In re § 2703(d) Order 10GJ3793

787 F. Supp. 2d 430
CourtDistrict Court, E.D. Virginia
DecidedMarch 11, 2011
DocketMiscellaneous No. 1:11dm00003
StatusPublished
Cited by7 cases

This text of 787 F. Supp. 2d 430 (In re § 2703(d) Order 10GJ3793) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re § 2703(d) Order 10GJ3793, 787 F. Supp. 2d 430 (E.D. Va. 2011).

Opinion

MEMORANDUM OPINION

THERESA CARROLL BUCHANAN, United States Magistrate Judge.

This matter came before the Court the Motion of Real Parties in Interest Jacob Appelbaum, Birgitta Jonsdottir, and Rop Gonggrijp to Vacate December 14, 2010 Order (“Motion to Vacate”, Dkt. 1) and Motion of Real Parties in Interest Jacob AppelBaum, Rop Gonggrijp, and Birgitta Jonsdottir for Unsealing of Sealed Court Records. (“Motion to Unseal”, Dkt. 3). For the following reasons, petitioners’ Motion to Vacate is DENIED, and petitioners’ Motion to Unseal is DENIED in part, GRANTED in part, and taken under further consideration in part.

BACKGROUND

Petitioners are Twitter users associated with account names of interest to the government. Petitioner Jacob Appelbaum (Twitter name “ioerror”) is a United States citizen and resident, described as a computer security researcher. (Pet. Motion to Unseal at 3). Rop Gonggrijp (Twitter name “rop_g”) is a Dutch citizen and computer security specialist. Id. Birgitta Jonsdottir (Twitter name “birgittaj”) is an Icelandic citizen and resident. She currently serves as a member of the Parliament of Iceland. Id.

On December 14, 2010, upon the government’s ex parte motion, the Court entered a sealed Order (“Twitter Order”) pursuant to 18 U.S.C. § 2703(d) of the Stored Communications Act, which governs govern[435]*435ment access to customer records stored by a service provider. 18 U.S.C. §§ 2701-2711 (2000 & Supp.2009). The Twitter Order, which was unsealed on January 5, 2010, required Twitter, Inc., a social network service provider, to turn over to the United States subscriber information concerning the following accounts and individuals: Wikileaks, rop_g, ioerror, birgittaj, Julian Assange, Bradely Manning, Rop Gonggrijp, and Birgitta Jonsdottir. In particular, the Twitter Order demands:

A. The following customer or subscriber account information for each account registered to or associated with Wiki-leaks; rop — g; ioerror; birgittaj; Julian Assange; Bradely Manning; Rop Gongrijp [sic.]; Birgitta Jonsdottir for the time period November 1, 2009 to present:

1. subscriber names, user names, screen names, or other identities;
2. mailing addresses, residential addresses, business addresses, e-mail addresses, and other contact information;
3. connection records, or records of session 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 any temporarily assigned network address; and
6. means and source of payment for such service (including any credit card or bank account number) and billing records.

B. All records and other information relating to the account(s) and time period in Part A, including:

1.records of user activity for any connections made to or from the Account, including date, time, length, and method of connections, data transfer volume, user name, and source and destination Internet Protocol address(es);
2. non-content information associated with the contents of any communication or file stored by or for the account(s), such as the source and destination email addresses and IP addresses.
3. correspondence and notes of records related to the account(s).

On January 26, 2011, petitioners filed the instant motions asking the Court to vacate the Twitter Order, and to unseal all orders and supporting documents relating to Twitter and any other service provider. Moreover, petitioners request a public docket for each related order. On February 15, 2011, the Court held a public hearing and took petitioners’ motions under consideration. For the following reasons, the Court declines to vacate the Twitter Order, and orders that only documents specified below shall be unsealed.

ANALYSIS

I. Motion to Vacate

Petitioners request that the Twitter Order be vacated. The parties have raised the following issues in their briefs: (1) whether petitioners have standing under the Stored Communications Act (“SCA”) to bring a motion to vacate, (2) whether the Twitter Order was properly issued under 18 U.S.C. § 2703, (3) whether the Twitter Order violates petitioners’ First Amendment rights, (3) whether the Twitter Order violates petitioners’ Fourth Amendment rights, and (4) whether the Twitter Order should be vacated as to Ms. Jonsdottir for reasons of international comity.

[436]*436(1)Petitioners’ Standing Under 18 U.S.C. § 2704(b)

Pursuant to § 2704(b)(1)(A), a customer may challenge a § 2703(d) order only upon an affidavit “stating that the applicant is a customer or subscriber to the service from which the contents of electronic communications maintained for him have been sought.” (emphasis supplied). The Court holds that targets of court orders for non-content or records information may not bring a challenge under 18 U.S.C. § 2704, and therefore, petitioners lack standing to bring a motion to vacate the Twitter Order.

The SCA provides greater protection to the “contents of electronic communications”, sought pursuant to § 2703(a) and § 2703(b), than to their “records” (§ 2703(c)). The statutory definition of “contents” is “any information concerning the substance, purport, or meaning of that communication.” 18 U.S.C. § 2711(1); 18 U.S.C. § 2510(8)(2002). Targets of content disclosures are authorized to bring a customer challenge under § 2704. Conversely, § 2703(c)(1) describes “records” as “a record or other information pertaining to a subscriber to or customer of such service (not the contents of communication).” According to § 2703(c)(2), records include:

(A) name;
(B) address;
(C) local and long distance telephone connection records, or records of session times and durations;
(D) length of service (including start date) and types of service utilized;
(E) telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and
(F) means and source of payment for such service (including any credit card or bank account number), of a subscriber to or customer of such service when the governmental entity uses ... any means available under paragraph (1) (emphasis supplied).

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Bluebook (online)
787 F. Supp. 2d 430, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-2703d-order-10gj3793-vaed-2011.