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UNITED STATES DISTRICT COURT UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON WESTERN DISTRICT OF WASHINGTON
AT SEATTLE AT SEATTLE MICROSOFT CORPORATION, MICROSOFT CORPORATION, Plaintiff, Plaintiff, v. v.
UNITED STATES DEPARTMENT UNITED STATES DEPARTMENT OF JUSTICE, OF JUSTICE, Defendant. Defendant. CASE NO. C16-0538JLR CASE NO. C16-0538JLR ORDER ON MOTION TO ORDER ON MOTION TO DISMISS DISMISS I. I. INTRODUCTIONINTRODUCTION
Before the court is Defendant United States Department of Justice’s (“the Before the court is Defendant United States Department of Justice’s (“the Government
Government”) motion to dismiss Plaintiff Microsoft Corporation’s”) motion to dismiss Plaintiff Microsoft Corporation’s first amendedfirst amended complaint.
complaint. (Mot. (Mot. (Dkt. (Dkt. # # 38).) 38).) Microsoft Microsoft opposes topposes the he GovernmentGovernment ’s ’s motion. motion. (Resp.(Resp. (Dkt. #
(Dkt. # 44).) 44).) The court has The court has considered the Governmentconsidered the Government’s motion, Microsoft’s opposition’s motion, Microsoft’s opposition to the Government
to the Government’s motion’s motion (Resp. (Dkt. # 44)), the Government (Resp. (Dkt. # 44)), the Government’s reply’s reply (Reply (Dkt. (Reply (Dkt. # 92)), the filings of amici (Amici Br.
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relevant portions of the record,
relevant portions of the record, and the applicable law. and the applicable law. In addition, the court hIn addition, the court heardeard argument from the parties on January 23, 2
argument from the parties on January 23, 2017. 017. (1/23/17 Min. Entry (Dkt. (1/23/17 Min. Entry (Dkt. # 105).)# 105).) Being fully advised, the court GRANTS IN PART and DENIES IN PART the Being fully advised, the court GRANTS IN PART and DENIES IN PART the Government
Government’s motion for the reasons set ’s motion for the reasons set forth below.forth below. II.
II. BACKGROUNDBACKGROUND A.
A. Statutory BackgroundStatutory Background
The Electronic Communications Privacy Act of 1986 (“ECPA”)
The Electronic Communications Privacy Act of 1986 (“ECPA”) , 18 U.S.C., 18 U.S.C. § 2510,
§ 2510, et seq.et seq.,, “addresses various areas of electronic surveillance, including“addresses various areas of electronic surveillance, including wiretaps,wiretaps, tracking devices, stored wire and electronic communications, pen registers, and trap and tracking devices, stored wire and electronic communications, pen registers, and trap and trace devices.”
trace devices.” SeeSee United States v. AndersonUnited States v. Anderson, No. 2:15-cr-00200-KJD-PAL, 2016 WL, No. 2:15-cr-00200-KJD-PAL, 2016 WL 4191045, at *7
4191045, at *7 (D. Nev. Apr. 2(D. Nev. Apr. 27, 2016). 7, 2016). ECPA addressesECPA addresses “electronic commun“electronic communicationsications services (e.g., the transfer of electronic messages, such as email, between computer users) services (e.g., the transfer of electronic messages, such as email, between computer users) and remote computing services (e.g., the provision of offsite computer storage or
and remote computing services (e.g., the provision of offsite computer storage or processing of data and files).”
processing of data and files).” In re Zynga Privacy L In re Zynga Privacy Litig.itig., 750 F.3d 1098, 1103 (9th Cir., 750 F.3d 1098, 1103 (9th Cir. 2014).
2014). Under Under ECPAECPA, an electronic communications service provider (“ECS provider”) is, an electronic communications service provider (“ECS provider”) is an entity that offers
an entity that offers “any service which provides to users thereof the ability to send or“any service which provides to users thereof the ability to send or receive wire or electronic communications,” 18 U.S.C. §
receive wire or electronic communications,” 18 U.S.C. § 2510(15), and a remote 2510(15), and a remote computing service provider (“RCS provider”) is
computing service provider (“RCS provider”) is an entity that provides “to thean entity that provides “to the public . . . computer storage or processing services by means of an electronic public . . . computer storage or processing services by means of an electronic
communications system,” 18 U.S.C. §
communications system,” 18 U.S.C. § 2711(2). 2711(2). A subscriber is A subscriber is a person who uses a person who uses one orone or more of those services.
more of those services. See, e.g.See, e.g.,, In re Application of the U In re Application of the U.S. for an Order Pursuant to.S. for an Order Pursuant to 18 U.S.C.
1 1 2 2 3 3 4 4 5 5 6 6 7 7 8 8 9 9 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 Title II of ECPA
Title II of ECPA —the Stored Communications Act (“ —the Stored Communications Act (“thethe SCA”)SCA”), 18 U.S.C., 18 U.S.C. § 2701,
§ 2701, et seq.et seq. —governs the government’s access to “electronic information stored in —governs the government’s access to “electronic information stored in third party computers.”
third party computers.” In re Zynga In re Zynga, 750 F.3d at 1104;, 750 F.3d at 1104; see alsosee also Stephen Wm. Smith, Stephen Wm. Smith, Gagged, Sealed & Delivered: Reforming ECPA’s Secret Docket
Gagged, Sealed & Delivered: Reforming ECPA’s Secret Docket , 6 H, 6 HARVARV.. L.L. && PPOLOL’’YY R
R EVEV. 313, 324 (2012) [hereinafter. 313, 324 (2012) [hereinafter ““ Reforming ECPA’s Secret Docket Reforming ECPA’s Secret Docket ”] (“Title II of the”] (“Title II of the ECPA . . . prescribes requirements and procedures under which the government can ECPA . . . prescribes requirements and procedures under which the government can obtain court orders (known as § 2703(d) orders) compelling access to stored wire and obtain court orders (known as § 2703(d) orders) compelling access to stored wire and electronic communications, as well as related subscriber and customer account
electronic communications, as well as related subscriber and customer account information.”)
information.”). . Two sections of the SCA, 18 U.S.C. Two sections of the SCA, 18 U.S.C. § 2703 and 18 U.S.C. § 2§ 2703 and 18 U.S.C. § 2705,705, “regulate relations between a government entity which seeks information; a service “regulate relations between a government entity which seeks information; a service provider which holds information; and the subscriber of the service who owns the provider which holds information; and the subscriber of the service who owns the
information and is therefore a target
information and is therefore a target of investigation.”of investigation.” In re Application of the U In re Application of the U.S..S., 131, 131 F. Supp. 3d at 1268.
F. Supp. 3d at 1268. The information sought from ECS and The information sought from ECS and RCS providers may containRCS providers may contain “content” or “
“content” or “non-contentnon-content” data.” data. Id. Id. Content includes items such as Content includes items such as emails andemails and
documents, while non-content data includes things like email addresses and IP addresses. documents, while non-content data includes things like email addresses and IP addresses. See, e.g.
See, e.g.,, Req. for Int’l Judicial Assistance from the Turkish Ministry of Justice Req. for Int’l Judicial Assistance from the Turkish Ministry of Justice , No., No. 16-mc-80108-JSC, 2016 WL 2957032, at *1 (N.D.
16-mc-80108-JSC, 2016 WL 2957032, at *1 (N.D. Cal. May 23, 2016);Cal. May 23, 2016); Integral Dev. Integral Dev. Corp. v. Tolat
Corp. v. Tolat , No. C 12-06575 JSW (LB), , No. C 12-06575 JSW (LB), 2013 WL 1389691, at *1 (N.D. Cal. 2013 WL 1389691, at *1 (N.D. Cal. May 30,May 30, 2013).
2013).
Section 2703 of the SCA
Section 2703 of the SCA authorizes the government to acquire a subscriber’sauthorizes the government to acquire a subscriber’s
information from a service provider when the subscriber is a “target” of the government’s information from a service provider when the subscriber is a “target” of the government’s information request.
