Title: Appeal, Public Brief of Movants-Appellants, In re: Application of the United States of America for an Order Pursuant to 18 U.S.C. Section 2703(d)

Document Date: 2012-01-20

Description: Detailed summary of case and arguments of appeal by defendants (Appelbaum, Gonggrijp, Jonsdottir, and Twitter). Sections redacted on pages 12-13, 14, 27, 30, 52, 53, 57.

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11-5151

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

In re: APPLICATION OF THE UNITED STATES OF AMERICA FOR AN ORDER
PURSUANT TO 18 U.S.C. SECTION 2703(D)

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.

JACOB APPELBAUM; ROP GONGGRIJP; BIRGITTA JONSDOTTIR,

Defendants-Appellants,

and

TWITTER, INCORPORATED,

Defendant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA

Public Brief of Movants-Appellants

Aden J. Fine

American Civil Liberties Union
Foundation

125 Broad Street, 18th Floor
New York, NY 10004
(212) 549-2500

Cindy A. Cohn

Lee Tien

Marcia Hofman

Electronic Frontier Foundation

454 Shotwell Street

San Francisco, CA 94110

(415)-436-9333

Attorneys for Birgitta Jonsdottir

Rachael E. Meny
John W. Keker
Steven P. Ragland
Keker & Van Nest LLP
710 Sansome Street
San Francisco, CA 94111
(415)-391-5400

Attorneys for Jacob Appelbaum
John D. Cline

Law Office of John D. Cline
235 Montgomery Street, Suite 1070
San Francisco, CA 94104
(415)-322-8319

Attorney for Rop Gonggrijp

(additional counsel listed on inside cover)

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Rebecca K. Glenberg
American Civil Liberties
Union of Virginia
Foundation, Inc.

530 E. Main Street,

Suite 310

Richmond, VA 23219
(804)-644-8080

Attorney for
Birgitta Jonsdottir

K.C. Maxwell

Law Office of K.C. Maxwell

235 Montgomery Street,
Suite 1070

San Francisco, CA 94104
(415)-322-8817

Nina J. Ginsberg
DiMuroGinsberg, P.C.

908 King Street,

Suite 200

Alexandria, VA 22314
(703)-684-4333

Attorneys for
Rop Gonggrijp

11

John K. Zwerling
Stuart Sears

Zwerling, Leibig & Moseley,
P.C.

180 North Alfred Street
Alexandria, VA 22314
(703)-684-8000

Attorneys for
Jacob Appelbaum

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TABLE OF CONTENTS

TABLE OF AUTHORITIES.....................................iii

JURISDICTIONAL STATEMENT...................................1

ISSUES PRESENTED...........................................1

STATEMENT OF THE CASE......................................2

STATEMENT OF FACTS.........................................3

A. Movants.............................................3

B. Twitter.............................................3

C. The December 14, 2010 Order To Twitter..............5

D. Movants’ Motions To Unseal And For Public Docketing.7

1. The Motion To Unseal.............................8

2. The Motion For Public Docketing..................9

E. The District Court’s Decision......................13

F. The Subjects Of This Appeal........................14

SUMMARY OF ARGUMENT.......................................15

STANDARD OF REVIEW........................................16

ARGUMENT..................................................17

I. THE DISTRICT COURT APPLIED THE WRONG STANDARD OF

REVIEW IN EVALUATING THE MAGISTRATE’S ORDERS..........17

II. THE DISTRICT COURT ERRONEOUSLY PERMITTED THE
JUDICIAL ORDERS TO COMPANIES OTHER THAN TWITTER

AND ANY RELATED MOTIONS TO REMAIN SEALED..............20

A. There Is A Right Of Access To The Sealed Judicial Orders And
Motions Under Both The Common Law And The First
Amendment............................................21

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B. The Government Did Not Meet Its Burden To Overcome The

Presumption Of Access To The Sealed Judicial Orders..........29

1. The Unsealing Of The Twitter Order Removed The Justification

For Continued Sealing Of The Other § 2703 Orders And
Motions..................................................29

2. The Generic Interests In Secrecy Proffered By The Government

Do Not Satisfy Its Heavy Burden..........................32

3. The District Court Did Not Properly Credit The Public’s

Significant Interest In Obtaining Access To The Sealed Judicial
Orders And Motions.......................................35

4. The District Court Erred By Failing To Require An Individualized

Sealing Analysis With Respect To Each Document...........40

5. The District Court Failed To Consider Alternatives To Sealing Or

To Explain Why They Were Not Sufficient..................43

III. THE DISTRICT COURT ERRED IN FAILING TO REQUIRE PUBLIC
DOCKETING OF THE SEALED JUDICIAL ORDERS AND
RELATED DOCUMENTS.....................................................44

CONCLUSION............................................................58

REQUEST FOR ORAL ARGUMENT.............................................58

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TABLE OF AUTHORITIES

Cases

ACLUv. Holder, No. 09-2086, 2011 WL 1108252 (4th Cir. 2011).............41

ALCOA v. EPA, 663 F.2d 499 (4th Cir. 1981)..............................17

Alexander v. Boyd, 113 F.3d 1373 (4th Cir. 1997)........................16

Baltimore Sun Co. v. Goetz, 886 F.2d 60 (4th Cir. 1989).............passim

Bose Corp. v. Consumers Union, Inc, 466 U.S. 485 (1984).................18

Catlin v. United States, 324 U.S. 229 (1945).............................1

CBS, Inc. v. U.S. Dist. Ct, 765 F.2d 823 (9th Cir. 1985)................50

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949)..............1

Franks v. Delaware, 438 U.S. 154 (1978).................................28

Giovani Carandola, Ltd. v. Bason, 303 F.3d 507 (4th Cir. 2002)..........39

Haines v. Liggett Grp., Inc., 975 F.2d 81 (3d Cir. 1992)................19

Hartford Courant Co. v. Pellegrino, 380 F.3d 83 (2d Cir. 2004)......passim

Hicklin Eng’gL.C. v. Bartell andBartell Assocs.,

439 F.3d 346 (7th Cir. 2006)..........................................24

In re Charlotte Observer (United States v. Bakker),

882 F.2d 850 (4th Cir. 1989)..........................................30

In re KnightPubl’g Co., 743 F.2d 231 (4th Cir. 1984)................ 43, 44

In re Providence Journal Co., Inc., 293 F. 3d 1 (1st Cir. 2002).........17

In re Sealing and Non-Disclosure of Pen/Trap/2703(d) Orders,

562 F. Supp. 2d 876 (S.D. Tex. 2008).............................. 24, 36

In re Search Warrant for Secretarial Area Outside the Office of

Thomas Gunn, 855 F.2d 569 (8th Cir. 1988)......................... 47, 48

In re State-Record Co., Inc., 917 F.2d 124 (4th Cir. 1990)...... 46, 47, 55

iii

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Legend Night Club v. Miller, 637 F.3d 291 (4th Cir. 2011).....................38

Leucadia, Inc. v. Applied Extrusion Techs., Inc., 998 F.2d 157 (3d Cir. 1993).35

Media Gen. Operations, Inc. v. Buchanan,

417 F.3d 424 (4th Cir. 2005)...................................... 18, 51, 56

Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976)...........................27

Nixon v. Warner Commc’ns, Inc., 435 U.S. 589 (1978)...................passim

Osband v. Woodford, 290 F.3d 1036 (9th Cir. 2002).............................19

Pepsico v. Redmond, 46 F.3d 29 (7th Cir. 1995)........................ 22, 36

Press-Enter. Co. v. Super. Ct. of Cal.,

464 U.S. 501 (1984) (Press-Enterprise I)....................................20

Press-Enter. Co. v. Superior Ct. of Cal.,

478 U.S. 1 (1986) (Press-Enterprise II)........................... 23, 25, 26

Rushford v. New Yorker Magazine, Inc., 846 F.2d 249 (4th Cir. 1988). 20, 24, 40

Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178 (4th Cir. 1988)...passim

Union Oil Co. of Cal. v. Leavell, 220 F.3d 562 (7th Cir. 2000)............22

United States v. Chagra, 701 F.2d 354 (5th Cir. 1983).........................26

United States v. Gonzales, 150 F.3d 1246 (10th Cir. 1998).....................26

United States v. Mentzos, 462 F.3d 830 (8th Cir. 2006)................ 24, 36

United States v. Mitchell, 551 F.2d 1252 (D.C. Cir. 1976),
rev’d on other grounds sub nom. Nixon v. Warner Commc’ns Inc.,

435 U.S. 589 (1978).........................................................22

United States v. Moussaoui, 65 F. App’x 881 (4th Cir. 2003).........22, 27, 36

United States v. Ochoa-Vasquez, 428 F.3d 1015 (11th Cir. 2005)............45

United States v. Simone, 14 F.3d 833 (3d Cir. 1994).......................26

United States v. Soussoudis (In re Wash. Post Co.),

807 F.2d 383 (4th Cir. 1986)........................................passim

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United States v. Valenti, 987 F.2d 708 (11th Cir. 1993)........... 32, 47, 57

Va. Dep't of State Police v. Wash. Post, 386 F.3d 567 (4th Cir. 2004).passim

Wash. Post Co. v. Hughes

(In re Application & Affidavit for a Search Warrant),

923 F.2d 324 (4th Cir. 1991)........................................passim

Statutes

18 U.S.C. § 2518..........................................................25

18 U.S.C. § 2703 .....................................................passim

18 U.S.C. § 2705 ......................................................6, 24

18 U.S.C. § 3123..........................................................24

28 U.S.C. § 1291...........................................................1

28 U.S.C. § 1331...........................................................1

28 U.S.C. § 636 ..........................................................19

Electronic Communications Privacy Act,

Pub. L. No. 99-508, 100 Stat. 1848 (1986)...............................38

Other Authorities

Aaron Smith, Twitter Update 2011, Pew Internet & American Life Project, (June
2011), available at http://www.pewinternet.org/Reports/2011/Twitter-Update-
2011.aspx.................................................................4

Barton Gellman, Twitter, Wikileaks and the Broken Market for Consumer Privacy,
Time Magazine: Techland (Jan. 14, 2011, 2:30PM),

http://techland.time.com/2011/01/14/twitter-wikileaks-and-the-broken-market-
for-consumer-privacy/.....................................................7

David Batty, US Orders Twitter To Hand Over WikiLeaks Members’ Private
Details, The Guardian, Jan. 8, 2011.........................................7

ECPA Reform and the Revolution in Cloud Computing: Hearing Before the
Subcomm. on the Constitution, Civil Rights, and Civil Liberties of the H. Comm.
on the Judiciary, 111th Cong. (Sept. 23, 2010).............................38

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Electronic Communications Privacy Act Amendments Act of 2011, S. 1011, 112th
Cong. (2011)............................................................38

Espionage Act and the Legal and Constitutional Issues Raised by WikiLeaks:
Hearing Before the H. Comm. On the Judiciary,

111th Cong. (Dec. 16, 2010).............................................37

Graeme McMillan, How Many People Actually Use Twitter? Good Question,

Time Magazine Techland Blog (Aug. 29, 2011),

http://techland.time.com/2011/08/29/how-many-people-actually-use-twitter-
good-question/#ixzz1jNz7bnbT...........................................4

In WikiLeaks’ Wake, Administration Tightens Information Security, OMB Watch,
Jan. 11, 2011, http://www.ombwatch.org/node/11452 ......................37

