[SEALED] Dockets concerning Birgitta Jonsdottir in the Wikileaks Grand Jury

8/4/2019 [SEALED] Dockets concerning Birgitta Jonsdottir in the Wikileaks Grand Jury

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FILED

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF VIRGINIA Z3 ' ^0 \U P U: 58

CLERK US DISTRICTCOURTAlexandria Division ALEXANDRIA. VIRGINIA"*

IN THE MATTER OF THE )2703(d) ORDER RELATING TO ) MISC. NO. 10GJ3793TWITTER ACCOUNTS: ) No. 1:11DM3 (Judge Buchanan)WIKILEAKS, ROP_G; IOERROR; )AND BIRGITTAJ ) UNDER SEAL

GOVERNMENT ' S POSI TION ON UNSEALING OFRECORDS F ILED UNDER DOCKET NUMBER l :ll -DM - 00 03

The United States ofAmerica, by and through Neil H. MacBride, UnitedStatesAttorney,Eastern District ofVirginia, and John S. Davis and Andrew Peterson, Assistant United StatesAttorneys, hereby responds to the Court's Order that the Parties identify pleadings that havebeen filed under docket number 1:11 -DM-0003 that should remain under seal.1 A proposedOrder is attached.

1. Asdetailed below, the government's apjilicatjojLin this matter should remain underseal. In addition, theGovernment's Response inOpposition to Motionof Real Parties-in-Interest For Unsealing of Sealed Court Records (docket No. 22), and Twitter, Inc.'s Motion forClarification (docket No. 24) should remain under seal, but redacted versions of those documents

xIn the government's February 4,2011, Response In Opposition to the Real Parties' In InterestMotion for Immediate Unsealing ofMotions andUpcoming Hearing (Gov't Resp.), thegovernment objected to unsealing the February 15, 2011 hearing aswell as the related pleadings,on the basis that proceedings ancillary to criminal investigations should remain under sealwhilethe investigation isongoing. SeeGov't Resp. at 4-8. On February 7,2011, theCourt orderedthat the Real Parties- in-Interestmotionswouldbe unsealedand that the February15,2011hearing would beopen to the public. On February 9, 2011, theCourtordered that thepartiessubmit a statement specifyingwhich pleadings in the case should remain sealed. Thegovernment maintains that the proceedings, as wellas all related pleadings, should remain underseal. Tothe extenttheCourt's Orderof February 9, 2011 deniedthis request, however, thegovernmentsubmitshis pleading. Nothing in this position ismeant to waive thegovernment'sobjection, which is renewed, for the reasons stated in its February 4 pleading.

^

Case 1:11-dm-00003-TCB Document 34 Filed 02/14/11 Page 1 of 33


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(Exhibit A and B, attached) may be filed for the public record. The remaining documentsmaybe unsealed.

2. The government's original application underTitle 18,Section2703, referenced in theDecember 14,2010 Order ("the Application"), should remain exparte and under seal for thereasons stated in the Application, and because the Application sets forth facts and sensitivedetails of an ongoing criminal investigation. The government's representations made in theApplication, pursuantto 18U.S.C. 2705(b) and LocalCrim. Rule49, as towhy it mustbesealed, remain valid. Further, where the unsealing of a document will disclose facts regarding acriminal investigation that are not known to the public, sealing is appropriate. See Va. Dept. ofStatePolice v. Washington Post, 386 F.3d, 567, 579 (4th Cir. 2004);ACLUv. Holder, 653 F.Supp.2d654,65-66 (E.D. Va.2009)(sealing appropriate whendisclosure woulddisruptanongoing criminal investigation). If the Court requires additional factual information from thegovernment regardingwhy sealing is appropriate, the government will promptly provide suchreasons to the Court exparte.

3. The Government's Response inOpposition toMotion ofReal Parties in Interest ForUnsealingof Sealed Court Records, currentlydocketed at #22, should remain under seal.Nonetheless, a partially redacted version of docket No. 22, attached as Exhibit A,may be filed aspartof the public record. See Fed. R.Crim. P.49.1(d) (court may order filing of redactedversion of sealed document forpublic record). The redacted portions of the government'spleading indicate that, insofar as the proper law to apply to the real parties'-in-interest motion,they areakin to subjectsof an ongoing criminal investigation. An important reason forinvestigative secrecy is that individuals who may be subjects of an investigation butare later



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exonerated should be protected from public exposure. SeeDouglas OilCo. v. Petrol Stops N.W.,441 U.S. 211,219 (1979). Thoughsomeof the real parties-in-interest havesoughttomaximize,rather thanminimize, thepublicexposure of thismatter, the redacted portions of docket #22could be construedas statementsof the government regarding their status. Regardless of the realparties'-in-interest subjective beliefs, statements by the government about investigative status arelikely to receive special attention. Such information is properly sealed. Cf.E.D. Va. LocalCrim. R. 57.1(b).2

4. Twitter, Inc.'s Motion for Clarification,currently docketed at #24, should remainunder seal. Nonetheless, a partially redacted version ofdocket No. 24, attached as Exhibit B,may be filed aspartof the public record. See Fed. R. Crim. P.49.1(d) (court may order filing ofredacted version of sealeddocument for public record). Thecertificate of serviceattached todocket Number 24contains the e-mail address ofanAssistant United States Attorney, whichshould be redacted. In addition, Exhibit 1 to docket No. 24 consists of this Court's December14,2010 Order, aswell as a fax cover sheet.3 Redaction of personal identifiers and the fax coversheet is requested for the following reasons. When theCourt's December 14,2010Orderwasfirst unsealed, this fax cover sheet was posted to the Internet, sparking a campaign ofharassment. To avoid further disruption of investigation resources, such information is properlyredacted.

