Title: Unsealed Documents in Google and Twitter 2703(d) Order Cases

Document Date: 2010-12-14

Text: ATTACHMENT A

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

FILED

í

2011 JAN 18 P ß? S#

IN RE 2703(d) ORDER AND 2703(f) )

PRESERVATION REQUEST RELATING )

TO GMAIL ACCOUNT

) FILED UNDER SEAL
)

GOOGLE INC.’S MOTION TO MODIFY 2703(d) ORDER FOR PURPOSE OF
PROVIDING NOTICE TO USER AND MEMORANDUM IN SUPPORT

This matter involves a grand jury investigation of the Wikileaks publication of State
Department cables and related matters. The fact of the investigation has been widely reported in
the New York Times and other news publications, across the Internet and around the globe.1
Demands have been made to third party service providers, including Google Inc. (“Google”),
seeking compelled disclosure of information such as with whom the subject users of those
services communicated and which computers they used to do so. The Google Gmail user

nature of the Wikileaks investigation, the fact that a nearly identical order to another provider
involving the same account identifier has been unsealed by this Court in the same Grand Jury
proceeding, and for other reasons set forth herein, Google requests permission to provide notice

1 See, e.g., Scott Shane and John F. Bums, UJL Subpoenas Twitter Over WikiLeaks Supporters. N.Y. Times, Jan. 8,
2011, http://www.nytime5.com/20l I/0l/09/worid/09wiki,html (last visited Jan. 13,2011); Anthony Boadle, U.S.
orders Twitter to band over Wikileaks records. Reuters, Jan. 8,2011,

http://www.reuters.coni/article/idUSTRE70716420110108 (last visited Jan. 14,2011); Ravi Somaiya, Release on
Bail 'of WikiLeaks Founder Is Delayed by Appeal, N.Y. Times, Dec. 14,2010, available at
http://www.nytimes.com/2010/12/15/worId/europe/l 5assange.html7src=twrhp (last visited Jan. 3,2011); Assange
attorney: Secret g/randjury meeting in Virginia on WikiLeaks, CNN Justice, Dec. 13,2010,
http://articles.cnn.com/2010-l2-l3/justice/wikneak3.investigation_ljulian-assange-wikileaks-case-grand-
jury?_s=PM:CRIME Oast visited Jan. 3,2011); Dan Goodin, Grand jury meets to decide fate of WikiLeaksfounder.
The Register, Dec. 13,2010, available at http://www.theregister.co.uk/2010/l2/I3/assange_grandjury/ (last visited
Jan. 3,2011).

1. INTRODUCTION

the subject of the demand at issue here (the “Order”).1 2 Because of ihfcnlready-public

2 See Declaration of John K. Roche, Ex. 1 (“Roche Decl.”).

of the Order to that Gmail user and the user’s attorney far enough in advance to give them a
meaningful opportunity to contest the request.

n. FACTUAL BACKGROUND

A. Summary

The Order in this matter was issued on January 4,2011, and seeks information about the
Gmail user A user with the account identifier also one of the targets of

such an order issued on December 14,2010 by this Court at the request of the government to
Twitter pursuant to 18 U.S.C. § 2703(d) (the “Twitter Order”).3 Twitter asked the government to
unseal that order so that it might give its users notice and an opportunity to assert any privileges
or rights to prevent such disclosures. The government agreed to do so on January 3,2010, and
Magistrate Judge Buchanan entered an order to unseal on January 5th.4

Having agreed on January 3 to unseal one order to Twitter involving account information
for the Twitteruseif^^ the next day the government procured this Order under seal from this
Court to compel Google to produce the identical type of user information and records previously
sought from Twitter for the Google Gmail account for the same period of November 1,
2009 to the present This Order contains the identical perpetual nondisclosure provision that was
present in the Twitter Order, prohibiting Google from “disclosing] the existence of the
application or this Order of the Court, or the existence of the investigation, to the listed
subscriber or to any other person, unless and until authorized to do so by the Court.”

3 Roche Decl., Ex. 2.

4 Id. Ex. 3.

2

Pursuant to Google's policy and having teamed through the extensive coverage of the
unsealed Twitter Order that^|||^^ccount records had been sought and that motions to object
are imminently due from the Twitter users whose data has been requested, Google promptly
notified die government that it too sought to notify its user of the Order.s The government
declined to agree to a modification to allow this, purportedly because the Order involves a
different investigation.* 6 The government also served a preservation demand on Google, and
likewise, the government has declined to permit Google to notify the user of the demand.7

Google respectfully submits that this Order, like the Twitter Order, may present
substantial free speech concerns and may implicate journalistic and academic freedom.
Furthermore, the government’s investigation of Wikileaks generally, and its interest in the
I user name specifically, is a matter of public record, thus obviating the need for this
Order’s nondisclosure provision. In addition, Google has preserved the requested records, thus
there is no danger of loss or destruction of the information sought. Accordingly, Google requests
that the Court modify this Order to permit notice nf the Order ancLpresan/atinn p»qiiegiven to Google’s user and attorney and that the user be given 20 days from the date of the
Court’s order to seek any relief.

Google takes no position regarding the propriety of Wikileaks’ actions or the
government’s investigation. It seeks to provide notice to the user and his legal representative so
that the user has an opportunity to be heard. Google has preserved responsive information to the
extent it exists pending the Court’s ruling on this motion.

J Roche Decl., 6.

6 Id

7 Id, Ex. 4.

3

B. Relevant Actors

Google provides electronic mail services to the public through its Gmail service. Google
assiduously protects the privacy and ftee speech rights of its Gmail users, as evidenced by its
opposition, with the support of the U.S. State Department, to the Chinese government’s attack on
the Gmail accounts of Chinese human rights activists.8

Google’s general practice and preference, when addressing legal demands such as court
orders, is to give notice to the account holders, whenever it is permissible and practical to do so.
Even where the government asserts that disclosure to the user may have an adverse impact on an
investigation, or where an order is sealed but nonetheless raises serious First Amendment
concerns, Google may move to unseal the order or seek permission to notify its users.

Google recognizes that such notice is important because its users are better situated to
assert their rights under the First Amendment or other applicable privileges and articulate their
concerns to the Court. It is for those reasons that Google asks the Court to unseal the Order as
the Court did for another provider in the same Grand Jury proceeding.

Wikileaks describes itself as a journalistic enterprise.9 Whether Wikileaks does in fact
consist of journalists or engage in journalism is a matter of public debate, and an issue upon
which Google does not comment.

* Andrew Jacobs and Miguel Helft, Google, Citing Attack, Threatens to Exit China, N.Y. Times, Jan. 13,2011,
http://www,nytimes.com/2Q10/01 f\ 3/world/asia/l 3beijing.html?_r= 1 &pagewanted=print (last visited Jan. 13,2011).

9 Salmeron v. Enterprise Recovery Systems, Inc., 579 F.3d 787,791 n.l (7th Cir. 2009) (‘"(FJounded by Chinese
dissidents, journalists, mathematicians and startup company technologists, from the US, Taiwan, Europe, Australia
and South Africa,* Wikileaks styles itself as ‘an uncensorable version of Wikipedia for untraceable mass document
leaking and analysis.’ http:// wikileaks. org/ wiki/ Wikileaks: About (last visited July 16,2009).”).

4

Twitter is a real-tíme information network that has been described by one federal district
court as “a social networking and micro-blogging service that invites its users to answer the
question: ‘What are you doing?’” U.S. v. Shelnutt, No. 4:09-CR-14 (CDL), 2009 WL 3681827,
at *1 n. 1 (M.D. Ga. Nov. 2,2009) ('Twitter’s users can send and read electronic messages
known as ‘tweets.’ A tweet is a short text post (up to 140 characters) delivered through Internet
or phone-based text systems to the author’s subscribers. Users can send and receive tweets in
several ways, including via the Twitter website.”).

Although Google does not comment on and could not confirm whether the Twitter
accountHm^s controlled by the same user as the Gmail •■¡^account, it is instructive to
note that in a “tweet,” the Twitter user^BHhdicates that since at least mid-December 2010
qgjgg&.as been well aware that a government investigation is underway.10

C. Procedural Posture

________The Twitter Order was issued on December 14,2010 and relates to the ongoing ______

Wikileaks investigation, which is obviously an issue of great public interest.* 11 The Twitter Order
demanded the production of subscriber information and certain records and other non-content
information for a number of Twitter account holders from November 1,2009 to the present,
including an account with the user namtfflNP It also contained a non-disclosure provision.
The grand jury investigation underlying the Twitter Order was widely reported in the New York

xa Se* |tweetofDec. 17,2010 @4:22 pjn. (“Unrelated to any travel issues-the FBI is now actively

bothering my friends and questioning them inside the United States.”).

http://t%viKer.comfjH^statu£/l 5879462465835008 (last visited on Dec. 21,2010); see twoet of Jan.

7,2011 @ 9:26 p.tn. (“Note that we can assume Google & Faceboolc also have secret US government subpoenas.
They make no comment Did they fold?”), http'J/twitter.contMBK/ (last visited Jan. 18,2011).

11 Roche DecU Ex. 2.

5

Times and other media outlets around the time the Twitter Order was issued.12 Indeed, prior to
issuance of the order, the Attorney General had acknowledged that the government was actively
investigating Wikileaks.13

On January 5,2011, upon motion by the government made at the behest of Twitter,14 15
Magistrate Judge Buchanan unsealed the Twitter Order and authorized Twitter to disclose it to its
users, including Twitter user

In the days following January 5,2011, the unsealed Twitter Order was posted on the
Internet and widely discussed in the media.16 On January 7,2011, a “tweet” from Twitter user
Istated that “we can assume Google & Facebook also have secret US government
subpoenas.”17

On January 4,2011, the day after the government agreed to unseal the Twitter Order, it
procured from this Court the Order in this matter, which is substantially identical to the Twitter

12 Ravi Somaiya, Release on Bail of WikiLeaks Founder Is Delayed by Appeal, N.Y. Times, Dec. 14,2010,
http://www.nytimes.com/2QI0/I2/r57wortd/europe/15assange.h!ml?src=twrlip (last visited Jan. 3,2011); see also
Assange attorney: Secret grandjury meeting in Virginia on WikiLeaks, CNN Justice, Dec. 13,2010,
http://articles.cnn.com/20l0-12-13/justice/wikileaks.investigation_ljullan-assange-wikileaks-case-grand-
jmy?__s=PM:CRIME (last visited Jan. 3,2011); Dan Goodin, Grand Jury meets to decide fate of WikiLeaks founder,
The Register, Dec. 13,2010, http://www.lheregister.co.uk/2010/12/13/assange_grandJury/ (last visited Jan. 3,
2011).

13 Ellen Nakashima & Jerry Markon, WikiLeaks founder could be charged under Espionage Act, Wash. Post, Nov.
30,2010, http://www.washingtonpost.eom/wp-dyn/conlent/ajticle/2010/l 1/29/AR2010I12905973.html (last visited
Jan. 3,2011).

14 Perkins Coie LLP represents both Twitter and Google.

15 Roche Decl., Ex. 3.

14 See, e.g., Scott Shane and John F. Bums, U.S. Subpoenas Twitter Over WikiLeaks Supporters. N.Y. Times, Jan. 8,
2011, http://www.nytimes.com/20I l/01/09/world/09wiki.html (last visited Jan. 13,2011); Anthony Boadle, US.
orders Twitter to handover Wikileaks records, Reuters, Jan. 8,2011,
http://www.reuters.com/articIe/idUSTRE70716420110108 (last visited Jan. 14,2011).

17 See tweet of Jan. 7,2011 @ 9:26 p.m. ("Note that we can assume Google & Facebook also have secret

US government subpoenas. They make no comment. Did they fold?”), httpWtwitter.comtfflh/ (last visited Jan.
18,2011).

6

Order and compels Google to produce the identical information as the Twitter Order for the
Google Gmail accound^^^J18 The perpetual, nondisclosure provision in the Order is identical
to the Twitter Order nondisclosure provision.

On January 12,2011, the government issued a preservation request pursuant to 18 U.S.C.
§ 2703(f) “for the preservation of all stored communications, records, and other evidence” in
Google's possession regarding Gmail user^^p&r November 2009 to the present.19

That same day, Google’s outside counsel spoke with several government attorneys
regarding the nondisclosure provisions in this Order.20 Google’s attorney notified the
government that Google wished to immediately give notice of the Order to its user and requested
that the government agree to so modify the Order.21 The government declined Google’s request
saying only that the Order involves a different investigation than the one underlying the Twitter
Order.22 No further explanation was provided.23 The government offered to release Google
from the notice constraint 90 days after it produced, with a provision allowing the government to
petition for a farther extension.24TJoogIe consequently notified the government that it intended
to file this motion to unseal the order and to modify its nondisclosure provisions so that Google

18 See Roche Decl., Ex. I.

19 Id, Ex. 4.

10 Id. H6.

"Id

”Id.

23Id

"Id

1

could give immediate notice to its user.25 Google’s attorney and the government subsequently
agreed on a schedule for filing and argument of this motion.

m. ARGUMENT

A. There is No Need for Secrecy of the Order or the Preservation Request

Nondisclosure orders are permitted in extraordinary circumstances under 13 U.S.C. §
2705. The Order in this matter relies upon the standard set forth in § 2705(b)(5), which provides
for nondisclosure when notification will result in “seriously jeopardizing an investigation.”
Nondisclosure requests such as this are subject to the most demanding scrutiny, particularly
when they are indefinite in scope:

If the recipients of [surveillance] orders are forever enjoined from
discussing them, the individual targets may never learn that they
had been subjected to such surveillance, and this lack of
information will inevitably stifle public debate about the proper
scope and extent of this important law enforcement tool. By
constricting the flow of information at its source, the government
dries up the marketplace of ideas just as effectively as a customer-

---------------targeted injunction woukklo—Given th^public’sintense interest in----

this area of law, such content-based restrictions are subject to
rigorous scrutiny.

In re Sealing and Non-Disclosure ofPen/Trap/2703(d) Orders, 562 F. Supp. 2d 876,882 (S.D.
Tex. 2008) (setting a default 180 day period for sealing and non-disclosure of electronic
surveillance orders) (internal citations omitted).

Google is not privy to what showing the government made in the affidavit in support of
the application for the Order. Given that the government moved to unseal an order to another
provider requesting the identical type of information on an account with an identical identifier, it

25 See Roche Deel., H 6.

3

is difficult to understand how the government could meet the “seriously jeopardizing” standard
in this case. The government’s offer to release Google from the notice constraint after 90 days
demonstrates that a limited nondisclosure provision could have been requested in the first place,
and that this very public investigation is at or near an end, which further obviates the need for
confidentiality.

Nor does the Order meet the traditional standard for grand jury confidentiality. Grand

jury proceedings are traditionally confidential because

if preindictment proceedings were made public, many prospective
witnesses would be hesitant to come forward voluntarily, knowing
that those against whom they testify would be aware of that
testimony. Moreover, witnesses who appeared before the grand
jury would be less likely to testify fully and frankly, as they would
be open to retribution as well as to inducements. There also would
be the risk that those about to be indicted would flee, or would try
to influence individual grand jurors to vote against indictment.

Finally, by preserving the secrecy of the proceedings, we assure
that persons who are accused but exonerated by the grand jury will
not be held up to public ridicule. * 1140

Finn v. Schiller, 72 F.3d 1182,1187 n.6 (4th Cir. 1996) (quoting Douglas Oil Co. v. Petrol Slops
N.W., 441 U.S. 211,219 (1979)). Of course, “it is a ‘common-sense proposition that secrecy is
no longer “necessary” when the contents of grand jury matters have become public.’” McHan v.

C.J.R., 558 F.3d 326, 334 (4th Cir. 2009) (quoting In re Grand Jury Subpoena, 438 F.3d 1138,

1140 (D.C. Cir. 2006)).

In this case, the grand jury’s investigation of the Twitter use^H|j is public record.
Moreover, Google has preserved all records and content related to the Gmail user]H|[
account Accordingly, there is no risk of destruction evidence, and none of the other interests
served by the traditional secrecy of grand jury proceedings would be undermined in any way by
disclosure of this Order or the preservation request.

9

B. The Order May Raise Significant Free Speech and Other Privilege Issues

Grand jury proceedings are not exempt from the limits of the First Amendment.
Branzburg v. Hayes, 408 U.S. 665,707-08 (1972). Accordingly, courts must "strikeQ the
essential balance between the purposes of the grand jury and the protections of the First
Amendment” by requiring the grand jury to “show a strong possibility that the requested
[information] will expose criminal activity.” In re Grand Jury Subpoena: Subpoena Duces
Tecum, 829 F.2d 1291,1305 (4th Cir. 1987) (Wilkinson, J., concurring).

Shielded by thp First Amendment, the press “has been a mighty catalyst in awakening
public interest in governmental affairs, exposing corruption among public officers and
employees and generally informing the citizenry of public events and occurrences.” Estes v.
Texas, 381 U.S. 532,539 (1965). Hence, journalists are entitled to certain free speech
protections in order “to ensure a free and vital press, without which an open and democratic
society would be impossible to maintain.” Ashcraft v. Conoco, Inc,, 218 F.3d 282,287 (4th Cir.
2000). Likewise, **[o]ur Nation is deeply committed to safeguarding academic freedom, which is
of transcendent value to all of us and not merely to the teachers concerned. That freedom is
therefore a special concern of the First Amendment....” Keyishian v. Board of Regents of
University of State ofN. K, 385 U.S. 589,603 (1967).

To the extent that the Gmail usei^^^is a journalist or enaged in other constitutionally
protected activities, the user may wish to assert First Amendment rights or any applicable
journalistic, academic or other privileges or defenses to which the user is entitled. Google is not
properly positioned to do so on behalf of users.

10

The Department of Justice itself recognizes that “the prosecutorial power of the
government should not be used in such a way that it impairs a reporter’s responsibility to cover
as broadly as possible controversial public issues,” and has thus enacted special procedures for
obtaining information from or about members of the news media. See 28 C.F.R. § 50.10; see
also U.S. Attorney’s Manual, § 9-13.400. Therefore, given the extraordinary controversy and
newsworthiness surrounding Wikileaks’ alleged actions, the applicability of any privilege may
be heightened. In re Grand Jury Subpoena, Judith Miller, 438F. 3d 1141, H64(D.C. Cir. 2006
(“I believe that the consensus of forty-nine states plus the District of Columbia - and even the
Department of Justice - would require us to protect reporters* sources as a matter of federal
common law were the leak at issue either less harmful or more newsworthy.”) (Tate!, J.,
concurring).

Had Gmail usei^|^| rather than Google, been the recipient of the Order or similar
legal process, there is no doubt that the user would have the right to assert any objections
directly. Id. at 1164 (“given that any witness -journalist or otherwise—may challenge [an—

unreasonable or oppressive] subpoena, the majority [in Branzburg] must have meant, at the very
least, that the First Amendment demands a broader notion of ‘harassment’ for journalists than for
other witnesses”) (Tatel, J., concurring). It is therefore within the sound discretion of the Court
to modify the Order for the purpose of allowing Google to give notice to its affected user so that
the user may decide whether to object to Google’s production of the documents and information
demanded therein.

IV. CONCLUSION

Google takes no position regarding the propriety of Wikileaks’ alleged actions or the
government’s investigation, but given the extraordinary nature of the issues surrounding the

11

Wikileaks matter, Google requests only that the Court modify the Order to permit notice of the
Order and preservation request to be given to Google’s user and the user’s attorneys. Google
further requests that it be permitted to discuss the Order with its user and the user’s attorneys and
that the user be given 20 days from the date of the Court’s order to file an appropriate response.
In the meantime, Google has preserved responsive information, and will produce that
information if its user does not file a morion or other pleading in opposition within 20 days of the
Court’s order.

DATED this 18th day of January, 2011.

Respectfully subi

^§Bff68594)

John!

Perkins GftjelXP
7Washington, D.C. 20005-3960

Phone: 202-434-1627
Fax: 202-654-9106

JRoche@perkinscoie.com

Albert Gidari (pro hoc vice pending)

Perkins Coie LLP 1201

1201 Third Avenue, Suite 4800

Seattle, Washington 98101

Phone: 206-359-8000

Fax: 206-359-9000

AGidari@perkinscoie.com

Attorneys for Google Inc.

12

CERTIFICATE OF SERVICE

I hereby certify that on this 18 th day of January, 2011, the foregoing document was sent via hand
delivery and email to the following persons:

Assistant United" States Attorney

United States Attorney’s Office

Eastern District of Virginia

Justin W. Williams United States Attorney’s Building

2100 Jamieson Avenue

Alexandria, VA 22314-5794

[facsimile)

¡k@usdoj.gov

Attorneys for the United States

By.

700 13th St., N.W„ Suite 600
Washington, D.C. 20005-3960
Phone: 202-434-1627
Fax: 202-654-9106

JRoche@perkinscoie.com

Attorneys for Google Inc.

13

filed

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

2011 JAN 18 p|2:5g

IN RE 2703(d) ORDER AND 2703(0 )

PRESERVATION REQ1 )

TO GMAIL ACCOUNT

) FILED UNDER SEAL

)

DECLARATION OF JOHN K. ROCHE IN SUPPORT OF GOOGLE INC.’S MOTION
TO MODIFY 2703ftD ORDER FOR PURPOSE OF PROVIDING NOTICE TO USER

I, John K. Roche» declare as follows:

1. I am an attorney licensed to practice in the Commonwealth of Virginia and the

District of Columbia, and am admitted to practice before this Court. I am an associate in the law
firm of Perkins Coie LLP, counsel of record for Google Inc. ("Google”) in this action. As one of
the attorneys with responsibility for the representation of Google in this matter, I have personal
knowledge of the facts set forth below and am competent to testify about the matters stated
herein.

_________2. Attached hereto as Exhibit 1 is the January 4r 201 l order af this Cniirtissuedio_

Google pursuant to 18 U.S.C. § 2703(d) (the “Order") in the above-referenced matter.

3. Attached hereto as Exhibit 2 is the December 14,2010 order of this Court issued
to Twitter pursuant to 18 U.S.C. § 2703(d) (the “Twitter Order”) in the above-referenced matter.

4. Attached hereto as Exhibit 3 is the January 5,2011 order of this Court unsealing
the Twitter Order.

5. Attached hereto as Exhibit 4 is the January 12,2011 preservation request issued to
Google pursuant to 18 U.S.C. § 2703(0 in the above-referenced matter.

6. On January 12,2011,1 spoke with several government attorneys regarding the
nondisclosure provisions in the Order. I notified the government that Google wished to

immediately give notice of the Order to its user and requested that the government agree to so
modify the Order. The government declined that request saying only that the Order involves a
different investigation than the one underlying the Twitter Order. No further explanation was
provided. The government offered to release Google from the notice constraint 90 days after it
produced, with a provision allowing the government to petition for a further extension. I
consequently notified the government that Google intended to file this motion to unseal the
Order and to modify its nondisclosure provisions so that Google could give immediate notice to
its user. We subsequently agreed on a schedule for filing and argument of this motion.

I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct

Executed this 18th day of January, 2011.

2

CERTIFICATE OF SERVICE

I hereby certify that on this 18th day of January, 2011, the foregoing document was sent via hand
delivery and email to the following persons:

Assistant United States Attorney

United States Attorney’s Office

Eastern District of Virginia

Justin W. Williams United States Attorney’s Building

2100 Jamieson Avenue

700 13th St., N.W., Suite 600
Washington, D.C. 20005-3960
Phone: 202-434-1627

Fax: 202-654-9106
JRoche@perkinscoie.com

Attorneys for Google Inc.

3

EXHIBIT 1

JAN. 5.2011 3:47PM

NO. 2750 P. 1/4

U.S. Department of Justice

United States Attorney

Eastern District of Virginia

Junto H', \nil!ms Vnlitd Simi/Uum/t BwWmz
HOOJamlcten Awmii
Altxathfrla, Wrjùifa 133H-SW
(70S) 399-3709

FACSIMILE TRANSMISSION
COVER PAGE

DATE: • //■S'/ii

TO: • ^1C

PHONE: Qwobciion

TOFAXNO.: (to) bU<3- 3*?3/gj0)^-
SENDER: fc&Pfasti fo

SENDER’S PHONE NO.: (b£> 2^\

SENDER’S FAX NO.: @0$)

NUMBER OF PAGES: 3 •Not Including Cover Pago*

Level of Transmitted Information:

Q Non-Sensitive Information
'g3 Sensitive But Unelauifled (SBU)

□ Limited Official Use (LOU)

Q Grand Juiy Information
El Tax Information

n Law Enforcement Information

□ Victim Witness Information

CONTENTS:

WARNING: Information attached to this cover sheet is sensitive U.S. Government Property.

Ifyou aie not die intended recipient of this information, disclosure, reproduction, distribution, or use of •
this information is prohibited. Please notify this office immediately at the above number to arrange for
proper distribution.

2

EXHIBIT 2

OEC. 14. 2010 4:14PM

«0. 2530 P. 1/4

U.S, Department of Justice

Untied States Attorney

Eastern District of Virginia

Jtutbi W, *W/ami Utaui SistnAttorniy't BuMùig
2lQOJtmk 1 Annul
Alexandrie, Vlrtlnk223U-S7H

(703) mwo

FACSIMILE TRANSMISSION
COVER PAGE

DATE:

ia|w|io

TO: 1Wc+(cr iWo; T/xtftf f

hz&lfartf io

PHONE:

TO FAX NO.:

SENDER:

SENDER’S PHONE NO.:
SENDER’S FAX NO.: .
NUMBER OF PAGES:

*Not Including Cover Page*

Level of Transmitted Information:

D Non-Sensitive Information

Sensitive But Unclaimed (SBC)
Limited Official Use (LOO)
n Grand Jury Information
O Tax Information
0 Law Enforcement Information
□ Victim Witness Information

CONTENTS:

WARNING: Information attached to this cover sheet is sensitive U.S, Government Property.

If you are not the intended recipient of this information, disclosure, reproduction, distribution, or use of
ihis Information is prohibited. Please notify this office immediately at the above number to arrange for
proper distribution.

DEC. 14.2010 4:15PM

NO. 2530 P. 2/4

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

)

IN RE APPLICATION OF THE )

UNITED STATES OF AMERICA FOR ) MISC.NO. IOGJ3793

AN ORDER PURSUANT TO )

18 U.S.C.§ 2703(d) )

___________________________________J Filed Under Seal

ORDER

This matter having come before the Court pursuant to an application under Title 18, United
States Code, Section 2703, which application requests the issuance of an order under Title 18,
United States Code, Section 2703(d) directing Twitter, Jnc„ an electronic communications
service provider and/or a remote computing service, located in San Francisco, California, to
disclose certain records and other information, as set forth in Attachment A to this Order, foe
Court finds that foe applicant has offered specific and articulable facts showing that there are
reasonable grounds to believe that the records or other information sought are relevant and
material to an ongoing criminal investigation.

IT APPEARING that foe information sought is relevant and material to an ongoing
criminal investigation, and that prior notice of this Order to any person of this investigation or
this application and Order entered in connection therewith would seriously jeopardize the
investigation;

IT IS ORDERED pursuant to Title 18, United States Code, Section 2703(d) that Twitter,

Inc. will, within three days of the date of this Order, turn over to the United States foe records
and other information as set forth in Attachment A to this Order.

DEC. 14.2010 4:15PM

NO. 2530 P. 3/4

IT IS FURTHER ORDERED that the Clerk of the Court shall provide the United States
Attomey’9 Office with three (3) certified copies of this application and Order.

IT IS FURTHER ORDERED that the application and this Order are sealed until
otherwise ordered by the Court, and that Twitter shall not disclose the existence of the
application or this Order of the Court, or the existence of the investigation, to the listed
subscriber or to any other person, unless and until authorized to do so by the Court

2

- DEC. 14.2010 4:15PM

HO. 2530 P. 4/4

ATTACHMENT A

You are to provide the foil * ...» " " ‘ , preferably as data files oa Cn-HnM

A, The following customer or subscriber account information for each account registered to or

1. subscriber names, user names, screen names, or ether identities;

2. mailing addresses, residential addresses, business addresses, e-mail addresses, and
other contact information;

3. connection records, or records of session times and durations;

4. length of service (including start date) and types of service utilized;

5. telephone or instrument number or other subscriber number or identity, including any
temporarily assigned network address; and

6. means and source of payment for such service (including any credit card or bank
account number) and billing records.

B. All records and other information relating to the account® and time period in Part A,

1. records of user activity for any connections made, to or from the Account, Including
tiie date, time, length, and method of connections, data transfer volume, user name,
and source and destination Internet Protocol addres$(es);

2. non-content information associated with the contents of any communication or file
stored by or for the accounts),'such as the source and destination entail addresses and

—------IP-addresses.—T------------------— ------------------------------— ------------

3. correspondence and notes of records related to the account®.

electronic media, or email

or otherwise by facsimile to

including:

EXHIBIT 3

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA
Alexandria Division

I- . 1 IL IH
JAN-5 20!!
CLCTK.us rns”i'f;Tcot tv M PXitv.'RiA \ ‘/y :r\

IN THE MATTER OF THE )

§2703(d) ORDER RELATING TO ) MISC. NO. 10GJ3793

ORDER TO UNSEAL THE
ORDER PURSUANT TO 18 U.S.C. S2703HA

This matter having come before the Court pursuant to an application under Title 18, United

States Code, §2703(d), it appearing 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, it is hereby ORDERED that the above-captioned Order of December 14, 2010
pursuant to 18 U.S.C. §2703(d) be UNSEALED and that Twitter is authorized to disclose such
Order, in all other respects, the Court’s Order of December 14,2010 remains in effect.

Date:

= 4



Alexandria, Virginia

UNITED STATES MAGISTRATE JUDGE

EXHIBIT 4

JAN. 12,2011 2:10PM

NO. 2813 P. 1/3

Fax Transmission

United States Attorney
Eastern District of Virginia
Justin W. Williams U.9. Attorney’s Office Building
210t}Jamks®onAve.

Aloramdrla, VA 22314

To Custodian of Records Google
Fox 650-649-2939; 650-249-3429
From Assistant United States Attorney Voice 703-296-3700
Fax 703-269-3781
Date January 12,2011 Pages 3. Including tills page

Subject Preservation letter under 18 U.S.C. sec. 2703(f)

JAN. 12.2011 2:10PM

NO. 2813 P. 2/3

U.S. Department of Justice

United States Attorney
Eastern District of Virginia

JnittnlVWüftaniUSAI!amiy'^OffiaBittdt\g

2IOOJm
Atom*!* VA 11314
PHONE: 7M-1ÎW7»

January 12,2011

Coogle

1600 Amphitheatre Parkway
Mountain View, CA 94043

Attn: Custodian of Records
Facsimile: 650-649-2939; 650-249-3429

Re: Request for Preservation of Records

Dear Google:

Pursuant to Title 18, United States Code, Section 2703(f), this letter is a formal request for the
preservation of all stored communications, records, and other evidencebyourpossession
regarding die following email account pending further legal process:^^HH|^H|(“the
Account”) November 2009 to the present * I

-frequesMhat younotrdiseiesfrthfrexistence ofthis request to the subscriberor anyother person, '
other than as necessary to comply with this request If compliance with this request might result
in a permanent or temporary termination of service to the Account, or otherwise alert any user of
the Account as to your actions to preserve the information described below, please contact me as
soon as possible and before taking action.

I request that you preserve, far a period of 90 days, the information described below currently in
your possession in a form that includes the complete record. This request applies only
retrospectively. It does not in any way obligate you to capture and preserve new information that
arises after the date of this request. This request applies to the following items, whether in
electronic or other form, including information stored on backup media, if available:

1. The contents of any communication or file stored by or for the Account and any
associated accounts, and any information associated with those communications or files,
such as the source and destination email addresses or IP addresses.