Jack Goldsmith, Seven Thoughts on Wikileaks,

Lawfare Blog (Dec. 10, 2010, 4:38PM),

http://www.lawfareblog.com/2010/12/seven-thoughts-on-wikileaks/.........36

Judicial Conference Policy on Sealed Cases, Sept. 13, 2011, available at
http://www.uscourts.gov/uscourts/News/2011/docs/

JudicialConferencePolicyonSealedCivilCases2011.pdf......................50

Marc A. Thiessen, Obama Administration Is Weak in the Face of WikiLeaks,

Wash. Post, Nov. 29, 2010, available at http://www.washingtonpost.com/wp-
dyn/content/article/2010/11/29/AR2010112902474.html...................36

Mem. on Sealed and Conf. Materials, United States Court of Appeals for the
Fourth Circuit (Oct.17, 2011)...........................................49

Michael Zachary, Rules 58 and 79(a) of the Federal Rules of Civil Procedure:
Appellate Jurisdiction and the Separate Judgment and Docket Entry
Requirements, 40 N.Y.L. Sc. L. Rev. 409 (1996)..........................49

Neil MacFarquhar, Twitter and Facebook are Backbone of Saudi Dissent, N.Y.
Times, June 15, 2011, at A6, available at

http://www.nytimes.com/2011/06/16/world/middleeast/16saudi.html..........4

Notice to the Bar, United States Court of Appeals for the Third Circuit
(Nov. 4, 2011)..........................................................49

Obama Calls WikiLeaks’ “Deplorable,” Reuters, Dec. 11, 2010, available at
http://www.reuters.com/article/idUSTRE6BA24B20101211....................37

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Online Activities, 2000-2009, Pew Internet & American Life Project,
http://pewintemet.org/Static-Pages/Trend-Data/Online-Activities-20002009.aspx
(last visited Jan. 19, 2012)..............................................37

Paul Lanois, Caught in the Clouds: The Web 2.0, Cloud Computing, and Privacy?,
9 Nw. J. Tech. & Intell. Prop. 29 (2010)..................................38

Report of the Proceedings of the Judicial Conference of the United States,

March 17, 2009, at 11, available at

http://www.uscourts.gov/FederalCourts/JudicialConference/Proceedings/Proceed

ings.aspx?doc=/uscourts/FederalCourts/judconf/proceedings/2009-03.pdf.....57

Scott Shane & John F. Burns, U.S. Subpoenas Twitter Over WikiLeaks Supporters,
N.Y. Times, Jan. 9, 2011, at A1, available at

http://www.nytimes.com/2011/01/09/world/09wiki.html........................7

Tim Reagan & George Cort, Fed. Judicial Ctr.,

Sealed Cases in Federal Courts (2009).....................................50

Top 500 Global Sites, Alexa, http://www.alexa.com/topsites
(last visited Jan. 19, 2011)...............................................4

Rules

4th Cir. R. 25 .........................................................44, 50

4th Cir. R. 34..............................................................50

E.D. Va. Local Crim. R. 49..........................................44, 50, 51

Fed. R. Civ. P. 45..........................................................25

Fed. R. Civ. P. 72..........................................................17

Fed. R. Crim. P. 55..................................................... 49, 51

Fed. R. Crim. P. 59.........................................................17

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JURISDICTIONAL STATEMENT

The district court had jurisdiction pursuant to 28 U.S.C. § 1331. This Court
has jurisdiction pursuant to 28 U.S.C. § 1291 because the district court’s
November 10, 2011 order is a final decision ending the litigation on the merits of
Movants’ motion to unseal and motion for public docketing by denying the relief
requested. Catlin v. United States, 324 U.S. 229, 233 (1945). In the alternative,
the district court’s order is an appealable collateral order under Cohen v. Beneficial
Indus. Loan Corp., 337 U.S. 541 (1949). See Va. Dep't of State Police v. Wash.
Post, 386 F.3d 567, 574 (4th Cir. 2004).1

Movants filed a timely notice of appeal on November 23, 2011. JA-283.

ISSUES PRESENTED

1. Did the district court erroneously continue to seal judicial orders
requiring the disclosure of information about Movants’ Internet communications
where the Magistrate and the government previously conceded that unsealing an
order to Twitter was in the best interest of the government’s investigation and
where the government failed to establish that disclosing any other judicial orders or

1 Although a petition for a writ of mandamus is ordinarily the “preferred method of
review” of orders sealing records, see, e.g., United States v. Soussoudis (In re
Wash. Post Co), 807 F.2d 383, 388 (4th Cir. 1986), a notice of appeal was filed
here because the district court order being appealed also includes the denial of
Movants’ motion to vacate the Twitter Order. If this Court believes that
mandamus is nevertheless the appropriate method of review here, it should treat
the appeal as a petition for mandamus. Id.

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related motions, redacted if necessary, would cause any harm to its investigation
sufficient to overcome the significant public interest in access to these judicial
orders and motions?

2. Did the district court err in holding that there need not be a public
docket sheet identifying the name and date of any judicial orders to companies
other than Twitter and any related court filings?

STATEMENT OF THE CASE

Movants-Appellants Jacob Appelbaum, Rop Gonggrijp, and Birgitta
Jonsdottir (“Movants”) initiated this action by filing a motion to challenge an order
issued by the Magistrate pursuant to 18 U.S.C. § 2703(d), which required Twitter
to provide private, non-public information to the government concerning Movants’
communications, associations, and locations (the “Twitter Order”). They also
challenged the sealing of judicial documents related to the Twitter Order and
similar judicial orders to companies other than Twitter, and the absence of any
public docketing concerning these judicial orders.

The Magistrate (Buchanan, M.J.) denied Movants’ motions in three separate
orders. Movants filed Objections to each of the Magistrate’s orders. The district
court (O’Grady, J.) denied those Objections. This appeal followed.

Movants’ appeal addresses only the sealing and public docketing portions of
the district court’s order.

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STATEMENT OF FACTS

A. Movants.

Birgitta Jonsdottir is an elected Member of the Parliament of Iceland. She
used Twitter.com as part of her political campaign for Parliament and, since her
election, has used it to publish “tweets” about her political positions, activities, and
work as a Member of Parliament.

Jacob Appelbaum is a well-known computer security researcher and
photographer who is a U.S. citizen. He regularly uses Twitter to post messages on
numerous topics, including Internet censorship, human rights issues, Internet
security, and other political and social issues in the U.S. and abroad.

Rop Gonggrijp is a Dutch activist and businessman. He is the founder or co-
founder of several technology companies, and is well-known in the Netherlands
and abroad as an expert in computer and telecommunications security. He uses
Twitter to post messages through his blog, http://rop.gonggri.jp/.

B. Tw itter.

Twitter is an online micropublishing tool that permits individuals to
communicate with other people around the world, on any subject, in messages of
140 characters or less. Twitter is one of the fastest growing forms of
communication in the world, with over 360 million reported registered users as of
August 2011, including individuals, corporations, governmental entities, and

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2 3

elected officials. By some estimates it is the tenth largest website in the world.
Twitter has been an especially vital form of communication for individuals who
either do not have means of access to more traditional media or who live in
repressive societies where freedom of speech is not protected, most recently in
Syria, Egypt, and Saudi Arabia.4

To publish material on Twitter, an individual needs to sign up for a Twitter
account. Once that account is opened, a subscriber can publish messages using the
account (“tweets”), sign up to receive others’ tweets (those one is “following”),
and have others follow his or her tweets (one’s “followers”). In addition to a
tweet’s content, the time and date of each tweet also appears publicly. The
location from where the tweet was made, which may be derived from the Internet
Protocol address collected by Twitter, is not publicly available. In addition to
public tweets, Twitter users may also use Twitter to communicate privately with

2

Graeme McMillan, How Many People Actually Use Twitter? Good Question,
Time Magazine Techland Blog (Aug. 29, 2011),

http://techland.time.com/2011/08/29/how-many-people-actually-use-twitter-good-

question/#ixzz1jNz7bnbT.

3

Top 500 Global Sites, Alexa, http://www.alexa.com/topsites (last visited Jan. 19,
2011); see also Aaron Smith, Twitter Update 2011, Pew Internet & American Life
Project, (June 2011), available at

http://www.pewinternet.org/Reports/2011/Twitter-Update-2011.aspx (13% of
Internet users use Twitter as of June 2011, up from 8% in November 2010).

4 Neil MacFarquhar, Twitter and Facebook are Backbone of Saudi Dissent, N.Y.
Times, June 15, 2011, at A6, available at

http://www.nytimes.com/2011/06/16/world/middleeast/16saudi.html.

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other Twitter users via direct messages (“DMs”). All information regarding those
DMs, including their content, their sender and recipient, and their time and date, is
not publicly available.

C. The December 14, 2010 Order To Twitter.

In response to an Application by the United States and apparently as part of
the investigation into WikiLeaks, the Magistrate issued an Order on December 14,
2010 that requires Twitter to disclose private information concerning the
communications activities of several of its subscribers, including Movants (the
“Twitter Order”). See JA-19-21 (Twitter Order). The Twitter Order demands
information concerning certain individuals, and four identified Twitter accounts:
@wikileaks, @ioerror, @birgittaj, and @rop_g. Movants are the holders of the
last three accounts. Among other things, the Order requires Twitter to disclose
Movants’ (1) personal contact information, (2) financial data, (3) account activity
information, including the date, time, and length of connections, as well as the
source and destination Internet Protocol address(es),5 and (4) DM information,
including the email addresses and IP addresses of everyone with whom the user
sent and received DMs. JA-21. The Order covers all activity on the accounts,

5 An Internet Protocol (“IP”) address is a unique numerical address that identifies
individual computers or other devices as they interact over the Internet. IP
addresses can be used to determine where a computer is located when it is
connected to the Internet.

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regardless of subject matter, for the time period from November 1, 2009 to the
present.

The Twitter Order was issued pursuant to 18 U.S.C. § 2703(d), which
controls government access to “record[s] or other information pertaining to a
subscriber to or customer of” an “electronic communication service or remote
computing service.” Id. § 2703(c). This information may be obtained with a
warrant, administrative subpoena, or § 2703(d) court order. Id. § 2703(a)-(b), (d).

The statute does not contain a provision permitting the sealing of orders
issued pursuant to its terms. Prior notice to the affected subscriber, however, is not
statutorily required if the government only seeks disclosure of “a record or other
information pertaining to a subscriber to or customer of [an electronic
communication or remote computing] service.” Id. § 2703(c). Where the
government is not required to provide notice, the government may obtain a court
order commanding the communications provider not to notify anyone of the
existence of the warrant, subpoena, or court order “for such period as the court
deems appropriate,” if the court determines that notification “will result in” a
specifically defined adverse result. Id. § 2705(b).

The Twitter Order and all related court documents were filed under seal.

The Order expressly prohibited Twitter from disclosing it to anyone, presumably
pursuant to a finding under § 2705(b). JA-20. Shortly after its issuance, however,

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the government filed a motion to unseal it. JA-65. That motion is still under seal,
despite the government’s agreement that it should no longer be under seal. JA-65.
On January 5, 2011, the Magistrate granted the government’s motion and issued an
Order unsealing the Twitter Order (the “Unsealing Order”). JA-23. The Unsealing
Order states that “it is in the best interest of the investigation to unseal the Court’s
Order of December 14, 2010 and authorize Twitter to disclose that Order to its
subscribers and customers.” JA-23.