2The government does not believe that this requires the sealing ofthe real parties'-in-interestreply pleadings, as those pleadings contain the real parties'-in-interest characterization of theirstatus and are not government statements.3The real parties'-in-interest also attached the Court's December 14, 2010 Order to theirpleadings. However, they omitted the fax cover sheet.



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5. Two other documents that relate to this proceedingdo not currently appear on thedocket for case number 1:1l-DM-0003. Those documents are: (1) the Court's December 14,

2010Order which was previously unsealed; and (2) the government's Motion to Unseal theOrder Pursuant to 18U.S.C. 2703(d). The government's motion may be unsealed.

WHEREFORE, for the reasons stated, pursuant to the Court's February 7,2011 Orderunsealing the February 15,2011 hearing and the Court's February 9,2011 Order, and subject tothe government's objection to unsealing this proceedingand all related pleadings, all documentsfiled undercasenumber 1:1 l-DM-0003 maybeunsealed, except for theApplication anddocketnumbers 22 and 24. Redacted versionsofdocket numbers 22 and 24, attached ExhibitsA and B,may be publiclyfiled. Finally,the Court may unseal the government's Motionto Unseal theOrder Pursuant to 18 U.S.C. 2703(d), which does not appear on the docket sheet. AproposedOrder is attached.

Respectfully submitted,Neil H. MacBrideUnitedStates Attorney

By: /s/John S. DavisAndrew PetersonAssistant United States AttorneysUnitedStates Attorney's Office2100 Jamieson AvenueAlexandria, Virginia 22314(703) 299-3700



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UNITED STATES DISTRICT COURTEASTERN DISTRICT OF VIRGINIA

Alexandria Division

IN RE THE MATTER OF THE 2703(d) )ORDER RELATING TO TWITTER ) Case No.: 1:11-DM-0003TWITTER ACCOUNTS WIKILEAKS, )ROP_G, IOERROR, AND BIRGITTAJ ) UNDER SEAL

IProposedl ORDER TO SEALThe UNITED STATES, pursuant to Local Rule 49(B) of the Local Criminal Rules for the

United States DistrictCourt for the Eastern DistrictofVirginia, having renewed its request toseal the government's application for an Order pursuant to 18U.S.C. 2703(d) ("theApplication"), as well as portions of the records filed at docket #22 and docket #24 under casenumber 1:1 l-DM-0003, and

TheCOURT, having considered the government's submissions, including the factspresented by thegovernment in theApplication and the reasons presented in boththeApplication and subsequent pleadings; having found that revealing thematerial sought to besealed would jeopardize anongoing criminal investigation by revealing facts that arenotcurrently public and revealing the nature and scope of the investigation; having considered theavailable alternatives that are less drastic than sealing, and finding none would suffice toprotectthe government's legitimate interest in conducting the investigation; and having found that thislegitimate government interest outweighs at this time any interest inthedisclosure of thematerial; and

Further, the COURT, having considered the government's submissions and having foundthat redaction ofpersonal identifiers is necessary to prevent disruption ofan ongoing criminalinvestigation; it is hereby

ORDERED, ADJUDGED, and DECREED that, the Application, docket numbers 22 and



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24, the Government's Position on Unsealing filed February 14,2011, and this Order be sealeduntil a charging document is filed. All remaining documents filed under 1:1 l-DM-0003 arehereby unsealed. The Clerk of the Court is herebydirected to file redacted versions ofdocketnumbers 22 a nd 2 4.

Date: Alexandria, Virginia

The Hono rab le Theresa C. BuchananUnited States Magistrate Judge



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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing Objection was filed with theClerk of the Court on February 14,2011, and a copy of this filing was e-mailed to opposingcounsel at the following addresses:

John K. ZwerlingStuar t SearsZwerling, Liebig & Moseley, P.C.108 N.Alfred StreetAlexandria, VA [email protected] for Jacob AppelbaumNina J. GinsbergDimuro Ginsberg P.C.908 King Street, Suite 200Alexandria, VA [email protected] for Rop Gonggrijp

Johnathan ShapiroGreenspun, Shapiro, Davis, & Leary3955 Chain Bridge RdSecond F loorFairfax, VA [email protected] for Birgitta Jonsdottir

/s /J oh n S . D av isAssistant United States Attorney2100 Jamison AvenueAlexandria, VA 22314Phone: (703) 299-3700



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EXH IB I T A



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F!!..0UNITED STATES DISTRICT COURTEASTERN DISTRICT OF VIRGINIA '* ' r r * - i

Alexandri a Divi sion/-.X.'.,Lr..A. , ,Ki_.;.i/\IN THE MATTER O F THE

2703(d) ORDER RELATING TOTWITTER ACCOUNTS:WIKILEAKS; ROP_G; IOERROR;AND BIRGITTAJ

MISC. NO. 10GJ3793No. 1:11DM3 (Judge Buchanan)Hearing: February 15,201110:30 a.m.