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scheme pursuant to which a governmental entity can, after fulfilling certain procedural scheme pursuant to which a governmental entity can, after fulfilling certain procedural and notice requirements, obtain information from [a service provider] via administrative and notice requirements, obtain information from [a service provider] via administrative subpoena or grand jury or trial subpoena.”
subpoena or grand jury or trial subpoena.” Crispin v. Christian Audigier,Crispin v. Christian Audigier, Inc. Inc., 717 F., 717 F. Supp. 2d 965, 974-75
Supp. 2d 965, 974-75 (C.D. Cal. 2010) (citing 18 (C.D. Cal. 2010) (citing 18 U.S.C. § 2703(b)). U.S.C. § 2703(b)). Section 2703Section 2703 requires the government to give notice to subscribers that it has obtained their
requires the government to give notice to subscribers that it has obtained their information from a service provider in some but not all circumstances.
information from a service provider in some but not all circumstances. SeeSee 18 U.S.C. 18 U.S.C. § 2703(a)-(c) (describing various notice requirements for communication contents and § 2703(a)-(c) (describing various notice requirements for communication contents and records in electronic storage and remote computing services).
records in electronic storage and remote computing services).
Section 2705 of the SCA addresses when the government may withhold notice that Section 2705 of the SCA addresses when the government may withhold notice that is otherwise required under Section 2703.
is otherwise required under Section 2703. SeeSee 18 U.S.C. § 2705(a)-(b); 18 U.S.C. § 2705(a)-(b); In re Application In re Application of the U.S.
of the U.S., 131 F. Supp. 3d at , 131 F. Supp. 3d at 1268. 1268. Under Section 2705(a), the government may delayUnder Section 2705(a), the government may delay giving notice to the subscriber that the government has collected the subscriber’s
giving notice to the subscriber that the government has collected the subscriber’s information if certain requirements are met.
information if certain requirements are met. Id Id . at . at 1267. 1267. Under Section Under Section 2705(b), the2705(b), the government may apply fo
government may apply for “a preclusionr “a preclusion-of-notice order.-of-notice order.”” Id. Id. Such Such an an orderorder
“command[s] a provider of electronic communications service or remote computing “command[s] a provider of electronic communications service or remote computing service not to notify any person of the existence of a grand jury subpoena [or other service not to notify any person of the existence of a grand jury subpoena [or other acceptable court order under the SCA] which the Government has served on the acceptable court order under the SCA] which the Government has served on the provider.”
provider.” Id Id .;.; see also Reforming ECPA’s Secret Docket see also Reforming ECPA’s Secret Docket at 325 (“The SCA doesat 325 (“The SCA does authorize the cour
authorize the cour t to issue a gag order (called ‘preclusion of notice’t to issue a gag order (called ‘preclusion of notice’ ) to service) to service
providers, commanding them not to notify any other person of the existence of the court providers, commanding them not to notify any other person of the existence of the court
order.”)
order.”). . A A court court maymay issue such a “preclusionissue such a “preclusion-of--of-notice order” if the courtnotice order” if the court //
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determines that there is reason to believe that notification of the existence of determines that there is reason to believe that notification of the existence of the warrant, subpoena, or court order will result in (1) endangering the life the warrant, subpoena, or court order will result in (1) endangering the life or physical safety of an individual; (2) flight from prosecution; (3) or physical safety of an individual; (2) flight from prosecution; (3) destruction of or tampering with evidence; (4) intimidation of potential destruction of or tampering with evidence; (4) intimidation of potential witnesses; or (5) otherwise seriously jeopardizing an
witnesses; or (5) otherwise seriously jeopardizing an investigation or undulyinvestigation or unduly delaying a trial.
delaying a trial. 18 U.S.C. §
18 U.S.C. § 2705(b). 2705(b). “The combined “The combined effect of effect of [[Sections 2703] and 2705(b) is that theSections 2703] and 2705(b) is that the subscriber may never receive notice of a warrant to obtain content information from a subscriber may never receive notice of a warrant to obtain content information from a remote computing service and the government may seek an order under § 2705(b) that remote computing service and the government may seek an order under § 2705(b) that restrains the provider indefinitely from notifying the subscriber.”
restrains the provider indefinitely from notifying the subscriber.” In re Application of the In re Application of the U.S.
U.S., 131 F. Supp. 3d at 1271., 131 F. Supp. 3d at 1271.
Since Congress passed the SCA in 1986, the technological landscape has Since Congress passed the SCA in 1986, the technological landscape has changed considerably.
changed considerably. SeeSee Orin Kerr,Orin Kerr, The Next Generation Communications PrivacyThe Next Generation Communications Privacy Act
Act , 162 U., 162 U. PPAA.. L.L. R R EVEV.. 373, 375 (2014) (“In recent years, ECPA has become widely373, 375 (2014) (“In recent years, ECPA has become widely perceived as outdated.”);
perceived as outdated.”); see also id.see also id. at 376 (noting that at the time Congress passed at 376 (noting that at the time Congress passed ECPA, “[a]ccess to stored communications was a lesser concern,” but “[s]ervice ECPA, “[a]ccess to stored communications was a lesser concern,” but “[s]ervice providers now routinely store everything, and they can turn over everything to law providers now routinely store everything, and they can turn over everything to law
enforcement”).
enforcement”). As technology changes, the public has vigorously debated theAs technology changes, the public has vigorously debated the appropriate reach of
appropriate reach of the government’sthe government’s electronic surveillance of its citizens.electronic surveillance of its citizens. See, e.g.See, e.g.,, Reforming ECPA’s Secret Docket
Reforming ECPA’s Secret Docket at 313-14; Jonathan Manes, at 313-14; Jonathan Manes, Online Service ProvidersOnline Service Providers & Surveillance Law Technology
& Surveillance Law Technology, 125 Yale L.J. F. 343, 346 (Mar. 3, 2016) (“Over the, 125 Yale L.J. F. 343, 346 (Mar. 3, 2016) (“Over the past two-and-a-half years, we have had the most robust public discussion about
past two-and-a-half years, we have had the most robust public discussion about surveillance in a generation.”)
surveillance in a generation.”). . As former Magistrate As former Magistrate Judge Paul S. Judge Paul S. Grewal noted,Grewal noted, “[w]arrants for location data, cell phone records[,] and especially email rule the day.” “[w]arrants for location data, cell phone records[,] and especially email rule the day.” In In
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Matter of Search Warrant for [Redacte
Matter of Search Warrant for [Redacted]@hotmail.comd]@hotmail.com, 74 F. Supp. 3d 1184, 1185, 74 F. Supp. 3d 1184, 1185 (N.D. Cal. 2014).
(N.D. Cal. 2014). And according to And according to Magistrate Judge Stephen Wm. Smith,Magistrate Judge Stephen Wm. Smith, the “ECPAthe “ECPA docket . . .
docket . . . handles tens of thousands of secret cases every year.”handles tens of thousands of secret cases every year.” Reforming ECPA’s Reforming ECPA’s Secret Docket
Secret Docket at 313. at 313.
The public debate has intensified as people increasingly store their information in The public debate has intensified as people increasingly store their information in the cloud
the cloud 11 and on devices with significant storage capacity. and on devices with significant storage capacity. SeeSee In re Grand Jury In re Grand Jury Subpoena, JK-15-029
Subpoena, JK-15-029, 828 F.3d 1083, 1090 (9th Cir. 2016) (quoting, 828 F.3d 1083, 1090 (9th Cir. 2016) (quoting United States v.United States v. Cotterman
Cotterman, 709 F.3d 952, 964 (9th Cir. 2013)), 709 F.3d 952, 964 (9th Cir. 2013)) (noting that “electronic storage devices(noting that “electronic storage devices such as laptops ‘contain the most i
such as laptops ‘contain the most intimate details of our lives: ntimate details of our lives: financial records,financial records,
confidential business documents, medical records[,] and private emails,’” which “‘are confidential business documents, medical records[,] and private emails,’” which “‘are expected to be kept private’”)
expected to be kept private’”). . Government surveillance Government surveillance aided by aided by service providersservice providers creates unique considerations because of the vast amount of data service providers have creates unique considerations because of the vast amount of data service providers have about
about their their customers. customers. For For example,example, “[i]“[i]nternet service providers know the websites wenternet service providers know the websites we have viewed.
have viewed. Google keeps Google keeps records of records of our searches. our searches. Facebook keeps records Facebook keeps records of ourof our ‘friends,’
‘friends,’ our communicati our communications, and what we ‘like.’”ons, and what we ‘like.’” Online Service Providers &Online Service Providers & Surveillance Law Technology
Surveillance Law Technology at at 349. 349. These developments have lThese developments have led several courts ed several courts toto conclude that certain material stored with providers deserves constitutional protection. conclude that certain material stored with providers deserves constitutional protection. See, e.g.