D. Movants’ Motions To Unseal And For Public Docketing.

On January 7, 2011, following issuance of the Unsealing Order, Twitter sent
the Twitter Order to Movants, along with emails informing Movants that Twitter
would be forced to comply with the Order unless Movants took appropriate legal
actions. JA-25. The disclosure of the Twitter Order was front-page news around
the world.6 Widespread interest focused on whether similar orders had been issued

7

to other companies concerning Movants and the other targeted individuals.

6 See, e.g., Scott Shane & John F. Burns, U.S. Subpoenas Twitter Over WikiLeaks
Supporters, N.Y. Times, Jan. 9, 2011, at A1, available at
http://www.nytimes.com/2011/01/09/world/09wiki.html; David Batty, US Orders
Twitter To Hand Over WikiLeaks Members’ Private Details, The Guardian, Jan. 8,

2011.

7

See, e.g., Barton Gellman, Twitter, Wikileaks and the Broken Market for
Consumer Privacy, Time Magazine: Techland (Jan. 14, 2011, 2:30PM),
http://techland.time.com/2011/01/14/twitter-wikileaks-and-the-broken-market-for-
consumer-privacy/.

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On January 26, 2011, Movants filed a motion to vacate the Twitter Order.
They also filed a motion to unseal any remaining sealed judicial documents
concerning the Twitter Order and any § 2703 orders and related documents
involving companies other than Twitter, and to require public docketing. Movants
filed these motions using the docket number, “10-GJ-3793,” listed on the Twitter
Order and the Unsealing Order.

1. The Motion To Unseal.

The Clerk’s Office sua sponte placed Movants’ motions under seal.

Because they contained no non-public information, Movants moved to unseal
them. The government opposed, but on February 7, 2011, the Magistrate issued an
order unsealing Movants’ papers and stating that further requests to seal must be
accompanied by a motion and notice of hearing. JA-57. The Magistrate then
issued another order, on February 9, 2011, stating that other than the documents
unsealed by the February 7 order, all other previously or subsequently filed
documents would remain under seal until further order of the court. JA-60. The
same day, the Magistrate issued another order requiring the parties to specify
which, if any, pleadings should remain sealed. JA-59. In its subsequent filing, the
government conceded that all but two remaining documents should be unsealed,
including Movants’ motions and the government’s earlier motion to unseal the
Twitter Order. JA-62-63.

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Oral argument on Movants’ motions was held on February 15, 2011. The
Magistrate issued a Memorandum Opinion and an Order on March 11, 2011,
denying the motion to vacate, and granting, in part, and denying, in part, the
motion to unseal. JA-104-124. With respect to the motion to unseal, the
Magistrate first held that all of the litigation papers related to Movants’ motions
should be unsealed, with the exception of the redaction of a government attorney’s
email address from one document. JA-124. The Magistrate then held that all
documents other than those related to Movants’ motions should remain sealed. JA
124. The Magistrate did not unseal the government’s motion to unseal the Twitter
Order despite the government’s agreement to unseal it. The Magistrate took the
public docketing issues under consideration.

On March 28, 2011, Movants filed timely Objections to the Magistrate’s
denial of their motion to vacate and their motion to unseal with the district court.
The district court subsequently cancelled oral argument and informed the parties
that it would rule on the papers.

2. The Motion For Public Docketing.

Following the filing of Movants’ motions under the original docket number
10-GJ-3793, the Court created a new docket number, 1:11-dm-00003, to handle the
litigation documents regarding the motions. None of the documents existing prior
to the filing of Movants’ motions, including the Twitter Order, the government’s

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Application for that Order, or the government’s motion to unseal the Twitter
Order, were filed or docketed in this new 1:11-dm-00003 docket. JA-1-15. A
subsequent search of the Court’s public docket revealed that three other dm docket
numbers were created at the same time, immediately after the filing of Movants’
motions: 1:11-dm-00001, 1:11-dm-00002, and 1:11-dm-00004. A short time later,
1:11-dm-00005 was also created. There are no publicly available docket entries
for these other dm matters. Movants reasonably believe that these dockets were
created in connection with orders to companies other than Twitter, with each order
assigned to a different “dm” number.

On May 4, 2011, the Magistrate issued a one-page order concerning
Movants’ request for public docketing. It stated that “case 10-gj-3793 is hereby
transferred to new case 1:11-ec-3, which shall remain under seal except as to the
previously unsealed § 2703(d) Order of December 14, 2010 (“Twitter Order”), and
docketed on the running list in the usual manner.” JA-167.

Counsel for Movants was initially not permitted to view the “running list”
referenced in the May 4 Order at the Clerk’s Office, but eventually was permitted
to view a one-page computer entry listing four “EC” cases—1:11-ec-00001, 1:11-
ec-00002, 1:11-ec-00003, and 1:11-ec-00004. JA-168. There was no information
on this one-page entry other than these docket numbers, the fact that they were all
assigned to Magistrate Buchanan, and that the dockets had been created on the

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days immediately before and after the May 4 Order. Id.

After Movants, through counsel, contacted the Clerk’s Office and the
Magistrate’s chambers, Movants were informed that additional information would
be publicly docketed on the running list. JA-169. The new list was identical to the
one-page computer entry Movants had previously seen, except that two new
notations had been added regarding the individual documents associated with the
ec-3 (Twitter) docket, and the list now included references to an ec-5, ec-6, ec-7,
ec-8, and ec-9 docket. JA-175-177. Unlike the ec-3 docket, the other EC dockets
contain no individual docket entries or other information indicating what
documents have been filed. All that appears for them is a case name, “USA v.
Under Seal,” the name of the judge assigned to the matter, the date the matter was
put on the EC list, and miscellaneous case assignment information. As with the
parallel dm-1, dm-2, dm-4, and dm-5 docket numbers created following the filing
of Movants’ original motions, Movants reasonably believe that the ec-1, ec-2, ec-4,
and ec-5 dockets, all created between May 2 and May 6 and assigned to Magistrate
Buchanan, concern § 2703-related orders to companies other than Twitter that
were the subject of Movants’ motion for unsealing and public docketing.

Because this running list did not contain all of the requested information, on
May 19, 2011, Movants filed Objections to the Magistrate’s May 4 Order. On
June 1, 2011, the Magistrate issued another Memorandum Opinion and Order

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(collectively, the “June 1 Order”). JA-206-07, 209. This new Order expressly
denied Movants’ request for public docketing of the non-Twitter documents. It
held that while the court must create docket entries noting “that a sealing order has
been entered,” the court need not supply any information to the public beyond a
case number for each matter and “whether a particular case is under seal.” JA-
206-07. The June 1 Order states that “[f]urther individual docket entries for all
other types of documents filed in a sealed case would be of no real value to the
public, other than providing fodder for rank speculation.” Id.

On June 16, 2011, Movants filed Objections to the Magistrate’s June 1
Order. Oral argument was cancelled by the district court, and the matter was taken
under submission on the papers.

After briefing on all of the Objections was completed,

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On November 10, 2011, the district court issued a Memorandum Opinion
and an Order denying all of Movants’ Objections. The last nine pages of the sixty-
page Memorandum Opinion, JA-274-82, address the motion for unsealing and
public docketing.

With respect to the motion to unseal, the court found that there was no First
Amendment right of access to the sealed documents because the government’s
application and affidavits contain “sensitive information” about the details of the
government’s criminal investigation, JA-276-77, and publicly disclosing the §
2703 affidavits would result in “no marked improvement” to the functioning of the
judicial system, JA-277. The court similarly found that there was no common law
right of access to any of the sealed documents, including the other § 2703 orders,
and that the government’s interest in protecting its ongoing investigation
outweighed any interests for access. JA-278-81.

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With respect to public docketing, the district court held that providing
individual docket entries on the docket sheet would harm the government’s
investigation, that it is not required by either the First Amendment or the common

o

law, and that the existing EC running list was legally sufficient. JA-277-78, 281.

F. The Subjects Of This Appeal.

Movants filed a timely Notice of Appeal of the district court’s denial of their
motion to vacate the Twitter Order, the motion to unseal, and the motion for public
docketing, on November 23, 2011. This appeal now only focuses on one section of
the motion to unseal: the judicial orders issued to companies other than Twitter
and any motions and resulting orders concerning such orders.9 Movants also
appeal the district court’s denial of the request for public docketing.10

Before the district court, Movants sought the unsealing of all judicial records
related to the Twitter Order and the other § 2703 orders, including § 2703
applications and affidavits. Movants are not requesting the unsealing of those
applications or affidavits on appeal.

10 Movants filed a motion in the district court for a stay of its order denying the
motion to vacate pending this appeal, but the district court denied that motion. JA-
14. As a result, despite their belief that the Twitter Order is unconstitutional and
not statutorily authorized, Movants are no longer appealing those issues.

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SUMMARY OF ARGUMENT

Public access to judicial records and judicial dockets is a core right
enshrined both in the common law and the First Amendment. This presumption of
access is at its apex with respect to judicial orders and motions, the sealed
documents at issue here. The district court erred in denying the unsealing of these
judicial orders and motions, as well as the case docket. The court also erred in
failing to conduct a de novo review of the Magistrate’s ruling.

With regard to unsealing, the government failed to meet its heavy burden to
overcome the presumption of access to judicial orders and motions for three
principal reasons. First, the government did not demonstrate a significant, let alone
compelling, interest in continued sealing of these orders and motions because it
removed the core reason for secrecy—tipping off the target of an investigation—
when it unsealed the Twitter Order. Second, the public has a significant interest in
access to these judicial orders and motions because they concern subjects of
immense national interest—the government’s investigation of WikiLeaks and the
government’s growing use of electronic surveillance measures. Finally, the
government failed to establish why redacted versions of the judicial orders and
motions would not eliminate any purported need for sealing.

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The district court similarly erred in failing to require public docketing of
these sealed judicial orders and related documents. Public docketing is an essential
component of the right of access. This Court has therefore repeatedly made clear
that even sealed judicial records must be publicly docketed in a manner sufficient
to provide the public with notice and an opportunity to challenge the sealing, even
in the context of an ongoing criminal investigation. The district court’s refusal to
require public docketing here cannot be reconciled with this clear caselaw.

In these specific circumstances, with these specific documents, both the
common law and the First Amendment right of access mandate that these judicial
orders and motions be unsealed and publicly docketed.

STANDARD OF REVIEW

The district court’s denial of the right of access under the First Amendment
is reviewed de novo. Va. Dep’t of State Police, 386 F.3d at 575.

The denial of access under the common law is reviewed for abuse of
discretion. Id.; Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598-99 (1978).
Questions of law that arise in the course of this review are reviewed de novo. See,
e.g., Alexander v. Boyd, 113 F.3d 1373, 1381 (4th Cir. 1997). In addition, because
“‘only the most compelling reasons can justify non-disclosure of judicial records’
that come within the scope of the common-law right of access . . . this review is

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more rigorous than garden-variety abuse of discretion review.” In re Providence
Journal Co., Inc., 293 F. 3d 1, 10 (1st Cir. 2002) (citations omitted).