UNDER SEAL

GOVERNMENT'S RESPONSE IN OPPOSITION TO THE REAL PARTIES ' IN INTERESTMOTION FOR UNSEALING OF SEALED COURT RECORDS

The United States ofAmerica, by and through its under-signed counsel, hereby opposesthe motion to unseal. The Parties in Interest (hereinafter the "subscribers") seek to unseal courtdocuments so that they may identify witnesses in an ongoing criminal investigation and publiclyair the contents ofa grand jury investigation. Such a request is preposterous. If an individualinvolved in any other criminal case petitioned a court to unseal materials that identified witnessesor potential witnesses, for the purpose of subjecting the witness to public scrutiny regarding theircooperation with law enforcement, see Mot. ofReal Parties In Interest for Unsealing of SealedCourt Records ("Mot. for Unsealing") at 3, that individual would be laughed out of court. Thesealed materials requested by the subscribers include information about a criminal investigationthat is protected fromdisclosure by an Order of this Court and sound public policy. Thosematerials are properly sealed, and should remain so until the investigation concludes. Thus, thesubscribers ' mot ion to unseal should be denied.

I. BACKGROUND

On December 14, 2010, this Court entered an Order pursuant to Title 18, UnitedStates



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Code Section 2703(d), directing Twitter, Inc. to disclose certain non-content records that wererelevant and material to an ongoing criminal investigation. In the December 14,2010 Order, the

Court found that disclosure of the application or the Order to any person would seriouslyjeopardize an ongoing criminal investigation. The Court ordered that the application and Orderbe sealed until further Order of the Court. On January 5,2011, the Court unsealed the December14,2010 Order and authorized Twitter, Inc. to disclose the Order to its subscribers andcustomers. The January 5,2011, Order stated that "in all other respects," the Court's December14,2010, Order remained in effect. After the Order was unsealed, it was released by unknownpersons to themedia. Intense publicscrutiny of the investigation resulted, including callsbyonesubject of theOrder and various media outlets for potential government witnesses to identifythemselves. See,e.g.,PeterBeaumont, "Wikileaks demands Googleand Facebook unseal USsubpoenas,"The Guardian, January 8,2011, available athttp://www.guardian.co.uk/media/2011 /jan/08/wikileaks-calls-google-facebook-us-subpoenas.

II . ARGUMENT

A. The Subscribers Lack Standing to Move to Unseal Unspecified Other Ordersand Pleadings, and Cannot Manufacture One ByClaiming an Otherwise Non-existent Right to Notice.



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The subscribers seek to elide their lack of injury from a sealing order directed at a thirdparty by simply asking the Court lirst to seek out other sealing orders which they may wish lo



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challenge, and next to vacate them. The subscribers allege this work is necessary so that they canassert substantive challenges to the underlying orders, if they exist. However, even if the

subscribers' substantive challenge to the December 14,2010 Order had merit, which it does not,there is no corresponding right to notice ofother process that has been issued. See S.E.C. v. JerryT. O'Brien, Inc., 467 U.S. 735, 750 (1984) (rejecting right to notice of subpoena directed at thirdparty by target of investigation even though it would "[prevent] some persons under investigation. . . from asserting objections to subpoenas . . . ."); Swearingen,605 F.2d at 127 (holding targetof grand jury investigation has no right to know whether third party has provided evidenceagainst him or her); UnitedStates v. Clem, 210 F.3d 373, 2000 WL 353508, at *5 (6th Cir. Mar.31, 2000) ("[Defendant] invites us to extend this logic to a constitutional right to receive noticeof grand jury proceedings where a client maywish to assert his [right to quash]. But Clemcitesno cases endorsing such a right, nor does our research reveal any.").

The cases cited by the subscribers regarding quashing a subpoena to a third party areinapposite. (Parties' Mot. For Unsealing at 13-14.) Those cases stand for the proposition that anorganization may sometimes have standing to challenge a third-party subpoena that would revealits membership. Here, none of the subscribers is an organization, and none of the subscribersseeks to vindicate the rights of non-parties to the litigation. Thus, there is no reason why thesecases would override the specific holding in Swearingen. Additionally, none of those cases heldthat an organization has a right to notice of subpoenas or Orders that had been issued, and thisCourt should decline th e subscribers' invitation to create one.

B. The Records in This 2703(d)MatterWereProperlyScaledandAreProperlyMaintained Under Seal Until After the Investigation is Concluded.