See, e.g.,, In re Grand Jury Subpoena In re Grand Jury Subpoena, 828 F.3d at 1090 (, 828 F.3d at 1090 (“[E]mails are to be treated as“[E]mails are to be treated as
1
1 The “cloud” is “a metaphor The “cloud” is “a metaphor for the ethereal internet.”for the ethereal internet.” In re In reU.S.’s Application for aU.S.’s Application for a Search Warrant to Seize & Search Elec. Devices from Edward Cunnius
Search Warrant to Seize & Search Elec. Devices from Edward Cunnius, 770 F. Supp. 2d 1138,, 770 F. Supp. 2d 1138, 1144 n.5 (W.D. Wash. 2011
1144 n.5 (W.D. Wash. 2011) (internal quotations omitted) (quoting David A. Couillard,) (internal quotations omitted) (quoting David A. Couillard,
Defogging the Cloud: Applying Fourth Amendment Principles to Evolving Privacy Expectations Defogging the Cloud: Applying Fourth Amendment Principles to Evolving Privacy Expectations
in Cloud Computing
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closed, addressed packages for
expectation-of-closed, addressed packages for expectation-of- privacy purposes.”) privacy purposes.”);; Search of Info.Search of Info. Associated with Email A
Associated with Email Addresses Stored at Premises Controllddresses Stored at Premises Controlled by Microsoft Corp.ed by Microsoft Corp.,, F. Supp. 3d
--- F. Supp. 3d ---, 2016 WL 5410401, at *8 , 2016 WL 5410401, at *8 (D. Kan. Sept. 28, 2016) (“In c(D. Kan. Sept. 28, 2016) (“In considering theonsidering the email context specifically, courts have
email context specifically, courts have held an individual enjoys a right to held an individual enjoys a right to privacy in hisprivacy in his or her emails.”);
or her emails.”); United States v. Warshak United States v. Warshak , 631 F.3d 266, 288 (6th Cir. 2010) (holding, 631 F.3d 266, 288 (6th Cir. 2010) (holding that “a subscriber enjoys a reasonable expectation of privacy in the contents of emails”). that “a subscriber enjoys a reasonable expectation of privacy in the contents of emails”). B.
B. This LawsuitThis Lawsuit
Against this statutory and technological backdrop, Microsoft
Against this statutory and technological backdrop, Microsoft22 filed this suit on filed this suit on April 14, 2016 (Compl. (Dkt. # 1)), and later amended its complaint on June 17, 2016 April 14, 2016 (Compl. (Dkt. # 1)), and later amended its complaint on June 17, 2016 (FAC
(FAC (Dkt. (Dkt. # # 28)). 28)). Microsoft Microsoft seeks dseeks declaratory relief. eclaratory relief. ((See id.See id. ¶¶ 33, 41.) ¶¶ 33, 41.) The gravamenThe gravamen of Microsoft’s complaint is that Section 2705(b) is
of Microsoft’s complaint is that Section 2705(b) is unconstitutional under the First andunconstitutional under the First and Fourth Amendments and that Section 2703 is unconstitutional under the Fourth
Fourth Amendments and that Section 2703 is unconstitutional under the Fourth Amendment “to the extent it
Amendment “to the extent it absolves the government of the absolves the government of the obligation to give notice to aobligation to give notice to a customer whose content it obtains by warrant, without regard to the circumstances of the customer whose content it obtains by warrant, without regard to the circumstances of the particular case
particular case.” .” (( Id. Id. ¶ 35. ¶ 35.) ) In Microsoft’s In Microsoft’s view, “the view, “the government has increasinglygovernment has increasingly
adopted the tactic of obtaining the private digital documents of cloud customers not from adopted the tactic of obtaining the private digital documents of cloud customers not from the customers themselves, but through legal process directed at online cloud providers the customers themselves, but through legal process directed at online cloud providers like
like Microsoft.” Microsoft.” (( Id. Id. ¶ 4. ¶ 4.) ) The government tThe government then “seeks secrecy orders hen “seeks secrecy orders under 18 under 18 U.S.C.U.S.C. § 2705(b) to prevent Microsoft from telling its customers
§ 2705(b) to prevent Microsoft from telling its customers (or anyone else) of (or anyone else) of thethe government’s demands”
government’s demands” for tfor that ihat information. nformation. (( Id. Id.) ) According to According to Microsoft, “[t]he Microsoft, “[t]he vastvast
2
2 Microsoft is both an ECS provider and an Microsoft is both an ECS provider and an RCS provider.RCS provider. See CrispinSee Crispin, 717 F. Supp. 2d, 717 F. Supp. 2d
at 978 (citing
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majority of these secrecy orders relate[] to consumer accounts and prevent Microsoft majority of these secrecy orders relate[] to consumer accounts and prevent Microsoft from telling affected individuals about the government’s intrus
from telling affected individuals about the government’s intrus ion into their personalion into their personal affairs; others prevent Microsoft from telling business customers that the government has affairs; others prevent Microsoft from telling business customers that the government has searched and seized the emails
searched and seized the emails of individual of individual employees of the customer.” employees of the customer.” (( Id. Id. ¶ 16.) ¶ 16.) Microsoft alleges that federal courts have issued “more
Microsoft alleges that federal courts have issued “more than 3,250 secrecy orders” over athan 3,250 secrecy orders” over a 20-month period ending in May 2016, and
20-month period ending in May 2016, and that nearly two-thirds of those orders are that nearly two-thirds of those orders are forfor an indefinite
an indefinite length of length of time. time. (( Id. Id. ¶ 5.) ¶ 5.)
Microsoft contends that Section 2705(b) is unconstitutional faciall
Microsoft contends that Section 2705(b) is unconstitutional faciall y and as appliedy and as applied becaus
because it violates the First Amee it violates the First Amendment right of a business to “tandment right of a business to “talk to [the business’s]lk to [the business’s] customers and to
customers and to discuss how the govdiscuss how the government conducts its inernment conducts its investigations.” vestigations.” (( Id. Id. ¶ 1.) ¶ 1.) Specifically, Microsoft contends that Section 2705(b) is overbroad, imposes
Specifically, Microsoft contends that Section 2705(b) is overbroad, imposes impermissible prior restraints on speech, imposes impermissible content-based impermissible prior restraints on speech, imposes impermissible content-based restrictions on speech, and improperly inhibits the public’s right to access search restrictions on speech, and improperly inhibits the public’s right to access search warrants. (
warrants. ( Id. Id. ¶¶ 23-26.) ¶¶ 23-26.)
Microsoft also alleges that Sections 2705(b) and 2703 are unconstitutional facially Microsoft also alleges that Sections 2705(b) and 2703 are unconstitutional facially and as applied because they violate the Fourth Amendment right of “people and
and as applied because they violate the Fourth Amendment right of “people and businesses . . .
businesses . . . to know if to know if the government searches or the government searches or seizes their property.” seizes their property.” (( Id. Id. ¶ 33.) ¶ 33.) Microsoft contends that the statutes are facially invalid because they allow the
Microsoft contends that the statutes are facially invalid because they allow the
government to (1) forgo notifying individuals of searches and seizures, and (2) obtain government to (1) forgo notifying individuals of searches and seizures, and (2) obtain secrecy orders that “prohibit providers from telling customers when the government has secrecy orders that “prohibit providers from telling customers when the government has accessed their private information” without constitutionally suffi
accessed their private information” without constitutionally suffi cient proof and withoutcient proof and without sufficient
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are unconstitutional as applied because “[t]he absence of a government notice obligation, are unconstitutional as applied because “[t]he absence of a government notice obligation, combined with the imposition of secrecy orders on Microsoft, has resulted, and will
combined with the imposition of secrecy orders on Microsoft, has resulted, and will continue to result, in unconstitutional delay of notice to Microsoft’s
continue to result, in unconstitutional delay of notice to Microsoft’s customers, incustomers, in violation of
violation of their Fourth their Fourth Amendment rights.” Amendment rights.” (( Id. Id. ¶ ¶ 40.) 40.) Microsoft asserts tMicrosoft asserts that it hat it hashas third-party standing to vindicate its customers
third-party standing to vindicate its customers ’ rights to notice of search and seizure’ rights to notice of search and seizure under
under the the Fourth Fourth Amendment. Amendment. (( Id. Id. ¶¶ 38-39.) ¶¶ 38-39.) The Government moves
The Government moves to dismiss Microsoft’s first amended complaint for lackto dismiss Microsoft’s first amended complaint for lack of standing
of standing and failure tand failure to state o state a claim. a claim. ((SeeSee Mot.) Mot.) III.
