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The United States of America, by Neil H. MacBride, United States Attorney for the Eastern District of Virginia, hereby responds to the Objections of the Real Parties in Interest (the 'subscribers') regarding Magistrate Judge Buchanan's May 4, 2011 Order on the public docketing of judicial records in [Section] 2703(d) matters. Relying principally on the public's common law presumption of access to court records, the subscribers assert an unprecedented right to obtain an itemized public docket specifically identifying each document filed in any section 2703(d) matter in an ongoing criminal investigation ' including matters that this Court has already ordered sealed. As demonstrated below, Judge Buchanan's Order, and the docket maintained in this matter by the Clerk of Court, provide the public with sufficient notice regarding any ongoing sealed proceedings or records. Footnote No. 1
Footnote No. 1:
The subscribers' objections presupposes that a right of access to the underlying documents exist. That issue is already before the Court, and fully briefed by the Parties. To the extent the Court finds that no public right of access to orders issued pursuant to 18 U.S.C. [Section] 2703(d) exists, there is no basis for this request for public docketing
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The challenges were assigned number 1:11-dm-0003 by the Clerk's office. A 'dm' number is a type of miscellaneous number used by the Clerk's office for matters that are neither criminal nor civil cases but require some type of resolution through the judicial system. See District Clerk's Manual, [Section] 4.03(a)(1) (2010). Litigation ensued. Footnote 2
Footnote 2: The descriptions and definitions of the Clerk's office's case numbering system are based on materials available from the Administrative Office of the United States Courts, discussions with the Clerk's office, and the experience of the United States Attorney's Office. To the extent the government's understanding is incomplete or incorrect, the Court may take judicial notice of its own records. See Fletcher v. United States, 174 F.2d 373, 376 (4th Cir. 1949).
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An 'ec' case number is a new designation used by the Clerk's office for pen registers and orders issued pursuant to 18 U.S.C. [Section] 2703(d)
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The Clerk's office manages three types of 'cases.' See District Clerk's Manual [Section] 4.03. These are civil, criminal, and magistrate judge cases, designated 'cv,' 'cr,' and 'mj' respectively. Id. 'Mj' numbers are used for proceedings before a magistrate judge which have not yet become a criminal case.
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The Clerk's office also tracks some other ancillary and supplementary proceedings that do not fall within the three categories above. Id. [Section] 4.03(a)(1). Such proceedings are assigned 'miscellaneous numbers,' and these matters are not considered 'cases.' Id. ('Miscellaneous numbers are assigned to a variety of matters filed with the court which are not properly considered civil or criminal cases.'). Miscellaneous numbers are assigned to actions concerning 'administrative matters that require resolution through the judicial system.' Id. The District Clerk's Manual identifies numerous proceedings that may be assigned miscellaneous numbers, such as pen registers, wire interceptions, and grand jury matters. Id.
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'DM' Numbers A 'DM' number is assigned by the Clerk's office in the Eastern District of Virginia to miscellaneous matters. Courts around the country use different numbering systems for miscellaneous matters, including 'mc,' 'ms,' and others. See Tim Reagan and George Cort, Sealed Cases in the Federal Courts ('Sealed Cases') 23 (Federal Judicial Center 2009). However, only the Eastern District of Virginia uses 'dm' numbers. Id. (noting that only one district uses 'dm' numbers for miscellaneous matters).
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An 'EC' number is a new numbering system used by the Clerk's office for pen registers and orders issued pursuant to 18 U.S.C. [Section] 2703(d). All such pen registers and [Section] 2703(d) orders are given an 'ec' number and docketed at the time of issuance. A list of all such cases is available in the Clerk's office (the 'running list'). Subscribers' Obj. Att. B. The 'running list' 3 also contains a list of pleadings that have been unsealed in any 'ec' matter, but not an itemized list of all the sealed documents in any 'ec' matter.