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The subscribers do not dispute that the scaled records are part of an ongoing criminalinvestigation. As noted in the government'sResponse inOpposition to the subscribers' Motionfor Immediate Unsealing ofMotions and UpcomingHearing ("Gov't Opp. to Mot. ForImmediate Unsealing"), the proceedings related to the Court's December 14,2010 Order areproperlysealed. The subscribers also seek to unseal any other orders or records related to them.Those records, to the extent they exist, are also properly sealed. To seal a judicial record, thescaling must be "essential to preserve higher values and is narrowly tailored to serve thatinterest." See Baltimore Sun, 886 F.2d at 66-67.

"Fair and effective law enforcement... is a fundamental function of government." SeeBranzburg v. Hayes, 408 U.S. 665, 690 (1972). The secrecy of investigations is important for anumber of reasons, see Gov't Opp. To Mot. For Immediate Unsealing at 3-5, but "[o]neimportant reason for this desire to maintain secrecy is to encourage free and untrammeleddisclosures by persons who have information with respect to the commission of crimes." UnitedStates v. Penrod, 609 F.2d 1092, 1096 (4th Cir. 1979) (internal quotations and citations omitted).The subscribers' request would identify other witnesses, if any, who the governmentor the grandjury had requested to provide evidence. The chillingeffect on potential witnessesof such adisclosure would undermine a fundamental government interest. See In reGrandJuryInvestigation ofCuisinarts, Inc., 665 F.2d24, 27-28 (2dCir. 1981) (notingprevention ofinfluence on potential witnesses is fundamental justification for secrecy of investigations); seealsosee In reGrandJury Subpoena: Subpoena Duces Tecum, 829F.2d 1291, 1305 (4th Cir.1987) (Wilkinson, J., concurring) (noting issuance of process serves society's compelling interestin law enforcement). Prior to entering the Order, the Court reviewed the application. Both Local



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Rule 49 and section 2705(b) require that a request for a sealing order state the basis for whysealing is necessary. The government did so, and the Court's Order specifically found thatdisclosure of the application would jeopardize an ongoing criminal investigation. No furtherprocedure is required. See MediaGen. Operations, Inc. v. Buchanan,417 F.3d 424,430 (4thCir. 2005).

Sealing until the investigation concludes is also narrowly tailored to serve that interest.The subscribers state that document-by-document redaction and reviewwould betterprotect theirinterests. To the extent thesubscribers seek information regarding the general format of requestsfor 2703(d) orders, such information is already publicly available on the Departmentof Justice'swebsite. See http://www.justice.gov/criminal/cybercrime/ssmanual/ 06ssma.html. What thesubscribersactually seek is the factual information withinthe order. As the Court has alreadyfound, however, the release of that informationwouldjeopardize an ongoing investigation.When the investigation concludes, the need for sealing will be significantly reduced. Thegovernment will move for unsealing at that time.

The subscribers' primary argument in favor of unsealing is not a legal argument. Theirprimary argument is thatcontinued sealing of records related to the subscribers isno longernecessary because anydamage thatcould occur to the investigation from unsealing those recordshas already occurred from the unsealing of this Court's December 14, 2010Order. However, theunsealing oftheDecember 14, 2010 Order, revealed very little about the investigation. Itdid notreveal the targets of the investigation.



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All of th is in fo rmat ion concerns

subjects the subscribers seek to publicly litigate, and all of this information has been the subjectof intense public and media speculation. Such publicity can intimidate or deter witnesses fromcoming forward, result in witness collusion, or lead to intimidation of grand jury members. SeeDouglas Oil Co. v. PetrolStopsN.W., 441 U.S. 211,218 (1979). Such improper influencesundermine the integrity and independence of the criminal justice system. See Times Mirror Co.v. United Slates, 873 F.2d 1210, 1213 (9th Cir. 1989).

Subscribers havenot citeda singlecasethat suggests pre-indictment investigativedocuments shouldbe unsealed in themidst of the investigation. The onlycasecited bythesubscribers that relates to sealing at all discussesthe unsealingof sentencingrecords, wheretheinformation in the records was made public in the course of a criminal trial, aswell asata publicsentencing hearing. See United States v. James, 663 F. Supp. 2d 1018,1021 (W.D. Wash. 2009).That is not thecase here, where no charges have been filed and an investigation is ongoing."[L]awenforcement agenciesmust be able to investigate crimewithout the detailsof theinvestigation being released to the public inamanner that compromises the investigation." Va.Dept. ofState Police v. Washington Post, 386F.3d 567, 574(4thCir.2004).

C. There IsNoFirstAmendment orCommon Law Right To Access SealedInvestigative Materials While an Investigation is Pending.There is no First Amendment right of access toeither 2703(d) orders or the affidavits



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filed in supportof them. Neither the FourthCircuit or the SupremeCourt has ever held that thereis a First Amendment right of access to investigative documents or proceedings prior to the filingof criminal charges. For a First Amendment right of access to a record to exist, (1) the place orprocess must have been historically open to the press and public, and (2) public access must playa significant positive role in the particular process. See Baltimore Sun v. Goetz, 886 F.2d 60, 63-64 (4th Cir. 1989). There is nor right to access 2703(d) orders, as neither necessary factor isme t .

