) Conference and Joint Status Report by parties (Rummage, Stephen) (Entered: 06/22/2016)
31 STIPULATION AND ORDER REGARDING RULE 26(f) CONFERENCE AND JOINT STATUS REPORT by Judge James L. Robart. The Court VACATES the deadlines set forth in the Order Regarding Initial Disclosures, Joint Status Report, and Early Settlement (Dkt. 24 ). The Court further ORDERS that the parties shall adhere to the revised deadlines set forth in the Order. (AD) Modified on 6/23/2016 cc Stephen P Wallace (AD). (Entered: 06/23/2016)
32 Supplemental/Amended MEMORANDUM in Support of 12 Emergency Motion to Intervene filed by Interested Party Stephen P. Wallace (Attachments: # 1 Attachments) (AD) (Entered: 06/23/2016)

06/29/2016
06/29/2016
06/29/2016 06/29/2016 07/08/2016
07/22/2016 08/10/2016 08/15/2016 08/18/2016 08/23/2016

33 RESPONSE, by Defendants Loretta Lynch, United States Department of Justice, to 13 MOTION to Intervene Attorney Emily Chiang added to party American Civil Liberties Union(pty:intvp), Attorney Emily Chiang added to party American Civil Liberties Union Foundation(pty:intvp). (Soskin, Eric) (Entered: 06/29/2016)
34 RESPONSE, by Plaintiff Microsoft Corporation, to 13 MOTION to Intervene Attorney Emily Chiang added to party American Civil Liberties Union(pty:intvp), Attorney Emily Chiang added to party American Civil Liberties Union Foundation(pty:intvp). (Rummage, Stephen) (Entered: 06/29/2016)
35 CERTIFICATE OF SERVICE by Defendants Loretta Lynch, United States Department of Justice re 33 Response to Motion, (Soskin, Eric) (Entered: 06/29/2016)
36 NOTICE of Spoliation of Evidence in Victim's Supplemental Memorandum filed by Interested Party Stephen P. Wallace. (AD) (Entered: 06/30/2016)
37 REPLY, filed by Intervenor Plaintiffs American Civil Liberties Union, American Civil Liberties Union Foundation, TO RESPONSE to 13 MOTION to Intervene Attorney Emily Chiang added to party American Civil Liberties Union(pty:intvp), Attorney Emily Chiang added to party American Civil Liberties Union Foundation(pty:intvp) (Abdo, Alex) (Entered: 07/08/2016)
38 MOTION to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) by Defendants Loretta Lynch, United States Department of Justice. Oral Argument Requested. Noting Date 9/23/2016, (Soskin, Eric) (Entered: 07/22/2016)
39 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Eliza SwerenBecker for Intervenor Plaintiffs American Civil Liberties Union, American Civil Liberties Union Foundation. (Sweren-Becker, Eliza) (Entered: 08/10/2016)
40 The court hereby orders that the page limit for all motions or briefs filed by amici in this matter shall be half that of the page limits for the corresponding motion or brief filed by a party. See Local Rules W.D. Wash. LCR 7(e). (CC) (Entered: 08/15/2016)
41 STIPULATION AND PROPOSED ORDER Regarding Amicus Curiae Briefing by parties (Rummage, Stephen) (Entered: 08/18/2016)
42 ORDER by Judge James L. Robart denying 41 Stipulation and Proposed Order Regarding Amicus Curiae Briefing. Any party seeking to file an amicus curiae brief related to Defendants' pending motion to dismiss should seek leave of the court to do so no later than 9/2/2016, pursuant