III. ANALYSISANALYSIS A.
A. Legal StandardsLegal Standards 1.
1. Motion to Dismiss Under Rule 12(b)(1)Motion to Dismiss Under Rule 12(b)(1)
““Article III of the ConArticle III of the Constitution limits federal courts’stitution limits federal courts’ jurisdiction to certain ‘Cases’ jurisdiction to certain ‘Cases’
and
and ‘Controversies.’”‘Controversies.’” Clapper v. Amnesty Int’l USAClapper v. Amnesty Int’l USA, --- U.S. ---, 133 S. , --- U.S. ---, 133 S. Ct. 1138, 1146Ct. 1138, 1146
(2013).
(2013). The case or controversy The case or controversy requirement demands that a plaintirequirement demands that a plaintiff have standing.ff have standing. SeeSee
id.
id.;;see also Spokeo, Inc. v. see also Spokeo, Inc. v. RobinsRobins, --- U.S. ---, --- U.S. ---, 136 S. Ct. 1540, 1547 (2016) (“Standing, 136 S. Ct. 1540, 1547 (2016) (“Standing
to sue is a doctrine rooted
to sue is a doctrine rooted in the traditional understanding of a case in the traditional understanding of a case or controversy.”)or controversy.”). To. To
establish standing,
establish standing, a plaintiff ma plaintiff must demonstrate tust demonstrate three elements: hree elements: (1)(1) a “concrete,a “concrete,
particularized, and actual or imminent” injury
particularized, and actual or imminent” injury that is (2) that is (2) “fairly traceable to the“fairly traceable to the
challenged action”
challenged action” and (3) and (3) “redressable by a favorable ruling“redressable by a favorable ruling..”” Monsanto Co. v. Monsanto Co. v.
Geertson Seed Farms
Geertson Seed Farms, 561 U.S. , 561 U.S. 139, 149 (2010). 139, 149 (2010). These requirements are moreThese requirements are more
succinctly referred to as injury, causation, and redressability.
succinctly referred to as injury, causation, and redressability. Nw. Immigrant Rights Nw. Immigrant Rights
//
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Project v. United States Citizenship & Immigration Servs.
Project v. United States Citizenship & Immigration Servs., --- F.R.D. ---, 2016 WL, --- F.R.D. ---, 2016 WL
5817078, at *6 (W.D. Wash. Oct. 5, 2016).
5817078, at *6 (W.D. Wash. Oct. 5, 2016).
Special standing considerations apply to a declaratory judgment action.
Special standing considerations apply to a declaratory judgment action.
“Declaratory judgment is not a corrective remedy and should not be used to remed
“Declaratory judgment is not a corrective remedy and should not be used to remedy pasty past
wrongs.”
wrongs.” Williams v. Bank of Am.Williams v. Bank of Am., No. 2:12-cv-2513 JAM AC PS, , No. 2:12-cv-2513 JAM AC PS, 2013 WL 1907529, at2013 WL 1907529, at
*5-6 (E.D.
*5-6 (E.D. Cal. May Cal. May 7, 2013). 7, 2013). AccordinglyAccordingly, when a “plaintiff[] seeks declaratory and, when a “plaintiff[] seeks declaratory and
injunctive relief only,
injunctive relief only,” “” “there is a further requirement that [the plaintiff] show a verythere is a further requirement that [the plaintiff] show a very
significant possibility of future harm
significant possibility of future harm”” in addition to the three Article III standing in addition to the three Article III standing
elements.
elements. See San Diego Cty. Gun Rights See San Diego Cty. Gun Rights Comm. v. RenoComm. v. Reno, 98 F.3d 1121, 1126 (9th Cir., 98 F.3d 1121, 1126 (9th Cir.
1996);
1996); see also Canatella v. Californiasee also Canatella v. California, 304 F.3d 843, 852 (9th Cir. 2002), 304 F.3d 843, 852 (9th Cir. 2002) (“In the(“In the
particular context of injunctive and
particular context of injunctive and declaratorydeclaratory relief relief , a plaintiff must show that he , a plaintiff must show that he hashas
suffered or is threatened with a concrete and particularized legal harm . . . coupled with a
suffered or is threatened with a concrete and particularized legal harm . . . coupled with a
sufficient likelihood that he will again be wronged
sufficient likelihood that he will again be wronged in a similar way.” (citations ain a similar way.” (citations andnd
internal quotation marks omitted));
internal quotation marks omitted)); Sample v. JohnsonSample v. Johnson, 771 F.2d 1335, 1340 (9th Cir., 771 F.2d 1335, 1340 (9th Cir.
1985) (“[P]laintiffs must demonstrate a credible threat exists that they will again be
1985) (“[P]laintiffs must demonstrate a credible threat exists that they will again be
subject to the specific injury for which they seek injunctive or declaratory relief.”
subject to the specific injury for which they seek injunctive or declaratory relief.”
(internal quotations omitted)).
(internal quotations omitted)). In other words, a plaintiff may not “In other words, a plaintiff may not “demonstrate only ademonstrate only a
past injury.”
past injury.” San Diego Cty. Gun RightsSan Diego Cty. Gun Rights, 98 F.3d at 1126., 98 F.3d at 1126.
“The plaintiff, as the party invoking federal
“The plaintiff, as the party invoking federal jurisdiction, bears the burden ofjurisdiction, bears the burden of
establishing these elements.”
establishing these elements.” SpokeoSpokeo, 136 S. Ct. at 1547., 136 S. Ct. at 1547. “Where“Where . . . a case is at the . . . a case is at the pleading stage, the plaintiff must ‘clearly
pleading stage, the plaintiff must ‘clearly . . . allege fa . . . allege facts demonstrating’ each element,”cts demonstrating’ each element,” id.
1 1 2 2 3 3 4 4 5 5 6 6 7 7 8 8 9 9 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22
standing claim by claim,
standing claim by claim,”” Antman v. Uber Tec Antman v. Uber Techs., Inc.hs., Inc., No. 15-cr-01175-LB, 2015 WL, No. 15-cr-01175-LB, 2015 WL 6123054, at *9 (N.D. Cal. Oct. 19,
6123054, at *9 (N.D. Cal. Oct. 19, 2015).2015). “When a motion to dismiss attacks“When a motion to dismiss attacks subject-matter jurisdiction under Rule 12(b)(1) on the fac
subject-matter jurisdiction under Rule 12(b)(1) on the face of the complaint, the courte of the complaint, the court assumes the factual allegations in the complaint are true and draws all reasonable assumes the factual allegations in the complaint are true and draws all reasonable inferences in the plaintiff
inferences in the plaintiff ’s favor.”’s favor.” City of L.A. v. JPMorgan Chase & Co.City of L.A. v. JPMorgan Chase & Co., 22 F. Supp., 22 F. Supp. 3d 1047, 1052 (C.D. Cal. 2014).
3d 1047, 1052 (C.D. Cal. 2014). “The jurisdictional question of standing precedes, and“The jurisdictional question of standing precedes, and
does not require, analysis of the merits
does not require, analysis of the merits””of the plaintiff’s claims.of the plaintiff’s claims. Equity Lifestyle P Equity Lifestyle Props.,rops.,
Inc. v. Cty. of San Luis Ob
Inc. v. Cty. of San Luis Obispoispo, 548 F.3d 1184, 1189 n.10 (9th Cir. 2007)., 548 F.3d 1184, 1189 n.10 (9th Cir. 2007).
2.