2. All records and other Information relating to the Account and any associated accounts
including die following:

a. subscriber name9, user names, screen names, or other identities;

JAM. 12.2011 2:10PM

NO. 2813 ?. 3/3

b. mailing addresses, residential addresses, business addresses, e-mail addresses, and
other contact information;

d. records of user activity for any connections made to or from tbe Account, including
the date, time, length, and method of connections, data transfer volume, user name,
and source and destination Internet Protocol addresses);

e. telephone records, including local and long distance telephone connection records,
caller identification records, cellular site and sector information, OPS data, and
cellular network identifying information (such as the IMSI, MSISDN, IMEI, MEID,
or ESN);

f. telephone or instrument number or other subscriber number or identity, including*
temporarily assigned network address;

g. means and source of payment for the Account (including any credit card or bank
account numbers) and billing records;

b. correspondence and other records of contact by any person or entity about the
Account, such as “Help Desk" notes; and

i. any other records or evidence relating to the Account.

If you have questions regarding this request, please call me at 703-29

c. length of service (including start date) and types of service utilized;

Sincerely,

ATTORNEY

tes Attorney

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

filed

)

IN RE APPLICATION OF THE )

UNITED STATES OF AMERICA FOR )
AN ORDER PURSUANT TO )

18 U.S.C. § 2703(d) )

________________________________)

2011 FE0 -3 p 3:5q

MISC. NO.

atV-u * r.-EJ/i uuurc i

ALEXANDRIA. VIRGINIA

10GJ3793

ll-DM-2

Filed Under Seal

To: John K, Roche, Esquire

Perkins Coie LLP
700 13th St., N.W., Suite 600
Washington, D.C. 20005-3960
PHONE: 202.434.1627
FAX: 202.654.9106
E-MAIL: JRoche@perkinscoie.com

You are hereby notified that on Wednesday, February 9,2011, at 11:30 a.m., a hearing
will be held before The Honorable Ivan D. Davis, Magistrate Judge on the Fourth Floor at the
U.S. District Court, Alexandria, Virginia, on the Government’s Motion to Continue Hearing filed

on February 3,2011; and Google, Inc.’s Motion to Modify 2703(d) Order filed on January 18,
2011.

Executed on ^^ l

Assistant United States Attorney

Justin W. Williams U,S. Attorney's Building

2100 Jamieson Avenue
■ Alexandria, VA 22314
Phone: 703-299-3700
Fax: 703-299-3981

ATTACHMENT B

filed

THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA^]] 23 P Î 5 b

Alexandria Division

CLERK US DISTRICT COURT
ALEXANDRIA. VIRGINIA

IN THE MATTER OF THE 2703(d) ORDER
AND 2703(f) PRESERVATION REQUEST
RELATING TO GMAIL ACCOUNT

Case No. H0GJ3793
ll-DM-2
UNDER SEAL

RESPONSE OF THE UNITED STATES TO GOOGLE’S MOTION
TO MODIFY 2703(d) ORDER FOR PURPOSE OF PROVIDING NOTICE TO USER

In its January 18,2011 motion and supporting memorandum, Google Inc. (“Google”)

asks this Court to amend its January 4,2011 order (the “Order”) to allow Google to provide

' V ■ ._____________

immediate notice of the Ofdef to the subscriber of the^^J^^^^Jhi account (the f
subscriber”), whose records are the subject of the Order. Google also asks that the Order be
unsealed; requests permission to discuss the Order with the^^^^ubscriber and his attorneys;

: thaMhe^^^Bsubscriber-be-given-2Q-days-fionvthe4ate-0fthe~Geurt-s-

order to file an appropriate response. For the reasons set forth below, the United States opposes
Google’s motion and requests that the Court’s current order of notice'preclusion be maintained
and that the Court not permit Google to provide the Subscriber with immediate notice of

the Order. However, as the United States explained to Google on January 12,2011, the United
States does not oppose a modification to the Order that would limit the non-disclosure period to
90 days, with a provision that would allow the government to petition the Court for an additional
extension of this period consistent with the requirements of 18 U.S.C. § 2705(b).

1

Factual & Procedural Background

On January 4, 2011, upon application of the United States pursuant to 18 U.S.C. §

2703(d), this Court issued the Order, requiring Google to disclose certain non-content subscriber

and transactional records for the

iccount. The contents of the subscriber’s

communications were not required. See Roche Decl., Ex. 1. The Order also, provided that “the

not disclose the existence of the application or this Order of the Court, or the existence of the
investigation, to the listed subscriber or to any other person, unless and until authorized to do so
by the Court.” See id.

Several weeks earlier, on December 14,2010, Magistrate Judge
had issued a different order, also pursuant to 18 U.S.C. § 2703(d), that required Twitter, Inc. to
disclose similar categories of non-content business records for several Twitter accounts,

that prohibited Twitter from disclosing the existence of the application, the Twitter Order, or the
existence of the investigation to any person, unless and until authorized to do so by the Court.
See id. After learning that Twitter would file a motion to modify the Twitter Order so it could
disclose it to its customers and subscribers, the government replied that although it was not
conceding the merits, it would voluntarily agree to move to unseal the Twitter Order to allow
such disclosure.

On January 5, 2011, after finding it was in the best interest of the investigation to permit
disclosure to its subscribers and customers, Magistrate Judge fl^^^^ranted the
government’s application to unseal the Twitter Order and authorized Twitter to disclose'it

application and this Order are sealed until otherwise ordered by the Court, and that Google shall

including a Twitter account under the name See Roche Deck, Ex. 2. This order (the

TT-witterJOxder^^ike-the-Ordeivwaaissued-imdensealand-Contained-a-nonr disclosure-provision.

2

(“Twitter Unsealing Order”). See Roche Decl., Ex. 3. The government sent the Twitter
Unsealing Order to counsel for Twitter on January 7, 2011.

On January 12, 2011, counsel for Google asked the government to agree to modify the
Order to allow Google to provide immediate notice of the Order to usejjj^^pand his legal
representative. See J. Roche Decl. cjf6. The government did not agree to Google’s proposed
modification and explained to Google’s counsel that the Order presented a different case than the
Twitter Order.1 The government told Google, however, that it would agree to a 90-day limit on
the non-disclosure period, subject to a provision that would allow the government to petition for
extensions if disclosure would seriously jeopardize the investigation or have an adverse result
listed in 18 U.S.C. § 2705. See Roche Decl, 6. Google declined to agree to the government’s
proposed modification of the Order and instead filed the instant motion on January 18,2011.

Argument

This Court should not modify its Order to permit Google to provide the^U subscriber
-with-immediate-notifieatioivorto-pennit-Google-to-ciiscuss-theOidenwith.th^^HH^ubscribei'—
and his attorneys. The Order should remain sealed at this time. The Order satisfies all statutory
and constitutional requirements, and the subscriber would not have a valid basis for
challenging it even if Google did provide him with notice. Furthermore, unsealing and
permitting disclosure at this time is not in the best interest of the investigation. Unsealing and

1 The government did not tell counsel for Google that “the Order involve[d] a different
investigation than the one underlying the Twitter Order.” Roche Decl. f 6; see also Google Mot.
at 3,7. Instead, when counsel for Google asked why the government was taking a different
position on Google’s request to modify the Order than it had taken on Twitter’s similar request,
the government responded, “It’s a different case.” This response was intended as a general
comment on the different circumstances surrounding the two Orders and was not intended to be
an assertion that the Orders related to different investigations.

3

permitting disclosure of the Twitter Order has already seriously jeopardized the investigation,
and the government believes that further disclosures at this time will exacerbate this problem.

I. The Order Was Properly Issued.

A. The Order Is Proper Under 18 U.S.C. § 2705(b).

As this Court has.already concluded, the non-disclosure provision of the Order is
appropriate under 18 U.S.C. § 2705(b). Under § 2705(b), the government may apply for an
order commanding the recipient of a 2703 (d) court order - in this case, Google - not to notify
any other person of the existence of the order for such period as the court deems appropriate.

See 18 U.S.C. § 2705(b). The court, in turn, shall issue the requested order “if it determines that
there is reason to believe, that notification of the existence of the... court'order will result in—

(1) endangering the life or physical safety of an individual;

(2) flight from prosecution;

(3) destruction of or tampering with evidence; * 18

—--------(4)-intimidation-o£potentiaLwitnessespor____________________________________________

(5) otherwise seriously jeopardizing an investigation or unduly delaying a trial.”

18 U.S.C. § 2705(b). The government’s original application, which remains under seal, already
provided this Court with reason to believe that notification would have one or more of these
adverse results. Based on this infonnation, the Court decided that it was appropriate to include a
non-disclosure provision in the Order. See Gov’t Ex Parte Submission, Ex. 1.

The government’s application, without more, provided sufficient basis for the Court to
conclude that notifying the^^^^ubscribcr of the Order will have one or more of the adverse
results listed in § 2705(b). The adverse results of disclosing the Twitter Order, including efforts
to conceal evidence and harassment (discussed in Part II), further confirm that disclosing the

4

Order will seriously jeopardize the investigation. Therefore, the non-disclosure provision in the
Order is proper under 18 U.S.C, § 2705(b).

B. The Order Is Constitutional.

Google suggests that the Order, which seeks limited subscriber information and
transactional records of Google but not the content of the subscriber’s communications, “may
raise significant free speech and other privilege issues,” Google Mot. at 10. But Google does not
explain what those issues are. First, Google does not claim that the Order interferes with any
First Amendment rights or other privileges that Google may have. See id. at 10-11. Second,
Google concedes that it “is not properly positioned to [assert First Amendment rights or other
privileges] on behalf of users.” Id, at 10. Third, although Google speculates that th^J
subscriber “may wish to assert First Amendment rights ... or other privileges or defenses to
which the user is entitled,” id. at 10, Google does not identify any specific arguments that the

subscriber might wish to make, much less assert that the Order is improper under the First
-Amen&nent-or-any other-prineipluoflaw^ee-Wr-at--l-0'l-l-.- Fppthe-reasons explained-beloWj-the
Order is proper, and neither the^H^ubscriber nor Google could mount a viable challenge,
First Amendment or otherwise, to the Order.

To begin with, even if the^(((pubscriber had notice of the Order, he would not be
entitled to bring a wide-ranging motion to vacate it. Although the Stored Communications Act
(18 U.S.C. §§ 2701-12) does authorize some judicial remedies for subscribers who seek to
challenge orders, see 18 U.S.C. § 2704(b), these remedies apply to legal process seeking the
content of the subscriber’s communications and do not apply to legal process for business

5

records under 18 U.S.C. § 2703(d), like the Order here.2 Instead, § 2703(d) provides remedies
only for service providers, and only then if “the records requested are unusually voluminous in
nature or compliance with such order otherwise would cause an undue burden on such provider.”
18 U.S.C. § 2703(d). The Stored Communications Act provides that the “remedies and sanctions
described in [the Act] are the only judicial remedies and sanctions for nonconstitutional
violations of [the Act].” Thus, Congress did not provide wide ranging remedies that would allow
subscribers, such a^jm to challenge non-content orders, such as the Order here.3

Even if the subscriber had standing and wished to assert a First Amendment challenge, it
would be meritless. As the Supreme Court has recognized, “neither the First Amendment nor
any other constitutional provision protects the average citizen from disclosing to a grand jury
information that he has received in confidence.” 4 Branzburg v. Hayes, 408 U.S. 665, 682

2 Even if the jH^p>ubscriber could use the “customer challenge” procedures in § 2704(b) to
bring a motion to vacate, he would have to convince the Court that there is no “reason to believe
that the law enforcement inquiry is legitimate and that the communications sought are relevant to

-thafinquiry'.”l-8-ÜTS.Cv§-2704(b)(4)—The^mjsubscribei-caimotmeet-thisstandard-=-the----

Court has already found that “records or other information sought are relevant and material to an
ongoing criminal investigation.” See Roche Decl., Ex. 1.

3 Congress’s intent that subscribers could challenge legal process seeking the content of their
communications, but not legal process seeking business records, is confirmed by reading the
Stored Communications Act as a whole. Section 2703 sets forth the legal process required to
obtain non-content business records. It expressly provides that subscribers are not even entitled
to notice that the government obtained their information. See 18 U.S.C. § 2703(c)(3). Section
2703(b), on the other hand, sets forth the legal process required to obtain contents of
communications. It expressly provides that notice to subscribers (albeit notice that may be
delayed) is required for legal process unless a search warrant is obtained.

4 Most cases that evaluate First Amendment challenges to the compelled disclosure of
documents involve subpoenas, rather than court orders. Court orders issued under 18 U.S.C. §
2703(d), like the Order, are similar to subpoenas because they also require the disclosure of
documents, but they are arguably more protective of citizens’ interests because they are subject
to prior judicial review and require a higher factual showing for issuance. See 18 U.S.C. §

' 2703(d). Accordingly, a party who challenges a § 2703(d) court order should be subjected to
standards that are at least as stringent as those applied to a motion to quash a subpoena.

6

(1972). This is true even if the ubscriber is “a journalist or engaged in other

constitutionally protected activities.”5 Google Mot. at 10. As the Supreme Court has concluded,

“the Constitution does not... exempt the newsman from performing the citizen’s normal duty of
appearing and furnishing information relevant to the grand jury’s task.” Id. at 691. Indeed,
journalists have no special privilege to resist compelled disclosure of their records, absent
evidence that the government is acting in bad faith. See In re Shain, 978 F.2d 850, 852 (4th Cir.
1992); Univ. of Pennsylvania v. E.E.O.C., 493 U.S. 182,201 n.8 (1990) (implying that “the bad-
faith exercise of grand jury powers” is the only basis for a First Amendment challenge to a
subpoena).

In this case, even if theH^Jsubscriber were to bring a First Amendment challenge, he
could not quash the Order because he could not show that the government has acted in bad faith,
either in conducting its criminal investigation or in obtaining the Order. The government
described the nature of its investigation in its application for the Order, and the Court had an

review by this Court, which concluded that it was proper to issue the Order because the
government “offered specific and articulable facts showing that there axe reasonable grounds to
believe that the records or other information sought are relevant and material to an ongoing
criminal investigation.” Roche Decl., Ex. 1; see also 18 U.S.C,-§ 2703(d). The government has
acted in good faith throughout this criminal investigation, and there is no evidence that either the
investigation or the Order is intended to harass the^U subscriber or anyone else. See United
States v. Steelhammer, 539 F.2d 373, 376 (4th Cir. 1976) (Winter, J., dissenting), adopted by the

5 The government does not concede that the ubscriber is a journalist.

"0

v The

government’s decision to pursue the records described in the Order was also subject to judicial

7

court en banc, 561 F.2d 539, 540 (4th Cir. 1977) (“[T]he record fails to turn up even a scintilla
of evidence that the reporters were subpoenaed to harass them or to embarrass their
newsgathering abilities .. .”)• Accordingly, even if the Order required theJIHsubscriber to
disclose his Google records himself, th|m subscriber would not have a colorable First
Amendment argument for quashing the Order.

The^m’subscriber’s potential challenges to the Order are even weaker because of the
Order’s limited scope. The Order requires Google to disclose certain of its business records
about the^m^ subscriber account, but it does not seek the content of any communication,
attempt to control or direct the. content of the subscriber’s speeeh, or impose direct
burdens on any journalistic or academic activities in which the J^^Jsubscriber may be
engaging. See Roche Deck, Ex. 1; Branzburg, 408 U.S. at 691 (requiring reporterto comply
with subpoena “involves no restraint on what newspapers may publish, or on the type or quality
of information reporters may seek to acquire,” nor does it threaten “a large number or percentage

ofnll e<>nfidential-nows-sources^)yl/w/v. of-Pennsylvania, 493-U.S^at-l-9-7--98-(subpoena-for-

academic papers does not impose a content-based or direct burden on university).

Indeed, the Order simply requires disclosure of “non-content” information, such as the
H subscriber’s name and address, the IP addresses associated with the^H subscriber’s
logins to the account, and the email addresses of those with whom the subscriber has
corresponded. See Roche Deck, Ex. 1; 18 U.S.C. § 2703(c). subscriber has no

Fourth Amendment privacy interest in any of this information and therefore could not
successfully challenge the Order under the Fourth Amendment, any more than he could
challenge it under the First Amendment. See, e.g., United States v. Christie, 624 F.3d 558, 574
(3d Cir. 2010) (IP addresses); United States v. Perrine, 518 F.3d 1196,1204 (10th Cir. 2008)

8

(subscriber information); United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008) (source or
destination addresses of email).

As discussed above, even if the^^|^ubscriber had standing to challenge the Order, he
has no viable arguments for quashing the Order. Google implies, however, that the potential
merit of a subscriber’s arguments is irrelevant, and that subscribers have some inherent right to
be notified when their records are obtained under § 2703 so that the subscribers “may decide
whether to object” to the disclosure, Google Mot. at 11. This assertion is contrary to the plain'
language of § 2703, pursuant to which subscribers are not entitled to notice when the government
obtains their records and information pursuant to § 2703(c). See 18 U.S.C. § 2703(c)(3) (“A
governmental entity receiving records or information under this subsection is not required to
provide notice to a subscriber or customer.”); In re Application of the United States for an Order
Directing a Provider of Electronic Communication Service to Disclose Records to the
Government, 620 F.3d 304,307 (3d Cir. 2010); In re Application of the United States for an

-0rder-P-ursuant to-l8~US;G. 270Jf$,-36-F.Supp,-2d430r432-(D.-Mass.--lS99).-^As further-

discussed above, the Order was issued under § 2703(c) because it seeks only records and other
information pertaining to thé^HMbubscriber, not including the contents of communications.
See Roche Deck, Ex. 1; 18 U.S.C. §§ 2703(c)(1)(B) and (c)(2) (authorizing government to use a
court order under § 2703(d) to obtain the records described in the Order). Accordingly, the
Jubscriber is not entitled to notice of the Order from the government, from Google, or
from anyone else. See S.E.C. v. Jerry T. O’Brien, Inc., 467 U.S. 735, 743 (1984) (“[Prior
Supreme Court] rulings disable respondents from arguing that notice of subpoenas issued to third
parties is necessary to allow a target to prevent an unconstitutional search or seizure of his
papers.”).

9

I

«I

Moreover, Google’s failure to directly assert its own First Amendment rights in its
motion is with good cause: Google has no viable First Amendment argument to make on its own
behalf. Courts regularly issue sealing orders, protective orders, and other non-disclosure orders
that preclude private parties from discussing matters before the court. See e.g., In re Application
of United States of America for an Order Pursuant to 18 U.S.C. § 2703(d) Directed to
Cablevision Systems Corp., 158 F.Supp.2d 644, 648-49 (D.Md. 2001) (holding that the
Electronic Communications Privacy Act implicitly repealed provisions of the Cable •
Communications Policy Act that required notice to a subscriber of a cable company service of a
court order directing disclosure of the subscriber’s personal information) (citing in support, 12
U.S.C. § 3409 (authorizing delayed notice for financial institutions); 18 U.S.C. §§ 2511(2)(a)(ii)
(prohibiting disclosure of wire interceptions); § 3123(d) (prohibiting disclosure of pen registers
or trap and trace devices)).

Indeed, 18 U.S.C. § 2705(b) was enacted almost twenty-five years ago, and to the

ngovemmenUs-knowledgerno-courthas-evei^held-that-itsproeeduresrtaike-eomply-with-the-

requirements of the First Amendment. See Electronic Communications Privacy Act of 1986, PL
99-508, § 201,100 Stat 1848 (1986). Furthermore, the government has already told Google that
it will agree to seek modification of the Order to limit the non-disclosure period to 90 days,
subject to possible court-ordered extensions, see Roche Decl. 6. This cures Google’s
complaint that the current Order has a “perpetual” or “indefinite” period of non-disclosure.
Google Mot. at 2,7, 8. Accordingly, even if Google had challenged the non-disclosure provision
based on its own First Amendment fights, this challenge would have failed.

For all of the reasons set forth above, the Order, including its non-disclosure and sealing
requirements, is proper in every respect, including under the First and Fourth Amendments, and

10

the government does not oppose limiting the duration of the non-disclosure period to 90 days,

subject to possible extensions consistent with the requirements of 18 U.S.C. § 2705(b).

II. The Disclosure of the Twitter Order Does Not Justify Disclosure of This Order,

Particularly When Unsealing the Twitter Order Already has Seriously Jeopardized
the Investigation

Google argues that because the government voluntarily unsealed and allowed disclosure
of the Twitter Order, the Court should do so here, particularly because both orders are part of the
WikiLeaks investigation, the existence of which has been publicly acknowledged. See Google
Mot. at 1, 2. Google is wrong. The government’s voluntary decision to move to lift the notice
preclusion aspect of the Twitter Order based upon its particularized assessment of the continuing
need for that preclusion was a reasonable exercise of its prosecutorial discretion. This previous
decision should not bind the government as to other orders. Moreover, the unsealing and
disclosure of the Twitter Order already has seriously jeopardized the investigation even though
the existence of the investigation had been publicly acknowledged. Unsealing and allowing
-discIosure-by-Google-willexaeerbate-the-haHn.—Indeed,un-lightofthe-eventsthat-followed-the—
unsealing and disclosure of the Twitter Order, had the government known then what it does now,
it would not have voluntarily filed the motion to authorize it.

The Twitter Unsealing Order was premised on the Court’s finding that at that time,
allowing disclosure of that order to Twitter’s customers and subscribers served the best interest
of the case. See Roche Decl. Ex. 3. The decision to move the Court to unseal the order was
based on the government’s assessment of the continuing need for notice preclusion for the

I

Twitter Order, including its estimation of the importance of the information sought to the
investigation, the resources that might be required to defend that order, and the expected
consequences of allowing disclosure. The decision was not based on a belief that the § 2705(b)

11

non-disclosure order and sealing were no longer legally justified. The government did not
concede the merits of Twitter’s planned motion. At this time, the government has not voluntarily
moved to modify the valid Google Order because it believes that disclosure and unsealing will
not serve the best interest of the case. So long as non-disclosure and sealing remain justified
under the standards set out by law, as it does here, a decision such as this falls squarely within
the government’s prosecutorial discretion, involving not only factors and considerations relevant
to the conduct of the ongoing criminal investigation that are ill-suited to judicial review, but also
theories protected by the attorney work product doctrine. See generally, Ex Parte Submission;
Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471,490 (1999) (quoting Wayte v.
United States, 470 U.S. 598, 607-608 (1985)) (issues that fall within the scope of prosecutorial .
discretion are “particularly ill-suited to judicial review”); see also United States v. Juvenile Male,
2010 WL 5158562 (4th Cir. 2010) (unpublished) (“The Government's certification that a
substantial federal interest exists is generally regarded as a matter of prosecutorial discretion, and

-wMle-this-deeision-ismotrimmunG-fromjudicialreviewr-wenccord4he.decisioivsubstantial________

deference.”) (citing United States v. Juvenile Male # 1, 86 F.3d 1314,1319 (4th Cir.1996));
Hichnanv. Taylor, 329 U.S. 495,510-511 (1947) (attorney work product covers legal theories
and strategy).

In any event, the government’s decision to move to lift the notice preclusion aspect of the
Twitter Order should neither bind its decisions with respect to the Order, nor should its decision
■ be used against it. Either result would discourage particularized analysis of the need for notice
preclusion and would also punish voluntary disclosure by the government, contrary to
established public policy favoring those results. Cf Fed.R.Evid. 408 advisory committee’s notes

12

(“As a matter of general agreement, evidence of an offer to compromise a claim is not receivable
in evidence as an admission of, as the case may be, the validity or invalidity of the claim.”).

Moreover, circumstances have changed in the investigation since - and in part as a result
of—the government’s decision to unseal and disclose the Twitter Order, demonstrating why this
Order presents a different case. Specifically, the government failed to anticipate the degree of
damage that would be caused by the unsealing and disclosure of the Twitter Order:'

(1) On January 7,2011, the same day the government sent the Unsealing Order to Twitter’s
counsel, a copy of the Twitter Order, including the judge’s name, prosecutor’s email
address, and the fax cover sheet, identifying the names of the prosecutor and a legal
assistant and the legal assistant’s telephone number, were posted on the Internet at
http://mobile.salon.com/opinion/greenwald/2011 /01 /07/twitter/index.html: See Gov’t
' Ex. 1.

(2)

One reason for sealing and ordering non-disclosure under Section 2705 in the Twitter
case, as well as here, Is'i

(3)

because it might cause suspects to change their patterns of behaviour, notify confederates
or flee. Once the Twitter Order was unsealed, the Twitter account holder with the
uscmamejm^nnounccd a change in his behavior and made a general announcement
to others who might potentially have evidence relevant to the investigation by posting a
message to Twitter on January 7, 2011, that stated “Do not send me Direct Messages -
My Twitter account contents have apparently been invited to the (presumably Grand
Jury) in Alexandria.” See Gov’t Ex. 2

Thus, despite the general, public knowledge of the WikiLeaks investigation Jj
apparently continued to use his Twitter account to receive Direct Messages until he had

13

actual knowledge of the specific investigative steps taken to obtain transactional records
from that account. This confirms the government’s representations in its current

evidence or otherwise try to disrupt the ongoing investigation.

(4) Because of the disclosure of the Twitter Order, a public campaign commenced,

pressuring providers to challenge non-disclosure orders to disclose compulsory process.

assume Google & Facebook also have secret U.S. government subpoenas. They make no
comment. Did they fold?” See Gov’t Ex. 3. On January 10, 2011, the Twitter account of

orders and whether other parties have silently complied with such orders. Hello
Facebook? Google?” See Gov’t Ex; 4; see also Wikipedia, “Twitter subpoena,”
http://en.wikipedia.ore/wiki/Twitter subpoena. Gov’t Ex, 5; P. Beaumont,

nrarket-for-consumer-privacy/ (“The tech world is abuzz with a remarkable display of

fighting and winning a motion to lift the gag order, which is how we know about the
case. (If the judge had believed government claims that lifting the gag would blow the
investigation, she could equally have rejected Twitter's motion.) Having obtained
permission, Twitter notified its users and promised to hand over nothing if they filed a
motion to quash within ten days. That is simply the gold standard of customer protection,

application for non-disclosure and indicates that the user might be willing to destroy

On January 8,2011, the Twitter account of

feeted, “Note that we can

[posted, “This matter does beg the question who else has gotten such court

backbone by Twitter in the

case. It deserves wider notice” ... “Twitter stalled,

14

enabling courts to balance the legitimate needs of prosecutors with the civil liberties of
their targets. It almost never happens.”);

http,7/www.wired.com/threatlevel/2011/01 /twitter/# (“ANALYSIS: Twitter introduced a
new feature last month without telling anyone about it, and the rest of the tech world
should take note and come up with its own version of it. Twitter beta-tested a spine.”);
hltp://www.fastcompaiiv.corn/17161QQ/whv-twitter-was-the-onlv-company-to-challenge-
thc-sccret-^^J^-subpoena.

(5) Because the Twitter Order was posted on the Internet, without redaction, an employee at
the U,S. Attorney’s Office was subjected to harassment over the Internet, including the

j

posting of her home address, and email messages, including the attached, see Gov’t Ex.

6. Time and resources were diverted from the continued investigation to increasing
security measures for prosecutors. This harassment may also make all government
witnesses reluctant to testify fully in the future, for fear of similar retribution.

--------TlTnsythexlTSclosure^andTmsealingafthe-TwitterOrderhas-seriousIyjeopardized-the——

investigation - candidly, much more than the government anticipated at the time it made its
decision to move to lift the notice preclusion aspect of the Twitter Order. Among other things,
the government confirmed that despite the public nature of the investigation, disclosure of the
particular investigative step at issue in the Twitter Order increased the risk that witnesses and
targets would tamper with or destroy evidence in relevant Twitter accounts, including by altering
their modes of communication to evade future investigative efforts.

The disclosure and unsealing also presented the unforeseen risk of witness intimidation.
Protecting witnesses from public exposure encourages them to voluntarily come forward and to
testify fully without fear of retribution. These two core principles underlie the need for secrecy

15

in the grand jury process. See United States v. Reiner, 934 F.Supp. 721, 723 (E.D.Va. 1996)
(citing Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211,219 (1979)). Unfortunately,
there are already indications that disclosure of the Twitter Order has encouraged providers - who
are also potential witnesses — to resist the government’s attempts to gather relevant user
information. The- government is aware of at least one other potential challenge by a provider to
the non-disclosure provision and sealing of another 2703(d) Order in'this case because of the
fall-out from the unsealing and disclosure of the Twitter Order. More can reasonably be
expected. Providers may fear that public exposure of their willing compliance with court orders
will hurt their reputation and therefore feel pressure to challenge non-disclosure orders. At the
same time, repeatedly unsealing and disclosing process during an ongoing investigation presents
a heightened risk of jeopardizing the investigation, potentially revealing each step the
government has taken and highlighting those that have yet to be taken. This would provide a
detailed investigative roadmap to targets and witnesses and make it easier to destroy evidence
“and change patterns of beliavioTto avoid detection

Finally, the disclosure and unsealing of the Twitter Order has already resulted in
harassment that disrupted the investigation by diverting resources and attention, as demonstrated
above. A similar reaction can be expected if disclosure and unsealing is authorized here. For all
of these reasons, the government has not agreed to disclosure of the Order. The non-disclosure
and sealing provisions of the Order remain legally justified, and disclosure is not in the best
interest of the investigation.6 To the contrary; if the government knew on January 4,2011 what
it does now, it would not have moved to unseal and authorize disclosure of the Twitter Order.

6 In this case, the government has offered to self-impose a 90 day limit on sealing, with the
ability to petition the court to extend as needed.

16

Conclusion

In conclusion, the court should deny Google’s motion to modify the Order. The Order,
including the provisions that order sealing and non-disclosure by Google, remain warranted more
than ever. Unsealing and disclosure of the Order would significantly jeopardize the
investigation.

Respectfully Submitted,

Assistant United States Attorney

17

CERTIFICATE OF SERVICE

I hereby certify that'a true and correct copy of the foregoing pleading was delivered on
this 28th day of January 2011 to the Clerk’s Office and that service will be made o.n the following
individuals by electronic mail and otherwise:

John K. Roche, Esquire

Perkins Coie LLP

700 13th St, N.W., Suite 600

Washington,D.C. 20005-3960

PHONE: 202.434.1627

FAX: 202.654.9106

E-MAIL: JRoche@perkinscoie.com

Assistant United States Attorney

18

GOVERNMENT EXHIBIT 1

DOJ subpoenas Twitter records of several WikiLeaks volunteer... Page 1 of 7

IS salon

° Latest Stories
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° Sections & Blogs

@UEmJS

Fri, 07 Jan 2011 17:08:00 ET

DOJ subpoenas Twitter records of
several volunteers

A federal court authorizes the DOJ to demand
sweeping information about the accounts of

AP

U.S. Attorney General Eric Holder.

° Blog:

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° Topics:

° WikiLeaks



i-tmM/Tfn 1 /HI /m/hirittw/m

1/98/9011

DOJ subpoenas Twitte'’ records of several volunteer... Page 2 of 7

(updated below - Update II - Update III)

Last night, -- a former | volunteer and current

member of the (mjParliament — announced (on Twitter) that she had
been notified by Twitter that the DOJ had served a Subpoena demanding
information "about all my tweets and more since November 1 st
2009." Several news outlets, including The Guardian, wrote about
[announcement.

What hasn't been reported is that the Subpoena served on Twitter -- which is
actually an Order from a federal court that the DOJ requested - seeks the
same information for numerous other individuals currently or formerly
associated with HBUI including
and U also seeks the same information for |

»Twitter account.

The information demanded by the DOJ is sweeping in scope. It includes all
mailing addresses and billing information known for the user, all connection
records and session times, all IP addresses used to access Twitter, all known
email accounts, as well as the "means and source of payment," including
banking records and credit cards. It seeks all of that information for the

period beginning November L 2009, through the present. A copy of the___

Order served on Twitter, obtained exclusively by Salon, is here.