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to the court's 6/14/2016, order. (AD) Modified on 8/23/2016 cc Stephen Wallace (AD). (Entered: 08/23/2016)
43 RESPONSE, by Intervenor Plaintiffs American Civil Liberties Union, American Civil Liberties Union Foundation, to 38 MOTION to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Oral Argument Requested. (Abdo, Alex) (Entered: 08/26/2016)
44 RESPONSE, by Plaintiff Microsoft Corporation, to 38 MOTION to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Oral Argument Requested. (Rummage, Stephen) (Entered: 08/26/2016)
45 DECLARATION of Ambika K. Doran in Opp to Government's Motion to Dismiss filed by Plaintiff Microsoft Corporation re 38 MOTION to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) (Rummage, Stephen) (Entered: 08/26/2016)
47 NOTICE re filing criminal charges against additional predicate/predator actors filed by Non-Party Stephen P. Wallace. (Note: received by Case Admins for docketing on 8/31/2016) (AD) (Entered: 09/01/2016)
46 ORDER ON MOTIONS TO INTERVENE by Judge James L. Robart. The court DENIES the motions to intervene (Dkt. ## 12 , 13 ) and GRANTS the ACLU amicus curiae status (Dkt. # 43 ). (AD) cc: Stephen Wallace (Entered: 08/29/2016)
At the direction of Judge James L. Robart, Stephen P. Wallace's additional filing (Dkt. # 47 ) is stricken from the docket as unrelated to the matters at issue in Microsoft Corporation v. United States Department of Justice, et al., No. C16-0538JLR. (AD) cc: Stephen Wallace (Entered: 09/02/2016)
48 Stipulated MOTION for Leave to File Amicus Brief of Former Law Enforcement Officials in Support of Microsoft's Opposition to Motion to Dismiss by Amicus Former Law Enforcement Officials. (Attachments: # 1 LEO Amicus Brief, # 2 Proposed Order) Noting Date 9/2/2016, (Bennard, Kristina) (Entered: 09/02/2016)
49 Unopposed MOTION for Leave to File Brief in Support of Plaintiff's Opposition to Defendants' Motion to Dismiss by Amicus Law Professors. (Attachments: # 1 Exhibit Ex. A - Proposed Brief, # 2 Exhibit Ex. B - Proposed Order, # 3 Exhibit Ex. C - Appendix Difficult to Find Authorities) Noting Date 9/2/2016, (Freeburg, David) (Entered: 09/02/2016)
50 APPLICATION OF ATTORNEY Gabriel K. Gillett FOR LEAVE TO APPEAR PRO HAC VICE for Amicus Law Professors (Fee Paid) Receipt No. 0981-4588093 (Freeburg, David) (Entered: 09/02/2016)

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51 APPLICATION OF ATTORNEY Johnathan Manes FOR LEAVE TO APPEAR PRO HAC VICE for Amicus Law Professors (Fee Paid) Receipt No. 0981-4588139 (Freeburg, David) (Entered: 09/02/2016)
52 APPLICATION OF ATTORNEY Alexander H. Southwell FOR LEAVE TO APPEAR PRO HAC VICE for Amicus Law Professors (Fee Paid) Receipt No. 0981-4588157 (Freeburg, David) (Entered: 09/02/2016)
53 ORDER re 50 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Gabriel Gillett for Amicus Law Professors, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 09/02/2016)
54 ORDER re 51 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Johnathan Manes for Amicus Law Professors, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 09/02/2016)
55 ORDER re 52 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Alexander H. Southwell for Amicus Law Professors, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 09/02/2016)
56 MOTION for Leave to File Brief by Amicus Parties Reporters Committee for Freedom of the Press, The Seattle Times Company, The Associated Press, Fox News Network, LLC, National Public Radio, Inc., Washington Post, Association of Alternative Newsmedia, American Society of News Editors, Association of American Publishers, Inc., First Amendment Coalition, First Look Media Works, Inc., International Documentary Association, Investigative Reporting Workshop at American University, The McClatchy Company, The Media Institute,

