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If Twitter Had Competent Legal Staff, This Gag Order Over A Warrant On Trump’s Account Might Have Been Interesting, Instead…

'There’s a lot of chatter about this, but in the end, this isn’t particularly out of the ordinary or problematic.'

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Passing the buckSo, you might have heard the news about how Special Counsel Jack Smith obtained a warrant for Donald Trump’s Twitter account data, that Twitter resisted, and was fined $350,000 before handing over the data, and (finally) that Twitter lost an appeal about all of this, leading to most of the details being unsealed by the DC Circuit.

There is a lot going on here, and much of the coverage and hand-wringing about this is misplaced or misleading. As a quick summary, before we get into the details, it does look like the DOJ properly sought and obtained a warrant which obligates Twitter to respond. It also got a separate gag order, which can be questionable, and which companies sometimes fight off (though, also, can be okay in specific circumstances) and, finally, there might have been an interesting legal fight over the gag order, in particular, if Twitter hadn’t fucked stuff up.

Now, the details. From the DC Circuit ruling we get this one paragraph summary:

The district court issued a search warrant in a criminal case, directing appellant Twitter, Inc. (“Twitter”) to produce information to the government related to the Twitter account “@realDonaldTrump.” The search warrant was served along with a nondisclosure order that prohibited Twitter from notifying anyone about the existence or contents of the warrant. Twitter initially delayed production of the materials required by the search warrant while it unsuccessfully litigated objections to the nondisclosure order. Although Twitter ultimately complied with the warrant, the company did not fully produce the requested information until three days after a court-ordered deadline. The district court thus held Twitter in contempt and imposed a $350,000 sanction for its delay.

Given the various indictments from Smith, it’s perhaps not that surprising that they would obtain a warrant to look at Trump’s communications. And, from the details, the warrant sounds… pretty standard for a criminal investigation? It’s possible there are some problems with it, but on the whole this is the kind of thing that companies get warrants about. And while communications are protected under the 4th Amendment and the Stored Communications Act, both simply require a warrant to disclose.

Furthermore, the SCA requires disclosure without notifying the user in some circumstances. Specifically:

A governmental entity may require a provider of remote computing service to disclose the contents of any wire or electronic communication… without required notice to the subscriber or customer, if the governmental entity obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures and, in the case of a court-martial or other proceeding under chapter 47 of title 10 (the Uniform Code of Military Justice), issued under section 846 of that title, in accordance with regulations prescribed by the President) by a court of competent jurisdiction

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To get such a warrant, the “government entity” has to show “specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.” And… again, it’s quite likely that Smith’s investigation could show that, given the two existing indictments.

Now, the issue of the gag order (they refer to it as a “nondisclosure order” but we’ll go with the more common gag order). That does raise some 1st Amendment concerns. We’ve certainly highlighted bullshit DOJ gag orders in the past. But that doesn’t mean that all such orders are unconstitutional. There are times when they are allowed, and under the Stored Communications Act, there are some clear rules for that. Specifically, you can get a “delay of notification” requirement if alerting the person whose communications are being accessed would lead to an “adverse result” which includes a list of five things:

(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.

It seems that the DOJ could easily argue that C, D, and E likely apply here in order to justify the gag order. In actuality, the DC Circuit reveals, the DOJ claimed C, E… and B (flight from prosecution), but then later said that the “flight from prosecution part” was a mistake. Some people online are going a little crazy about the “accidental” claim of “flight from prosecution,” but given that you only need one of the above categories to get the gag order, it’s not that big a deal that it was also included. It’s still… not great. The DOJ shouldn’t be lying to courts, even by accident. But this does seem like a situation where little would have changed.

That said, for such a gag order to be approved, there really should be a clear showing by the government that it has a “compelling government interest” and that the gag order is the “least restrictive means” of achieving that interest (beyond just the requirements listed above). That can very much be the case for some gag orders in some criminal investigations. And, might very well be the case here. But at some point in the process the analysis should be done.

