Title: Memorandum Opinion in Re Application of the United States of America for an Order Pursuant to 18 U.S.C. § 2703(d)

Document Date: 2012-01-04

Description: Court denies Gonggrijp, Jonsdottir, and Appelbuam's motion to direct Twitter to disclose the records the Government sought under the National Security Letter (2703(d) Order).

Text: Case 1:11-dm-00003-TCB-LO Document 96 Filed 01/04/12 Page 1 of 3 PagelD# 1152

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

)

IN RE APPLICATION OF THE ) Misc. No. 1:11 -DM-3

UNITED STATES OF AMERICA ) No. 10-GJ-3793

FOR AN ORDER PURSUANT TO ) No. 1:11 -EC-3

18 U.S.C.§ 2703(d) )

)

MEMORANDUM OPINION

On December 2,2011, Real Parties in Interest Rop Gonggrijp, Birgitta Jonsdottir, and
Jacob Applebaum (“Petitioners”) filed a motion (“Motion”) to stay the Court’s November 11,

2011 Order (Dkt. No. 84) and enjoin enforcement of Magistrate Judge Buchanan’s December 14,
2010 Order (“Twitter Order”) directing Twitter, Inc. to disclose records sought under 18 U.S.C.

§ 2703(d). For the following reasons, Petitioners’ Motion is DENIED.

The Supreme Court has articulated a four-factor test for when a stay is proper pending
appeal: (1) whether the stay applicant has made a strong showing that he is likely to succeed on
the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether
issuance of the stay will substantially injure the other parties interested in the proceeding; and (4)
where the public interest lies. Hilton v. Braunskill, 481 U.S. 770, 776-77 (1987) (applying Fed.

R. Civ. P. 62(c)); see also Nken v. Holder, 556 U.S. 418, 129 S. Ct. 1749, 1760-61 (2009)
(applying Hilton test to a motion to stay removal of alien). A stay is not a matter of right, even if
irreparable injury might result. See Nken, 556 U.S. at 1760-61. The party seeking the stay bears
the burden of proof. See id. A party seeking a stay must make a "strong showing” of success on
appeal. Hilton, 481 U.S. at 776. Petitioners have not made that showing here.

The most important factor, Petitioners’ likelihood of success on appeal, weighs strongly
against a stay. Petitioners identify three questions which, they believe, constitute “substantial

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issues” for appeal: (1) whether they have a reasonable expectation of privacy in IP addressing
information; (2) whether a magistrate judge has discretion under the Stored Communications Act
to require a warrant based on probable cause; and (3) whether the Twitter Order was
unconstitutionally overbroad. (Dkt. No. 8-11.) Every Court of Appeals to have addressed the first
question has determined that there is no reasonable expectation of privacy in IP addressing
information. United States v. Christie, 624 F.3d 558, 574 (3d Cir. 2010); United States v.
Forrester, 512 F.3d 500, 510 (9th Cir. 2008); United States v. Perrine, 518 F.3d 1196, 1204-05
(10th Cir. 2008). Furthermore, the last two questions are largely subsumed under the first
question. If Petitioners do not have a reasonable expectation of privacy in IP addressing
information, there would be no reason to require a warrant based on probable cause or to
complain that the Twitter Order was constitutionally overbroad.

As to the second factor, the Court is not convinced that Petitioners would suffer
irreparable injury from denial of a stay. The information at issue was collected by Twitter, Inc.
from Petitioners’ use of the Twitter service, so the information has already been disclosed to at
least one third party. See In re Application of the United States for an Order Pursuant to 18
U.S.C. § 2703(d), No. 1:1 l-dm-3, — F. Supp. 2d —, 2011 WL 5508991 (E.D. Va. 2011); see
also Smith v. Maryland, 442 U.S. 735, 744 (1979) (“When he used his phone, petitioner
voluntarily conveyed numerical information to the telephone company and ‘exposed’ that
information to its equipment in the ordinary course of business. In so doing, petitioner assumed
the risk that the company would reveal to police the numbers he dialed.”); United States v.

Miller, 425 U.S. 435, 440 (1976) (“On their face, the documents subpoenaed here are not
respondent's ‘private papers.’ Unlike the claimant in Boyd, respondent can assert neither
ownership nor possession. Instead, these are the business records of the banks.”). Although the

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third factor, likelihood of substantial injury to the government from additional delay, weighs
slightly towards granting the Motion, the fourth factor does not. Litigation of these issues has
already denied the government lawful access to potential evidence for more than a year. The
public interest therefore weighs strongly against further delay.

Because (1) existing case law overwhelmingly supports the government’s position; (2)
the public interest weighs strongly in favor of an expeditious investigation; and (3) Petitioners
offer only weak reasons for further delay, the Court concludes that a stay and injunction are not
appropriate at this time. Petitioners’ Motion is therefore DENIED.

The Clerk is directed to forward copies of this Order to all counsel of record.

January'];__> 2012

Alexandria, Virginia

Liam O’Grady

United States District Judge

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