Key Points

  • A Section 2703(d) order under the Stored Communications Act that seeks substantially irrelevant or immaterial records imposes an "undue burden" that the service provider may challenge.
  • When a provider makes a prima facie showing that part of a request bears little relationship to the investigation, the district court must ask the government to justify it and must narrow the order if not persuaded.
  • Where a request reaches records with only a remote and tenuous link to the investigation and implicates journalists' confidential sources, the district court must balance First Amendment interests under Justice Powell's Branzburg concurrence.
  • The Section 2705(b) Secrecy Order is a prior restraint; on remand, LinkedIn's proposal to notify a single government-vetted lawyer for the News Outlet must be adopted unless the government offers a more persuasive justification.
  • LinkedIn has standing, including third-party standing to assert the journalists' and News Outlet's First Amendment interests, but the district court did not abuse its discretion in denying LinkedIn access to the government's ex parte materials.

A federal appeals court on Nov. 10 ordered a judge in Virginia to cut back a court order requiring LinkedIn to turn over 18 months of records on journalists' contacts in a national security leak investigation. The court held that the order appeared to reach "a vast number of confidential sources who have no conceivable relationship to the matter under investigation."

Judge Wilkinson wrote for a unanimous three-judge panel of the U.S. Court of Appeals for the Fourth Circuit, joined by Judges Wynn and Berner. The panel rejected LinkedIn's request to quash the government's orders outright, saying that went "much too far." But it held that the records order, in its present form, "is substantially overbroad" and must be narrowed. The panel also directed the trial court to loosen a companion gag order unless the government can justify keeping it as written.

The decision gives internet service providers a path to challenge records demands under the Stored Communications Act. The panel held that a provider may attack an order as overbroad, not only as logistically difficult to fill. It also held that judges must weigh First Amendment interests when an order would expose journalists' confidential sources.

The opinion says it omits detail because of the national security stakes. The investigation began after a news organization, which the opinion calls the News Outlet, published an article "purporting to describe a top-secret United States military operation in a foreign country." The government learned that some of the outlet's journalists may have talked with confidential sources through LinkedIn.

Prosecutors then obtained an order under Section 2703(d) of the act, which lets the government get user records by offering "specific and articulable facts" showing the records are "relevant and material" to a criminal investigation. That Disclosure Order required LinkedIn to produce metadata identifying every user the journalists corresponded with over 18 months. During that period the journalists published nearly 1,000 articles, fewer than five percent of which appear related to the leak, according to the opinion. A separate Secrecy Order barred LinkedIn for one year from telling anyone other than legal counsel that the orders existed.

LinkedIn moved to narrow both orders. A magistrate judge read the statute to permit challenges based only on "logistical or practical burden" and found "no suggestion that this is a fishing expedition." U.S. District Judge Elizabeth W. Hanes of the Eastern District of Virginia adopted that recommendation in full. She concluded that LinkedIn's overbreadth argument "does not fall within one of the limited grounds in which a responding party may move to quash an order that is entered pursuant to ยง 2703(d)."

The Fourth Circuit disagreed. The statute lets a court quash or modify an order that would impose an "undue burden" on the provider, and Judge Wilkinson read that phrase to cover irrelevant records. "As a logical matter, lack of relevance and materiality is itself an 'undue burden,'" he wrote. He reasoned that harm to users becomes harm to the company, because "Users expecting to converse in private will be unpleasantly surprised to find the expected reality fall short."

The opinion called the government's national security interest "self-evident." "The government is entitled to discovery to the full extent permitted by law," Judge Wilkinson wrote, adding that it is entitled to a disclosure order. "It is even entitled to a broad disclosure order. But it is not entitled to carte blanche."

Under the panel's framework, once a provider makes a prima facie case that part of a request bears little relationship to the investigation, the judge should ask the government to explain why the records are relevant. "If the district court is not persuaded, however, it must narrow the order," the court held.

The panel grounded the second holding in Branzburg v. Hayes, the 1972 Supreme Court decision that found no First Amendment privilege for reporters to refuse relevant questions in a good-faith grand jury investigation. Following Justice Powell's concurrence in that case, the court held that where part of a request seeks records with only a "remote and tenuous" link to the investigation, "the district court must conduct a balancing analysis." Judge Wilkinson wrote that "Confidentiality of sources is the lifeblood of a free press." He added that respect for the government's desire for a thorough investigation "does not translate into license to round up indiscriminately the identities of confidential and unrelated newsgathering sources."

On the gag order, the court noted that both sides agreed it is a prior restraint, a restriction that blocks speech before it occurs. LinkedIn had proposed telling a single lawyer for the News Outlet, previously vetted by the government, so the outlet could help narrow the records order. The district court had said that lawyer "may also have an incentive to be underinclusive." The panel found that reasoning conclusory and held that "Unless the government's response to LinkedIn's proposal is more persuasive than anything the government has presented thus far, LinkedIn's narrow exception to the breadth of the Secrecy Order must be adopted."

The government lost its standing challenge as well. It had argued that LinkedIn, with more than one billion members, lacked a close enough relationship with its users to assert their rights. "The government has not cited, nor are we aware of, any case which purports to allow only small businesses to assert the claims of their customers," Judge Wilkinson wrote.

LinkedIn lost on one issue. The panel upheld the district court's refusal to give it the ex parte materials the government had submitted to obtain the orders. Sharing information LinkedIn received voluntarily is one thing, the court reasoned. "It is quite another to turn over ex parte records that the government believed would be limited to the court's eyes alone."

The Reporters Committee for Freedom of the Press, the American Civil Liberties Union and its Virginia affiliate, Apple Inc., and Amazon.com Inc., Google LLC and Meta Platforms Inc. filed amicus briefs. Ari Benjamin Asher Holtzblatt of Wilmer Cutler Pickering Hale and Dorr LLP argued for LinkedIn, and Joshua Thomas Ferrentino of the Justice Department argued for the government.

The case, argued Sept. 15, now returns to Judge Hanes in Newport News. On remand she must weigh the government's need for the records, how broad the request is and whether it can feasibly be divided, the uncertainty of early investigations, and the First Amendment and statutory standards at stake. She must also give the government a chance to explain why disclosure to the News Outlet's lawyer would compromise the investigation.