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In re Twitter Order Pursuant to 2703(d)

Concerning the Constitutionality of the Government's Request for Certain Subscriber Information Under Section 2703(d) of the Stored Communications Act

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  • Court Orders Twitter to Disclose User Records, Denies User's Ability to Challenge Order: A New York judge has ordered Twitter to turn over user data for an Occupy Wall Street protester. The user challenged the order under the Twitter terms of service, but the court ruled that the user had no standing. EPIC recently filed a "friend of the court" brief arguing that users of cell phone services have a reasonable expectation of privacy in their location records, which are subject to the same disclosure rules as Twitter data. For more information, see EPIC: In re Twitter Order Pursuant to 2703(d), EPIC: In re Historic Cell-Site Location Information. (Jul. 3, 2012)

Background

On December 14, 2010, a Federal Magistrate Judge in the Eastern District of Virginia issued an order pursuant to an ex parte application by the government under the Stored Communications Act ("SCA") 18 U.S.C. § 2703(d). The order instructed Twitter, Inc. to produce information and documents pertaining to three subscribers "of interest" to the government in its ongoing investigation of Wikileaks: Jacob Appelbaum, Rop Gonggrijp, and Birgitta Jonsdottir. Magistrate Judge Theresa Carroll Buchanan held that the government had satisfied its burden under the SCA by offering "specific and articulable facts showing that there [were] reasonable grounds to believe that the records or other information sought [were] relevant and material to an ongoing criminal investigation." In re: Application of the U.S. for an Order Pursuant to 18 U.S.C. § 2703(d), --- F.Supp.2d ---- (E.D. Va 2011).

Initially Twitter was not allowed to disclose the existence of the "Twitter Order" or of the investigation, because the documents were sealed. On January 5, 2011 the documents were unsealed upon motion by Twitter and consent by the government. The three subscribers then filed a Motion to Vacate the Twitter Order and a Motion to Unseal certain court records on January 26, 2011. On March 11, 2011, Magistrate Judge Buchanan issued a memorandum opinion and order denying Petitioners' Motion to Vacate and granting in part the Motion to Unseal. Petitioners filed objections to both orders, which were heard by Judge Liam O'Grady of the Eastern District of Virginia. Those objections were denied by Judge O'Grady in a Memorandum Opinion and Order on November 10, 2011. On November 23, 2011 the Petitioners filed a Notice of Appeal to the U.S. Court of Appeals for the Fourth Circuit. On December 2, 2011 Petitioners filed a motion for stay and injunction pending appeal, which was denied on January 4, 2012 by Judge O'Grady.

The Twitter Subscribers: Mr. Appelbaum, Mr. Gonggrijp, and Ms. Jonsdottir argued before the District Court that the § 2703(d) order should be vacated on various grounds. First, they argued that the order was improperly granted under the SCA itself, a statutory challenge. Second, they argued that the issuance of the Twitter Order violates their Fourth Amendment right to be free from unreasonable searches and seizures. Specifically, they argued that the disclosure of their IP address should be considered a "search" under the Fourth Amendment because it reveals information about their location and movements in private spaces. Third, they argued that the Twitter Order violates their constitutional right to Procedural Due Process. Fourth, they argued that the Twitter Order violates their First Amendment rights to free speech and association. Finally, they argued that the court should exercise discretion to deny the Twitter Order in order to avoid the aforementioned constitutional questions.

EPIC's Interest in In re: § 2703(d)

EPIC has an interest in promoting privacy in digital spaces by upholding robust Fourth Amendment protections. Location privacy is becoming an important issue in Fourth Amendment law as more devices store location data that can later be recovered, intercepted, or otherwise obtained by law enforcement or private parties. EPIC recently filed a "Friend of the Court" brief in US v. Jones, a Supreme Court case involving a Fourth Amendment challenge to the government's unwarranted use of GPS tracking technology during a criminal investigation.

Legal Documents

Court of Appeals for the Fourth Circuit

United States District Court for the Eastern District of Virginia

Resources

Related Cases

  • US v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), cert. granted, US v. Jones, --- U.S. ----, 131 S.Ct. 3064, 180 L.Ed.2d 885 (2011).
  • US v. Jacobsen, 466 U.S. 109 (1984).
  • United States v. Karo, 468 U.S. 705 (1984)
  • United States v. Knotts, 460 U.S. 276 (1983)
  • Smith v. Maryland, 442 U.S. 735 (1979).
  • US v. Miller, 425 U.S. 435 (1976).

Law Review Articles and Books

  • Matthew J. Tokson, The Content/Envelope Distinction in Internet Law, 50 Wm. & Mary L. Rev. 2105 (2009).
  • Deirdre K. Mulligan, Reasonable Expectations in Electronic Communications: A Critical Perspective on the Electronic Communications Privacy Act, 72 Geo. Wash. L. Rev. 1557 (2004).

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