Redacted AUSA Cover Letter U.S. Department of Justice United States Attorney's Of?ce Eastern District of Virginia DanniBocmc I Attorney I 2100 Jumicson Avenue - Alexandria. VA 22314 (703) 299-3?00 I (703) 299-3892 - 2016 Open Whisper Systems Signal San Francisco, CA Re: Dear Sir/Madam: You have been served with a subpoena issued in connection with a criminal investigation being conducted in this That subpoena directs you to produce certain records on -'201 6 before the grand jury in Alexandria, Virginia. As a convenience to you, in lieu of appearing personally before the grand jury, you may deliver the requested documents to: Special Agent?, Federal Bureau of Investigation, Northern Virginia ion, 9325 Discovery Manassas, VA 20109 (703)? Hutu-gov. Any questions pertaining to the records under subpoena should be directed to the agent listed above. I appreciate your cooperation in this manner. Because premature disclosure of this request might impede the investigation in this case. you are requested not to disclose the existence oi?this subpoena. appreciate your cooperation in this matter. if you have any questions, please feel free to contact me at (703) 299-3700. Sincerely, Dana J. Bocntc Assistant United [States Attorney Redacted E.D. Va. Subpoena At.) llt?: (Rev (tutti?) Subpoena to Testify Before a Grand Jury STATES DISTRICT COURT For the Eastern District of Virginia . SUBPOENA T0 TESTIFY BEFORE A GRAND JURY Open Whisper Systems Signal T0 San Francisco, CA YOU ARE COMMANDED to appear in this United States district court at the time. date. and place shown below to testify before the court?s grand jury. When you arrive, you must remain at the court until the judge or a court officer allows you to leave. Place: 3 U.S. District Court 401 Courthouse Square Alexandria. VA 22314 Date and Time: - 2016 - 1 . I You must also bring with you the followine documents, electronically stored infomation, 0r objects {blunt :fmu prowde any and all subscriber account information and any assomatcd accounts to Include subscriber name, addresses, telephone numbers, email addresses, method of payment, lP registration, lP history logs and addresses. account history, toll records, upstream and providers, any associated accounts acquired through cookie data. and any other contact information from inception to the present for the following accounts: This subpoena remains in effect until all documents are provider]. PLEASE NOTIFY TH UNDERSIGNEI) ATTORNEY BEFORE INCURRING COSTS OF MORE THAN $300.00 Date: . CLERK OF COURT Clef}: or 13913313 'im-k The name, address. e-mail, and telephone number of the United States attorney. or assistant United States attorney. who requests this subpoena, are? AUSA Of?ce of the United States Attorney Justin W. Williams United States Attorney's Building 2100 .lnmieson Avenue Alexandria, Virginia 22314 (703) 299-3700 Redacted Certi?cate of Authenticity CERTIFICATE or or DOMESTIC BUSINESS Race RDS PURSUANT TO FEDERAL RULE OF EVIDENCE 902(11) 1, (name). attest under penaities of perjury (or criminal punishment for false statement or false attestation) that I am empioyed by (business), and that my of?ciai title is (title). I am a custodian of records for such business entity. 1 state that each of the records attached hereto is the original record or a true duplicate of the original record in the custody of (business), and that i am the custodian of the attached records consisting of pages. I have provided the foilowing records to the United States: I further state that: A. all records attached to this certi?cate were made at. or near the time of the occurrence of the matters set forth, by, or from information transmitted by, a person with knowledge of those matters; B. such records were kept in the course of a reguiariy conducted business activity of (business); and C. such records were made by (business) as a regular practice. I further state that this certi?cation is intended to satisfy Ruie 902(i I) of the Federai Rules of Evidence. (Date) (Address) (Phone) Redacted E.D. Va. Order IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division - IN RE: APPLICATION FOR AN ORDER PURSUANT TO 18 use. ?2705(b) RELATING TO A SUBPOENA TO OPEN Case NO- WHISPER SYSTEMS FOR THE Grand Jury ACCOUNTS Filed Under Seal ORBER The United States has submitted an Application pursuant to 18 U.S.C. 2705(b), requesting that the Court issue an Order commanding OPEN WHISPER SYSTEMS, an electronic communications service provider and/or a remote computing service, not to notify any person (including the subscribers or customers of the accounts listed on the subpoena) of the existence of the attached subpoena until ?u'ther order of the Court. The Court determines that there is reason to believe that noti?cation of the existence of the attached subpoena will seriously jeopardize the investigation, including by giving targets an opportunity to flee or continue ?ight ?om prosecution, destroy or tamper with evidence, change patterns of behavior, or notify confederates. See 18 U.S.C. 2705(b)(2), (3), (5). IT IS THEREFORE ORDERED under 18 U.S.C. 2705(b) that OPEN WHISPER SYSTEMS shall not disclose the existence of the attached subpoena, or this Order of the Court, to the listed subscriber or to any other person, for a period of one year from the date of this order, except that