A nondisclosure order (NDO) in a search warrant covering third parties was valid under the California Electronic Communications Privacy Act (CalECPA) and First Amendment. Microsoft was prohibited under the NDO from informing its customer, the University of Southern California, of the existence of a warrant to search a USC student email account related to a criminal investigation of the student. The NDO had been lifted, but the issue was not moot as it was capable of repetition and evading review. The trial court made the proper findings under CalECPA to issue the NDO based on a sealed affidavit. Additionally, under…
A nondisclosure order (NDO) in a search warrant covering third parties was valid under the California Electronic Communications Privacy Act (CalECPA) and First Amendment. Microsoft was prohibited under the NDO from informing its customer, the University of Southern California, of the existence of a warrant to search a USC student email account related to a criminal investigation of the student. The NDO had been lifted, but the issue was not moot as it was capable of repetition and evading review. The trial court made the proper findings under CalECPA to issue the NDO based on a sealed affidavit. Additionally, under strict scrutiny, Microsoft's First Amendment rights were not violated because the NDO was narrowly tailored to the compelling government interest of protecting the integrity of the ongoing investigation.
The full opinion is available on the court’s website here: https://www4.courts.ca.gov/opinions/documents/B347381.PDF