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Humphrey v. Department of Defense

United States District Court, D. Hawaii

October 16, 2018



          Derrick K. Watson, United States District Judge


         Movant 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.


         On July 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. Id. ¶10.

         During 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. ¶¶ 17-18.

         On 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).


         Under 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).

         The 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).


         Customers 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.

         I. Minimal Scrutiny Is Employed Where An Administrative Subpoena Only Seeks Non-Content Information

         There 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 ...

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