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Court Refuses to Vacate or Unseal ‘Twitter Order’

Twitter users, including Dutch and an American computer security specialists and a member of the Icelandic Parliament, lose their bid to persuade a magistrate judge of the Alexandria U.S. District Court to vacate its “Twitter Order” that required Twitter to turn over U.S. subscriber information for certain individuals during the government’s Wikileaks investigation.

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

On Jan. 5, 2010, the court unsealed its “Twitter Order,” which required Twitter Inc., a social network service provider, to turn over to the U.S. subscriber information concerning the following accounts and individuals: Wikileaks, rop_g, ioerror, birgittaj, Julian Assange, Bradley Manning, Rop Gonggrijp and Birgitta Jonsdottir. On Jan. 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. Petitioners also request a public docket for each related order. The court declines to vacate the Twitter Order and orders that only documents specified below shall be unsealed.

Pursuant to the Stored Communications Act, 18 U.S.C. § 2704(b)(1)(A), a customer may challenge a § 2703(d) order only upon an affidavit stating the applicant is a customer or subscriber to the service from which the contents of electronic communications maintained for him have been sought. 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 Twitter Order does not demand the contents of any communication, and thus constitutes only a request for records under § 2703(c). As the targets of a mere record disclosure, petitioners may not bring a customer challenge under § 2704.

Notwithstanding petitioners’ lack of standing to bring their motion to vacate, the court finds the substance of their motion is equally unavailing.

Petitioners contend that because their publicly posted “tweets” pertained mostly to non-Wikileaks topics, the Twitter Order necessarily demands data that has no connection to Wikileaks and cannot be relevant or material to any ongoing investigation as § 2703(d) requires. The court remains convinced that the application stated “specific and articulable” facts sufficient to issue the Twitter Order. Section 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. The Twitter Order was properly issued pursuant to § 2703(d).

Further, the court finds no cognizable First Amendment violation here. Petitioners, who have already made their Twitter posts and associations publicly available, fail to explain how the Order has a chilling effect. The Order does not seek to control or direct the content of petitioners’ speech or association. It is a routine compelled disclosure of non-content information which petitioners voluntarily provided to Twitter pursuant to Twitter’s Privacy Policy. The court’s § 2703(d) analysis assured that the Order is reasonable in scope and the government has a legitimate interest in the disclosures sought. There is no indication of bad faith by the government. Nor is the Order a Fourth Amendment violation, as the 4th Circuit has held that no legitimate expectation of privacy exists in subscriber information voluntarily conveyed to phone and internet companies.

Finally, the Order need not be vacated as a threat to international comity, as regards Ms. Jonsdottir, a member of the Icelandic Parliament.

In re: § 2703(d); 10GJ3793 (Buchanan) Misc. No. 1:11dm00003, March 11, 2011; USDC at Alexandria, Va. VLW 011-3-065, 21 pp.

VLW 011-3-065

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