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The underlying facts of the investigation, which are not presently before us, relate to the unauthorized release of classified doc- uments to WikiLeaks.org, and the alleged involvement of Bradley E. Manning, a U.S. Army Private First Class.
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As part of its investigation, the Government petitioned the U.S. District Court for the Eastern District of Virginia and obtained an order pursuant to [Section] 2703(d), from a magistrate judge ('Twitter Order'), directing Twitter, Inc. ('Twitter') to disclose records of electronic communications pertaining to Appellants Jacob Appelbaum, Rop Gonggrijp, and Birgitta Jonsdottir ('Subscribers').[Footnote ]1
[Fotnote 1] The Twitter Order also sought information pertaining to Manning and Julian Assange, WikiLeaks.orgs founder. Manning and Assange did not challenge the Twitter Order or participate in litigating access.
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Specifically, the order directed Twitter to provide Subscribers names, usernames, personal contact information, account information, connection records, financial data,2 length of service, direct messages to and from email addresses and Internet Protocol addresses for all communications between November 1, 2009, and December 14, 2010. [Footnote] 2
[Footnote 2] The Government subsequently discarded its request for financial information.
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In ruling on the motion to unseal, the magistrate judge determined that there was no First Amendment right to access the Twitter Application, and the Other [Section] 2703(d) Orders and their applications. The magistrate judge also determined that the common law presumption of access to judicial records was overcome because the sealed documents contained 'sensitive nonpublic facts, including the identity of targets and witnesses in an ongoing criminal investigation.'
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While Subscribers request for public docketing was pending, the Eastern District reviewed and changed the docketing procedures of its clerks office. Specifically, the Eastern District instituted new case-numbering procedures by creating an 'EC' docket for recording cases pertaining to requests for pen
registers and [Section] 2703(d) orders. The EC docket is a 'running list' that is publicly available from the district courts clerks office. It indicates all assigned case numbers, the date of assignment, the presiding judge, and whether the case is sealed. However, it lacks individual docket entries for all types of documents filed in each case and the dates of such entries.
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The magistrate judge also found that 'there are legitimate concerns that publication of the documents at this juncture will hamper the investigatory process.'
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Government approved the disclosure of the existence of its investigation by moving the district court to unseal the Twitter Order is adequately counterbalanced by the magistrate judges finding that the 'sealed documents at issue set forth sensitive nonpublic facts, including the identity of targets and witnesses in an ongoing criminal investigation.'
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We note that Subscribers are not forever barred from access to the Other [Section] 2703(d) Orders and deriva- tive documents because at some point in the future, the Governments interest in sealing may no longer outweigh the common law presumption of access. At such point, the Sub- scribers may seek to unseal these documents.
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The motions that support these [Section] 2703(d) orders, the orders themselves, and the very existence of these orders implicate or directly convey highly private information and confirm the existence of a criminal investigation. |
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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: |
PUBLISHED AUTHORED OPINION filed. Originating case number: 1:11-dm-00003-TCB-LO-1 Copies to all parties and the district court/agency. [999030360]. [11-5151] (MR) |
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Concerning: |
"Twitter 2703(d), 2703(d) Orders, Grand Jury |
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