SCNo.20-sc-3361 ACCOUNTSSERVICEDBYGOOGLE ...

requesting that the Court issue an Order requiring Google LLC (“PROVIDER”), an electronic

communication and/or remote computing service provider located in MountainView, California,

to disclose the records and other informationdescribed in Attachment A to this Order. The Court

finds that the United States has offered specific and articulable facts showing that there are

reasonable grounds to believethat the recordsor other informationsought are relevant and material

to an ongoing criminal investigation. Furthermore, the Court determines that there is reason to

believe that notification of the existence of this Order will seriously jeopardize the ongoing

investigation, including by giving targets an opportunity to destroy or tamper with evidence. See

18 U.S.C. § 2705(b)(3) and(5).

within ten days of receipt of this Order, disclose to the United States the records and other

informationdescribed in Attachment A to this Order.

disclose the existence of the application of the United States or this Order of the Court to any other

Case 1:20-sc-03361-ZMF*SEALED* Document 2 Filed01/05/21 Page 1 of 5

UNITEDSTATESDISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

INREAPPLICATIONOF USAFOR2703(d)ORDERFORSIXEMAIL

ACCOUNTSSERVICEDBYGOOGLE

LLCFORINVESTIGATIONOF

VIOLATIONOF 18U.S.C.

SCNo.20-sc-3361

FiledUnder Seal

ORDER

The United States has submitted an Application pursuant to 18 U.S.C. § 2703(d),

IT IS THEREFORE ORDERED,pursuant to 18 U.S.C.§ 2703(d), that PROVIDERshall,

IT IS FURTHERORDERED,pursuant to 18 U.S.C. § 2705(b),that PROVIDERshall not

person (except attorneys for PROVIDERfor the purpose of receiving legal advice) for a period of

Case 1 20- -03361- * SEALED* Document2 Filed 01/05/21 Page 2 of 5

one year ( commencing on the date of this Order ), unless the period of nondisclosure is later

modifiedby the Court.

IT IS FURTHERORDEREDthat the ApplicationandthisOrderare sealeduntilotherwise

ordered by the Court, except that the United States may disclosethe existence and/or contentsof

the Application and this Order to appropriate law enforcement authorities.

2020.12.30

21:53:44 'Date: DISTRICTOF

UNITED STATES MAGISTRATEJUDGE

2

Case 1 :20- 03361- * SEALED* Document2 Filed 01/05/21 Page 3 of 5

ATTACHMENT A

The Account(s)

The Order applies to certain records and other information for any Google LLC

( “ PROVIDER ) account(s) associatedwith the followingidentifier( )

@nytimes.com(TARGET ACCOUNT 1) ;

@ nytimes.com (TARGET ACCOUNT 2) ;

@ nytimes.com (TARGET ACCOUNT 3 );

@ nytimes.com(TARGET ACCOUNT 4);

@ nytimes.com (TARGET ACCOUNT 5 );

@ nytimes.com (TARGET ACCOUNT 6) ;

and any preserved data and/or preservation numbers associated therewith .

II. Recordsandotherinformationto be disclosed

A. Informationabout the customeror subscriberofthe Account(s)

PROVIDERis required to disclose to the UnitedStates the followingrecords and other

information, if available, for each account or identifier listed in Part of this Attachment (the

“ Account(s) ” ) constitutinginformationaboutthe customeror subscriberofthe Account( s) for the

time period from January 14, 2017, through April 30, 2017:

1. Names including subscriber names,user names, andscreen names);

2. Addresses ( including mailing addresses, residential addresses , business addresses , andemailaddresses);

3. Localand longdistancetelephoneconnectionrecords;

4. Records of session times and durations, and the temporarily assigned network

addresses(such as InternetProtocol( IP ) addresses) associatedwith those sessions;

Case 1 :20- -03361- * SEALED* Document2 Filed 01/05/21 Page 4 of 5

5. Length of service ( including start date ) and types of service utilized;

6. The identity of any cookies associated with each account ;

7. Telephone or instrument numbers (including MAC addresses) Electronic Serial

Numbers (“ ESN ), Mobile Electronic Identity Numbers (“ MEIN ” ), Mobile EquipmentIdentifier ( “MEID ” ) Mobile Identification Numbers (“MIN ” ), Subscriber Identity

Modules (“ SIM ” ), Mobile Subscriber Integrated Services Digital Network Number

(“MSISDN , International Mobile Subscriber Identifiers ( “ IMSI” ), or International

Mobile Equipment Identities (“ IMEI” ) associated with the accounts;

8. Othersubscribernumbersor identities(includingthe registrationIP address), includingany current or past accounts linkedto the Account(s) by telephonenumber, recovery

or alternatee-mailaddress, IP address, or other uniquedevice or user identifier; and

9. Means and source of payment for such service (including any credit card or bank

account number) and billingrecords.

