On August 9, the U.S. Court of Appeals for the D.C. Circuit issued the public version of its decision (first issued last month) affirming a nondisclosure order (“NDO”) imposed on Twitter in connection with a Stored Communications Act (“SCA”) warrant directing the company to produce information to the government about the account @realDonaldTrump. The court rejected Twitter’s First Amendment challenge to the NDO, held that the district court was not required to defer enforcement of the warrant while Twitter litigated its challenge to the NDO, and affirmed the imposition of a $350,000 contempt sanction on the company for its failure to meet a court-imposed deadline for completing its production.
The decision highlights some of the pitfalls that a company may encounter in challenging an NDO and offers insights about how to avoid them. As discussed below, a party challenging an NDO should be careful to timely raise all claims and objections to preserve them for later review; simultaneously raise and litigate any issues with the legal process and the accompanying NDO; give careful thought to any request to modify an NDO to permit limited notice; and promptly raise and highlight the importance of permitting notice (such as the likely existence of responsive attorney-client privileged communications).
The Warrant and NDO
In January 2023, the government obtained and served on Twitter a search warrant directing the company to produce data related to former President Trump’s account in connection with Special Counsel Jack Smith’s investigation of potential interference with the peaceful transfer of power following the 2020 presidential election. The warrant was accompanied by an NDO prohibiting Twitter from disclosing the existence or the contents to any person for 180 days. The district court issued the NDO after finding, pursuant to the SCA, that there were reasonable grounds to believe that disclosing the warrant to Trump would seriously jeopardize the investigation by giving him the opportunity to destroy evidence, change patterns of behavior, or notify confederates.
After the production deadline specified in the warrant had passed, Twitter objected to the NDO under the First Amendment. Although Twitter did not challenge the validity of the warrant, it informed the government that it would not produce the requested data until the district court assessed the legality of the NDO. Twitter filed a motion to vacate or modify the NDO, and the government moved for an order to show cause why Twitter should not be held in contempt for its noncompliance with the warrant.
The District Court Litigation
The district court rejected Twitter’s argument that the First Amendment required adjudication of the NDO before enforcement of the warrant because the account holder otherwise would be unable to object to the production based on executive privilege. The court reasoned that the NDO and warrant were separate orders, and that delaying warrant productions pending NDO litigation would impede investigations and increase the risk of evidence loss. The court found Twitter in contempt for failing to comply with the warrant but gave the company the opportunity to purge its contempt by producing the required materials by 5 p.m. the same day, a deadline that Twitter’s counsel said the company could meet. Without objection from Twitter, the court ordered that if the company failed to comply, it would be sanctioned $50,000 per day, to double every day until it completed the production. Twitter missed the deadline, at least for full compliance, and the district court imposed a sanction of $350,000 based on this formula. The court also rejected Twitter’s First Amendment challenge to the NDO on the merits.
The Court of Appeals’ Decision
The D.C. Circuit affirmed. After holding that Twitter had forfeited its statutory challenge to the NDO by not timely raising it in the district court, the Court of Appeals rejected Twitter’s First Amendment claim. Assuming without deciding that the strict scrutiny standard applied, the court concluded that the government had a compelling interest in preserving the integrity and maintaining the secrecy of its investigation, and that the NDO was narrowly tailored to advance that interest. After observing that “narrowly tailored” does not mean “perfectly tailored,” the court held that order was narrowly tailored because it was time-limited to 180 days, covered only information that Twitter obtained from the government, and permitted the company to raise general concerns about warrants and NDOs and to speak publicly about the January 6 investigation.
The Court of Appeals rejected Twitter’s proposed less-restrictive alternatives, which would have involved revealing parts of the warrant to Trump or to his representatives. The court reasoned that notifying the former President would have defeated the NDO’s purpose of the not tipping him off about the investigation, and that notifying his representatives would have given the district court the “unpalatable job” of assessing their trustworthiness. According to the Court of Appeals, such alternatives would not have accomplished the government’s goals as effectively.
