Facebook, Inc. v. James Pepe

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 19-SS-1024

FACEBOOK, INC., APPELLANT,

V.

JAMES PEPE, APPELLEE,

AND

UNITED STATES, INTERVENOR.

Appeal from the Superior Court
of the District of Columbia
(CF1-18581-18)

(Hon. Juliet McKenna, Trial Judge)

(Argued January 14, 2020 Decided )

Joshua S. Lipshutz, with whom Naima L. Farrell, Aaron Smith, John K.
Roche, Ariel Glickman, Michael J. Holecek, of the bar of the State of California, pro
hac vice, by special leave of the court, and Thomas F. Cochrane, of the bar of the
State of California, pro hac vice, by special leave of the court, were on the brief, for
appellant.

William Collins, Public Defender Service, with whom Samia Fam, Mikel-
Meredith Weidman, and Jaclyn S. Frankfurt, Public Defender Service, were on the
brief, for appellee.

Andrew W. Laing, Attorney, Appellate Section, Criminal Division, United
States Department of Justice, with whom Brian A. Benczkowski, Assistant Attorney
General, John P. Cronan, Principal Deputy Assistant Attorney General, Matthew S.
 2

Miner, Deputy Assistant Attorney General, Criminal Division, United States
Department of Justice, and Nathan P. Judish, Attorney, Computer Crime and
Intellectual Property Section, Criminal Division, United States Department of
Justice, were on the brief, for intervenor.

Before GLICKMAN and FISHER, Associate Judges, and NEBEKER, Senior Judge.

GLICKMAN, Associate Judge: Appellant Facebook, Inc. (Facebook) filed an

expedited appeal from an order holding it in civil contempt for refusing to comply

with an ex parte subpoena served by appellee James Pepe, and from a related order

directing Facebook not to disclose the existence of the subpoena to any person or

entity other than its counsel until it complied with the subpoena. We issued a

Judgment on January 16, 2020, that affirmed the order holding Facebook in

contempt, but vacated the nondisclosure order. This opinion explains those rulings.

I.

Mr. Pepe’s subpoena sought evidence from Facebook supporting his defense

to then-pending criminal charges arising out of the shooting of Marquette Brown on

December 6, 2018. Mr. Pepe claimed he shot in self-defense after Mr. Brown and

his associates, who had been threatening him, surrounded him on an A6 bus and

pursued him when he got off and tried to walk away from them. Shortly before this
 3

encounter, Brown allegedly sent Pepe a disappearing Instagram “Story” 1 in which

Brown menacingly bragged that he had been carrying a weapon during one of their

previous confrontations and warned Pepe not to ride the A6 bus. Mr. Pepe had not

preserved and no longer possessed this Story. It was not included in the voluminous

records that Facebook had produced to the government from Mr. Pepe’s Instagram

account in response to a search warrant (which records the government turned over

to Mr. Pepe in pretrial discovery).

In an effort to obtain the evanescent Instagram Story and other potentially

helpful evidence of Brown’s threats, Mr. Pepe asked the Superior Court to authorize

an ex parte subpoena to Facebook under Superior Court Criminal Rule 17(c). 2 The

subpoena sought (1) communications from Brown’s Instagram account to Pepe’s

1
Instagram is a photo- and video-sharing platform owned by Facebook, on
which users may send another user a photo or video “Story” that is accessible on the
Instagram platform to both sender and recipient for twenty-four hours, after which
it disappears, unless either the sender or the recipient acts to save it. See Instagram
Help Center, “When does my Instagram story disappear?”, available at
https://help.instagram.com/1729008150678239?helpref=uf_permalink
https://perma.cc/2Z8N-PHDD (last accessed Mar. 24, 2020).
2
As we understand Facebook’s counsel to have clarified at oral argument, a
Story that has expired from both the sender’s and the recipient’s platform may still
be archived by Instagram within the sender’s account and therefore be producible
by Facebook even if it is inaccessible to the sender.
 4

account, 3 and (2) non-content information pertaining to Brown’s account, such as

message headers identifying other Instagram accounts with which Brown had

communicated around the time of the shooting. The trial court approved the ex parte

subpoena and found that “exceptional circumstances” existed to dispense with

requiring notice of the subpoena to Brown. 4

Facebook moved to quash the subpoena. It principally contended that the

subpoena was unenforceable because the requested records were subject to the

privacy protections of the Stored Communications Act (SCA). 5 After a hearing, the

trial court denied the motion. The court ruled that the requested records fell within

statutory exceptions to the SCA’s prohibitions on disclosure of electronic records

and the contents of electronic communications, and that the SCA did not empower

Facebook to defy an otherwise lawful subpoena for such excepted information.

3
The subpoena did not mention the Instagram Story specifically.
4
When a Rule 17 subpoena “requir[es] the production of personal or
confidential information about a victim[,] . . . unless there are exceptional
circumstances, the court must require giving notice to the victim so that the victim
can move to quash or modify the subpoena or otherwise object.” Super. Ct. Crim.
R. 17(c)(3).
5
18 U.S.C. §§ 2701-13 (2018).
 5

Facebook also requested the court’s permission to disclose the existence of

the ex parte subpoena to the government or Mr. Brown so it could explore whether

the requested information could be procured without the subpoena – for example, if

the government were to obtain a warrant for the information and thereafter produce

it to Mr. Pepe. Mr. Pepe opposed this request, and the trial court ultimately rejected

it and ordered Facebook not to disclose the subpoena to any person or entity (other

than its counsel) until it had complied with the subpoena. The court concluded that

this restraint on disclosure was justified under Criminal Rule 17(c)(3) to prevent loss

or destruction of the requested evidence and to protect Mr. Pepe from the premature

disclosure of his defense investigation and strategy, and that it did not violate the

First Amendment. 6

Facebook did not comply with the subpoena by the deadline imposed by the

court. The court accordingly held it in civil contempt and stayed the monetary

sanctions it imposed pending Facebook’s expedited appeal. 7

6
Before the court held Facebook in civil contempt for its non-compliance
with the subpoena, Facebook took an interlocutory appeal from the non-disclosure
order. This court dismissed that appeal for lack of jurisdiction on the grounds that
it was not from a final order and did not meet the requirements of the collateral order
doctrine. See In re Facebook, Inc., No. 19-SS-761, Order (D.C. Oct. 23, 2019).
7
The United States intervened in this appeal at this court’s invitation because
Mr. Pepe argued that the SCA is unconstitutional if it requires or permits Facebook
 6

Our January 16, 2020 Judgment in this appeal upheld the subpoena and

affirmed the adjudication of civil contempt. We agreed with the trial court, Mr.

