Court Order for Twitter Records, In re: §2703(d) Orders
On December 14, a magistrate judge in the Eastern District of Virginia, Alexandria, issued an order requiring Twitter to provide information pertaining to several subscribers who have been associated with WikiLeaks in the past. The order seeks a variety of information about the account holders, including all IP addresses from which the subscribers have tweeted from November 1, 2009 to the present and identifying information concerning anyone with whom they have communicated through Twitter’s private messaging feature. The order was issued pursuant to the Stored Communications Act, 18 U.S.C. § 2703, which allows the government to seek a court order requiring disclosure of customer information from an electronic services provider upon a showing of “reasonable grounds” to believe that the records “are relevant and material to an ongoing criminal investigation.” There are very likely other sealed orders against Google, Facebook, and other e-mail or social networking providers seeking additional information about these individuals.
The ACLU and Electric Frontier Foundation represent one of the targeted individuals, Birgitta Jonsdottir, a member of the Parliament of Iceland. We have filed a motion to vacate the order to Twitter, and a motion to unseal the government’s application for the Twitter order, as well as materials related to any similar orders to other ISPs. The motions were heard on February 15, 2011.
On March 11, 2011, Magistrate Judge Buchanan denied both motions. With regard to the motion to vacate the Twitter order, Judge Buchanan found that the ACLU/EFF did not have standing to make the motion, and that even if ACLU/EFF did, relief was not warranted. The judge found that "the scope of the Twitter Order is appropriate even if it compels disclosure of some unhelpful information. Indeed §2703(d) is routinely used to compel disclosure of records, only some of which are later determined to be essential to the government's case." She rejected the First Amendment claim because the order did not demand information related to the content of our client's tweets, which were in any case publicly available. And she held that the Fourth Amendment claim was inapposite because our client had voluntarily provided the requested subscriber information to Twitter, and therefore had no reasonable expectation of privacy in that information.
Regarding the motion to unseal, the court found that we had no First Amendment or common law right to access documents pertaining to an ongoing criminal investigation, because "[s]ecrecy protects the safety of law enforcement officers and prevents destruction of evidence. It also protects witnesses from intimidation or retaliation. Additionally, secrecy prevents unnecessary exposure of those who may be the subject of an investigation, but are later exonerated." (citations omitted.)
On March 11, 2011, the motion to set aside the Twitter order and motion to unseal similar orders to other ISPs were denied by the Magistrate Judge. We appealed to the District Court, which on November 10, 2011 ruled that the government can collect the private records of three Twitter users as part of its investigation into WikiLeaks. The court also refused to unseal or publicly list all orders and other court documents relating to the parties in the case, including orders that may have been sent to other companies besides Twitter. We have appealed, and oral arguments were heard on October 26, 2012. On January 25, 2013, the Fourth Circuit ruled against us.
National ACLU Page on Twitter Wikileaks Court Order