ARGUMENT

I. THE DISTRICT COURT APPLIED THE WRONG STANDARD OF

REVIEW IN EVALUATING THE MAGISTRATE’S ORDERS.

The district court erred in applying a “clearly erroneous or contrary to law”
standard of review to the Magistrate’s denial of Movants’ motions. De novo
review was required for three principal reasons.

First, objections to a magistrate’s order that dispose of an entire underlying
matter are considered “dispositive” and reviewed de novo. See, e.g., ALCOA v.
EPA, 663 F.2d 499, 501-02 (4th Cir. 1981); Fed. R. Civ. P. 72(b); Fed. R. Crim. P.
59(b). Because the Magistrate’s orders resolved Movants’ requests for unsealing
and public docketing, they are “dispositive” of this entire action. See, e.g.,
ALCOA, 663 F.2d at 501-02 (holding that a Magistrate’s order is dispositive where
the motion before the Magistrate set forth all of the relief requested in the
proceeding).

Second, the district court ignored controlling caselaw from this Court
regarding the proper standard of review of the Magistrate’s sealing decision. In
Wash. Post Co. v. Hughes (In re Application & Affidavit for a Search Warrant),
923 F.2d 324 (4th Cir. 1991) (Wilkinson, J.), the Court held that although a
magistrate is authorized to issue search warrants, as with § 2703 orders, magistrate

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judges do not have “indefinite authority over the disposition of district court
documents.” Id. at 326 n.2. To the contrary, the ultimate decision to grant or deny
access is left to the discretion of the “trial court,” which, according to the Court,
means the district court judge, not a magistrate judge, even where the magistrate
has the initial power to make the sealing decision. Id. (quoting Baltimore Sun Co.
v. Goetz, 886 F.2d 60, 64 (4th Cir. 1989)).11 Because discretion lies in the district
court, not in a magistrate, de novo review of the Magistrate’s decision was
required.12

Finally, in cases raising First Amendment questions like here, the reviewing
court has an “obligation to make an independent examination of the whole record”
to ensure that the decision does not violate First Amendment rights. Bose Corp. v.
Consumers Union, Inc., 466 U.S. 485, 499 (1984). The standard of review for the
denial of Movants’ First Amendment right of access is, therefore, de novo, whether
an appellate court is reviewing a district court opinion or the district court is

11 The district court attempted to distinguish In re Application & Affidavit by
suggesting that the case only addressed “whether voir dire could be properly
referred to a magistrate judge.” JA-238. That is not correct. The issue was
whether search warrant affidavits could be sealed. The Court expressly discussed
whether discretion vests in the magistrate, who first issued the sealing order, or the
district court, which unsealed the documents. The Court concluded that it was the

latter.

12

The district court’s reliance on Media Gen. Operations, Inc. v. Buchanan, 417
F.3d 424 (4th Cir. 2005), as the basis for a deferential review standard was
erroneous. As the district court acknowledged, Media General “did not involve
the standard of review for a district judge reviewing a magistrate’s decision
regarding § 2703 orders.” JA-238.

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reviewing a magistrate decision. Va. Dep’t of State Police, 386 F.3d at 575
(holding that denials of the First Amendment right of access receive de novo
review).13

Even if the district court were correct that a “contrary to law” standard
applies, when courts review magistrate decisions on questions of law, they use a de
novo standard. See, e.g., Osband v. Woodford, 290 F.3d 1036, 1041 (9th Cir.
2002); Haines v. Liggett Grp., Inc., 975 F.2d 81, 91 (3d Cir. 1992).

In a footnote, the district court claims that its conclusion regarding the
standard of review does not matter because it also conducted a de novo review and
reached the same result. JA-231. The district court’s substantive analysis
concerning the motion to unseal and docketing issues demonstrates, however, that
the court did not conduct a de novo review. See, e.g., JA-279 (“The Court sees no
reason to disturb Magistrate Judge Buchanan’s findings.”). By applying the wrong
standard, the district court failed to examine the Magistrate’s decision with the
required scrutiny.

13

The district court erred for another reason. After reviewing the Magistrate Act,
the court concluded that “magistrate judge jurisdiction was proper under §
636(b)(3),” and, thus, in the court’s view, “no rule of procedure governs the
standard of review here.” JA-234. This Court has addressed that precise question,
however: “duties additionally assigned to magistrates under 28 U.S.C. § 636(b)(3)
are reviewed de novo” In re Matter of Application and Affidavit for a Search
Warrant, 923 F.2d at 326 n.2.

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II. THE DISTRICT COURT ERRONEOUSLY PERMITTED THE

JUDICIAL ORDERS TO COMPANIES OTHER THAN TWITTER
AND ANY RELATED MOTIONS TO REMAIN SEALED.

That the judicial process should be open to the public is a principle

enshrined in both the common law and the Constitution. See, e.g, Nixon, 435 U.S.

at 597 (“[T]he courts of this country recognize a general right to inspect and copy .

. . judicial records and documents.”); Va. Dep’t of State Police, 386 F.3d at 575

(“The right of public access to documents or materials filed in a district court

derives from two independent sources: the common law and the First

Amendment.”).

This presumption of access under the common law right may only be
overcome if the government establishes “‘some significant interest that outweighs
the presumption’” and that its “‘countervailing interests heavily outweigh the
public interests in access.’” Va. Dep’t of State Police, 386 F.3d at 575 (quoting
Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988)).
Where, as here, the First Amendment right of access is also implicated, “[t]he
presumption of openness may be overcome only by an overriding interest based on
findings that closure is essential to preserve higher values and is narrowly tailored
to serve that interest.” Press-Enter. Co. v. Super. Ct. of Cal., 464 U.S. 501, 510
(1984) (Press-Enterprise I).

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“Regardless of whether the right of access arises from the First Amendment
or the common law, it ‘may be abrogated only in unusual circumstances.’” Va.
Dep’t of State Police, 386 F.3d at 576 (quoting Stone v. Univ. of Md. Med. Sys.
Corp., 855 F.2d 178, 182 (4th Cir. 1988)). This is not an unusual circumstance.

To the contrary, the Twitter Order has already been unsealed and the judicial
orders and motions at issue here, most of which have likely been complied with
already, do not contain any sensitive, confidential information. Given that, the
government cannot demonstrate any harm from unsealing, let alone significant
harm, sufficient to heavily outweigh the public’s significant interests in access.

A. There Is A Right Of Access To The Sealed Judicial Orders And
Motions Under Both The Common Law And The First
Amendment.

Although § 2703 orders implicate novel technologies and legal processes,
the presumption of access to judicial records is well established. Judicial
transparency serves “the citizen’s desire to keep a watchful eye on the workings of
public agencies . . . [and] the operation of government.” Nixon, 435 U.S. at 598
(internal citations omitted). As this Court has explained: “The value of openness
in judicial proceedings can hardly be overestimated. ‘The political branches of
government claim legitimacy by election, judges by reason. Any step that
withdraws an element of the judicial process from public view makes the ensuing
decision look more like fiat, which requires compelling justification.’” United

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States v. Moussaoui, 65 F. App’x 881, 885 (4th Cir. 2003) (quoting Union Oil Co.
of Cal. v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000)).

The public’s interest in access “may be magnified” “[i]n the context of the
criminal justice system”: “The public has legitimate concerns about methods and
techniques of police investigation: for example, whether they are outmoded or
effective, and whether they are unnecessarily brutal or instead cognizant of
suspects’ rights.” In re Application & Affidavit for a Search Warrant, 923 F.2d at
330-31. Put simply, the right of access is “fundamental to a democratic state.”
United States v. Mitchell, 551 F.2d 1252, 1258 (D.C. Cir. 1976), rev’d on other
grounds sub nom.; Nixon v. Warner Commc’nsInc., 435 U.S. 589 (1978).

The common law right attaches to the judicial orders and motions at issue
here. This Court has made clear that “the common law presumption in favor of
access attaches to all ‘judicial records and documents.’” Stone, 855 F.2d 178, 180
(Wilkinson, J.) (emphasis added) (quoting Nixon, 435 U.S. at 597); see also Va.
Dep’t of State Police, 386 F.3d at 575 (same). That is especially the case with
respect to orders, like the § 2703 orders at issue here, issued by federal judges, see,
e.g, Pepsico v. Redmond, 46 F.3d 29, 31 (7th Cir. 1995) (“Opinions are not the
litigants’ property. They belong to the public, which underwrites the judicial
system that produces them.”), but it is also true with respect to motions, like those

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at issue here, filed by litigants upon which the court relies in performing its
adjudicatory functions, see, e.g., Stone, 855 F.2d at 180-81.

The First Amendment right of access also applies to these documents. To
determine if the First Amendment right attaches, courts conduct a two-pronged
“experience” and “logic” analysis. See, e.g., Press-Enter. Co. v. Superior Ct. of
Cal., 478 U.S. 1, 8-9 (1986) (Press-Enterprise II). The district court misstated this
legal standard, holding that the right applies only “where (1) the place and process
to which access is sought has historically been open to the press and general
public; and (2) public access plays a significant positive role in the functioning of
the particular process.” JA-275 (emphasis added). The Supreme Court, however,
has established that “experience and logic” are “complementary considerations,”
not dispositive elements that must each always be present. Press-Enterprise II,

478 U.S. at 8-9, 11 n.3 (holding that a First Amendment right attached to the
pretrial proceedings at issue even though they had “no historical counterpart,”
because the “importance of the . . . proceeding”—the logic prong—was clear).

Regardless, both the experience and logic prongs establish that there is a
First Amendment right of access to the other § 2703 orders and motions. First,
there is an exceedingly long history of access to judicial opinions and orders.
Because the judiciary’s very legitimacy stems from its issuance of reasoned
decisions, judicial orders are core judicial records, subject to the right of access.

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See, e.g., United States v. Mentzos, 462 F.3d 830, 843 n.4 (8th Cir. 2006), cert.
denied, 549 U.S. 1359 (2007) (denying motion to file opinion under seal “because
the decisions of the court are a matter of public record”); Hicklin Eng’g L.C. v.
Bartell andBartell Assocs., 439 F.3d 346, 348-49 (7th Cir. 2006) (“The Supreme
Court issues public opinions in all cases, even those said to involve state secrets...
We hope never to encounter another sealed opinion.”) (internal citations omitted);
In re Sealing and Non-Disclosure of Pen/Trap/2703(d) Orders, 562 F. Supp. 2d
876, 891 (S.D. Tex. 2008) (rejecting permanent sealing of § 2703(d) orders
because “documents authored or generated by the court itself” are in the “top
drawer of judicial records,” a drawer that is “hardly ever closed to the public”).14

As with other judicial orders, the default under § 2703(d) is that orders are
openly accessible. It is only if the government makes a separate request and
satisfies a specific standard, see 18 U.S.C. § 2705, that these orders can be
secreted. That is in stark contrast to the other judicial orders to which the
government has compared these orders—pen registers, trap and trace orders, and
wiretap orders—which are sealed by statutory default. See 18 U.S.C. § 3123(d)(1)
(stating that pen registers/trap and trace orders shall “be sealed until otherwise

14 There is a similarly long tradition of access to documents, such as the motions at
issue here, filed in civil or criminal proceedings that courts rely on to make
determinations. See Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253
(4th Cir. 1988) (holding that there is a First Amendment right of access to
documents submitted in civil proceedings); In re Wash. Post Co., 807 F.2d at 390
(same for documents filed in criminal proceedings).