There is no history of openness in 2703(d) proceedings. Section 2703(d) applicationsare traditionally submitted exparte and in camera. In addition, the statute specificallyauthorizesthe government to obtain an order denying notice to anyone, including the public, about theexistence of a 2703(d) order and application that does not seek the content of anycommunications. See 18 U.S.C. 2705(b). These factors alone are sufficient to defeat thesubscribers' First Amendment challenge. See Baltimore Sun,886 F.2d at 63; see also InreApplication oftheN.Y. Times Co. to UnsealWiretap &SearchWarrantMaterials, 577 F.3d401,410 (2d Cir. 2009) (holding no First Amendment right ofaccess to wiretap materials whereapplications were created bystatute andstatute alsohad protective scheme); In reMotions ofDow Jones &Co., 142 F.3d496, 502-03 (D.C. Cir. 1998) (holdingno FirstAmendment righttoaccess proceedings that are ancillary to a grand jury investigation because they lacka tradition ofopenness).

However, the subscribers also fail the second portion of the test. Investigations are secretfor a reason - because secrecy is necessary to protect the investigative process. In re MaconTelegraph Pub. Co., 900 F. Supp. 489, 492 (M.D. Ga. 1995) ("Thevery nature of...

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investigative proceedings . . . is secretive.... The court refuses to find the existence of a rightthat would in some circumstances possibly destroy institutions (such as the grand jury and

warrant issuance processes) so valuable and necessary to society."). Applications for 2703(d)orders should be kept secret for the same reason search warrant affidavits are kept secret. Theyidentify witnesses, reveal targets of the investigation, and could allow subjects of theinvestigation to frustrate the aims of the order bydestroying evidence. See Baltimore Sun,664F.2d at 64.

The subscribers identify no way in which openness furthers the 2703(d) process.Rather, they simply state that all judicial processes benefit from openness. While this isundoubtedly true as a general proposition, in the context of pre-indictment investigation a generalbenefit from openness is insufficient to overcome society's compelling interest in the secrecy ofinvestigative proceedings. As the Ninth Circuit noted in Times Mirror:

Appellants essentially argue that any time self-governance or the integrityof thecriminal fact-finding process may be served by opening a judicial proceeding andits documents, the First Amendment mandates opening them to the public. Werewe to accept this argument, few, if any,judicial proceedings would remain closed.Every judicial proceeding, indeed every governmental process, arguably benefitsfrom public scrutiny to some degree, in that openness leads to a better-informedcitizenry and tends to deter government officials from abusing the powers ofgovernment. However, complete openness would undermine important values thatare served by keeping some proceedings closed to the public. Openness may, forexample, frustrate criminal investigations and thereby jeopardize the integrity ofthe search for truth that is so critical to the fair administration of justice.

873 F.2d at 1213; see also Baltimore Sun,886 F.3d at 64 (citing Times Mirror in denying FirstAmendment right of access to search warrant materials).

The common law right of access to judicial records also does not create a right toinvestigative materials prior to indictment.



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Courts routinely reject such requests. Forinstance, grandjury materials are typicallyprotected from disclosure indefinitely. See Fed. R. Crim. P. 6(e). Search warrants need not evenbe filed until the warrant is returned, see Fed. R. Crim. P. 41(i); E.D. Va. Local R. 49(B), andsearch warrant affidavits may be sealed to protect an ongoing criminal investigation even afterthe warrant is relumed. See BaltimoreSun, 886 F.2d at 64 ("[W]hether the papers are sealedwhen filed rests in the sound discretion of the judicial officer who issued the warrant."). TheFourth Circuit has upheld the continued sealing of a search warrant affidavit three years after thesearch warrant itselfwas issued. See MediaGen. Operations, 417 F.3d at 430-31; see alsoBaltimore Sun,886 F.2d at 64 ("[TJhe need for sealing [search warrant] affidavits may remainafter execution and in some instances even after indictment."). Court have also denied access toinformation regarding wiretaps, even where a witness before the grand jury could use theinformation to assert a statutory right while testifying before the grand jury, because the marginal

'Subscribersassert that this common lawright attaches to the Government's affidavitinsupport of a 2703(d) order as well as the order itself. The Fourth Circuit has held the commonlaw right of access attaches to search warrants and affidavits in support of search warrants. SeeBaltimore Sun, 886 F.2d at 63-64. The Fourth Circuit held that because the Fourth Amendmentrequires that search warrants be issued only after reviewby a neutral magistrate and uponprobable cause, as well as the requirement of predecessor to Federal Rule ofCriminal Procedure41(i) that all search warrant documents be filed with the Clerk of the Court, those records were"judicial records" within thescopeof theprivilege. The Constitution does not require anyjudicial finding for the records at issue here - indeed the government may obtain this informationusing a subpoena without involving the court at all. See 18U.S.C. 2703(c)(2); United States v.Clenney. No. 09-5114, slip op. at 11 (4th Cir. Feb. 3, 2011). However , because the records atissue should remain sealed until after the investigation is concluded whether or not the commonlawpresumption of accessapplies, theCourtneednotaddress whether thecommon lawrightofaccess applies to the underlying application.