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A 'GJ' number is assigned by the United States Attorney's Office, not the Clerk's office. GJ numbers are used by the United States Attorney's Office to identify documents related to a grand jury investigation. 'GJ' numbers are created by U.S. Attorney's Office staff, and are used to ensure that subpoenas and other documents related to various investigations are appropriately handled and filed. An investigation assigned a 'gj' number may become a criminal case, or it may not.
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The subscribers also reference the declaration of Stuart Sears, counsel for Jacob Appelbaum. An attorney is prohibited from serving as a witness in a case where the attorney also represents a party. See United States v. Howard, 115 F.3d 1151, 1155 (4th Cir. 1997); see also Media Gen. Operations v. Buchanan, 417 F.3d 424, 433 n.2 (4th Cir. 2005). In any event, the government does not contest Mr. Sears' descriptions of his interactions with the Clerk's office.
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As demonstrated below, to the extent the parties request the docketing of 'case' 10-gj- 3793, there is no 'case' 10-gj-3793 opened in the Clerk's office. Consequently, there is no 10- gj-3793 docket to unseal. The subscribers are also not entitled to a docket that indicates every filing by any party that relates to a [Section] 2703(d) order issued as part of the government's investigation. There is no common law right of access to [Section] 2703(d) orders. Moreover, assuming such a right does exist, the docketing of any [Section] 2703(d) orders on the 'running list' provides adequate public notice to challenge the sealing of any such orders.
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B. There Is No Case 10-GJ-3793, So There Is No Docket to Unseal.
The subscribers state that they filed motions in case 10-gj-3793, and that they moved for the unsealing and public docketing 'of all [Section] 2703-related documents on the 10-gj-3793 docket.' Subscribers' Obj. at 3. However, there is no case 10-gj-3793, and no corresponding docket maintained by the Clerk. Thus, the subscribers' request to the Court for the unsealing of the docket for case number 10-gj-3793 is misplaced. The Court cannot unseal a docket that does not exist. Nor does any law require this Court to create a docket listing documents filed according to a number assigned by the United States Attorney's Office, or to seek out matters docketed under other numbers and identify them on a docket specific to the subscribers. Thus, to the extent the subscribers' request that the Court order the creation of a docket relating to the ongoing investigation identified by 10-gj-3793, the request should be denied.
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Although no right to public docketing of [Section] 2703(d) orders exists, the Clerk does publicly docket [Section] 2703(d) orders in accordance with Local Criminal Rule 49. When a sealed [Section] 2703(d) order is filed, the Clerk's office assigns that order an 'ec' number. Pen registers are also assigned 'ec' numbers. The list of all matters given an 'ec' number by the Clerk's office is available to the public (the 'running list'). Footnote 8 Thus, the existence of any sealed [Section] 2703(d) order or 8 pen register is made public, although details of the [Section] 2703(d) orders or pen registers are not. As such, there is public notice that a [Section] 2703(d) order has issued, thus allowing a challenge by any member of the public to the sealing of such order.
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That the 'running list' does not contain individual docket entries for each document file...
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For the same reasons, to the extent that any [Section] 2703(d) orders pre-date the Clerk's 'ec' 12 numbering system, the subscribers are not entitled to a list of such orders that relate to the subscribers. |
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Name(s:) |
Andrew Peterson |
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Title: |
Assistant United States Attorney |
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Agency(ies): |
National Security Division, Department of Justice |
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Concerning: |
Twitter 2703(d), 2703(d) Orders, Grand Jury |
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Url: |
Url Link
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Title: |
ORDER granting 3 Motion as to Jacob Appelbaum ; Rop Gonggrijp ; Birgitta Jonsdottir. ORDERED that Defendants' Motion is DENIED as to the remaining issue. Signed by Magistrate Judge Theresa Carroll Buchanan on 6/1/2011. (jcor) (Entered: 06/02/2011) |
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Concerning: |
"Twitter 2703(d), 2703(d) Orders, Grand Jury |
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Title: |
U.S. District Court Eastern District of Virginia (Alexandria) CRIMINAL DOCKET FOR CASE #- 1-11dm00003TCBLO All Defendants.pdf |
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Concerning: |
"Twitter 2703(d), 2703(d) Orders, Grand Jury |
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