X's Win in Federal Court Is a Victory for Free Speech and Open Disclosure

The D.C. Circuit Court of Appeals has placed minor restraints on the government’s ability to impose gag orders on secret subpoenas issued to tech companies.

X Corp., formerly Twitter, has finally scored a win in its decade-long free speech fight against the federal government.

In 2023, a magistrate judge issued a year-long nondisclosure order prohibiting X from  "disclosing subpoenas, warrants, or court orders for customer records" it received from the Justice Department (DOJ). In 2024, X received a subpoena from the DOJ demanding the personal information of former FBI agents Kyle Seraphin and Garrett O'Doyle, who testified before Congress about the FBI's politically motivated targeting of certain groups, according to the company's Global Government Affairs team. X sued the agency, arguing that the order violated Section 2705(b) of the Stored Communications Act (SCA). In 2024, a district court upheld that order. Last week, in an opinion filed by Judge Bradley Garcia, the D.C. Circuit Court of Appeals reversed that earlier ruling, siding with X and finding that the nondisclosure order sought by the Justice Department violated the SCA.

The SCA prohibits service providers from sharing consumer records and electronic communications "with any person or entity, but contains exceptions, such as when the government compels the information," explains the Congressional Research Service. Sections 2703 and 2705(b) of the SCA are key to the case. Section 2703 outlines the government's burden of proof for compelling record sharing, while Section 2705(b) dictates the process for non-disclosure orders, which can delay customer notification. 

To satisfy Section 2705 (b) of the SCA and issue a nondisclosure order, a court must find "reason to believe" that disclosing a subpoena or warrant "will" have an adverse effect, including physical danger, flight risks, evidence tampering or destruction, witness intimidation or "actions seriously jeopardizing an investigation or unduly delaying a trial."

In considering X's case against the Justice Department, the appeals court focused on how wide-ranging the vacated nondisclosure order was and that it could apply to subpoenas that didn't yet exist. The government's undoing was its overreach, particularly its request for a year-long, all-encompassing subpoena under Section 2705(b). Garcia notes that the government "did not have any particular subpoena or subpoenas in hand" when applying for the nondisclosure order, instead seeking to attach it to any future subpoenas issued in its year-long investigation. In his opinion, Garcia describes the magistrate judge's reasoning as insufficient, citing failures to address the "reason to believe" standard for future subpoenas, the variety of potential targets, and the outsourcing of judicial evaluation to the government.

Garcia states that such an order would only be valid if the magistrate judge explained her "reason to believe" that disclosing any covered subpoena issued within the year "will result" in harm. He also notes that the reasoning for this order would differ from that attached to an existing subpoena, as it would place discretion for assessing risk of harm with the government, not the courts.

While the court sided with X, stating the law prohibits prospective gag orders on unissued subpoenas, it also left room for future orders on a case-by-case basis. The court also clarified that single orders can cover multiple subpoenas, provided that a "reason to believe" determination is made for each. X's First Amendment claims were not addressed due to "judicial restraint."

Although the ruling is narrow in scope, the Court of Appeals' admonition of the government's attempt to expand its powers is a win for free speech advocates, especially given the Supreme Court's decision not to hear cases regarding federal nondisclosure orders to X twice in 2024 and the fact that X stated it periodically receives subpoenas of this nature from the DOJ.

Efforts by Congress to curb the use of nondisclosure orders and expand what service providers like X can disclose to the public have failed, with bills often dying before the Senate Judiciary Committee considers them.