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ordered by the court”); 18 U.S.C. § 2518(8)(b) (“Applications made and orders
granted under this chapter [of the Wiretap Act] shall be sealed by the judge.”).15

Despite the statutory default of accessibility, there is not yet a long tradition
of access to § 2703 orders for two principal reasons. First, § 2703 orders are
relatively new proceedings, existing since only 1986, and only coming into
prominence within the last ten years with the growth of the Internet and cell-phone
use. Second, because, despite the statutory default, the government appears
routinely to request the sealing of these orders pre-issuance, and then rarely moves
to unseal them, making it impossible for anyone to ever know these orders exist or
to challenge their sealing.

In any event, where, as here, a relatively new process is at issue, courts focus
on the “logic” prong. Otherwise, the First Amendment right of access would
artificially be limited to processes that existed in a prior era. Press-Enterprise II,
478 U.S. at 11 n.3 (noting that First Amendment right attached to the pretrial
proceedings at issue there even though they had “no historical counterpart,” where
the “importance of the . . . proceeding”—the logic prong—was clear); see also

15 The government has previously claimed that grand jury subpoenas are also an
example of judicial “orders” that are not publicly accessible, but that argument is
misplaced. Grand jury subpoenas may be treated as “court orders” for the purpose
of holding recipients in contempt of court—just like normal civil subpoenas issued
under Fed. R. Civ. P. 45—but they are not issued by a federal judge, they are not
part of the court’s records, and they do not express a judge’s rationale for reaching
a decision that affects the substantive rights of anyone.

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United States v. Gonzales, 150 F.3d 1246, 1258 (10th Cir. 1998); United States v.
Simone, 14 F.3d 833, 838 (3d Cir. 1994). United States v. Chagra, 701 F.2d 354,
363 (5th Cir. 1983).

The “logic” prong of the analysis focuses on whether access to the sealed
documents would serve a “significant positive role in the functioning of the
particular process in question.” Press-Enterprise II, 478 U.S. at 8-9. The district
court failed to conduct this analysis with respect to the other § 2703 orders.

Instead, it focused exclusively on the government’s § 2703 applications and
affidavits, which Movants do not seek on appeal, JA-276-77; see, e.g., JA-277
(“The Court can see no marked improvement that would result from recognition of
a new First Amendment right of access to § 2703 application affidavits.”). Had the
court separately analyzed the judicial orders, as it was required to do, see Stone,

855 F.2d at 181; see infra at 40-42, it would have recognized that none of the
secrecy concerns that it had with applications and affidavits were implicated by
access to these § 2703 orders and motions, because they do not contain
information such as the nature or background of the investigation, or the evidence
underlying the investigation that may be found in the affidavits.

Proof of this is seen in the Magistrate’s ruling unsealing the § 2703 order to
Twitter, which found that unsealing was “in the best interest of the investigation”
and in the unsealing of Movants’ motions by the Magistrate, with the government’s

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agreement. Indeed, even a cursory look at the Twitter Order,

The district court’s failure to consider the impact of making these § 2703
orders and motions accessible caused it to overlook the significant benefits that this
openness would have. As both the Supreme Court and this Court have recognized,
transparency concerning these judicial documents would ensure fairness, decrease
bias, improve public perception of the justice system, and enhance the chances that
the orders are well-justified and not overbroad. See, e.g., Nixon, 435 U.S. at 598
(explaining that the law’s recognition of the importance of judicial transparency
serves “the citizen’s desire to keep a watchful eye on the workings of public
agencies . . . [and] the operation of government.”); Moussaoui, 65 F. App’x at 885
(“The value of openness in judicial proceedings can hardly be overestimated.”).

These reasons are especially potent here because the core of what is sought
to be kept sealed are judicial orders and opinions—the very foundation of our
judicial system. See, e.g., Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 587
(1976) (Brennan, J., concurring) (“Secrecy of judicial action can only breed

16 To the extent the names of the recipients of the orders or the subjects of the
orders are deemed sensitive, the solution is to redact that information from the
publicly available versions of the documents, not to seal the entire documents. See
infra at 43-44.

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ignorance and distrust of courts and suspicion concerning the competence and
impartiality of judges; free and robust reporting, criticism, and debate can
contribute to public understanding of the rule of law.”).

The Court’s decision in Baltimore Sun Co. v. Goetz, 886 F.2d 60 (4th Cir.
1989), relied on heavily by the district court, is not to the contrary. In that case, the
Court held that there is no First Amendment right of access to search warrant
affidavits because of the centuries-old history of sealing those documents, even
though there is a common law right to them. Id. at 64-65. That holding, however,
concerns affidavits, not orders. Affidavits are sealed for the “common sense
reason” to avoid tipping off the target of the search until after the warrant is
executed “lest he destroy or remove the evidence.” Id. at 64 (quoting Franks v.
Delaware, 438 U.S. 154, 169 (1978)). But here, the government has already
approved the disclosure of the existence of its investigation, and the concerns about
destruction of evidence are misplaced, especially since all of the other orders have
likely been complied with already. Because § 2703 orders are generally issued to
third-party service providers for records under their exclusive control, such as the
log files at issue in the Twitter Order, there is no serious danger that tipping off the
subject of the search will lead to the destruction or removal of evidence.

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B. The Government Did Not Meet Its Burden To Overcome The
Presumption Of Access To The Sealed Judicial Orders.

The district court erred in holding that the government met its burden with

respect to either the common law or First Amendment right of access. First, the

government did not demonstrate any legitimate interest in keeping the other § 2703

orders and related motions sealed in these circumstances, let alone a compelling

interest, sufficient to heavily outweigh the public’s significant interest in access.

Second, even if there were such an interest, the government failed to establish why

the sealing of these judicial orders in their entirety was necessary and why redacted

versions would not eliminate any need for sealing.

1. The Unsealing Of The Twitter Order Removed The

Justification For Continued Sealing Of The Other § 2703
Orders And Motions.

Although the government may frequently have a legitimate interest in
maintaining the secrecy of an ongoing criminal investigation and in avoiding
tipping off potential subjects, that rationale for sealing the other § 2703 orders and
related motions disappeared here with the unsealing of the Twitter Order. First, the
unsealing of that Order, at the government’s request, confirmed the existence of
the underlying criminal investigation. Second, it publicly disclosed that the
government is seeking information about Movants in connection with the
WikiLeaks investigation. Third, it revealed the specific information and the
relevant time period being requested. Thus, unsealing the § 2703 orders to

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Movants’ other service providers now would not lead to any additional risk of
exposing the existence of a secret investigation or tipping off witnesses. Any such
risks, to the extent they ever existed, came to pass with the unsealing of the Twitter
Order. There is, thus, no justification, let alone a compelling interest, for keeping
the other orders and motions under seal now. See, e.g., Va. Dep’t of State Police,
386 F.3d at 575 (holding that the government does not have a compelling interest
in keeping information that is already publicly known secret); In re Charlotte
Observer (UnitedStates v. Bakker), 882 F.2d 850, 854-55 (4th Cir. 1989)
(reversing sealing designed to prohibit the republication of information already in
the public domain, and holding that “[w]here closure is wholly inefficacious to
prevent a perceived harm, that alone suffices to make it constitutionally

17

impermissible”).

The district court ignored this caselaw, instead asserting that unsealing this
information already in the public domain “would create perverse incentives,” JA-
279, because “[f]or example, a party could leak a controversial sealed document to
the press, then point to the ensuing publicity as evidence that further sealing is
unnecessary,” id. Not only is this assertion completely at odds with the caselaw

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from this Court and other circuits, the court’s example is wildly misplaced here:
the government, not Movants, disclosed the Twitter Order.

The district court also attempts to overcome the impact of the Twitter
Order’s unsealing by adopting the Magistrate’s assertion that this “argument
ignores the significant difference between revealing the existence of an
investigation, and exposing critical aspects of its nature and scope.” JA-279. That
distinction is inapplicable to the judicial orders and motions at issue here, however,
because, unlike the affidavits, they do not contain any sensitive information about
the government’s investigation.

The only potential interest for keeping the other § 2703 orders and motions
sealed after the government unsealed the Twitter Order is that unsealing them
could reveal the names of the other third-party recipients. Movants already know
the identity of their other online service providers, however, so unsealing
documents disclosing those names would not lead to any additional risk of the
destruction of evidence; that risk, if it ever existed, was created by unsealing the
Twitter Order. Even if the court concluded that the identities of the recipients can
remain secret, the required solution is to unseal the documents with those names
redacted. See infra at 42-43.

Finally, at a minimum, given that disclosing the Twitter Order was “in the
best interest of the investigation,” the government was required to come forward

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with compelling reasons explaining why continued sealing of the other § 2703
orders is still justified. The government did not do so. Instead, it merely attempted
to justify the Magistrate’s failure to articulate why these judicial orders should
remain sealed by asserting that even entertaining that challenge would confirm the
orders’ existence. That circular argument would mean that sealed dockets could
never be challenged, because, following the government’s logic, ruling on a
motion to unseal a “secret” docket—where the existence of the matter has not
officially been confirmed—would reveal the docket’s (and the documents’)
existence. That is not the law. See, e.g., Hartford Courant Co. v. Pellegrino, 380
F.3d 83, 93 (2d Cir. 2004) (striking down secret-docket system); United States v.
Valenti, 987 F.2d 708, 715 (11th Cir. 1993) (invalidating use of sealed criminal
dockets).

2. The Generic Interests In Secrecy Proffered By The
Government Do Not Satisfy Its Heavy Burden.

The district court held that sealing was appropriate because the government
“clearly has a compelling interest in protecting its ongoing investigation here.”
JA-281. That general interest, while obviously true as a general proposition, does
not justify sealing the specific § 2703 orders and motions at issue here, because
they do not contain any sensitive information that would seriously harm the
investigation if disclosed. The government does not dispute that, and neither the
Magistrate nor the district court made a contrary finding. Instead, the government

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summarily asserts that secrecy is necessary because this is a pre-indictment,
ongoing criminal investigation. That is not sufficient to overcome the
government’s heavy burden, and it is at odds with prior decisions of this Court.

Because “not every release of information contained in an ongoing criminal
investigation file will necessarily affect the integrity of the investigation,” a
generalized interest in “protecting the integrity of an ongoing law enforcement
investigation” cannot justify sealing judicial documents. Va. Dep’t of State Police,
386 F.3d at 577-79. Thus, “it is not enough [for the government] simply to assert
this general principle without providing specific underlying reasons for the district
court to understand how the integrity of the investigation reasonably could be
affected by the release of such information” with respect to each document that the
government wishes to keep secret. Id at 579. Instead, the government has the
burden of presenting “specific facts and circumstances” to justify “the effort to
restrict public access” to each specific document. Id.; see also Baltimore Sun, 886
F.2d at 64-66 (vacating the sealing of pre-indictment search warrant affidavits on
the ground that sealing must be justified by more than just a finding that “the
public interest in the investigation of crime” outweighs the media’s interest in
access).

