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4th Circuit Upholds Secrecy of Court Surveillance Orders

January 25, 2013. The U.S. Court of Appeals (4thCir) issued its opinion [22 pages in PDF] in US v. Appelbaum, regarding public access to court orders issued pursuant to 18 U.S.C. § 2703(d) compelling service providers, such as Twitter, to provide the government with transactional information, or the contents of electronic communications.

The basic principle is that courts and judicial proceedings are open to the parties and the public. The 6th Amendment guarantees defendants a "public trial" in criminal cases. In both criminal and civil cases, trials, hearings and other events are open to the public. Pleadings, orders, opinions and other judicial records are available for inspection by the public.

There are exceptions, and this cases addresses one -- whether the public has a right of access to these Section 2701(d) orders and related pleadings.

The Court of Appeals held that there is no First Amendment right to access such documents, and in this case, the common law right to access such documents is outweighed by countervailing interests.

This case arises out of the government's criminal investigation of Bradley E. Manning's unauthorized transfer of documents to Julian P. Assange for publication in his WikiLeaks web site. As a part of its investigation, the government sought and obtained from the District Court an order directed to Twitter compelling it to provide certain records regarding three of its subscribers, Jacob Appelbaum, Rop Gonggrijp, and Birgitta Jonsdottir.

Birgitta JónsdóttirJonsdottir (at right) is a member of the Iceland national legislature.

The Court of Appeals wrote that the order directed Twitter "to provide Subscribers' 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". (Footnote omitted.)

The ACLU's Arden Fine stated in a release that "This case shows just how easy it is for the government to obtain information about what people are doing on the internet, and it highlights the need for our electronic privacy laws to catch up with technology. The government should not be able to get private information like this without getting a warrant and also satisfying the standard required by the First Amendment, and it shouldn't be able to do so in secret except in unusual circumstances".

He added that "Unfortunately, today’s decision makes it easier for the government to keep its electronic surveillance activities hidden, even when there is no longer any need to keep them secret."

District Court Proceedings. The parties in the U.S. District Court (EDVa) are the US, Twitter, and the three Twitter subscribers, Appelbaum, Gonggrijp, and Jonsdottir.

Although, Twitter is not a party to this appeal. Also, the American Civil Liberties Union (ACLU) and Electronic Frontier Foundation (EFF) are not parties, but are litigating this case as counsel for Jonsdottir.

The District Court sealed the order, and issued a gag order barring Twitter from informing the three subscribers. However, the District Court soon after unsealed it, and authorized the government to disclose its existence to the subscribers.

These three subscribers then filed a motion with the District Court requesting that the Court vacate the order directing Twitter to provide records regarding the three subscribers. Their motion also requested that the District Court unseal all documents relating to that 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.

A Magistrate Judge (MJ) of the District Court denied the motion to vacate. The MJ also granted the motion to unseal pleadings filed during the litigation over the Twitter order, but exempted the most important pleading -- the Department of Justice's (DOJ) application for the Section 2703(d) order. The MJ also denied the motion to unseal the other section 2703(d) orders.

The MJ opined that there is no First Amendment right to access the DOJ's Twitter application, and the other section 2703(d) orders and applications. The MJ also opined 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."

Statute. Section 2703 is part of the Stored Communications Act (SCA), which in turn, is part of the Electronic Communications Privacy Act (ECPA).

The SCA refers to both a "remote computing service" (RCS) and an "electronic communications service" (ECS). Both terms are defined by definitions drafted in 1986. Both definitions, like much of the ECPA, are out of date and obsolete. RCS is defined at 18 U.S.C. § 2711. ECS is defined at 18 U.S.C. § 2510.

18 U.S.C. § 2702 provides that a RCS or ECS may not disclose contents of, or transactional records regarding, stored communications.

Section 2703 then provides that the government may obtain orders directing a RCS or ECS to disclose contents or transactional records.

Subsection 2703(b) provides that "A governmental entity may require a provider of remote computing service to disclose the contents of any wire or electronic communication ... without required notice to the subscriber or customer, if the governmental entity obtains a warrant ... or with prior notice from the governmental entity to the subscriber or customer if the governmental entity ... uses an administrative subpoena ... or ... obtains a court order for such disclosure under subsection (d) ..."

Subsection 2703(c) provides that "A governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications) only when the governmental entity ..." if the government meets any of several requirements, one of which is obtaining an order under Section 2703(d).

Subsection 2703(d) provides that "A court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity 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." This includes a very low standard, rendering it easy for the government to obtain such orders.