2. Motion to Dismiss Under Rule 12(b)(6)Motion to Dismiss Under Rule 12(b)(6)
When considering a motion to dismiss under Federal Rule of Civil Procedure When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court construes the complaint in t
12(b)(6), the court construes the complaint in the light most favorable to the nonmovinghe light most favorable to the nonmoving party.
party. Livid Holdings Ltd. v Livid Holdings Ltd. v. Salomon Smith Barney, I. Salomon Smith Barney, Inc.nc., 416 F.3d 940, 946 (9th Cir., 416 F.3d 940, 946 (9th Cir. 2005).
2005). The court must accept The court must accept all well-pleaded allegations of all well-pleaded allegations of material fact as true material fact as true andand draw all reasonable inferences in favor of the plaintiff.
draw all reasonable inferences in favor of the plaintiff. See Wyler Summit P’ship v.See Wyler Summit P’ship v. Turner Broad. Sys., Inc.
Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir. 199, 135 F.3d 658, 661 (9th Cir. 199 8). 8). “To survive “To survive a motion a motion toto dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), 556 U.S. 662, 678 (2009) (quoting
(quoting Bell Atl. Corp. v. Twomb Bell Atl. Corp. v. Twomblyly, 550 U.S. 544, 570 (2007));, 550 U.S. 544, 570 (2007)); see also Telesaurussee also Telesaurus VPC, LLC v. Power
VPC, LLC v. Power , 623 F.3d 998, 1003 (9th Cir. 2010). , 623 F.3d 998, 1003 (9th Cir. 2010). “A claim has facial plausibility“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
inference that the defendant is liable for the misconduct alleged.” Iqbal Iqbal, 556 U.S. at 678., 556 U.S. at 678. //
1 1 2 2 3 3 4 4 5 5 6 6 7 7 8 8 9 9 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 B.
B. First Amendment ClaimFirst Amendment Claim The Government
The Government contends that Microsoft’scontends that Microsoft’s First Amendment challenge fails onFirst Amendment challenge fails on several grounds.
several grounds. The court addresses The court addresses each of the each of the Government’s argumentsGovernment’s arguments in turn. in turn. 1.
1. StandingStanding
The Government first argues that Microsoft lacks standing to challenge Section The Government first argues that Microsoft lacks standing to challenge Section 2705(b) under the First Amendment because Microsoft fails to identity a concrete and 2705(b) under the First Amendment because Microsoft fails to identity a concrete and particularized injury or a favorable judgment that would redress Microsoft’s alleged particularized injury or a favorable judgment that would redress Microsoft’s alleged
injury.
injury. (Mot. at (Mot. at 10-13.) 10-13.) Specifically, the Specifically, the Government argues Government argues that Microsoft that Microsoft has nothas not identified a concrete and particularized injury and contends that a favorable judgment identified a concrete and particularized injury and contends that a favorable judgment would not
would not redress Microsoft’s alleged injuryredress Microsoft’s alleged injury. . ((See id.See id. at 10-12.) at 10-12.) a.
a. Injury in Fact and Lik Injury in Fact and Likelihood of Future Injuryelihood of Future Injury “To establish injury in fact, a
“To establish injury in fact, a plaintiff must show that he or she sufplaintiff must show that he or she suffered ‘anfered ‘an
invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’”
imminent, not conjectural or hypothetical.’” SpokeoSpokeo, 136 S. Ct. at 1548 (quoting, 136 S. Ct. at 1548 (quoting Lujan v. Lujan v. Defenders of Wildlif
Defenders of Wildlifee, 504 U.S. 555, 560 , 504 U.S. 555, 560 (1992)). (1992)). An injury is particularized An injury is particularized when itwhen it “affect[s] the plaintiff in a personal and individual way.”
“affect[s] the plaintiff in a personal and individual way.” Lujan Lujan, 504 , 504 U.S. at U.S. at 560 n.1. 560 n.1. AnAn injury is concrete when it actually exists.
injury is concrete when it actually exists. See SpokeoSee Spokeo, 136 S. Ct, 136 S. Ct. at 1548 (“A ‘concrete’. at 1548 (“A ‘concrete’ injury must be ‘de facto’; that is,
injury must be ‘de facto’; that is, it must actually exist.”).it must actually exist.”). In additiIn addition, because on, because it seeksit seeks declaratory relief, Microsoft must allege
declaratory relief, Microsoft must allege a likelihood of future injury.a likelihood of future injury. SeeSee CanatellaCanatella, 304, 304
F.3d at 852.
F.3d at 852.
Microsoft alleges that Section 2705(b) impinges on its
Microsoft alleges that Section 2705(b) impinges on its First Amendment rightsFirst Amendment rights because the statute allows court orders that imposes prior restraints and content-based because the statute allows court orders that imposes prior restraints and content-based
1 1 2 2 3 3 4 4 5 5 6 6 7 7 8 8 9 9 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 restrictions
restrictions on on speech. speech. ((SeeSee FAC ¶¶ FAC ¶¶ 24 (“The statute authorizes secrecy orders that24 (“The statute authorizes secrecy orders that prohibit,
prohibit, ex anteex ante, providers such as Microsoft from engaging in core protected speech, providers such as Microsoft from engaging in core protected speech under the First Amendment, i.e., speech about the government’s access to customers’ under the First Amendment, i.e., speech about the government’s access to customers’ sensitive communications and documents and its increased surveillance on
sensitive communications and documents and its increased surveillance on the Internet.”),the Internet.”), 2
25 (“Secrecy orders issued under Section 2705(b) also function as content5 (“Secrecy orders issued under Section 2705(b) also function as content -based-based restrictions on speech . . .
restrictions on speech . . . .”).) .”).) Microsoft also asserts Microsoft also asserts that orders that orders issued underissued under SectionSection 2705(b) “improperly inhibit the public’s right of access
2705(b) “improperly inhibit the public’s right of access to search warrants under to search warrants under botbot h theh the common law
common law and the and the First Amendment.” First Amendment.” (( Id. Id. ¶ 26 ¶ 26.) .) In its In its response to the response to the GovernmentGovernment’s’s motion,
motion, Microsoft contends that it has suffered “thousands of concrete, particularizedMicrosoft contends that it has suffered “thousands of concrete, particularized injuries” in the form of “the secrecy orders to which Microsoft has been sub
injuries” in the form of “the secrecy orders to which Microsoft has been sub ject since ject since 2014.”
2014.” (Resp. at 12 (emphasis (Resp. at 12 (emphasis omitted) (citing FAC omitted) (citing FAC ¶¶ 16).) 16).) Microsoft further Microsoft further argues thatargues that “Section 2705(b) also inflicts economic injury on Microsoft by eroding customer
“Section 2705(b) also inflicts economic injury on Microsoft by eroding customer confidence in
confidence in its its cloud services.” cloud services.” (( Id. Id. at 13 (citing FAC ¶¶ 5, 39)); at 13 (citing FAC ¶¶ 5, 39)); see alsosee also San DiegoSan Diego Cty. Gun Rights
Cty. Gun Rights, 98 F.3d at 1130, 98 F.3d at 1130 (“E(“Economic injury is clearly a sufficient basis forconomic injury is clearly a sufficient basis for standing.”
standing.”).). Microsoft contends that the Government’s argumentsMicrosoft contends that the Government’s arguments regarding the injuryregarding the injury element
element are misplaced because the arguments “preview the Government’sare misplaced because the arguments “preview the Government’s flawed merits flawed merits argument that Section 2705(b) passes constitutional muster, just because some 2705(b) argument that Section 2705(b) passes constitutional muster, just because some 2705(b) orders must
orders must be constitutibe constitutional.” onal.” ((Resp. at 13.)Resp. at 13.)
