Fourth Circuit, In re Application under 18 U.S.C. § 2703(d): LinkedIn, journalists' records and the First Amendment

What happened

On November 10, 2026, the U.S. Court of Appeals for the Fourth Circuit decided In re: Application of the United States of America for an Order Pursuant to 18 U.S.C. Section 2703(d), No. 26-4303. Judge Wilkinson wrote for a unanimous panel, joined by Judges Wynn and Berner; the court affirmed in part, reversed in part, and remanded.

The case arose from a leak investigation. According to the opinion, a news organization published an article "purporting to describe a top-secret United States military operation in a foreign country." The government obtained two orders under the Stored Communications Act. A Disclosure Order under 18 U.S.C. § 2703(d) required LinkedIn to produce metadata records for the accounts of the news organization's journalists over an eighteen-month period. A Secrecy Order under § 2705(b) barred LinkedIn for one year from telling anyone except its own legal counsel that the orders existed.

LinkedIn moved to narrow both orders as overbroad under the statute and the First Amendment, and asked to see the government's ex parte filings. The District Court for the Eastern District of Virginia denied the motion.

What the opinion says

Standing. The court held that LinkedIn had Article III standing because it was under a court order "to provide documents it would prefer to withhold" and could suffer reputational and financial harm. On the journalists' First Amendment interests, it said the government had not objected below and conceded the point at argument, and that third-party standing was satisfied in any event.

The Disclosure Order. The court read § 2703(d) to set "an outer limit to the amount of irrelevant or immaterial records the government may obtain," and held that an overbroad order imposes an "undue burden" that a provider may challenge. On the First Amendment, the court applied Justice Powell's concurrence in Branzburg v. Hayes (1972), as circuit precedent had done before. Where part of a request seeks records with only a "remote and tenuous" relationship to the investigation and "implicates confidential source relationship[s]," the district court must balance the interests. The court wrote that "the First Amendment inquiry merges with and strengthens the tailoring requirements" of the statute.

The court concluded that the order "in its present form" is "substantially overbroad." It noted that during the eighteen months covered, the journalists published nearly 1,000 articles, fewer than five percent of which appeared to concern the subject of the investigation. On remand the district court is to weigh the government's need, the breadth of the records and whether they can be subdivided, the difficulty of knowing relevance early in an investigation, and the First Amendment and statutory standards. The court declined LinkedIn's request to quash the orders entirely, writing that this "goes much too far."

The Secrecy Order. The parties agreed that the Secrecy Order is a prior restraint. The court said that leak investigations involving national security "will frequently satisfy" the statutory factors in § 2705(b). It held, however, that the district court had to engage with LinkedIn's narrower alternative: telling a single, previously vetted lawyer for the news organization about the orders. On remand, the government is to have an opportunity to explain why that disclosure would compromise its investigation. "Unless the government's response to LinkedIn's proposal is more persuasive than anything the government has presented thus far," the court wrote, the narrower exception "must be adopted."

The ex parte materials. The court affirmed the denial of LinkedIn's request for the government's ex parte filings. It found no abuse of discretion in giving "primary weight to the government's desire to withhold the records" in light of the national security posture of the case.

The government's position

There was no dissent. As the opinion describes them, the government argued that LinkedIn lacked standing and could not assert the journalists' First Amendment interests. It relied on Seattle Times Co. v. Rhinehart in defending the Secrecy Order, and it had submitted ex parte filings it expected the court alone would see. The district court had held that LinkedIn could challenge a § 2703(d) order only on the statute's limited grounds of volume or burden, and that some irrelevant records did not invalidate an order validly entered. The court of appeals also stressed the government's interest, writing that the government "is entitled to a disclosure order. It is even entitled to a broad disclosure order. But it is not entitled to carte blanche."

Where it sits in the record

The opinion relies on Branzburg v. Hayes (1972) and the Fourth Circuit's own precedents on journalists' records (1992) and § 2703(d) orders (2013). On prior restraints, it cites Nebraska Press Ass'n v. Stuart (1976), Bantam Books, Inc. v. Sullivan (1963) and New York Times Co. v. United States (1971). The opinion closes: "Serious security and speech claims are in tension in this case. There is space under law for both."