OPEN WHISPER SYSTEMS may disclose the attached subpoena to an attorney for OPEN WHISPER SYSTEMS for the purpose of receiving legal advice. from the date ordered by the Court. Date IT IS FURTHER ORDERED that the Application and this Order are sealed until one year L: Z) Hie/Honorable Theresa C. Buchanan United States Magistrate Judge Redacted OWS Response to Subpoena ll?tiAI E. . i AMERICAN CIVIL LIBERTIES UNION I II YURK 1 I112 54KUUIRU Illet i1l\l'\R RI FOUNDATION -2016 BY EMAIL Special Agent? Federal Bureau of Investigation, Northern Virginia Region 9325 Discovery Blvd. Manassas. Vir inia 20109 Re: Response to Grand-Jur Sub oena Directed at Open wmsper system Dear Special A gent- This letter responds to the - 2016 grand-jury subpoena directed at Open Whisper Systems that seeks "subscriber account information? for two phone numbers. The American Civil Liberties Union represents OW for purposes of responding to the subpoena. Please direct future correspondence about this matter to undersigned counsel. Onlv one of the two listed phone numbers is associated with a Signal account: Open Whisper Systems has no record of an account associated with the second listed phone number, and therefore has no records to provide as to that number. The only information responsive to the subpoena held by OWS is the time of account creation and the date of the last connection to Signal servers for account?Consistent with the Electronic Communications Privacy Act 18 U.S.C. 2703(c)(2). OWS is providing this information in response to the subpoena. See Attachment A. Although OWS does not have, and therefore cannot produce, other categories of information listed in the subpoena. OWS notes that not all of those types ofinformation can be appropriately requested with a subpoena. Under ECPA, the government can use a subpoena to compel disclosure of information from an electronic communications service provider only if that information falls within the categories listed at 18 U.S.C. 2703(c)(2). For other types of information, the govemment must obtain a court order or search warrant. OWS objects to use of the grand-jury subpoena to request infonnation beyond what is authorized in Section 2703(c)(2). OWS also has concerns about the scope of the nondisclosure order included with the subpoena. See Order. Case No. 2016 ED. Va). Undersigned counsel expects to communicate separately with the US. Attorney?s Of?ce about this issue. Respectfully, Brett Max Kaufman American Civil Libertic Union Founda?on 125 Broad Street 18th Floor New York. New York 10004 T: 212.549.2603 F: 212.549.2654 bkaulinan@aclu.org Us Special Agent FBI Washington Field Of?ce. CCI Faicfbi. gov IQ Attachment A Account Information Last connection date: _Unix millis Account created: ?Unix millis Redacted OWS Letter to AUSA AMERICAN CIVIL LIBERTIES UNION \?il l\'ll BROAD II Kl? \Ukk NY I I ura\t\\ l) RUMIHH Il\l. RUIN-RI TRYASI FOUNDATION -2016 BY EMAIL AUSA Justin W. Williams United States Attorney?s Building 2100 amicson Avenue Alexandria, Virginia 223 l4 Re: Grand-Jurv Subioena Directed at Open Whisper Systems Dear? This letter concerns the gag order issued by Magistrate Judge Theresa C. Buchanan in connection with a- 2016 grand-jury subpoena directed at Open Whisper Systems seekin ?subscriber account information" for two phone numbers. See Order, No. Va. - 2010).l The American Civil Liberties Union represents OWS in this matter. As 1 indicated in my - 2016 letter to Special Agent providing response to the subpoena. OWS has concerns about the scope of the gag order issued against it. Speci?cally, OWS believes the gag order to be unconstitutional because it is not narrowly tailored to a compelling government interest. I am writing in the hope of resolving this matter without the need for litigation, and I would welcome the opportunity to discuss it with you at your earliest convenience. OWS seeks to make public redacted versions of: the govemment?s cover letter: the grand-jury subpoena and gag order issued to OWS: OW S's response to the subpoena; and this letter. OWS also seeks to speak publicly about its receipt and compliance with the subpoena. As illustrated in the attachments to this letter. versions ofthe documents redact, from the government?s cover letter: 0 the date of the letter, a the case?speci?c infonnation in the subject line, and information in its possession by email to Special Agent On- 2016, OWS timely responded to the grand-jury subiocna with the rcsponsu'c AMERICAN CIVIL LIBERTIES UNION FOUNDATION - the production deadline in the ?rst paragraph; from the subpoena: the case?speci?c information in the header, 0 the date and time of the scheduled grand-jury hearing, 0 the two target phone numbers, and the date of the subpoena; from the certificate of authenticity: - the case-speci?c information to the right of the signature block; from the gag order: 0 the target phone numbers in the case caption, the dates at the top and bottom. of the order, and the case-speci?c information to the right of the case caption; from response to the subpoena: the date of the response, the case-speci?c information in the subject line, the date of the subpoena in the ?rst paragraph, the two target phone numbers, the case-specific information and date in the citation on page 2, and 0 two target phone numbers and