The Order was signed by a federal Magistrate Judge in the Eastern District
of Virginia, and served on Twitter by the DOJ division

for that district. It states that there is "reasonable ground to believe that the
records or other information sought are relevant and material to an ongoing
criminal investigation," the language required by the relevant statute. It was
issued on December 14 and ordered sealed — he^, kept secret horn the
targets of the Order. It gave Twitter three days to respond and barred the
company from notifying anyone, including the users, of the existence of the
Order. On January 5, the same judge directed that the Order be unsealed at
Twitter's request in order to inform the users and give them 10 days to
object; had Twitter not so requested, it would have been compelled to turn
over this information without the knowledge of its users. A copy of the
unsealing order is here.

* / /m r\ ocilnn prma/nniniort/crrp.i=nw?llfl/9.0] 1/01/07/twitter/in... 1/28/2011

DO J subpoenas Twitter records of several

volunteer... Page 3 of 7

told me that as "a member of the Foreign Affairs Committee [of
Iceland's Parliament] and the NATO parliamentary assembly," she intends
to "call for a meeting at the Committee early next week and ask for the
ambassador to meet" her to protest the DOJ's subpoena for her records. The
other individuals named in the subpoena were unwilling to publicly
comment until speaking with their lawyer.

I'll have much more on the implications of this tomorrow. Suffice to say,
this is a serious escalation of the DOJ's efforts to probe, harass and
intimidate anyone having to do with^J^^^H Previously, ^PMIfas
well as ■■■■■ supporteriH^^HI — both American citizens -
- had their laptops and other electronic equipment seized at the border by
Homeland Security agents when attempting to re-enter the U.S.

UPDATE: Three other points: first, the three named producers of the
"Collateral Murder" video - depicting and commenting on the U.S. Apache
helicopter attack on journalists and civilians in Baghdad - were ^HHI|
m, and JH^B(whose name is misspelled in the DOJ's
documents). SinceH^^B^as had no connection to WikiLeaks for
severalmonths andl^^Hp3-assoeiation_kas dimioished substantially
over time, it seems clear that they were selected due to their involvement in
the release of that film. Second, the unsealing order does not name
either which means either that Twitter did not request

permission to notify them of the Subpoena or that they did request it but the
court denied it (then again, neither "1
are names of Twitter accounts, and the company has no way of knowing
with certainty which accounts are theirs, so perhaps Twitter only sought an
unsealing order for actual Twitter accounts named in the Order). Finally, •
and ■^■■intend to contest this Order.

UPDATE II: It's worth recalling — and I hope journalists writing about this
story remind themselves -- that all of this extraordinary probing and
"criminal" investigating is stemming from WikiLeaks' doing nothing more
than publishing classified information showing what the U.S. Government is
doing: something investigative journalists, by definition, do all the time.

. //-

,uUq eloign pAmyUnirm/errpprvuraIrl/9f) 11/01/07/iwifrp.ir/iri 1/78/7.01 1

DOJ subpoenas Twitter records of several volunteer... Page 4 of 7

i

And the key question now is this: did other Internet and social network
companies (Google, Facebook, etc.) receive similar Orders and then quietly
comply? It's difficult to imagine why the DOJ would want information only
from Twitter; if anything, given the limited information it has about users,
Twitter would seem one of the least fruitful avenues to pursue. But if other
companies did receive and quietly comply with these orders, it will be a
long time before we know, if we ever do, given the prohibition in these
orders on disclosing even its existence to anyone.

UPDATE III:

I Interior Minister, Ögmundur Jönasson, described

the DOJ's efforts to obtain the Twitter information of a-

|as "grave and odd." While suggesting some criticisms

of he added: "if we manage to make government transparent

and give all of us some insight into what is happening in countries
involved in warfare it can only be for the good?' The DOJ's investigation

anyone supporting criminalize journalism that exposes

what the U.S. Government does — is one of the most extreme acts yet in the
Obama administration's alwavs-escalating war on whistleblowers, and
shows how just excessive and paranoid the administration is when it comes
to transparency: all this from a President who ran on a vow to have the
"most transparent administration in history" and to "Protect
Whi stleblowers."

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Jitfn : Urn obi 1 e .salon.com/oninion/greenwald/2011/01/07/iwiiter/in... 1/28/2011

U tu. 14.2010 4; 14PM

NO. 2530 P. 1/4

U.S. Department of Justice

United States Attorney
Eastern District of Virginia

Justin Wi Williams United Status Attorney's Building
21Q0 Jamieson Avenue
Alexandrie, Virginia 22314-5794
(705) 299-3700

FACSIMILE TRANSMISSION
COVER PAGE

DATE: (¿i||£f-|lO

TO: twitter Attn; Trust
PHONE!

TO FAX NO. ; (¿¡-¡Ç)

SENDER: HHHi, hv&ftfa/ff' Tfc>

SENDER’S PHONE NO.: 70$ 'JflMHaft

(f

SENDER’S FAX NO,;
NIMBER OF PAGES:

703

*Not Including Covet Page4'

Level of Transmitted Information;

D Non-Sensitive Information

Sensitive But Unclassified (SBU)
Limited Official Use (LOU)

D Grand Jury Information
Q Tax Information
H Law Enforcement Information
□ Victim Witness Information

CONTENTS:

WARNING: Information attached to tills coyer sheet is sensitive U.S. Government Property.

If yon are not the intended recipient of this information, disclosure, reproduction, distribution, or use of
this information is prohibited. Please notify this office immediately at the above number to arrange for
proper distribution,

DEC. 14.2010 4; 15PM

NO. 2530 P. 2/4

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

IN RE APPLICATION OF THE )

UNITED STATES OF AMERICA FOR ) MISC.NO. 10GJ3793

AN ORDER PURSUANT TO )

18 U.S.C.§ 2703(d) )

. ) Filed Under Seal

ORDER

' This matter having come before the Court pursuant to an application under Title 18, United
States Code, Section 2703, which application requests the issuance of an order under Title 18,
United States Code, Section 2703(d) directing Twitter, Inc., an electronic communications
service provider and/or a remote computing service, located in San Francisco, California, to
disclose certain records and other information, as set forth in Attachment A to this Order, the
Court finds that the applicant has offered specific and articulable facts showing that there are
"reasonable grounds to believe that the records or other information sought are relevant and
material to an ongoing criminal investigation.

IT APPEARING that the information sought is relevant and material to an ongoing
criminal investigation, and that prior notice of this Order to any person of this investigation or
this application and Order entered in connection therewith would seriously jeopardize the
investigation;

IT IS ORDERED pursuant to Title 18, United States Code, Section 2703(d) that Twitter,
Inc. will, within three days of the date of this Order, turn over to the United States the records
and other information as set forth in Attachment A to this Order.

DEC. 14,2010 4:15PM

NO. 2530 P. 3/4

IT IS FURTHER ORDERED that the Clerk of the Court shall provide the United States
Attorney’s Office with three (3) certified copies of this application and Order,

IT IS FURTHER ORDERED that the application and this Order are sealed until
otherwise ordered by the Court, and that Twitter shall not disclose the existence of the
application or this Order of the Court, or the existence of the.investigation, to the listed
subscriber or to any other person, unless and until authorized to do so by the Court.

2

DtC. 14.2010 4; 15PM

NO. 2530 P, 4/4

ATTACHMENT A

You are to provide the following information, if available, preferably as data files on CD-ROM,

electronic media, or email |

i or otherwise by facsimile to |

A. The following customer or subscriber account information for each account registered to or

associated with l ____________

• for the time period November 1,2009 to present:

1. subscriber names, user names, screen names, or other identities;

2. mailing addresses, residential addresses, business addresses, e-mail addresses, and
other contact information;

3; connection records, of records of session times and durations;

4. length of service (including start date) and types of service utilized;

5. telephone or instrument number or other subscriber number or identity, including any
temporarily assigned network address; and

6. means and source of payment for such service (including any credit card or bank
account number) and billing records.

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

1. records of user activity for any connections made, to or from the Account, including
the date, time, length, and method of connections, data transfer volume, user name,
and source and destination Internet Protocol addresses);

2. non-content information associated with the contents of any communication or file
sîiirêcfbjror forthQ’account(s)p}Uch'as-the-source-and-destinafion-emaiI-addressesand-
IP addresses.

3. correspondence and notes of records related to the account(s).

GOVERNMENT EXHIBIT 2

I



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Login Join Twitter!

Do not send me Direct
Messages - My twitter account
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>VOJ Hi* I -»p i\r v\l -ACbl

RsvtiY^e!«! by 77 peojrfe

©2011 Twitter About Us Contact Blog Status Resources API Business Help Jobs Terms

I

GOVERNMENT EXHIBIT 3

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1kttefA dtnian Kl&PWvax

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GOVERNMENT EXHIBIT 4

I

Page 2 of 8

trying to save the wounded, and you wake up the next day a nefarious left-wing terror activist-adjudant secretly spending millions on web hosting. I
wonder what i'll be tomorrow.

January 12lh, 2011 - 02:07141 comments
Please share; g| gj $} %■ 5,'vJ j£j

On the Twitter court order

Dear journalists,

■Yet again I am being inundated with your e-mails, text messages, phone tails and unannounced house visits. (The latter is new, unwelcome and the
fastest way to get a non-expiring entry on my media blacklist,)

I could easily spend all my time answering the same questions will'» the same answers instead of taking some time to think for myself. This is not your
fault. I can see there’s a story here and you need to cover It. I Just hope you’ll forgive me for writing down my thoughts just once on this blog. I realize you
may “just have a few questions“ or desperately need my voice or rootage of my talking head, but Til most likely still point you to this text. It’s nothing
personal.

What happened?

On December 14 of 2010, the US Department of Justice has had a court order Issued to force Twitter to send them various bits of infonnation regarding
my Twitter account as well as of the twitter accounts of ^**HMHSBP|HlRBFSplll*6W*BWIW6wlllhei6dSHHB|8iiBih,n my
previous blog post, I have erroneously referred lo Ihls order as a subpoena, which itisnTrm not a US lawyer, but soma apparently profound thou3his
about various aspects of this order can be found here.

I found out about the order because Twitter did the right thing and successfully fought for a second court order so they were able to tell us. The e-mail
from twitter also says we have ten days to announce that we’re fighting this In court or otherwise they’ll give the DOJ the requested informalion. I’ll write
more about Twitter's role soon.

Apparently someone thinks that whatever records Twitter has regarding my account am “relevant and material lo an ongoing criminal investigation“. It is
not clear from the documents that have presently been made public what my role In tills apparent investigation Is.

So what does Twitter have on me?

Basically my tweets, which are publicly accessible, and the IP-numbers I connected from. I don’t use Twitter all that much and for convenience my tweets
are generally posted through a plugin on this blog. I have never sent or received private messages on twitter. In other words; what Twitter has on me is
unspectacular.

This matter does beg the question who else has gotten such court orders and whether other parties have silently compiled with such orders. Hello
Facebook? Google?

Why did this happen?

I don’t know. But from the list of names we can speculate this has something to do with tho release of the “Collateral Murder" video in april of 2010. That
video, shot from a US helicopter over Baghdad, shows the shooting of a Reuters photographer and subsequently of ilia civilians that try to rescue him. I
travelled to Iceland to help out with the preparations for disseminating (his video. I feel, probably like most people that saw the video, (hat showing that
~videcrserved-thp-irnportant-pufposeof-shinlngllghtonthe-hlddenraal]ties-of.presenWayjiva£._________________________________

The entire process of releasing this video is ridiculously well-documented as Rafft Khatchadourian, a journalist for The New Yorker, was with us the whole
time. I recommend his article for an in-depth look at what, happened. For a broader look qt my life over the past year or so, 1 recommend reading a
keynote speech I delivered in Berlin a few weeks ago.

So what am ! going to do now?

Being involved in a criminal Investigation, and especially one which Is likely to have huge political pressure behind It, is a very serious matter. So I am
talking to lawyers, trying to better understand what is going on and I am weighing my options. Frequent readers of this blog will likely be the first to know If
I have something new to say.

January 10th. 2011 -00:41 1109 commenls
Please share: S3 £fj tj* ‘w /» 3S *._/

US DOJ wants my twitter account info

It’s a warm and fuzzy feeling to know that somewhere, far away, people are thinking about you. Last night I received this rather interesting e-mail from
twitter:

Kessel, Jan-0711:20 am (PST):

Dear Twitter User

We are writing to Inform you that Twitter has received legal process requesting information regarding your Twitter account)
copy of the legal process is attached. The legal process requires Twitter to produce documents related to your account

A

Please be advised ihat Twitter will respond to this request in 10 days from the date of this notice unless we receive notice from you that
a motion to quash the legal process has been filed or that this matter has been otherwise resolved.

To respond to this notice, please e-mail us at .

This notice Is not legal advice. You may wish to consult legal counsel about this matter. If you need assistance seeking counsel, you
may consider contacting the Electronic Frontier Foundation «contact info removed? or the ACLU «contact info removed?.

1/27/2011

government EXHIBIT 5

Twitter subpoena - WiHpedia, the free encyclopedia Page 1 of 8

Twitter subpoena

From Wikipedia, the free encyclopedia

On 14 December 2010 the United States Department of Justice issued a
subpoena accompanied by a national security letter to Twitter in relation to
ongoing investigations ofHHHK1-1^ While only five people were
individually named, according to lawyer Mark Stephens the order effectively
entailed the collection in relation to criminal prosecution of the personal
identifying information of over six hundred thousand Twitter users, namely
those who were "followers" of Twitter appealed against

the accompanying so-called gag order in order to be able to disclose its

existence to its users, and was ultimately successful in its appeal.

Subsequent reactions included the discussion of secret subpoenas in the U.S.,
[7 J criticism of the particular subpoena issued,[7M9] an immediate,[4]
temporary ^ 0.5 percent reduction in the number of Twitter followers of

and calls for the recognition and emulation of Twitter's stance.[11^

Contents
- ■ 1 Chronology ■ 1.1 Subpoena issued with accompanying gag order ■ 1.2 Appeal and publication of the subpoena ■ 1.3 Users' opposition to the subpoena ■ 2 Subsequent reactions ■ 3 See also ■ 4 References ■ 5 External links

htto ://en. wilcip edia. org/wiki/T witter_subpoena

1/27/2011

Twitter subpoena - Wikipedia, the free encyclopedia

Page 2 of 8

Chronology

Prior to the December 2010 subpoena relating to Twitter had

received at least one subpoena for information about its users. Just after the
Attorney-General of the US state of Pennsylvania Tom Corbett was elected as
governor of Pennsylvania, it was revealed that he had issued a subpoena
against Twitter to demand personal information on two users who criticised
him.1-121 The Philadelphia Inquirer claimed that the subpoena was issued
because of the two users' criticisms of Corbett.1-12-1 Corbett's spokesperson said
that the subpoena was issued as "part of an ongoing criminal investigation".[12]
The two users were helped by Public Citizen and the American Civil Liberties

Union (ACLU) in opposing the subpoena.^131 The subpoena was "dropped" by
the Attorney-General's office,'-13-1

Subpoena issued with accompanying gag order

On 14 December 2010 the U.S. Department of Justice issued a subpoena
directing Twitter to hand over information in accordance with 18 USC § 2703
(d) (http://www.law.comell.edu/uscode/uscodel 8/usc_sec 18 00002703—-

the existence of the subpoemnvithout prior authorization. Issued in relation to
ongoing investigations of BBMBi named were M

|K'

requisite information included their user names^aaressesUelepnone
numbers, bank account details, and credit card numbers.121

(lawyer Mark Stephens argued that131 since the application also
extended to destination email addresses and IP addresses for any
communication stored for the named accounts, personal identifying
information was to be collected for some six hundred and thirty-four thousand
followers offl^^^HH Twitter feed.111121141

| alleged it had evidence suggesting similar subpoenas had been
issued to Google and Facebook,1141 and lawyer Mark Stephens said that
similar information had been sought not only from Google and Facebook but



rv.-rrAi/i LA/Twitter çnlmnp.nfl

1/27/7.011

Twitter subpoena - WiWpedia, the free encyclopedia

Page 3 of 8

also from EBay's Skype unit1-1-1 HHB^alled f°r Google and Facebook to
unseal the subpoenas if they had received them/141 but no spokespeople were
available to comment/11

Twitter applied to notify its users of the issue of the subpoena/5-^151^61 On 5
January 2011 it was notified of success, in its appeal/61 allowing the company
to inform its users and ttMuv^hem ten days in turn in which to appeal/151
After Twitter informed she released a message via the micro-

blogging site that the "USA government wants to know about all my tweets
and more since november 1st 2009. Do they realize I am a member of
parliament in Iceland?"[91

Aden Fine of the ACLU said that "Twitter’s e-mail indicated that it had not yet
turned over to the U.S. government any records that prosecutors
requested."1-171

Users’ opposition to the subpoena

Among those specifically named by the subpoena,

171 all stated that they would oppose it. Lawyer

Aden Fine of the ACLU participated in defending those subpoenaed/171

stated that she had contacted the Icelandic Minister of Justice and
ights and commented that the "U.S. government is trying to

luman

criminalize whistleblowing and publication of whistleblowing material."1-171

Subsequent reactions

- The New York Times observed that the US government issues over fifty
thousand such requests for information each year, typically accompanied by
the so-called gag order/71 linking the case to how "1986 Privacy Law is
Outrun by the Web"/18] Nicholas Merrill, the first to file a constitutional
challenge against the use of national security letters, describes this as "a
perfect example of how the government can use its broad powers to silence

Viu-n• //pn Awik-ineflia.ore-/wiki/Twitter subpoena

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Page 4 of 8

people".^ Lawmakers in Iceland criticised the subpoena as an instance of
overreach.1-8^1911-91 |^m|lawyer,-Mark Stephens, interpreted the subpoena
as a sign that US authorities were desperate to develop a criminal case against
9IIHH He stated that the subpoena was an attempt to "shake the electronic
tree in the hope some kind of criminal charge drops out the bottom of it."^14-*

Juan Cole, a historian of the modem Middle East and South Asia, described
the subpoena as "a fishing expedition and legally fishy in that regard" that "is
being pursued by the Obama administration out of tenor that further massive
leaks will be made public."1701 He contrasted the legal action against people
associated with fl^f^HWith the lack of legal actions against "Bush
administration omcials^uch as Dick Cheney, who ordered people tortured
[and] have not been in any way inconvenienced by Mssrs. Obama and
Holder. "[20] Cole suggested that users of social media should shift from
Facebook and Twitter that have "internet monopolies" and "are in turn tools of
US government control" to social media based in Europe or the Global South.

list of 637,000 followers on Twitter dropped by 3,000 in the
hours following the announcement of the US Department of Justice action
and grew to 650,000 as of 13 January 2011J101

Professor of Law Ben Saul argued that the US had been compelled to attempt
to obtain information on citizens of other countries through action against its
own companies due to its lack of overseas law enforcement powers,
suggesting that "the real question is how will other countries react... will
other governments try to do things to shut down this kind of investigation?'^211
Members of the European Parliament from the Netherlands, Romania and the
UK have questioned whether US 'snooping' on the Twitter accounts of those
linked with WikiLeaks is in violation of European privacy laws.[221[23]

The Electronic Frontier Foundation has since, comparing their law
enforcement policies, stressed "how important it is that social media
companies do what they can to protect the sensitive data they hold from the
prying eyes of the government" Wired staff writer Ryan Singel said that

Twitter's "action in asking for the gag order to be overturned sets a new

//,

an ai

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Twitter subpoena - Wikipedia, the free encyclopedia.

Page 5 of 8

precedent that we can only hope that other companies begin to follow" and
summarised his point of view by saying "Twitter beta-tested a spine" and that
Twitter's response should become an "industry standard".1-1^

m Foreign Intelligence Surveillance Act - US Act of 1978, preventing
spying on US citizens without a court order
h Electronic Communications Privacy Act - US Act of 1986, before
widespread email and cellphone usage
m PATRIOT Act - US Act of 2001, introducing counter-terrorism measures

■ American Civil Liberties Union v. Ashcroft (2004) - first constitutional
challenge of US PATRIOT Act national security letter provisions

■ Information sensitivity

References

1. /\abcde Larson, Erik (10 January 2011). "US Twitter Subpoena on WikiLeaks is
Harassment, Lawyer Says" (http://www.bloomberg.com/news/2011-01-10/u-s-
twitter-subpoena-on-'^m(f'is-harassment-lawyer-says.html). Bloomberg.
http ://www.bloomberg.com/news/2011-01-1O/u-s-twitter-subpoena-on-wikileaks-
is-harassment-lawyer-says.html. Retrieved 10 January 2011.

2. a abed ■Salon. Archived horn the original

(http://www.salon.com/news/opinioii/glenn_greenwald/2011/01/07/twitter/subpoe:
on 11 January 2011. http://www.webcitation.org/5vfUQlMUS. Retrieved 10
January 2011.

3. A a h Whittaker, Zack (8 January 2011). "US Subpoenas Wikileaks Tweets, and
Why This Could Affect You" (http://www.webcitation.org/5vflcLfORu). ZDNet.
Archived from the original (http://www.zdnet.com/blog/igeneration/us-subpoenas

tweets-and-why-this-cou ld-affect-you/7610) on 11 January 2011.
http.7/www.webcitation.org/5vflcLiORu. Retrieved 12 January 2011.

4. ^abcde staff writer (10 January 2011). "US Turns to Twitter as WikiLeaks
Chase Continues" (http://www.webcitation.org/5vfhryW49). The Sydney
Morning Herald. Archived from the original

(hltp://www.smh.com.aii/technology/technology-news/us-iurns-to»twitter-as-
wilcileaks-chase-contmues-20110109-19jy5.html) on 11 January 2011.
http://www.webcitation.org/5vfhryW49. Retrieved 11 January 2011.

!1_V



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5. A a b Sonne, Paul (10 January 2011). "U.S. Asks Twitter for

Data" (http://online.wsj.com/article/SB1000142405274870448270457607208178i

The Wall Street Journal.

http://online.wsj.com/article/SB1000142405274870448270457607208178825156:

Retrieved 10 January 2011.

6. A a b "Twitter Unsealing Order" (http://www.webcitation.org/5vfUjT39u) (PDF).

s/201 l/01/Twitter_Unsealing_Order.pdf) on 11 Januaiy 2011.
http://www.webcitation.org/5vfUjT39u. Retrieved 11 January 2011.

7. a « * c ^registration required) Cohen, Noam (9 January 2011). "Twitter Shines a
Spotlight on Secret F.B.I.

Subpoenas" (http://www.nytimes.eom/2011/01/10/business/media/101ink.html?
partner=rss&emc=rss) . The New York Times.
http://www.nytimes.eom/2011/01/10/business/media/101ink.html?
partner=rss&emc=rss. Retrieved 10 Januaiy 2011.

8. A “ h Connor, Richard PMfenuar^Ol 1). "Iceland Blasts US Demand for
Lawmaker's Details in m^HHProbe" (http://www.dw-
world.de/dw/article/0„ 1475828^0.html) . Deutsche Welle, http://www.dw-
world.de/dw/article/0„14758284,00.html. Retrieved 10 January 2011.

9. A a b c Rushe, Dominic (8 Januar^0H)/|kelandic MP Fights US Demand for
Her Twitter Account Details — ^^m^^^rands Efforts by US Justice
Department To Access Her Private Information 'Completely
Unacceptable'" (http://www.guardian.co.uk/media/2011/jan/08/us-twitter-hand-

—icelmdic^ikileaks-messages)rrJ^etj«ar<7/a77^
http://www.guardian.co.uk/media/2011/jan/08/us-twilter-hand-icelandic-
wikilealcs-messages. Retrieved 10 January 2011,

10. ^^’GeDshort, timely messages from

I" (http://www.webcitation.org/5viLYPKUX) . Twitter. 13 Januaiy
2(L^^rchived from the original (http://twitter.com/wildleaks) on 13 January
2011. http://www.webcitation.org/5viLYPKUX. Retrieved 13 January 2011.

11 A ab Ryan(jo January 2011). "Twitter's Responseto|

Subpoena Should Be the Industry

Standard" (http://www.webcitation.org/5vflixhys) , Wired. Archived from the
original (http://www.wired.com/tlneatlevel/2011/01/twitter/) on 11 January 2011.
http://www.webcitation.org/5vfhxhys. Retrieved 11 January 2011.

12. A “ b c Staff writer (20 May 2010). "Corbett Subpoenas Twitter for Critics'
Names" (http://www.webcitation.org/5vfac4IAo) . The Philadelphia Inquirer.
Archived from the original (http://www.philly.com/philly/blogs/our-
money/Corbett_subpoenas_Twitter for_critics_names.html) on 11 January 2011.
http://www.webcitation.org/5vfac4IAo. Retrieved 12 January 2011.

. Archived from the original (http://rop.gonggri.jp/wp-

http://en. wikipedia. org/wiki/Twitter subpoena

1/27/2011

Twitter subpoena - WiMpedia, the tree encyclopedia

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13. A a h Rravets, David (21 May 2010). "Pennsylvania AG Dropping Twitter

Subpoena" (http://www.webciiation.org/5vfaJKgBE) . Wired. Archived from the
original (http://www.wired.com/threaileveJ72010/05/iwiiter-subpoena-2/) on 11
January 2011. http://www.webcitation.org/5vfaJKgBE. Retrieved 12 January

out-into-public-realm) on 11 January 2011.

http://www.webcitation.org/5vfW251ha. Retrieved 12 January 2011,

15. A a b Greenwald, Glenn. "DOJ Subpoenas Twitter Records of Several

Volunteers" (http://www.webcitation.org/5vfVUxx8j) . Salon. Archived from the
original

(http://www.salon.com/news/opinion/glenn_greenwald/20! 1/01/07/twitter) on 11
January 2011. http://www.webcitation.org/5vfVUxx8j. Retrieved 10 January

Unseal US Subpoenas" (http://www.g ik/media/201 l/jan/08/us-twitter-

hand-icelandic-wikileaks-messages). The Guardian.
http://www.guardian.co.uk/niedia/2011/jan/08/us-twitter-hand-icelandic-
■-messages. Retrieved 10 January 2011.

17. ^^^^Hosenball, Mark (11 January 2011). 'fliHHI Activists May Seek To
Quash Demand for Docs" (http://www.webmTatroh7org/5viiyscBG). Reuters.
Archived from the original

(http://www.reuters.com/article/idUSTRE70A5ZT20110111) on 11 January
2011. http://www.webcitation.org/5vflyscBG. Retrieved 12 January 2011.

18. A "1986 Privacy Law is Outrun by the

Web" (http://www.nytimes.com/2011/01/10/technoIogy/lOprivacy.html? ,
partner=rss&emc=rss) . The New York Times.
http://www.nytimes.coin/2011/01/10/teclinology/10privacy.html?
partner=rss&emc=rss. Retrieved 13 January 2011.

19. A Menn, Joseph et al. (8 January 2011). "Iceland Protests over US Probe of
Lawmaker" (http://www.ft.eom/cms/s/0/7edd3e2a-lb52-l le0-868c-
00144feab49a.html#axzzlAdqdyPId) . The Financial Times.
http://www.ft.eom/cms/s/0/7edd3e2a-lb52-l le0-868c-
00144feab49a.html#axzzlAdqdyPId. Retrieved 10 January 2011.

20. A a b Cole, Juan (8 January 2011). "DOJ Subpoenas Twitter Account of

Volunteer and Now (http://www.webcitation.org/5vfcfKKYI) . Juan

Cole. Archived from tile original (http://www.juancole.com/2011/01/doj-
subpoenas-twitter-account-of volunteer-and-now-iceland-mp.html) on

2011.

14. A a b c Yost, Pete; Salter, Raphael G. (8 January 2011). m^^^ubpoenas
Spill Out into Public Realm" (http://www,webciiation.org/5vfW251ha) .
Associated Press (via Toronto Star). Archived from I1

(http://www.tliestar.com/news/world/article/918606- subpoenas-spill-

2011.

16. A Beaumont, Peter (8 January 2011).

Demands Google and Facebook

1/97/7011

Twitter subpoena - Wikipedia, the free encyclopedia Page 8 of 8

11 January 2011. http://wvvw.webcitation.org/5vfciKKYI. Retrieved 12 January

2011.

21. A Sherington, Greg (11 January 2011). "US Subpoena of Iceland Twitter
Accounts1' (http://sydney.edu.au/news/law/436.html?
newscategoryid=67&newssioryid=6261) . Sydney Law School.
http://sydney.edu.au/news/Iaw/436.html?newscategoiyid:=67&newsstoryid=:6261.
Retrieved 13 January 2011.

22. A "Anonymous urges global protests" (http://www.bbc.co.uk/news/technology-

. 12191486) . BBC. http://www.bbc.co.uk/news/technology-12191486. Retrieved
17 January 2011.

23. A "ALDE Calls on Commission to clarify issue of US Government )
subpoenas" (http://www.alde.eu/press/press-and-release-news/press-
release/article/alde-calls-on-commission-to-clarify-issue-of-us-government-
wikileaks-subpoenas-36732/) . Alliance of Liberals and Democrats for Europe.
http://www.alde.eu/press/press-and-release-news/press-release/article/alde-calls-
on-commission-to-clarify-issue-of-us-governmentjm^H-subpoenas-36732/.
Retrieved 17 January 2011.

24. A "Social Media and Law Enforcement: Who Gets What Data and
When?" (http://www.eff.org/deeplinks/2011/01/social-media-and-law-
enforcement-who-gets-what). Electronic Frontier Foundation.
http://www.eff.org/deeplinks/2011/01/social-media-and-law-enforcement-who-
gets-what. Retrieved 22 January 2011.

External linKs : 7

■ Twitter Help Center: Guidelines for Law Enforcement
(http://support.twitter.com/entries/41949-guidelines-for-law-
enforcement)

Retrieved Rom "http://en.wikipedia.org/wild/Twitter subpoena"

Categories: Privacy of telecommunications 1 Twitter | WikiLeaks_________________

■ This page was last modified on 26 January 2011 at 21:04.

■ Text is available under the Creative Commons Attribution-ShareAlike
License; additional terms may apply. See Terms of Use for details.
Wikipedia® is a registered trademark of the Wikimedia Foundation, Inc.,
a non-profit organization.

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1/97/9011

t

GOVERNMENT EXHIBIT 6

You guys are fucking nazis trying to controll the whole fucking world.
Well guess what.

i

WE DO NOT FORGIVE.

WE DO NOT FORGET.

EXPECT US.

1

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

2011 JAM 18 p t2= 5s

IN RE 2703(d) ORDER AN® 2703(S) ) Misc. No. 10GJ§$|K JS DISTRICT COURT

PRESERVATION REQUEST RELATING ) g «ANURIA. VIRGINIA

TO GMAIL ACCOUNTmmp ) FILED UNDER SEAL

NOTICE OF HEARING

PLEASE TAKE NOTICE that, by agreement with the United States Attorney’s Office
and subject to consultation with chambers, on February 2,2011 at 9:00 a.m., or as soon
thereafter as possible, Google Inc. will bring on for hearing its Motion to Modify 2703(d) Order

for Purpose of Providing Notice to User. This motion will be heard in the Albert V. Bryan
United States Courthouse, 401 Courthouse Square, Alexandria, VA 22314.

Phone: 202-434-1627
Fax: 202-654-9106
JRoche@perkinscoie.com

Albert Gidari (pro hac vice pending)

Perkins Coie LLP

1201 Third Avenue, Suite 4800

Seattle, Washington 98101

Phone: 206.359.8000

Fax: 206.359,9000

AGidari@perkinscote.com

Attorneys for Google Inc.

