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In May 2010, United States Army Private First Class ('PFC') Bradley E. Manning was arrested at Forward Operating Base Hammer in Iraq, on accusations that he was involved in the largest unauthorized release of classified documents in United States history. PFC Manning was allegedly assisted in these illegal acts by associates of the website WikiLeaks.org.
On December 14, 2010, as part of an ongoing criminal investigation into this unauthorized release of classified information, the magistrate judge issued a Section 2703(d) order directing Twitter to disclose certain non-content business records pertaining to the Subscribers and two other subscribers. [Footnote] 3 [The other subscribers, PFC Manning and Julian Assange, the founder of WikiLeaks, did not challenge the Twitter Order or participate in this litigation.] Specifically, the Twitter Order directed Twitter to provide usernames, contact information, connection records, dates and types of services provided, payment information, to/from e-mail addresses and source/destination IP addresses for all communications between November 1, 2009, and December 14, 2010.
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Thereafter, the United States made a strategic decision to move to unseal the Twitter Order and allow Twitter to inform the affected subscribers of the existence of the Twitter Order. On January 5, 2011, upon the United States' motion, the magistrate judge unsealed the Twitter Order and authorized Twitter to disclose the Twitter Order to the five affected subscribers.
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In the Eastern District of Virginia, grand jury subpoenas and materials are tracked by the US Attorney's Office, rather than the Clerk's Office, and are assigned 'gj' identification numbers.
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Moreover, the Subscribers' challenge, which comes in the midst of a grand jury investigation that may result in criminal charges, is the functional equivalent of a 'pre-trial matter.'
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Indeed, Section 2703(d) orders are simply another tool used to gather information as part of federal criminal investigations, which must, with few exceptions, be presented to a grand jury if charges are to be brought.
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Indeed, after receiving notice of the existence of the Twitter Order, appellant Jacob Appelbaum called on his Twitter 'followers' to undertake just such a change in behavior. See 'Tweet' of Jacob Appelbaum @ioerror (Jan. 7, 2011), available at: http://twitter.com/#!/ioerror/status/ 23545458433458177 ('Do not send me Direct Messages - My Twitter account contents have apparently been invited to the (presumably-Grand Jury) in Alexandria.') (visited Feb. 27, 2012).[Footnote] 18 [Footnote 18] As noted supra at 9, the Twitter Order did not request message content, and thus would not have collected Direct Messages. Thus, to the extent the government later developed probable cause to obtain the content of the account, Appelbaum's 'tweet' likely decreased the evidence available to the government.
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The Subscribers seek unsealing of multiple investigative orders in an active criminal investigation that they themselves describe as 'a matter of national importance.'
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It would also be impractical to require redaction at this point, in the midst of an active criminal investigation. The government's interest in protecting the integrity of the investigation is ongoing, and thus the government's justification for sealing could change over time.
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The government has represented that, once charges are filed or the investigation is closed, it will move to unseal any other Section2703(d) orders issued during the investigation. Thus, this case is easily distinguishable from In re Sealing and Non-Disclosure of Pen/Trap/2703(d) Orders, 562 F. Supp. 2d 876, 877 (S.D. Tex. 2008), where the issue was 'sealing and non-disclosure . . . for an indefinite period beyond the underlying criminal investigation.'
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The 'ec' running list provides public notice that an order has been issued, which allows a challenge by any member of the public to the sealing of such order.
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[Endnote page 56] The Eastern District of Virginia provides the recommended information on the 'running list,' which is publicly available from the Clerk's Office. |
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Name(s:) |
Lindsay Kelly, Neil MacBride, Andrew Peterson |
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Title: |
Assistant United States Attorney |
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Agency(ies): |
Office of the United States Attorney for the Eastern District of Virginia, Cyber Security Division, Department of Justice |
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Url: |
Url Link
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Title: |
Corrected BRIEF by Appellee US in electronic and paper format. Type of Brief: Response. Method of Filing Paper Copies: mail. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 03/02/2012. [998801620] [11-5151] Andrew Peterson |
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Concerning: |
"Twitter 2703(d), 2703(d) Orders, Grand Jury |
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