Court Denies Appeal to Require Disclosure of Twitter Orders
The government’s need to maintain the integrity of an investigation can outweigh the public’s right to access judicial information, the 4th U.S. Circuit Court of Appeals ruled(http://xrl.us/bocb3t). It denied an appeal from the Electronic Frontier Foundation (EFF) and the ACLU in U.S. v. Appelbaum, the case of three Twitter users who were not notified when the federal government sought information from the social media site in relation to an investigation of WikiLeaks and the unauthorized publishing of classified documents.
Sign up for a free preview to unlock the rest of this article
If your job depends on informed compliance, you need International Trade Today. Delivered every business day and available any time online, only International Trade Today helps you stay current on the increasingly complex international trade regulatory environment.
The federal government issued Section 2703(d) orders under the Electronic Communications Privacy Act (ECPA) to obtain the three users’ “names, usernames, personal contact information, account information, connection records, financial data, 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,” Circuit Judge Roger Gregory wrote. In October, the ACLU and EFF argued that the public should have access to information about the government’s attempts to access online communications from online service providers (CD Oct 29 p6).
Under the ECPA, the “government need not give prior notice to the subscriber or customer” when it orders online service providers to disclose user communications and records, Gregory wrote. The law “also provides for gag orders, which direct the recipient of a Section 2703(d) order to refrain from discussing the existence of the order or investigation,” he said. The judge who issued the first 2703(d) orders, allowing the government to require Twitter to disclose the information about the three users, allowed for the gag order, Gregory said. The gag order was lifted Jan. 5, 2011, and had been issued when the judge feared that disclosure would jeopardize the investigation, related to the unauthorized release of classified documents.
Subscribers incorrectly said the orders are of adequate public interest to be unsealed under common law because they would add information to “a matter of national importance, which is the ongoing debate about WikiLeaks’ publications,” help the public understand “the nature and scope of the government’s electronic surveillance of internet activities” and provide subscribers “with an opportunity to challenge the orders to preclude a violation of their constitutional rights,” Gregory wrote. The popularity of the debate over WikiLeaks is not sufficient to justify unsealing the orders, he continued: “The mere fact that a case is high profile in nature does not necessarily justify public access.” The 4th Circuit agreed with previous rulings “that the Government’s interests in maintaining the secrecy of its investigation, preventing potential subjects from being tipped off, or altering behavior to thwart the Government’s ongoing investigation, outweighed those interests” laid out by subscribers.
While the interest-weighing came out in favor of the government in this case, “subscribers are not forever barred from access to the Other Section 2703(d) Orders and derivative documents,” Gregory wrote. If, “at some point in the future, the Government’s interest in sealing may no longer outweigh the common law presumption of access ... the Subscribers may seek to unseal these documents,” Gregory wrote. EFF and ACLU didn’t comment by our deadline.
"A common law right of access conflicts with the statutory scheme” of ECPA, said Judge Samuel Wilson in a concurring opinion. ECPA gives law enforcement the ability to issue gag orders to websites when those authorities are ordering the sites to disclose information about their users, he continued. The basic purpose of the act “is the protection of the privacy interests of subscribers or customers in their electronically stored information and records,” and “a common law right of access is squarely at odds” with that essential purpose, Wilson wrote.
The subscribers’ case does not satisfy the First Amendment’s requirement of openness when “public access plays a significant positive role in the functioning of the particular process in question,” a precedent established in Press-Enterprise Co. v. Superior Court, Gregory wrote. “The Section 2703(d) process is investigative, and openness of the orders does not play a significant role in the functioning of investigations.” On the contrary, public access to the orders would negatively affect the investigations, he said: “Because secrecy is necessary for the proper functioning of the criminal investigations at this Section 2703(d) phase, openness will frustrate the government’s operations.” Gregory compared proceeding for the issuance of Section 2703(d) orders to those of search warrants, which are not open to the public and press.