10. A statementas to whetherthe Account(s) or any devices associatedwiththe Account(s)

had location services or GPS activated or enabled and if so , whether PROVIDER does

or does not have geolocation available for the Account (s) or any devices

associated with the Account (s) for the time period from January 14, 2017 through April30, 2017

B. All records and other information relating to the Account(s) (except the contents of

communications )

PROVIDERis required to disclose to the UnitedStates the followingrecords and other

information, ifavailable, for the Account(s) for the time period from January 14, 2017, through

April 30, 2017, constituting all records and other information relating to the Account(s) (except

the contentsofcommunications), including:

1. Records of user activity for each connection made to or from the Account (s), including

log files; messaging logs ; the date, time, length , and method of connections ; datatransfer volume ; user names and source and destination Internet Protocol addresses ;

2. Informationabout each electroniccommunicationsent or receivedby the Account(s) ,

including the date and time of the communication, the methodof communication , and

2

Case 1 :20- 03361-ZME *SEALED* Document 2 Filed 01/05/21 Page 5 of 5

the source and destination of the communication (such as source and destination email

addresses , IP addresses , and telephone numbers), and any other associated header or

routing information ; and

3. Identification of any PROVIDER account(s ) that are linked to the Account(s ) by

cookies, includingallPROVIDERuser IDs that loggedinto PROVIDER'sservices bythe same machineas the Account(s ).

4. Identificationofany forwarding email services used to or from the Account, includingthe header identification and metadata information associated with communications

forwarded to PROVIDER Accounts from other email accounts or forwarding services .

5. Identification ofall services and features activated on the Account ( s ), including use of

Google Drive and related features.

A. Definitions:

1. As used herein, “unique device or user identifier ” refers to any unique number or set of

characters stored or generated by Google that may be used to identify or track users or

devices, including but not limited to cookies, unique application number, universally

unique identifier or “ UUID , ” globally unique identifier or “GUID ” Advertising ID,Android ID, MAC address, IMEI number, MEID number, and electronic serial number

or ”

2. As used herein , “ cookies” refers to any cookie technology used by Google, including

cookies related to user preferences (such as NID), security cookies , process cookies,

cookies used for advertising (such as NID, SID, IDE, DSID, FLC, AID, TAID , andexchange_uid ) cookies linking activity across devices (such as AID and TAID),session state cookies, and cookies pertaining to Google Analytics .

3

Case 1 :20- 03361-ZME * SEALED* Document 3 02/25/21 Page 1 of 3

UNITED STATES DISTRICT COURT


SC No.20- - 3361

INRE APPLICATION OF USA FOR

2703(d ) ORDER FOR SIX EMAILACCOUNTS SERVICED BY GOOGLEFOR INVESTIGATION OF VIOLATION

OF 18 U.S.C.

FiledUnderSeal

MOTION TO MODIFY ORDER

The United States of America , moving by and through its undersigned counsel, respectfully

submitsunder seal thisex partemotionto modifythe nondisclosureprovisioninthe Order inthis

matter.

On January 5 , 2021, this Court issued an Order pursuant to 18 U.S.C. 2703(d) , that

included a nondisclosure provision that forbade Google LLC ( “Google” ), the Provider from

providing notice of the legal process to any person “ except attorneys for PROVIDER for the

purpose of receiving legal advice. ” That Order was promptly served on Google on the same day.

Google did not respond to the filing, and the Order was resubmittedto Google on February 3 ,

2021. Google has since responded through outside legal counsel and indicated that Google will

not comply with the Orderbecause the accounts are “ enterprise clients ” ( i.e., corporate clients who

use Google email services) . In undersigned's discussions with Google's counsel Google has

confirmedit has recordsresponsiveto the Order, and they wouldwithdraw their own objections

to the production of material if the United States would obtain permission of the Court to : ( 1)

modifythe nondisclosureprovisionso that Googlecould share the Orderwiththe DeputyGeneral

Counsel for the New York Times, and (2 ) provide that Google not produce

1inGoogle is represented by

Washington, D.C.

Case 1 :20- 03361- * SEALED* Document3 02/25/21 Page 2 of 3

materialresponsiveto the Order for 14 days aftersuchdisclosureis made to

While the United States takes issue with Google's legal position, in an effort to expedite

any litigation of the Order, the United States is amenable to a limited modification of the

nondisclosure provision for Google to providenotice solely to and for the extension

of time. A draft proposed Order is attached to this motion.

This matter is alreadyunder seal, and the UnitedStates further requeststhat this Motion

and proposed Order be filed under seal . The Court has the inherent power to seal court filings

whenappropriate, includingthe proposedOrder. UnitedStates v. Hubbard, 650 F.2d293, 315-16

(D.C. Cir. 1980) (citing Nixon v. Warner , Inc., 435 U.S. 589 598 ( 1978)) More

particularly, the Court may seal the materials to prevent serious jeopardy to an

investigation when such jeopardy creates a compelling governmental interest in confidentiality .