Next, the court held that the district court had acted within its discretion in enforcing the warrant before entertaining Twitter’s First Amendment challenge to the NDO. According to the Court of Appeals, the district court reasonably treated the warrant and the NDO as separate orders and correctly weighed the government’s need for the evidence at issue in enforcing the warrant first. The court found unpersuasive Twitter’s “underdeveloped” argument that the First Amendment required litigation on the NDO to precede the data production, reasoning that the NDO was issued only after the district court had considered the requisite factors and made appropriate findings, and that the NDO merely precluded the disclosure of “a single specific piece of information.”
Lastly, the court affirmed the $350,000 contempt sanction. Because Twitter had stated that it stood ready to comply with the court-imposed production deadline but then failed to do so — and because it raised “multiple questions” about the scope of the warrant only after the deadline had passed — the Court of Appeals found that the district court acted within its discretion in finding Twitter in contempt. As to the size of the sanction, the Court of Appeals recognized that a “geometric schedule is unusually and generally would be improper without an upper limit on the daily fine.” But the court nevertheless upheld the sanction because Twitter had not objected to the formula, and because it found the amount actually imposed was reasonable given Twitter’s $40-billion valuation and the district court’s goal of coercing its compliance.
Takeaways from the D.C. Circuit’s Decision
- Preserving objections in court. The D.C. Circuit did not entertain two of Twitter’s claims on appeal — its statutory challenge to the NDO and its objection to the district court’s sanction formula — because counsel failed to preserve them in the district court.
- Timely raising any objections to legal process while challenging the accompanying NDO. The court of appeals’ treatment of the warrant and NDO as separate orders, and its holding that the district court had discretion to consider the warrant before the NDO, counsels in favor of simultaneously raising and litigating challenges to legal process and accompanying NDOs. In hindsight, Twitter put itself in an untenable position by failing to raise questions about the scope of the production required by the warrant until after the district court’s production deadline had passed.
- Proposing less restrictive alternatives to an NDO. Although First Amendment strict scrutiny doctrine requires the government to establish that alternative measures that burden less speech would fail to achieve its interest (here, preserving the integrity and secrecy of investigations), the court of appeals rejected Twitter’s proposed alternatives — revealing parts of the warrant to Trump or his representatives — out of hand. This may be a case of bad facts making bad law, as the context of the opinion suggests the court of appeals may have had particular concerns about evaluating the trustworthiness of Trump, a former President, and his representatives, which included former Executive Branch officials who may have been involved directly in the activity under investigation. To be sure, the government and courts are generally reluctant to accept such alternatives when proposed by providers, but Twitter may have doomed itself from the outset by proposing providing notice to the subject of the investigation, making it easy for the court to brush aside the proposal with little thought or consideration. A party seeking to modify an NDO to permit notification of an executive or in house attorney should, if possible, identify someone with established credibility not likely involved directly in the conduct under investigation, and consider conditioning disclosure on the court specifically prohibiting that person from making further disclosures.
- Highlighting the importance of notice. The court of appeals downplayed the importance of notice in enabling the affected account holder to assert their rights. According to the decision, Twitter asserted in the district court that notice was needed to permit Trump to raise executive privilege as an objection to producing requested communications, but the company apparently did not develop that argument. In any event, this case highlights the importance of promptly identifying issues such as the likely existence of attorney-client privileged communications in the materials subject to production and highlighting and developing them in communications with the government and submissions to the court about the need for at least limited notice.
- Considering the duration of the NDO. In assessing whether the NDO at issue was narrowly tailored, the court of appeals began by observing that the order was initially limited to 180 days. The court acknowledged, however, that indefinite NDOs are problematic under the First Amendment. A provider challenging an NDO of substantially longer, or indefinite, duration should remember to emphasize that fact in bringing any challenge.