New opinion: Third Circuit rejects First Amendment challenge to orders barring disclosure of subscriber-data subpoenas

In the Matter of the Application of Subpoena 2018R00776—First Amendment—affirmance—Roth

On Friday, the Third Circuit held that an order barring a service provider from disclosing to anyone that it had turned over subscriber data stored on the cloud to a grand jury did not violate the First Amendment. The government’s interest in maintaining grand jury secrecy was sufficient to uphold the non-disclosure orders, even though they amounted to prior restraint subject to strict scrutiny. The subpoenas and non-disclosure orders were pursuant to the Stored Communications Act. The service provider had sought to disclose to a third party, the subscriber’s bankruptcy trustee, and argued that such disclosure posed no risk to the grand jury’s investigation, but the court concluded that “[d]isclosure to anyone outside of the grand jury process would undermine the proper functioning of our criminal justice system.”

Roth was joined by Restrepo and Fisher. The opinion did not identify the parties’ counsel.