18 Jul 15 Rejected Grand Jury Subpoenas! An Unprecedented Disruption to the Status Quo
Never before has a judge rejected a grand jury subpoena for using non-specific, boilerplate language. Until now!
In a landmark decision, Judge James Orenstein—United States Magistrate Judge for the Eastern District of New York—rejected 15 grand jury subpoenas due to lack of specificity. In this case, the multiple subpoenas called for information from social media platforms; two were directed at Facebook.
Nonspecific language—a ubiquitous characteristic—is purposeful and consistent with the way things have always been done for the last century.
However, this modus operandi may be changing. Essentially, Judge Orenstein told the US Attorney’s office, if you want the subpoenas signed, go back and indicate why it is necessary to keep the subpoena(s) a secret.
An appeal is expected, but for now, countless jaws are still touching the floor!
“How Things Have Always Been Done”
When there is reason to believe that a suspect is using technology for wrongdoing, the US Attorney’s office will obtain a subpoena that requests:
- Every message, picture, interaction, etc. that exists on that individual or entity; and
- Secrecy (the tech provider or social media platform must not alert the individual or entity that is being investigated).
The request for secrecy is consistent across the board regardless of the provider’s internal policies. For example, although Facebook’s policy is to shut down the account of anyone using the site for illegal purposes, the government demands that Facebook allows the continuation of illegal activity so as not to jeopardize the investigation.
This appeal for silence is reinforced by federal legislation: the Stored Communications Act (SCA).
The Stored Communication Act
The Stored Communications Act (18 USC 2701) authorizes a court, under certain conditions, to prohibit the provider of electronic communications and remote computing services—i.e., service providers—from notifying others to the existence of various types of government-issued orders compelling the disclosure of records.
In other words, the SCA highlights a variety of reasons why disclosure would jeopardize an investigation, including the following types of scenarios:
- Endangering the life or physical safety of a person;
- Evading prosecution;
- Destroying or tampering with evidence; and
- Intimidating another witness.
Until now, subpoenas have been written echoing the language within the Stored Communications Act. As a result, the language to support non-disclosure has not been specific to individual cases or circumstances.
The New Normal?
Judge Orenstein has now requested specifics—beyond the standard language of the statute—as to why secrecy should be upheld. This decision now demands that the US Attorney’s office elucidate why individual companies, like Facebook, must disregard their internal policies in the event of an information request.
Scrutinizing subpoenas, especially involving tech providers and social media platforms, may continue. It will be fascinating to see how this ruling plays out and whether an appeal will affect the Magistrate’s decision.
The Ripple Effect and Takeaway Points
Beyond the immediate ruling, this decision has implications for those who may be involved with a Grand Jury subpoena—either as a subject or a recipient.
If the government has issued a subpoena, then there is ample evidence that an individual or entity is doing something illegal; grand jury subpoenas are not issued without good reason.
It is important to contact an attorney immediately if you are the subject of a subpoena, particularly if your bank records are subject to a subpoena, or if you are the recipient of a subpoena.
For the former, an attorney can help you determine why you are the subject of a subpoena and assist you from the outset. In the event of the latter, the recipient may not want to keep the subpoena a secret—an attorney will be able to distinguish whether the subpoena is a command or a request (despite what the government may indicate, not all subpoenas require secrecy).
Do you have a question or concern about grand jury subpoenas? If so, you better call Saul at (212) 363-7701!