California Legal Brief

The Rule of Microsoft Corporation v. Superior Court of Los Angeles County is that a trial court may issue a nondisclosure order prohibiting an electronic service provider from notifying its enterprise customer of a search warrant's existence, under circumstances where the court has reviewed a sealed affidavit and found that disclosure could cause adverse results enumerated in CalECPA, even when the provider proposes to notify only a "trusted contact" at the customer organization who is not the target of the investigation.

Appeal from order denying motion to modify nondisclosure order in Superior Court, Los Angeles County.

Petitioner was Microsoft Corporation — the electronic service provider that sought to notify USC about the warrant's existence while keeping the target's identity confidential.

Respondent was Superior Court of Los Angeles County. Real Party in Interest was City of Los Angeles — the government entity that obtained the search warrant and nondisclosure order for a rape investigation.

The suit sounded in criminal investigation procedure under CalECPA. Microsoft challenged the nondisclosure order on statutory and First Amendment grounds.

The key substantive facts leading to the suit were that LAPD served Microsoft with a search warrant for email data of USC graduate student Sizhe Weng in connection with a rape investigation, accompanied by a 90-day nondisclosure order prohibiting Microsoft from notifying anyone including USC about the warrant's existence, based on a sealed detective affidavit showing potential adverse results from disclosure.

The procedural result leading to the Appeal: The trial court denied Microsoft's motion to modify the NDO to permit notification of a "trusted contact" at USC, ruling that the sealed affidavit sufficiently supported the original NDO and that USC was not subject to court jurisdiction and could not be bound by confidentiality requirements.

The key question(s) on Appeal: 1) Whether the nondisclosure order violated CalECPA by lacking required judicial findings, and 2) Whether the NDO violated Microsoft's First Amendment free speech rights under strict scrutiny analysis.

The Appellate Court held that nondisclosure orders prohibiting electronic service providers from notifying enterprise customers about search warrants are valid under CalECPA and the First Amendment when the trial court independently reviews a sealed affidavit and finds disclosure could cause adverse results, even where the provider proposes limiting disclosure to trusted contacts, because courts cannot be expected to vet third parties' trustworthiness and such persons are not subject to court jurisdiction requiring confidentiality.

The case is inapplicable when the trial court fails to independently review supporting evidence before issuing the NDO, when no sealed affidavit demonstrates potential adverse results from disclosure, when the proposed third party would be subject to court jurisdiction and could be bound by confidentiality orders, or when the investigation does not involve serious violent crimes.

The case leaves open whether different First Amendment standards might apply to NDOs beyond strict scrutiny, what specific factual showings are required in sealed affidavits to support adverse result findings, and how courts should handle disclosure requests involving third parties who could be made subject to court jurisdiction and binding confidentiality orders.