The court finds that Microsoft has sufficiently alleged an injury-in-fact and a The court finds that Microsoft has sufficiently alleged an injury-in-fact and a likelihood
likelihood of future of future injury. injury. Microsoft allegesMicrosoft alleges “an invasion of” its ““an invasion of” its “legally protectedlegally protected interest
1 1 2 2 3 3 4 4 5 5 6 6 7 7 8 8 9 9 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22
orders issued pursuant to Section 2705(b).
orders issued pursuant to Section 2705(b).33 (FAC (FAC ¶¶¶¶ 1 (“[Section 2705(b)]1 (“[Section 2705(b)] violates . . .
violates . . . the First Amendment, which enshrines Microsoft’s rights to talk to itsthe First Amendment, which enshrines Microsoft’s rights to talk to its customers and to discuss how the government conducts its investigations . . .
customers and to discuss how the government conducts its investigations . . . .”);.”); 55 (alleging that
non-(alleging that non-disclosure orders “have impaired Microsoft’sdisclosure orders “have impaired Microsoft’s right to be transparent right to be transparent with its customers, a right guaranteed by the First Amendment”
with its customers, a right guaranteed by the First Amendment” ); 24; ); 24; 32-33.) 32-33.) The courtThe court concludes that Section 2705(b) orders that indefinitely prevent Microsoft from speaking concludes that Section 2705(b) orders that indefinitely prevent Microsoft from speaking about government investigations implicate Microsoft’s F
about government investigations implicate Microsoft’s F irst Amendment rights.irst Amendment rights.
First Amendment rights must be balanced against “the substantial burden openness First Amendment rights must be balanced against “the substantial burden openness [may] impose on government investigations.
[may] impose on government investigations.”” Times Mirror Co. v. United StatesTimes Mirror Co. v. United States, 873, 873 F.2d 1210, 1217 (9th Cir. 1989) (holding that the First Amendme
F.2d 1210, 1217 (9th Cir. 1989) (holding that the First Amendme nt did not guaranteent did not guarantee public access to warrant applications while a pre-indictment investigation was ongoing, public access to warrant applications while a pre-indictment investigation was ongoing, but declining to decide whether there was such a right post-indictment);
but declining to decide whether there was such a right post-indictment); see also In resee also In re § 2703(d)
§ 2703(d), 787 F. Supp. 2d 430, 438 , 787 F. Supp. 2d 430, 438 (E.D. Va. 2011) (noting that First A(E.D. Va. 2011) (noting that First Amendmentmendment interests may have to “yield to the investigatory process” under certain circumstances) interests may have to “yield to the investigatory process” under certain circumstances) .. In at least some circumstances, however,
In at least some circumstances, however, the Government’s interest in keepingthe Government’s interest in keeping
investigations secret dissipates after an investigation concludes and at that point, First investigations secret dissipates after an investigation concludes and at that point, First Amendment rights may outweigh the Government interest in secrecy.
Amendment rights may outweigh the Government interest in secrecy. See In re SealingSee In re Sealing & Non-Disclosure of Pen/Trap/2703(d) Orders
& Non-Disclosure of Pen/Trap/2703(d) Orders, 562 F. Supp. 2d 876 (S.D. T, 562 F. Supp. 2d 876 (S.D. Tex. 2008);ex. 2008); In In Matter of Search Warrant
Matter of Search Warrant , 74 F. Supp. 3d at, 74 F. Supp. 3d at 1186 (“If the court were dealing with a1186 (“If the court were dealing with a
3
3 In arguing that Microsoft has failed to state a First Amendment In arguing that Microsoft has failed to state a First Amendment claim, the Governmentclaim, the Government
argues that Microsoft does not have an
argues that Microsoft does not have an “absolute right” to speak about the “absolute right” to speak about the Government’sGovernment’s investigations.
1 1 2 2 3 3 4 4 5 5 6 6 7 7 8 8 9 9 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22
grand jury subpoena, with its historical presumption of s
grand jury subpoena, with its historical presumption of s ecrecy, perhaps an infinite periodecrecy, perhaps an infinite period of Microsoft silence would be appropr
of Microsoft silence would be appropriate. iate. But in the absence of such a hBut in the absence of such a historicalistorical
presumption, the First Amendment rights of both Microsoft and the public, to say nothing presumption, the First Amendment rights of both Microsoft and the public, to say nothing
of the rights of the target, must be given at least some consideration.”)
of the rights of the target, must be given at least some consideration.”) . . When When thethe government’s
government’s concern d concern d issipates, the First Amendment’s protection of speech aboutissipates, the First Amendment’s protection of speech about governmental activity
governmental activity — — including criminal investigationsincluding criminal investigations — — warrants consideration.warrants consideration. SeeSee Gentile v. State Bar of Nev.
Gentile v. State Bar of Nev., 501 U.S. 1030, 1034 (1991) (“There , 501 U.S. 1030, 1034 (1991) (“There is no question thatis no question that speech critical of the exercise of the State’s power lies at the very center of the First speech critical of the exercise of the State’s power lies at the very center of the First Amendment.”);
Amendment.”); Landmark Co Landmark Commc’ns., Inc. v. V mmc’ns., Inc. v. V irginiairginia, 435 U.S. 829, 838 (1978), 435 U.S. 829, 838 (1978) (“[T]here is practically universal agreement that a major purpose of [the First] (“[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs.”). Amendment was to protect the free discussion of governmental affairs.”).
Accordingly, the court concludes that Microsoft has adequately alleged an injury Accordingly, the court concludes that Microsoft has adequately alleged an injury to a
to a “legally protected interest.”“legally protected interest.” For example, the Southern District of Texas consideredFor example, the Southern District of Texas considered whether “electronic surveillance court orders may properly be kept secret, by sealing and whether “electronic surveillance court orders may properly be kept secret, by sealing and non-disclosure provisions, for an indefinite period beyond the underlying criminal
non-disclosure provisions, for an indefinite period beyond the underlying criminal investigation.”
investigation.” Id. Id. at at 877. 877. TThe court concluded that “setting a fixed expiration date onhe court concluded that “setting a fixed expiration date on sealing and non-disclosure of electronic surveillance orders is not merely better practice, sealing and non-disclosure of electronic surveillance orders is not merely better practice, but required by . . . the First Amendment prohibition against prior restraint of speech but required by . . . the First Amendment prohibition against prior restraint of speech .”.” Id.
Id. at 878. at 878. In a case involving grand jury In a case involving grand jury proceedings, the Supreme Court similarly heldproceedings, the Supreme Court similarly held that
that a “Florida law [that] prohibit[ed] a graa “Florida law [that] prohibit[ed] a grand jury witness from disclosing his ownnd jury witness from disclosing his own
testimony after the term of the grand jury has ended . . . violates the First Amendment to testimony after the term of the grand jury has ended . . . violates the First Amendment to the United States Constitution.
1 1 2 2 3 3 4 4 5 5 6 6 7 7 8 8 9 9 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22
finally, the Ninth Circuit Court of Appeals decided
finally, the Ninth Circuit Court of Appeals decided that there is no First Amendmethat there is no First Amendment rightnt right to access warrant application materials during an ongoing investigation pre-indictment, to access warrant application materials during an ongoing investigation pre-indictment, but expressly left open the question of whether the public has such a right after an
but expressly left open the question of whether the public has such a right after an indictment issues.
indictment issues. Times Mirror Co.Times Mirror Co., 873 F.2d at 1217;, 873 F.2d at 1217; see also United States v. Bus. ofsee also United States v. Bus. of Custer Battlefield Museum & Store
Custer Battlefield Museum & Store, 658 F.3d 1188, 1194-95 (9th Cir. 2011) (stating that, 658 F.3d 1188, 1194-95 (9th Cir. 2011) (stating that the Ninth Circuit had
the Ninth Circuit had “expressly reserved whether the public has a constitutional right of“expressly reserved whether the public has a constitutional right of access after an investigation has been terminated
access after an investigation has been terminated ”).”). These cases either necessarily implyThese cases either necessarily imply or suggest that indefinite non-disclosure orders that e
or suggest that indefinite non-disclosure orders that extend beyond the life of axtend beyond the life of an ongoingn ongoing investigation implicate First Amendment rights.
investigation implicate First Amendment rights.
In addition to alleging an injury to a legally protected interes
In addition to alleging an injury to a legally protected interes t, Microsoftt, Microsoft adequately alleges that th
adequately alleges that this “invasion”is “invasion” is is ““ particularized particularized ”” because the injury Microsoft because the injury Microsoft complains of
complains of “affect[s]“affect[s] [Microsoft][Microsoft] in a personal and individual way.”in a personal and individual way.” Lujan Lujan, 504 U.S. at, 504 U.S. at 560 n.1.