Pepe, and the United States that the SCA neither required nor authorized Facebook’s

refusal to comply with the subpoena. However, we vacated the nondisclosure order. 8

Given Facebook’s unrebutted representation that it had secured any requested

communications and records in its possession, we were not persuaded the

nondisclosure order was justified by a need to preserve the records or by Mr. Pepe’s

confidentiality concerns.

II. Enforceability of the Subpoena

As a provider of electronic communication services, Facebook must comply

with the provisions of the SCA governing its disclosure of customer communications

and records. The provision of the SCA applicable to this case, 18 U.S.C. § 2702,

contains a prohibition on disclosure and exceptions to that prohibition. Subsection

(a) states that “[e]xcept as provided in subsection (b) or (c),” service providers “shall

to defy a criminal defendant’s Rule 17 subpoena for evidence material to the defense.
See D.C. App. R. 44(a). In view of our disposition of the appeal on statutory
grounds, we do not reach Mr. Pepe’s constitutional claim.
8
Our vacatur of the nondisclosure order was effective immediately, ahead of
the new date we set for Facebook to comply with the subpoena or begin suffering
the sanctions imposed for its contempt.
 7

not knowingly divulge to any person or entity the contents” of electronically stored

communications or “to any governmental entity” “record[s] or other information

pertaining to a subscriber [] or customer” (i.e., records that are not communications).

If one of the exceptions listed in subsections (b) and (c) applies, the provider “may

divulge” the communication, record, or information at issue. 9

In Facebook v. Wint 10 we held that where no statutory exception applies,

§ 2702(a) prohibits a service provider from complying with a criminal defendant’s

subpoena for covered communications and records. In other words, the SCA renders

that subpoena unenforceable against the provider. Our opinion left unanswered the

question whether the SCA similarly precludes a criminal defendant from

subpoenaing material that falls within one of § 2702’s exceptions. That is the

question posed in the present case. Mr. Pepe contends the SCA is no obstacle to the

enforcement of his subpoena, because exceptions in subsections (b) and (c) of § 2702

specifically allow a provider like Facebook to divulge (1) the contents of a covered

communication to, or with the consent of, “an addressee or intended recipient of

9
18 U.S.C. §§ 2702(b), (c).
10
199 A.3d 625 (D.C. 2019).
 8

such communication,” 11 and (2) customer records and information other than a

covered communication “to any person other than a governmental entity.” 12

In opposing Mr. Pepe’s invocation of these exceptions, Facebook makes two

principal arguments. First, it argues that Mr. Pepe is not “an addressee or intended

recipient” of an Instagram communication that has, by design, automatically expired

and disappeared from his account. Second, Facebook argues that even if subsections

(b)(1), (b)(3), and (c)(6) permit it to divulge the requested communications and

records to Mr. Pepe, it cannot be compelled to do so by his subpoena because the

SCA preempts such compulsory discovery and commits the disclosure decision in

cases like this to the service provider’s unfettered discretion. Each of these

arguments presents a question of statutory interpretation as to which our review is

de novo. 13 As we stated in construing the SCA in Wint,

We first look to see whether the statutory language at issue
is “plain and admits of no more than one meaning.”
Peoples Drug Stores, Inc. v. District of Columbia, 470
A.2d 751, 753 (D.C. 1983) (en banc) (internal quotation

11
18 U.S.C. §§ 2702(b)(1), (b)(3).
12
Id. § 2702(c)(6). Governmental access to customer communications or
records by warrant, subpoena, or court order is addressed separately in § 2703 of the
SCA.
13
Wint, 199 A.3d at 628.
 9

marks omitted). We will give effect to the plain meaning
of a statute “when the language is unambiguous and does
not produce an absurd result.” McNeely v. United States,
874 A.2d 371, 387 (D.C. 2005) (internal quotation marks
omitted). “[W]e may also look to the legislative history to
ensure that our interpretation is consistent with legislative
intent.” Thomas v. Buckley, 176 A.3d 1277, 1281 (D.C.
2017) (internal quotation marks omitted).[14]

For the following reasons, we reject both arguments and conclude that the

SCA does not render Mr. Pepe’s subpoena unenforceable. 15

14
Id.
15
Facebook also makes a non-statutory argument. It contends the subsection
(b) exceptions are inapplicable because Mr. Pepe has provided no evidence that he
is the holder of the Instagram account that allegedly received messages from Mr.
Brown’s account, or that he ever received communications from Brown. On the
record before us, however, Mr. Pepe’s status as an account holder and recipient is
not in reasonable dispute. The trial court found him to be the account holder based
on the sworn evidence presented by the government to obtain the warrant for his
Instagram records, and the warrant yielded numerous communications between Pepe
and Brown. Service providers often “rely on law enforcement certification under
oath” that factual assertions underlying government requests for covered records or
communications are “true and accurate,” and their good faith reliance on those
assertions relieves them of liability under the SCA. United States v. Caraballo, 963
F. Supp. 2d 341, 349 (D. Vt. 2013), aff’d, 831 F.3d 95 (2d Cir. 2016); see also
Alexander v. Verizon Wireless Servs., LLC, 875 F.3d 243, 254 (5th Cir. 2017). We
see no reason why providers would cease to rely on the same law enforcement
certification when a criminal defendant uses it to seek similar information.
 10

A. Mr. Pepe’s Status as an “Addressee or Intended Recipient”

Facebook argues that Mr. Pepe cannot be considered an “addressee or

intended recipient” of Instagram messages that have expired and disappeared from

view on his Instagram platform after twenty-four hours. According to Facebook, a

sender’s use of such an ephemeral format implies the sender meant to limit the

receiver’s continued access to the message and makes the receiver only a former

addressee or intended recipient of the message once it has disappeared. Taken to its

logical conclusion, Facebook’s position is that a receiver must have current access

to a communication when seeking its disclosure in order to be deemed an “addressee

or intended recipient” of it within the meaning of §§ 2702(b)(1) and (b)(3). Mr. Pepe

disagrees, arguing that the plain meaning of “addressee or intended recipient” does

not turn on how long the sender wanted the communication to remain available for

viewing or whether it in fact remains accessible to the receiver. We agree with Mr.