See WashingtonPost v Robinson, 935 F.2d282, 287-89 (D.C. Cir. 1991). For the reasonsstated

previously, the United States has a compelling interest in confidentiality to justify continued

sealingof the motionand proposedOrder.

2

Case 1 :20- 03361-ZME * SEALED* Document 3 02/25/21 Page 3 of 3

CONCLUSION

Based on the foregoing, the United States requests that the Court grant the proposed Order.

Respectfully submitted ,

MICHAEL R. SHERWIN

Acting United States Attorney

AssistantUnited States Attorney

3

Case 1 :20- -03361- * SEALED* Document3-1 Filed 02/25/21 Page 1 of 1



SC No. 20- - 3361


2703(d ) ORDER FOR SIX EMAILACCOUNTS SERVICED BY GOOGLE

LLC FOR INVESTIGATION OF

VIOLATION OF 18 U.S.C.Filed Under Seal

ORDER

Uponconsiderationof the Government'sex parteMotionto Modify Order in this matter,

the Court agreesto providethe reliefrequested.

IT IS THEREFORE ORDERED , that the United States serve this Order onto Goolge LLC

( “Google” ), and that Google may disclose the existence and substance of this Order and the

January 5 , 2021 Order to DeputyGeneral Counselfor the NewYork Times, but

that Google, its counsel, and may not share the existence or substance of either of

theseOrderswith any otherpersonwithoutfurtherapprovalfromthisCourt(untilJanuary5, 2022,

unless later modifiedby the Court).

IT IS FURTHER ORDERED that Google shall promptly provide the Government with all

recordsresponsiveto this Court'sJanuary 5 , 2021OrderbyMarch 11, 2021.

AND IT IS FURTHER ORDERED the Government's Motion to Modify Order and this

Order be sealed until otherwise ordered by the Court, except that the United States may disclose

the existenceand/or contentsof this Orderto appropriatelaw enforcementauthorities.

Date :

UNITEDSTATESMAGISTRATEJUDGE




SC No.20- - 3361


2703(d ) ORDER FOR SIX EMAILACCOUNTS SERVICED BY GOOGLELLC FOR INVESTIGATION OF


ORDER

Upon consideration of the Government's ex parte Motionto Modify Order in this matter,

the Court agreesto providethe reliefrequested.

IT IS THEREFORE ORDERED , that the United States serve this Order onto Goolge LLC

(“Google ” ) and that Google may disclose the existence and substance of this Order and the

January 5 , 2021 Order to Deputy General Counsel for the New York Times, but

that Google, its counsel , and may not share the existence or substance of either of

these Orderswith any otherpersonwithoutfurther approvalfromthisCourt(untilJanuary5, 2022,

unless later modified by the Court ).

IT IS FURTHERORDERED that Google shall promptly provide the Government with all

records responsive to this Court's January 5 , 2021 Order by March 11, 2021.

AND IT IS FURTHERORDEREDthe Government'sMotionto ModifyOrder and this

Order be sealeduntilotherwiseorderedby the Court, except that the UnitedStates may disclose

the existenceand/or contentsofthis Orderto appropriatelaw enforcementauthorities.&

2021.03.02

17:49:40 'Date:

DISTRICTOF


submits under seal this second ex parte Motion to Modify the nondisclosure provision in the Order

in this matter.

included a nondisclosure provision that forbade Google LLC (“Google”), the Provider, from

providing notice of the legal process to any person “except attorneys for PROVIDER for the

purpose of receiving legal advice.” That Order was promptly served on Google. After consulting

with Google, the United States moved to modify the nondisclosure order. On March 3, 2021, this

Court granted the motion and permitted Google to share the Order with the Deputy General

Counsel for the New York Times, and extended the period for Google’s

production of records to March 11, 2021. The United States has since spoken to

who requested that: (1) the nondisclosure be further modified so that can notify his

supervisor, General Counsel for the New York Times and outside counsel,

that the production of records date for Google be extended 21 days from the execution of the

modified nondisclosure order.



FORINVESTIGATIONOF VIOLATION

OF 18U.S.C.§§


The UnitedStates of America,movingby and through its undersignedcounsel,respectfully

On January 5, 2021, this Court issued an Order pursuant to 18 U.S.C. § 2703(d), that

Without conceding any legal position, the United States is amenable to a limited

SECOND MOTIONTO MODIFY ORDER



SCNo.20-sc-3361

FiledUnder Seal

of the aw firm, (2) and

modificationof the nondisclosure provision to provide notice solely to the above persons (and any

other yet-to-be identified legal staff at who are assigned to this matter) and for the

extension of time. A draft proposed Order is attached to this motion.

and proposed Order be filed under seal. The Court has the inherent power to seal court filings

when appropriate, including the proposed Order. UnitedStates v. Hubbard,650 F.2d 293, 315-16

(D.C. Cir. 1980) (citing Nixon v. Warner Commn’ns, Inc., 435 U.S. 589, 598 (1978)). More


investigation when such jeopardy creates a compelling governmental interest in confidentiality.