The government has not come close to meeting this burden with respect to
these specific § 2703 orders and motions. The generalized interests in secrecy it

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has claimed are not even applicable to these specific circumstances or documents.
The Magistrate cited the following general “reasons” for why documents related to
ongoing investigations should be sealed, which the district court appears to have
adopted: (1) “[s]ecrecy protects the safety of law enforcement officers;” (2) it
“prevents destruction of evidence;” (3) it “protects witnesses from intimidation or
retaliation;” and (4) it “prevents unnecessary exposure of those who may be the
subject of an investigation, but are later exonerated.” JA-121; JA-279 (“The Court
sees no reason to disturb Magistrate Judge Buchanan’s findings.”). None of these
rationales for secrecy are present here.

There is no risk to law enforcement from unsealing, and the government
does not even assert that one exists. Nor is there a risk of destruction of evidence,
see supra at 28, especially because the other orders have likely been complied with
already. Protecting witnesses is also not an issue because these §2703 orders were
presumably issued to third-party service providers, most of which are multinational
corporations. Finally, the subjects of these orders, Movants, have already been
publicly exposed, so there is no basis for claiming that sealing will protect them
from unnecessary exposure.

Stripped of these traditional reasons for secrecy, the government’s - and the
district court’s - argument boils down to a claim that all pre-indictment judicial
records concerning ongoing investigations should per se be sealed. That is at odds

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with well-established caselaw from the Supreme Court and this Court establishing
that there is a presumption of access to all judicial records. Nixon, 435 U.S. at
602; Va. Dep’t of State Police, 386 F.3d at 575. In Baltimore Sun, this Court
directly rejected this argument, specifically holding that there is a right of access to
pre-indictment search warrant affidavits, and vacating the district court’s sealing of
those documents where the decision was based, as here, solely on a general finding
that “the public interest in the investigation of crime outweighed the [media’s]
interest in access prior to return of the indictments.” 886 F.2d at 66. Thus,
Baltimore Sun makes clear that even pre-indictment, sealing may not be
appropriate, and there must be a specific reason to justify sealing the specific
documents at issue beyond general law enforcement interests. Id.; see also Va.
Dep’t of State Police, 386 F.3d at 579-80 (affirming district court’s unsealing of
documents related to an ongoing criminal investigation).

3. The District Court Did Not Properly Credit The Public’s
Significant Interest In Obtaining Access To The Sealed
Judicial Orders And Motions.

Even if the government had demonstrated some legitimate reason for
keeping the other § 2703 orders sealed, it would not outweigh the strong public
interest in having access to these judicial orders and related motions. The district

18 Movants have standing to assert the public’s right of access to the sealed
documents. See Leucadia, Inc. v. Applied Extrusion Techs., Inc., 998 F.2d 157,
167-68 (3d Cir. 1993).

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court improperly relegated these interests to one sentence, see JA-281, and failed
to weigh them properly against the government’s interests.

As discussed earlier, the presumption of access to judicial records stems
from the public’s interest in serving as a “watchful eye” over the operation of
government agencies and the courts, and in ensuring that our judicial system is fair,
unbiased, trustworthy, and reaches the right results. See, e.g., Nixon, 435 U.S. at
598; Moussaoui, 65 F. App’x at 885. That the documents at issue here are judicial
orders—the foundation of our judicial system—only heightens the need for
openness. See, e.g.,Mentzos, 462 F.3d at 843 n.4; Pepsico, 46 F.3d at 31; In re
Sealing and Non-Disclosure of Pen/Trap/2703(d) Orders, 562 F. Supp. 2d at 891;
see supra at 21-28.

The interest in openness is especially acute here because these specific
judicial orders concern a matter of national importance—the ongoing debate about
WikiLeaks’ publications. The investigation of WikiLeaks has sparked a robust
debate involving issues of national security, government secrecy, classified
information, and the First Amendment.19 Because of its importance, that debate
has included Congressional hearings, proposed legislation, reconsideration of

19 See, e.g., Jack Goldsmith, Seven Thoughts on Wikileaks, Lawfare Blog (Dec. 10,
2010, 4:38PM), http://www.lawfareblog.com/2010/12/seven-thoughts-on-
wikileaks/; Marc A. Thiessen, Obama Administration Is Weak in the Face of
WikiLeaks, Wash. Post, Nov. 29, 2010, available at
http://www.washingtonpost.com/wp-
dyn/content/article/2010/11/29/AR2010112902474.html

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Executive Branch information security procedures, and even commentary by the

20

President. Unsealing the other § 2703 orders and motions would contribute
greatly to the public’s ability to participate meaningfully in this ongoing debate.
The public has a right to know about legal steps that the government is taking to
address this matter of national concern and how the courts are responding when, as
here, there is not an overriding need for secrecy. Among other things, disclosure
would enable the public to reach their own determinations about the
appropriateness of the government’s actions.

In addition to the significant public interest in this particular investigation,
the public also has a substantial interest in knowing about the nature and scope of
the government’s electronic surveillance of lawful Internet activities. An
increasing percentage of personal and business activities are conducted online each
year, resulting in an ever-increasing amount of personal data being stored online

20

See Espionage Act and the Legal and Constitutional Issues Raised by WikiLeaks:
Hearing Before the H. Comm. On the Judiciary, 111th Cong. (Dec. 16, 2010); In
WikiLeaks’ Wake, Administration Tightens Information Security, OMB Watch,

Jan. 11, 2011, http://www.ombwatch.org/node/11452; Obama Calls WikiLeaks’
“Deplorable,” Reuters, Dec. 11, 2010, available at

http://www.reuters.com/article/idUSTRE6BA24B20101211.

21

See Online Activities, 2000-2009, Pew Internet & American Life Project,
http://pewintemet.org/Static-Pages/Trend-Data/0nline-Activities-20002009.aspx
(last visited Jan. 19, 2012).

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and, thereby, potentially available to law enforcement, using techniques like
§2703(d) orders.22

Because of these developments, Congress is considering how to update the
Electronic Communications Privacy Act, Pub. L. No. 99-508, 100 Stat. 1848
(1986), of which the law at issue here, the Stored Communications Act, constitutes

23

Title II. To be able to consider intelligently how to strike the balance between
civil liberties and law enforcement needs in the digital age, the public and
Congress need to know as much as possible about how the government is using its
surveillance authorities to monitor lawful Internet communications. Because the
Twitter Order has been voluntarily unsealed, this case presents a rare and valuable
opportunity for the public to learn about electronic surveillance orders and the
nature and scope of the government’s use of them.

Finally, the public has a significant interest in ensuring that individuals’
constitutional rights are not unnecessarily infringed and that individuals have an
opportunity to seek to protect those rights before they are infringed. See, e.g.,
Legend Night Club v. Miller, 637 F.3d 291, 303 (4th Cir. 2011) (“upholding
constitutional rights is in the public interest”) (citing Giovani Carandola, Ltd. v.

22

See Paul Lanois, Caught in the Clouds: The Web 2.0, Cloud Computing, and
Privacy?, 9 Nw. J. Tech. & Intell. Prop. 29 (2010).

23

See, e.g., Electronic Communications Privacy Act Amendments Act of 2011, S.
1011, 112th Cong. (2011); ECPA Reform and the Revolution in Cloud Computing:
Hearing Before the Subcomm. on the Constitution, Civil Rights, and Civil Liberties
of the H. Comm. on the Judiciary, 111th Cong. (Sept. 23, 2010).

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Bason, 303 F.3d 507, 521(4th Cir. 2002)). Like many members of the public,
Movants use multiple electronic communications services for self-expression,
publication, association, and communication. The information demanded by the
government will reveal personal, intimate matters about their lives, expressive
activities, and associations. Because the other orders have been sealed, Movants
have not been able to challenge these other attempts to obtain their private
information. To the extent any of those orders to other companies have not been
complied with already, Movants need to have them unsealed so that they can
challenge them. To the extent they have been complied with already, their sealing
prevented Movants from taking steps to defend their constitutional rights, in
violation of this public interest.

The district court erred in not seriously considering these significant
interests in favor of access. It failed to do so, in part, based on its incorrect belief
that if the government possesses a substantial reason for desiring secrecy, sealing is
appropriate, regardless of the access interests. See JA-281. That belief belies a
fundamental misunderstanding and undervaluation of the core values underlying
the right of access. Sealing does not turn on a straight balancing test. Because of
how valuable openness is to our judicial system, there is a strong presumption in
favor of access, which means the scales start tipped in favor of access. See Nixon,
435 U.S. at 597. To overcome this presumption, and to tip the scales in the

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government’s favor, therefore, the government’s secrecy interests must not just
“outweigh” the interests in access, as the Magistrate and the district court believed,
JA-121-22 (Mag. Mem. Op.); JA-280 (Dist. Ct. Mem. Op.), they must “heavily
outweigh” them, Va. Dep’t of State Police, 386 F.3d at 575 (quoting Rushford, 846
F.2d at 253).

Rather than correct the Magistrate’s erroneous understanding of the
government’s burden, the district court defended it, arguing that there is not a
material difference between “outweigh” and “heavily outweigh.” JA-280. Not so.
By using “outweigh,” the court eliminated the presumption of access. The district
court therefore erred in concluding that the Magistrate did not use the wrong legal
test and in failing to require the government to demonstrate that its interests, if any,
heavily outweighed the interests in favor of access.

4. The District Court Erred By Failing To Require An
Individualized Sealing Analysis With Respect To Each
Document.

The district court also erred by not requiring the government to meet its
burden with respect to each sealed document. This Court has made clear that
courts are required to make a specific determination with respect to “each
document” sealed or sought to be sealed. Stone, 855 F.2d at 181 (noting that
because different levels of protection attach to different judicial records, courts
“must determine the source of the right of access with respect to each document

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sealed” to conduct an accurate sealing analysis); see also Va. Dep’t of State Police,

24

386 F.3d at 570 (same). Despite this caselaw, the district court held that “[t]here
is no need, as Petitioners put it in one pleading, ‘to proceed document-by-
document.’” JA-281 (citation omitted). That was error. The court’s disregard of
this clear procedural requirement led it to ignore the fact that the Magistrate and
the government completely failed to justify the sealing of the other § 2703 orders
and motions.

Instead of considering whether the government satisfied its burden for each
document, the Magistrate broadly concluded that all of the documents on the 10-gj-
3793 docket should remain sealed because there is no right of access to any
documents related to an ongoing investigation. JA-120, JA-122. As discussed
earlier, that is not the law. See Va. Dep’t of State Police, 386 F.3d at 575, 579;
Baltimore Sun, 886 F.2d at 66. The Magistrate’s failure to proceed document-by-
document, and the district court’s subsequent embrace of that approach, has led to
the untenable result that even though the government has agreed that its motion to

24 This Court’s decision in ACLUv. Holder, No. 09-2086, 2011 WL 1108252 (4th
Cir. 2011), is not to the contrary. In that case, the panel majority held, over a
dissent, that it was not necessary to conduct an individualized sealing analysis for
each sealed document because the complaint presented only a facial challenge. Id.
at *8-9. Where, as here, there is an as-applied challenge to specific sealing
decisions, the Court recognized that individualized assessments would be
necessary. Id.

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unseal the Twitter Order should not be sealed, JA-65, that document still remains
sealed.