Pepe.

The SCA does not define or qualify the meaning of an “addressee or intended

recipient” of an electronic communication. “When the terms of a statute are

undefined and not recognized terms of art, we presumptively accord them their
 11

ordinary meaning in common usage, taking into account the context in which they

are employed[.]” 16 Facebook has not rebutted that presumption in this case.

In the ordinary sense of the term, being an “addressee or intended recipient”

of a communication is not linked in any way to how long the receiver continues or

is intended to possess it. In general, an “addressee” is simply “one to whom

something is addressed,” and to “address” is simply “to direct to go to” or “to direct

by way of communication.” 17 The status of addressee arises at the time of sending

an addressed item, and this status is not altered by what happens to the item

thereafter, or by what the sender wanted or expected to happen thereafter. We would

not say, for example, that someone ceased to be the addressee of a letter that was

deposited in the mail if the letter was lost in transit or thrown away after receipt.

Similarly, an “intended recipient” is simply “one that receives,” that is, “take[s]

possession or delivery of,” as the sender had “in mind” or in accordance with the

sender’s plans or “designs.” 18 The status of intended recipient does not depend on

whether the recipient keeps the communication or whether the sender intended that

16
Hood v. United States, 28 A.3d 553, 559 (D.C. 2011).
17
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH
LANGUAGE, UNABRIDGED 24, 25 (1993).
18
Id. 1175, 1894, 1895 (defining “intended” and “recipient”).
 12

it be preserved. For example, a person need not record a phone call in order to be

deemed its intended recipient. Absent any indication to the contrary, the plain and

most natural reading of the term “addressee or intended recipient” in § 2702 is that

it includes people who receive electronic messages that expire at some point after

receipt.

Indeed, the (b)(1) and (b)(3) exceptions would serve little purpose and be

virtually superfluous if they permitted Facebook to disclose electronic

communications only to, or with the consent of, people who still have the

communications. Facebook’s disclosure is unnecessary for those individuals to

obtain or consent to share communications they already control. The (b)(1) and

(b)(3) exceptions are useful when a receiver did not retain possession of, or access

to, a desired electronic communication.

That the sender may have intended a communication to disappear by sending

it in an ephemeral format thus has no bearing on whether the receiver is, in plain

language and with regard to the purposes of the exception, an “addressee or intended

recipient” of that communication. This conclusion does not undermine senders’

reasonable privacy expectations created by the SCA. The SCA itself limits such

expectations by allowing service providers to divulge electronic communications to
 13

addressees or intended recipients, or to anyone else with their consent, without

sender authorization. And of course the SCA contains no special provision for

communications that are designed to self-delete; as Facebook acknowledges, the

development of such evanescent messages was not envisioned when Congress

enacted the SCA in 1986. 19 In point of fact, the automatic expiration of an Instagram

Story merely removes it from the recipient’s and the sender’s Instagram platform; it

does not prevent a receiver from preserving it before its deletion by downloading or

other means. 20 The sender of a Story cannot prevent its preservation. Thus, if

anything, the sender’s consent to the receiver’s continued access to the message is

implied by the sender’s decision to send it. 21 Mr. Brown had no reasonable

assurance that a Story he sent to Mr. Pepe would disappear for good.

19
We have found nothing in the legislative history of the SCA indicating that
“addressee or intended recipient” should be understood to exclude persons who
receive disappearing electronic messages or messages that the sender intended to be
destroyed or not disclosed.
20
Instagram’s Data Policy, available to its users, specifically states that
“when you share a post or send a message to specific friends or accounts, they can
download, screenshot, or reshare that content to others across or off our Products, in
person or in virtual reality[.]” Instagram Help Center, “Data Policy: Content others
share or reshare about you,” available at
https://help.instagram.com/155833707900388 https://perma.cc/D554-J6EL (last
accessed Mar. 24, 2020).
21
In enacting the SCA, Congress envisioned that “[i]f conditions governing
disclosure or use are spelled out in the rules of an electronic communication service,
and those rules are available to users . . . it would be appropriate to imply consent
 14

We hold that under §§ 2702(b)(1) and (b)(3), Mr. Pepe is an “addressee or

intended recipient” of any communications sent to his account, and those exceptions

therefore permit Facebook to disclose all such communications to Pepe, including

any Instagram Stories, that are responsive to his subpoena.

B. The Enforceability of a Subpoena for Information the SCA Permits
Facebook to Divulge

Facebook contends that even if §§ 2702(b)(1), (b)(3), and (c)(6) permit it to

divulge the communications and records sought by Mr. Pepe, the SCA preempts his

ability to obtain that information from it by subpoena. The SCA does not do so

expressly, but Facebook asserts that it does so implicitly because allowing such use

of compulsory process would create “an obstacle to the accomplishment and

execution of the full purposes of and objectives of Congress” 22 in enacting the SCA.

According to Facebook, the permissive exceptions in the SCA leave disclosure

entirely to the service provider’s unfettered discretion in order to channel discovery

to other entities, such as users who can assert their own privacy interests in the

communications and records at issue. In effect, Facebook argues that Congress

on the part of a user to disclosures or uses consistent with those rules.” H.R. Rep.
No. 99-647, at 66 (1986) (hereinafter “House Report”).
22
Murray v. Motorola, Inc., 982 A.2d 764, 771 (D.C. 2009) (quotation and
alteration omitted).
 15

intended the SCA to create an absolute service provider discovery privilege

whenever the SCA does not specifically require a service provider to permit

discovery.