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Of course, the reality is that often judges will rubberstamp such gag order requests, with little to no concern for the 1st Amendment questions.

So, in theory, there might have been an interesting 1st Amendment challenge that Twitter could have made to the 1st Amendment question around the gag order. That is, if Twitter still had (for example) the kind of competent, 1st Amendment-aware legal staff it used to have before Elon Musk fired or drove away most of them. So, instead, this happened:

The government faced difficulties when it first attempted to serve Twitter with the warrant and nondisclosure order. On January 17, 2023, the government tried to submit the papers through Twitter’s website for legal requests, only to find out that the website was inoperative. Two days later, on January 19, 2023, the government successfully served Twitter through that website. On January 25, 2023, however, when the government contacted Twitter’ s counsel to check on the status of Twitter’ s compliance, Twitter’ s counsel stated that she “had not heard anything about [the] [w]arrant.” I.A. 50. She informed the government that an on-time production “would be a very tight turnaround,” but she confirmed that the account’s available data was preserved…

On February 1, 2023 – four days after the compliance deadline – Twitter objected to producing any of the account information. Although the company did not question the validity of the search warrant, it asserted that the nondisclosure order was facially invalid under the First Amendment. Twitter informed the government that it would not comply with the warrant until the district court assessed the legality of the nondisclosure order.

This is… bad? Yeah. Pretty bad. First, having your portal for law enforcement to submit warrants “inoperative” is not great, but even worse is apparently not actually checking the inbox for it until a week later when the DOJ contacts you about where you are in the process. Also bad, filing your objection four days after the information was due.

I’ve seen some arguments that it’s also bad that they didn’t hand over the data, since that was separate from the gag order issue and they’re not complaining about the warrant itself, but I can see an argument there as well. If the intent of rescinding the gag order is to notify Trump so that he can seek to object to the warrant, then it makes sense to not want to hand over the data. The flipside of the argument though, is that even if Twitter did hand over the data, if the court later found that the DOJ has no right to the data, Trump would be able to suppress its use in court against him.

So, while it’s good and commendable that Twitter finally got around to making the 1st Amendment argument, the sloppiness with which they did so really hurt Twitter’s argument. The government sought to hold Twitter in contempt for failing to hand over the data, even if it was challenging the gag order.

The district court said, “uh, yeah, you still have to hand over the data” since it’s a separate issue:

In an oral ruling, the court rejected Twitter’s argument that the First Amendment required adjudication of the nondisclosure order before enforcement of the warrant. Adopting Twitter’ s requested approach would “invite intervention by Twitter – let alone every other electronic communications provider – to delay execution of any [warrant] … issued under the [Act]” while it litigated challenges based on “slivers of knowledge” of an investigation’s scope. J.A. 212. Because “any challenge to a [ nondisclosure order] is separate from a challenge to a search warrant” and additional delays would “increase[] the risk that evidence will be lost or destroyed, heighten[] the chance the targets will learn of the investigation, and jeopardize[] the government’s ability to bring any prosecution in a timely fashion,” the court refused to stay its enforcement of the warrant.

While this kind of reasoning annoys me personally, as I do think that if the gag order prevents the party in question from being able to make any argument at all for why their data should be kept private, it is (unfortunately) consistent with other court rulings on this issue.

Then… Twitter went and made things worse. After the judge ruled against the company and found it in contempt, she told Twitter to produce the requested content by 5pm and she would drop the contempt. Otherwise she would fine the company. Twitter’s lawyers said the company would produce the information. Take a wild guess what happened next?

