Last month, the D.C. Circuit in In re: Sealed Case, 2025 WL 2013687 (D.C. Cir. July 18, 2025) invalidated a non-disclosure order (“NDO”) that applied to prospectively issued subpoenas, holding that it failed to meet the statutory requirements in 18 U.S.C. § 2705(b) of the Stored Communications Act.
Section 2705(b) permits the government to apply for a non-disclosure order barring a provider from notifying a subscriber or customer that it has received legal process. A court must issue such an order if it finds “reason to believe” that disclosure would result in one of the statute’s enumerated harms, such as destruction of evidence or intimidation of potential witnesses.
In In re: Sealed Case, X Corp. moved to vacate or modify an magistrate court-issued NDO and associated “authorizing order” (together, “the NDO”), which barred disclosure of any subpoena—including not-yet-issued subpoenas—relating to a particular investigation for one year. X argued that the order was not authorized under § 2705(b) and violated the First Amendment. The district court denied X’s motion, finding that the NDO was statutorily authorized and constitutional. In re: Sealed Case, 2025 WL 2013687, at *1-2.
On appeal, the D.C. Circuit held that the NDO violated § 2705(b) because the magistrate court had not found “reason to believe” that notification of the existence of prospectively-issued subpoenas would result in the harms enumerated in § 2705(b). The court based this holding on two grounds:
- First, the NDO applied prospectively, allowing the government to apply the NDO to subsequently issued subpoenas. As a result, to make the necessary § 2705(b) finding, the magistrate court needed to have “reason to believe” that disclosure not only ”presently risks harm, but also … that risk of harm would still exist for a subpoena issued many months later.” Id. at *4. In other words, the magistrate judge could not base her “reason to believe” determination “on the facts as they were when the government submitted its application” because the subpoenas to which the NDO might eventually apply were not before her at that time. Id.
- Second, the court held that the NDO provided “no meaningful limit” on the potential targets of the future subpoenas. Id. at *5. Rather, the NDO “permitted the government to attach the NDO to any subpoena for user records of any account with any service provider that it determined was relevant to its investigation.” Id. (emphasis added). Because the NDO’s scope “was dictated in part by the reach of the government’s investigation, it would be difficult for a court to predict whose accounts might be subpoenaed.” Id.
The court concluded that given these facts, it would be “exceedingly difficult” for a magistrate court to “reasonably predict” what subpoenas might be covered by the NDO or have “a ‘reason to believe’ that disclosure of all those subpoenas ‘will result’ in harm.” Id. On this basis, the court reversed the district court’s judgment and invalidated the NDO. Because the court found that the NDO was invalid under § 2705(b), it declined to reach X’s alternative argument challenging the NDO on First Amendment grounds.