CERTIFICATE OF SERVICE

I hereby certify that on this 18th day of January, 2011, the foregoing document was sent via hand
delivery and email to the following persons:

Assistant United States Attorney

United States Attorney’s Office

Eastern District of Virginia

Justin W. Williams United States Attorney’s Building

2100 Jamieson Avenue

Alexandria, VA 22314-5794

Attorneys for the United States

700 13th St., N.W., Suite 600
Washington, D.C. 20005-3960
Phone: 202-434-1627

Fax^202,654-9UQ6_______

JRoche@perkinscoie.com

Attorneys for Google Inc.

2

ATTACHMENT C

IN THE UNITED STATES DISTRICT COtURT p n

FOR THE EASTERN DISTRICT OF VIRGINIA rTL.11U
ALEXANDRIA DIVISION

IN RE 2703(d) ORDER AND 2703(1) ) Misc.No. 10GJ372SI FEB -l P 5 35

PRESERVATIONREQUESTRELATING ) ■ DISTRICT COURT

TO GMAIL ACCOUNT ■■■■ ) FILED UNDER^^HOa?A.VIRGIN A

GOOGLE INC.’S REPLY IN SUPPORT OF
ITS MOTION TO MODIFY 2703(d) ORDER FOR
PURPOSE OF PROVIDING NOTICE TO ACCOUNT HOLDER

Google Inc. (“Google’3) hereby submits this Reply in Support of its Motion to Modify
2703(d) Order for Purpose of Providing Notice to Account Holder.

The government admits in its response brief that the demand at issue here (the “Order”)1
and the unsealed Twitter Order1 2 relate to the same investigation. The government’s brief also
establishes that the targets of their investigation are already operating under the assumption that
the government has sought information related to their Google accounts. These facts alone
demonstrate thatthere is no cause forthe Orderto have been sealeduTthdlirstplace or to remain
sealed now. Moreover, rather than demonstrating how unsealing the Order will harm its well-
publicized investigation, the government lists a parade of horribles that have allegedly occurred
since it unsealed the Twitter Order, yet fails to establish how any of these developments could be
further exacerbated by unsealing this Order. The proverbial toothpaste is out of the tube, and
continuing to seal a materially identical order will not change it.

1 See Declaration of John K. Roche, Ex. 1 (“Roche Decl.”).

2 Id Ex. 2.

The government also prejudges any free speech or privilege objections that Google’s user
may wish to raise by describing them as “meritless.” Of course, if the user’s potential arguments
are all so obviously meritless as to not even warrant a hearing, one is left to wonder why the
government agreed to unseal the Twitter Order in the first place in order to allow those users an
opportunity to file their objections. Indeed, the Twitter usc'e^^^^nay have already filed an
opposition to the Twitter Order with this Court. If he or she has, it would certainly be
incongruous for this.Court to hear those objections in relation to the Twitter Order, but to
foreclose any opportunity to hear objections in relation to this Order based solely on the
government’s generalized ex parte and wholly speculative assertion that those objections are
frivolous. We specifically ask that the government advise the Court whether such objections
have been filed or motions made in regard to the Twitter order.

Accordingly, for these reasons and those stated below and in Google’s motion, Google
respectfully requests that the Court grant its motion and modify the Order pursuant to the terms
of Google’s proposed order. I.

I. ARGUMENT

A. The Government’s Response Confirms There is No Need for Secrecy of this Order

or the Preservation Request

The government admits that the Twitter Order and the Order involve the same
investigation, yet inscrutably claims that the Order must remain sealed because it involves “a
different case” than the Twitter Order. See Government Response, at 3 n.l; see also id. at 13.
This opaque rationale for refusing to unseal the Order does not withstand scrutiny.

As noted in Google’s motion, the Order does not meet any of the traditional standards for

2

grand jury confidentiality. See Google’s Motion, at 9. Specifically, the Wikileaks investigation
and the government’s interest in^U electronic communications are already a well-
publicized matter of public record. McHan v. C.I.R., 558 F.3d 326,334 (4th Cir. 2009) (“it is a
‘common-sense proposition that secrecy is no longer “necessary” when the contents of grand
jury matters have become public.’”) (quoting In re Grand Jury Subpoena, 438 F.3d 1138,1140
(D.C. Cir. 2006)).

Furthermore, disclosure of the Order would not reveal any witness testimony, so there is
no fear of retribution against witnesses as a result. Finn v. Schiller, 72 F.3d 1182,1187 n.6 (4th
Cir. 1996). The government claims that, unsealing the Order may result in “witness intimidation”
in the form of encouraging providers “to resist the government’s attempts to gather relevant user
information.” See Government Response, at 16. This argument is specious. First, keeping
orders in the shadows to prevent witness intimidation is one thing, but doing so to prevent public
discourse is not a proper use of the mechanism. Second, providers are corporate entities advised
by competent inside and outside counsel, some of whom are former government attorneys. The

notion that these companies could be intimidated into resisting otherwise valid legal process is
baseless. Google can only speak for itself, but when it resists legal process, it does so because its
attorneys have a good faith belief that the process is deficient or unlawful in some respect, not
because Google is trying to curry favor with some interest group. Google has no reason to
believe that other providers’ approach to legal process is any different.

Additionally, there is no risk of destruction of evidence because Google has preserved
responsive information and the Order only demands historical records, not prospective data. The
government nevertheless argues that unsealing this Order may cause the targets to “alter[] their
modes of communication to evade future investigative efforts,” but as the government notes in^

3

its brief, the Twitter user^^^d other targets of the investigation are already working under
the assumption that their Google accounts are the subject of legal process from this grand jury
investigation. See Government Response, at 14; see also Government Exhibits 3-4. Therefore,
disclosing this Order will do nothing to alter anyone’s behavior, and to the extent ioerror has
already destroyed evidence, unsealing the Order will not reverse those actions either.

The government also claims that the Order must remain sealed “because it might cause
suspects to . . . flee.” See Government Response, at 13. This argument also fails because if
I is a flight risk, the widespread media coverage of the Twitter Order would have already
presumably given him or her and any co-conspirators all the notice they need to start packing
their bags, regardless of whether Twitterand Google’s are one and the same.

Finally, the government asserts that its employees were harassed after the disclosure of
the Twitter Order and implies that the same can be expected if this Order is disclosed. See
Government Response, at 15-16; see also Government Exhibit 6. Google condemns any such
attacks on government personnel and sympathizes with those forced to endure them. In order to

ensure that the same behavior does not occur here, the government should request that the court
order any personal identifiers of government personnel redacted before unsealing the Order or
preservation letter.

In sum, there is no risk of destruction evidence, and none of the other interests served by
the traditional secrecy of grand jury proceedings would be undermined in any way by disclosure
of the Order or the preservation request. There is no cause for file Order to remain sealed.

4

B. Tbe Court Should Grant^m the Opportunity to Assess the Legality of the

Order

Google understands that Twitter’s j^^^ser and the other users affected by the Twitter
Order were granted a certain period of time in which to file their opposition to the Twitter Order.
See Government Exhibit 5. The government should disclose whether or not such filings have
been made. If Twitter’s |^^piser did indeed file an opposition brief, it would be logical to
assume there is an excellent chance that Google’sU^ would similarly oppose this Order if
one assumes the user is the same. Worse, the user and the Court hearing any such motions are
misled into believing that only the Twitter Order is at issue when considering the scope of harm
to the user and any First Amendment or other rights that are implicated by the government’s
demands.3

Google therefore suggests that the Court ask the government at oral argument whether
the user for the^^^^rwitter account has filed an opposition with this Court to the Twitter
Order. If the user has, Google respectfully submits that the Court should not collaterally
prejudge the meritsofthat opposition by acceplinglhe government’s assertions that any
arguments raised by Google^^^f1 in response to the Order “would be meritless.” See
Government Response, at 6. arguments are meritless, then the government has

nothing to fear. On the other hand, if^U£? arguments are valid, the user should be permitted
to raise them here, just as Twitter’s ^^user may have already done in regard to the Twitter
Order. Regardless, not informing Google’s Hjj^f the Order at the same time Twitter’s
¡|j|JH may be asserting his or her rights in regard to the materially identical Twitter Order
seems unfair to the user.

^Indeed, Google is not privy to ail the orders that may have been issued to all the providers of services to user
Hbut the Court hearing any motion to quash or amend the Twitter Order, or to unseal a pending order such as
here, ought to be made aware of the scope of such inquiry.

5

Furthermore, Google made clear in its motion that it is not in the best position to
advocate for the free speech or other privilege rights of its users - the users are. Nevertheless,
the government has seen fit to denigrate any potential arguments that Google’s user might raise,
even though those potential arguments are not as easily disposed of as the government suggests.
For example, the government is dismissive of the fact that Wikileaks has been widely described
as an enterprise that consists of, or works with, journalists and academics.4 While Google does
not comment on whether this is an accurate description of what Wikileaks does, one can assume

that if 1

Is somehow associated with Wikileaks, he or she may wish to assert his or her own

First Amendment rights or any applicable journalistic, academic or other privileges or defenses

to which1

'eels he or she is entitled.

ight assert that the Order’s demand for “the
source and destination email addresses and IP addresses” for communications in his or her
account will reveal confidential sources or information about Wikileaks’ purported journalistic
or academic activities. The extent to which such sources and information are protected from

discovery by the grand jury is a hotly debated issue, and one that

lay wish to raise before

this Court. In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141,1164 (D.C. Cir. 2006)
(Tatel, J., concurring) (the Supreme Court’s Branzburg decision “places limits on grand jury
authority to demand information about source identities - though, again, the precise extent of
those limits seems unclear.”); id. at 1174 (“Of course, in some cases a leak’s value may far

4 See, e.g., Salmerón v. Enterprise Recovery Systems, Inc., 579 F.3d 787,791 n. 1 (7th Cir. 2009) (“‘[F]ounded by
Chinese dissidents, journalists, mathematicians and startup company technologists, from the US, Taiwan, Europe,
Australia and South Africa,” Wikileaks styles itself as ‘an uncensorable .version of Wikipedia for imtraceabte mass
document leaking and analysis.’ http:// wikileaks. org/ wiki/ Wikileaks: About (last visited July 16,2009).”); Adam
L. Penenberg, Yes, He's a Journalist, Too, Washington Post, Jan. 30,2011, http://www.washingfonpost.corn/wp-
dyn/content/artic!e/2011/01/28/AR2O11012806860.html (“Based on the wording of many of these [press shield]
statutes, Assange fits the definition of a journalist, and what WikiLeaks does qualifies as journalism.”) (last visited
on Jan. 30,2011); VS soldiers can be demoralized by WikiLeaks docs: Morrell, Daily Pak Banker, Oct 25,2010,
2010 WLNR 21356017 (describing Wikileaks as working with “a group run by academics”); Activists targeted as
secrets exposed, Australian, Apr. 12,2010,2010 WLNR 7507448 (describing Wikileaks as consisting of “computer
programmers, academics and activists.”).

6

exceed its harm, thus calling into question the law enforcement rationale for disrupting reporter-
source relationships.”); In re Grand Jury Subpoena Dated Jan. 4, 1984,750 F.2d 223,225 (2d
Cir. 1984) (“Surely the application of a scholar’s privilege, if it exists, requires a threshold
showing consisting of a detailed description of the nature and seriousness of the scholarly study
in question, of the methodology employed, of the need for assurances of confidentiality to
various sources to conduct the study, and of the fact that the disclosure requested by the
subpoena will seriously impinge upon that confidentiality.”); U.S. v. Doe, 460 F.2d 328,334 (1st
Cir. 1972) (grand jury questions “seeking the names of persons interviewed who gave [a
university professor] knowledge of participants in the Pentagon Papers study should be
answered, at least to the extent that the persons were not government officials or other
participant-sources.”) (emphasis added).

Conversely^J^Jnay simply be an independent party who has voiced support for
Wikileaks. If so, that activity is at the core of free speech and is certainly entitled to protection.
Gentile v. State Bar of Nevada, 501 U.S. 1030,1034 (1991) (“There is no question that speech
critical of the exercise of the State’s power lies at the very center of the First Amendment”).

In any event, the point is that^UJ- not Google or the government - is in the best
position to assess the propriety of any legal process related to thef^^| Gmail account, and the
Court should have the opportunity to hear the objections. In re Grand Jury Subpoena; 438 F.3d
at 1164 (Tatel, J., concurring) (“given that any witness - journalist or otherwise - may challenge
[an unreasonable or oppressive] subpoena, the majority [in Branzburg] must have meant, at the
very least, that the First Amendment demands a broader notion of ‘harassment’ for journalists
than for other witnesses.”).

7

C. The Order is a Prior Restraint on Google’s Right to Free Speech

Finally, while arguments raised for the first time in reply are generally not considered,
Google must correct the government’s erroneous assertion that “Google has no viable First
Amendment argument to make on its own behalf.” See Government Response, at 6. On the
contrary, the non-disclosure provision in the Order certainly prevents Google from
communicating with its user and “is fairly characterized as a regulation of pure speech.”
Bartnicki v. Vopper, 532 U.S. 514,526 (2001) (referring to Wiretap Act provision prohibiting
disclosure of contents of illegally intercepted communication). The Order’s non-disclosure
provision also prevents Google from defending itself against public criticism such as that cited in
the Government’s brief. See Government Exhibits 3-4. It is of no moment that the person it
restrains from speaking, i. e., Google, is a corporate entity. First Nat 7 Bank of Boston v. Bellotti,
435 U.S. 765,777 (1978) (“The inherent worth of the speech in terms of its capacity for
informing the public does not depend upon the identity of its source, whether corporation,
association, union, or individual.”). Prior restraints on speech “are constitutionally disfavored in

Unitecl~States-Vr-Brewnr2r50R3d-907r91-5(SthGir.

2001). Accordingly, such restraints are subject to the most demanding scrutiny. In re Sealing
and Non-Disclosure ofPen/Trap/2703(d) Orders, 562 F. Supp. 2d 876,881-82 (S.D. Tex. 2008)
(“Prohibiting a service provider from disclosing the existence of the pen/trap or the investigation
means that the first-hand experiences of the recipients of these orders are completely excluded
from the public debate” and “dries up the marketplace of ideas just as effectively as a customer-
targeted injunction would do.”). While Google certainly could have made its own First
Amendment arguments, and this Court certainly may consider them on its own, the point of
Google’s motion was to ensure that its user had the opportunity to assert such rights.

8

Here, the government has offered to limit the nondisclosure requirement in. the Order to a
period of 90 days, with a provision allowing it to petition the Court for extensions if disclosure
would seriously jeopardize the investigation or have an adverse result as defined by 18 U.S.C. §
2705(a)(2). Google agrees that such nondisclosure requirements of a limited duration are not
uncommon in normal investigations, and are rarely challenged by providers. However, this is
not a normal investigation. Because the government’s interest in jjj^J^lectronic
communications is already so well-publicized and there is absolutely no risk of destruction of
evidence, Google fails to see how any nondisclosure period is justified under these highly unique
and unusual circumstances.

n. CONCLUSION

. f

For the reasons stated here and in Google’s motion, Google respectfully requests that the
Court grant its motion and modify the Order pursuant to the terms of Google’s proposed order.

Fax: 202-654-9106

JRoche@perkinscoie.com

Albert Gidari (pro hac vice pending)

Perkins Coie LLP

1201 Third Avenue, Suite 4800

Seattle, Washington 98101

Phone: 206.359.8000

Fax: 206.359.9000

AGidari@perkinscoie.coni

Attorneys for Google Iuc.

9

CERTIFICATE OF SERVICE

I hereby certify that on this 1st day of February, 2011, the foregoing document was sent via hand
delivery and email to the following persons:

Assistant United States Attorney

United States Attorney’s Office

Eastern District of Virginia

Justin W. Williams United States Attorney’s Building

2100 Jamieson Avenue

Attorneys for the United States

John K. Roche (VSB# 68594)
PerkimÆoite, LLP
700 pthßif, N.W., Suite 600
Washington, D.C. 20005-3960
Phone: 202-434-1627
Fax: 202-654-9106
JRoche@perkinscoie.com

Attorneys for Google Inc.

10

ATTACHMENT D

FILED

THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

IN THE MATTER OF THE 2703(d) ORDER
AND 2703(f) PRESERVATION REQUEST
RELATING TO GMAIL ACCOUNT

Case No. L10GJ3793
ll-DM-2

UNDER SEAL

2011 FEB-3 A 11= 58

CLERK US DISTRICT COURT
ALEXANDRIA. VIRGINIA

MOTION TO CONTINUE HEARING

The United States by and through I

I United States Attorney, and I

Assistant United States Attorney, hereby moves this Court to continue the
hearing scheduled Friday, February 4, 2011, on Google’s Motion to Modify the Court’s §
2703(d) Order to authorize Google to provide notice of the Order to its account holder. Google
Inc.’s (“Google”) reply to the government’s response raises a concern that a decision by this
Court would “prejudgef] any free speech or privilege objections that Google’s user may wish to
raise by describingihenras meritless;” Google ReplyutVy5-7;~Aacounsel-for Google-knows,-1—

the account holder in this case has already filed a motion, objecting to a similar § 2703(d) Order

issued by Magistrate Judge'

Therefore, Google’s concerns with

speculating about the user’s objections are best addressed by awaiting a decision on their merits.

1 In its reply, Google asked “that the government advise the Court whether such objections have
been filed or motions made in regard to the Twitter order.” Google Reply at 2, 5. Although the
motions are under seal, because counsel represents both Twitter and Google in these separate
matters, counsel is well aware that further motions have been made with respect to the Twitter
Order. This is so because Twitter’s compliance with the Twitter Order with respect to certain
user accounts is stayed pending resolution of objections filed by those users.

l

On December 14, 2010, Magistrate Judgej^^JJ^jissued an order under 18 U.S.C. §
2703(d) (“the Twitter Order”) requiring the online micropublishing company Twitter to provide
the government with information about certain of its users, including one using the name
BSBm Counsel for Google, John Roche, who also serves as counsel for Twitter, knows this
because the Twitter Order was unsealed on January 5, 2011 and both the unsealing order and the
Twitter Order were publicly posted on the Internet as part of an online article, whose author
presumably received them from one of Twitter’s account holders.

Meantime, on January 4, 2011, this Court issued a § 2703(d) order (“the Google Order”)
requiring Google to provide the government with information about one of its users, named

Since then, Google has largely adopted Twitter’s legal strategy, both by filing its own
motion to provide its user with the opportunity to contest the Google Order, and, within its
filings, identifying itself with Twitter and its arguments. In its Motion, Google described the
Google Order and the Twitter Order as “nearly identical,” Google Mot. at 1, and argued that the
Google Order “like the Twitter Order” raised First Amendment concerns, Google Mot. at 2.
Google continues this tack in its Reply brief, arguing that it would be “incongruous” for the
Court to hear arguments from Twitter users, but not from Google users, and asking the
government to advise it whether Twitter users have lodged objections, presumably so Google
users may assert those objections here. Google Reply at 2, 5.

To a considerable extent Google has argued that, as Twitter goes, so goes Google. See
Google Reply at 5-7. In the event Magistrate JudgeHMI rules in favor of the relevant
Twitter account holder, Google’s motion to disclose the Google Order to its account holder
would be all the more compelling. The opposite also holds true. Therefore, the United States
respectfully requests that this Court continue the hearing on Google’s instant motion until Judge

2

has ruled on the merits of the objections raised by the relevant Twitter account holder.

The government expects resolution of this within the next few weeks, and therefore, the
continuance would be brief.

The United States has contacted counsel for Google, who opposes this motion to
continue, Nevertheless, for the reasons stated above, pursuant to Local Criminal Rule 47, good
cause supports the requested brief continuance, which will not prejudice Google or the relevant
account user. Therefore the United States requests this Court to continue the hearing scheduled
Friday, February 4, 2011.

Respectfully Submitted,

3

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing pleading was delivered on
this 3rd day of February 2011 to the Clerk’s Office and that service will be made on the
following individuals by electronic mail and otherwise:

John K. Roche, Esquire

Perkins Coie LLP

700 13th St., N.W., Suite 600

Washington, D.C. 20005-3960

PHONE: 202.434.1627

FAX: 202.654.9106

E-MAIL: JRoche@perkinscote.com

4

IN THE MATTER OF THE 2703(d) ORDER
AND 2703(f) PRESERVATION REQUEST
RELATING TO GMAIL ACCOUNT

RECEIVED

THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA

7,011 FOB -3 P 2’ 08

Alexandria Division

CL&Tif US.OlSTRiGKUyiTf
ALEXAHDRIAv VIRGINIA
Case No. 1:10GJ3793

1 l-DM-2
UNDER SEAL

ORDER

This matter having come before the Court pursuant to the motion of the United States to

continue the hearing on the above-captioned matter from February 4,2011 until February 25,
2011, and finding pursuant to Local Criminal Rule 47 that good cause supports the requested
continuance, it is hereby ORDERED that the hearing is postponed until February 25,2011.

United States Magistrate Judge

Date: ______________

Alexandria, Virginia

(

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing proposed order was
delivered on this 3rd day of February 2011 to the Clerk’s Office and that service will be made on
the following individuals by electronic mail and otherwise:

John K. Roche, Esquire
Perkins Coie LLP
700 13th St., N.W., Suite 600
Washington, D.C. 20005-3960
PHONE: 202.434.1627
FAX: 202.654.9106 .

E-MAIL: JRoche@perkinscoie.com

Assistant United States Attorney

ATTACHMENT E

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

prLL-E-fl

II FEB-9 2011 V)

IN RE 2703(d) ORDER AND 2703(f) )

PRESERVATION REQUEST RELATING )

TO GMAIL ACCOUT ) Misc. No. I0GJ3793

) FILED UNDER SEAL

____________________________________)

ORDER

FOR REASONS stated from the bench and in accord with specific rulings and
instructions thereto, it is hereby

ORDERED that Google’s Motion to Modify 2703(d) Order for Purpose of Providing
Notice to User is DENIED in part and GRANTED in part; the motion is DENIED as to
Google’s request to notify the user concerning the 2703(d) Order and the underlying application;
the motion is GRANTED in regard to the request to modify the Order. In that regard, it is
further

ORDERED that Google is authorized to provide notification of this Court’s 2703(d)
Orderrdated January 4,20fl7toth^GoogIeGmail user fH^Bwithin"(90) dayXofproviding^
to the United States government the information requested in said Order, unless the government
files a motion for an extension of that non-notification period; it is further

ORDERED that the government may request an extension of the non-notification period
for a maximum of sixty (60) days.

A TRUE COPY, TESTE:
CLERK, U.S. DISTRICT COURT

BY

DEPUTY CLERK

The Clerk is directed to file this Order under Seal and to forward copies of this Order to
all counsel of record

ENTERED this 9th day of February 2011.

United States Magistrate Judge

Alexandria, Virginia

ATTACHMENT F

: FILED

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

_ .. ALEXANDRIA DIVISION...........

2011 FEB II P 3: 38

IN RE 2703(d) ORDER AND 2703(1)

PRESERVATION REQT-------

TO GMAIL ACCOUNT

TING

)

)

)

)

)

)

J

ll-DM-2

FILED UNDER SEAL

GOOGLE INC.’S OBJECTIONS TO

MAGISTRATE’S ORDER OF FEBRUARY 9,2011 AND NOTICE OF APPEAL
PURSUANT TO FED. R. CRIM. P. 59 AND MEMORANDUM IN SUPPORT

I. INTRODUCTION

This matter involves a grand jury investigation of the Wikileaks publication of State
Department cables and related matters. The fact of the investigation has been widely reported in
the New York Times and other news publications, across the Internet and around the globe.1
Demands have been made to third party service providers, including Google Inc. (“Google”),
seeking compelled disclosure of information such as with whom the subject users of those

services communicated and which computers they used to do so. The Google Gmail user

is the subject of the demand at issue here (the “Order”).1 2 Because of the already public
nature of the Wikileaks investigation, and the fact that a nearly identical order to Twitter
involving the same account identifier had been unsealed by this Court in the same

1 See, e.g., Scott Shane and John F. Bums, U.S. Subpoenas Twitter Over WikiLeaks Supporters, N.Y. Times, Jan. 8,
2011, http:ZAvwwJiytimes.com/2011/01/09/world/09wiki.html (last visited Jan. 13,2011); Anthony Boadle, U.S.
orders Twitter to hand over Wikileaks records, Reuters, Jan. 8,2011,

http://www.reuters.com/article/idUSTRE70716420110108 (last visited Jan. 14,2011); Ravi Somaiya, Release on
Bail of WikiLeaks Founder is Delayed by Appeal, N.Y. Times, Dee. 14,2010, available at
http://www.nytimes.com/2010/12/15/world/europe/15assange.html?src=twrhp (last visited Jan. 3,2011); Assange
attorney: Secret grandfury meeting in Virginia on WikiLeaks, CNN Justice, Dec. 13,2010,
http://aiticles.crm.com/2010-12-13/justice/wikileaks.investigationl_julian-assange-wtkileaks-case-grand-
jury?_s=PM:CRIME (last visited Jan. 3,2011); Dan Goodin, Grandfury meets to decide fate of WikiLeaks founder.
The Register, Dec. 13,2010, available at http://www.theregister.co.uk/2010/12/13/assangejgrandjuiy/ (last visited
Jan. 3,2011).

2 See Declaration of John K. Roche, Ex. 1 (“Roche Dec!.”).

Grand Jury proceeding (“Twitter Order”),3 Google filed a motion to modify the Order. Google’s
motion requested that it he permitted to give notice of the Order to. the Gmail user and the. user’s
attorney so they would have a meaningful opportunity to contest the request Shortly after
Google filed its motion, the user identified in the Twitter Order filed his own motion to vacate
the Twitter Order.4 That motion was unsealed by this Court and posted on the Internet by the
user’s attorneys on February 8,2011.5 Despite the publicity surrounding the Twitter Order and
the related motions, on February 9,2011, Magistrate JudgelB denied Google’s request to
provide immediate notice of the Order to its user.6 Instead, Magistrate Judge |j^^authorized
Google to provide notice of thé Order to the user 90 days after production unless the government
obtained a maximum 60-day extension of the non-notification period.7

Google respectfully objects to Magistrate Judge HH ruling because the government’s
investigation of Wikileaks generally, and its interest in the Muser name specifically, is a
matter of public record, thus obviating the need for this Order’s nondisclosure provision.
Furthermore,-the-Ordery like-the Twitter Order^may present- substantial- constitutional-and'
statutory issues that the user may wish to raise before this Court. Additionally, given that the
Order’s nondisclosure provision is a prior restraint on Google’s First Amendment right to
communicate with its users, a nondisclosure period of any length is not justified under these
circumstances. Finally, Google has preserved the requested records, thus there is no danger of

3 Roche Decl., Ex. 2

4 Id. Ex. 3.

5 See Electronic Frontier Foundation, Legal Battle Over Government Demands for Twitter Records Unsealed by
Court, Feb. 8,2011, http://www.eff.org/press/archive5/2011/02/08 (last visited on Feb. 16,2011).

6 Id. Ex. 4.

7Id.

2

loss or destruction of the information sought Accordingly, Google requests that the Court

______modify.this Order to. permit. notice, of the Order and. preservation request to be. given to Google’s

user and attorney and that the user be given 20 days from the date of the Court’s order to seek
any relief.

n. FACTUAL BACKGROUND

A. Relevant Actors

Google provides electronic mail services to the public through its Gmail service. Google
assiduously protects the privacy and free speech rights of its Gmail users, as evidenced by its
opposition, with the support of the U.S. State Department, to the Chinese government’s attack on
the Gmail accounts of Chinese human rights activists.8

Google’s general practice and preference, when addressing legal demands such as court
orders, is to give notice to the account holders, whenever it is permissible and practical to do so.
Even where the government asserts that disclosure to the user may have an adverse impact on an
investigation, or where an order is sealed but nonetheless raises serious Constitutional concerns,
Google may move to unseal the order or seek permission to notify its users.

Google recognizes that such notice is important because its users are better situated to
assert their rights under the. Constitution or other applicable privileges and articulate their
concerns to the Court It is for those reasons that Google asks the Court to unseal the Order as
the Court did for another provider in the same Grand Jury proceeding.

8 Andrew Jacobs and Miguel Helft, Google, Citing Attack, Threatens to Exit China, N.Y. Times, Jan. 13,2011,
http://www.nytimes.com/2010/01/13/world/asia/13beijing.html?_r=l&pagewanted=print (last visited Jan. 13,2011).

3

Wikileaks describes itself as a journalistic enterprise for mass document leaking and

_analysis/ and has been described by others as an enterprise that consists of,, or works with, _

journalists and academics.9 10 Whether Wikileaks does in fact consist of journalists or academics
or engage in journalism is a matter of public debate, and an issue upon which Google does not
comment.

Twitter is a real-time information network that has been described by one federal district
court as “a social networking and micro-blogging service that invites its users to answer the
question: ‘What are you doing?’” US. v. Shelnutt, No. 4:09-CR-14 (CDL), 2009 WL 3681827,
at *1 n.l (M.D. Ga. Nov. 2,2009) (“Twitter’s users can send and read electronic messages
known as ‘tweets.’ A tweet is a short text post (up to 140 characters) delivered through Internet
or phone-based text systems to the author’s subscribers. Users can send and receive tweets in
several ways, including via the Twitter website.”).

Although Google does not comment on and could not confirm whether the Twitter
accounlH^H|s controlled by the same user as the Gmai^HH account, it is instructive to

9 Salmeronv. Enterprise Recovery Systems. Inc., 579 F.3d 787,791 n.l (7th Cir. 2009) (‘“[FJounded by Chinese
dissidents, journalists, mathematicians and startup company technologists, from the US, Taiwan, Europe, Australia
and South Africa,” Wikileaks styles itself as ‘an uncensorable version of Wikipedia for untraccabte mass document
leaking and analysis.’ http:// wikileaks. org/ wiki/ Wikileaks: About (last visited July 16,2009).").

10 Adam L. Penenberg, Key, He's a Journalist, Too, Washington Post, Jan. 30,2011,
http://www.washingtonpost.com/wp-dyn/contcnt/article/2011/01/28/AR20I I012806860.html (“Based on the
wording of many of these [press shield] statutes, Assange fits the definition of a journalist, and what WikiLeaks
does qualifies as journalism.”) (last visited on Jan. 30,2011); US soldiers can be demoralised by WikiLeaks docs:
Morrell, Daily Pak Banker, Oct. 25,2010,2010 WLNR 21356017 (describing Wikileaks as working with “a group
run by academics”); Activists targeted as secrets exposed, Australian, Apr. 12,2010,2010 WLNR 7507448
(describing Wikileaks as consisting of “computer programmers, academics and activists.”).

4

note that in a “tweet,” the Twitter userH^J^ndicates that since at least mid-December 2010
has been well aware that a government inyestigation is underway.1! .

B. Procedural Posture

The Twitter Order was issued on December 14,2010 and relates to the ongoing
Wikileaks investigation, which is obviously an issue of great public interest* 12 The Twitter Order
demanded the production of subscriber information and certain records and other non-content
information for a number of Twitter account holders from November 1,2009 to the present,
including an account with the user nameHHlt also contained a non-disclosure provision.
The grand jury investigation underlying the Twitter Order was widely reported in the New York
Times and other media outlets around the time the Twitter Order was issued.13 Indeed, prior to
issuance of the order, the Attorney General had acknowledged that the government was actively
investigating Wikileaks.14

'' ^ee tweet ®ec- D, 2010 @ 4:22 p.m. (“Unrelated to any travel issues - the FBI is now actively

bothenngm^riends and questioning them inside the United States."),

http^/twitter.comJHHfstatus/15879462465835008 (last visited on Dec. 21,2010); see also tweet of Jan.

7,2011 @ 9:26 p.m. (“Note that we can assume Google & Facebook also have secret US government subpoenas.
They make no comment. Did they fold?”), http://twitter.coin/(last visited Jan. 18,2011).

