United States District Court, D. Hawaii
CALEB W. HUMPHREY, Movant,
DEPARTMENT OF DEFENSE, Respondent.
ORDER DENYING MOTION TO QUASH SUBPOENA
Derrick K. Watson, United States District Judge
Caleb W. Humphrey seeks to quash a subpoena issued by the
Department of Defense Office of Inspector General
(“OIG”) to Facebook, Inc., seeking non-content
records for a Facebook account purportedly belonging to
Humphrey. Because the subpoena is within the OIG's
authority to issue and satisfies procedural requirements, and
because the information sought is relevant and material to an
investigation, the Motion to Quash is DENIED.
18, 2017, the Air Force Office of Special Investigations
(“AFOSI”) initiated an investigation of Humphrey
and his wife for violations of the Uniform Code of Military
Justice (UCMJ) and the United States Code, relating to the
death of their infant son and injuries to their infant
daughter. Declaration of Special Agent Roberto A.
Flores-Rendon (“Flores Decl”) ¶ 2. The
investigation was initiated after doctors treating
Humphrey's daughter in July 2017 alerted child welfare
services that their examination revealed indications of
possible abuse. Id. ¶¶ 4-10. The
subsequent inquiry led the chief medical examiner to
re-examine the cause of death of Humphrey's son in 2016
and to conclude that the manner of death was homicide.
the course of the investigation, AFOSI interviewed two of
Humphrey's co-workers who described communications they
had with Humphrey via Facebook Messenger in the time period
leading up to the death of Humphrey's son and the
injuries to his daughter. Id. ¶¶12-13. On
August 13, 2018, AFOSI served Facebook with a subpoena issued
by the OIG for subscriber information related to a Facebook
account purportedly belonging to Humphrey. Id.
September 7, 2018, Humphrey filed a Motion, based on the
Fourth Amendment, to quash the subpoena issued by the OIG to
Facebook. Dkt No. 1. The Government filed its Opposition to
the Motion on September 24, 2018. Dkt No. 8. That Opposition
includes the sworn declaration of AFOSI Special Agent Roberto
A. Flores-Rendon. Humphrey did not reply. See Dkt
No. 4 (setting a September 28, 2018, deadline to reply).
the Stored Communications Act, 18 U.S.C.A. §§ 2701
et seq. (“SCA”), providers of electronic
communications services must disclose stored customer
information to the Government under certain circumstances.
Under Section 2703(c)(2), a subpoena is sufficient to require
the provider to disclose basic, non-content, subscriber
information, including, names, addresses, local and long
distance telephone connection records, length of service,
subscriber number or identity, and means of payment. The SCA
does not require the Government to notify the customer whose
records are being sought and does not create a mechanism for
customers to challenge an administrative subpoena issued to a
service provider for non-content communications. See
18 U.S.C. § 2703(c)(3); Sams v. Yahoo!, Inc.,
2011 WL 1884633 (N.D.Cal. May 18, 2011), aff'd,
713 F.3d 1175 (9th Cir. 2013) (noting that notice is not
required where Government seeks non-content information from
an internet service provider).
Ninth Circuit standard of judicial scrutiny in an agency
subpoena enforcement proceeding relies on a three-part test:
(1) whether Congress has granted the authority to
investigate; (2) whether procedural requirements of the
subpoena have been followed; and (3) whether the information
sought is relevant and material to an investigation.
Brock v. Local 375, Plumbers Int'l Union of Am.,
AFL-CIO, 860 F.2d 346, 349 (9th Cir. 1988) (citations
omitted). An affidavit from a Government official is
sufficient to make a prima facie showing that these
requirements have been met. F.D.I.C. v. Garner, 126
F.3d 1138, 1143 (9th Cir. 1997). Finally, “[i]f the
agency establishes these factors, the subpoena should be
enforced unless the party being investigated proves the
inquiry is unreasonable because it is overbroad or unduly
burdensome.” Id. (citing EEOC v.
Children's Hospital Medical Center, 719 F.2d 1426,
1428 (9th Cir.1983) (en banc) (overruled on other grounds).
of third-party service providers do not have a reasonable
expectation of privacy in their non-content subscriber
information. The court's review of an administrative
subpoena for such subscriber information is limited to a
narrow reasonableness analysis under the Fourth Amendment.
Here, the subpoena satisfies the reasonableness test,
resulting in the denial of Movant's challenge.
Minimal Scrutiny Is Employed Where An Administrative Subpoena
Only Seeks Non-Content Information
is no provision in the SCA allowing a customer whose
non-content records are being sought to challenge
disclosure of that information. Non-content disclosures are
governed by 18 U.S.C. § 2703(c), which does not even
require notice to the customer, much less specify a process
for challenging a subpoena. 18 U.S.C § 2703(c)(3);
Doe v. U.S. S.E.C., 2011 WL 5600513, at *3 (N.D.
Cal. Nov. 17, 2011). By contrast, where the content
of communications is sought from an electronic services
provider, Section ...