See Washington Post v. Robinson,935 F.2d 282, 287-89 (D.C. Cir. 1991). For the reasons stated


sealing of the motion and proposed Order.



This matter is already under seal, and the United States further requests that this Motion

CONCLUSION

Respectfully submitted,

CHANNING D.PHILLIPS


2

matter, the Court agrees to provide the relief requested.

(“Google”), and that the United States, Esq., and Google may disclose the

existence and substance of this Order, and this Court’s Orders of January 5, 2021 and March 3,

2021in this matter, to (1) the General Counsel for the New York Times and (2)

its outside counsel, of the

to the matter), but that none of these persons may share the existence or substance of any of these

Orders with any other person without further approval from this Court (until January 5, 2022,

unless later modified by the Court).

and that Google shall promptly provide the Government with all recordsresponsive to this Court’s

Case 1:20-sc-03361-ZMF*SEALED* Document 5-1 Filed03/05/21 Page 1 of 2






VIOLATIONOF 18U.S.C.§§

SCNo.20-sc-3361

FiledUnder Seal

ORDER

Upon consideration of the Government’s ex parte Second Motion to Modify Order in this

IT IS THEREFORE ORDERED, that the United States serve this Order onto Google LLC

law firm (and any yet-to-be identified firm attorneysor legal staff at assigned

IT ISFURTHERORDEREDthat this Court’sMarch3, 2021Order is herebyMODIFIED,

January 5, 2021Order within 21days of this Order.


the existence and/or contents of this Order to appropriate law enforcement authorities.


AND IT IS FURTHER ORDERED the Government’s Motion to Modify Order and this

Date: ___________________________________

UNITED STATES MAGISTRATE JUDGE

2


(“Google”), and that the United States, Esq., and Google may disclose the

existence and substance of this Order, and this Court’s Orders of January 5, 2021 and March 3,

2021in this matter, to (1) the General Counsel for the New YorN Times, nd (2)

its outside counsel, of the

to the matter), but that none of these persons may share the existence or substance of any of these

Orders with any other person without further approval from this Court (until January 5, 2022,

unless later modified by the Court).

and that Google shall promptly provide the Government with all recordsresponsive to this Court’s


UNITEDSTATES DISTRICT COURT






SCNo.20-sc-3361

FiledUnder Seal

ORDER

Upon consideration of the Government’s ex parte Second Motion to Modify Order in this

IT IS THEREFORE ORDERED, that the UnitedStates serve this Order onto Google LLC

law firm (and any yet-to-be identified firm attorneysor legal staff a assigned

IT ISFURTHERORDEREDthat this Court’sMarch3, 2021Order is herebyMODIFIED,

January 5, 2021Order within 21days of this Order.

Case 1 20- -03361- * SEALED* Document6 Filed 03/08/21 Page 2 of 2

AND IT IS FURTHERORDEREDthe Government'sMotionto ModifyOrder and this


the existenceand/ or contentsofthis Orderto appropriatelaw enforcementauthorities.

2021.03.05

17:25:19-05'00'UNITEDSTATESMAGISTRATEJUDGE

Date:

2

Case 1 :20- 03361-ZME * SEALED* Document 7 Filed 03/18/21 Page 1 of 3



SC No.20- - 3361



OF 18 U.S.C.

FiledUnderSeal

THIRDMOTION TO MODIFYORDER


submitsunder seal this secondexparteMotionto Modifythe nondisclosureprovisionin the Order

in this matter.





with Google, the UnitedStates movedto modifythe nondisclosureorder. OnMarch3 , 2021, this

Court grantedthe motionandpermittedGoogleto share the Orderwith the Deputy

General Counsel of The New York Times, and extended the period for Google's production of

records to March 11, 2021 . requestedthat: ( 1 the nondisclosurebe furthermodified

so tha could notify his supervisor GeneralCounselofTheNewYork

Times , and outside counsel,

law firm ; (2) and that the productionof records date for Google be extended 21 days from the

executionof the modifiednondisclosure order. The United States accommodated that request and

movedthis Court to modify the Order a second time. The Court granted the motion on March 8,

2021.


The United States has since consulted with who have

further requested that the nondisclosure provision be modified so they can consult with the

Publisher and Chairman of the New York Times Company, nd President and

Chief Executive Officer of the New York Times Company,


modification of the nondisclosure provision to providenotice solely to the above persons. A draft

proposed Order is attached to this motion.


and proposed Order be filed under seal . The Court has the inherent power to seal court filings

when appropriate , including the proposed Order . United States v. Hubbard , 650 F.2d 293 , 315-16

(D.C. Cir. 1980) (citing Nixon v. Warner Inc., 435 U.S. 589, 598 ( 1978)) . More

particularly, the Court may seal the materialsto prevent serious jeopardy to an

investigationwhen suchjeopardy creates a compellinggovernmentalinterest in confidentiality.