12 Roche Dec!., Ex. 2.

13 Ravi Somaiya, Release on Bail of WikiLeaks Founder Is Delayed by Appeal, N.Y. Times, Dec. 14,2010,
httpnr/www.nytimes.coni/20l0/12/l 5/worId/europe/l 5assange.html?src=twrhp (last visited Jan. 3,2011); see also
Assange attorney: Secret grand jury meeting in Virginia on WikiLeaks, CNN Justice, Dec. 13,2010,
http://articles.cnn.com/2010-12-13/justice/wikileaks.investigation_l Julian-assange-wikileaks-casc-grand-
jury?_s=PM:CRlME Oast visited Jan. 3,2011); Dan Goodin, Grand jury meets to decide fate of WikiLeaks founder,
The Register, Dec. 13.2010, http://www.theregister.co.uk/2010/12/13/assange_grandjury/0astvisited Jan. 3,
2011).

14 Ellen Nakashima & Jerry Markon, WikiLeaks founder could be charged under Espionage Act, Wash. Post, Nov.
30,2010, http://www.washingtonpost.eom/wp-dyn/content/article/2010/l 1/29/AR2010112905973Jitml Oast visited
Jan. 3,2011).

5-

On January 5,2011, upon motion by the government made at the behest of Twitter,15 16
...Magistrate Judge Buchanan unsealed, the Twitter Order and authorize.d Twitte.r io disclose it to its
users, including Twitter user

In the days following January 5,2011, the unsealed Twitter Order was posted on the
Internet and widely discussed in the media.17 On January 7,2011, a “tweet” from Twitter user
|tated that “we can assume Google & Facebook also have secret US government
subpoenas.”18 19

On January 4,2011, the day after the government agreed to unseal the Twitter Order, it
procured from this Court the Order in this matter, which is substantially identical to the Twitter
Order and compels Google to produce the identical information as the Twitter Order for the
Google Gmail accountH^9 The perpetual nondisclosure provision in the Order is identical
to the Twitter Order nondisclosure provision.

ls Perkins Coie LLP represents both Twitter and Google.

16 Roche Dec!., Ex. 5.

17 See, a.g., Scott Shane and John F. Bums, U.S. Subpoenas Twitter Over WikiLeaks Supporters, N.Y. Times, Jan. 8,
2011, http://www.nytimes.com/201I/01/09/world/09wiki.html Oast visited Jan. 13,2011); Anthony Boadle, U.S.
orders Twitter to hand over Wikiteaks records, Reuters, Jan. 8,2011,
http://www.reuters.com/article/idUSTRE70716420110108 (last visited Jan. 14,2011).

c ,

18 See “ioerror” tweet of Jan. 7,2011 @ 9:26 p.m. (“Note that we can assume Google & Facebook also have secret
US government subpoenas. They make no comment. Did they fold?”), http://twitter.com/ioerror/ (last visited Jan.
18,2011).

19 See Roche Decl., Ex. 1..

—6"

On January 12,2011, the government issued apreservation request pursuant to 18 U.S.C.
§ 2703(f) “for the. preservation of all Stored eommunicaticms^i-ecDrds, mid other evidence” in...
Google’s possession regarding Gmail useiUm^or November 2009 to the present.20

That same day, Google’s counsel notified the government that Google wished to
immediately give notice of the Order to its user and requested that the government agree to so
modify the Order. The government declined this request, saying only that Google is “a different
case” from Twitter.21 The government did however offer to release Google from the notice
constraint 90 days after it produced, with a provision allowing the government to petition for a
further extension. Google declined this offer and, pursuant to the parties’ agreed schedule, filed
its motion to modify the Order on January 18,2011.

On January 26,2011, three of the users identified in the Twitter Order, including
Twitter’user, filed a motion to vacate that order on statutory and Constitutional
grounds.22

On January 28,2011, the government filed its response to Google’s motion wherein it
admitted that the Order and the unsealed Twitter Order relate to the same investigation.23 The
government’s brief also established that the targets of their investigation are already operating
under the assumption that the government has sought information related to their Google

20 Id, Ex. 4.

21 Id., Ex. 7, at 3 n.l.

22 Id.,Ex. 3.

23/¿Ex. 7, at 3 n.l.



accounts.24 These facts alone demonstrate that there is no cause for the Order to have been
.sealed in the first place nr to remain sealed now Moreover,jrather Jhanjle.mDnstcatingJbovv ...
unsealing the Order would harm its well-publicized investigation, the government listed a parade
of horribles that have allegedly occurred since it unsealed the Twitter Order, yet failed to
establish how any of these developments could be further exacerbated by unsealing this Order.2S

On February 9,2011, Magistrate -TudgejU^denied Google’s request to provide
immediate notice of the Order to its user.26 Instead, Magistrate Judge^^authorized Google
to provide notice of the Order to the user 90 days after production unless the government
obtained a maximum 60-day extension of the non-notification period.27

On February 15,2011, Magistrate Judge m heard argument on the motion to
vacate the Twitter Order, but to Google’s knowledge has not yet rendered a decision on that
motion.

III. ARGUMENT

A. Standard of Review

Google brings its objections pursuant to Fed. R. Crim. P. 59. In re U.S. for an Order
Directing a Provider of Electronic Communication Service to Disclose Records to the
Government, Magistrate’s No. 07-524M, 2008 WL 4191511 (W.D. Pa. Sept. 10,2008)
(objections brought under Rule 59 to magistrate’s ruling regarding 2703(d) order)), vacated on

24 Id. at Ex. 7 (Exs. 3-4 thereto).

23 Id. at 11-16.

26 Id. Ex. 4.

------g- —

other grounds by, 620 F.3d 304 (3d Cir. 2010). Because Magistrate Judg^J^^February 9th
ruling on Google’s motion to modify die Order is directed to a third party. i.e., Google, it is a .
dispositive final order. U.S. v. Myers, 593 F.3d 338, 345 (4th Cir. 2010) (discovery order
directed at a third party is “an immediately appealable final order.’3) (quoting Church of
Scientology of California v. U.S. ,506 U.S. 9,18 n. 11 (1992)). Accordingly, the district court
must consider Google’s objections de novo. See Fed. R. Crim. P. 59(b)(3).

B. There is No Need for Secrecy of the Order or the Preservation Request

Nondisclosure orders are permitted in extraordinary circumstances under 18 U.S.C. §
2705. The Order in this matter relies upon the standard set forth in § 2705(b)(5), which provides
for nondisclosure when notification will result in “seriously jeopardizing an investigation.”
Nondisclosure requests such as this are subject to the most demanding scrutiny:

If the recipients of [surveillance] orders are forever enjoined from
discussing them, tire individual targets may never learn that they
had been subjected to such surveillance, and this lack of
information will inevitably stifle public debate about the proper
scope and extent of this important law enforcement tool. By
constricting the flow of information at its source, the government
dries up the marketplace of ideas just as effectively as a customer-
targeted injunction would do. Given the public's intense interest in
this area of law, such content-based restrictions are subject to
rigorous scrutiny.

In re Sealing and Non-Disclosure ofPen/T'ap/2703(d) Orders, 562 F. Supp. 2d 876, 882 (S.D.
Tex. 2008) (setting a default 180 day period for sealing and non-disclosure of electronic
surveillance orders) (internal citations omitted).

Google is not privy to what showing the government made in the affidavit in support of
the application for the Order. Given that the government moved to unseal an order to another
provider requesting the identical type of information on an account with an identical identifier, it

■9-

is difficult to understand how the government could meet the “seriously jeopardizing” standard
in this case. The government’s offer to release Google from the notice constraint after 90 days
demonstrates that a limited nondisclosure provision could have been requested in the first place,
and that this very public investigation is at or near an end, which further obviates the need for
confidentiality.

Nor does the Order meet the traditional standard for grand jury confidentiality. Grand

jury proceedings are traditionally confidential because

if preindictment proceedings were made public, many prospective
witnesses would be hesitant to come forward voluntarily, knowing
that those against whom they testify would be aware of that
testimony. Moreover, witnesses who appeared before the grand
jury would be less likely to testify fully and frankly, as they would
be open to retribution as well as to inducements. There also would
be the risk that those about to be indicted would flee, or would try
to influence individual grand jurors to vote against indictment.

Finally, by preserving the secrecy of the proceedings, we assure
that persons who are accused but exonerated by the grand jury will
not be held up to public ridicule.

Finn v. Schiller, 72 F.3d 1182,1J 87 n.6 (4th Cir. 1996) (quoting Douglas Oil Co. v. Petrol Stops
N. W., 441 U.S. 211,219 (1979)). Of course, “it is a ‘common-sense proposition that secrecy is
no longer “necessary” when the contents of grand jury matters have become public.”’ McHan v.

C.I.R., 558 F.3d 326, 334 (4th Cir. 2009) (quoting In re Grand Jury Subpoena, 438 F.3d 1138,

1140 (D.C. Cir. 2006)).

In this case, the grand jury’s investigation of the Twitter use^j^^fis public record.
Moreover, Google has preserved all records and content related to the Gmail user ^
account. Accordingly, there is no risk of destruction evidence, and none of the other interests
served by the traditional secrecy of grand jury proceedings would be undermined in any way by
disclosure of this Order or the preservation request.

—IP----

The government claimed in its response brief before Magistrate Judge|^^that
unsealing the Order may result ip “witness intimidation” in the form of encouraging providers
“to resist the government’s attempts to gather relevant user information.” See Government
Response, at 16 28 This argument is specious. First, keeping orders in the shadows to prevent
witness intimidation is one thing, but doing so to prevent public discourse is not a proper use of
the mechanism. Second, providers are corporate entities advised by competent inside and
outside counsel, some of whom are former government attorneys. The notion that these
companies could be intimidated into resisting otherwise valid legal process is baseless. Google
can only speak for itself, but when it resists legal process, it does so because its attorneys have a
good faith belief that the process is deficient or unlawful in some respect, not because Google is
trying to curry favor with some interest group. Google has no reason to believe that other
providers’ approach to legal process is any different.

Additionally, there is no risk of destruction of evidence because Google has preserved
responsive information and the Order only demands historical records, not prospective data. The
government nevertheless argues that unsealing this Order may cause the targets to “alterQ their
modes of communication to evade future investigative efforts,” but as the government notes in
its brief, the Twitter usei^^^and other targets of the investigation are already working under
the assumption that their Google accounts are the subject of legal process from this grand jury
investigation. See Government Response, at 14; see also Government Exhibits 3-4.29 Therefore,
disclosing this Order will do nothing to alter anyone’s behavior, and to the extent^j^jias
already destroyed evidence, unsealing the Order will not reverse those actions either.

The government also claims that the Order must remain sealed “because it might cause

24 Roche Decl., Ex. 7.

24 Id

41

suspects to ... flee.” See Government Response, at 13. This argument also fails because if

Twitter Order would have already__

presumably given him or her and any co-conspirators all the notice they need to start packing
their bags, regardless of whether Twitter’s m^and Google’^^^b are one and the same.

Finally, the government asserts that its employees were harassed after the disclosure of
the Twitter Order and implies that the same can be expected if this Order is disclosed. See
Government Response, at 15-16; see also Government Exhibit 6.3! Google condemns any such
attacks on government personnel and sympathizes with those forced to endure them. In order to
ensure that the same behavior does not occur here, the government should request that the court
order any personal identifiers of government personnel redacted before unsealing the Order or
preservation letter.

In stun, there is no risk of destruction evidence, and none of the other interests served by
the traditional secrecy of grand jury proceedings would be undermined in any way by disclosure
of the Order or the preservation request. There is no cause for the Order to remain sealed.

C. The Order ¡May Raise Significant Constitutional and Statutory Issues

As noted, three of the users identified in the Twitter Order, including Twitter’s ^
user, filed a motion to vacate that order on Constitutional and statutory grounds.30 31 32 In summary,
they argued that because the Twitter Order seeks a vast array of information that has no relation
to Wikileaks, it could not meet the “specific and articulable facts” standard set forth in 18 U.S.C.

30 Id.

31 Id.

32 Roche Decl., Ex. 3.

. .12 .

§ 2703(d), and that it intrudes upon, their First and Fourth Amendment rights for similar
-reasons.33 JEone-assumeaforihusaka of.argument.that.Twitter’s.J|^Jaiid_GoQglelsJB^|_.
are one and the same, it is also reasonable to assume that the user may wish to assert similar
objections to this Order. It is therefore within the sound discretion of the Court to modify the
Order for the purpose of allowing Google to giye notice to its affected user so that the user may
decide whether to object to Google’s production of the documents and information demanded
therein.

D. The Order is a Prior Restraint on Google’s Right to Free Speech

The non-disclosure provision in the Order prevents Google from communicating with its
user and “is fairly characterized as a regulation of pure speech.” Bartnicki v. Vopper, 532 U.S.
514,526 (2001) (referring to Wiretap Act provision prohibiting disclosure of contents of illegally
intercepted communication). The Order’s non-disclosure provision also prevents Google from
defending itself against public criticism such as that cited in the Government’s brief. See
Government Exhibits 3-4. It is of no moment that the person it restrains from speaking, i.e.,
Google, is acoiporate entity. First Nat'l Bank ofBoston v. Bellotti, 435 U.S. 765,777 (1978)
(“The inherent worth of the speech in terms of its capacity for informing the public does not
depend upon the identity of its source, whether corporation, association, union, or individual.”).
Prior restraints on speech “are constitutionally disfavored in this nation nearly to the point of
extinction.” United States v. Brown, 250 F.3d 907,915 (5th Cir. 2001). Accordingly, such
restraints are subject to the most demanding scrutiny. In re Sealing and Non-Disclosure of
Pen/Trap/2703(d) Orders, 562 F. Supp. 2d 876,881-82 (S.D. Tex. 2008) (“Prohibiting a service
provider from disclosing the existence of the pen/trap or the investigation means that the first-

hand experiences of the recipients of these orders are completely excluded from the public

.debate” and “dries up the marketplace of ideas just as effectively as a customer-targeted_

injunction would do”).

Here, Magistrate Judge^JjjQ endorsed the government’s offer to limit the nondisclosure
requirement in the Order to a period of 90 days. While such nondisclosure requirements of a
limited duration are not uncommon in normal investigations, this is not a normal investigation.
Because the government’s interest in ioerror’s electronic communications is already so well-
publicized and there is absolutely no risk of destruction of evidence, a nondisclosure period of
any length is not justified under these circumstances.

IV. CONCLUSION

Google takes no position regarding the propriety of Wikileaks’ alleged actions or the
government’s investigation, but given tbe extraordinary nature of the issues surrounding the very
public Wikileaks investigation, Google requests only that the Court modify the Order to permit
notice of the Order and preservation request to be given to Google’s user and the user’s
attorneys. Google further requests that it be permitted to discuss the Order with its user and the
user’s attorneys and that the user be given 20 days from the date of the Court’s order to file an
appropriate response. In the meantime, Google has preserved responsive information, and will
produce that information if its user does not file a motion or other pleading in opposition within
20 days of the Court’s order.

44

DATED this 17th day of February, 2011.

Respectfully submitted,

loche (VSBT68594}—__
je LLP

50 13th St., N.W., Suite 600
Washington, D.C. 20005-3960

Phone: 202-434-1627
Fax: 202-654-9106

JRoche@perkinscoie.com

Albert Gidari {admittedpro hac vice)

Perkins Coie LLP

1201 Third Avenue, Suite 4800

Seattle, Washington 98101

Phone: 206-359-8000

Fax: 206-359-9000

AGidari@perkinscoie.com

Attorneys for Google Inc.

CERTIFICATE OF SERVICE

y.,2011, ilia j%;egoingjio£umßniMas._sentJ!'ia. _

hand dehvery and email to die following persons:

United States Attorney’s Office

Eastern District of Virginia

Justin W. Williams United States Attorney’s Building

2100 Jamieson Avenue

Alexandria, VA 22314-5794

Phone: 202-434-1627
Fax: 202-654-9106
JRoche@perkinscoie.com

Attorneys for Google Inc.

U

ATTACHMENT G

FILED

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
_ ALEXANDRIA DIVISION __

.........2Q11 f£9 n p 3:38-

)

)

- IN RE 2703(d) ORDER AND 2703(f) )

PRESERVATION REQUEST RELATING )
TO GMAIL ACCOUNT )

)

_____________________________________)

ll-DM-2

FILED UNDER SEAL

GOOGLE INC.’S MOTION TO STAY PRODUCTION PENDING
APPEAL OF MAGISTRATE’S ORDER AND MEMORANDUM IN SUPPORT

This matter involves a grand jury investigation of the Wikileaks publication of State
Department cables and related matters. The fact of die investigation has been widely reported in
the New York Times and other news publications, across the Internet and around the globe.1
Demands have been made to third party service providers, including Google Inc. (“Google”),
seeking compelled disclosure of information such as with whom the subject users of those
services communicated and which computers they used to do so. The Google Gmail user
HHH^isthe subject of such a demand issued by this Court on January 4,2011 (the “Order”).1 2
Because of the already public nature of the Wikileaks investigation, and the fact that a nearly
identical order to Twitter involving the same account identifier ‘^^^Hhad been unsealed by

1 See, e.g„ Scott Shane and John F. Bums, U.S, Subpoenas Twitter Over WikiLeaks Supporters, N.Y. Tunes, Jan. 8,
2011, http://www.oytimes.com/2011/01/09/world/09wiki.html (last visited Jan. 13,2011); Anthony Boadle, U.S.
orders Twitter to hand over Wikileaks records, Reuters, Jan. 8,2011,

http://www.rcuters.com/article/idUSTRE70716420110108 (last visited Jan. 14,2011); Ravi Somaiya, Release on
Bail of WikiLeaks Founder Is Delayed by Appeal, N.Y. Times, Dec. 14,2010, available at
http://www.nytimes.com/2010/12/15/world/europe/15assangc.html?src=twrhp (last visited Jan. 3,2011); Assange
attorney: Secret grand jury meeting in Virginia on WikiLeaks, CNN Justice, Dec. 13,2010,
http://articles.cnn.com/2010-12-13/justice/wikileaks.investigation_ljulian-assange-wikileaks-case-grand-
jury?_s=PM:CRIME(last visited Jan. 3,2011); Dan Goodin, Grand jury meets to decide fate of WikiLeaks founder.
The Register, Dec. 13,2010, available at http://www.theregister.co.uk/20I0/l2/13/assange_grand Jury/ (last visited
Jan. 3,2011).

2 See Declaration of John K. Roche, Ex. 1 (“Roche Decl.”).

this Court in the same Grand Jury proceeding (“Twitter Order55),3 Google filed a motion to
. JDiidiiy.tbe Qriert_GjMgte’smo±iQn requestedjhatit.be permitted to. give nodes o.f the Ontario .
the Gmail user and the user’s attorney so they would have a meaningful opportunity to contest
the request. Shortly after Google filed its motion, the user identified' as in the Twitter

Order filed his own motion to vacate the Twitter Order.4 That motion was unsealed by this Court
and posted on the Internet by the user’s attorneys on February 8,2011.5 Despite the publicity
surrounding the Twitter Order and the related motions, on February 9,2011, Magistrate Judge
denied Google’s request to provide immediate notice of the Order to its user.6 Instead,
Magistrate JudgeH authorized Google to provide notice of the Order to the user 90 days
after production unless the government obtained a maximum 60-day extension of the non-
notification period.7 However, because the government’s interest in m^^electronic
communications is already so well-publicized and there is no risk of destruction of evidence, a
nondisclosure period of any length is not justified under these circumstances. Accordingly,
Google has today filed its Objections to Magistrate’s Order of February 9,2011 and Notice of
Appeal Pursuant to Fed. R. Cr. P. 59.

By this motion, Google requests an order to stay production of documents and
information in response to the Order while its concurrently filed Objections are pending. Google
respectfully submits that a stay should be granted because, as demonstrated in its Objections, it
has made a strong showing of likely success on the merits. Furthermore, Google and its

3 Roche Decl, Ex. 2

4 Id. Ex. 3.

5 See Electronic Frontier Foundation, Legal Battle Over Government Demands for Twitter Records Unsealed by
Court, Feb. 8,2011, http://www.eff.org/press/arctuves/2011/02/08 (last visited on Feb. 16,2011).

6 Id. Ex. 4.

''Id.

2

subscriber will suffer irreparable injury absent a stay because without a stay the very injury that
seeks to avoid, production of documents and information without notice to its subscriber,
will occur. Furthermore, the issuance of a stay will not injure the government, as it has already
agreed to delay production of identical documents and information in response to'the Twitter
Order and can offer no explanation as to why the documents and information sought by this
Order are urgently needed. Google has also preserved the requested records, thus there is no
danger of loss or destruction of the information sought. Finally, the issuance of a stay is in the
public’s interest because the public can have no interest in the enforcement of an unjustified
nondisclosure provision and a stay will ensure that the user is afforded an opportunity to assert
any Constitutional or statutory rights he or she may have with regard to the Order.

The pertinent factual background is set forth in Google’s Objections to Magistrate’s
Order of February 9,2011 and Notice of Appeal Pursuant to Fed. R, Cr. P. 59, which were also
filed today. Rather than burden the Court with a duplicative recitation of facts, that factual
background is expressly incorporated herein.

I. ARGUMENT

A. Standard of Review

The court’s decision whether to grant a stay pending appeal is governed by four factors:

1) whether the stay applicant has made a strong showing of likely success on the merits;

2) whether the applicant will suffer irreparable injury absent a stay; 3) whether issuance of a stay
will injure other parties to the proceeding; and 4) how issuance of a stay will affect the public
interest. U.S. v. Dyer, 750 F. Supp. 1278,1299 n.40 (E.D. Va. 1990).

- ’ ' 3-

B. The Court Should Grant a Stay of Production Pending Google’s Appeal
_____ X. Google Has Made a Strong Showing of Likely Success on the Merits_________

As set forth in Google’s Objections to Magistrate’s Order of February 9,2011 and Notice
^f_App^alFursuantToTed^rCfrPr59^Go^!e^is_liiceljrt'o^suTOWdl5irtbe^ientsrbecausirtiTe'
government’s investigation of Wikileaks generally, and its interest in the |^^|user name
specifically, is a matter of public record, thus obviating the need for the Order’s nondisclosure
provision. Furthermore, the Order, like the Twitter Order, may present substantial Constitutional
and statutory concerns that the user may wish to raise before this Court. Additionally, given that
the Order’s nondisclosure provision is a prior restraint on Google’s First Amendment right to
communicate with its users, a nondisclosure period of any length is not justified under these
circumstances. Finally, Google has preserved the requested records, thus there is no danger of
loss or destruction of the information sought. Accordingly, Google respectfully submits it has a
strong likelihood of success on the merits.

2. Google and its User Will Suffer Irreparable Injury Absent a Stay

Google brings its objections in order to provide its user with the opportunity to assess
whether the Order, like the Twitter Order, presents substantial constitutional and statutory issues
that the user may wish to raise before this Court If Google must comply with the Order before a
ruling is issued on its Objections, the government will have obtained the very information that
the user may seek to protect before the user ever has an opportunity to object. Hence, the
government will have gotten the documents and information it seeks, and any knowledge derived
therefrom cannot simply be erased from the minds of the government’s lawyers even if the user
were to subsequently prevail on appeal once he or she eventually receives notice of the Order.
Maness v. Meyers, 419 U.S. .449, 460 (1975) (“Compliance could cause irreparable injury

4 . •

because appellate courts cannot always ‘wiring the bell’ once the information has been
released.”!: In re Grand Jury Proceedings, 601 F.2d 162,169 (5th Cir. 1979) (Maness rule may
apply to pre-trial proceedings and surrender of non-constitutional rights or privileges).
Moreover, t‘the~SiipreweXoto^has~expiatned“tbat~tioss'ofTirstrAmendmenHreedorns,-for-evenr
minimal periods of time, unquestionably constitutes irreparable injury.”’ Newsom ex rel.
Newsom v. Albemarle County School Bd., 354 F.3d 249, 261 (4th Cir. 2003) (quoting Elrod v.
Burns, 427 U.S. 347,373 (1976). Therefore, to the extent the Court foresees any possibility that
the Order impinges on Google’s or its users First Amendment rights, those rights will suffer
irreparable injury absent a stay.

3. A Stay Will Not Injure the Government

The issuance of a stay will not injure the government, as it has already agreed to delay
production of identical documents and information in response to the Twitter Order and can offer
no explanation as to why the documents and information sought by this Order are urgently

t

needed. Indeed, the government filed a motion to delay the hearing on Google’s original motion
until after Judge Buchanan had an opportunity to rule on the Twitter Order. Moreover, to the
extent the Court agrees that Google is likely to succeed on the merits of its claim, the
government cannot suffer any harm from a stay pending appeal. Newsom, 354 F.3d at 261
(appellee suffered no harm by issuance of an injunction preventing it from enforcing a regulation
that was likely to be found unlawful). Finally, Google has preserved the requested records, thus
there is no danger of loss or destruction of the information sought if the Order is stayed.

4. Issuance of a Stay Will Serve the Public Interest

The issuance of a stay is in the public’s interest because the public can have no interest in
the enforcement of a nondisclosure provision where the underlying grand jury investigation and

5

the government’s interest in the electronic communications of the^^^J user name are so
public. McHan v. C.I.R., 558 F.3d 326,334 (4th Chr. 2009) (quoting In re Grand Jury Subpoena,
438 F.3d 1138, 1140 (D.C. Cir. 2006)) (“it is a ‘common-sense proposition that secrecy is no
-longer-“cecessaryl’-~when—the—contents—of- grand- -jury- matters- have- become public.’”).
Furthermore, a stay will ensure that the user is afforded an opportunity to assert any
Constitutional or statutory rights he or she may have with regard to the Order. Newsom, 354
F.3d at 261 (“Surely, upholding constitutional rights serves the public interest”).

II. CONCLUSION

For the reasons stated, Google requests an order to stay production of documents and
information in response to the Order while its concurrently filed Objections are pending.

DATED this 17th day of February, 2011.

Respectfully

John Knoche (VSB# 68594)
PerWmÂè LLP
7WÎ3th St, N.W., Suite 600
Washington, D.C. 20005-3960
Phone: 202-434-1627
Fax: 202-654-9106
JRoche@peridnscoie.com

Albert Gidari (pro hoc vice pending)

Perkins Coie LLP

1201 Third Avenue, Suite 4800

Seattle, Washington 98101

Phone: 206-359-8000

Fax: 206-359-9000

AGidari@perkinscoie.com

Attorneys for Google Inc.


CERTIFICATE OF SERVICE

I hereby: certify that on tin's 17th day of February, 2011, the foregoing document was sent via
hand delivery and email to the following persons:

Assistant United States Attorney

United States Attorney’s Office

Eastern District of Virginia

Justin W. Williams United States Attorney’s Building

2100 Jamieson Avenue

Alexandria, VA 22314-5794

Attorneys for the United States

Washington, D.C. 20005-3960
Phone: 202-434-1627
Fax: 202-654-9106
JRoche@perkinscoie,Com

Attorneys for Google Inc.

T

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

)

) Misc. No. I0GJ3793

IN RE 2703(d) ORDER AND 2703(f) )

PRESERVATION REQUEST RELATING ) ll-DM-2
TO GMAIL ACCOUNT )

) FILED UNDER SEAL

_________________________________________>

DECLARATION OF JOHN K. ROCHE IN SUPPORT OF
GOOGLE INC’S OBJECTIONS TO MAGISTRATE’S ORDER OF FEBRUARY 9,2011
AND NOTICE OF APPEAL PURSUANT TO FED. R. CRIM. P. 59 AND MOTION TO
STAY PRODUCTION PENDING APPEAL OF MAGISTRATE’S ORDER

I, John K. Roche, declare as follows:

1. I am an attorney licensed to practice in the Commonwealth of Virginia and the
District of Columbia, and am admitted to practice before this Court I am an associate in the law
firm of Perkins Coie LLP, counsel of record for Google Inc. ("Google”) in this action. As one of
the attorneys with responsibility for the representation of Google in this matter, I have personal
knowledge of the facts set forth below and am competent to testify about the matters stated
herein.

2. Attached hereto as Exhibit 1 is the January 4,2011 order of this Court issued to
Google pursuant to 18 U.S.C. § 2703(d) (the “Order”) in the above-referenced matter.

3. Attached hereto as Exhibit 2 is the December 14,2010 order of this Court issued

* l

to Twitter pursuant to 18 U.S.C. § 2703(d) (the “Twitter Order”) in the above-referenced matter.

4. Attached hereto as Exhibit 3 is the January 26,2011 Motion of Real Parties in
Interest Jacob Appelbaum, Birgitta Jonsdottir, and Rop Gonggrijp to Vacate December 14,2010

Order.

5. Attached hereto as Exhibit 4 is the February 9,2011 Order Granting in Part and
Denying in Part Google’s Motion to Modify 2703(d) Order for the Purpose of Providing Notice
to User.

6. Attached hereto as Exhibit 5 is the January 5,2011 order of this Court unsealing
the Twitter Order.

7. Attached hereto as Exhibit 6 is the January 12,2011 preservation request issued to
Google pursuant to 18 U.S.C. § 2703(f) in the above-referenced matter.

8. Attached hereto as Exhibit 7 is the Response of the United States to Google’s
Motion to Modify 2703(d) Order for the Purpose of Providing Notice to User.

I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.

2

CERTIFICATE OF SERVICE

I hereby certify that on this 17th day of February, 2011, the foregoing document was sent via
hand delivery and email to the following persons:

United States Attorney’s Office

Eastern District of Virginia

Justin W. Williams United States Attorney’s Building

2100 Jamieson Avenue

Alexandria, VA 22314-5794

Assistant United States Attorney

Attorneys for the United States

700 13th St., N.W., Suite 600
Washington, D.C. 20005-3960
Phone: 202-434-1627
Fax: 202-654-9106

JRoche@perkinscoie.com

Attorneys for Google Inc.

3

EXHIBIT 1

JAN. 5.2011 3:47PM

NO. 2750 P. 1/4

U. S. Department Of Justice

United States Attorney

Eastern District of Virginia

JUsttn if*. IVilltms UnliidSi«suAnavg/t ¡hutting
2iO0JanltiAlmndMn Virginia 233U-S7M
(f03) 299-33W

FACSIMILE TRANSMISSION
COVERPAGE

DATE: //■

TO: ,2nc.

PHONE: Afft7: HuMocie^n *3 fcU.c

TO FAX ~ Sqjft

SENDER: flU&VfOsyl- -fb

SENDER'S PHONENO,: 2^

SENDER’S FAX NO.: Qo j) *** **

NUMBER OF PAGES: 3 ""Not Including Cover Pago*

Level of Transmitted Information:

Q Non-Seniitire Information
'9* Sensitive But Unchmifled (SBU)
D Limited Official Use (LOU)

O Grand Jury Information
D T» Information
D Law Enforcement Information
o Victim Witness Information

CONTENTS:

WARNING: Information attached to this cover sheet is sensitivo U.$. Government Property.

If you are not the intended recipient of this Information, disclosure, reproduction, distribution, or use of '
this information is prohibited. Please notify this office immediately at the above number to arrange for
proper distribution.

EXHIBIT 2

DEC. 14. 2010 4:14PM

NO. 2530 P. 1/4

U.S. Department of Justice

United States Attorney

Eastern District of Virginia

JlMtn W. UnIM SMiiAtltkTx/l Bmldiitg

ugoJcailmtAvetm

Afaar&f,, mott
ate) imm

FACSIMILE TRANSMISSION
COVER PAGE


»ATE: |^||if| IQ

TO: 1r^c+fcr -AHn; Trttsf

PHONE:

TO FAXNO.t Q{-[C)

SENDEE: Ac«1b

SENDER’S PHONE NO.: "703

SENDER’S FAX NO.: .

NUMBER OF PAGES:
*Nat Including Cover Page*

Level of Transmitted Information:

O Non-Sensitive Information
£3 Sensitive Bat Unclassified ($BU)
&— Limited Official Use (LOU)

0 Grand Jury Information
O Tax Information
Q Law Enforcement Information
n Victim Witness Information

CONTENTS:

WARNING: Information attached to this cover, sheet is sensitive U.S. Government Property.