09/02/2016 09/02/2016 09/02/2016 09/02/2016

National Association of Black Journalists, The National Press Club, National Press Photographers Association, Newspaper Association of America, Reporters Without Borders, Tully Center for Free Speech, Freedom of the Press Foundation, California Newspaper Publishers Association, The Center for Investigative Reporting, Online News Association, Radio Television Digital News Association, The E.W. Scripps Company, Investigative Reporters and Editors, MPA- The Association of Magazine Media, Society of Professional Journalists. (Attachments: # 1 Exhibit Brief of Amici Curiae, # 2 Proposed Order) Noting Date 9/2/2016, (Parris, Mark) (Entered: 09/02/2016)
57 Unopposed MOTION for Leave to File Amici Curiae Brief by Amicus Parties the Chamber of Commerce of the United States of America, the Center for Democracy and Technology, the National Association of Manufacturers, Alaska Airlines, Inc., Archive360, Inc., AvePoint, BP America Inc., Delta Airlines, Inc., Eli Lilly and Company, Getty Images (US), Inc., Glaxosmithkline LLC, H5, the Information Coalition, Onsupport, Wipfli LLC. (Attachments: # 1 Exhibit Proposed Amicus Brief, # 2 Proposed Order) Noting Date 9/2/2016, (McBride, Ryan) (Entered: 09/02/2016)
58 MOTION for Leave to File BRIEF OF AMICI CURIAE IN SUPPORT OF PLAINTIFFS OPPOSITION TO GOVERNMENTS MOTION TO DISMISS by Amicus Parties Electronic Frontier Foundation, Access Now, New America's Open Technology Institute, Jennifer Granick. (Attachments: # 1 Proposed Order, # 2 Brief) Noting Date 9/23/2016, (Balasubramani, Venkat) (Entered: 09/02/2016)
59 APPLICATION OF ATTORNEY Andrew J. Pincus FOR LEAVE TO APPEAR PRO HAC VICE for Amicus Parties American Civil Liberties Union Foundation, Archive360, Inc., AvePoint, BP America Inc., Delta Airlines, Inc., Getty Images (US), Inc., Glaxosmithkline LLC, H5, Onsupport, Wipfli LLC, the Center for Democracy and Technology, the Chamber of Commerce of the United States of America, the Information Coalition, the National Association of Manufacturers (Fee Paid) Receipt No. 0981-4588560 (McBride, Ryan) (Entered: 09/02/2016)
60 APPLICATION OF ATTORNEY Travis Crum FOR LEAVE TO APPEAR PRO HAC VICE for Amicus Parties Alaska Airlines, Inc., Archive360, Inc., AvePoint, BP America Inc., Delta Airlines, Inc., Getty Images (US), Inc., Glaxosmithkline LLC, H5, Onsupport, Wipfli LLC, the Center for Democracy and Technology, the Chamber of Commerce of the United States of America, the Information Coalition, the National Association of Manufacturers (Fee Paid) Receipt No. 0981-4588616 (McBride, Ryan) (Entered: 09/02/2016)

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61 MOTION for Leave To Participate as Amici Curiae by Amicus Parties Amazon.com, Inc., Box, Inc., Cisco Systems, Inc., Dropbox, Inc., Evernote Corporation, Google Inc., LinkedIn Corporation, Pinterest, Inc., salesforce.com, inc., Snapchat, Inc., Yahoo! Inc.. (Attachments: # 1 Proposed Brief, # 2 Proposed Order) Noting Date 9/2/2016, (Katyal, Neal) (Entered: 09/02/2016)
62 NOTICE of Appearance by attorney Neal Kumar Katyal on behalf of Amicus Parties Amazon.com, Inc., Box, Inc., Cisco Systems, Inc., Dropbox, Inc., Evernote Corporation, Google Inc., LinkedIn Corporation, Pinterest, Inc., Snapchat, Inc., Yahoo! Inc., salesforce.com, inc.. (Katyal, Neal) (Entered: 09/02/2016)
63 APPLICATION OF ATTORNEY Jacob Sommer FOR LEAVE TO APPEAR PRO HAC VICE for Amicus Amicus Apple Inc., Lithium Technologies, Mozilla and Twilio Inc. (Fee Paid) Receipt No. 09814588806 (Yanick, Miles) (Entered: 09/02/2016)
64 APPLICATION OF ATTORNEY Marc Zwillinger FOR LEAVE TO APPEAR PRO HAC VICE for Amicus Amicus Apple Inc., Lithium Technologies, Mozilla and Twilio Inc. (Fee Paid) Receipt No. 09814588824 (Yanick, Miles) (Entered: 09/02/2016)
65 APPLICATION OF ATTORNEY Nury Siekkinen FOR LEAVE TO APPEAR PRO HAC VICE for Amicus Amicus Apple Inc., Lithium Technologies, Mozilla and Twilio Inc. (Fee Paid) Receipt No. 09814588831 (Yanick, Miles) (Entered: 09/02/2016)
66 MOTION for Leave to File Brief as Amici Curiae by Amicus Apple Inc., Lithium Technologies, Mozilla and Twilio Inc.. (Attachments: # 1 Exhibit A, # 2 Proposed Order) Noting Date 9/2/2016, (Yanick, Miles) (Entered: 09/02/2016)
67 CORPORATE DISCLOSURE STATEMENT Filed pursuant to Fed.R.Civ.P 7.1. Filed by Amicus Apple Inc., Lithium Technologies, Mozilla and Twilio Inc. (Yanick, Miles) (Entered: 09/02/2016)
68 CORPORATE DISCLOSURE STATEMENT Filed pursuant to Fed.R.Civ.P 7.1. Filed by Amicus Apple Inc., Lithium Technologies, Mozilla and Twilio Inc. (Yanick, Miles) (Entered: 09/02/2016)
69 CORPORATE DISCLOSURE STATEMENT Filed pursuant to Fed.R.Civ.P 7.1. Filed by Amicus Apple Inc., Lithium Technologies, Mozilla and Twilio Inc. (Yanick, Miles) (Entered: 09/02/2016)
70 CORPORATE DISCLOSURE STATEMENT Filed pursuant to Fed.R.Civ.P 7.1. Filed by Amicus Apple Inc., Lithium Technologies, Mozilla and Twilio Inc. (Yanick, Miles) (Entered: 09/02/2016)