See WashingtonPost v. Robinson, 935 F.2d282, 287-89 (D.C. Cir. 1991). For the reasonsstated

previously , the United States has a compelling interest in confidentiality to justify continued


2


CONCLUSION


Respectfullysubmitted,

CHANNING D. PHILLIPS


AssistantUnited States Attorney

3




SC No. 20- - 3361





ORDER

Uponconsiderationof the Government'sex parte ThirdMotionto ModifyOrder in this

matter, the Court agrees to providethe reliefrequested.

IT IS THEREFORE ORDERED , that the United States serve this Order onto Google LLC

( “ Google ), and that the United States, and Google may disclose the

existence and substance of this Order, and this Court's Orders of January 5 , 2021, March 3 , 2021,

and March 8, 2021 in this matter, to the Publisher and Chairman of theNew York Times Company,

and President and Chief Executive Officer of the New York Times Company,

but that neither of these persons may share the existence or substance of

any of these Orders with any other person (except previously identified legal counsel) without

furtherapproval fromthis Court, untilJanuary 5 , 2022, unless later modifiedby the Court.

AND IT ISFURTHERORDEREDthe Government'sThirdMotionto ModifyOrderand

this Order be sealed until otherwise ordered by the Court, except that the United States may

disclosethe existenceand/or contentsofthis Order to appropriatelaw enforcementauthorities.

Date :





SC No.20- - 3361





ORDER

Uponconsiderationof the Government'sex parte Third Motionto ModifyOrder in this


IT IS THEREFORE ORDERED , that the United States serve this Order onto Google LLC

( “Google” ), and that the United States, and Google may disclose the

existenceand substanceofthis Order, and this Court's ofJanuary 5 , 2021, March3 , 2021,

andMarch8 2021in matter, to the Publisherand ChairmanoftheNewYorkTimesCompany,

andPresi ent and Chief Executive Officer of the New York Times Company,

but that neither of these persons may share the existence or substance of

any of these Orders with any other person (except previously identified legal counsel) without

further approval from this Court, untilJanuary 5 , 2022, unless later modifiedby the Court.

AND IT ISFURTHERORDEREDthe Government'sThirdMotionto ModifyOrderand


disclosethe existence /or contentsofthis Order to appropriatelaw enforcementauthorities.

2021.03.19

14:47:50 -04'00'

UNITED STATES MAGISTRATE JUDGEDate:




SC No.20- - 3361



FOR INVESTIGATION OF VIOLATION

OF 18 U.S.C.

FiledUnderSeal

FOURTHMOTIONTO MODIFYORDER


submitsunder seal this secondexparteMotionto Modifythe nondisclosureprovisionin the Order

in this matter.






Court grantedthe motionandpermittedGoogleto share the Orderwith he Deputy


records to March 11, 2021 . equestedthat: ( 1) the nondisclosurebe furthermodified

so that could notify his supervisor, GeneralCounselofThe New York

Times , and outside counsel ,

law firm ; (2) and that the productionof records date for Google be extended 21 days from the


movedthis Court to modify the Order a secondtime. The Court grantedthe motionon March8,

2021. After further discussion with the States agreedto

Case 1 :20- 03361- * SEALED* Document9 Filed 03/25/21 Page 2 of 3

ask this Court for leave to amend the nondisclosureprovisionso they could consult with

and The UnitedStates sought suchrelieffromthe Court, and

this Court modified the Order a third time on March 22, 2021.

Since that time, counsel for the NewYork Times has furtherrequestedthat UnitedStates

seek an extensionof time of two additionalweeks for Google to produce the orderedrecords so

that counselcan consultwith their client, and to negotiatefurtherwith the UnitedStates about the

2703 d ) Order.


modification of this Court's March 8, 2021 Order, and to extend the deadline for Google's

production of the requested material until April 12, 2021. A draft proposed Order is attached to

this motion.


and proposed Order be filed under seal. The Court has the inherent power to seal court filings

when appropriate, including the proposedOrder. UnitedStates v. Hubbard, 650 F.2d293, 315-16

(D.C. Cir. 1980) (citing Nixon v. Warner Inc., 435 U.S. 589, 598 ( 1978) . More



See Washington Post v . Robinson, 935 F.2d 282, 287-89 (D.C. Cir. 1991) . For the reasons stated

previously, the United States has a compellinginterest in confidentiality to justify continued


2


CONCLUSION





3




SC No. 20- - 3361




ORDER

Uponconsiderationof the Government'sex parte FourthMotionto ModifyOrder in this


IT IS THEREFOREORDERED, that this Court's March8, 2021 Order in this matter is

MODIFIED, and that Google LLC (“Google” ) shall produce to the UnitedStates all responsive

recordsto this Court'sJanuary 5 , 2021Order by April 12, 2021.