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procedural benefit to the witness would be too disruptive to the investigative process. See InrePersico, 491 F.2d 1156, 1162 (2d Cir. 1974).

The text and structure of the Stored Communications Act also supports sealing theserecords during the pendency of a criminal investigation. The subscribers' claim that the StoredCommunications Act docs not include language regarding the sealing of 2703 orders is simplyincorrect. Section 2705(b) states:

A governmentalentity acting under section 2703, when it is not required to notifythe subscriber or customer under section 2703(b)(1)... may apply to a court foran order commanding a provider of electronic communications service or remotecomputerservice to whoma warrant,subpoena, or court order is directed, for sucha period as the court deems appropriate, not to notify any other personof theexistence of the warrant, subpoena, or court order.

Here, the government is acting pursuant to 2703, and is not required to provide notice to thesubscribers. SeeGov't Obj. at 12. Thus, the statute specificallyauthorizesa non-disclosureorder. Where a statutoryschemeprovides protections for thematerials at issue, it overridesthecommon law right of access. See Inre: N.Y. Times, 577 F.3d at 408. The fact that the statuted oe s not us e the word "seal" is irrelevant.

D. Even if the Clerk Did Not Publicly Docket the December 14,2010 Order as aMotion to Seal, the Subscribers Are Not Entitled lo Unsealing.

Finally, the subscribers argue that the December 14,2010 Order should have beenpublicly docketed. Initially, there is no right to notice of process issued to third parties. SeeSEC, 467 at 751; Clem, 2000 WL 353508, at *5; Swearingen, 605 F.2d at 127. Nor is there aright to public docketing of investigative proceedings that have historically been conductedsecretly. See Inre Seated Case No. 99-3024, 199 F.3d 522, 525 (D.C. Cir. 1998) (holdingproceedings ancillary to grand jury investigations need not be publicly docketed). The fact that an

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order is at issue here, rather than a subpoena, is irrelevant. Indeed, grand jury subpoenas arecourt orders, enforceable by civil and criminal contempt. See Brown v. UnitedStates, 359 U.S.

41, 48 (1959), overruled on other grounds byHarris v. United Slates. 382 U.S. 162 (1965) ("Agrand jury is clothed with great independence in many areas, but it remains an appendage of thecourt . . . It is the court's process which summons the witness to attend and give testimony, and itis the court which must compel a witness to testify if, after appearing, he refuses to do so.").Thus, for the same reason that grand jury process need not be docketed, there is no need todocket 2703(d) orders prior to their unsealing.

Even if there is a right to public docketing of 2703(d) orders, the subscribers are notentitled to a remedyof the unsealing of any such orders or to notice that other orderswere issuedseeking their information. Underthe lawof the Fourth Circuitand the rulesof thisCourt, it issufficient if an order that results from an investigative proceeding conducted exparte and incamera bedocketed in a way "that indicates its nature as a motion to seal." SeeMedia Gen.Operations, 417 F.3dat 430; .see also E.D. Va. Local R. 49(B). Here, the subscribers havereceived sufficient of the December 14, 2010 Order. It was unsealed and the subscribers havebrought a challenge. That is all to which they are entitled.

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III. CONCLUSION

The government will move to unseal the records when the investigation concludes. The

subjects can vindicate their rights, if any, at that time, and the public will have access to anyjudicial records. What the subscribers seek is the ability to litigate the investigation prior to itsconclusion. The subscribers' motion should be denied.

Respectfully submitted,Neil H. MacBrideUnited States Attorney

By: IsLAndrew PetersonJohn S. DavisAssistant United States AttorneysUnited States Attorney's Office2100 Jamieson AvenueAlexandria, Virginia 22314(703) 299-3700

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CERTIFICATE OF SERV ICE

I HEREBY CERTIFY that a true copy of the foregoing Opposition was filed with theClerk of the Court on February 7, 2011, and a copy of this filing was e-mailed to opposingcounsel at the following addresses:

John K. ZwerlingStuar t SearsZwerling, Liebig & Moseley, P.C.108 N.Alf red StreetAlexandria, VA [email protected] for Jacob AppclbaumNina J. GinsbergDimuro Ginsberg P.C.908 King Street, Suite 200Alexandria, VA [email protected] for Rop GonggrijpRebecca K. GlenbergACLU ofVirginia Foundation, Inc.530 E. Main Street, Sui te 310Richmond, VA [email protected]

/s/

Johnathan ShapiroGreenspun, Shapiro, Davis, & Leary3955 Chain Bridge RdSecond F loo rFairfax, VA [email protected] for Birgitta Jonsdottir

Andrew PetersonJohn S. DavisAssistant United States Attorneys2100 J ami son AvenueAlexandria, VA 22314Phone: (703) 299-3700Fax: (703) 299-3982