560 n.1. Microsoft’s alleged injury isMicrosoft’s alleged injury is also concrete because Microsoft alleges that it hasalso concrete because Microsoft alleges that it has personally been subjected to thousands of indefinite non-disclosure orders that implicate personally been subjected to thousands of indefinite non-disclosure orders that implicate
its
its First First Amendment Rights. Amendment Rights. ((See, e.g.See, e.g., FAC ¶ 5);, FAC ¶ 5); see alsosee also SpokeoSpokeo, 136 S. Ct. at 1548, 136 S. Ct. at 1548 (“A ‘concrete’ injury must be ‘de facto’; that is, it must actually exist.”)
(“A ‘concrete’ injury must be ‘de facto’; that is, it must actually exist.”) For For thesethese reasons, the court concludes that Microsoft has adequately alleged an injury-in-fact. reasons, the court concludes that Microsoft has adequately alleged an injury-in-fact.
The Government makes several arguments to demonstrate that Microsoft has not The Government makes several arguments to demonstrate that Microsoft has not alleged a First Amendment injury, but those arguments flow from the same premises: alleged a First Amendment injury, but those arguments flow from the same premises: that the nondisclosure orders to which Micros
that the nondisclosure orders to which Microsoft is subject under Section 2705(b) containoft is subject under Section 2705(b) contain different terms, were issued according to the specific context in which they arose, and different terms, were issued according to the specific context in which they arose, and require individualized consideration
1 1 2 2 3 3 4 4 5 5 6 6 7 7 8 8 9 9 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 Mot. at 11.)
Mot. at 11.) Essentially, the Government argues tEssentially, the Government argues that Microsoft alleges a hat Microsoft alleges a generalizedgeneralized grievance that
grievance that cannot confer cannot confer standing. standing. ((SeeSee Reply at 2-3.) Reply at 2-3.) The
The court court is uis unpersuaded. npersuaded. AA generalized grievance is an “asserted harm” that isgeneralized grievance is an “asserted harm” that is “shared in substantially equal measure by all or a large class of citizens.”
“shared in substantially equal measure by all or a large class of citizens.” WarthWarth, 422, 422 U.S. at
U.S. at 499. 499. Accordingly, a Accordingly, a generalized grievancegeneralized grievance presents “abstract questions of wide presents “abstract questions of wide public significance.”
public significance.” Valley ForgeValley Forge, 454 , 454 U.S. at 474-75. U.S. at 474-75. Here, however, MicrosoftHere, however, Microsoft alleges that it has been subjected to thousands of nondisclosure orders that Microsoft alleges that it has been subjected to thousands of nondisclosure orders that Microsoft asserts violate
asserts violate its First its First Amendment rights. Amendment rights. ((SeeSee Compl. Compl. ¶ 5.) ¶ 5.) Microsoft reasonablyMicrosoft reasonably believes that it is likely to be subject to similar orders in the future.
believes that it is likely to be subject to similar orders in the future. (( Id. Id. ¶ ¶ 33.) 33.) AlthoughAlthough the privacy issues underpinning these nondisclosure orders may be of widespread public the privacy issues underpinning these nondisclosure orders may be of widespread public interest, Microsoft seeks to vindi
interest, Microsoft seeks to vindicate its own First Amendment rights. cate its own First Amendment rights. Whether or not theWhether or not the orders were issued under varying circumstances or the ultimate issues in this case may orders were issued under varying circumstances or the ultimate issues in this case may have to be resolved “using legal tests that are context[
have to be resolved “using legal tests that are context[ -] and fact--] and fact-specific” (specific” (Mot. at 11),Mot. at 11), Microsoft has alleged a concrete and particularized First Amendment injury.
Microsoft has alleged a concrete and particularized First Amendment injury. In addition, the Government
In addition, the Government’s arguments’s arguments assailassail the merits of Microsoft’s Firstthe merits of Microsoft’s First Amendment claim, not Microsoft
Amendment claim, not Microsoft’s standing’s standing. . ((SeeSee Mot. Mot. at 10-11.) at 10-11.) For example, For example, thethe Government
Government argues that Microsoft has not “ideargues that Microsoft has not “identif[ied] any particular order that thisntif[ied] any particular order that this [c]ourt could an
[c]ourt could analyze to determine the alyze to determine the existence, nature, and extent existence, nature, and extent of injury.” of injury.” (( Id. Id. at 10.) at 10.) The Government further argues that the Government obtains the nondisclosure orders via The Government further argues that the Government obtains the nondisclosure orders via different procedures, which
different procedures, which means the court can “derive[]means the court can “derive[] . . . no common legal . . . no common legal principle
principle” by which ” by which to analyze the to analyze the orders under the First orders under the First Amendment. Amendment. (( Id. Id. at at 10-11.) 10-11.) AtAt this stage, however, Microsoft is not
1 1 2 2 3 3 4 4 5 5 6 6 7 7 8 8 9 9 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22
must only allege that it has suff
must only allege that it has suffered an injury in fact,ered an injury in fact, City of L.A.City of L.A., 22 F. Supp. 3d at 10, 22 F. Supp. 3d at 1052,52, and the court finds that Microsoft has adequately done so.
and the court finds that Microsoft has adequately done so.
Microsoft also sufficiently alleges a likelihood of similar harm in the future.
Microsoft also sufficiently alleges a likelihood of similar harm in the future. SeeSee Canatella
Canatella, 304 F.3d , 304 F.3d at 854. at 854. Specifically, Microsoft asserts thSpecifically, Microsoft asserts that without a at without a declaration thatdeclaration that Section 2705(b) is unconstitutional insofar as it per
Section 2705(b) is unconstitutional insofar as it permits indefinite nondisclosure orders,mits indefinite nondisclosure orders, “the government will continue to seek, and courts will continue to issue, secrecy orders “the government will continue to seek, and courts will continue to issue, secrecy orders that impermissibly restrict the First Amendme
that impermissibly restrict the First Amendment rights of Microsoft and similarly situatednt rights of Microsoft and similarly situated providers.”
providers.” (FAC(FAC ¶ 33.) ¶ 33.) Microsoft bolsters its Microsoft bolsters its prediction by prediction by alleging that over alleging that over aa 20-month period preceding this lawsuit, the G
20-month period preceding this lawsuit, the Government sought and obtained 3,250overnment sought and obtained 3,250 orders
orders – – at least 450at least 45044 of which accompanied search warrants of which accompanied search warrants — — that contained indefinitethat contained indefinite nondisclosure
nondisclosure provisions. provisions. (( Id. Id. ¶¶ 5, 32.) ¶¶ 5, 32.) In addition, Microsoft In addition, Microsoft alleges that in thalleges that in thisis District alone, it
District alone, it has received at least 63 has received at least 63 such orders since September 2014. such orders since September 2014. (( Id. Id. ¶ 16.) ¶ 16.) Because these orders have been frequent and issued recently, the Government will likely Because these orders have been frequent and issued recently, the Government will likely continue to seek and obtain them
continue to seek and obtain them. . Accordingly, Accordingly, Microsoft’s Microsoft’s “fears”“fears” of similar injuries inof similar injuries in the future
the future are not “merely speculative.”are not “merely speculative.”55 Mendia v. Garcia Mendia v. Garcia, 165 F. Supp. 3d 861, 895, 165 F. Supp. 3d 861, 895 (N.D. Cal. 2016).
(N.D. Cal. 2016).
4
4 In different places in its first amended complaint, Microsoft alleges that either 450 In different places in its first amended complaint, Microsoft alleges that either 450 oror
650 nondisclosure
650 nondisclosure orders accompanied orders accompanied search warrants. search warrants. ((CompareCompare FACFAC ¶ 5, ¶ 5, with id.with id. ¶ 32.) ¶ 32.)