ANDIT IS FURTHERORDEREDthe Government'sFourthMotionto ModifyOrder and



Date:


Case 1 : - -03361-ZME *SEALED* Document 10 Filed 03/29/21 Page 1 of 1



SC No.20- - 3361





ORDER

Uponconsiderationof the Government'sex parte FourthMotionto ModifyOrder in this


IT IS THEREFORE ORDERED, that this Court's March 8 , 2021 Order in this matter is

MODIFIED, and that Google LLC (“Google” ) shall produce to the United States all responsive

recordsto this Court'sJanuary 5 , 2021Order by April 12, 2021.

ANDITISFURTHERORDEREDthe Government'sFourthMotionto ModifyOrderand



2021.03.26

17:05:55 -04'00 '

UNITED STATES MAGISTRATE JUDGEDate:

Case 1 :20- -03361- *SEALED* Document 11 Filed 04/09/21 Page 1 of 3



SC No.20- -3361


2703( d) ORDER FOR SIX EMAILACCOUNTS SERVICED BY GOOGLE

FOR INVESTIGATION OF VIOLATION

OF 18 U.S.C.

FiledUnderSeal

FIFTHMOTIONTO MODIFY ORDER

The United States ofAmerica, moving by and through its undersigned counsel, respectfully

submitsunder seal this fifth ex parteMotionto Modifythe nondisclosureprovisioninthe Order

in this matter.

On January 5, 2021, this Court issued an Order pursuant to 18 U.S.C. 2703 (d), that

included a nondisclosure provision that forbade Google LLC ( “Google” ) the Provider, from



with Google, the United States movedto modify the nondisclosure order. On March 3 , 2021, this

Court grantedthe motionandpermittedGoogleto share the Orderwith the Deputy


records to March 11, 2021. requestedthat: ( 1) the nondisclosurebe furthermodified

so that Mr. McCraw could notify his supervisor GeneralCounselofThe New York

Times, and outside counsel,

law firm ; (2) and that the productionof records date for Googlebe extended 21 days from the



2021. After further discussionwith the UnitedStates agreedto

Case 1 :20- -03361-ZME * SEALED* Document11 Filed04/09/21 Page2 of 3


The UnitedStates sought such relieffrom the Court, and

this Court modified the Order a third time on March22, 2021. Those discussions continued and

the parties again ( for a third time) requested additional time untilApril 12, 2021, which this Court

granted

Since that time , counsel for the New York Times has briefed more senior members of the

Department ofJustice and further requested that United States seek an extension of time of five

additionalweeks for Google to producethe orderedrecordsso that counsel cannegotiatefurther

with the United States aboutthe 2703 d) Order.

Without conceding any legal position, the United States is amenable to additional extension

of the deadline for Google's production of the requested material until May 17, 2021. A draft


This matter is already under seal, and the UnitedStates further requeststhat this Motion

and proposed Order be filed under seal The Court has the inherent power to seal court filings

when appropriate , including the proposed Order . United States v. Hubbard , 650 F.2d 293 , 315-16

(D.C. Cir. 1980) (citing Nixon v Warner Inc., 435 U.S. 589, 598 ( 1978)) More


investigation when such jeopardy creates a compelling governmental interest in confidentiality .

See WashingtonPostv. Robinson, 935 F.2d282, 287-89 (D.C.Cir. 1991). Forthe reasons stated



2


CONCLUSION





AssistantUnitedStates Attorney

3

Case 1 : 20- -03361-ZME *SEALED* Document 11-1 Filed 04/09/21 Page 1 of 1



SC No.20- -3361

IN RE APPLICATION OF USA FOR



VIOLATION OF 18 U.S.C.Filed UnderSeal

ORDER

Upon consideration of the Government's ex parte Fifth Motion to Modify Order in this


IT IS THEREFORE ORDERED , that this Court's March 8 , 2021 and March 29 2021

Orders in this matter are MODIFIED and that Google LLC ( “Google”) shall produce to the United

States all responsive records to this Court's January 5 , 2021 Order by May 17, 2021.

AND IT IS FURTHER ORDERED the Government's Fifth Motion to Modify Order and


disclose the existence and/ or contents of this Order to appropriate law enforcement authorities.

Date:


Case 1 :20- -03361-ZME *SEALED* Document 12 Filed 04/12/21 Page 1 of 1



SC No. 20- -3361


2703 (d ) ORDER FOR SIX EMAILACCOUNTS SERVICED BY GOOGLE

LLC FOR INVESTIGATIONOF


ORDER

Upon consideration of the Government's ex parte Fifth Motion to Modify Order in this


IT IS THEREFORE ORDERED , that this Court's March 8 , 2021 and March 29 2021

Orders in this matter are MODIFIED and that Google LLC ( “Google” ) shall produce to the United

States all responsiverecordsto this Court’sJanuary 5 , 2021Order by May 17, 2021.

AND IT IS FURTHER ORDERED the Government's Fifth Motion to Modify Order and


disclosethe existenceand/or contentsofthis Orderto appropriatelaw enforcementauthorities.