If you ate not the intended reoipient of this information, disclosure, reproduction, distribution, or use of
this Information is prohibited. Ploase notify this office immediately at the above number to arrange for
proper distribution.

DEC. 14.2010 4:15PM

NO. 2530 P. 2/4

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA.
ALEXANDRIA DIVISION

)

IN RE APPLICATION OF THE )
UNITED STATES OF AMERICA FOR ) MISC.NO. 10GJ3793
AN ORDER PURSUANT TO )
18 U.S.C.§ 2703(d) )
_> Filed Under Seal

ORDER •

This matter having come before the Court pursuant to an application under Title 18, United
States Code, Section 2703, which application requests the issuance of an order under Title 18,
United States Code, Section 2703(d) directing Twitter, Ittc., an electronic communications
service provider and/or a remote computing service, located in San Francisco, California, to
disclose certain records and other information, as set forth in Attachment A to this Order, the
Court finds that the applicant has offered specific and articulable foots showing that there are
reasonable grounds to believe that the records or other Information sought am relevant and
material to an ongoing criminal investigation.

IT APPEARING that foe Information' sought is relevant and material to an ongoing
criminal investigation, and that prior notice of this Order to any person of this investigation or
fold application and Order entered in connection therewith would seriously jeopardize foe
investigation;

IT IS ORDERED pursuant to Title 18, United States Code, Section 2703(d) that Twitter,
Inc. will, within foree days of foe date of this Order, turn over to the United States the records
and other information as set forth in Attachment A to this Order.

- DEC. 14.2010 4:15PM

NO. 2530 P. 3/4

FT IS FURTHER ORDERED that the Clerk of the Court shall provide the United States
Attorney’s Office with three (3) certified copies of this application and Order.

IT IS FURTHBR ORDERED that the application and this Order are sealed until
otherwise ordered by the Court, and that Twitter shall not disclose die existence of the
application or this Order of die Court, or the existence of the investigation, to the listed
subscriber or to any other person, unless anduntU authorized to do so by die Court.





• DEC. 14.2010 4:15PM

NO. 2530 P. 4/4

ATTACHMENT A

You are to provide the foil
electronic media, or email

; Information, If available, preferably as data files on CD-ROM,
|r otherwise by facsimile to '

A. The following customer or subscriber account information for each account registered to or
associated with \ ““ " ~~

) time period November 1,2009 to present:

1. subscriber names, user names, screen names, or other identities;

2. mailing addresses, residential addresses, business addresses, e-mail addresses, and
other contact information;

3. connection records, or records of session times and durations;

4. length of service (including start date) and types of service utilized;

5. telephone or instrument number or other subscriber numb» or identify, including any
temporarily assigned network address; and

d. means and source of payment for such service (including any credit card or bank

account number) and billing records.

B. All records and other information relating to the accounts) and time period in Part A,

including:

1. records of user activity for any connections made, to or from the Account; including
the date, tíme, length, and method of connections, data transfer volume, user name,
and source and destination Internet Protocol address(es);

2. non-content information associated with the contents of any communication or file
stored by or for the accounts); such as the source and destination email addresses and
IP addresses.

correspondence and notes of records related to foe accounts). '

3.

EXHIBIT 3

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

FILED.

2011 JAM 2b P £5b

WSSSISF

IN RE APPLICATION OF THE UNITED
STATES OF AMERICA FOR AN ORDER
PURSUANT TO 18U.S.C. § 2703(d)

MISC NO. GJ3793

ORAL ARGUMENT REQUESTED

MOTION OF REAL PARTIES IN INTEREST JACOB APPELBAUM, BIRGITTA
JONSDOTTIR, AND ROP GONGGRIJP TO VACATE DECEMBER 14,2010 ORDER

m.01

TABLE OF CONTENTS

Ï3SÈ
I. INTRODUCTION
n. BACKGROUND .. 2
m. ARGUMENT -
A. No “specific and articulable facts” exist to show that the information sought is “relevant and material” to an ongoing criminal investigation... -- 4
B. The Order Should be Vacated Because it Intrudes Upon the Parties' First Amendment Rights ,. , ,7
C. The Order Should be Vacated Because it Threatens the Parties’ Fourth.
D. The Court Should Exercise its Discretion Under 18 U.S.C. § 2703(d) and Avoid Serious Constitutional Questions by Vacating the Order and Requiring a Warrant. ,
E. The Request for Information about a Member of the Icelandic Parliament. Ms. Jonsdottzr. Raises Additional Concerns
IV. CONCLUSION.

J015.01

I

TABLE OF AUTHORITIES

Pa eefs)

Federal Cases

Ashwatider v. Tennessee Valiev Auth.

297U.S. 288 (1936).................................................------------16

Branzburg v. Hayes

408 U.S. 665 (1972)....................................-..........................9

City of Ontario v. Ouon

130 S. Ct 2619,177 L. Ed. 2d 216 (2010)—.......................................16

Cromer v. Brown

88F.3d 1315 (4th Cir. 1994).........................-..........................8

Eastlandv. U.S. Servicemen’s Fund

421 U.S. 491 (1975)..........................................—.................9

Franks v. Delaware

438 U.S. 154 (1978)..,.........................................................7

Gibson v. Fla. Legislative Invest. Comm.

372 U.S. 539 (1963)............................................................„9

Hess v. Indiana

414U.S. 105 (1973)..........-..................................................7

In re First Na’'l Bank

701 F2d 115 (10th Cir. 1983)...................................................9

In re Grand Jury 87-3 Subpoena

955F.2d229 (4th Cir. 1992)..............-....................-.............„„...9

In re Grand Jury Subpoenas Duces Tecum.

78 FJd 1307 (8th Cir. 1996)....................................................9

Inc. v. Verio. Inc.

356 F. 3d 393 (2nd Cir. 2004)..................................................11

Kyllo v. United States

533 U.S. 27 (2001)-------------......--------------------------------------12,13

Local 1814, Int 7 Longshoremen’s Ass ’n v. Waterfront Comm 'n ofN. Y.

Harbor

667 F2d 267 (2d Cir. 1981).....................................................9

. NAACP v, Alabama ex rel. Patterson . *

■ 357U.S. 449 (1958)............................................:......'..........7

North Carolina Rt. To Life v. Bartlett

168 F.3d 705 (4th Cir. 1999).......-...........................................8

Noto v. United States

367U.S. 290 (1961).............................................................8

■ Pollardv.Roberts •-*-

. . 283 F.iijpp'. 248"(E.D.'Arfc. 1968), ....



Roberts v.U.S.Javcees' • *’ . ■ •

468 U.S. 609 (1984)............-........................................*.....12

J015.01

Raviaro v. United States
353 U.S. 53 (1957)....................

Shelton v. Tucker

364 U.S. 479 (1960).................

Smith v. Maryland

442 U.S. 735 (1979).................

Sony Music Entertainment Inc. v. Does 1-40
326 F. Supp. 2d 556 (S.D.N.Y. 2004)...

Stoner v. CaKfomia

376 U.S. 483.........................

Trulockv. Fresh

275 F 3d 391 (4th Cir. 2001).....- .....................-......

United States v. Brignoni-Ponce

422 US 873 (1975)..........................................—.........

United States v. Carey

172 F3d 1268 (lOtfiCir. 1999)............:.......................

United States v. Karo

468 US 705 (1984) ..............

United States v. Mann

592 F3d 779 (7th Cir. 2010).........,............................

United States v. Maynard

615 F.3d 544 ÍD.C. Cir. 2010), pet. forreh’gen banc denied(D.C. Cir.
Nov. 19,2010) ... ...............

United Stales v. Smith

780 F.2d 1102 (4th Cir. 1985) (en banc)..........................

United States v. Valenzuela-Bemal

458 U.S. 858 (1982)..................................................

Virginia v. Black

538 U.S343 (2003)................................................

State Cases

Brandenburg v. Ohio

395 U.S. 444 (1969)..........

Terry v. Ohio

392 US 1 (1968)...............

United States v. Janes
. . : . 242 F.3d 215 (4th Cir, 2001)....

Federal Statutes

18U.S.C. § 2701 etseq...................................

Federal Rules

Rule 41 of the Federal Rules of Criminal Procedure......

• Constitutional Provisions. •

First Amendment...!.....1........:......................

Fourteenth Amendment....................................

Fourth Amendment........................-...............

iii

..5

..8

13

11

..........12

...12,13,14
..........12

,,..■......».*.14

............5

............5

............7

.7

.5

....passim

.......15

* " , ’ .* • *

* • * • *v

.'...passim .

.........7

....passim

.0015.01

17

Article I, Section 6t danse 1, of the U.S. .Constitution.

Other Authorities

HR. Rep. No. 103-827 (1994)

S. Rep. No. 99-541 (1986)...,...



..2

15





0015,01

IV

I.

INTRODUCTION

Real parties in interest Jacob Appelbaum, Birgitta Jonsdottir, and Rop Gonggrijp
(collectively “Parties”) hereby move to vacate the Court’s December 14,2010 Order requiring
Twitter, Inc. to disclose extensive information related to their private Twitter accounts pursuant
to section 2703(d) of the Stored Communications Act, 18 XJ.S.C. § 2701 etseq. (“December 14
Order” or “Order”). There is no reasonable basis for the Order and the Court should vacate it for
the following reasons.

First, the face of die December 14 Order demonstrates that the government’s ex parte
Application purportedly “showing that there are reasonable grounds” for the Order likely
contains material errors or omissions that rend» die Application insufficient.1 The face of the
December 14 Order indicates that the government’s underlying investigation presumably relates,
in some way, to the website WikiLeaks. Under 18 U.S.C. § 2703(d), therefore, any application
must provide “specific and articulable facts” showing that the Parties’ Twitter information
sought is both “relevant” and “material” to an on-going investigation about WikiLeaks. No such
“specific and articulable facts” could have been provided here, however, because the government
has sought information about aU of the Parties’ Twitter-related publications and speech over a 6
Yz month period of time and all of the Parties’ Twitter-based direct messages between themselves
and certain others, even though the vast majority of that information has nothing to do with
WikiLeaks at all. As such, non-WikiLeaks-related information cannot be relevant or material to
a WikiLeaks-related investigation and the government’s Application cannot have provided the
specific facts needed to justify a proper § 2703 order.

Second, the Order intrudes upon important First Amendment rights. It is impermissibly
overbroad because it demands production of information that will not directly further the
government’s purported interests. Moreover, to the extent that the Parties’ Twitter accounts are
subject to government snooping because of what the Parties have said and because of who they

' 1 As detailed further befow, the government’s refusal fo provide the Parties with' its Application,

‘ ! therefore denying the Parties an opportunity to respond directly to its assertions, does not' prevent
the Parties from challenging these problems because courts have long recognized the right to
challenge third-party production demands—even where the request is cloaked in secrecy. In
light of this secrecy, the Parties have filed a companion Motion to Unseal the Application. If the
Court orders disclosure of such materials, the Parlies will supplement this Motion.

(0015.01 .

know, that it impermtssable. They each spoke on Twitter about what has become a political
cause, i.e., the WikiLeaks website and its founder Julian Assange. But, the First Amendment
guarantees their right to speak up for and freely associate with even unpopular people and
causes. Where a disclosure demand implicates First Amendment freedoms, it must be
scrutinized with special care and governmental fishing expeditions that improperly intimidate
and silence cannot survive First Amendment scrutiny.

Third, the Order threatens the Parties’ Fourth Amendment rights because disclosure could
reveal that the Parties were located in particular private spaces at particular times—information
in which they maintain areasonable expectation of privacy. The government cannot track
movements and location that may reveal intimate details of a person’s life without the safeguards
of a valid warrant based on probable cause.

Fourth, because the Order and Application raise serious constitutional concerns, the
Court should exercise its discretion under § 2703(d) to require the government to obtain a
warrant based on probable cause. The Court should exercise this discretion here to avoid the
constitutional questions raised by warrantless disclosure and ensure that the Parties’ rights are
not improperly trampled.

Finally, the demand for information about Ms. Jonsdottir—a Member of the Icelandic
Parliament—is contrary to Icelandic law and creates a disturbing precedent regarding a foreign
government’s ability to collect private data from another country’s officials.

When Congress amended the Stored Communications Act in 1994, it emphasized the
need to "guard against ‘fishing expeditions’ bylaw enforcement.” See H.R, Rep. No. 103-827,
at 31-32(1994), reprinted in 1994 U.S.C.A.A.N. 3489,3511-12. Here, the Court should do just
that by vacating die December 14 Order and denying the government’s Application for records..
related to the Twitter accounts associated with "rop_g”; “ioerror,” and “birgjttaj.”

n. BACKGROUND

On December 14,2010, this Court entered a sealed order directing Twitter, Inc. to

JÚ15.01

2

its users, including the Parties here. Sears Decl.,2 Exh. 1 (the “Dec. 14 Order’). On January 5,
2011, the Court unsealed the Order. Sears Decl., Exh. 2. Twitter informed the Parties of the
record demand two days later. See, e,g., Sears Dec!., Exh. 3.

The Parties’ Motion for Unsealing of Sealed Court Records, filed concurrently, provides
a detailed factual and procedural background. The Parties incorporate that discussion by
reference rather than repeat it here. See Motion lor Unsealing of Sealed Court Records at 4-6.

in sum, the December 14 Order requires Twitter to provide the government with records
related to the Parties’ Twitter accounts —including home addresses, connection records, and
Internet Protocol addresses.3 See Exh. 1 (Dec. 14 Order at Attach. A). Twitter is an on-line
communications tool that permits users to express their thoughts in individual messages
("Tweets”) of 140 characters or less. See Motion to Unseal at 4-6; see also
http://twitter.com/about. The heart of the service is short, public text messages that express
opinions, relate droughts, and provide commentary. Users can also provide links to other
websites (if space permits), “re-tweet” (i.e., re-publish) Twitter messages made by others, and
send direct messages to other users.

Here, all three Parties—Jacob Appelbaum, Birgitta Jonsdottir, and Rop Conggrijp—have
public Twitter feeds they use to express opinion and share commentary on public events and
issues. Anyone can read their Tweets at the Twitter website and anyone can sign up to follow
the Parties* Twitter feeds. Each of the Parties uses Twitter extensively and/or has thousands of
“followers” who follow what they post.

On its face the Dec. 14 Order seeks information about all of those who received the
Parties’ publications, and private messages, mapping their associations and audience. Even after
the actual information to be produced under the Order was narrowed by the government pursuant
to concerns raised by Twitter,4 it requires Twitter to disclose such information for all of the

2 Declaration of Stuart Sears In Support of Motion Of Real Parties In Interest Jacob Appelbaum,
Birgitta Jonsdottir, and Rop Gonggrijp to Vacate December 14.2010 Order (hereinafter “Sears
Decl”). « * • *. •* *..............

3 An Internet Protocol (“IP”) address is a unique'numerical address that identifies, individual ■

' computers or other devices as they interact over the Internet. See infrd at 1UC:

4 The government has not conceded that its original Order was improper in any manner. Nor has
the government agreed never to ask for the foil scope of the originally demanded information.

3

40015.01

Parties* Twitter-related speech (called “Tweets11) for multiple months, i.e., November 15,2009
to June 1,2010, regardless of any connection between the postings and WikiLeaks. Such
information is also requested for all of the Parties’ Twitter-based direct messages between each
other during the same multi-month time period—again, regardless of any connection between the
messages and WikiLeaks. The Order's breadth is significant because each of the Parties use
Twitter extensively and/or have thousands of “followers” who follow what they post - as of
January25,2011, Mr. Appelbaum has posted 7,909 Tweets and has 10,699 followers, Ms.
Jonsdottirhas posted 1211 Tweets and has 5,904 followers, and Mr. Gonggrijp has posted 77
Tweets and has 4223 followers. Mr. Appelbaum, Ms. Jondottir and Mir. Gongrijphave also all
published many Twitter messages that are wholly unrelated to WikiLeaks, including tweets
which comment on the political situations in Tibet and Tunisia, comment on the Icelandic
volcano that blanketed Europe with ash in 2010,-or address issues such as the TSA, obscenity
and gay marriage laws, and charitable causes. See Sears Decl. Exh. 4 (examples of the Parties’
non-WikiLeaks related Twitter postings). Thus, the Application and Order must be viewed for
what they are—an improper and overbroad fishing expedition.

III. ARGUMENT

A. No “specific and articulable facts” exist to show that the information sought is

“relevant and material” to an ongoing criminal uwestigation-

To obtain an order to disclose customer records under the Stored Communications Act,
the government must provide “specific and articulable facts showing that there are reasonable
grounds to believe that the... records or information soughtfj are relevant and material to an
ongoing criminal investigation.” 18 U.S.C. § 2703(d) (emphasis added); In the December 14
Order, the Court found that it.appeared “that the’mforiuatioh sought is.relevant'and material to an
ongoing criminal investigation” and granted tire disclosure request The Court, however, was
constrained in its consideration at that time because it had before it only the government’s
Application for the section 2703(d) disclosure order. The Parties believe the government’s

Application must contain material errors or omissions because there can be no reasonable basis

As a result, Movants’ challenge to the December 14 Order need not be limited to the narrowed
demand.

.0015.01

4

for finding that the information sought here regarding the Parties’ Twitter accounts is both
"relevant?’ and ‘‘material” to an ongoing investigation.

Section 2703’s "specific and articulable” fact standard requires more than mere suspicion
to justify a disclosure order. Even in the context of an investigative stop based on suspected
illegality, the government cannot simply rely upon an “inchoate and unparticularized suspicion
or hunch,” but instead must demonstrate specific facts regarding possible illegal conduct to
justify a stop. See, &g., Terry v. Ohio, 392 US 1,27 (1968); United States v. Jones, 242 F.3d
215,217 (4th Cir. 2001) (finding that the "specific and articulable” standard forbids reliance on
suspicions or hunches and therefore rejecting a search based upon an uncorroborated tip); United
States v. Brignom-Pcnce, 422 US 873,882,884-85 (1975) (rejecting a search based upon one
factor, the defendant’s race, because the reasonableness requirement demands more than “broad
and unlimited discretion” and instead requires specific facts demonstrating reasons to believe
that potential illegal conduct may be occurring). Here, however, the government is reaching
beyond a simple investigative stop and is broadly seeking non-public information regarding the
Parties’ protected Twitter-based speech and association^ contacts. At a minimum, therefore, the
government must be required to articulate "specific and articulable facts” that do more than
speculate about a nexus between the specific information sought and the potential targets of the
government’s WikiLeaks-related investigation.

Section 2703 also requires the government to meet its materiality requirement before any
order may issue. In a number of contexts, the United States Supreme Court and the Fourth
Circuit have emphasized that a showing of materiality requires more than mere theoretical
relevance. To establish materiality, the party seeking disclosure must establish through more

• than mere speculation that the information is, i.e., "vital” or "highly relevant” to the inquiry or -
“helpful” or “essential” to the party’s position. See, e.g., United States v. Valenzuela-Bemal,

458 U.S. 858,867-73 (1982) (access to evidence); Roviaro v. United States, 353 U.S. 53,62-65
(1957) (disclosure of informant’s identity); United States v. Smith, 780 F.2d 1102,1109 (4th Cir.

• 1985) {¿nbdncf (standard fbf'oVfercoihing classified information privilege).' V
. ■ - * - -

'. . Tellingly, the Government refuses- to provide its Application to the Parties so that the

>10015.01

5

Parties may directly challenge the Government’s statements seeking to justify the search.5 But;
whatever the Application may claim, it cannot tell the whole story and cannot establish that the
information sought in this Order is both “relevant and material to an ongoing criminal
investigation.” 18 U.S.C. § 2703(d) (emphasis added). Indeed, although the face of the
December 14 Order suggests that this investigation relates to WikiLeaks6, the Order requires
Twitter to provide the government with records related to thousands of die Parties’ ‘Tweets”
over many months that have nothing whatsoever to do with WikiLeaks. The Parties Tweets
about issues such as the political situations in Tibet and Tunisia, a volcano in Iceland, theTSA
obscenity and gay marriage laws and charitable cases are not relevant to die government’s
purported investigative purpose—and they certainly cannot be vital or essential to file
government's investigation into WikiLeaks.

Moreover, despite the fact that the Parties’ Twitter messages coyer a broad range of non-
WikiLeaks topics, die government wants private information related to the Parties' accounts, all
their Tweets and all their direct messages to each other and certain others during the relevant
time period—even information that the Parties do not choose to share with the world. This
includes the Internet Protocol address (“IP address”) information related to each time the Parties
logged into Twitter over a 6Yi month period of time, the IP address information related to the
Parties’ direct messages to themselves and certain others, and the date and time information
related to all the Parties’ log Ins and direct messages over filis multi-month time period. This
Order requires production of this information for all the Parties’ Tweets and direct messages
during a multi-month time period, without regard to whether the messages relate to WikiLeaks or
any other specific subject

. In lightof the Order’s mandate to produce a bread swath of data that has no connection -

5 The Parties have filed a companion Motion to Unseal the Application and will supplement this
Motion if the Court orders disclosure. Even if the Application is not unsealed, it should be
disclosed to the Parties under seal so they can fairly challenge the December 14 Order and
address foe government’s statements directly on Reply.

t Press reports issued after the Order became public confirm this WikiLeaks connection.. See,,
'e.g., Scott Shane and John F. Burns, U.S. Subpoenas Twitter Over WikiLeaks Supporters’, KY.'
Times, Jan. 9,’2011, at A1 available at htipj/www.ny tmes.com/20W01/09/worldf09vAki.himh
David Batty, US Orders Twitter To Hand Over WikiLeaks Members * Private Details, The
Guardian. Jan. 8. 2011.

540015.01

6

whatsoever to WikiLeaks and cannot be relevant or material to any investigation, the December

14 Order should be vacated, the Application disclosed, and die Parties afforded a fair opportunity

to further challenge the Government’s assertions and highlight any material misstatements or

omissions in the Application. See Frank v. Delaware, 438 U.S-154,169 (1978).

B. The Order Should be Vacated Because it Intrudes Upon the Parties’ First
Amendment Rights.

On its face, the Order threatens the Parties’ protected First Amendment rights. The
Parties’ Twitter-related activities are core protected conduct and speech is entitled to the highest
level of First Amendment protection. See, e.g., Brandenburg v. Ohio, 395 U.S. 444,447 (1969)
(“the constitutional guarantees of free speech and free press do not permit the State to forbid or
proscribe advocacy of the use of force or of law violation except where such advocacy is directed
to inciting or producing imminent lawless action and is likely to incite or produce such action”);
Hess v. Indiana, 414 U.S. 105,108-109 (1973) (the state may not criminalize advocacy ofthe
use of force or law-breaking unless the charged conduct is “intended to produce, and likely to
produce, imminent disorder”) (emphasis in original)).

■ The Supreme Court’s holding in Virginia v. Black, 53 8 U.S.343 (2003), illustrates the
sanctity of speech. The Court emphasized that the government may not prohibit “dissemination
of social, economic and political doctrine”—even that “which a vast majority of its citizens
believes to be false and fraught with evil consequence.” Id. at 358 (citation omitted). Even
distasteful and threatening gatherings and speeches are protected in our democracy.

Brandenburg, 395 U.S. at 447. As the Court explained in Brandenburg, efforts to “punish mere
advocacy and to forbid, oh pain of criminal punishment, assembly with others merely to

• » .

advocate the described type of actipn” violate the First Amendment: Id. at'449. " *

Moreover, freedom of association even with unpopular individuals and groups is an
inseparable aspect of Constitutional “liberty.” NAACP v. Alabama ex rel. Patterson, 357 U.S.
449,460 (1958) (“It is beyond debate that freedom to engage in association for the advancement
of b'elièfs and ideas is an Inseparable aspect ofthe ‘liberty’‘assured By.theDué Process Clause of ‘

■ * * i * ,, • • , • ■ , - • * •».»*,.» - * ‘ 2 > “» . t* " >

** • ‘ • ’ * • * , a - *

the Fourteenth Amendment.which embraces freedom of speech-.”). Indeed,.“[t]he right to
associate in order to express one’s views is ‘inseparable’ from the right to speak freely.” Cromer

.-10015.01

7

v. Brown, 88F.3dl315,1331 (4thCïr. 1994) (citation omitted). As the Fourth Circuit
explained, “we have long understood as implicit in the right to engage in activities protected by
the First Amendment a corresponding right to associate with others in pursuit of a wide variety
of political, social, economic, educational, religious, and cultural ends.” Id. (quoting Roberts v.
US. Jaycees, 468 U.S. 609,622 (1984)); see also Shelton v. Tucker, 364 U.S. 479,486 (1960)
(“the right of free association is a right closely allied to freedom of speech and a right which, like
free speech, lies at the foundation of a free society”).

Here, the government has declared its disapprobation of‘WikiLeaks and its desire to
prosecute somebody associated with it Attorney General Holder personally proclaimed that the
government will prosecute anyone it can and that the Department of Justice’s tough talk ‘‘is not
saber-rattling.” See Fete Yost, Assoc. Press, Holder says WUdleaks under investigation,
httph'/news.yahoo.com/s/ap/20101129/ap_on jÿ>_ca_st_pe/us_wikilcaks_holder (Last visited on
Jan. 25,2011). But, no matter how much the Government dislikes any given speech or
advocacy, it cannot use that protected conduct as a pretext for searches or a basis for criminality.7

The Government’s fishing expedition into information about all foe Parties’ Twitter
postings, and about certain of the Parties’ direct messages, over a 614 month time period may
chill foe Parties’ and other individuals’ rights to speak freely and associate with others. Such
governmental efforts that chill expression must be analyzed with particular scrutiny. North
CarolinaRL To Life v. Bartlett, 168F.3d 705,715(4foCir. 1999). Moreover, where “an
investigation ... intrudes into the area of constitutionally protected rights of speech, press,
association and petition,” foe government must “convincingly show a substantial relation
between the information sought and a subject of overriding and compelling state interest.”

Gibson v'.Fla. Legislative Invest Comm., 372 U.S. 539,546 (1963)’; see also In re Grand Jury
Subpoenas Duces Tecum., 78 F.3d 1307,1312 (8th Cir. 1996) (“A grand jury subpoena will be

' Even where an organization is alleged to have illegitimate aims, the government may not paint
all supporters or advocates with a broad bnish, ignoring foe particulars behind each individual’s
speech;-association, arid intent. Rather, foe actions of persons accused of jfojpropferly supporting *.
- 'sttch'^üjjs/hi^sfc'bejûdged s/rictesii(di^H;f(}r.Qtherwis6theie'fs'a'danger that ohé m -

sympathy with foe legitimate aims of foe organization, but not specifically intending to
accomplish them by resort to'violence, might be punished for his adherence to lawful and
constitutionally protected purposes, because of other unprotected purposes which he does not
necessarily share.” Nolo v. United Stales, 367 U.S. 290,299-300 (1961). ■

8

-10015.01

enforced despite a First Amendment challenge if die government can demonstrate a compelling
interest in and a sufficient nexus between the information sought and the subject matter of its
investigation.”);/« re First Na‘‘l Bank, 701 F.2dll5,119 (10th Cir. 1983) (“If the district court
determines that enforcement of the subpoena would likely chill associational rights, the
Government must show a compelling need”). As the Supreme Court has cautioned, “justifiable
governmental goals may not be achieved by unduly broad means having an unnecessary impact
on protected rights of speech» press, or association.” Branzburg v. Hayes, 408 U.S. 665,680-81
(1972).

' i

Courts have long recognized individuals* right to challenge disclosure demands that
implicate First Amendment freedoms and reviewed such demands with special care. See, e.g.,
Eastland v. US. Servicemen’s Fund, 421U.S.491,501 n.14 (1975) (individuals must have right
to challenge third-party subpoena for their records or unconstitutional intrusions could go
unchallenged); Pollard v. Roberts, 283 F. Supp. 248,258-59 (E.D. Ark. 1968) (three-judge
court), aff’d per curiam, 393 U.S. 14 (1968) (enjoining subpoenas directed at third-party bank
because enforcement would violate customer’s First Amendment rights of association); In re-
First Nat ’IBank, 701 F.2d at 117-19 (remanding for evidentiary hearing on claims that
government’s compulsion of information from third parties would violate target’s First
Amendment right of association); Local 1814, Int 7 Longshoremen rs Ass n v. Waterfront
Comm’n ofN.T. Harbor, 667 F.2d 267,271,274 (2d Cir. 1981) (upholding district court’s
decision to narrow third-party subpoena to limit impairment of targets’ First Amendment rights
of association).®

Herb, the government’s Application and the Order collide directly with the Parties’ First
Amendment rights, Including-by seeking.private IP address information and other details for all ‘
the Parties’ Twitter messages posted over a period of more than six lA months. Thé government 8

8 The Parties recognize that the Fourth Circuit has wondered aloud in dicta about how the First
Amendment may. affect “the standards governing grand jury investigations.” In. re Grand Jury. ■
-. 87-3-Subpoem, 95*5 F^d 229,-232-34'(4th Cir. 1992). But inihat-case, the real jiaity’s-First ... .
"Amendment rights wefe'not implicated; so the Gourtavoided the substantial relatiimship test •

* issue. Id. at 232-33. Ifspccificallydid hot decide “the ‘First Amendment versus Grand Jury’
dilemma” that other courts have resolved by requiring the government to satisfy the substantial *
relationship test, as discussed above.

.40015.01

9

cannot claim that all—or even most—of these postings have anything to do with WikiLeaks, its
criminal investigation, or matters to be considered by the grand jury. The Application and Order
also seek details related to all direct messages between die Parties without any apparent showing •
that any such messages that might exist are related in any way to WikiLeaks, the government’s
criminal investigation, or matters to be considered by the grand jury, in light of these significant
First Amendment concerns, the Government cannot use die Parties’ purported association with
WikiLeaks as a sufficient basis for obtaining the Twitter records here.

The Court should vacate its December 14 Order and reconsider in tight of these Fust
Amendment principles. Unless the government can show that the information sought would
further a compelling interest and that die requests here are the least restrictive way to serve that
interest, the government’s efforts to seek private data regarding the Parties’ Twitter use should
be rejected.

C. The Order Should be Vacated Because it Threatens the Parties’ Fourth Amendment
Rights.

In addition to implicating die Parties’ First Amendment rights, the Order threatens to
violate Parties’ Fourth Amendment rights as well. The Order threatens such rights because it
requires the production of the IP addresses used by Parties at particular dates and times when
they logged into their Twitter accounts. Such information could reveal when Parties were
located in particular private spaces and is information in which the Parties maintain a
constitutionally-protected reasonable expectation of privacy.

IP address information, linked to date and time, such as that sought in the December 14
Order, could allow the government to discern the' physical location of the Parties at the exact
’■ time they were pubtishing on Twitter. As the Second Circuit explained: '

The Internet is comprised of numerous interconnected communications and
computer networks connecting a wide range of end-users to each other. Every
end-user's computer that is connected to the Internet is assigned a unique Internet
Protocol number (IP address), such as 123.456.78.90, that identifies its location
(/.., a particular computer-fo-network connection) and serves as the routing

• - address-foi: email, pictures, requests to view a web page, and other'data .sent

• ai^oss'thVfotemetftonio'tligr'end-iiseis...........................................