When the court asked Twitter’ s counsel whether the company could produce the required materials by 5 :00 p.m. that evening, counsel answered: “I believe we are prepared to do that. Yes, Your Honor.” Id. at 210. The court also asked the government what sanctions it would request if Twitter failed to comply. The government suggested sanctions that would accrue at a geometric rate: $50,000 per day, to double every day that Twitter did not comply. The court adopted that suggestion, noting that Twitter was sold for over $40 billion and that its owner’s net worth was over $180 billion. Twitter did not object to the sanctions formula. Accordingly, the district court ordered Twitter to produce the records specified by the warrant by 5:00 p.m. on February 7, 2023. If Twitter did not purge its contempt by that time, the district court ordered “escalating daily fines” that were “designed to ensure Twitter complies with the search warrant.”…

Twitter missed the 5 :00 p.m. deadline. Although Twitter timely produced some records, its production was incomplete. After a follow-up call with the government on the next day, Twitter produced supplemental infonnation in the early hours of February 9, 2023. The district court held a second hearing on February 9, 2023, during which the court meticulously reviewed the requirements of the warrant and resolved any remaining disputes. At that hearing, Twitter made several new representations related to its production of responsive materials. See, e.g., I.A. 242 (“[Government Counsel]: This is the first time I have heard a complaint about a date limitation on IH.”); id. at 254 (“This is the first time we are hearing about another preservation between January 3rd and January 9.”); id. at 254-55 (“I have never heard of ‘fleets’ in part of any discussion that we have had …. It still will be relevant, it still will be responsive.”). Twitter completed its production at 8:06 p.m. on February 9, 2023.

I will note some concern with the size of the fines here. Those are way above what you would normally see, and while I understand that the judge’s reasoning was Elon’s “net worth” (and you could justify that with the idea that if the fines were even smaller it wouldn’t matter as much), it feels weird to have contempt sanction amounts be based on net worth.

Either way, then Twitter and the DOJ argued over the contempt sanctions, and again the judge sided with the DOJ.

On March 3, 2023, the district court issued an opinion and order denying Twitter’ s motion to vacate or modify the nondisclosure order, finding Twitter in civil contempt, and imposing a $350,000 contempt sanction.

On the same date, the court also said that if the court used strict scrutiny to analyze the 1st Amendment challenge to the gag order, the order would pass strict scrutiny, which… in this case is probably right?

The district court determined that the order, which prohibited speech about a particular warrant for a 180-day period, was a narrowly tailored means to protect the compelling interest of safeguarding the integrity and secrecy of an ongoing criminal investigation

Anyway, Twitter then appealed, which brings us to the opinion released yesterday. While the government tried to get the appeals court to effectively ignore the 1st Amendment challenge to the gag order by saying it was moot since the DOJ has lifted the gag order, Twitter pointed out (correctly) that this scenario is likely to happen again, and you can’t just gag someone and then when they challenge the gag hang out until it gets to the appeals court, lift the gag, and say the issue is moot. And here, the appeals court agrees with Twitter, saying this situation is likely to happen again:

The legal issue Twitter raises is whether its First Amendment rights are violated by a § 2705(6) nondisclosure order that prohibits Twitter from revealing the existence or contents of a search warrant to its customer, who is a suspect in a criminal investigation. That dispute is reasonably likely to recur. “In estimating the likelihood of an event’s occurring in the future, a natural starting point is how often it has occurred in the past.” Clarke, 915 F.2d at 704. Twitter previously has received, and challenged, nondisclosure orders attached to subpoenas, warrants, and other requests for user information. See I.A. 217-22 (listing challenges); cf Twitter, Inc. v. Garland, 61 F.4th 686, 692-94 (9th Cir. 2023). And Twitter avers that it will continue to resist complying with nondisclosure orders that it believes are “facially invalid.” Twitter Rule 28(j) Letter 2 (June 22, 2023). We think it is reasonably likely that the government will seek subscriber information from Twitter in future criminal cases, and that the government therefore will serve more search warrants and nondisclosure orders on Twitter. At some point, Twitter “will again be confronted by an order of this sort” raising a similar First Amendment issue.

That’s correct and good of the court to recognize it. It was a ridiculous argument from the DOJ.