As the Supreme Court has emphasized, “preemption cannot be based on a

freewheeling judicial inquiry into whether a state [rule] is in tension with federal

objectives.” 23 For Facebook’s implicit preemption argument to succeed, it “must be

grounded ‘in the text and structure of the statute at issue.’” 24 We conclude that the

necessary grounding is lacking.

There is, to begin with, a weighty and well-settled presumption against

inferring that Congress silently intended to foreclose or restrict the availability of a

core component of the judicial process such as the subpoena power. As we reiterated

in Wint,

[I]t is imperative to the function of courts that compulsory
process be available for the production of evidence needed
either by the prosecution or by the defense[.] . . .
[E]xceptions to the demand for every man’s evidence are

23
Kansas v. Garcia, 140 S. Ct. 791, 801 (2020) (internal punctuation omitted,
quoting Chamber of Commerce v. Whiting, 563 U.S. 582, 607 (2011)).
24
Id. at 804 (quoting CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664
(1993)).
 16

not lightly created nor expansively construed, for they are
in derogation of the search for truth.[25]

Thus, a “clear and strong indication” of Congressional intent “is required before it

may be implied that the policy of prohibition is of such force as to dominate the

broad objective of doing justice” by preempting the ordinary rules of discovery in

the judicial process. 26

Such clear intent exists for us to conclude that when § 2702(a)’s general

prohibition on disclosure is applicable, it precludes a provider from complying with

a criminal defendant’s subpoena; we so held in Wint, as have other courts. 27 But

when the (b)(1), (b)(3), and (c)(6) exceptions to the prohibition apply and expressly

25
Wint, 199 A.3d at 632 (quoting United States v. Nixon, 418 U.S. 683, 709-
10 (1974)).
26
Id. (quoting Freeman v. Seligson, 405 F.2d 1326, 1348 (D.C. Cir. 1968);
see also Facebook v. Superior Court (Hunter), 417 P.3d 725, 751 (Cal. 2018)
(“[T]here should be a clear expression of congressional intent before relevant
information essential to the fair resolution of a lawsuit will be deemed absolutely
and categorically exempt from discovery and not subject to the powers of the
court[.]”); cf. Ajemian v. Yahoo!, Inc., 84 N.E.3d 766, 774-78 (Mass. 2017) (holding
that absent “clear congressional intent” to preempt an “‘area[] of traditional State
regulation,’” § 2702(a) of the SCA did not preempt state probate law allowing
personal representatives to consent to release of information on behalf of decedent)
(citing Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 151 (2001)).
27
See Wint, 199 A.3d at 628-29.
 17

permit disclosure, they remove that barrier to subpoena compliance and enable

service providers to comply with compulsory process. The subsections do not

purport to authorize providers to refuse to do so at their own option, let alone to vest

them with a novel privilege to withhold evidence from discovery for any or no

reason.

Facebook argues that subsections (b) and (c) state that providers “may

divulge” information under certain conditions, and that “the permissive ‘may’ rather

than the imperative ‘shall’” 28 indicates that the decision to divulge is discretionary.

This assertion is too sweeping. As the California Supreme Court has explained

the subdivision[s] [in § 2702] where ‘may’ appears [are]
framed not as a grant of discretionary power . . . but as a
special exception to a general prohibition. In such a
context all ‘may’ means is that the actor is excused from a
duty, liability, or disability otherwise imposed by the
prohibition.[29]

28
Cruz v. United States, 165 A.3d 290, 293 (D.C. 2017).
29
Hunter, 417 P.3d at 751 (emphasis in the original; internal quotation marks
omitted) (holding that § 2702 does not give electronic service providers discretion
to defy otherwise lawful subpoenas from criminal defendants where an exception in
§ 2702 permits the disclosure of the subpoenaed materials).
 18

Indeed, underscoring that point, some of the excepted circumstances in which

subsections (b) and (c) say a provider “may divulge” information are, in fact,

circumstances in which the provider must divulge it. 30

And “while ‘may’ suggests discretion, it does not necessarily suggest

unlimited discretion.” 31 That the SCA grants providers certain exemptions from its

general prohibition on disclosure does not imply that it grants providers exemptions

from mandatory disclosure requirements imposed by other law. Although the SCA

preempts other disclosure laws to the extent they would require providers to violate

the SCA, that is no reason to think the SCA also preempts laws that require

disclosures the SCA expressly permits. 32 When the SCA lifts the bar on disclosure

of electronic communications in § 2702(a) and explicitly permits providers to

disclose information, the requisite indication of congressional intent to preclude

30
E.g., 18 U.S.C. §§ 2702(b)(2) and (c)(1) (referencing mandatory
disclosures to governmental entities pursuant to warrants or other means specified
in § 2703); §§ 2702(b)(6) and (c)(5) (referencing mandatory reporting to the
National Center for Missing and Exploited Children).
31
Zadvydas v. Davis, 533 U.S. 678, 697 (2001).
32
See Hunter, 417 P.3d at 751.
 19

compulsory process is absent. It does not appear in the statutory text, and we have

not found it in the legislative history of the SCA. 33

Accordingly, we hold that the SCA did not authorize Facebook’s refusal to

comply with Mr. Pepe’s subpoena for information that SCA §§ 2702(b)(1), (b)(3),

and (c)(6) allowed Facebook to divulge to him. Our conclusion accords with the

substantial weight of authority from other jurisdictions. 34 While a few courts have