• • ‘ * *

Register, com, Inc. v. Verio, Inc., 356 F. 3d 393,409-410 (2nd Cir. 2004) (citation omitted). In

,0015.01

10

. many instances, this information can then simply and easily be translated into the physical
location of the speaker, based on publicly available information.9 As one Court observed, “the
process by which defendants IP addresses can be matched up with specific geographic
designations, using a publicly available database operated by the American Registry for Internet
Numbers. These geographic designations indicate the ‘likely’ locations of the residences or
other values where defendants used their Internet-connected computers.” Sony Music
Entertainment Inc. v. Does 1-40,326 F. Supp. 2d 556,567 (S.D.N.Y, 2004). To the extent that
an IP address alone do» not reveal physical location, an IP address in combination with die
records of the Internal Service Provider that assigned the IP address to a particular subscriber can
still reveal physical location, as explained in die Justice Department’s computer search and
surveillance manual:

In a common computer search scenario, investigators leam of online criminal
conduct. Using records obtained from a victim or from a service provider,
investigators determine the Internet Protocol (“IP”) address used to commit the
crime. Using a subpoena or other process...investigators then compel the Internet
Service Provider (“ISP”) that has control over that IP address to identify which of
its customers was assigned that IP address at the relevant time....

f

Computer Crime and Intellectual Property Section, Criminal Division, U.S. Department of
Justice, Searching and Seizing Computers and Obtaining Evidence in Criminal Investigations,
ch. II, § (CX1)00 at 65, available at

http://www.usdoj.gov/crimmal/cybercrirne/s&smanual2002.pdf (last visited Jan. 24,2011).

Thus, by demanding die IP addresses linked to each date and time that each of the Parties logged
into the Twitter service over a multi-month period, the government can use such information to
try to determine the Parties’ locations at the very times they were engaged in publishing-'-
'* regardless of Whether the underlying'speech was related to WikiLeaks, and regardless öf whether '
they were Tweeting from a public or a private space.

The government’s request for IP addresses here is significant given how such information

•• 'l} The accuracy of IP Address geolocatioiican'depend oh many factors, includinghow an ISP has'

•V set up.its'network' of servers and whether ail Internet user utilizes'one of several tools fliat allow
Internet users to obfoscate their IP addresses. However, one of the leading companies advertises
that its free gelolocalion tool can determine the location of “79% [of U.S. IP addresses] within a
25 mile radius.” MaxMind web site, (accessed
November 19,2010).

40013.01

11

may reveal location information. Over a quarter of a century ago, the Supreme Court held in
United States v. Karo, 468 US 705 (1984), that location tracking implicates Fourth Amendment
privacy interests because it may reveal information about individuals in areas where they have
reasonable expectations of privacy. Li Karo, the police placed a primitive tracking device known
as a beeper inside a can of ether and used it to infer that the ether remained inside a private
residence. In considering the Fourth Amendment challenge to the use of the beeper, the Court
held that using an electronic device to infer facts about ‘locationfs] not open to visual
surveillance,” such as whether “a particular article is actually located at a particular time in the
private residence,” or to later confirm that the article remains on die premises, was just as
unreasonable as searching the location without a warrant. Karo, 468 U.S. at 714-15. Such
location tracking, the Court ruled, “falls within the ambit of the Fourth Amendment when it
reveals information that could not have been obtained through visual surveillance” from a public
place, whether it reveals that information directly or enables inferences about the contents of
protected spaces. Id. at 707, see also Kyllo v. United States, 533 U.S. 27,36 (2001) (rejecting
“the novel proposition that inference insulates a search,” noting that it was “blatandy contrary’
to the Court’s holding in Karo “where the police ‘inferred’ from the activation of a beeper that a
certain can of ether was in die home.”). This reasonable expectation of privacy in die contents of
protected spaces is not limited to die home but extends to other private spaces as well.10 See,
e.g., See v. City of Seattle, 387 US 541,543 (1967) (business premises); Stoner v. California, Y!6
U.S. 483 486 (1964) (hotel room).

' “ Although the Parties have not found any cases specifically addressing Twitter data, numerous
courts have recognized that computer users also have a reasonable expectation of privacy in their
.. computer-related data.' Se'e lYulockv. Fresh, 275.F.3d 391,40Z-403 (4th Ciir. 2001). ‘

(determining whether a search of computers wasfeasonable under 4th Amendment standards arid
holding that the plaintiff “had a reasonable expectation of privacy in the password protected
computer files”); United States v. Mann, 592 F.3d 779,786 (7th Cir. 2010) (reviewing computer
searches under 4th Amendment standards and cautioning that those “invplved in searches of
digital media need to exercise caution to ensure that...searches are narrowly tailored to uncover
on those things described” in a wamxA)-, United States v. Carey, 172 F.3d 1268,1275 (10th Cir.
1999) (noting 4th Amendment concerns in searching computer stored data, particularly where

• •: • relevant and non-relevant dies are “intermingled” together); see also United States v. WarshaK
:• • 2O10fWL'5.(f7j766 a( ** 11 j'14 (6* *'Cir.Dec. 14/2010) (noting that given the fundahiental''

. similarities between email and traditional forms of communication, it would defy common sense ■
to- afford emails lesser Fourth Amendment Protection” and therefore holding that “a subscriber •
enjoys a reasonable expectation of privacy in the contents of emails that are shared with, or sent
or received through, a commercial ISP’”).

(0015.01 ,,, •

. Relying on Karo and Kyllo, the Third Circuit recently concluded that the records of a cell
phone provider that indicate the location of a subscriber’s cell phone (‘‘cell site location
information” or “CSLI”) may violate the Fourth Amendment to the extent such records can
establish that a cell phone was in a particular private space at a particular time. In re Application
of US. for art Order Directing a Provider of Elec. Commc'n Serv. to Disclose Records to Gov't,
620 F.3d 304 (3d Cir. 2010) (“Third Circuit Opinion'1). Specifically, a majority of the Panel
concluded that it “cannot reject the hypothesis that CSLI may, under certain circumstances, be
used to approximate the past location of aperson. If it can be used to allow the inference of
present, or even future, location, in this respect CSLI may resemble a tracking device which
provides information as to the actual whereabouts of the subject” and is therefore protected under
Karo. Third Circuit Opinion, 620 F.3d at 312; see also id at 320 (Tashima, J., concurring)
(citing Kyllo for the proposition that government access to CSLI absent a showing of probable
cause would violate the Fourth Amendment if that information “reveals a cell phone user's
location within the interior or curtilage of his home”).

Importantly, the Third Circuit held that a cell phone user’s Fourth Amendment interest in
CSLI is not eliminated by the fact that such information is a record of the phone company.
Distinguishing the telephone dialing information that the Supreme Court found to be unprotected
under the Fourth Amendment in Smith v. Maryland, 442 U.S. 735,744-45 (1979), the Court
emphasized that cell phone users do not voluntarily convey their location to tire phone company.
When a cell phone user makes a call, the only information voluntarily and knowingly conveyed
to the phone company is the number that is dialed—there is no indication to the user that making
that call will also locate the caller, let alone generate a permanent record of this location. When
a cell phone user receives a call, he ha3 not voluntarily exposed anything at all. See Third
Circuit Opinion, 620F.3d at 317 (It is “unlikely that cell phone customers are aware that their
cell phone providers collect and store historical location information[,]” therefore “[a] cell phone
customer has not 'voluntarily* shared his location information with a cellular provider in any
'meaningful way.”).-’ "" ;-Y ' ■

- The same logic applies to the Parties’ records here. Even though records are held by ■

.40015.01

13

Twitter, like with CSLI, Twitter users do not voluntarily convey their IP address to the Twitter
internet site they visit in a manner that is analogous to the dialing of a telephone. Similarly, as
with CSLT, it is unlikely that typical Internet users have any awareness of their IP address, or the
feet that it is transmitted to the Internet sites that they communicate with such as Twitter.

The conclusion that IP address information is protected by the Fourth Amendment is
further bolstered by the D.C. Circuit’s recent conclusion that warrantless use of a GPS device to
trade the movements of an individual’s car over fee course of a month violates Fourth
Amendment protections. United States v. Maynard, 615 F.3d 544,559 (D.C. Cir. 2010),pet. for
reh ’g en banc denied (D.C. Cir. Nov. 19,2010). As feat court explained, even though fee car
might move in public spaces, “fee whole of one’s movements over the course of a month is not
constructively exposed to fee public” and “prolonged GPS monitoring” reveals an intimate
picture of the subject’s life that he expects no one to have.” Id. at 561-63. Similarly hare, IP
address information can reveal an intimate portrait of Parties’ movements between the private
spaces from which they use the Twitter service.

Thus, fee Court, therefore should vacate its December 14 Order and reconsider the
government's Application in light of the principles set forth in Karo, the Third Circuit Opinion
mi Maynard.

D. The Court Should Exercise its Discretion Under 18 U.S.C. § 2703(d) and Avoid

Serious Constitutional Questions by Vacating the Order and Requiring a Warrant.

In light of fee serious constitutional questions that the Order raises under both fee First
and Fourth Amendments, if fee Court does not vacate the Order completely it should exercise its
discretion under § 2703(d) and avoid these constitutional questions by requiring the Government
. to obtain a warrant based’on probable cause. ‘ .

Although the Stored Communications Act (“SCA”) allows the Government to obtain the
records sought from Twitter through a court order issued under 18 U.S.C. § 2703(d), the statute
also provides courts with the discretion to deny applications for such orders even when the
♦ •¿nvefniflent has made fee factual showing reqmreduiiderthat secSozi.' Third Circuit Opinion,

620 4.3d at 315-17. The statute "does so by its us.e of the phrase “only if" in § 2703(d), indicating
that fee “specific and articulable facts” showing required by that section is a necessary but not

j40015.01

14

necessarily sufficient condition for a § 2703(d) order. Id. The practical effect of such a denial is
that the government mast instead proceed by obtaining a search warrant based on probable
cause, issued under Rule 41 of the Federal Rules of Criminal Procedure pursuant to 18 U.S.C. §
2703(c)(lXa)- See id. at 316. Therefore, “the statute as presently written gives the [judge] the
option to require a warrant showing probable cause....” Id. at 319.u

The intent of this “sliding scale” construction of § 2703 is evidenced by Congress’
recognition that the Constitution may in some cases protect the privacy of information that would
otherwise be available to the Government under § 2703(d). As the Senate Judiciary Committee’s
report on the statute explained:

With the advent of computerized recordkeeping systems, Americans have lost the
ability to lock away a great deal of personal and business information.... For the
person or business whose records are involved, the privacy or proprietary interest
m that information should not change. Nevertheless, because it is subject to
control by a third party computer operator, the information may be subject to no
constitutional privacy protection.

S. Rep. No. 99-541 at 3 (1986) (emphasis added); see also, eg., S. Hrg. 98-1266" at 17 (1984)
(“In this rapidly developing area of communications which range from cellular non-wire
telephone connections to microwave-fed computer terminals, distinctions such as [whether a
participant to an electronic communication can claim a reasonable expectation of privacy] are
not always clear or obvious.”) (emphasis added), hi the context of such constitutional
uncertainty, it makes sense that Congress would provide a constitutional safety-valve for judges
considering government applications under § 2703(d), thereby future-proofing the statute by 11

11 Ms. Jonsdottir’s counsel, EFF and ACLU, served as amici to the Third Circuit and the Western
District of Pennsylvania on this issue and their briefs provide extensive support for the Third
Circuit Opinion’s holdings.' SeeBrief for Electronic Frontier Foundation,- American Civil
Liberties Union, ACLU Foundation of Pennsylvania; arid Center for Democracy and Technology
as Amici Curiae Opposing the Government’s Request for Review, In re Application of U.S. for
an Order Directing a Provider of Elec. Commc'nServ. to Disclose Records to Gov't,Magistrate's
No. 07-524M, 2008 WL 4191511 (W.D. Pa. 2008), available at

https://www.eff.ore/files/filenode/celltracking/LenihanAmicus.odfi Brief for Electronic Frontier
Foundation etal. as Amici Curiae Supporting Affirmance, In re Application of U.S. foranOrder
Directing a Provider of Elec. Commc’n Serv. to Disclose Records tq Gov't, 620 F.3d 304 (3d Cir.
2010),-availableat ' % - " ; "/ .

http3-//www.&ff'org/fiies/firenode/ceHtrackine/Fired%2QCell%20Tnic!rihg%20Bri<5f.pdf: Brief ' ‘
for Electronic Frontier Foundation et al. as Amici Curiae Opposing Rehearing En Banc, In re
Application.of U.S. for an Order Directing a Provider of Elec. Commc'nServ. to Disclose
Records to Gov't, 620 F.3d 304 (3d Cir. 2010), available at
https://www.eff.org/files/Filed Amicus Pop to En Baric Petition.pdf

,40015.01

15

allowing courts the discretion to deny such applications to avoid potential constitutional
violations or unnecessary constitutional rulings.

Considering the longstanding doctrine of constitutional avoidance, and particularly in
light of die Supreme Court’s recent admonition that courts should avoid unnecessary rulings on
how the Fourth Amendment applies to new technologies, a Court would properly use its
discretion under § 2703(d) when faced with a government application that raises serious
constitutional questions. See City of Ontario v. Quon, 130 S. Ct 2619,2629,177 L. Ed. 2d 216
(2010) (“The judiciary risks error by elaborating too fully on the Fourth Amendment
implications of emerging technology before its role in society has become clear.”); Ashwander v.
Tennessee Valley Auth., 297 U.S. 288,347-48 (1936) ("The Court will not pass upon a
constitutional question although properly presented by the record, if there is also present some
other ground upon which the case may be disposed of.,T).

As detailed above, the government’s Application presents these sort of serious
questions—raising serious First and Fourth Amendment concerns. The Court, therefore, should
exercise its discretion under § 2703(d), vacate die Dec. 14 Order, and require the government
instead to obtain a warrant based on probable cause.

E. The Request for Information about a Member of the Icelandic Parliament, Ms.

Jonsdottir, Raises Additional Concerns.

The government’s demand for records for Ms. Jonsdottir, an elected member of the
Icelandic Parliament, raises additional concerns. Such an investigation appears to violate
Icelandic law. As indicated by the attached letter from the Acting Permanent Secretary of State
for Iceland, Sears Decl, Exh. 5, and the Decision by the Inter-Parliamentary Union, Sears Decl.,
Exh. 6, Ms. Jonsdottir is'protected by a strong constitutional immunity'in Iceland, rooted in -' ■
Article 49 of the Icelandic Constitution and a similar provision in the Icelandic Law on criminal
procedure. Similar immunities exist for Parliamentarians around the world.12 Ms. Jonsdottir’s
Tweets are predominantly in Icelandic and largely concern issues arising in Iceland, such as
legislation sponsored by M's, Jonsdottir, the Icelandte-d&t crisis,-and the Icelandic volcanic. ‘

12 The members of the U.S. Congress enjoy similar immunities, rooted in Article I, Section 6,
Clause 1, of the U.S. Constitution.

• 16

.,40015.01

eruption. See Sears Decl., Exh. 4. Thus, the government’s overbroad demand for information
about Ms. Jonsdottir creates a situation where the U.S. government is conducting a criminal
investigation which sweeps in Ms. Jonsdottir’s publications in Icelandic on topics of Icelandic
concern—records that could not be obtained under Icelandic law.

Unfortunately this investigation creates a perilous precedent for foreign government
efforts to seek information about members of the U.S. Congress. This concern is yet another
reason why the Order should be vacated as to Ms. Jonsdottir.

IV. CONCLUSION

For the foregoing reasons the Court should vacate its December 14,2010 Order requiring
Twitter to disclose the Parties’ Twitter records related to the Parties and their accounts associated
with "rop^g”; “ioerror'’, and “birgittaj”

Dated: January26,2011

B,

John K. Zweriiog, VSB No. 8201
/Stuart Sears, VSB No..71436
V ZWERL1NG, LEIBIG & MOSELEY, P.C.
108 North Alfred Street
Alexandria, VA 22314
Telephone: (703) 684-8000

Facsimile: ■ (703) 684-9700

Email: JZ@Zwerltng.com

Email: Chris@Zwerling.com

Email: Andrea@Zwerltng.com

Email: Stusirt@Zwerlihg.com

John W. Keker {pro had vice pending)
Rachael E. Mehy (pro hac vice pending).

• Sleven.P.- Rig\md(pro hac vice pending)
KEKER & VAN NEST LLP
710 Sansome Street
San Francisco, CA 94111-1704
Telephone: (415) 391-5400

Facsimile: (415)397-7188

Email: ikeker@kvii.com, ...

\ . • Ejnail:-. rinfov@lcyn.fcom
■ ~~ -Email: - smglan^fomxom"'-1 • ‘ •

Attorneys for JACOB APPELBAUM

.10015.01

17

Dated: January26,2011

wHU £ Jhi ~ftr'

i J. Ginsberg, VSB No. 19472
DIMUROGINSBERG, P.C.

90S King Street, Suite 200
Alexandria, VA 22314
Phone:703-6844333
Fax: 703-548-3181
Email: neinsbCTg@dtmpro.com

John D. Cline (pro hac vice pending)
LAWOFFICE OF JOHND. CLINE
115 Sansome Street, Suite 1204
San Francisco, CA 94104
Phone: 415322.8319
Fax: 415.524.8265
Email: dine@iolmdclnielaw.com

K.C. Maxwell (pro hac vice pending)
LAW OFFICE OF K.C. MAXWELL
115 Sansome Street, Suite 1204
San Francisco, CA 94104
Fhone: 415322.8817
Fax: 415.888.2372
Email: kcm@kcmaxlaw.com

Attorneys for ROP GONGGRIJP

.J015.01

18

Dated: January 26,2011

yi^ '£*(•

i K. Gleaberg, VSB No. 44099
BRÎCAN CIVIL LIBERTIES UNION
OF VIRGINIA FOUNDATION, INC.
530 E. Main Street, Suite 310
Richmond, Virginia23219
Telephone: (804) 644-8080
Facsimile: (804)649-2733
Email: rglenberg@acluva.org

Cindy A. Cohn (pro hac vice pending)

Lee Tien (pro hac vice pending)

Kevin S. Bankston (pro hac vice pending)

Marcia Hofmann (pro hac vice pending)

ELECTRONIC FRONTIER FOUNDATION

454 Shotwell Street

San Francisco, CA 94110

Telephone: (415)436-9333x108

Facsimile: (415)436-9993

Email: cindv@efforg

Email: den@eff.org

Email: bankston@eff.org

Email: marcia@efforg

Aden J. Fine (pro hac vice pending)

Benjamin Siracusa-Hillman (pro hac vice
pending)

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION v

125 Broad Street, 18th Floor

New York, NY 10004

Telephone: (212)549-2500

Facsimile: (21.2) 549-2651

Email: afine@aclu.org

.Email: bsiracusahillman@aclu.org . . ......

Attorneys for BIRGITTA JONSDOTTIR

,0015.01

19

r ERTIFIC ATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing pleading was delivered by
hand this 26th day of January, 2011, to the U.S. Attorney Box located in the Cleric's office,
addressed!»: . .

U.S. Attorney’s Office
2100 Jamieson Avenue
Alexandria, VA 22314

EXHIBIT 4

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

IN RE 2703(d) ORDER AND 2703(f) )

PRESERVATION REQUEST RELATING )

TO GMAIL ACCOUtHM ) Misc. No. I0GJ3793

) FILED UNDER SEAL
______________________________________)

ORDER

FOR REASONS stated from the bench and in accord with specific rulings and
instructions thereto, it is hereby

ORDERED that Google’s Motion to Modify 2703(d) Order for Purpose of Providing
Notice to User is DENIED in part and GRANTED in part- the motion is DENIED as to
Google’s request to notify the user concerning the 2703(d) Order and the underlying application;
the motion is GRANTED in regard to the request to modify the Order. In that regard, it is
further

ORDERED that Google is authorized to provide notification of this Court’s 2703(d) .
Order, dated January 4,2011, to the Google Gmail userj^^^^ within (90) days of providing
to the United States government the information requested in said Order, unless the government
files a motion for an extension of that non-notification period; it is further

ORDERED that the government may request an extension of the non-notification period
for a maximum of sixty (60) days.

p Il L rit
FEB -9 2011 D
CUERK. U.S- DISTRICT COURT ALEXANDRIA. VIRGINIA

A TRUE COPY, TESTE:
CLERK, U.S. DISTRICT COURT

BY.

DEPUTY CLERK

The Clerk is directed to file this Order under Seal and to forward copies of this Order to
all counsel of record.

ENTERED this 9th day of February 2011.

United States Magistrate fudgi

Alexandria, Virginia

EXHIBIT 5

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

IP, 11 H P
JAM-5 2011
CLERK. (J S 3IS“«'CT AlPKAKORIA VCr' COl'R"

Alexandria Division

IN THE MATTER OF THE
§2703(d) ORDER RELATING TO
TWITTER ACCOU

)

)

)

)

)

MISC.NO. 10GJ3793

ORDER TO UNSEAL THE
ORDER PURSUANT TO 18 U.S.C. S2703fDi

This matter having come before the Court pursuant to an application under Title 18, United

States Code* §2703i(d), (t appearing that it is in the best interest of the investigation to unseal the
Court’s Order of December14,2010 and authorize Twitter to disclose that Order to its subscribers
and customers, it is hereby ORDERED feat the above-captioned Order of December 14, 2010
pursuant to 18 U.S.C. §2703(d) be UNSEALED and that Twitter is authorized to disclose such
Order. In all other respects, the Court’s Order of December 14,2010 remains in effect

Date:



THEHONORABI
UNITED STATES MAGISTRATE JUDGE

Alexandria, Virginia

EXHIBIT 6

JAN. 12.2011 2:10PM

' NO. 2813 P. 1/3 .

Fax Transmission

Unfed States Attorney
Eastern District of Virginia
Justin W. WWtema U.8. Attorneys Office Building
2100 Jamfason Ave.

Afexandfia.VA 22314

To Custodian of Records
Google

Fox

From

650-649-2039; 650-249-3429

Assistant United States Attorney

Voice

703-289-3700

Oats January 12,2011 Pages 3. Including this page

Subject Preservation letter under 18 U.S.C. sec. 2703(0

i

JAN. 12.2011 2:10PM

NO. 2813 P. 2/3

U,S. Department of Justice

United States Attorney
Eastern District of Virginia

■Aawi KWlfitami tüt XH&jtmjpï Qfl&vBtiWng
HOOMtltsoaA*,

Atomdria VA 33314

puons: m-imm

January 12,2011

Google

1600 Amphitheatre Parkway
Mountain View, CA 94043

Attn: Custodian of Records
Facsimile: 650-649-2939; 650-249-3429

Re: Request for Preservation of Records

Dear Google;

Pursuant to Title 18, United States Code, Section 2703(f), this letter is a formal request for the
preservation of all stored communications, records, and other evidenceh^omMMSsesMM
regarding the following email account pending further legal process:

Account?’) November 2009 to the present

I request that you not disclose the existence of this request to the subscriber or any other person,
other than as necessary to comply with this request If compliance with this request might result
in a permanent or temporary termination of service to the Account, or otherwise alert any user of
the Account as to your actions to preserve the information described below, please contact me aa
soon as possible and before taking action.

I request that you preserve, for a period of 90 days, the information described below currently in
your possession in a form that includes the complete record. This request applies only
retrospectively. It does not in any way obligate you to capture and preserve new information that
arises after the date of this request. This request applies to the following items, whether in
elcctronlo or other form, including information stored on backup media, if available:

1. The contents of any communication or file stored by or for the Account and any
associated accounts, and any information associated with those communications or files,
such as the source and destination email addresses or IP addresses.

2. All records and other Information relating to fixe Account and any associated accounts
including the following:

a. subscriber names, user names, screen names, or other identities;

JAM. 12. 20H 2:10PM

NO. 2813 P. 3/3

b. mailing addresses, residential addresses, business addresses, e-mail addresses, and
other contact information;

o. length of service (including start date) and types of service utilized;

d. records of user activity for any connections made to or from the Account, including
the date, time, length, and method of connections, data transfer volume, user name,
and source and destination Internet Protocol addresses);

e. telephone records, including local and long distance telephone connection records,
caller identification records, cellular site and sector information, GPS data, and
cellular network identifying information (such as foe IMS!, MSISDN, tMEI, MEID,
or ESN);

f. telephone or instrument number or other subscriber number or identity, including
temporarily assigned network address;

g. means and source of payment for the Account (including any credit card or bank
account numbers) and billing records;

h. correspondence and other records of contact by any person or entity about the
Account, such as “Help Desk?’ notes; and .

i, any other records or evidence relating to the Account

If you have questions regarding this request, please call me at

Sincerely,

EXHIBIT 7

FILED'

THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA^ 2g p 3.- 5^

Alexandria Division CLERK US DISTRICT COURT

ALEXANDRIA. ViilGiNiA

IN THE MATTER OF THE 2703(d) ORDER
AND 2703(f) PRESERVATION REQUEST
RELATING TO GMAIL ACCOUNT

Case No. 1:10GJ379‘3
ll-DM-2
UNDER SEAT

RESPONSE OF THE UNITED STATES TO GOOGLE’S MOTION
TO MODIFY 2703fdl ORDER FOR PURPOSE OF PROVIDING NOTICE TO USER

In its January 18,2011 motion and supporting memorandum, Google Inc. (“Google”) •
asks this Court to amend its January 4,2011 order (the “Order”) to allow Google to provide
immediate notice of the Order to the subscriber of the^^H^mail.cam account (the
subscriber”), whose records are the subject of the Order. Google also asks that the Order be
unsealed; requests permission to discuss the Order with the^jj^^^ubscriber and his attorneys;
and further requests that th^Jjjm subscriber be given 20 days from the date of the Court’s
order to file an appropriate response. For the reasons set forth below, the United States opposes
Google’s motion and requests that the Court’s current order of notice preclusion be maintained
and that the Court not permit Google to provide th£|^^^ubscriber with immediate notice of
the Order. However, as the United States explained to Google on January 12,2011, the United
States does not oppose a modification to the Order that would limit the non-disclosure period to
90 days, with a provision that would allow the government to petition the Court for an additional
extension of this period consistent with the requirements of 18 U.S.C. § 2705(b).

ATTACHMENT H

THE UNITED STATES DISTRICT COURT

tltEO

IN THE MATTER OF THE 2703(d) ORDER
AND 2703(f) PRESERVATION REQUEST
RELATING TO GMAIL ACCOUNT

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division 2011 ftB 23 P 14 ®

Case No. 1:10GJ3796LEAAH
ll-DM-2
UNDER SEAL

RESPONSE OF THE UNITED STATES TO GOOGLE’S OBJECTIONS TO
MAGISTRATE’S ORDER OF FEBRUARY 9,2011

The United States, by and through United States Attorney, opposes

Google Inc.’s (“Google”) objections to Magistrate Judge j^^^decisions that the court-ordered
legal process for business records pursuant to the Stored Communications Act (“SCA”) (18
U.S.C. §§ 2701-12) should remain under seal and not be disclosed for a limited period of time
pending the ongoing criminal investigation.

Specifically, in its pleading, Google objects' to Magistrate tj^J^uling on February 9,
2011 that denied in part and granted in part Google’s motion to modify the court’s order of
January 4,2011 (the “Order”) requiring Google to produce subscriber and transaction records
related to the Gmail account (whose subscriber will be referred to as the

^subscriber”) under 18 U.S.C. § 2703(d). Google had asked Judgej^^to unseal and
vacate the Order’s non-disclosure provisions, which the court properly included pursuant to 18
U.S.C. § 2705 and Local Criminal Rule 49, so that Google could “provide immediate notice” to 1

1 Google styles its pleading as “objections” and “notice of appeal.” Google’s objections have
been made pursuant to Fed.R.Crim. P. 59. See Google Mot. at 8. Google has no procedural
basis to appeal, however, and to the extent Google has sought an appeal, the government requests
that the Court either dismiss it or treat it as an objection. Compare 18 U.S.C. § 3402 and
Fed.R.Crim.P. 58(g).

1

J

!

the ^^^subscriber. Google Mot. at 2 (emphasis added). Magistrate(^|adopted, instead,
the government’s reasonable proposal to modify the Order to authorize Google to provide notice
to the U| subscriber “within (90) days of providing... the information requested in [the]
Order, unless the government files a motion for an extension of that non-notification period.”
Roche Decl. Ex. 4. Magistrate further ordered “that the government may request an

extension of the [Order’s] non-notification period for a maximum of sixty (60) days.” (“Order
2”) Id.

For the reasons set forth below, the United States opposes Google’s objections and
requests that the Court find that the two Orders are proper under the SCA, Local Criminal Rule
49, and the Constitution, and that Judge ^[(committed no error, let alone any clear error.

Factual & Procedural Background

On January 4,2011, upon application of the United States pursuant to § 2703(d), finding
that the information sought was relevant and material to an ongoing criminal investigation, Judge
IjllB issued the Order, requiring Google to produce the following non-content business
subscriber and transaction records for the ioerror subscriber’s account:

A. The following customer or subscriber account information for each account registered to

or associated witl^^J^^^^^^Hfor the time period November 1, 2009 to the

present:

1. subscriber names, user names, screen names, or other identities;

2. mailing addresses, residential addresses, business addresses, e-mail addresses,
and other contact information;

3. connection records, or records of session times and durations;

4. length of service (including start date) and types of service utilized;

5. telephone or instrument number or other subscriber number or identity, including
any temporarily assigned network address; and

2

6. means and source of payment for such service (including any credit card or bank
account number) and billing records.

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

• 1. records of user activity for any connections made to or from the Account,

including the date, time, length, and method of connections, data transfer volume,
user name, and source and destination Internet Protocol address(es);

2. non-content information associated with the contents of any communication or
file stored by or for the accounts), such as the source and destination email
addresses and IP addresses.

3. correspondence and notes of records related to the account(s).

See Roche Decl. Ex. 1. The contents of the^U^bscriber’s communications were not
required. After finding “that prior notice of this Order to any person of this investigation or this
application and Order entered in connection therewith would seriously jeopardize the
investigation,” Judge ^^^rdered that “the application and this Order are sealed until
otherwise ordered by the Court, and that Google shall not disclose the existence of the
application or this Order of the Court, or the existence of the investigation, to the listed
subscriber or to any other person, unless and until authorized to do so by the Court.” Id.

Several weeks earlier, on December 14,2010, Magistrate Judge J
had issued a different order, also pursuant to 18 U.S.C. § 2703(d), that required Twitter, Inc.
(“Twitter”) to disclose similar categories of non-content business records for several Twitter
accounts, including a Twitter account under the hame^m See Roche Decl. Ex. 2. This order
(the “Twitter Order”), like the Order, was issued under seal and contained a non-disclosure
provision that prohibited Twitter from disclosing the existence of the application, the Twitter
Order, or the existence of the investigation to any person, unless and until authorized to do so by
the Court. See id. After learning that Twitter would file a motion to modify the Twitter Order

3

so it could disclose it to its customers and subscribers, the government replied that although it
was not conceding the merits, it would voluntarily agree to move to unseal the Twitter Order to
allow such disclosure.

On January 5,2011, Magistrate Judge granted the government’s application to

unseal the Twitter Order and authorized Twitter to disclose it (“Twitter Unsealing Order”) based

i

on the government’s representation that it was in the best interest of the investigation to pennit
disclosure to Twitter’s subscribers and customers. See Roche Decl. Ex. 5. The government sent
the Twitter Unsealing Order to counsel for Twitter on January 7,2011.

On January 12, 2011, counsel for Google asked the government to agree to modify the
Order to allow Google to provide immediate notice of the Order to the^U subscriber. See
.Google Mot. at 7. The government did not agree to this proposed modification. When asked
why the government was taking a different position on Google’s request to modify the Order
than it had taken on Twitter’s similar request, the government responded, “It’s a different case.”
This response was intended as a general comment of the different circumstances surrounding the
two Orders and was not intended to be an assertion that the Orders related to different
investigations. Roche Decl. Ex. 7 at 3, n. 1. The government, did however, offer to agree to a
90-day limit on the non-disclosure period, subject to a provision that would allow the
government to petition for extensions if disclosure would seriously jeopardize the investigation
or have an adverse result listed in 18 U.S.C. § 2705. Google declined this offer and filed its
motion to modify the Order on January 18,2011. Google Mot. at 7. On February 9,2011,
following a hearing, Magistrate Judge^^^enied Google’s motion in part, as described in
more detail above. Google now objects to this order.

