In re § 2703(d) Order 10GJ3793
787 F. Supp. 2d 430
E.D. Va.2011Background
- Petitioners Appelbaum, Jonsdottir, and Gonggrijp are Twitter users whose accounts were targeted by a sealed Twitter Order under 18 U.S.C. § 2703(d).
- The Twitter Order sought non-content records from Twitter concerning WikiLeaks, rop_g, ioerror, birgittaj, Julian Assange, Bradley Manning, and related accounts for Nov 1, 2009 to present.
- Petitioners filed motions to vacate the Twitter Order and to unseal related records, with a public hearing held on Feb. 15, 2011.
- The court held petitioners lack standing to vacate under § 2704(b)(1)(A) because they are targets of records, not contents, disclosures.
- The court nonetheless analyzed the merits: the order was properly issued under § 2703(d), first amendment claims fail, Fourth Amendment claims fail, and comity concerns do not warrant vacatur for Ms. Jonsdottir.
- Regarding unsealing, the court denied unsealing for some docket items and granted unsealing for others with redactions, taking some matters under consideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to vacate § 2703(d) order | Appelbaum et al. argued for standing to challenge. | Government argued petitioners lack standing as records targets, not contents. | Petitioners lack standing to vacate § 2703(d) order. |
| Proper issuance under § 2703(d) | Application may be insufficient or overbroad; questions scope relevance. | Application satisfied specific and articulable facts showing relevance and materiality. | Twitter Order properly issued under § 2703(d). |
| First Amendment chilling effect | Order creates map of association and chills petitioners’ First Amendment rights. | No content control; information is non-content and sought under standard government interest. | No cognizable First Amendment violation. |
| Fourth Amendment privacy in IP addresses | IP addresses reveal location; warrants needed. | No reasonable Fourth Amendment privacy interest in IP addresses; voluntary disclosure to third parties. | Petitioners lack Fourth Amendment privacy in IP addresses; no warrant required. |
| International comity | Ms. Jonsdottir immunity under Icelandic law could conflict with U.S. order. | Order does not conflict with Icelandic law; immunity not implicated by tweets. | No warrant to vacate as to Ms. Jonsdottir. |
| Public unsealing rights | Documents should be unsealed to promote public discourse on privacy and WikiLeaks. | Investigative secrecy protects safety, witnesses, and integrity of ongoing investigations. | Unsealing denied for most materials; some items unsealed with redactions; public docketing under consideration. |
Key Cases Cited
- United States v. Mayer, 503 F.3d 740 (9th Cir. 2007) (First Amendment interests yield to legitimate government investigations)
- In re Grand Jury 87-3 Subpoena Duces Tecum, 955 F.2d 229 (4th Cir. 1992) (balance investigation needs against constitutional rights)
- Smith v. Maryland, 442 U.S. 735 (1979) (no reasonable expectation of privacy in information voluntarily conveyed to third parties)
- United States v. Christie, 624 F.3d 558 (3d Cir. 2010) (IP address not protected by Fourth Amendment as information conveyed to third parties)
- United States v. Bynum, 604 F.3d 161 (4th Cir. 2010) (subscriber information provided to internet providers not protected by Fourth Amendment)
- Warshak, 631 F.3d 266 (6th Cir. 2010) (privacy of emails subject to Fourth Amendment in some circumstances)
- In re French v. Liebmann, 440 F.3d 145 (4th Cir. 2006) (international comity governs extraterritorial application of law)