Unfortunately, that’s about where the good news for Twitter ends. The appeals court does review the 1st Amendment questions in the gag order… and Twitter loses. It “assumes without deciding” that strict scrutiny should govern the analysis, which is fine. Basically if it can survive strict scrutiny, it doesn’t much matter if a lower standard should have been used. And here, it finds that the gag order survives even strict scrutiny:

Strict scrutiny requires the government to demonstrate that a speech restriction: (1) serves a compelling government interest; and (2) is narrowly tailored to further that interest. See Reed, 576 U.S. at 163; Pursuing Am. ‘s Greatness v. FEC, 831 F.3d 500, 508 (D.C. Cir. 2016). A restriction is narrowly tailored if ‘”less restrictive alternatives’ … would not ‘accomplish the government’s goals equally or almost equally effectively.”‘ Nat’! Ass’n of Mfrs. v. Taylor, 582 F.3d 1, 19 (D.C. Cir. 2009) (NAM) (quoting Blount v. SEC, 61 F.3d 938, 944 (D.C. Cir. 1995)).

The government proffered two compelling interests that supported nondisclosure of the search warrant: preserving the integrity and maintaining the secrecy of its ongoing criminal investigation of the events surrounding January 6, 2021. Gov’t Br. 20. Those interests are “particularly acute where, as here, the investigation is ongoing.” In re Subpoena, 947 F.3d at 156. Investigating criminal activity is a “core government function that secures the safety of people and property.” Google LLC, 443 F. Supp. 3d at 452. In addition, the government’s interest is heightened where an investigation has national security implications, for “no governmental interest is more compelling than the security of the Nation.” Haig v. Agee, 453 U.S. 280, 307 (1981). Thus, the government’s interest was particularly strong here because its ongoing investigation aimed to “[f]erret[] out activity intended to alter the outcome of a valid national election for the leadership of the Executive Branch of the federal government … and [to assess] whether that activity crossed lines into criminal culpability.” J.A. 372-73. Moreover, secrecy is paramount to ensuring that ongoing investigations can proceed without interference from targets or interested parties. See Google LLC, 443 F. Supp. 3d at 453. Breaching the investigation’s confidentiality could open the door to evidence-tampering, witness intimidation, or other obstructive acts. See 18 U.S.C. § 2705(b); see also In re Subpoena, 947 F.3d at 156 (“[P]rotecting the secrecy of an investigation” is a compelling government interest.). Here, the district court specifically found reason to believe that disclosure of the warrant would jeopardize the criminal investigation. See J.A. 1. We therefore conclude that the government’s asserted interests were unquestionably compelling.

The nondisclosure order was also “narrowly tailored to advance the State’s compelling interest through the least restrictive means.” Williams-Yulee v. Fla. Bar, 575 U.S. 433, 452 (2015). It bears emphasis that, under the strict-scrutiny standard, a restriction must be narrowly tailored, not “perfectly tailored.” Id. at 454 (quoting Burson v. Freeman, 504 U.S. 191, 209 (1992)). Here, the nondisclosure order was initially limited in duration to 180 days. Thus, any concerns associated with indefinite nondisclosure orders are of no moment here…. Moreover, the speech restricted- disclosure of the existence or contents of the warrant – was limited to information that Twitter obtained only by virtue of its involvement in the government’s investigation. Courts have suggested that such information, procured from the government itself or pursuant to a court-ordered procedure, is entitled to less protection than information a speaker possesses independently. See Butterworth v. Smith, 494 U.S. 624, 636 (1990) (Scalia, J ., concurring) ( distinguishing constitutional protection of what grand jury witnesses know beforehand from what they learn “only by virtue of being made a witness”); Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 (1984) (“[A]n order prohibiting dissemination of discovered information before trial is not the kind of classic prior restraint that requires exacting First Amendment scrutiny.”). Importantly, Twitter remained free to raise general concerns about warrants or nondisclosure orders, and to speak publicly about the January 6 investigation.

The court doesn’t buy the claim by Twitter that since Smith’s investigation was already public knowledge, there was no reason to gag the company. However, as the court notes, while the investigation itself was public, that doesn’t mean that the search warrant for the Twitter account was public.