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71 Stipulated MOTION for Leave to File Brief Amicus Curiae in Support of Microsoft Corporation's Opposition to Defendant's Motion to Dismiss by Amicus Twitter, Inc.. (Attachments: # 1 Exhibit Brief of Amicus Curiae, # 2 Proposed Order) Noting Date 9/2/2016, (Berlin, Hayley) (Entered: 09/02/2016)
72 NOTICE of Appearance by attorney Hayley Berlin on behalf of Amicus Twitter, Inc.. (Berlin, Hayley) (Entered: 09/02/2016)
73 APPLICATION OF ATTORNEY Michael A. Sussmann FOR LEAVE TO APPEAR PRO HAC VICE for Amicus Twitter, Inc. (Fee Paid) Receipt No. 0981-4588871 (Berlin, Hayley) (Entered: 09/02/2016)
74 APPLICATION OF ATTORNEY Orin S. Kerr FOR LEAVE TO APPEAR PRO HAC VICE for Amicus Twitter, Inc. (Fee Paid) Receipt No. 0981-4588874 (Berlin, Hayley) (Entered: 09/02/2016)
75 CORPORATE DISCLOSURE STATEMENT Filed pursuant to Fed.R.Civ.P 7.1. Filed by Twitter, Inc. (Berlin, Hayley) (Entered: 09/02/2016)
76 NOTICE of Appearance by attorney Miles Aaron Yanick on behalf of Amicus Amicus Apple Inc., Lithium Technologies, Mozilla and Twilio Inc.. (Yanick, Miles) (Entered: 09/02/2016)
77 ORDER re 63 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Jacob Sommer for Amicus Apple Inc., Lithium Technologies, Mozilla and Twilio Inc., by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 09/06/2016)
78 ORDER re 64 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Marc Zwillinger for Amicus Apple Inc., Lithium Technologies, Mozilla and Twilio Inc., by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 09/06/2016)
79 ORDER re 65 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Nury Siekkinen for Amicus Apple Inc., Lithium

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Technologies, Mozilla and Twilio Inc., by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 09/06/2016)
80 ORDER re 73 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Michael Sussmann for Twitter, Inc., by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 09/06/2016)
81 ORDER re 74 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Orin S. Kerr for Twitter, Inc., by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 09/06/2016)
Attorney Ryan P McBride added for Amici Curiae Alaska Airlines, Inc., Archive360, Inc., AvePoint, BP America Inc., Delta Airlines, Inc., Eli Lilly and Company, Getty Images (US), Inc., Glaxosmithkline LLC, H5, Onsupport, Wipfli LLC, the Center for Democracy and Technology, the Chamber of Commerce of the United States of America, the Information Coalition, and the National Association of Manufacturers per 57 Unopposed MOTION for Leave to File Amici Curiae Brief. (AD) (Entered: 09/06/2016)
Attorney Venkat Balasubramani added for Amici Curiae Access Now, Electronic Frontier Foundation, Jennifer Granick, New America's Open Technology Institute per 58MOTION for Leave to File BRIEF OF AMICI CURIAE IN SUPPORT OF PLAINTIFFS OPPOSITION TO GOVERNMENTS MOTION TO DISMISS. (AD) (Entered: 09/06/2016)
Amici Curiae Apple, Inc., Lithium Technologies, Mozilla, and Twilio Inc. added as separate parties. Amicus Curiae "Amicus Apple Inc., Lithium Technologies, Mozilla and Twilio Inc." terminated. Counsel incorrectly added parties as a single party, rather than separate parties. (AD) (Entered: 09/06/2016)