33
House Report, at 64-67; S. Rep. No. 99-451, at 36-38 (1986).
34
See, e.g., Hunter, 417 P.3d at 751; Negro v. Superior Court, 179 Cal. Rptr.
3d 215, 230-34 (Cal. Ct. App. 2014); O’Grady v. Superior Court, 44 Cal. Rptr. 3d
72, 88 (Cal. Ct. App. 2006) (in holding that civil subpoena for contents of
communications violated the SCA, noting “[c]opies may still be sought from the
[service provider] if the discovery can be brought within one of the statutory
exceptions—most obviously, a disclosure with the consent of a party to the
communication”); Mafille v. Kaiser-Francis Oil Co., No. 18-CV-586-TCK-FHM,
2019 WL 1933747, at *4 (N.D. Okla. May 1, 2019) (civil subpoena to Google did
not violate the SCA where the plaintiff could consent to disclosure under
§ 2702(b)(3)); Super Vitaminas, S.A., No. 17-mc-80125-SVK, 2017 WL 5571037,
at *3-4 (N.D. Cal. Nov. 20, 2017) (civil subpoena to provider for email contents
between litigant and third party did not violate the SCA where litigants were
recipients of the emails and consented to the disclosure of the contents thereof
because “the exception provided [under § 2702(b)(3)] for disclosure applies”); Lee
v. Glob. Tel*Link Corp., No. CV15-2495-ODW(PLAx), 2017 WL 10575166, at *7
(C.D. Cal. Sept. 6, 2017) (in holding that provider could disclose customer
information to litigant under § 2702(c)(6), stating, “the Court is not aware of[] any
case holding that a federally-recognized privilege exists that prohibits a telephone
company from disclosing customer information”); Al Noaimi v. Zaid, No. 11–1156–
EFM, 2012 WL 4758048, at *3 (D. Kan. Oct. 5, 2012) (denying motion to quash
subpoena to service provider where plaintiff could consent to disclosure of his own
requested email communications under § 2702(b)(3)); Two Rivers Fin. Grp., Inc. v.
 20

held or, in dicta, suggested otherwise, 35 their opinions do not rebut our reasoning

and we do not find them persuasive.

Ralston, No. 3:11-cv-00152-CRW-CFB, 2012 WL 13018842, at *2 (S.D. Iowa July
9, 2012) (ordering provider to comply with defendant’s subpoena for her own email
communications, as “18 U.S.C. § 2702(b)(1) . . . does allow the disclosure of the . .
. communication to ‘the addressee or intended recipient of such communication . . .
’”); Columbia Pictures Indus., Inc. v. Fung, No. CV 06-5578 SVW(JCx), 2007 WL
9627899, at *4 (C.D. Cal. May 31, 2007) (“[A]s the court has ordered the production
of essentially only those private forum messages to which defendants or their agents
are privy because they are a party or participant thereto, and as defendants have the
ability to consent to the disclosure thereof, the Stored Communications Act does not
provide a basis to withhold such data which is clearly within defendants' possession,
custody and control.”).

Courts are particularly uniform in demanding that service providers comply
with subpoenas for information that falls within the § 2702(c)(6) exception for non-
content information. See, e.g., CineTel Films, Inc. v. Does 1-1,052, 853 F. Supp. 2d
545, 555 n.5 (D. Md. 2012); First Time Videos, LLC v. Does 1-500, 276 F.R.D. 241,
247 (N.D. Ill. 2011); Viacom Int’l Inc. v. YouTube Inc., 253 F.R.D. 256, 265
(S.D.N.Y. 2008); Sines v. Kessler, No. 18-mc-80080-JCS, 2018 WL 3730434, at
*10-11 (N.D. Cal. Aug. 6, 2018); Haw. Reg’l Council of Carpenters v. Yoshimura,
No. 16-00198 ACK-KSC, 2017 WL 738554, at *3-4 (D. Haw. Feb. 17, 2017); Site
B, LLC v. Does 1-51, No. 13 C 5295, 2014 WL 902688, at *4 (N.D. Ill. Mar. 7,
2014); TCYK, LLC v. Does 1-87, No. 13 C 3845, 2013 WL 5567772, at *3 (N.D. Ill.
Oct. 9, 2013).
35
See United States v. Wenk, 319 F. Supp. 3d 828, 829 (E.D. Va. 2017); PPG
Indus., Inc. v. Jiangsu Tie Mao Glass Co., 273 F. Supp. 3d 558, 561 (W.D. Pa. 2017);
State v. Johnson, 538 S.W.3d 32, 69-70 (Tenn. Crim. App. 2017); In re Facebook,
923 F. Supp. 2d 1204, 1206 (N.D. Cal. 2012); Schweickert v. Hunts Point Ventures,
Inc., No. 13-CV-675RSM, 2014 WL 6886630, at *13 (W.D. Wash. Dec. 4, 2014).
 21

III. The Nondisclosure Order

A. Background

At the hearing in the trial court on its motion to quash Mr. Pepe’s subpoena,

Facebook’s counsel asked the court to defer ruling on the issue of its enforceability

under the SCA because the subpoenaed materials might be otherwise procurable. 36

To that end, counsel asked the court to “clarify that there is no gag order on

Facebook” so that it could talk to the government about the subpoena, and argued

that any restraint on its ability to speak about the subpoena would violate the First

Amendment. The court responded that it had not imposed a “gag” order on

Facebook and doubted it had the authority to do so; as permitted by Rule 17(c)(3),

it simply had excused the defense from having to notify Mr. Brown that his records

were being requested.

At that point, Mr. Pepe’s counsel asserted that the court did have the authority

to preclude Facebook from disclosing the existence of the subpoena to anyone.

36
A party seeking a subpoena duces tecum under Rule 17 must show “(1) that
the documents are evidentiary and relevant; (2) that they are not otherwise
procurable by exercise of due diligence; (3) that the party cannot properly prepare
for trial without such production[;] and (4) that the application is made in good faith
and is not intended as a ‘fishing expedition.’” Grady v. United States, 180 A.3d 652,
658 (D.C. 2018) (quotation and alteration omitted).
 22

Counsel stated that Mr. Pepe had a compelling interest in maintaining the

confidentiality of his trial strategy and defense investigation. The court noted that

Mr. Pepe’s strategy was no secret, as he had said in pretrial filings and open court

that he would rely on a claim of self-defense. Defense counsel then voiced concern

that Mr. Brown might delete his Instagram messages if he were to learn of the

subpoena. The court agreed to counsel’s request to provide supplemental briefing

with respect to a nondisclosure order.

