707 F.3d 283 (4th Cir. 2013), 11-5151, In re Application of United States for an Order Pursuant to 18 U.S.C. Section 2703(D)

Docket Nº:11-5151.
Citation:707 F.3d 283
Opinion Judge:GREGORY, Circuit Judge:
Party Name:In re Application of the UNITED STATES of America FOR AN ORDER PURSUANT TO 18 U.S.C. SECTION 2703(D). v. Jacob Appelbaum; Rop Gonggrijp; Birgitta Jonsdottir, Defendants-Appellants, United States of America, Plaintiff-Appellee, and Twitter, Incorporated, Defendant.
Attorney:Aden J. Fine, American Civil Liberties Union, New York, New York, for Appellants. Andrew Peterson, Office of the United States Attorney, Alexandria, Virginia, for Appellee. Cindy A. Cohn, Lee Tien, Marcia Hofman, Electronic Frontier Foundation, San Francisco, California, Rebecca K. Glenberg, Amer...
Judge Panel:Before GREGORY and DUNCAN, Circuit Judges, and SAMUEL G. WILSON, United States District Judge for the Western District of Virginia, sitting by designation. Judge GREGORY wrote the opinion, in which Judge DUNCAN joined. Judge WILSON wrote a separate concurring opinion. WILSON, District Judge, conc...
Case Date:January 25, 2013
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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707 F.3d 283 (4th Cir. 2013)

In re Application of the UNITED STATES of America FOR AN ORDER PURSUANT TO 18 U.S.C. SECTION 2703(D).

United States of America, Plaintiff-Appellee,

v.

Jacob Appelbaum; Rop Gonggrijp; Birgitta Jonsdottir, Defendants-Appellants,

and

Twitter, Incorporated, Defendant.

No. 11-5151.

United States Court of Appeals, Fourth Circuit.

January 25, 2013

Argued: Oct. 26, 2012.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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ARGUED:

Aden J. Fine, American Civil Liberties Union, New York, New York, for Appellants.

Andrew Peterson, Office of the United States Attorney, Alexandria, Virginia, for Appellee.

ON BRIEF:

Cindy A. Cohn, Lee Tien, Marcia Hofman, Electronic Frontier Foundation, San Francisco, California, Rebecca K. Glenberg, American Civil Liberties Union of Virginia Foundation, Inc., Richmond, Virginia, for Appellant Birgitta Jonsdottir; Rachael E. Meny, John W. Keker, Steven P. Ragland, Keker & Van Nest LLP, San Francisco, California, John K. Zwerling, Stuart Sears, Zwerling, Leibig & Moseley, PC, Alexandria, Virginia, for Appellant Jacob Appelbaum; John D. Cline, Law Office of John D. Cline, San Francisco, California, K.C. Maxwell, Law Office of K.C. Maxwell, San Francisco, California, Nina J. Ginsberg, Dimuroginsberg, PC, Alexandria, Virginia, for Appellant Rop Gonggrijp.

Neil H. MacBride, United States Attorney, Lindsay Kelly, Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Appellee.

Before GREGORY and DUNCAN, Circuit Judges, and SAMUEL G. WILSON, United States District Judge for the Western District of Virginia, sitting by designation.

Petition denied by published opinion.

Judge GREGORY wrote the opinion, in which Judge DUNCAN joined. Judge WILSON wrote a separate concurring opinion.

OPINION

GREGORY, Circuit Judge:

We are called upon to determine the public's right to access orders issued under 18 U.S.C. § 2703(d) and related documents at the pre-grand jury phase of an ongoing criminal investigation. Because we find that there is no First Amendment right to access such documents, and the common law right to access such documents is presently outweighed by countervailing interests, we deny the request for relief.

I.

A.

Title II of the Electronic Communications Privacy Act of 1986, commonly known as the Stored Communications Act (" SCA" ), was enacted to protect the privacy of users of electronic communications by criminalizing the unauthorized access of the contents and transactional records of

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stored wire and electronic communications, while providing an avenue for law enforcement entities to compel a provider of electronic communication services to disclose the contents and records of electronic communications. Pub.L. No. 99-508, 100 Stat. 1848, 1868 (codified at 18 U.S.C. §§ 2701-2711). As one Senator remarked, the SCA was " designed to protect legitimate law enforcement needs while minimizing intrusions on the privacy of system users as well as the business needs of electronic communications system providers." 132 Cong. Rec. 14601 (1986) (statement of Sen. Leahy).

