Update – 8/1/2025: This is a follow up post to our November 2024 post “Omnibus Nondisclosure Orders Challenged.”
On July 18, 2025, the United States Court of Appeals for the District of Columbia Circuit (“DC Circuit”) issued an opinion in In re Sealed Case that likely makes it easier for electronic communication service providers to: (1) challenge case-wide, “omnibus” nondisclosure orders (“NDOs”) under the Stored Communications Act (“SCA”); and (2) pursue those challenges even when, for one reason or another, the nondisclosure obligation is no longer in effect.
The SCA authorizes the government to apply for an NDO prohibiting providers from disclosing subpoenas, warrants, or court orders for customer records. Under 18 U.S.C. § 2705(b), a court shall issue such a nondisclosure order “if it determines that there is reason to believe” disclosure “will result in (1) [danger to] physical safety . . . ; (2) flight from prosecution; (3) destruction of or tampering with evidence; (4) intimidation of potential witnesses; or (5) [other actions] seriously jeopardizing an investigation or unduly delaying a trial.” (emphasis added)
In Sealed Case, a magistrate judge issued an NDO and a separate order authorizing the government to attach the NDO to any subpoena issued in a particular investigation over the next year (regardless of the target or recipient of the legal process), so long as the government decided that disclosure of the subpoena would risk one of the harms specified in Section 2705(b). The government attached the NDO to a later-issued subpoena requiring X Corp. (“X”) to disclose user data. X challenged the NDO and the magistrate’s authorizing order.
According to the DC Circuit, an issuing court must always make a “reason to believe” determination. The DC Circuit provides three illustrative scenarios:
- If the order covers just one subpoena, the inquiry is straightforward (i.e., there is a reason to believe disclosing that subpoena will result in a statutory harm).
- If the order covers multiple subpoenas, the court must make a determination that addresses all those subpoenas.
- If the order applies to future, hypothetical subpoenas, the court must ordinarily identify the types of subpoenas to which its order can apply so it can explain why it has reason to believe disclosure of those potential subpoenas will cause harm.
Sealed Case fell into the third scenario, and the DC Circuit held that the NDO and accompanying order failed to comply with the SCA in two respects. First, the issuing court did not explain why it had reason to believe that disclosure of any multitude of covered subpoenas potentially issued during the next year would result in one of the requisite harms. The DC Circuit explained that a court issuing an NDO must make a determination that there is “reason to believe” that a harm enumerated in Section 2705(b) “will” arise from disclosure of any subpoena potentially covered by an NDO. Due to the evolving nature of criminal investigations, the DC Circuit was skeptical that a court could make the requisite finding for a whole year in the future. Second, the authorizing order provided no meaningful limit on the potential targets of the future subpoenas; it allowed application of the NDO to any service provider, regardless how tangential the account was to the targets of the investigation.
The DC Circuit explicitly did not rule out the possibility that prospective, multi-subpoena NDOs might be able to be crafted to satisfy the statute’s requirements. It suggested that to remedy the defects in this case, the issuing court would need to find reason to believe that the risk of harm would still exist for subpoenas issued in the future and address the potential variety among such subpoenas. When an issuing court fails to do this, it impermissibly delegates its job to the government. However, the DC Circuit declined to provide a “blueprint” for what form the necessary findings must take.
The DC Circuit also held that X had standing to litigate the validity of the NDO, and that, although the NDO was no longer in place, the dispute was not moot because it was “capable of repetition yet evading review.” X receives thousands of subpoenas and other legal process every year, and the government acknowledged it is likely to again request broad authorization to serve NDOs on providers like X. Thus, this decision lends support to providers seeking to challenge current and future NDOs, even when the dispute would otherwise be mooted by developments such as the expiration of the provider’s nondisclosure obligation.
Finally, because the DC Circuit reversed the order on the SCA’s requirements alone, it did not reach X’s additional arguments that the order violates the First Amendment and that the district court improperly relied on ex parte evidence.
