Apr 022014
 April 2, 2014  Posted by  Court, Featured News, Online, Surveillance, U.S.

Eugene Volokh writes:

Grand jury subpoenas — as well as some other subpoenas — are sometimes accompanied with gag orders, barring the recipient (the person or entity who must turn over documents) from revealing the existence of the subpoena. Some courts, though, are scrutinizing such speech restrictions, and especially the procedures used for imposing such restrictions. This decision yesterday by federal magistrate judge decision in In re Application of the United States of America for Nondisclosure Order Pursuant to 18 U.S.C. § 2705(b) for Grand Jury Subpoena #GJ2014032122836 (D.D.C. Mar. 31, 2014) offers a good example:

Read more on WaPo Volokh Conspiracy.

Update: Mark Eckenweiler informed me on Twitter that the subpoena has been withdrawn. In the two previous cases where the government is appealing, Joe Zillman reports that the federal district judge to whom the government is appealing the magistrate judge’s ruling forbade Twitter and Yahoo from announcing whether they planned to intervene in the government’s appeal.

witter Inc. and Yahoo! Inc. won’t get a chance to respond to efforts by the U.S. Department of Justice to bar the companies from sharing information about grand jury subpoenas, at least for now.

The Justice Department is appealing a federal magistrate judge’s orders that gave Twitter and Yahoo the opportunity to respond to the government’s application to restrict disclosure about grand jury subpoenas. The government is also challenging the judge’s order requiring prosecutors file a public copy of its nondisclosure applications.

Twitter and Yahoo were supposed to file notices today in the U.S. District Court for the District of Columbia on whether they wanted to intervene on the government’s nondisclosure requests. Late Thursday, however, a federal district judge indicated the Justice Department was appealing the magistrate judge’s decisions.

Chief Judge Richard Roberts of the Washington federal trial court in an order prohibited Twitter and Yahoo from announcing whether either company planned to intervene.

The nature of the grand jury investigations are secret, and it’s unknown if the subpoenas concern the same case. U.S. District Magistrate Judge John Facciola issued identical orders on March 21 giving Twitter and Yahoo until March 28 to tell the court if they wanted to respond to the government’s request for a gag order on the subpoenas.

Several days later, Facciola also ordered the government to file a public copy of its nondisclosure applications in both cases, with certain redactions to keep any information about the grand jury proceedings secret.

“[T]he Court believes that, given the right of public access to court documents, as much material as possible should be made public,” the judge wrote in his March 24 orders.

On March 27, Roberts issued identical public orders in the Twitter and Yahoo matters indicating the government was appealing both of Facciola’s decisions in each of their cases. Roberts told Twitter and Yahoo not to file anything on the public record as long as the appeals were pending.

Representatives for both companies were not immediately available for comment on Friday. Twitter and Yahoo have a policy of telling users about requests for information about their accounts unless barred by law or a court order.

Federal magistrate judges typically handle matters concerning subpoenas, search warrants and discovery. Their decisions can be appealed to a federal district judge.

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