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EXH IB I T B



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IN THE UNITED STATES D I STR ICT COURTFOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVIS ION

FILED

2011 FEB -8 P 3:01IN THE MATTER OF THE 2703(d) ORDER) Misc. No. 10GJ$W ANDRIA. VIRGINIARELATING TO TWITTER ACCOUNTS: )WIKILEAKS; ROP G; IOERROR; AND ) FILED UNDER SEALBIRGITTAJ " )) ORAL ARGUMENTNOT REQUESTED

)TWITTER . INC. 'S MOTION FOR CLAR IF ICAT ION

Twitter, Inc. ('Twitter") hereby submits this Motion for Clarification with respect to itsobligations under this Court's Order ofDecember 14,2010. See Exhibit 1 hereto.

On December 14,2010, this Court issued a sealed order pursuant to 18 U.S.C. 2703(d)seekingsubscriber informationand all recordsand other non-content informationforTwitteraccounts Wikileaks, rop_g, ioerror and birgittaj fromNovember 1,2009 to the present. Id OnJanuary 5,2011, uponmotion by the governmentmade at the behest ofTwitter, theCourt issuedan Order that unsealed the December 14th Order and authorized Twitter to disclose it to it s users.See Exhibit 2 hereto.

On or about January 7,2011, Twitter notified its users of the December 14th Order. Thegovernment agreed that those users would have until January 26th to file any motions orpleadings in oppositionto the Order. Twitter has been informedby the governmentthat usersrop_g, ioerrorand birgittaj havefiledmotions undersealwiththisCourtregarding theDecember14thOrder,whiletheWikileaksuserhasnot Accordingly, the government has requested thatTwitter produce records for the Wikileaks Twitter account. Twitter, however, is concerned thatthemotions filedbythe other threeusersmay addressissues related to theirassociation orinvolvement with the user of the Wikileaks 1witter account, or may oWerwise seekTo^wate~the~



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December 14th Order in its entirety. If that is the case, producing records for theWikileaksTwitteraccount before the pending motions are resolved would prejudice users rop_g, ioerrorand birgittaj. Unfortunately, because thepending motions are sealed, Twitter has nowaytodetermine iforto whatextentusers ropjg, ioerror and birgittaj may actually be prejudiced byproduction oftheWikileaks records. Twitter proposed to the government that theparties agreeto delay production of theWikileaks records until after the pending motions are resolved, butthegovernment declined. As an alternative, Twitter requested that thegovernment certify thatproduction of theWikileaks records would not affect the issues raised by the pending motions,butthegovernment declined to reveal the nature of those motions because theyare under seal.Accordingly, Twitteris compelledto seek guidance from theCourt.

For thesereasons, Twitter requests clarification from the Court asto whether itwouldbest serve the interests ofjustice for Twitter towithhold production of records for theWikileaksTwitteraccount untilthe pending motions are resolved, orto produce theWikileaks recordsforthwith. Twitter hasadvised the government of its intentto seek this clarification from theCourt, and both parties agree thereisnoneed for oral argument atthis time.

DATED this 8th dayofFebruary, 2011. Respectfully submitted

JohnJp*ocne"TVSB# 68594)insVCoie, LLP700 13thST:, N.W., Suite 600Washington, D.C. 20005-3960Phone: 202-434-1627Fax: [email protected] for Twitter, Inc.



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CERTIFICATE OF SERVICEI hereby certify thaton this 8thdayof February, 2011, the foregoing documentwassentviaovernightmail andemail to the followingpersons:J ohn S . DavisAssistantUnited States AttorneyUnited States Attorney's OfficeEastern DistrictofVirginia600 EastMain Street, Suite 1800Richmond, VA 23219-2447

Attorneys for the United States

68594)I, LLPSt., N.W., Suite 600Washington, D.C. 20005-3960

Phone: 202-434-1627Fax: [email protected] for Twitter, Inc.



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EXHIBIT 1



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DEC. 14.2010 4:14PM HO. 2530 P. 1/4U.S.Departmentof JusticeUnitedStatesAttorneyEastern District ofVirginiaJUtttnW,mUtanuUMHdStaUtAttom/tBvtldlAgUOOJmtamAmmAtmmHi.Vlrs0it(i223l4S7M(703)3994700

FACSIMILE TRANSMISSIONCOVER PAGE

DATE: &|K|-|lOto: iWcffcr rtffn? Truf ftofetuPHONB: QTOFAXNO.: QtfC) - *&$%SENDBR;SENDER'S PHONBNO.: "703 &>&SENDER'S FAX NO.: . "^ -W* H BNUMBEROF PAOES: 4- *Notlholuding Cover Page*Level ofTransmitted Information:D Non-Sensitive InformationEL Sensitive But Unclassified (SBU)CL- Limited OfficialUse (LOU)H Grand Jury InformationD Tax Information1-1 Law Enforcement Informationn Victim Witness InformationCONTENTS:

WARNING: Information attachedto thiscoversheet is sensitiveU.S.Oovemment Property.Ifyou are notthe intended recipient ofmis information, disclosure, reproduotion, distribution, oruse ofthis information isprohibited. Please notify this office immediately at the above number toarrange forproper distribution.