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82 APPLICATION OF ATTORNEY Aaron W. Scherzer FOR LEAVE TO APPEAR PRO HAC VICE for Amicus Parties American Society of News Editors, Association of Alternative Newsmedia, California Newspaper Publishers Association, First Amendment Coalition, First Look Media Works, Inc., Freedom of the Press Foundation, International Documentary Association, Investigative Reporters and Editors, Investigative Reporting Workshop at American University, MPA- The Association of Magazine Media, National Association of Black Journalists, National Press Photographers Association, National Public Radio, Inc., Newspaper Association of America, Online News Association, Radio Television Digital News Association, Reporters Committee for Freedom of the Press, Reporters Without Borders, Society of Professional Journalists, The Center for Investigative Reporting, The E.W. Scripps Company, The McClatchy Company, The Media Institute, The National Press Club, The Seattle Times Company, Tully Center for Free Speech, Washington Post (Fee Paid) Receipt No. 0981-4590084 (Parris, Mark) (Entered: 09/06/2016)
83 APPLICATION OF ATTORNEY Robert M. Loeb FOR LEAVE TO APPEAR PRO HAC VICE for Amicus Parties American Society of News Editors, Association of Alternative Newsmedia, California Newspaper Publishers Association, First Amendment Coalition, First Look Media Works, Inc., Freedom of the Press Foundation, International Documentary Association, Investigative Reporters and Editors, Investigative Reporting Workshop at American University, MPA- The Association of Magazine Media, National Association of Black Journalists, National Press Photographers Association, National Public Radio, Inc., Newspaper Association of America, Online News Association, Radio Television Digital News Association, Reporters Committee for Freedom of the Press, Reporters Without Borders, Society of Professional Journalists, The Center for Investigative Reporting, The E.W. Scripps Company, The McClatchy Company, The Media Institute, The National Press Club, The Seattle Times Company, Tully Center for Free Speech, Washington Post (Fee Paid) Receipt No. 0981-4590110 (Parris, Mark) (Entered: 09/06/2016)
84 ORDER re 59 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Andrew J. Pincus for Amicus Parties American Civil Liberties Union Foundation, Archive360, Inc., AvePoint, BP America Inc., Delta Airlines, Inc., Getty Images (US), Inc., Glaxosmithkline LLC, H5, Onsupport, Wipfli LLC, the Center for Democracy and Technology, the Chamber of Commerce of the United States of America, the Information Coalition, the National Association of Manufacturers by Clerk William M McCool. No document associated with this docket entry, text only.

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NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 09/06/2016)
85 ORDER re 60 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Travis Crum Amicus Parties Alaska Airlines, Inc., Archive360, Inc., AvePoint, BP America Inc., Delta Airlines, Inc., Getty Images (US), Inc., Glaxosmithkline LLC, H5, Onsupport, Wipfli LLC, the Center for Democracy and Technology, the Chamber of Commerce of the United States of America, the Information Coalition, the National Association of Manufacturers by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 09/06/2016)
86 APPLICATION OF ATTORNEY Bruce Brown FOR LEAVE TO APPEAR PRO HAC VICE for Amicus Parties American Society of News Editors, Association of Alternative Newsmedia, Association of American Publishers, Inc., California Newspaper Publishers Association, First Amendment Coalition, First Look Media Works, Inc., Fox News Network, LLC, Freedom of the Press Foundation, International Documentary Association, Investigative Reporters and Editors, Investigative Reporting Workshop at American University, MPA- The Association of Magazine Media, National Association of Black Journalists, National Press Photographers Association, National Public Radio, Inc., Newspaper Association of America, Online News Association, Radio Television Digital News Association, Reporters Committee for Freedom of the Press, Reporters Without Borders, Society of Professional Journalists, The Associated Press, The Center for Investigative Reporting, The E.W. Scripps Company, The McClatchy Company, The Media Institute, The National Press Club, The Seattle Times Company, Tully Center for Free Speech, Washington Post (Fee Paid) Receipt No. 0981-4590167 (McCune, Philip) (Entered: 09/06/2016)
87 ORDER re 82 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Aaron W Scherzer Amicus Parties American Society of News Editors, Association of Alternative Newsmedia, California Newspaper Publishers Association, First Amendment Coalition, First Look Media Works, Inc., Freedom of the Press Foundation, International Documentary Association, Investigative Reporters and Editors, Investigative Reporting Workshop at American University, MPA- The