To obtain records of stored electronic communications, such as a subscriber's name, address, length of subscription, and other like data, the government must secure either a warrant pursuant to Federal Rule of Criminal Procedure 41, or a court order under 18 U.S.C. § 2703(d). 18 U.S.C. § 2703(c). Orders issued under § 2703(d) may be granted if the government " offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation." 18 U.S.C. § 2703(d). This is essentially a reasonable suspicion standard.

In seeking access to records, the government need not give prior notice to the subscriber or customer. 18 U.S.C. § 2703(c)(3). The SCA also provides for gag orders, which direct the recipient of a § 2703(d) order to refrain from disclosing the existence of the order or investigation. See 18 U.S.C. § 2705(b).

B.

This case involves the § 2703(d) orders pertaining to the Government's request for records of electronic communications relevant to an ongoing criminal investigation. The underlying facts of the investigation, which are not presently before us, relate to the unauthorized release of classified documents to WikiLeaks.org, and the alleged involvement of Bradley E. Manning, a U.S. Army Private First Class.

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 § 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" ).1 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.

The issuing magistrate judge determined that prior notice " to any person" of the Twitter Order, the Government's application for the Twitter Order (" Twitter Application" ), and the ongoing criminal investigation, would " seriously jeopardize the investigation." Consequently, the magistrate judge sealed the Twitter Order and Application, and directed Twitter not to disclose their existence, or the investigation

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to any person unless and until otherwise ordered by the court. On January 5, 2011, upon the Government's motion, the magistrate judge unsealed the Twitter Order and authorized Twitter to disclose the order to Subscribers.

On January 26, 2011, Subscribers moved the court to vacate the Twitter Order, unseal all documents relating to the Twitter Order, and unseal and publicly docket any other § 2703(d) orders on the subject of the investigation pertaining to Subscribers that were issued to companies other than Twitter (" Other § 2703(d) Orders" ).

Following a hearing on the motions, the magistrate judge issued a memorandum opinion and an order denying the motion to vacate, and partially granting the motion to unseal as follows: it (1) granted the motion to unseal pleadings filed during the litigation over the Twitter Order; (2) denied the motion to unseal the Twitter Application; (3) denied the motion to unseal the Other § 2703(d) Orders; and (4) took under advisement the issue of public docketing of the Other § 2703(d) Orders and related motions. 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 § 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."

While Subscribers' request for public docketing was pending, the Eastern District reviewed and changed the docketing procedures of its clerk's 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 § 2703(d) orders. The EC docket is a " running list" that is publicly available from the district court's clerk's 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.

Following the creation of the EC docket, the magistrate judge denied Subscribers' public docketing request, reasoning that " there exists no right to public notice of all the types of documents filed in a sealed case." Subscribers then filed objections to the magistrate judge's sealing and docketing decisions with the district court.

In reviewing the magistrate judge's decisions, the district court applied a clearly erroneous or contrary to law standard of review and overruled Subscribers' objections. The district court stated that it " also conducted a de novo review and f[ound] that [the magistrate judge]'s findings and orders survive a more demanding scrutiny." In re Appl. of the U.S. for an Order Pursuant to 18 U.S.C. § 2703(d), 830 F.Supp.2d 114, 122 n. 7 (E.D.Va.2011). The district court then affirmed the magistrate judge's sealing and docketing decisions.

Subscribers appealed.

II.

We first address the basis for our jurisdiction over this matter. We have stated " [m]andamus, not appeal, ‘ is the preferred method of review for orders restricting [access] to criminal proceedings.’ " Balt. Sun Co. v. Goetz, 886 F.2d 60, 63 (4th Cir.1989) (quoting United States v. Soussoudis, 807 F.2d 383, 388 (4th Cir.1986)). As mandamus is the preferred method for reviewing courts' orders restricting access to criminal proceedings,

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we treat Subscribers' appeal as a petition for mandamus, and we have jurisdiction under the All Writs Act, 28 U.S.C. § 1651. See Wash. Post Co., 807 F.2d at 388.3

" [W]rits of mandamus are to be issued only in extraordinary circumstances." Id. at 393 (citing Platt v. Minn. Mining & Mfg. Co., 376 U.S. 240, 245, 84 S.Ct. 769, 11 L.Ed.2d 674 (1964))...

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