Back in March 2014, we learned from the media that Magistrate Judge John Facciola had invited Twitter and Yahoo to respond to government requests that they be prohibited from telling “any person” that they had received grand jury subpoenas seeking certain information, presumably about their customers. He also ordered the government to file public, redacted copies of its gag order applications. Soon afterward, we learned that the government had appealed those orders to Chief Judge Roberts of the district court, who had instructed Twitter and Yahoo not to file anything on the public record, and apparently also relieved the government of any obligation to file public, redacted copies of its gag order applications. In April, we and National ACLU filed a Motion to Intervene and for Unsealing, arguing that Judge Facciola had properly exercised his inherent authority to invite briefing on the government’s gag order applications and that the documents in the case should be made public pursuant to the First Amendment and common law right of access to court materials, subject to appropriate redaction of any information that would actually compromise a grand jury investigation.
Chief Judge Roberts granted the government’s applications for gag orders against Twitter and Yahoo. Those opinions and orders were sealed.
In May 2014, we filed a motion asking Chief Judge Roberts to unseal his opinions and orders. He held a non-public hearing on our motion and later filed a slightly-redacted version of his opinions and orders on the public record. But he never ruled on our motion to unseal the government’s original application or its appeal before he retired in March 2016.
In January 2017, the matter was officially reassigned to the new Chief Judge Beryl Howell, who directed the government to file a “report” regarding its position on the pending motions, and “confirming that the nondisclosure order barring Yahoo! from notifying the subscriber or customer of the existence of the issued grand jury subpoena has lapsed.” The government filed its report on January 25, and we filed a response on February 2, urging the court to unseal a version of the government’s original Application and Proposed Order, subject only to narrow redaction of information protected by Federal Rule of Criminal Procedure 6(e).
The government did not object to such relief. On February 6, the court denied all of our motions, but nevertheless ordered the government to “post on the public docket the application for a nondisclosure order and the Orders accompanying the April 28, 2014 Memorandum Opinion, with any material protected by Federal Rule of Criminal Procedure 6(e) redacted,” which is what we wanted. The government did so in late February.