One of the reasons document-by-document analysis is necessary is to ensure
that sealing orders are no broader than necessary. What happened here is a perfect
example of that problem. Because the Magistrate did not even analyze whether
sealing was appropriate for the other § 2703 orders, and instead lumped them
together with the sealing of the § 2703 affidavits and applications, these judicial
orders and motions were sealed unnecessarily, despite the fact that they, unlike the
affidavits and applications, do not contain any sensitive information that might
arguably harm the investigation if disclosed. The district court repeated this error,
focusing exclusively on the information contained in the application and affidavits,
see, e.g., JA-276 (“[t]he application submitted for the § 2703 order contains
sensitive information”); JA-276-77 (“Based on a thorough review of the
affidavits...”), and ignoring the differences between the information contained in
the affidavits and the § 2703 orders, JA-279 (stating that “[f]or the reasons outlined
above”—concerning the affidavits and applications—“the government’s interest in
secrecy outweigh the interests favoring disclosure). That was error, and it led the
district court to seal these other § 2703 orders and motions unnecessarily.

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5. The District Court Failed To Consider Alternatives To
Sealing Or To Explain Why They Were Not Sufficient.

The district court also erred by failing to consider alternatives to complete
sealing and/or to explain why such alternatives were not possible. Because the
right to access is such a fundamental right, courts must first “consider less drastic
alternatives to sealing,” and documents cannot be sealed in their entirety if it is
possible to accommodate the government’s interests by redacting specific
information, even in pre-indictment proceedings. Stone, 855 F.2d at 181; see also
Baltimore Sun, 886 F.2d at 66 (holding that the judicial officer “must consider
alternatives to sealing the documents,” which “ordinarily involves disclosing some
of the documents or giving access to a redacted version”). If a court decides that
the alternatives are not sufficient, it is required to state “the reasons for rejecting
alternatives.” Stone, 855 F.2d at 181 (quoting In re KnightPubl’g Co., 743 F.2d
231, 235 (4th Cir. 1984)).

Thus, even if the government here had shown that the release of certain
information in the other § 2703 orders would cause significant harm to its
investigation, the appropriate response would have been for that specific, harmful
information to be redacted prior to unsealing. The district court failed to do so.
Nor did it attempt to explain why such redactions were not possible. Instead, the
district court held that doing so was not necessary. JA-280-81. That is in direct

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violation of long-established Fourth Circuit caselaw. See. e.g., Baltimore Sun, 886
F.2d at 66; Stone, 855 F.2d at 181; In re KnightPubl’g Co., 743 F.2d at 235.

III. THE DISTRICT COURT ERRED IN FAILING TO REQUIRE

PUBLIC DOCKETING OF THE SEALED JUDICIAL ORDERS AND

RELATED DOCUMENTS.

Even if these other judicial orders could be sealed, there is no justification
for the district court’s refusal to docket them or any other related documents filed
with the court.

Public docketing is an essential component of the right of access. This
Court has therefore repeatedly made clear that even sealed judicial records must be
publicly docketed in a manner that “give[s] the public notice” of each document
sealed or sought to be sealed, sufficient to give the public “a reasonable
opportunity to challenge” the sealing of each document in advance of the sealing.
Stone, 855 F.2d at 181-82; see also Baltimore Sun, 886 F.2d at 65; In re Wash.

Post Co., 807 F.2d at 390; 4th Cir. R. 25(c)(2)(C) (requiring any motion to seal to
be placed on the public docket at least five calendar days in advance of a ruling on
the motion); E.D. Va. Local Crim. R. 49 (stating that every sealing request must be
docketed “in a way that discloses its nature as a motion to seal”).

Publicly accessible docket sheets containing entries for each judicial
document provide this notice to the public. They serve as an “index” that
catalogues the proceedings and as a “publication” that “provides the public and

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press with notice of case developments.” United States v. Ochoa-Vasquez, 428
F.3d 1015, 1029 n. 15 (11th Cir. 2005) (citing Hartford Courant, 380 F.3d at 93-
94). Docket sheets allow the public to determine “the status of a case, the actions
of the parties, and the determinations of the judge, without requiring the inspection
of every item in the case file.” Id at 1029 & n.15. In other words, they enable the
public to keep a “watchful eye” on the operation of the government and the courts,
Nixon, 435 U.S. at 598, a role that assumes particular importance when the court is
considering sealing a judicial matter, Ochoa-Vasquez, 428 F.3d at 1029 & n.15. In
so doing, they “endow the public and press with the capacity to exercise their
rights guaranteed by the First Amendment,” Hartford Courant, 380 F.3d at 93, and
ensure that the right to access is not just a theoretical right.

Accordingly, this Court has consistently required public docketing, even for
matters that merit continued sealing, and even for time-sensitive proceedings. See,
e.g., Baltimore Sun, 886 F.2d at 65; Stone, 855 F.2d at 181-82; In re Wash. Post
Co., 807 F.2d at 390. Thus, in the case of search warrants, where the requirement
to conduct proceedings “with dispatch to prevent destruction or removal of the
evidence” may necessitate moving quickly before the public can be given an
opportunity to raise objections, the Court has nevertheless adhered to the
requirement of public docketing to provide the public with notice and “an
opportunity . . . to voice objections to the denial of access,” holding that such

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notice “can be given by docketing the order sealing the documents.” Baltimore
Sun, 886 F.2d at 65. That is true even in the context of pre-indictment,
investigative documents. Id.

The district court nevertheless held that the requested public docketing was
not required here, under either the First Amendment or the common law. JA-278,
JA-281. That decision cannot be reconciled with the extensive caselaw prohibiting
secret dockets and sealed docket sheets, which emphasizes the need for individual
docket entries for each document filed with or by the court. In In re State-Record
Co., Inc., 917 F.2d 124 (4th Cir. 1990), this Court reversed the sealing of docket
sheets in two criminal matters, holding that the order requiring such sealing was
overbroad and violated the plaintiffs’ First Amendment rights. Remarking that
“we can not understand how the docket entry sheet could be prejudicial,” the Court
expressed concern that “harmless” information—the individual docket entries for
each event—had “been withheld from the public.” Id. at 129. Because that
harmless information was unnecessarily withheld, the Court held the sealing to be
overbroad and in violation of the First Amendment: it “violates one of the cardinal
rules that closure orders must be tailored as narrowly as possible.” Id. As here, in
In re State-Record Co., the case number, the name of the assigned judge, and the
fact of sealing were already publicly known, but almost all the contents of the
docket sheet were entirely sealed. Those publicly known facts were not sufficient

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to provide adequate public docketing there. See id. (vacating the district court’s
sealing order). Nor are they sufficient here.

Other circuits have similarly invalidated the use of secret, sealed dockets
that lack any individual docket information. In Hartford Courant Co. v.

Pellegrino, 380 F.3d 83 (2d Cir. 2004), the Second Circuit held that the First
Amendment requires that docket sheets be presumptively open. “[D]ocket sheets,”
the court explained, “endow the public and press with the capacity to exercise their
rights guaranteed by the First Amendment.” Id. at 93. The “index” and
“information” of which the Second Circuit spoke goes far beyond the existence of
a case and the judge’s name, the inclusion of which alone is not sufficient to enable
the exercise of First Amendment rights.

Similarly, the Eleventh Circuit invalidated a federal court’s use of a parallel
sealed criminal docketing procedure, explaining that the failure to record certain
individual pretrial events on the public docket was impermissible because it
“completely hid from public view” the occurrence of those events and “effectively
precluded the public and the press from seeking to exercise” their right of access.
Valenti, 987 F.2d at 715.

Likewise, in In re Search Warrant for Secretarial Area Outside the Office of
Thomas Gunn, 855 F.2d 569 (8th Cir. 1988), the Eighth Circuit held that the
sealing of district court docket sheets in a challenge to the sealing of certain search

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warrant affidavits and related materials was “improper.” Id. at 575. Here, as in
Gunn, it is not sufficient simply to indicate that a sealed case exists and to leave the
public guessing whether an order sealing the documents was ever entered or what
other documents may have been filed with a court.

This Court’s numerous cases requiring public docketing generally, including
Stone, Baltimore Sun, and In re Washington Post, also make clear that
individualized docketing is necessary. Although those cases do not expressly
discuss the need to docket each specific document or proceeding, that is an implicit
holding of each case. In those cases, there was already a public docket for at least
a portion of each of the cases. Hence, the issue before the Court was whether there
needed to be public docketing of the specific sealed documents or hearings at
stake. The Court has consistently answered that question in the affirmative. See
Baltimore Sun, 886 F.2d at 65-66; Stone, 855 F.2d at 181-82; In re Wash. Post Co.,
807 F.2d at 390.

One of the reasons that individual docket entries are necessary is that the
unavailability of docket sheets noting the existence of specific documents under
seal “may thwart appellate or collateral review of the underlying sealing
decisions,” because “[w]ithout open docket sheets, a reviewing court cannot
ascertain whether judicial sealing orders exist,” and therefore may not be able to
review them. HartfordCourant, 380 F.3d at 94 (citing Michael Zachary, Rules 58

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and 79(a) of the Federal Rules of Civil Procedure: Appellate Jurisdiction and the
Separate Judgment and Docket Entry Requirements, 40 N.Y.L. Sc. L. Rev. 409,
434, 451-52, 454 (1996)).

In addition to this extensive caselaw prohibiting sealed docket sheets, the
Federal Rules of Civil and Criminal Procedure, the rules of this Court and other
courts of appeal and district courts, and Judicial Conference policy all reinforce the
necessity of having a public docket identifying each document filed with or issued
by a court. Federal Rule of Criminal Procedure 55, for example, provides that
“every court order or judgment,” along with the “date of entry,” “must” be entered
by the clerk in the public records of the district court’s criminal proceedings.

Individual circuit rules similarly reject the use of sealed dockets. For
example, the Third Circuit has adopted a blanket rule that dockets cannot be secret:
“Because the text of the docket contains procedural information only, Court of
Appeals dockets will not be sealed.” Notice to the Bar, United States Court of
Appeals for the Third Circuit (Nov. 4, 2011). Similarly, although not adopting a
blanket rule per se, this Court has established several measures to ensure public
dockets. Thus, the Court’s docket is available on the Internet, “even if the district
court docket was sealed.” See Mem. on Sealed and Conference Materials, United
States Court of Appeals for the Fourth Circuit (Oct.17, 2011). Motions to seal
matters in this Court also must be docketed for at least five days before decisions

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are rendered to provide notice and an opportunity to challenge the requested
sealing. 4th Cir. R. 25(c)(2)(C); 4th Cir. R. 34.3. These rules are similar to the
local rule from the Eastern District of Virginia governing the action below. See

E.D. Va. Local Crim. R. 49 (requiring the docketing of every sealing request).

The Judicial Conference, for its part, has established that redacted docket
sheets should be posted even when cases are otherwise sealed. See Tim Reagan &
George Cort, Fed. Judicial Ctr., Sealed Cases in Federal Courts 2 (2009)
(discussing recent Judicial Conference policy). Indeed, the Judicial Conference
recently adopted a policy that encourages federal courts to limit the instances in
which they seal entire civil case files. Judicial Conference Policy on Sealed Cases,
Sept. 13, 2011, available at http://www.uscourts.gov/uscourts/News/2011/docs/
JudicialConferencePolicyonSealedCivilCases2011.pdf.

Allowing these § 2703-related documents to be exempt from the generally-
applicable public docketing requirements would create a secret, nonpublic court
system for electronic communications orders. That is contrary to the fundamental
principles of our judicial system, and the Court should not permit it. See CBS, Inc.
v. U.S. Dist. Ct., 765 F.2d 823, 826 (9th Cir. 1985) (Kennedy, J.) (noting that “a
two-tier system, open and closed” erodes public confidence in the accuracy of
records, and thus denies the public and press its right to meaningful access).