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Association of Magazine Media, National Association of Black Journalists, National Press Photographers Association, National Public Radio, Inc., Newspaper Association of America, Online News Association, Radio Television Digital News Association, Reporters Committee for Freedom of the Press, Reporters Without Borders, Society of Professional Journalists, The Center for Investigative Reporting, The E.W. Scripps Company, The McClatchy Company, The Media Institute, The National Press Club, The Seattle Times Company, Tully Center for Free Speech, Washington Post by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 09/06/2016)
88 ORDER re 83 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Robert M Loeb for Amicus Parties American Society of News Editors, Association of Alternative Newsmedia, California Newspaper Publishers Association, First Amendment Coalition, First Look Media Works, Inc., Freedom of the Press Foundation, International Documentary Association, Investigative Reporters and Editors, Investigative Reporting Workshop at American University, MPA- The Association of Magazine Media, National Association of Black Journalists, National Press Photographers Association, National Public Radio, Inc., Newspaper Association of America, Online News Association, Radio Television Digital News Association, Reporters Committee for Freedom of the Press, Reporters Without Borders, Society of Professional Journalists, The Center for Investigative Reporting, The E.W. Scripps Company, The McClatchy Company, The Media Institute, The National Press Club, The Seattle Times Company, Tully Center for Free Speech, Washington Post by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 09/06/2016)
89 ORDER re 86 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Bruce Brown Amicus Parties American Society of News Editors, Association of Alternative Newsmedia, Association of American Publishers, Inc., California Newspaper Publishers Association, First Amendment Coalition, First Look Media Works, Inc., Fox News Network, LLC, Freedom of the Press Foundation, International Documentary Association, Investigative Reporters and

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Editors, Investigative Reporting Workshop at American University, MPA- The Association of Magazine Media, National Association of Black Journalists, National Press Photographers Association, National Public Radio, Inc., Newspaper Association of America, Online News Association, Radio Television Digital News Association, Reporters Committee for Freedom of the Press, Reporters Without Borders, Society of Professional Journalists, The Associated Press, The Center for Investigative Reporting, The E.W. Scripps Company, The McClatchy Company, The Media Institute, The National Press Club, The Seattle Times Company, Tully Center for Free Speech, Washington Post by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 09/06/2016)
90 ORDER GRANTING MOTIONS TO FILE AMICUS CURIAE BRIEFING by Judge James L. Robart. The court GRANTS the motions to file the proposed briefs as amici curiae (Dkt. ## 48 , 49 , 56 , 57 , 58 , 61 , 66 , 71 ) and GRANTS Movants amici curiae status. The court further DIRECTS the Clerk to accept for filing the amici curiaebriefs as of the date of this order (Dkt. ## 48 , 49 , 56 , 57 , 58 , 61 , 66 , 71 ). (AD) (Entered: 09/07/2016)
91 EMERGENCY MOTIONS to vacate 8/29/16 Order 46 ; to bifurcate and for recusal by Interested Party Stephen P. Wallace. Noting Date 9/15/2016, (RS) (Additional attachment(s) added on 9/15/2016: # 1 Exhibit) (RS). (Entered: 09/15/2016)
92 REPLY, filed by Defendants Loretta Lynch, United States Department of Justice, TO RESPONSE to 38 MOTION to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) (Attachments: # 1 Exhibit)(Soskin, Eric) (Entered: 09/23/2016)
93 JOINT STATUS REPORT signed by all parties (Rummage, Stephen) (Entered: 09/26/2016)
94 EMERGENCY MOTION for Chief Judge Martinez to compel Judge Robart to rule on the Emergency Motions to Vacate, Bifurcate & Recusal, Sua Sponte by Interested Party Stephen P. Wallace. Noting Date 9/29/2016. (PM) (Entered: 09/30/2016)
95 ORDER by Judge James L. Robart denying non-party Stephen P. Wallace's 91 Emergency Motion to vacate the court's 8/29/2016 order, to bifurcate, and for recusal; denying Mr. Wallace's 94 Motion for Chief Judge Martinez to compel the undersigned judge to rule on Mr.