Digitally signed by

Holly B. Fitzsimmons

Date: 2021.04.12

10:35:30 -04'00'UNITED STATES MAGISTRATE JUDGE




SC No.20- - 3361

INRE APPLICATION OF USA FOR2703(d ) ORDERFOR SIX EMAILACCOUNTS SERVICED BY GOOGLEFORINVESTIGATIONOF VIOLATION

OF 18 U.S.C.88

FiledUnderSeal

SIXTH MOTION TO MODIFY ORDER


submitsunder seal this SixthexparteMotionto Modifythe nondisclosureprovisionin the Order

in this matter.

On January 5 , 2021, this Court issued an Order pursuant to 18 U.S.C. 2703 d), that

included a nondisclosure provision that forbade Google LLC ( Google” ) the Provider, from




Court grantedthe motionand permittedGoogleto share the Orderwith the Deputy


records to 11, 2021. requestedthat : ( 1) the nondisclosure be further modified

so that Mr. McCraw could notify his supervisor, General Counselof TheNew York

Times , and outside counsel ,

law firm ; (2) and that the productionof records date for Googlebe extended 21 days from the



2021. After further discussionwith the United States agreedto

Case 1 :20- 03361- * SEALED* Document13 Filed05/10/21 Page2 of 4


and The United States sought suchrelieffromthe Court, and

this Court modified the Order a third time on March 22 , 2021. Those discussions have continued

and the parties again requestedadditionaltime on severaloccasion, the last ofwhichwas April

12, 2021, which this Court grantedleave of timeuntilMay 17, 2021.

Sincethat time, counselfor the NewYorkTimes has requestedfurtherconsiderationofits

position, and the United States has agreed to seek an additionalextensionof time of four additional

weeks(untilJune 17, 2021) for Googleto producethe orderedrecordsso that counselcannegotiate

furtherwiththe UnitedStates about the 2703(d) Order. A draftproposedOrderis to this

motion

This matter is alreadyunder seal, and the UnitedStates further requeststhat this Motion

and proposedOrder be filed under seal. The Court has the inherent power to seal court filings

when appropriate, including the proposedOrder. UnitedStates v. Hubbard, 650 F.2d293, 315-16

(D.C. Cir. 1980) (citing Nixon v. Warner , Inc., 435 U.S. 589 598 ( 1978)) More



See WashingtonPost v Robinson, F.2d282, 287-89 (D.C.Cir. 1991). Forthe reasonsstated

previously, the United States has a compellinginterest in confidentiality to justify continued


2


CONCLUSION


Respectfullysubmitted,



Assistant United States Attorney

3

Case 1 :20- 03361- SEALED* Document13 Filed05/10/21 Page4 of 4



SC No. 20- - 3361

IN RE APPLICATION OF USA FOR

2703 (d ) ORDER FOR SIX EMAILACCOUNTS SERVICED BY GOOGLELLC FOR INVESTIGATION OF


ORDER

Uponconsiderationof the Government'sex parte Sixth Motion to Modify Order in this


IT IS THEREFORE ORDERED , that this Court's March 8, 2021, March 29, 2021, and

April 12, 2021 Orders in this matter are MODIFIED, and that Google LLC ( Google”) shall

produceto the UnitedStates allresponsiverecordsto this Court'sJanuary 5, 2021 Orderby June

17, 2021.

AND IT IS FURTHER ORDERED the Government's Sixth Motion to Modify Order and



Date:


Case 1 20- -03361- * SEALED* Document13-1 Filed 05/10/21 Page 1 of 1



SC No. 20- - 3361




ORDER



IT IS THEREFORE ORDERED , that this Court's March 8, 2021, March 29, 2021, and

April 12, 2021 Orders in this matter are MODIFIED, and that Google LLC ( Google”) shall


17, 2021.




Date:





SC No. 20- -3361




VIOLATION OF 18 U.S.C. SFiled Under Seal

ORDER



IT IS THEREFORE ORDERED , that this Court's March 8, 2021, March 29 , 2021, and

April 12, 2021 Orders in this matter are MODIFIED, and that Google LLC ( “Google ” ) shall


17, 2021.



disclosethe existenceand /or contentsofthis Orderto appropriatelaw enforcementauthorities.

&

2021.05.11

11:27:04 -04'00 'Date:

OFCOLUMBIA





SC No. 20- -3361




VIOLATION OF 18 U.S.C. SFiled Under Seal

ORDER



IT IS THEREFORE ORDERED , that this Court's March 8, 2021, March 29 , 2021, and

April 12, 2021 Orders in this matter are MODIFIED, and that Google LLC ( “Google ” ) shall


17, 2021.



disclosethe existenceand /or contentsofthis Orderto appropriatelaw enforcementauthorities.

&

2021.05.11

11:27:04 -04'00 'Date:

OFCOLUMBIA


Case 1 20- -03361- * SEALED* Document16 Filed06/02/21 Page 1 of 3



SC No.20- - 3361



OF 18 U.S.C.

FiledUnderSeal

MOTION TO WITHDRAW APPLICATION


withdrawsits Applicationin thismatter, andseeks to quash this Court'sJanuary5 , 2021Order.

