United States District Court, N.D. California, San Jose Division
IN THE MATTER OF THE GRAND JURY SUBPOENA FOR: [REDACTED]@YAHOO.COM
For USA, Plaintiff: Jeffrey Benjamin Schenk, LEAD ATTORNEY, U.S. Attorney's Office, Northern District of California, San Jose, CA.
ORDER DENYING MOTION PURSUANT TO 18 U.S.C. § 2705(b)
PAUL S. GREWAL, United States Magistrate Judge.
The Stored Communications Act authorizes a court to prohibit providers of electronic communications services from disclosing the existence of a grand jury subpoena. Before the court is an application from the United States for just such an order to Yahoo! Inc. But rather than requesting that Yahoo! be gagged for 60 days, 90 days or some other fixed period, the government wants Yahoo! gagged " until further order of the Court." Because such an indefinite order would amount to an undue prior restraint of Yahoo!'s First Amendment right to inform the public of its role in searching and seizing its information, the court DENIES the government's application.
Among its products, Yahoo! offers web-based email. Users may sign up for an email account at yahoo.com. After the government came to learn that one particular account may have information relevant to an ongoing grand jury investigation, it served Yahoo! with a grand jury subpoena. The subpoena requests various customer and subscriber account information for the account of interest. As is often the case with such requests, the government informed Yahoo! that it need not actually appear before the jury so long as it provided the agent serving the subpoena with all the information requested.
In parallel with the subpoena, the government filed an application with the court for an order directing Yahoo! not to notify others of the subpoena's existence. 18 U.S.C. § 2705(b) provides that " [a] governmental
entity acting under section 2703, 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 pursuant to subsection (a) of this section, may apply to a court for an order commanding a provider of electronic communications service . . . to whom a . . . subpoena . . . is directed, for such period as the court deems appropriate, not to notify any other person of the existence of the . . . subpoena." When presented with such an application, " [t]he court shall enter such an order if it determines that there is reason to believe that notification of the existence of the . . . subpoena . . . will result in--
(1) endangering the life or physical safety of an individual;
(2) flight from prosecution;
(3) destruction of or tampering with evidence;
(4) intimidation of potential witnesses; or
(5) otherwise seriously jeopardizing an investigation or unduly delaying atrial." 
As authorized by the statute, the government presented its request ex parte. At the risk of stating the obvious, that means no counsel for Yahoo! has appeared, nor has ...