responsive information in the attachment; and, from this letter: a the date of the letter, - the case-speci?c information in the subject line and ?rst paragraph, 0 the dates of the subpoena and gag order in the ?rst paragraph, and the date of response to the subpoena in footnote 1 and the second paragraph. OWS would also like to publicly explain that it received the request in the ?rst half of 201 6 for two target phone numbers, and that it later complied by sharing the only information it retains?the ?last connection date? and the ?account creation the only one of the two accounts as to which it possessed records.2 OWS notes, as it did in its letter to Special Agent_ that not all of the types of information listed in the grand-jury subpoena issued to OWS can be appropriately requested with a subpoena. Under ECPA, the government can use a subpoena to compel disclosure of information from an electronic communications service provider only if that information falls within the categories listed at 18 U.S.C. 2703(c)(2). For other types of information, the Neither the government nor a court may constitutionally prohibit proposed disclosures. The information OWS seeks to disclose would not reveal the target of the government?s subpoena or any other information that could reasonably impair any legitimate governmental interest. Instead, the information OWS seeks to disclose would con?rm only that it has received a subpoena for certain information relating to one of its millions of users; that it complied with the subpoena; and that it is currently forbidden from identifying the target of the subpoena. The government has no legitimate interest in restricting that Speech, while OWS would further a signi?cant public interest in making it. The proper role, scope, and limits of government surveillance are quintessential matters of public concern under the First Amendment, and electronic service providers? who have dual roles as custodians of Americans? private data and as necessary actors in the execution of govemrnent surveillance requests?have a critical role to play, and perspective to share publicly, about government surveillance practices. Even more broadly, it is far from clear from the gag order that the government has satis?ed the high constitutional hurdle for imposing any prior restraint on OWS. The order recites the govemment?s general interest in keeping its criminal investigations secret, but that general interest applies in virtually every criminal investigation, including the countless ones in which the government routinely executes search warrants with notice to the targets of the investigation. See Order at (?The Court determines that there is reason to believe that notification of the existence of the attached subpoena will seriously jeopardize the investigation, including by giving targets an opportunity to ?ee or continue ?ight from prosecution, destroy or tamper with evidence, change patterns ofbehavior, or notify see also l8 U.S.C. 2705(b)(2), (3), (5). To justify the extraordinary remedy of restraining truthful speech, the government must make a greater showing. Thank you for your attention to this matter. I look forward to Speaking with you soon. Respectfull Brett MMam?nan American Civil Liberties Union Founda?on 125 Broad Street?18th Floor New York, New York 10004 T: 212.549.2603 government must obtain a court order or search warrant. OWS objects to use of the grand?jury subpoena to request information beyond what is authorized in Section 2703(c)(2), though it did not possess any such information in this case. Redacted Superseding Order IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division IN RE: APPLICATION FOR AN ORDER PURSUANT TO 18 U.S.C. ?2705(b) RELATING TO A SUBPOENA TO OPEN WHISPER SYSTEMS FOR THE ACCOUNTS: AND I SEP 29 ZUIB 13,? . . -..: -in-h i .U .. I cm Grand Jury Filed Under Seal SUPERSEDLISQ QRDER On- 2016, this Court entered an Order commanding Open Whisper Systems, an electronic communications service provider and/or a remote computing service, not to notify any person (including the subscribers or customers of the accounts listed on the subpoena attachment) of the existence of the attached subpoena until further order of the Court. This Court signed the Order upon an application for a protective order submitted by the United States pursuant to 18 U.S.C. 2705(b). With the consent of the United States and counsel for Open Whisper Systems, the Order entered on - 2016, is hereby modi?ed to permit public disclosure of the (1) redacted subpoena, (2) redacted Court Order and (3) redacted related documents. A copy of the redacted material is attached to this Superseding Order as Exhibit A. Open Whisper Systems may also release a redacted version of this Superseding Order. IT IS THEREFORE ORDERED under 18 U.S.C. 2705(b) that Open Whisper Systems is permitted to disclose the redacted versions of these materials governed by this Superseding Order. The information that remains redacted shall not be publicly disclosed until further Order of this Court .3277: 29, 242% John F. Anderson Date Umme erson United States Magistrate Judge TO: 0% 2 2016: Assistant United States Attorney 09.23%, Brett Max Wan American Civil Liberties Union Foundation Counsel for Open WhiSper Systems A TRUE COPY, TESTE: CLERK, U.S. DISTRICT COURT BY