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Wallace's first emergency motion. The "emergency motions" 91 94 are referred to Chief Judge Martinez for further review of the recusal issue. (PM) cc: Stephen Wallace via the U.S. Mail (Entered: 10/12/2016)
96 ORDER affirming Judge Robart's decision to deny Mr Wallace's 91 Motion to recuse Judge Robart ; striking Mr Wallace's 94 Motion as moot by Chief Judge Ricardo S Martinez.(RS) cc Wallace (Entered: 10/14/2016)
97 NOTICE of Appearance by attorney Helen J Brunner on behalf of Defendants Loretta Lynch, United States Department of Justice. (Brunner, Helen) (Entered: 10/19/2016)
98 NOTICE of Appearance by attorney Kerry Jane Keefe on behalf of Defendants Loretta Lynch, United States Department of Justice. (Keefe, Kerry) (Entered: 10/19/2016)
99 MINUTE ORDER SETTING TRIAL DATE AND RELATED DATES, AND DESIGNATING CASE FOR MEDIATION; Length of Trial: *5 days*. Bench Trial is set for 12/11/2017 at 01:30 PM in Courtroom 14106 before Judge James L. Robart. Joinder of Parties due by 11/23/2016, Amended Pleadings due by 6/14/2017, Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 6/14/2017, Motions due by 7/14/2017, Discovery completed by 8/14/2017, Dispositive motions due by 9/12/2017, Attorney settlement conference to be held by 10/12/2017, Motions in Limine due by 10/30/2017, Pretrial Order due by 11/20/2017, Deposition Designations due by 11/22/2017, Pretrial Conference set for 11/27/2017 at 02:00 PM before Judge James L. Robart. Trial briefs to be submitted by 12/4/2017, Proposed Findings of Fact and Conclusions of Law to be submitted by 12/4/2017, by Judge James L. Robart. (CC) (Entered: 10/26/2016)
100 LETTER from non-party Clark D. Cunningham re copy of article. (Attachments: # 1 Article) (AD) (Entered: 11/09/2016)
101 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Kristina Silja Bennard for Amicus Former Law Enforcement Officials. (Bennard, Kristina) (Entered: 11/10/2016)
102 NOTICE of Appearance by attorney Jeremy E Roller on behalf of Amicus Former Law Enforcement Officials. (Roller, Jeremy) (Entered: 11/10/2016)
Set/Reset Hearings: Oral argument on the Motion to Dismiss, Dkt. #38, is scheduled Monday, January 23, 2017 at 1:30 p.m. before Judge James L. Robart. (CC) (Entered: 11/16/2016)

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Set/Reset Hearings: Oral argument on the Motion to Dismiss, Dkt. # 38 , set for Monday, January 23, 2017 at 1:30 p.m. is RESCHEDULED to 10:00 a.m. before Judge James L. Robart. (AD) (Entered: 01/10/2017)
103 MINUTE ORDER REGARDING HEARING ON JANUARY 23, 2017 directing parties to be prepared to discuss the issue addressed in this order. The parties may, but are not required to, file a supplemental brief prior to oral argument on Monday, January 23, 2017. Authorized by Judge James L. Robart. (PM) (Entered: 01/19/2017)
104 SURREPLY filed by Plaintiff Microsoft Corporation re 38 MOTION to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) and in Response to Court's Minute Order 103 (Rummage, Stephen) (Entered: 01/22/2017)
105 MINUTE ENTRY for proceedings held before Judge James L. Robart Dep Clerk: Ashleigh Drecktrah; Pla Counsel: Stephen Rummage, Ambika Doran, James Garland, Alexander Berengaut; Def Counsel: Eric Soskin, Jennie Kneedler, Helen Bruner; CR: Nancy Bauer; In Court Hearing held on 1/23/2017. The court hears argument from counsel re: defendant's Motion to Dismiss (dkt. # 38 ). The matter is taken under consideration. Written order to follow. (AD) (Entered: 01/24/2017)
106 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion Hearing held on 1/23/2017 before Judge James L. Robart.

Parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.

To purchase a copy of the transcript, contact court reporter Nancy Bauer, nancy_bauer@wawd.uscourts.gov, 206-370-8506.