In the briefing that followed, Mr. Pepe claimed, on information and belief,

that the government was unaware of the threatening Instagram Story that Mr. Brown

allegedly sent to Mr. Pepe. Disclosure to the government of its possible existence,

Mr. Pepe argued, would prompt a government investigation that “may lead someone

close to Mr. Brown to attempt to tamper with the photo or video” or persons with

whom Mr. Brown may have communicated about the threats to alter their own social

media profiles. Mr. Pepe also pointed out that the government would need to seek

significant additional information from Facebook or the defense in order to discern

“whether it could or would seek a warrant” for Mr. Brown’s Instagram records. Both

the risk of spoliation and governmental intrusion in the defense investigation would

“undermine Mr. Pepe’s defense.”
 23

After considering these arguments, the trial court found “(1) that Mr. Pepe has

a compelling interest in having his defense theory, strategy, and investigation remain

confidential, that (2) sealing would serve that interest, (3) that in the absence of

sealing, that interest would be harmed, and (4) that there are no alternatives to

sealing.” The court further found, as required by Rule 17(c)(3), that “exceptional

circumstances” justified not giving notice of the subpoena to Mr. Brown, “including

the likelihood that ‘evidence might be lost or destroyed . . . or where the defense

would be unfairly prejudiced by premature disclosure of a sensitive defense

strategy.’” 37 Accordingly, the court ordered Facebook not to disclose the existence

of the subpoena to any other person or entity, with the exception of its own counsel,

until after Facebook had complied with the subpoena.

B. Discussion

Ordinarily, a decision to issue a subpoena ex parte or enter a protective order

is reviewed for abuse of discretion. 38 The nondisclosure order, however, implicates

37
Super. Ct. Crim. R. 17(c)(3) comment to 2017 amendments.
38
Mampe v. Ayerst Labs., 548 A.2d 798, 803-04 (D.C. 1988); Super. Ct.
Crim. R. 17(c)(3) comment to 2017 amendments (“The Committee leaves to the
judgment of the court a determination as to whether the judge will permit the
 24

a question of law – whether it impermissibly burdens Facebook’s First Amendment

rights – as to which our review is de novo. 39

We start with the understanding that witnesses and other third parties in

possession of evidence relating to a civil or criminal proceeding generally have a

robust First Amendment right, whether they are under subpoena or not, to speak

freely about their knowledge and their involvement in the proceeding whenever and

with whomever they please. This right extends to sharing the evidence they possess

with either side in the litigation; witnesses do not belong to one side or the other. 40

We do not say the right is absolute; in exceptional circumstances it may be subject

question whether such exceptional circumstances exist to be decided ex parte and
authorize service of the third-party subpoena without notice to anyone.”).
39
In re Access to Jury Questionnaires, 37 A.3d 879, 885 (D.C. 2012)
(applying de novo review to Superior Court’s refusal to allow press access to jury
questionnaires); United States v. Doe, 968 F.2d 86, 88 (D.C. Cir. 1992) (whether
Park Service regulation met requirements of a time, place, and manner restriction “is
of course a question of law, to be reviewed by an appellate court de novo”); In re
Nat’l Sec’y Ltr., 863 F.3d 1110, 1121 (9th Cir. 2017) (“Constitutional questions of
fact (such as whether certain restrictions create a ‘severe burden’ on an individual’s
First Amendment rights) are reviewed de novo.”) (quotation and alteration omitted).
40
Gregory v. United States, 369 F.2d 185, 188-89 (D.C. Cir. 1966)
(prosecutor’s advice to eyewitness not to speak with defense unless prosecutor was
present denied appellant a fair trial).
 25

to reasonable curtailment. But deviations from the norm of non-constraint require

strong justification.

The judicial order in this case mandated that Facebook refrain from discussing

the subpoena for its evidence with anyone (except its counsel). Such a “naked

prohibition against disclosure[]” of its involvement in this litigation “is fairly

characterized as a regulation of pure speech.” 41 That regulation is both content-

based, because it prohibits the discussion of a particular topic (the subpoena), 42 and

a prior restraint on speech, as it “forbid[s] certain communications . . . in advance of

the time that such communications are to occur” or before the speaker has the

opportunity to make them. 43 Content-based prior restraints are normally subject to

review under strict scrutiny, 44 and prior restraints come with a “heavy presumption”

41
Bartnicki v. Vopper, 532 U.S. 514, 526 (2001).
42
Reed v. Town of Gilbert, Arizona, 135 S. Ct. 2218, 2227 (2015); In re
Sealing & Non-Disclosure of Pen/Trap/2703(d) Orders, 562 F. Supp. 2d 876, 881
(S.D. Tex. 2008).
43
Alexander v. United States, 509 U.S. 544, 550 (1993).
44
Matter of Subpoena 2018R00776, 947 F.3d 148, 155 (3d Cir. 2020); In re
Nat’l Sec’y Ltr., 863 F.3d at 1121-22; In re Search Warrant Issued to Google, Inc.,
269 F. Supp. 3d 1205, 1213 (N.D. Ala. 2017).
 26

against their constitutional validity. 45 A content-based prior restraint violates the

First Amendment unless it serves a compelling state interest and is narrowly tailored

so as to “limit[] speech as little as possible.” 46

Section 2705 of the SCA itself provides that governmental entities may apply

to a court for a nondisclosure order similar to the one issued here in order to delay

notification to customers or subscribers of electronic communication services that

their records or communications are subject to a warrant or subpoena. 47 Courts have

reviewed such orders under strict scrutiny, 48 even though the statute arguably

45
In re J.D.C., 594 A.2d 70, 74 n.6 (D.C. 1991) (quoting Org. for a Better
Austin v. Keefe, 402 U.S. 415, 419 (1971)).
46
In re Ti.B., 762 A.2d 20, 30 (D.C. 2000); see also Reed, 135 S. Ct. at 2226.
47
18 U.S.C. § 2705(b); see also §§ 2709(a), (c) (allowing the Federal Bureau
of Investigation to request subscriber or customer information from providers and,
subject to judicial review, prevent providers from disclosing those requests).
48
See, e.g., Matter of Subpoena 2018R00776, 947 F.3d at 155-56; Microsoft
Corp. v. United States Dep’t of Justice, 233 F. Supp. 3d 887, 906 & n.7 (W.D. Wash.
2017); Matter of Search Warrant for [redacted].com, 248 F. Supp. 3d 970, 980-82
(C.D. Cal. 2017); In re Search Warrant Issued to Google, 269 F. Supp. 3d at 1213-
15; In re Sealing & Non-Disclosure of Pen/Trap/2703(d) Orders, 562 F. Supp. 2d at
881-82, 886; see also John Doe v. Mukasey, 549 F.3d 861, 877-78 (2d Cir. 2008)
(declining to decide whether strict scrutiny or some less “exacting” form of review
applied to FBI nondisclosure order issued under § 2709).
 27

appears to allow for their issuance under a less stringent standard, a “reason to

believe” that disclosure will result in:

