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Media Alerts - Application of the U.S. for an Order Pursuant to 18 U.S.C. § 2703(d) - Fourth Circuit
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March 4, 2013
  Application of the U.S. for an Order Pursuant to 18 U.S.C. § 2703(d) - Fourth Circuit
Headline: In WikiLeaks Investigation, Public Has No Right to See Government's Application for Twitter Communications

Areas of Law: Constitutional Law, Criminal Law

Issue Presented: Whether the First Amendment or common law, gives the public a right to access judicial records related to pre-grand jury court orders to disclose electronic communications.

Brief Summary: While investigating the release of documents to, the United States government obtained a § 2703(d) order requiring Twitter, Inc., to disclose communications of independent hacker Jacob Appelbaum and several others. Appelbaum moved to unseal judicial records related to the order and sought public docketing of any other § 2703(d) orders and related motions. Rejecting Appelbaum's claim, the Fourth Circuit held there is no First Amendment right to access such documents. In addition, the court determinedthat any common law right to access was outweighed by the government's interest in maintaining secrecy in its investigation. In a concurring opinion, Judge Wilson determined that any common law right to access judicial records was inapplicable to § 2703(d) orders and motions.

Significance: The Fourth Circuit held for the first time that 1) the First Amendment provides no public right to access § 2703(d) orders and derivative motions; 2) the common law does provide such a right but is subject to balancing of competing interests; and 3) § 2703(d) orders and derivative motions are judicial records. In reaching these holdings, the Fourth Circuit expressly adopted a definition of "judicial records."

Extended Summary: Investigating the 2010 release of classified documents to the online organization WikiLeaks, the United States Government successfully applied to the District Court for the Eastern District of Virginia for an order pursuant to 18 U.S.C. § 2703(d). The order required Twitter, Inc., to disclose communications of WikiLeaks founder Julian Assange and others including, Jacob Appelbaum, Rop Gonggrijp, Birgitta Jonsdottir, and the alleged source of the leak, US Army Private Bradley Manning. Following the unsealing of the order in January, 2012, neither Assange, nor Manning challenged the order but the other "subscribers," including Appelbaum, Gonggrijp, and Jonsdottir, filed several motions. The subscribers moved the court to vacate the order to Twitter, unseal all documents relating to that order, and unseal and publicly docket any other § 2703(d) orders pertaining to them. The magistrate judge granted only the motion to unseal pleadings filed in litigation of the Twitter order. He denied the motions to vacate the order and to unseal other § 2703(d) orders and the application for the Twitter order. He also denied the motion to publicly docket other § 2703(d) orders in the investigation. The District Court upheld the magistrate judge's rulings.

The Fourth Circuit, treating the subscribers' appeal as a petition for mandamus, held the subscribers would need to show they had a clear and indisputable right to relief and that there were no other adequate means to attaining relief. After disposing of a preliminary question regarding the correct standard, the court turned to the question of whether § 2703(d) orders and the related motions are judicial records. On commonsense reasoning, the court held that § 2703(d) orders themselves were judicial records. Addressing the derivative motions, the court adopted a new definition of judicial records. Citing Rushford v. New Yorker Magazine and In re Policy Management Systems Corp., the court defined "judicial records" as documents that play a role in the adjudicative process, or adjudicate substantive rights. Applying this definition, the court found the derivative motions in question were judicial records.

Having established that the documents sought by the subscribers were judicial records, the court decided that the First Amendment right to public access did not include a right to have the § 2703(d) orders and motions unsealed. Applying the "experience and logic" test, Judge Gregory wrote that neither prong was satisfied. With the subscribers admitting there was no long tradition of access to § 2703(d) orders, analysis focused on the logic prong with the Court holding that because secrecy is necessary for the proper functioning of criminal investigations in the pre-indictment phase, transparency did not play a significant positive role in the operation of § 2703(d) orders.

Distinguishing the common law right to access from the First Amendment right to access, the court noted that the common law does not afford as much substantive protection to the interests of the press and the public as does the First Amendment. While the common law presumes a right to all judicial records and documents, the presumption can be rebutted if "the public's right of access is outweighed by competing interests." In this case, the court agreed with the magistrate that, among others, the Government's interests in maintaining secrecy and preventing subjects from altering behavior to thwart investigations, outweighed the public's common law presumption of access.

Finally, the court assessed whether the Eastern District for Virginia included sufficient detail on its docket. The subscribers had argued that the docketing system failed to identify the type and date of § 2703(d) matters with individual docket entries. The court responded by acknowledging that the public must ordinarily be given notice and an opportunity to object to sealing of public documents. However, notwithstanding this general rule, the court found that no federal court had ever required public docketing in pre-indictment investigative matters such as § 2703(d) orders, pen registers, or wiretaps, which are all akin to grand jury investigations.

In a concurring opinion, District Judge Wilson, sitting by designation, wrote that courts cannot presume common law rights and remedies that conflict with a statutory scheme or a statute's essential purpose. He found that the Stored Communications Act, which created § 2703(d) orders did not allow for a public right to access, outside of an individual subscriber's right to access.

To read the full opinion please visit:

Panel: Circuit Judges Gregory and Duncan, and United States District Judge for the Western District of Virginia Samuel Wilson, sitting by designation.

Argument Date: 10/26/12

Date of Issued Opinion: 01/14/13

Docket Number: No. 11-5151

Decided: Petition for mandamus denied.

Case Alert Author: Philip C. Dales

Counsel: 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 FRONTIERFOUNDATION, 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.

Author of Opinion: Judge Gregory

Circuit: 4th Circuit

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 03/04/2013 10:33 AM     4th Circuit  

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