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DEC. 14.2010 4:15PM NO. 2530 P. 2/4

UNITED STATES DISTRICT COURTFORTHE EASTERNDISTRICTOFVIRGINIAALEXANDRIA DIVISION

INRE APPLICATIONOF THEUNITED STATES OF AMERICA FORAN ORDERPURSUANTTO18U.S.C. 2703(d)

MISC.NO. 10OJ3793

FiledUnder Seal

OjgpjEThis matter having come before theCourt pursuant toanapplication under Title 18,United

States Code, Section 2703,which application requests theissuance of an order under Title 18,United States Code, Section 2703(d) directing Twitter, Inc., anelectronic communicationsservice provider and/or aremote computing service, located in San Francisco, California, todisclosecertain records andotherinformation, asset forth in AttachmentA tothisOrder, theCourt finds thattheapplicant has offered specific and articulable facts showing that there arereasonable grounds to believemat therecords or other information sought are relevant andmaterial toanongoing criminal investigation.

ITAPPEARING that theinformation sought isrelevant and material to an ongoingcriminal investigation, and that prior notice of this Order to any person of this investigation orthis; application and Order entered inconnection therewith would seriously jeopardize theinvestigation;

ITISORDERED pursuant toTitle 18,United States Code, Section 2703(d) that Twitter,Inc. will,within three days ofthedate of this Order, turn over totheUnited States the recordsand other information as set forth in AttachmentA to this Order.



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DEC. 14.2010 4:15PM NO. 2530 P. 3/4

ITISFURTHER ORDERED that theClerk oftheCourt shall provide theUnited StatesAttorney's Office withthree (3)certified copies of this application and Order.

ITISFURTHER ORDERED that theapplication and this Order are sealed untilotherwise ordered bytheCourt, and that Twitter shall notdisclose theexistence oftheapplication orthis Order oftheCourt, orthe existence oftheinvestigation, tothelistedsubscriber ortoanyother person, unless and until authorized to do sobytheCourt

Date|

Theresa Carroll BuchananUnited States Magistrate Judge



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DEC. 14.2010 4:15PM NO. 2530 P. 4/4ATTACHMENT A

Youare toprovide theMowing information, ifavailable, preferably as data files on CD-ROM,electronicmedia, or email ftracy.mccormiok/glusdol.pov^ or otherwise by facsimile to703-299-3981:A. The following customer orsubscriber accoum information for each account registered toorassociated withWUdleaks; ropjj; ioerror; birgittaj; Julian Asaange; BradleyManning; RopGongrijp; Birgltta Jonsdottir for thetimeperiodNovember 1,2009 to present:1. subscriber names, usernames, screennames, orother identities;2. mailing addresses, residential addresses, business addresses, e-mail addresses, and

othercontactInformation;3. connection records, orrecords ofsession times and durations;4. length of service (including start date) and types of service utilized;5. telephone or instrument number or other subscriber number or identity, including anytemporarily assigned network address; and6*. means and source ofpayment for such service (including any credit card orbank

account number) and billingrecords.B. Allrecords and other information relating to the accounts) and time period inPart A,including:

1. records ofuser activity for any connectionsmade,toor from the Account, includingthe date, time, length, and method ofconnections, data transfer volume, user name,andsource anddestination Internet Protocol address(es);2. non-content information associated with thecontents of any communication or filestored byor for theaccounts),' such as thesource and destination email addresses andIP addresses.

3. correspondence and notes of records related to theaccounts).



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EXHIBIT 2



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IN THE UNITED STATES DISTRICT COURT FOR THEEASTERN DISTRICT OF VIRGINIA

Alexandria Division

IN THE MATTER OF THE2703(d) ORDER RELATING TOTWITTER ACCOUNTS:WIKILEAKS, ROP G; IOERROR;AND BIRGITTAJ

MISC.NO. 10GJ3793

1? I L e rr JAN -5 201! 1CLEHK. US OlST'siCTCOllR"

ORDER TO UNSEAL THEORDER PURSUANT TO 18 U.S.C. S2703(D^

Thismatter having comebefore theCourt pursuant toanapplication underTitle 18,UnitedStates Code, 2703(d), it appearing that it is inthebest interest of the investigation to unseal theCourt's OrderofDecember 14,2Q10 andauthorize Twitter to disclose that Order to its subscribersand customers, it is hereby ORDERED that die above-captioned Order of December 14, 2010pursuant to 18U.S.C. 2703(d) be UNSEALED and that Twitter is authorized to disclose suchOrder. Inall other respects, the Court's OrderofDecember 14,2010 remains in effect.

Date: dAlexandria,Virginia

Theresa Carroll BuchananUnited States Magistrate Jud ge


[SEALED] Dockets concerning Birgitta Jonsdottir in the Wikileaks Grand Jury

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