(A) endangering the life or physical safety of an
individual; (B) flight from prosecution; (C) destruction of
or tampering with evidence; (D) intimidation of potential
witnesses; or (E) otherwise seriously jeopardizing an
investigation or unduly delaying a trial.[49]

Strict scrutiny is applied to avoid the “substantial risk” to First Amendment rights

posed by the approval of these orders, which are content-based prior restraints. 50 In

these cases, the compelling interest prong of strict scrutiny is generally satisfied

where there is a “reason to believe” disclosure would lead to the adverse

consequences enumerated in § 2705(b). 51 On the narrow-tailoring prong, orders that

issue for an indefinite time period fail to satisfy strict scrutiny, but orders limiting

disclosure for a defined time period have generally been upheld. 52

49
18 U.S.C. § 2705(b).
50
In re Search Warrant Issued to Google, 269 F. Supp. 3d at 1215; Matter of
Search Warrant for [redacted].com, 248 F. Supp. 3d at 982.
51
See, e.g., In re Search Warrant Issued to Google, 269 F. Supp. 3d at 1215
(“calamitous circumstances” enumerated in § 2705(b) “satisfy the compelling
interest prong of the strict scrutiny analysis”); Matter of Subpoena 2018R00776, 947
F.3d at 156-57; In re Sealing & Non-Disclosure of Pen/Trap/2703(d) Orders, 562
F. Supp. 2d at 883.
52
See, e.g., In re Sealing & Non-Disclosure of Pen/Trap/2703(d) Orders, 562
F. Supp. 2d at 895 (upholding 180 day nondisclosure order and allowing the
 28

We see no reason why a lesser standard of scrutiny should apply where a

defendant, allowed under Rule 17(c)(3) to withhold notification, 53 seeks a further

order preventing the recipient of the subpoena from disclosing it. Mr. Pepe cites

cases arising in other contexts – e.g., where a litigant or third party seeks to disclose

confidential information learned in discovery – in which the would-be speaker’s

involvement in litigation or investigation has been held to allow restraints on speech

under a standard somewhat less rigorous than strict scrutiny. 54 In one such context

(involving orders or regulations restraining speech about pending trial matters by

prosecutors or defense attorneys), that standard has been articulated as requiring a

litigant to show that without the order a “substantial likelihood of prejudice” will

result. 55 It is this test that Mr. Pepe urges us to apply, arguing that the contents of

government to seek an extension upon its expiration if it could show sufficient
justification to do so); In re Search Warrant Issued to Google, 269 F. Supp. 3d at
1218 (reforming application for indefinite nondisclosure order and limiting it to 180
days); Matter of Search Warrant for [redacted].com, 248 F. Supp. 3d at 983. At
least one court has held that a § 2705(b) order lasting one year satisfies strict
scrutiny. Matter of Subpoena 2018R00776, 947 F.3d at 157-59.
53
We assume arguendo that it was not an abuse of discretion to delay
notification of the subpoena to Mr. Brown under this rule, and Facebook has not
made any contention to the contrary on appeal.
54
E.g., Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 (1984); Gentile v.
State Bar of Nevada, 501 U.S. 1030, 1072-75 (1991).
55
United States v. Brown, 218 F.3d 415, 427-28 (5th Cir. 2000) (collecting
cases).
 29

his subpoena (and the fact of its issuance) are matters Facebook learned of only

because of its involvement in a discovery dispute.

The SCA cases concerning similar government requests have rejected the

application of standards less exacting than strict scrutiny. For example, in Matter of

Search Warrant for [redacted].com, the court acknowledged that a § 2705(b)

nondisclosure order was “akin to a protective order limiting the disclosure of

information learned in pretrial discovery,” yet still applied strict scrutiny because,

unlike in the protective order context, the service provider did not “‘gather’ the

information in question from the government, with the aim of advancing [their]

interests in a lawsuit;” 56 that is, the provider, like Facebook in this case, did not itself

choose to obtain the information in question. The Northern District of Alabama also

rejected a lesser form of scrutiny over a nearly identical order, holding that learning

of the fact of a government warrant under § 2703 is distinct from learning of the

content of the request as a result of litigation, the service provider having a greater

interest in disclosing the existence of the former in order to “publiciz[e] the extent

to which the Government invades the privacy of internet users via search warrants

56
248 F. Supp. 3d at 980-81.
 30

and other devices.” 57 While a defendant’s subpoena may not implicate privacy

concerns identical to the law enforcement surveillance of internet users’ electronic

activity, the court approval of a private litigant’s gaining access to the account

information and communications of others certainly implicates “core” First

Amendment issues of governmental affairs and accountability. 58

At any rate, whether the standard is strict scrutiny or a somewhat lesser

standard, it is still a rigorous one. Our own cases addressing First Amendment

limitations on protective orders have required that any order be “necessary to ensure

a fair trial . . . or to prevent the abuse of the discovery process” and “carefully drawn

. . . so as to limit speech as little as possible.” 59 And the cases cited by Mr. Pepe as

requiring a showing of a “substantial likelihood of prejudice” ask at a minimum

whether an applicant for a nondisclosure order has presented sufficient facts to

persuade a court that the prejudice identified “might well be realized” and whether

57
In re Search Warrant Issued to Google, 269 F. Supp. 3d at 1217.
58
Id. at 1217-18.
59
Coulter v. Gerald Family Care, P.C., 964 A.2d 170, 186 (D.C. 2009)
(quotations and alteration omitted).
 31

the proposed restriction is “essential to the protection of the particular governmental

interest involved.” 60 Mr. Pepe has not met either prong of even this standard.

