Reported / Citable
Background
In May 2025, the LAPD served Microsoft with a search warrant for electronic data associated with the email account of a USC graduate student suspected of rape. The account was part of Microsoft’s enterprise contract with USC. The trial court signed the warrant and a 90-day nondisclosure order (NDO) prohibiting Microsoft from notifying anyone — including the target and ‘anyone at USC’ — about the warrant.
Microsoft conceded the NDO’s validity as to the suspect himself but moved to modify the order so it could notify a ‘trusted point of contact’ at USC. Microsoft argued the prohibition violated the California Electronic Communications Privacy Act (CalECPA, Penal Code section 1546 et seq.) and infringed Microsoft’s First Amendment right to inform its enterprise customer.
The trial court denied modification, and Microsoft sought writ relief. Amicus briefs were filed by Google, Amazon, the Reporters Committee for Freedom of the Press, and the First Amendment Coalition supporting Microsoft.
The Court’s Holding
The Court of Appeal denied the writ petition. As a matter of first impression in California, the court addressed when a trial court may issue an NDO accompanying a CalECPA warrant served on an electronic service provider. The court held that the trial court had made the findings CalECPA requires: a reasonable likelihood that disclosure (including disclosure to USC) would impede the criminal investigation, endanger people, or risk the destruction of evidence.
On the First Amendment claim, the court applied strict scrutiny because the NDO operated as a prior restraint on Microsoft’s speech. The court nevertheless concluded the NDO survived strict scrutiny: the state’s compelling interest in protecting an active criminal investigation, particularly into a serious violent offense, was sufficient, and the order was narrowly tailored — it lasted only 90 days, applied only to specifically identified persons, and did not prohibit Microsoft from speaking to law enforcement, courts, or counsel.
The opinion explicitly addresses, and rejects, Microsoft’s argument that USC as an enterprise customer should be exempt from the NDO so that USC could conduct its own internal investigation. The court found nothing in CalECPA that makes enterprise customers a special class entitled to advance notice when their employees or affiliates are under criminal investigation.
Key Takeaways
- Trial courts may issue CalECPA nondisclosure orders that prohibit electronic service providers from notifying not only the target of an investigation but also third parties such as the target’s employer or institutional affiliate.
- An NDO accompanying a CalECPA warrant is a prior restraint subject to strict scrutiny, but it can survive when the state shows a compelling investigative interest and the order is narrowly tailored.
- Compelling investigative interests include preventing flight, witness tampering, evidence destruction, and broad obstruction of an active criminal probe — even when the affected third party is sophisticated.
- Enterprise customers are not entitled to advance notice when their accounts hold information about an employee or affiliate under criminal investigation.
- Electronic service providers seeking to challenge an NDO should focus on whether the trial court actually made the findings CalECPA requires and on whether the order is narrowly tailored in scope and duration.
Why It Matters
This is a leading California decision on a recurring real-world conflict: cloud and email providers want to notify their enterprise customers when government search warrants reach into customer accounts, and law enforcement wants to keep investigations confidential. The Second District’s first-impression opinion gives trial courts a clear roadmap for issuing properly supported NDOs and gives providers (and their amicus allies) a clear set of grounds on which to challenge them.
For technology companies and their general counsel, the decision is a reminder that California courts will sustain narrowly tailored NDOs even against First Amendment objections from sophisticated providers. For institutional customers — universities, employers, and other enterprises — the case underscores that they cannot count on receiving advance notice when their cloud accounts are searched as part of a criminal investigation involving an affiliated person.