In a rare appellate ruling regarding the breadth of Section 2705 of the Stored Communications Act (“SCA”), the U.S. Court of Appeals for the D.C. Circuit held the government could not use a broad, prospective nondisclosure order to bar X Corp. (formerly known as Twitter, Inc.) from notifying users about any and all future subpoenas related to an investigation. The order prospectively covered any subpoena issued within one year of an investigation and was accompanied by an authorizing order permitting the government to attach it to any subpoena for which it determined disclosure might risk one of the harms in Section 2705. The court found this latter factor resulted in an improper delegation of a judicial function to law enforcement. The ruling is a promising sign for targets of government investigations that future non-disclosure order applications must be more specifically tailored to ensure they can withstand judicial scrutiny, and blanket authorization will not pass muster.
What You Need to Know:
- In January 2024, the government served X Corp. with a subpoena seeking records related to two user profiles along with an order, approved by a magistrate judge, that applied prospectively to any subpoenas issued in the same investigation within one year.
- An authorizing order specified that the government could attach the non-disclosure order to future subpoenas so long as the government ascertained – in its sole discretion – that disclosure would risk one of the harms specified in the SCA.
- X Corp. moved to vacate the order, arguing it violated SCA § 2705(b) because a judicial determination of statutory harm must be specific, not hypothetical or extended in blanket fashion to future inquiries. The district court denied the motion.
- The D.C. Circuit reversed and clarified that the courts, not the government, must determine whether disclosure of a subpoena will result in the harms specified in Section 2705(b).
Proceedings Before the Magistrate Judge
The ruling in In re Sealed Case, No. 24-5089, 2025 WL 2013687 (D.C. Cir. July 18, 2025) arose out of a government investigation in which X Corp. was subpoenaed for user records related to two accounts on its platform. As a general rule, companies are permitted to notify users when they receive legal process regarding the users’ records. However, SCA Section 2705(b) directs that, upon application from the government, a court shall enter a non-disclosure order if it determines that there is reason to believe notification will result in the endangerment of an individual’s life or physical safety; flight from prosecution; tampering with or destruction of evidence; intimidation of a potential witness; or serious jeopardy to an investigation or undue delay to a trial. See 18 U.S.C. § 2705(b).
Here, the non-disclosure order the magistrate judge issued prospectively applied to any subpoena issued in the government’s investigation for one year. It was accompanied by an authorizing order that permitted the government to attach the non-disclosure order to any subpoena if the government determined disclosing the existence of the subpoena would result in one of the harms identified in Section 2705(b). The magistrate judge approved the orders after determining statutory risks existed, and found its omnibus nature appropriate “based on the nature of the criminal activity, the volume of expected subpoenas, and the burden that separate applications would pose.” X Corp. moved to vacate or modify the order, arguing Section 2705(b) did not authorize a blanket order covering future hypothetical subpoenas but instead required a judicial determination of potential harm related to a specific subpoena. The U.S. District Court for District of Columbia denied the company’s motion.
The Appeal
X Corp. appealed, arguing that the breadth of the order violated the SCA and was an unconstitutional prior restraint in violation of the First Amendment because it was not narrowly tailored. The government argued the order was sufficiently narrowly tailored and provided an efficient tool in service of the compelling interest of grand jury secrecy.
The D.C. Circuit reversed, holding that in approving the non-disclosure order’s application to unknown future subpoenas, the magistrate judge did not adequately determine that disclosure of information to users would result in harm from future subpoena disclosures, just from disclosures relating to the present subpoenas. This ran afoul of the text of the SCA, which requires that a court must “determine[] that there is reason to believe that notification of the existence of the warrant, subpoena, or court order will result in” one of the enumerated harms. 18 U.S.C. § 2705(b) (emphasis added).
In its opinion, the court noted that the analysis required for harm as to a specific subpoena differed from that of a group of subpoenas. For example, it said, for a single subpoena, a “judge can base her ‘reason to believe’ determination on the facts as they were when the government submitted its application. But facts change. Over the next year, the public could learn of the government's investigation to an extent that makes the nondisclosure order unnecessary.”
The D.C. Circuit also noted the non-disclosure order “provided no meaningful limit on the potential targets of the future subpoenas” and instead “permitted the government to attach the nondisclosure order to any subpoena for user records of any account with any service provider that it decided was relevant to its investigation.” This element made it extremely difficult to even predict what subpoenas might be covered, much less have a “reason to believe” that such subpoenas “will result” in harm. And, allowing the government to make the determination of harm ran afoul of the statutory language requiring the court to perform that analysis – effectively “outsourc[ing] to the government the very evaluation that Congress assigned to the court.” Accordingly, the requirements of Section 2705(b) were not satisfied.
But the D.C. Circuit did not go as far as barring the use of orders covering multiple or future subpoenas altogether. The court stressed that its holding was narrow, stating that it couldn’t “rule out the possibility that, in another case, the government might seek a prospective order with clearer limitations or other features that could allow a court to make the requisite findings.” Additionally, the court emphasized its ruling was not based on the fact that a single non-disclosure order covered multiple subpoenas, but because the required “reason to believe” analysis had not been made.
Implications of the Decision
Government investigations are particularly complex because they often combine a rapid pace, an extended duration, and may take many different directions. The Sealed Case ruling recognizes these realities by highlighting how difficult the overbreadth of the order authorized in the underlying case made the required statutory analysis. It is also a reminder of the balance of power between the executive and judicial branches in an investigation – the prosecution is free to seek the information it desires, but under the text of the SCA, it is the judicial branch that makes the determination as to whether potential harm warranting the issuance of a non-disclosure order exists. The Sealed Case holding urges increased scrutiny on behalf of both the executive and the judiciary. Both branches must consider whether the potential statutory harms align with the scope and variety of subpoenas an order will cover: the government in its application, and the court in making the requisite findings supporting the issuance of the order. And as the targets of the inquiry, companies are in a unique position to ensure these obligations are upheld. Thus, the D.C. Circuit decision opens another avenue for corporate targets to push back on government overreach.