We do not deny the possibility that the risks Mr. Pepe identified could be great

enough to pose a substantial likelihood of prejudice to his defense and/or satisfy the

compelling interest test.61 Generally speaking, criminal defendants “should be

permitted to make an ex parte application for pretrial production of documents”

under Rule 17 “where notice of a subpoena duces tecum would compromise defense

60
Brown, 218 F.3d at 428-29.
61
See In re Search Warrant Issued to Google, Inc., 269 F. Supp. 3d at 1215
(§ 2705(b) order to prevent destruction or tampering with evidence or interference
with investigation would satisfy compelling interest test). Nor do we intend to cast
doubt on the propriety, under the First Amendment, of the relatively routine
issuance, at the trial court’s discretion, of protective orders in Superior Court over
the government and the defense themselves where a party makes a “particularized,
specific showing” that pretrial disclosure of certain materials would interfere with
the privacy interests of others, posing a concrete risk of harm. United States v.
Dixon, 355 F. Supp. 3d 1, 4 (D.D.C. 2019) (construing standard for issuance of
protective order under Federal Criminal Rule 16(d) identical to our Criminal Rule
16(d)); see also Harris v. United States, 594 A.2d 546, 549 (D.C. 1991) (holding “it
was not unreasonable for the trial court to place a temporary and limited restriction”
on defense counsel’s sharing of potential Jencks Act material with his client “during
the period of time it took the court to complete the screening of that material”). We
see no reason why a showing of such a protectable interest would not ordinarily be
sufficient to indicate that the order is “necessary to ensure a fair trial . . . or prevent
the abuse of the discovery process.” Coulter, 964 A.2d at 186.
 32

counsel’s trial strategy.” 62 And, in assessing whether further nondisclosure orders

over the subpoena are justified, or whether notice to a victim should be delayed under

Rule 17(c)(3), attention to circumstances where notification could result in evidence

spoliation is important. 63 If a third-party subject to a discovery order loses or

destroys evidence, it might prove difficult to fashion appropriate remedial sanctions,

unlike circumstances in which courts can address, through sanctions or dismissal,

the government’s failure to preserve discoverable evidence. Merely raising these

risks, however, is not enough to support the curtailment of a subpoenaed party’s First

Amendment rights.

As the Superior Court noted, the government was fully aware that Mr. Pepe

was asserting a self-defense theory, and defense counsel had even emphasized the

potential strength of the defense claim to the government. The government may

have been unaware of the nature of the photo and video evidence Mr. Pepe sought,

but it is unclear (and he has not shown) how his defense would have been harmed if

62
United States v. Sellers, 275 F.R.D. 620, 625 (D. Nev. 2011); see also
United States v. Reyes, 162 F.R.D. 468, 470 (S.D.N.Y. 1995); Super. Ct. Crim. R. 17
comment to 2017 amendments.
63
Super. Ct. Crim. R. 17 comment to 2017 amendments (“exceptional
circumstances” justifying delayed notice may include circumstances where
“evidence might be lost or destroyed”).
 33

the government were to learn of it. 64 Moreover, it is far from a foregone conclusion

that the government would have learned what Mr. Pepe was seeking had Facebook

been permitted to inform the government of the existence of the subpoena. The

subpoena does not disclose that information, and the SCA likely would have

prevented Facebook from disclosing the contents of the requested communications

and records to the government without a warrant or the consent of either Mr. Pepe

or Mr. Brown. 65 So Mr. Pepe did not establish a substantial risk that Facebook’s

disclosure of the existence of his subpoena to the government would even result in

revealing any additional details of his self-defense strategy.

Mr. Pepe also did not show an appreciable risk of spoliation. It is true that at

the time the Superior Court entered the nondisclosure order, Facebook had not yet

represented that it had secured the requested materials, leaving their alteration or

64
A party’s common strategic desire to keep potentially favorable evidence
under wraps until the eve of trial is not a substitute for a showing that pre-trial
disclosure of the evidence at issue in this case would in some way “compromise
defense counsel’s trial strategy.” Sellers, 275 F.R.D. at 625. Superior Court
Criminal Rule 16 provides that if a party intends to “use the [evidence] in [their]
case-in-chief at trial” they must permit their opponent to inspect it upon their
opponent’s request.
65
18 U.S.C. §§ 2702(a)-(c) (precluding disclosure of communications and
non-content records to governmental entities except where authorized under § 2703
or other exceptions for disclosure to the government not applicable here).
 34

destruction a conceivable possibility. However, the likelihood that notice of the

subpoena to the government or Mr. Brown would have led to interference with or

the deletion of the evidence Mr. Pepe sought was speculative. We think it highly

unlikely that informing only the government of the subpoena would have introduced

any risk of spoliation; the government would have no interest in allowing evidence

to be destroyed and therefore no interest in informing Mr. Brown or his associates

of the request without appropriate precautions. Nor does the record make clear that

Mr. Brown or others would have been able to destroy information in Facebook’s

possession responsive to the subpoena even if they wanted to do so.66 But even

assuming the danger of spoliation of the subpoenaed material was sufficient to

justify a protective order of some kind and duration before Facebook secured that

material, that danger would, and did, cease after Facebook did so. Because Facebook

had the ability to preserve the information subject to Mr. Pepe’s request, the order

barring disclosure until after Facebook had complied with the subpoena was more

restrictive than was “essential to the protection of the particular [defense] interest

involved,” 67 and therefore interfered excessively with Facebook’s First Amendment

66
We must discount, as entirely hypothetical, the possibility that Brown, or
his associates, might have been inspired and able to destroy other, unknown
electronic evidence of value to the defense.
67
Brown, 218 F.3d at 429.
 35

rights. It would have been enough for the order to allow disclosure on Facebook’s

assurance (which it provided when it first appealed the nondisclosure order) that it

had preserved the requested materials from possible loss or destruction.

IV.

These now articulated rationales support our order of January 16, 2020,

affirming the Superior Court’s order holding Facebook in contempt and its order

denying Facebook’s motion to quash the subpoena, and vacating the Superior

Court’s nondisclosure order.