Then, 18 U.S.C. § 2705 provides for the issuance of gag orders, orders "delaying the notification" to subscribers.

Court of Appeals Holding. The Court of Appeals first held that there is no First Amendment right of access to § 2703(d) proceedings.

The Court of Appeals applied the two prong test articulated by the Supreme Court in its 1988 opinion in Press-Enterprise v. Superior Court, 478 U.S. 1.

First Amendment right of access to orders and proceedings is dependent upon whether the place and process have historically been open to the press and general public, and whether public access plays a significant positive role in the functioning of the particular process in question. The Court of Appeals concluded that neither prong is satisfied in the present case.

The Court of Appeals next wrote that there is a common law right of access to judicial records, and that Section 2703(d) orders are judicial records. However, it added that this right of access is a presumption that may be overcome.

The Court continued that "To substantively overcome the common law presumption of access to § 2703(d) orders, a court must find that there is a ``significant countervailing interest´´ in support of sealing that outweighs the public’s interest in openness."

The Court of Appeals wrote that in balancing, a court may consider (1) whether the records are sought for improper purposes, such as promoting public scandals or unfairly gaining a business advantage, (2) whether release would enhance the public's understanding of an important historical event, and (3) whether the public has already had access to the information contained in the records.

The Court of Appeals noted that the subscribers argued that there are public interests in "the ongoing debate about WikiLeaks' publications", the "nature and scope of the government's electronic surveillance of internet activities", and "the extent the § 2703 orders have not been complied with".

The Court of Appeals continued that the MJ considered these interests, and found, like the Court of Appeals, that they are outweighed by 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."

Finally, the Court of Appeals wrote that the three subscribers "are not forever barred from access ... because at some point in the future, the Government’s interest in sealing may no longer outweigh the common law presumption of access. At such point, the Subscribers may seek to unseal these documents."

In addition, Judge Wilson wrote in a concurring opinion that "The motions that support these § 2703(d) orders, the orders themselves, and the very existence of these orders implicate or directly convey highly private information and confirm the existence of a criminal investigation. Yet an essential purpose of the Electronic Communications Privacy Act is the protection of the privacy interests of subscribers or customers in their electronically stored information and records. To presume a common law right of access to these records because the government has obtained an order from a federal court -- which acts in these cases as a limited backstop against government overreaching -- strikes at the Act’s essential purpose. The government’s monitored intrusion of the citizen’s private interests would thereby justify privacy intrusions by others. Rather than serving as a check against invasions of privacy, the Act would serve to magnify them. Consequently, I believe that a common law right of access is squarely at odds with the Act’s essential purpose."

Leahy Bill. Sen. Patrick Leahy (D-VT) proposed legislation late in the 112th Congress that would make significant revisions to the SCA portion of the ECPA, and especially to Section 2703.

Its key section would provide that "A governmental entity may require the disclosure by a provider of electronic communication service or remote computing service of the contents of a wire or electronic communication that is in electronic storage with or otherwise stored, held, or maintained by the provider only if the governmental entity obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) that is issued by a court of competent jurisdiction directing the disclosure."

Sen. Leahy offered this as part of an amendment to HR 2471 [LOC | WW], a bill regarding video privacy. The Senate Judiciary Committee (SJC), which Sen. Leahy chairs, approved HR 2471 with Sen. Leahy's proposal. However, the bill was enacted into law without Sen. Leahy's amendments.

See, story titled "Senate Judiciary Committee Approves Leahy Bill to Require Warrant for Accessing Cloud Stored E-Mail" in TLJ Daily E-Mail Alert No. 2,479, November 30, 2012, and TLJ red line mark up of this bill.

This case is U.S.A. v. Jacob Appelbaum, Rop Gonggrijp, Birgitta Jonsdottir, and Twitter, Inc., U.S. Court of Appeals for the 4th Circuit, App. Ct. No. 11-5151, an appeal from the U.S. District Court for the Eastern District of Virginia, at Alexandria, D.C. No. 1:11-dm-00003-TCB-LO-1, Judge Liam O'Grady presiding. Judge Roger Gregory wrote the opinion of the Court of Appeals, in which Judge Allyson Duncan joined. Judge Samuel Wilson (USDC/WDVa, sitting by designation) wrote a concurring opinion.

All four of the Article III Judges involved in this case are Republican appointees. Judges Gregory, Duncan and O'Grady were appointed by the second President Bush. Judge Wilson was appointed by the first President Bush.

(Published in TLJ Daily E-Mail Alert No. 2,517, January 31, 2013.)