5
5 At oral argument, Microsoft styled its challenge to the con At oral argument, Microsoft styled its challenge to the con stitutionality of Sectionstitutionality of Section
2705(b) as a kind of
2705(b) as a kind of pre-enforcement challenge. pre-enforcement challenge. A pre-enforcement challenge raises A pre-enforcement challenge raises ripenessripeness questions.
questions. See ProtectMarriage.com-Yes on 8 v. BowenSee ProtectMarriage.com-Yes on 8 v. Bowen, 752 F.3d 827, 839 (9th Cir. 2014)., 752 F.3d 827, 839 (9th Cir. 2014). Ripeness is a jurisdictional consideration because it implica
Ripeness is a jurisdictional consideration because it implicates Article III’s case or controversytes Article III’s case or controversy requirement.
requirement. See Guatay Christian Fellowship v. Cty. of San DiegoSee Guatay Christian Fellowship v. Cty. of San Diego, 670 F.3d 957, 980 (9th Cir., 670 F.3d 957, 980 (9th Cir. 2011).
2011). However, due to the overwhelming imporHowever, due to the overwhelming importance of the rights protected by tance of the rights protected by the Firstthe First Amendment, courts relax the usual standing principles and apply a three-part test to determine Amendment, courts relax the usual standing principles and apply a three-part test to determine whether a plaintiff has established standing to pursue a First Amendment claim when the whether a plaintiff has established standing to pursue a First Amendment claim when the
1 1 2 2 3 3 4 4 5 5 6 6 7 7 8 8 9 9 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22
For the foregoing reasons, the court concludes that Microsoft has adequately For the foregoing reasons, the court concludes that Microsoft has adequately alleged an injury and a
alleged an injury and a likelihood of similar future injury for the purposes of likelihood of similar future injury for the purposes of establishingestablishing standing to pursue its First Amendment claim.
standing to pursue its First Amendment claim. b.
b. CausationCausation
“To show causation, the plaintiff must demonstrate a causal c
“To show causation, the plaintiff must demonstrate a causal c onnection betweenonnection between the injury and the conduct complained of
the injury and the conduct complained of — — the injury has to be fairly traceable to thethe injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some challenged action of the defendant, and not the result of the independent action of some third party not before the court.”
third party not before the court.” Salmon Spawning & Recovery All. v. Salmon Spawning & Recovery All. v. Gutierrez,Gutierrez, 545 545 F.3d 1220, 1227 (9th Cir. 2008).
F.3d 1220, 1227 (9th Cir. 2008). “Although the“Although the traceability of a pltraceability of a plaintiff’s harm to theaintiff’s harm to the defendant’
defendant’s actions need not rise to the level of proximate causation,s actions need not rise to the level of proximate causation, Article III Article III doesdoes require proof of a substantia
require proof of a substantia l likelihood that the defendant’l likelihood that the defendant’ s conduct caused plaintiff s conduct caused plaintiff ’’ss injury in fact.
injury in fact.”” Native Village of Ki Native Village of Kivalina v. ExxonMobil Corp.valina v. ExxonMobil Corp., 663 F. Supp. 2d 863,, 663 F. Supp. 2d 863, 877 (N.D. Cal. 2009) (internal quotation marks
877 (N.D. Cal. 2009) (internal quotation marks omitted).omitted).
Neither party substantively addresses the causation element of the standing Neither party substantively addresses the causation element of the standing inquiry. (
inquiry. (SeeSee Mot.; Resp.) Mot.; Resp.) However, the court has an independent duty However, the court has an independent duty to ensure that itto ensure that it has subject matter jurisdiction over this act
has subject matter jurisdiction over this action.ion. See Arbaugh v. Y&H Corp.See Arbaugh v. Y&H Corp., 546 U.S., 546 U.S. 500, 514
500, 514 (2006). (2006). Microsoft alleges that Microsoft alleges that indefinite nondisclosure orders issued indefinite nondisclosure orders issued pursuant topursuant to
plaintiff has not yet suffered an actual injury.
plaintiff has not yet suffered an actual injury. See Alaska Right to Life Political Action Comm. v.See Alaska Right to Life Political Action Comm. v. Feldman
Feldman, 504 F.3d 840, 851 (9th Cir. 2007);, 504 F.3d 840, 851 (9th Cir. 2007);see alsosee also Wolfson v. Brammer Wolfson v. Brammer , 616 F.3d 1045, 1058, 616 F.3d 1045, 1058 (9th Cir. 2010).
(9th Cir. 2010). Despite this characterization, Despite this characterization, however, the court finds fhowever, the court finds for the reasons notedor the reasons noted above that Microsoft need not allege
above that Microsoft need not allege facts regarding the three elements necessary to mofacts regarding the three elements necessary to mo unt aunt a pre-enforcement challenge.
pre-enforcement challenge. See Brammer See Brammer , 616 F.3d at , 616 F.3d at 1058. 1058. Because Microsoft has Because Microsoft has alleged aalleged a past injury, it need only allege a likelihood of similar injury in the future i
past injury, it need only allege a likelihood of similar injury in the future in this action forn this action for declaratory relief.
1 1 2 2 3 3 4 4 5 5 6 6 7 7 8 8 9 9 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 Section 2705(b) pr
Section 2705(b) prevent Microsoft from engaging event Microsoft from engaging in protected speech. in protected speech. ((SeeSee generallygenerally FAC.)
FAC.) This This alleged alleged injuryinjury —the curtailing of Microsoft’s speech— —the curtailing of Microsoft’s speech— is fairly traceable tois fairly traceable to the conduct complained of
the conduct complained of — — indefinite nondisclosure orders issued pursuant to Sectionindefinite nondisclosure orders issued pursuant to Section 2705(b).
2705(b). Accordingly, the court Accordingly, the court finds that Microsoft has finds that Microsoft has sufficiently alleged causation.sufficiently alleged causation. c.
c. Redressability Redressability
A plaintiff establishes redressability by demonstrating “a ‘
A plaintiff establishes redressability by demonstrating “a ‘ substantial likelihood’substantial likelihood’ that the requested relief will remed
that the requested relief will remedy the alleged injury in fact.”y the alleged injury in fact.” Vermont Agency of Nat.Vermont Agency of Nat. Res. v. U.S. ex rel. Ste
Res. v. U.S. ex rel. Stevensvens, 529 U.S. 765, 771 (2000)., 529 U.S. 765, 771 (2000). “[A] plaintiff satisfies the“[A] plaintiff satisfies the
redressability requirement when he shows that a favorable decision will relieve a discrete redressability requirement when he shows that a favorable decision will relieve a discrete injury[, but he] need not show that a favorable decision will relieve his
injury[, but he] need not show that a favorable decision will relieve his everyevery injury.”injury.” Larson v. Valente
Larson v. Valente, 456 U.S. 228, 243 n.15 (1982) (plurality opinion)., 456 U.S. 228, 243 n.15 (1982) (plurality opinion). “In the context of“In the context of declaratory relief, a plaintiff demonstrates redressabi
declaratory relief, a plaintiff demonstrates redressabi lity if the court’s statementlity if the court’s statement wouldwould require the defendant to act in any way that would redress past injuries or prevent future require the defendant to act in any way that would redress past injuries or prevent future harm.”
harm.” Viet. Veterans of Am. v. C.I.A.Viet. Veterans of Am. v. C.I.A., 288 F.R.D. 192, 205 (N.D. C, 288 F.R.D. 192, 205 (N.D. Cal. 2012) (internalal. 2012) (internal quotation marks omitted);
quotation marks omitted); accord Steel Coaccord Steel Co. v. Citizens for a Better Env’t . v. Citizens for a Better Env’t , 523 U.S. 83,, 523 U.S. 83, 108 (1998) (“If respondent had alleged a continuing violation or the imminence of a 108 (1998) (“If respondent had alleged a continuing violation or the imminence of a future violation, the injunctive relief requested would remedy that alleged harm.”) future violation, the injunctive relief requested would remedy that alleged harm.”) . . AA plaintiff is entitled to a presumptio
plaintiff is entitled to a presumption of redressability where he “seeks declaratory reliefn of redressability where he “seeks declaratory relief against the type of government ac
against the type of government action that indisputably caused him injury.”tion that indisputably caused him injury.” Mayfield v. Mayfield v. United States
United States, 599 F.3d 964, 971 (9th Cir. 2010) (determining whether redressability, 599 F.3d 964, 971 (9th Cir. 2010) (determining whether redressability requirement was met in
requirement was met in a declaratory judgment action involving the ca declaratory judgment action involving the c onstitutionality ofonstitutionality of the Foreign Intelligence Surveillance Act (“