The appeals court also rejects the claim that Twitter shouldn’t have had to hand over the information demanded by the warrant until the 1st Amendment challenge was completed. Basically, the appeals court agrees with the district court that this would create unnecessary delay, and says that the precedents Twitter points to aren’t really relevant in criminal cases.

And, based on that, it also upholds the sanctions.

The district court followed the procedure we have prescribed for imposing a contempt sanction. Faced with Twitter’s alleged noncompliance with the warrant, the district court issued a show-cause order and held a hearing at which Twitter had an opportunity to be heard. At that hearing, the district court found that Twitter had disobeyed a “clear and unambiguous court order” – i.e., the warrant – that “requir[ ed] Twitter to comply with production of the specified records … by January [27], 2023.” J.A. 211. Because the government proved that Twitter stood in contempt of the warrant, the district court threatened to impose “escalating daily fines” unless Twitter purged the contempt by turning over the records by 5:00 p.m. on February 7. Id. at 213; see id. at 211, 216. Before setting that deadline, the district court confirmed that Twitter could meet it. When Twitter failed to timely purge its contempt, the district court appropriately issued another order that “exact[ ed] … the threatened penalty” – a $350,000 sanction.

Also, the claim that the warrant’s obligations were unclear… does not go over well:

Twitter also blames the government for failing to clarify the warrant’s obligations. Id. at 4 7-48. We are unpersuaded. The district court noted that Twitter complied with the warrant “only after it had already delayed production since January 27, the original deadline.” I.A. 387 (emphasis in original). The court opined that, had Twitter “been diligent and serious in its good faith intention to comply with the [w]arrant,” it would have brought any issues to the government’s attention “on January 19, 2023, or subsequently upon review by in-house counsel on January 25 and 26, 2023, or even during ongoing conversations with the government through February 1, 2023.” Id. at 388. Instead, the court found that Twitter repeatedly represented to the court that it stood ready to comply, even as Twitter waited until after the February 7 deadline “to raise,for the first time, multiple questions about the [w]arrant’s document demands.” Id. at 387 (emphasis in original). Under those circumstances, the district court was on firm footing when it ruled that Twitter had not substantially and in good faith complied with the warrant.

While the court seems a little concerned that a “geometric” penalty that doubled daily for non-compliance would get ridiculous large ridiculously fast (Twitter points out that after a single month Twitter would owe more than “the entire world’s gross domestic product”), it notes that the point of a contempt sanction is to ensure compliance. And this worked.

Also, Twitter’s lawyers never objected at the time.

While a geometric schedule is unusual and generally would be improper without an upper limit on the daily fine, we nonetheless uphold the district court’s sanctions order based on the particular facts of this case. Twitter never raised any objection to the sanctions formula, despite having several opportunities to do so (at the February 7 and February 9 hearings, and in its papers opposing sanctions). The company thus appeared to acquiesce to the formula. Moreover, the $350,000 sanction ultimately imposed was not unreasonable, given Twitter’s $40-billion valuation and the court’s goal of coercing Twitter’s compliance…. Finally, we note that Twitter assured the court that it would comply with the warrant by 5:00 p.m. on February 7, and never raised the possibility that it would defy the order for a month and end up owing the court “the entire world’s gross domestic product.” Opening Br. 56. Under these case-specific circumstances, the district court acted reasonably and did not abuse its discretion by imposing the $350,000 sanction.

And that’s basically it.

There’s a lot of chatter about this, but in the end, this isn’t particularly out of the ordinary or problematic. The warrant seems pretty bog standard. The gag order, while annoying, seems to be following the law, and within the limits of the 1st Amendment. Twitter’s bad lawyering is, well, par for the course under Elon.

It’s possible that if Twitter still had a fully staffed legal department who had noticed the gag order when it first came in there might have been more to say about it, generating a more interesting challenge, but on the whole, this all looks… like the way things are mostly supposed to work.

If Twitter Had Competent Legal Staff, This Gag Order Over A Warrant On Trump’s Account Might Have Been Interesting, Instead…

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