02/08/2017

Release of Transcript Restriction set for 5/1/2017, (NB) (Entered: 01/31/2017)
107 ORDER granting in part and denying in part 38 Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) by Defendants Loretta

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Lynch, United States Department of Justice; by Judge James L. Robart.(RM) (Entered: 02/09/2017)
108 ANSWER to 28 Amended Complaint by Loretta Lynch, United States Department of Justice.(Kneedler, Jennie) (Entered: 02/23/2017)
109 STIPULATION AND PROPOSED ORDER TO MODIFY SCHEDULE by parties (Doran, Ambika) (Entered: 03/14/2017)
Set/Reset Hearings: Telephone Conference set for Tuesday, March 21, 2017 at 11:00 a.m. before Judge James L. Robart. (AD) (Entered: 03/17/2017)
110 MINUTE ENTRY for proceedings held before Judge James L. Robart Dep Clerk: Ashleigh Drecktrah; Pla Counsel: Stephen Rummage; Def Counsel: Eric Soskin; CR:Debbie Zurn; Telephone Conference held on 3/21/2017. The court hears from counsel re: the parties' Stipulation and Proposed Order to Modify Schedule (Dkt. # 109 ). For the reasons stated on the record, the court grants the stipulation. A new scheduling order will be issued. (AD) (Entered: 03/21/2017)
111 MINUTE ORDER SETTING TRIAL DATE AND RELATED DATES, AND DESIGNATING CASE FOR MEDIATION by Judge James L. Robart.; Length of Trial: *5 days*. Bench Trial is set for 6/4/2018 at 01:30 PM in Courtroom 14106 before Judge James L. Robart. Joinder of Parties due by 4/18/2017, Amended Pleadings due by 10/17/2017, Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 10/17/2017, Motions due by 11/17/2017, Discovery completed by 12/18/2017, Dispositive motions due by 1/18/2018, Attorney settlement conference to be held by 4/5/2018, Motions in Limine due by 4/23/2018, Pretrial Order due by 5/14/2018, Deposition Designations due by 5/16/2018, Pretrial Conference set for 5/21/2018 at 02:30 PM before Judge James L. Robart. Trial briefs to be submitted by 5/29/2018, Proposed Findings of Fact and Conclusions of Law to be submitted by 5/29/2018. (AD) (Entered: 03/21/2017)
112 STIPULATION RE PROTECTIVE ORDER by parties (Attachments: # 1 Exhibit Redline Protective Order)(Doran, Ambika) (Entered: 06/22/2017)
113 STIPULATED PROTECTIVE ORDER by Judge James L. Robart. (PM) (Entered: 06/23/2017)
114 Joint LETTER from parties re: discovery conference. (AD) (Entered: 09/21/2017)
115 MINUTE ENTRY for proceedings held before Judge James L. Robart Dep Clerk: Ashleigh Drecktrah; Pla Counsel: Stephen Rummage; Def Counsel: Helen Brunner, Jennie Kneedler; CR: Nancy

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Bauer; Telephone Conference held on 9/21/2017. The court hears from counsel: re the parties' joint letter re: discovery deadlines (Dkt. # 114 ). The court grants the parties' request to adjust deadlines as stated in the letter. Disclosure of expert testimony under FRCP 26(a)(2) now due November 9, 2017; Discovery Motions now due December 12, 2017; Discovery cutoff date moved to January 11, 2018; Dispositive motions and motions challenging expert testimony now due February 12, 2018. All other dates will remain as previously scheduled. The court also advises the parties that it will not be able to further alter any pretrial deadlines without a continuance of the trial date to the end of the court's trial calendar. (AD) (Entered: 09/21/2017)
116 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Gabriel Gillett for Amicus Law Professors. (Williams, Todd) (Entered: 10/17/2017)
117 Unopposed MOTION to Dismiss , filed by Plaintiff Microsoft Corporation. (Attachments: # 1 Proposed Order) Noting Date 10/24/2017, (Rummage, Stephen) (Entered: 10/24/2017)
118 NOTICE of Non-Opposition ; filed by Defendant United States Department of Justice. (Soskin, Eric) (Entered: 10/24/2017)
119 ORDER granting Plaintiff's unopposed 117 Motion to Dismiss and dismissing case without prejudice or costs to any party. Signed by Judge James L. Robart. (PM) (Entered: 10/25/2017)