On January 5 , 2021, this Court issued an Order pursuantto 18 U.S.C. 2703 d) for the

productionofnon-content communicationrecordsbyGoogleLLC( “ Google” or “ Provider ). That

Order was promptly served on Google. The order also included a nondisclosure provision that

prohibited Google from providing notice of the legal process to any person “ except attorneys for

PROVIDER for the purpose ofreceiving legaladvice.

AfterconsultingwithGoogle, the UnitedStates movedto modifythe nondisclosureorder

to enable Googleto make a furtherdisclosureand extendthe time to respond. On March3 , 2021,

this Court granted the motion and permitted Google to share the Order with the

Deputy GeneralCounselofThe New York Times, and extended the period for Google's production

of records to March 11, 2021.

Thereafter, onferredwith the Government and requestedthat the United

States agree that: ( 1) the nondisclosure be further modified so that couldnotifyhis

supervisor General Counsel of The New York Times, and outside counsel,

law firm ; ( 2 ) and that the

production of records date for Google be extended 21 days from the execution of the modified

nondisclosureorder. The UnitedStates agreedto these requests and movedthis Courtto modify

Case 1 20- -03361- * SEALED* Document16 Filed06/02/21 Page2 of 3

the Order a second time accordingly, and the Court granted that motion on March 8 , 2021.

After furtherdiscussionwith the United States agreed to

ask this Court for leave to amend the nondisclosure provision so they could consult with

PublisherofTheNew York Times, and PresidentandChiefof

Executive Officer of The New York Times. The United States sought such relief from the Court,

and this Court modified the Order a third time on March 22, 2021. Discussions with counsel for

The New York Times continued, and the United States requested additional time on several

occasions, the last of which was May 11, 2021, when this Court extended the date by which

Google was obligated to produce records until June 17, 2021.

Following additional developments in the matter, the United States at this time has

determined that it does not wish to compel production from Google. The United States hereby

moves to withdraw its Application and respectfully moves the Court to quash the Order. A draft


The United States understands that after entry of the proposed Order that neither Google,

nor those at The New York Times, will be under any nondisclosure obligations from this Court.

As

this Court is aware, this matter is already under seal; consistent with the sealing order, and inview

of the the Applicationin this matterhas notbeendisclosed to Google,

The New York Times, or anyone else not authorized to receive it. As such, the UnitedStates further

requeststhat thisMotionandproposedOrderbe filedunder seal. The Court hasthe inherentpower

to seal court filings when appropriate, including the proposed Order. United States v . Hubbard,

650F.2d293, 315-16 (D.C.Cir. 1980) (citingNixonv . Warner Inc., 435 U.S.589, 598

( 1978) . More particularly, the Court may seal the materials to prevent

2

confidentiality. See Washington Post v. Robinson, 935 F.2d 282, 287-89 (D.C. Cir. 1991). For

the reasons stated previously, the United States has a compelling interest in confidentiality to

justify continued sealing of this matter, this motion,and the proposed Order.



when such jeopardy creates a compelling governmental interest in

CONCLUSION


CHANNING D.PHILLIPS


Assistant United States Attorney

JOHN C. DEMERS

Assistant Attorney General

Trial Attorney

3


2020 is hereby withdrawn without prejudice;

March 8, 2021, March 22, 2021, March 29, 2021, April 12, 2021, and May 11, 2021 Orders

(Docket # 2, 4, 6, 8, 10,12 and 15) in this matter are QUASHED; AND

seal until otherwise ordered by the Court.


UNITEDSTATES DISTRICT COURT






ORDER

Upon consideration of the Government’s ex parte Motion to Withdraw Application in this

IT IS THEREFORE ORDERED that the Government’s Application from December 22,

IT IS FURTHERORDERED that this Court’s Orders of January 5, 2021, March 3, 2021,

IT IS FURTHER ORDERED that all filings and Orders in this matter shall remain under

Date: ___________________________________


4

SCNo.20-sc-3361

FiledUnder Seal



SC No. 20- -3361





ORDER

Uponconsiderationofthe Government'sex parte Motionto WithdrawApplicationinthis


IT IS THEREFOREORDEREDthat the Government'sApplicationfrom December22,

2020 is hereby withdrawn without prejudice;

IT IS FURTHER ORDERED that this Court's Orders ofJanuary 5 , 2021, March 3 , 2021,

March 8, 2021, March 22, 2021, March 29, 2021, April 12, 2021, and May 11, 2021 Orders

(Docket# 2 4 , 6 , 8 , 10, 12 and 15) inthis matterare QUASHED; AND

IT ISFURTHERORDEREDthat all filings and Orders in this mattershall remainunder

sealuntilotherwiseorderedby the Court.2021.06.04

10:48:34Date:

JUDGEUNITED STATES

4

SCNo.20-sc-3361 ACCOUNTSSERVICEDBYGOOGLE ...

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