Rather than creating a public docket with entries identifying any other §

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2703 orders or related documents, the district court found that the newly-instituted

25

EC “running list” was sufficient. JA-278. With the exception of the docketing of
the Twitter documents in 1:11-ec-00003, which Movants do not challenge,
however, this new “EC” list violates the requirement that every document filed
with the court, including sealed documents, must be publicly docketed. Baltimore
Sun, 886 F.2d at 65; Stone, 855 F.2d at 181; In re Wash. Post Co., 807 F.2d at 390;
Fed. R. Crim. P. 55; E.D. Va. Local Crim. R. 49.

Indeed, other than with respect to the Twitter Order documents, the EC
running list contains no information aside from the docket number, the date the
docket number was assigned, and the name of the assigned judge. JA-175-77.

This EC list does not indicate which documents were filed in each matter, whether
the Court granted or denied any request for an order or the sealing request, whether
any motions have been filed challenging the requests or orders, or the date any
such documents were filed. This EC list does not, therefore, even contain the
information included on the running list referenced by this Court in Media
General, after which the district court’s new EC running list is presumably

25

The term “running list” originally referred to a publicly available hard-copy,
“permanent docket book,” in which a tracking number for search warrants and pen
register orders was assigned by the Clerk’s Office. See Media Gen. Operations,
Inc., 417 F.3d at 427. Next to the tracking number, the clerk recorded entries for
each document, such as “Search Warrant” and “Affidavit Under Seal,” identifying
each document associated with that tracking number. Id.

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modeled. 417 F.3d at 427 (noting that the specific items “Search Warrant” and
“Affidavit Under Seal” were individually docketed on the “running list”).

Public docketing is particularly important here because absent individualized
public docketing, the public will not know whether an entry on the EC list refers to
a § 2703 order, a pen register order, a trap and trace order, or some other type of
order for which the district court is using the EC list. Nor will the public have any
notice of whether the Court has denied any such requests by the government or
whether there has been objection by anyone to the orders. As a result, the public
will not be able to determine whether it is appropriate to bring a challenge to such
sealing, or what legal principles would apply to such a challenge, because different
rules may apply to the sealing of different documents. See, e.g., Baltimore Sun,

886 F.2d at 65-66 (establishing different principles for sealing of search warrant
affidavits).

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which is threatened whenever immediate access to ongoing proceedings is denied,
whatever provision is made for later public disclosure.’” In re Application &
Affidavit for a Search Warrant, 923 F.2d at 331.26

public docket, with sufficient information on it to permit the public to have notice
of any sealing requests or orders, and to have an actual opportunity to challenge
any such requests or orders.

The district court concluded—without explanation—that public docketing of
these judicial orders and related documents is inappropriate because, in its view, it

26 For the same reasons, the district court’s conclusion that the government should
not be required to file an ex parte submission to justify continued sealing of these
other orders and documents until 180 days after issuance of its November 10 order,
JA-222, unduly minimizes these values of openness. Given that these other orders
were likely issued in December 2010 or January 2011, the court has essentially
permitted their sealing to last, without further review, for approximately sixteen
months.

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“would allow Petitioners (and many others) to observe the progress of a particular
investigation, or to analyze the correspondence between government activity and
docketing of sealed orders, or even the investigative methodology in a particular
case, permitting inferences about the contents of sealed records.” JA-278. There
is no support for those assertions, either in fact or logic. The public docketing
requested here—entries containing the names and dates of documents filed with
the court—will not reveal any sensitive details about the government’s
investigation, such as who the recipients of the orders are, who the targets of the
investigation are, or what information the government is requesting, let alone the
contents of sealed records. Where the underlying order remains sealed, this
information would not appear on the public docket. Nor would it be possible to
draw any connection between a docket entry and a particular investigation, as the
district court envisaged, because the docket entry—e.g., “Sealed § 2703 Order”—
would be divorced of any context.

Instead, docketing the name and date of each document filed with the court
would simply reveal information such as the type of order sought (§ 2703 order,
pen register, or other), whether the court granted or denied any request for an
order, whether a non-disclosure order was sought and granted or denied, and
whether any motions have been filed challenging the requests or orders. That

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information is “harmless” to the government, see In re State-Record, 917 F.2d at
129, but it is critical to the public.

That this information is harmless is abundantly demonstrated by the ec-3
docket for the Twitter Order. Several of the items on the ec-3 docket are
individually identified, including the still-sealed Application and still-sealed
motion to unseal, yet no sensitive investigative details are revealed by those
entries. See JA-175-77. The district court’s refusal to require the same docketing
for the non-Twitter orders and documents in the same manner cannot be justified
on the grounds suggested by the district court.

Moreover, even if the government had a legitimate reason for not wanting
these judicial records to be docketed, this Court has made clear that courts must
publicly docket all sealed judicial records, regardless of whether public docketing
would allegedly affect important government interests. In In re Washington Post
Co., 807 F.2d at 383, a case that involved sensitive national security concerns and
classified information, the government argued that the ordinary principle of
providing public docketing of a motion to seal documents should not be required
“where national security interests are at stake,” in part because, much as the district
court asserts here, “notice of a closure motion alone could lead the news media to
guess at the nature of the covert operations involved.” Id. at 391 & n.8. The Court
rejected that argument, holding that the ordinary “procedural requirements . . . are

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fully applicable.” Id. at 392. Put simply, where sealing is at issue, a court does not
have “discretion to adapt its procedures to the specific circumstances.” Id. at 391.

In this respect, § 2703 orders are no different for public docketing purposes
than search warrants, which also are issued in the investigative, pre-charge stage of
a case, by a judge, upon a specific showing, but which this Court has made clear
are judicial records that must be publicly docketed. Baltimore Sun, 886 F.2d at 65-
66. There is no reason for treating § 2703-related documents any differently for

27

public docketing purposes.

Movants do not seek the adoption of any particular administrative procedure
for public docketing. Movants are not, in other words, challenging the use of the
EC “running list” mechanism, instead of the use of a normal case docket. Instead,
Movants merely request that the Clerk’s Office provide sufficient information—
through whatever administrative vehicle the Clerk’s Office adopts—to give
adequate notice to the public of the filing under seal of each judicial record, to
provide the public with an opportunity to challenge their sealing. That is what this
Court has required, and it is what the First Amendment and common law principles

27 Pen register proceedings—another investigative proceeding—have also
historically been docketed on the public running list. See Media Gen. Operations,
Inc., 417 F.3d at 427.

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28

of the right of access mandate.

28

The district court attempted to defend its denial of public docketing, in part, by
claiming that “the Clerk’s [docketing] procedures fall well within the standards
adopted by the Judicial Conference on March 17, 2009, which allowed individual
courts discretion to include information in excess of the case name and number.”
JA-278. To the extent the Judicial Conference policy permits courts not to
maintain a public docket concerning judicial orders, that policy raises serious
constitutional concerns, as public docketing is necessary to preserve First
Amendment rights. See Hartford Courant, 380 F.3d at 93; Valenti, 987 F.2d at
715. In any event, the docketing here is not in compliance with the very policy
cited by the district court. That policy provides that sealed matters must be
publicly accessible on the Internet, through ECF/PACER. See Report of the
Proceedings of the Judicial Conference of the United States, March 17, 2009, at
11, available at

http://www.uscourts.gov/FederalCourts/JudicialConference/Proceedings/Proceedin
gs.aspx?doc=/uscourts/FederalCourts/iudconf/proceedings/2009-03.pdf. None of
the cases on the EC list are publicly accessible on PACER, however.

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CONCLUSION

For the foregoing reasons, the Court should vacate the district court’s order,
unseal the other § 2703 orders and motions, and require the district court to
maintain a public docket concerning these other judicial orders and related
documents.

REQUEST FOR ORAL ARGUMENT

Oral argument is requested.

Respectfully submitted,

Dated: January 20, 2012 By: /s/ Aden J. Fine_______

Aden J. Fine

AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
125 Broad Street, 18th Floor
New York, NY 10004
Telephone: 212.549.2500
Facsimile: 212.549.2651
Email: afine@aclu.org

Rebecca K. Glenberg
AMERICAN CIVIL LIBERTIES UNION
OF VIRGINIA FOUNDATION, INC.
530 E. Main Street, Suite 310
Richmond, VA 23219
Telephone: 804.644.8080
Facsimile: 804.649.2733
Email: rglenberg@acluva.org

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Dated: January 20, 2012

Cindy A. Cohn
Lee Tien
Marcia Hofmann
ELECTRONIC FRONTIER
FOUNDATION
454 Shotwell Street
San Francisco, CA 94110
Telephone: 415.43 6.9333 x108
Facsimile: 415 436.9993
Email: cindy@eff.org
Email: tien@eff.org
Email: marcia@eff.org

Attorneys for BIRGITTA JONSDOTTIR

By: /s/ Rachael E. Meny_______

John W. Keker
Rachael E. Meny
Steven P. Ragland
KEKER & VAN NEST LLP
710 Sansome Street
San Francisco, CA 94111-1704
Telephone: 415.391.5400
Facsimile: 415.397.7188
Email: jkeker@kvn.com
Email: rmeny@kvn.com
Email: sragland@kvn.com

John K. Zwerling
Stuart Sears

ZWERLING, LEIBIG & MOSELEY, P.C.

108 North Alfred Street

Alexandria, VA 22314

Telephone: 703.684.8000

Facsimile: 703.684.9700

Email: JZ@Zwerling.com

Email: Stuart@Zwerling.com

Attorneys for JACOB APPELBAUM

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Dated: January 20, 2012 By: /s/ John D. Cline____

John D. Cline

LAW OFFICE OF JOHN D. CLINE
235 Montgomery Street, Suite 1070
San Francisco, CA 94104
Telephone: 415.322.8319
Facsimile: 415.524.8265
Email: cline@johndclinelaw.com

K.C. Maxwell

LAW OFFICE OF K.C. MAXWELL
235 Montgomery Street, Suite 1070
San Francisco, CA 94104
Telephone: 415.322.8817
Facsimile: 415.888.2372
Email: kcm@kcmaxlaw.com

Nina J. Ginsberg
DIMUROGINSBERG, P.C.

908 King Street, Suite 200
Alexandria, VA 22314
Telephone: 703.684.4333
Facsimile: 703.548.3181
Email: nginsberg@dimuro.com

Attorneys for ROP GONGGRIJP

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CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of Federal Rule of
Appellate Procedure 32(a) because it contains 13,854 words, excluding the
parts of the brief exempted by Federal Rule of Appellate Procedure
32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Federal Rule of
Appellate Procedure 32(a)(5) and the type-style requirements of Federal
Rule of Appellate Procedure 32(a)(6) because it has been prepared in a
proportionally spaced typeface using Microsoft Word 2010 in 14-point
Times New Roman.

/s/ Aden J. Fine

Aden J. Fine

January 20, 2012

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 20th day of January, 2012, the foregoing
Public Brief for Movants-Appellants was filed electronically through the Court’s
CM/ECF system. Notice of this filing will be sent by e-mail to all parties by
operation of the Court’s electronic filing system.

/s/ Aden J. Fine____________

Aden J. Fine

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