4

Argument

I. Standard of Review

Google filed its objections pursuant to Federal Rule of Criminal Procedure 59, and
therefore this Court should review Google’s objections in accordance with thé procedures of that
rule.2 See Google Mot. at 8. Rule 59(a) authorizes a party to file objections to a magistrate
judge order that determines “any matter that does not dispose of a charge or defense,” Fed, R.
Crim. P. 59(a), while Rule 59(b) authorizes a party to file objections to a magistrate judge’s
“proposed findings and recommendations” for disposing of “a defendant’s motion to dismiss or
quash an indictment or information, a motion to suppress evidence, or any matter that may
dispose of a charge or defense.” Fed. R. Crim. P. 59(b)(1), (2). In the instant matter, Judge

denial of Google’s motion is an order that “does not dispose of any charge or defense,”
Fed. R. Crim. P. 59(a), and therefore Google’s objections to this ruling fall within the ambit of
Rule 59(a). Indeed, at least two district courts have reviewed magistrate decisions about
§ 2703(d) orders under Rule 59(a). See In re U.S. for Order Directing a Provider of Electronic

2 The objection procedures in Rule 59 apply when a district judge has referred to a magistrate
judge any matter or motion that falls within the scope of subparts (a) and (b). See Fed. R. Crim.
P. 59(a), (b). Although there was no individual referral in this case, the district judges in this
district have “authorized and specially designated” magistrate judges “to perform all duties
authorized or allowed to be performed by United States magistrate judges by the United States
Code and any rule governing proceedings in this court.” E.D. Va. Local Cr. Rule 5. Pursuant to
this Local Rule, JudgeHU/as authorized to issue the § 2703(d) order to Google because such
orders “may be issued by any court that is a court of competent jurisdiction,” 18 U.S.C.

§ 2703(d), which includes a magistrate judge of any district court of the United States that has
jurisdiction over the offense being investigated. See 18 U.S.C. § 2711(3)(A) (defining “court of
competent jurisdiction”); 28 U.S.C. § 636(b)(3) ("A magistrate judge may be assigned such
additional duties as are not inconsistent with the Constitution and laws of the United States.”).
Accordingly, the govermnent agrees that Google may file its objections to Judge DaviiFs Order
pursuant to Rule 59.

5

!

Communication Service to Disclose Records to the Government, 2008 WL 4191511, at *1 (W.D.
Pa. 2008), vacated on other grounds by 620 F.3d 304 (3d Cir. 2010) (reviewing objections to
magistrate judge’s denial of a § 2703(d) court order under Fed. R. Crim. P. 59(a) and 28 U.S.C. §
636(b)(1)); In re U.S. for an Order Authorizing the Disclosure of Prospective Cell Site
Information, 2006 WL 2871743, at * 1 (E.D. Wise. 2006) (same).

Under Rule 59(a), this Court must determine whether Judge ruling was “contrary

to law or clearly erroneous” and should not modify or set aside his order unless this standard is
met. Fed. R. Crim. P. 59(a); see also 28 U.S.C. § 636(b)(1)(A) (“A judge of the court may
reconsider any pretrial matter under this subparagraph (A) where it has been shown that the
magistrate judge’s order is clearly erroneous or contrary to law.”); GTSI Corp. v. Wildjlower
Int’l, Inc., 2009 WL 3245JJ96, at *2 (E.D. Va. 2009) (district court should overturn magistrate
judge’s civil non-dispositive discovery order only if it is “clearly erroneous or contrary to law”).
In addition, because Judge m|was the judicial officer who issued the § 2703(d) order, his
“decision to seal, or to grant access, is subject to review under an abuse of discretion standard.”
Baltimore Sun Co. v. Goetz, 886 F.2d 60, 65 (4th Cir. 1989) (“[T]he common law qualified right
of access to the warrant papers is committed to the sound discretion of the judicial officer who
issued the warrant.”); see Media General Operations, Inc. v. Buchanan, 417 F.3d 424,429 (4th
Cir. 2005) (quoting Goetz).

The parties disagree on the appropriate standard of review. Google suggests that Judge

Google’s objections under the de novo standard set forth in Rule 59(b). See Google Mot. at 9.
But, Rule 59(b) is inapplicable here. Pursuant to his authority under Local Criminal Rule 5 and

>nld be considered “dispositive,” thereby requiring this Court to review

18 U.S.C. § 2703(d), Judg

issued an order, not “proposed findings and recommendations”

6

that would be subject to review under Rule 59(b). Furthermore, Google’s original motion is
nondispositive for purposes of Rule 59 because it “does not dispose of a charge or defense,” Fed.
R. Crim. 59(a), and it is not a motion to dismiss or quash an indictment or information or a
motion to suppress evidence. Fed. R. Crim. P. 59(b)(1); cf. Aluminum Co. of Am., Badin Works,
Badin, N.C. v. US. Envtl. Prot. Agency, 663 F.2d 499,501 (4th Cir. 1981) (motion to quash ex
parte administrative search warrant was dispositive for purposes of 28 U.S.C. § 636(b) when it
“was not a ‘pretrial matter’ but set forth all of the relief requested”); compare In re Oral
Testimony of a Witness Subpoenaed, 182 F.R.D. 196,200-202 (E.D. Va. 1998) (for purposes of
determining if a magistrate order is dispositive, distinguishing administrative subpoenas, which
are final, appealable orders, from orders enforcing subpoenas issued in connection with civil and
criminal actions, or with grand jury proceedings, which are normally not considered final) (citing
Reich v. National Engineering & Contracting Co., 13 F.3d 93, 95 (4th Cir.1993) (other citations
omitted).

Google’s motion simply sought to modify a §. 2703(d) order that was issued as part of a
pending grand jury investigation. It, therefore, falls within Rule 59(a), not Rule 59(b). The
cases Google cites in support of de novo review are inapposite as they apply to whether a district
court order is “immediately appealable final order” for purposes of appellate review under 28
U.S.C. § 1291, not to whether a Magistrate’s Order is dispositive or non-dispositive under Rule
59.3 Thus, the standard for this Court’s review is whether Judge^HIBruling was “contrary to
law or clearly erroneous.” Fed. R. Crim. P. 59(a).

3 Even assuming that Judge M|H denial of Google’s motion is an “immediately appealable
final order” for purposes of establishing appellate jurisdiction under 28 U.S.C. § 1291, Google
Mot. at 9 (quoting United States v. Myers, 593 F.3d 388,345 (4th Cir. 2010)), it does not follow
that Judge ■■■ order was “dispositive” for purposes of Rule 59(b). Cf United States v.
Raddatz, 447 U.S. 667,673 (1980) (observing that “the magistrate has no authority to make a

7

II. The Orders Are Proper

Magistrate Judge two Orders satisfy all statutory and constitutional requirements,
and the sealing and non-disclosure provisions should remain in effect for the limited time
provided in Order 2. Judge UJ committed no error in issuing the Orders and certainly
committed no clear error. Google has no statutory basis to challenge the sealing and non-
disclosure provisions of the Orders, and the subscriber would not have a valid basis to
challenge the Order even if Google did provide him with notice. In addition, unsealing and
permitting disclosure at this time is not in the best interest of the investigation. The unsealing and
disclosure of the Twitter Order has already seriously jeopardized the investigation, and the
government believes that further disclosures at tins time will exacerbate the harm caused by that
disclosure.

A. The Non-Disclosure and Sealing Provisions of the Order Are Proper Under 18
U.S.C. § 2705(b) and Local Criminal Rule 49,

As Judge ^Uconcluded, the non-disclosure provision of the Order is appropriate under
18 U.S.C. § 2705(b). Under § 2705(b), the government may apply for an order commanding a
provider, such as Google, not to notify any other person of the existence of the order for such
period as the court deems appropriate. See 18 U.S.C. § 2705(b). The court, in turn, shall issue
the requested order:

if it determines that' there is reason to believe that notification of the existence of the...

court order will result in—

(1) endangering the life or physical safety of an individual;

(2) flight from prosecution;

final and binding disposition” as to a “dispositive” motion covered by 28 U.S.C. § 636(b)(1)(B)).
In fact, a “final order” of a magistrate judge would fall more squarely within the scope of Rule
59(a), which applies when a magistrate judge has entered “an oral or written order stating the
[magistrate judge’s] determination.” Fed. R. Crim. P. 59(a).

8

(3) destruction of or tampering with evidence;

(4) intimidation of potential witnesses; or

(5) otherwise seriously jeopardizing an investigation or unduly delaying a trial.

18 U.S.C. § 2705(b).

Judge

public has a common law right of access, but not a First Amendment right of access, to judicial
documents, including documents associated with ex parte proceedings such as search warrant
affidavits. Media General Operations, Inc. v. Buchanan, 417 F.3d 424,429 (4th Cir. 2005); In
re Washington Post Company v. Hughes, 923 F.2d 324, 326 (4th Cir. 1991). “But the right of
access is qualified, and a judicial officer may deny access to search warrant documents if sealing
is ‘essential to preserve higher values’ and ‘narrowly tailored to serve that interest.’”4 Media
General Operations, 417 F.3d at 429 (citations omitted); see also In re Knight Pub. Co., 743

F.2d 231,235 (4th Cir. 1984) (“[t]he trial court has supervisory power over its own records and
may, in its discretion, seal documents if the public’s right of access is outweighed by competing
interests”). Sealing search warrants and their accompanying affidavits and applications is within

I

4 One such “higher value” is the protection of an ongoing criminal investigation. Process that is
issued in connection with an investigation into criminal activity serves “a compelling state
interest.” In re Grand Jury Subpoena: Subpoena Duces Tecum, 829 F.2d 1291, 1305 (4th Cir.
1987) (Wilkinson, J., concurring) (citing Branzburg v. Hayes, 408 U.S. 665, 700 (1972)). This is
true no matter what criminal conduct is under investigation, as the compelling state interest
“does not turn” on the type of crime involved. Id.1 The secrecy of criminal investigations is an
essential tool to further that interest. “[L]aw enforcement agencies must be able to investigate
crime without the details of the investigation being released to the public in a manner that
compromises the investigation.” Va. Dept, of State Police v. Washington Post, 386 F.3d 567,

574 (4th Cir. 2004); see also Times Mirror Co. v. United States, 873 F.2d 1210,1215 (9th Cir.

1989) (“In other words, the secrecy of grand jury proceedings is maintained in large part to avoid
jeopardizing the criminal investigation of which the grand jury is an integral part.”).

also appropriately sealed the Order. It is generally recognized that the

9

the discretionary powers of a judicial officer where, among other things, an “‘affidavit contain[s]
sensitive details of an ongoing investigation’ and it is ‘clear arid apparent from the affidavits that
any disclosure of the information there would hamper’ th[e] ongoing investigation.” Media
General Operations, 417 F.3d at 430 (citations omitted); see also In re Search Warrant for
Matter of Eye Care Physicians of America, 100 F.3d 514,518 (7th Cir. 1996).

The government’s application, without more, provided sufficient basis for Judge Qavis to
conclude that notifying theJU^^ubscriber °f the Order will have one or more of the adverse
results listed in § 2705(b). See Government Exhibit 1 (exparte). Based on this information,
Judge ^^appropriately decided to maintain the Order under seal and prohibit its disclosure.

The adverse results of disclosing and unsealing the Twitter Order, including efforts to
conceal evidence and harassment (discussed in Part III), further confirm that unsealing and
disclosing the Order would seriously jeopardize the investigation. Therefore, this Court should
find that the non-disclosure and sealing provisions in the Order are proper under 18 U.S.C. §
2705(b) and L. Crim. R. 49. Judgej^U^ommitted no error by including such provisions in the
Order, let alone clear error.

B. Google Has No Statutory Basis to Challenge the Non-Disclosure and Sealing
Provisions in the Order.

Judge U^orrectly concluded that Google has no statutory basis to challenge the non-
disclosure and sealing provisions in the Order. Pursuant to § 2703(d), a service provider, such as
Google, may move to quash or modify an order “if the information or records requested are
unusually voluminous in nature or compliance with such order otherwise would cause an undue •
burden on such provider.” 18 U.S.C. § 2703(d). However, as described in more detail below,
Google has not shown - and cannot show - that complying with the non-disclosure provisions of
the Order would cause an “undue burden” on Google.

10

At the hearing on February 9,2011, when asked about its statutory authority to bring a
motion to modify the Order, Google could cite only to § 2703(d).5 First, Google claimed that it
would be an undue burden for it to comply with an Order it believed may be unlawful: Google
did not believe that the government could make the showing required for sealing and non-
disclosure when the government had agreed to unseal the Twitter Order one day before it
obtained the Order in this case. Judgeexplained that § 2703(d) contained no provision
allowing a provider or subscriber to move to quash or modify an Order that the provider believed
to be improperly issued. Further, Judge JIB reasoned that Google had no evidence that the
Order was improperly issued. Finally, Google could not show that compliance would cause an
undue burden as required to quash or modify the Order under § 2703(d). See 18 U.S.C. §
2703(d). This is because under § 2703(e), no customer could successfully sue Google for
complying with the Order because the SCA prohibits causes of action against providers for
providing information in accordance with the terms of a court order. See 18 U.S.C. § 2703(e).

Second, Google argued that the Order was unlawful, and therefore, imposed an undue
burden because the perpetual, nature of its non-disclosure provision. Google conceded that this
undue burden argument would be weakened, however, if Judge^ modified the Order to
include a 90-day limit on the non-disclosure period. Third, Google argued that the Order
imposed an undue burden because it affected Google’s goodwill with customers, who might be
prejudiced by Google’s compliance with the Order. See generally, Google Mot. at 3.6 Judge

5 The information in this paragraph is based on notes from the hearing and is not a verbatim
transcript of the events. Google was unable to point to any other provision for good reason, §
2708(d) provides that “[t]he remedies and sanctions described in” the SCA are the “only judicial
remedies and sanctions for nonconstitutional violations of [the SCA].” 18 U.S.C. § 2708; United
States v. Clenney, — F.3d —, 2011 WL 322640 at * 8 (4th Cir. 2011).

s Google has failed to support this assertion, however, by pointing to a relevant privacy policy
statement or by citing to any other occasion when it challenged a non-disclosure provision in a §

11

H^^Hound, however, that even assuming an undue burden would be imposed on Google for
complying with an unlawful order, Google failed to point to any evidence of the Order’s
unlawfulness, apart from the perpetual nature of the nondisclosure Order. The court then
modified the Order to limit the nondisclosure provision to 90 days with the ability of the
government to petition for an extension of 60 days.

As described above, Judge U| correctly interpreted the unambiguous language of the
SCA. Google has no meritorious statutory basis to move to modify the non-disclosure and
sealing provisions of the Order. Judge committed no error in denying Google’s motion in
part and granting it in part to limit the duration of the non-disclosure provision. Thus, the Orders
are not clearly erroneous or contrary to law.

C. The Order Is Constitutional.

a. The Subscribers Have No Meritorious Statutory or Constitutional Claims

Google also claims that the Order, which seeks limited subscriber information and
transactional records but not the content of any communications, “may raise significant
constitutional and statutory issues.” Google Mot. at 12. First, Google argues that the Court
should exercise its discretion to modify the Order to allow Google to give notice to the
subscriber, who may wish to assert — as he has with respect to the Twitter Order — statutory and
constitutional arguments, including alleged violations of the First and Fourth Amendment.
Google Mot. at 12-13 (citing Roche Deck Ex. 3).

2703(d) order. Indeed, Google customers know about and consent to lawfully issued legal
process. See Google Privacy Policy, Iittp://www.google.com/privacv/privacv-html (last visited
Feb. 28,2011) (explaining that Google “shares personal information with other companies or
individuals outside of Google” when Google has “a good faith belief that access, use,
preservation, or disclosure of such information is reasonable necessary to... satisfy any
applicable law, regulation, legal process or enforceable governmental request.”).

12

For the reasons explained in the Government’s Opposition to Google’s Motion (Roche
Decl. Ex. 7), incorporated here by reference, the Order is proper, and neither the>|
subscriber nor Google can mount a viable challenge. Further, any additional arguments that the
(Subscriber has raised in opposition to the Twitter Order (Google Mot. at 12-13), and may
seek to raise in this case, lack merit for the reasons explained in the government’s Objection to
the Motion of the Three Twitter Subscribers to Vacate Order of December 14,2010, Under. §
2703(d). Govt. Ex. 2 (ex parte)7

In short, even if the^d subscriber had notice of the Order, he would not be entitled to
bring a wide-ranging motion to vacate it. Although the SCA authorizes some judicial remedies
for subscribers who seek to challenge orders, see 18 U.S.C. § 2704(b), these remedies apply to
legal process seeking the content of the subscriber’s communications and do not apply to legal
process for business records under 18 U.S.C. § 2703(d), like the Order here. As noted above,
Congress did not provide subscribers with wide-ranging remedies that would allow them to
challenge non-content orders, such as the Order here, for alleged nonconstitutional violations of
the SCA. See 18 U.S.C. § 2708.

Even if the|jd^ubscribcr had standing to assert a constitutional claim and wished to

assert a First Amendment challenge, the claim would be meritless. As the Supreme Court has

recognized, “neither the First Amendment nor any other constitutional provision protects the

average citizen from disclosing to a grand jury information that he has received in confidence.”

Branzburg v. Hayes, 408 U.S. 665,682 (1972). This is true even if WikiLeaks is a journalistic

enterprise, which Google claims is a matter of public debate but does not allege, and which the

government does not concede. Google Mot. at 4. As the Supreme Court has concluded, “the

7 Pending Magistrate ruling on the unsealing of this pleading, the government files

it in this case ex parte and under seal in an abundance of caution.

13

Constitution does not... exempt the newsman from performing the citizen’s normal duty of
appearing and furnishing information relevant to the grand jury’s task.” Id. at 691. Indeed,
journalists have no special privilege to resist compelled disclosure of their records, absent ■
evidence that the government is acting in bad faith. See In re Shain, 978 F.2d 850, 852 (4th Cir.
1992); see also Univ. of Pennsylvania v. E.E.O.C., 493 U.S. 182,201 n.8 (1990) (implying that
“the bad-faith exercise of grand jury powers” is the only basis for a First Amendment challenge
■ to a subpoena).

The^mr subscriber here could not quash the Order because he could not show that the
government has acted in bad faith or with the intent to harass, either in conducting its criminal
investigation or in obtaining the Order. See United States v. Steeihammer, 539 F.2d 373, 376
(4th Cir. 1976) (Winter, J., dissenting), adopted by the court en banc, 561 F.2d 539, 540 (4th Cir.
1977) (“[T]he record fails to turn up even a scintilla of evidence that the reporters were
subpoenaed .to harass them or to embarrass their newsgathering abilities ...”). The government
described the nature of its investigation in its application for the Order, and a neutral magistrate
had an opportunity to review it before issuing the Order. The magistrate concluded that the
Order was proper because the government “offered specific and articulable facts showing that
there are reasonable grounds to believe that the records or other information sought are relevant
and material to an ongoing criminal investigation.” Roche Deck Ex. 1; see also 18 U.S.C. §
2703(d).

The subscriber’s potential challenges to the Order are even weaker because of the

Order’s limited scope. The Order requires Google to disclose certain business and transactional
records about the Jd^subscriber’s account. See Roche Deck Ex. 1. The^BH subscriber
has no reasonable expectation of privacy under the Fourth Amendment in these records. See

14

United States v. Bynum, 604 F.3d 161,164 (4th Cir. 2010) (individual has no subjective or
reasonable expectation of privacy in his internet and phone ''subscriber information," i.e. his
name, email address, telephone number and physical address) (citing Smith v. Maryland, 442
U.S. 735, 744 (1979) and UnitedStates v. Perrine, 518 F.3d 1196,1204 (10th Cir. 2008)). It is
difficult to imagine how any First Amendment rights of the Subscriber could be infringed by
Google’s disclosure of business records such as these, and Google has not asserted otherwise.

b. Google Has No Meritorious First Amendment Claims

Google claims that the Order’s non-disclosure provisions constitute a prior restraint on its
speech that violates Google’s own First Amendment rights. Google Mot. at 13 Google is
wrong. Courts regularly issue sealing orders, protective orders, and other non-disclosure orders
that preclude private parties from discussing matters before the court. See e.g., In re Application
of United States of America for an Order Pursuant to 18 U.S.C. § 2703(d) Directed to
Cablevision Systems Corp., 158 F.Supp.2d 644, 648-49 (D. Md. 2001) (holding that the
Electronic Communications Privacy Act implicitly repealed provisions of the Cable
Communications Policy Act that required notice to a subscriber of a cable company service of a
court order directing disclosure of the subscriber’s personal information) (citing in support, 12
U.S.C. § 3409 (authorizing delayed notice for financial institutions); 18U.S.C. §§ 2511(2)(a)(ii)
(prohibiting disclosure of wire interceptions); § 3123(d) (prohibiting disclosure of pen registers
or trap and trace devices)).

Indeed, 18 U.S.C. § 2705(b) was enacted almost twenty-five years ago, and to the
government’s knowledge, no court has ever held that its procedures fail to comply with the
requirements of the First Amendment. See Electronic Communications Privacy Act of 1986, PL
99-508, § 201,100 Stat. 1848 (1986). Furthermore, Judge MBB Order 2, adopting a modified
form of the government’s proposal, limited the non-disclosure period to 90 days, subject to a

15

possible court-ordered extension of no more than 60 days. Even Google recognizes that
“nondisclosure requirements of a limited duration are not uncommon in nonnal investigations.”
Google Mot. at 14. See In re Sealing and Non-Disclosure of Pen/Trap/2703(d) Orders, 562
F.Supp.2d 876, 881-82, 895 (S.D.Tex. 2008) (recognizing that “restrictions on speech and public
access are presumptively justified while the investigation is ongoing” and permitting a 180-day
period for non-disclosure with a provision to allow the government to move for extension).

For all the reasons set forth above, the Order, including its non-disclosure and sealing
requirements, as amended by Order 2, is proper in every respect. Google has no basis to
challenge the Order under the statute or the constitution. Judge :j^Jommitted no error, and
the Orders are neither clearly erroneous nor contrary to law.

III. The Disclosure of the Twitter Order Does Not Justify Disclosure of This Order,

Particularly When Unsealing the Twitter Order Already Has Seriously Jeopardized
the Investigation.

Google argues that because the government voluntarily agreed to the unsealing and
disclosure of the Twitter Order, the Court should do so here, particularly because both orders are
part of the WikiLeaks investigation, the existence of which has been publicly acknowledged.

See Google Mot. at 9-12. Google is mistaken. The government’s decision to voluntarily move
to unseal and permit notice of the Twitter Order was based upon its particularized assessment of
the continuing need for sealing and notice preclusion. This decision was a reasonable exercise of
the government’s prosecutorial discretion and should not bind the government as to other orders.

Moreover, the unsealing and disclosure of the Twitter Order already has seriously
jeopardized the investigation despite the publicly acknowledged investigation. Unsealing and
allowing disclosure by Google will exacerbate the harm. Indeed, in light of the events that

16

followed the unsealing and disclosure of the Twitter Order, had the government known then
what it does now, it would not have voluntarily filed the motion to authorize it.

These events are detailed in the Government’s Response to the Google Motion (Roche
Decl. Ex. 7) and are incorporated here by reference. They show how the circumstances have
changed in the investigation since - and in part as a result of-the government’s decision to
unseal and disclose the Twitter Order. In short, the disclosure and unsealing of the Twitter Order
has seriously jeopardized the investigation.

First, the government confirmed that despite the public nature of the investigation,
disclosure of the particular investigative step at issue in the Twitter Order increased the risk that
witnesses and targets would alter their modes of communication to evade future investigative
efforts. One reason for sealing and ordering non-disclosure under Section 2705 in the Twitter
case, as well as here, is that disclosure would seriously jeopardize the investigation because it
might cause suspects to change their patterns of behaviour and notify confederates to change
their patterns of behaviour. Once the Twitter Order was unsealed, theH^^Jubscriber to
Twitter announced a change in his behavior and made a general announcement to others who
might potentially have evidence relevant to the investigation by posting a message to Twitter on
January 7,2011, that stated “Do not send me Direct Messages - My Twitter account contents
have apparently been invited to the (presumably Grand Jury) in Alexandria.” See Roche Decl.
Ex. 7, Gov’t Ex. 2

Second, the disclosure and unsealing also presented the unforeseen risk of witness
intimidation. Google belittles this risk. Protecting witnesses from public exposure, however,
encourages them to voluntarily come forward and to testify fully without fear of retribution.
These two core principles underlie the need for secrecy in the grand jury process. See United

17

States v. Reiner, 934 F. Supp. 721, 723 (E.D.Va. 1996) (citing Douglas Oil Co. v. Petrol Stops
Northwest, 441 U.S. 211,219 (1979)). Other providers - who are potential witnesses - may fear
that public exposure of their willing compliance with court orders relating to this investigation
will hurt their reputation and feel pressure to challenge non-disclosure orders. Providers might
also fear retribution beyond damage to goodwill. The press has widely.reported that companies
who withdrew their services from WikiLeaks have been cyber attacked. Charlie Savage, F.B.I.
Warrants Into Service Attacks by WikiLeaks Supporters, NY Times,
http://www.nytimes.com/2011/01/28/us/28wiki.html

Third, repeatedly unsealing and disclosing process during an ongoing investigation
presents a heightened risk of jeopardizing the investigation, potentially revealing each step the
government has taken and highlighting those that have yet to be taken. The subjects of the
investigation do not yet know what the government knows. And each piece of the investigative
puzzle revealed to. them provides them with a better picture.

Finally, the disclosure and unsealing of the Twitter Order has already resulted in
harassment that disrupted the investigation by diverting resources and attention. A similar
reaction can be expected if disclosure and unsealing is authorized here.

Just as the government then underestimated the degree of damage that would result from
the unsealing and disclosure of the Twitter Order, Google underestimates the likely damage that
would attend unsealing and disclosure in this matter. For all of these reasons, the government
has not agreed to disclosure of the Order. The non-disclosure and sealing provisions of the
Order remain legally justified, and disclosure is not in the best interest of the investigation.
Judge ^Ucommitted no error in so concluding and the Orders are not clearly erroneous or
contrary to law.

18

I

.» t

Conclusion

In conclusion, the Court should overrule Google’s objections. The Orders, including the
limited sealing and non-disclosure, provisions, remain warranted more than ever. Unsealing and
disclosure of the Order would significantly jeopardize the investigation. Finally, the United
States respectfully suggests that a hearing is not necessary in this case. The legal issues are not
novel, and oral argument would not aid the Court in reaching its decision.

Respectfully Submitted,

By:

Assistant United States Attorney

19

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing pleading was delivered on
this 28th day of February 2011 to the Clerk’s Office and that service will be made on the
following individuals by electronic mail and otherwise:

John K. Roche, Esquire

Perkins Coie LLP

700 13th St, N.W., Suite 600

Washington, D.C. 20005-3960

PHONE: 202.434.1627

FAX: 202.654.9106

E-MAIL: JRoche@perkinscoie.com

20

GOVERNMENT EXHIBIT 2
(1:11DM00003, DKT. #21)

FILED

UNITED STATES DISTRICT COURT *

EASTERN DISTRICT OF VIRGINIA r„n „ _

¿0.1 ST2 -1 p M: Ul

Alexandria Division CL'r'PK US D!STR?CT COURT

ALEXAnCRIA. VIRGINIA

IN THE MATTER OF THE )

§2703(d) ORDER RELATING TO ) MISC.NO. 10GJ3793

TWITTER ACCOUNTS: ) No. 1:11DM3 (Judge Buchanan)

WIKILEAKS, ROPG; IOERROR; )

AND BIRGITTAJ ) Hearing: February 15,2011

) 10:30 a.m.

)

) UNDER SEAL

GOVERNMENT'S OBJECTION TO MOTION OF THREE TWITTER
SUBSCRIBERS TO VACATE.ORDER OF DECEMBER 14,2010. UNDER 8 2703fdl

The United States of America, by and through Neil H. MacBride, United States Attorney,

Eastern District of Virginia, and John S. Davis, Assistant United States Attorney, objects as

follows to the Motion of Real Parties in Interest Jacob Appelbaum, Birgitta Jonsdottir, and Rop

Gonggrijp to Vacate December 14, 2010 Order:

I. . Background

On December 14,2010, this Court entered a sealed order (tire Order) pursuant to 18
U.S.C. § 2703(d) directing Twitter, Inc., to disclose certain non-content records and other
information pertaining to Twitter accounts, including those identified as rop_g; ioerror; and
birgittaj. For each account, the Order specified the following customer or subscriber
information, for the period November 1,2009, to the date of the Order:

1. subscriber names, user names, screen names, or other identities;

2. mailing'addresses,.residential addresses, business addresses, e-mail addresses, and
other contact information; .

3. connection records, or records of session times and durations;

4. length of service (including start date) and types of service utilized;

5. telephone or instrument number or other subscriber number or identity, including
‘ any temporarily assigned network address; and

6, . means and Source of payment for such service (including any credit card or bank
account number) and billing records.

The Order also identified additional records, for the same Twitter accounts and same time

period:

1. records of user activity for any connections made to or from the Account,

including the date, time, length, and method of connections, data transfer volume,
user name, and source and destination Internet Protocol addrcss(es);

2', non-content information associated with the contents of any communication or
file stored by or for the accounts), such as the source and destination email
addresses and IP addresses.

3, correspondence and notes of records related to the accounts).

On January 5,2011, this Court unsealed the Order (but ho other document in this matter),
and authorized Twitter to disclose it. Twitter thereafter gave notice of.the Order to the affected
account holders, including the three “real parties in interest,’* who are movants here: Jacob
Appelbaum (associated with ioerrov), Birgitta Jonsdottir (associated with birgittaj), and Rop
Gonggiijp (associated with rop_g) (collectively, the Subscribers).

After discussions with counsel, on January 12,2011, the government agreed with Twitter
to a narrowing of the terms of the Order, reducing the number of records to be disclosed.1 ' On

’On or about January 12,2011, the government informed Twitter and the Subscribers that it
agreed to the following with respect to the Order: 1. The.government expected Twitter to
provide information covered by the Order only for the four listed Twitter accounts (Wikileaks,
rop_g, ioerror, and birgiittaj) between November 15,2009 and June 1-, 20.10; 2. to the extent
Twitter has no information responsive to certain parts of the Order, for example credit card
information, it need not provide such information; 3. the government had not sought and did not
expect to receive the contents of any communications; 4. tire government did not expect Twitter
to provide records that would be unusually voluminous in nature or would otherwise cause an
undue burden to produce. Twitter should let the government know if it believed any portion of
the Order would be unduly burdensome after consultation with its engineers, For example, the
government did not expect Twitter to produce the records of user activity for any connections to
or from the Account relating to public followers of a Twitter account, Apache logs, or replies to
Twitter feeds; 5. the government and Twitter understood that the records of user activity for any
connections to or from the Account would include the IP addresses of the Account holder’s

2

January 26,2011, the Subscribers moved to vacate the Order, citing a variety of statutory and
constitutional grounds. The government hereby objects to the Subscribers’ motion.

II. Argument

A. Section 2703(d) Does Not Authorize the Subscribers to

Challenge a “Non-Content” Order For an Alleged Non-
Constitutional Violation of the Statute, and, in Any Event, This
Court Has Already Determined That the Order is Based Upon
“Specific and Articulable Facts.”

The Subscribers first argue that no “specific and articulable faets”' demonstrate that the
Twitter records identified in the Order are “relevant and material” to a criminal investigation, as
§ 2703(d) requires. Although they are not privy to the Order’s factual basis (which remains
sealed), the Subscribers contend that because their “Tweets” covered a “broad range of non-
WikiLeaks topics,” the records identified in the Order necessarily include data “that has no
connection whatsoever to WikiLeaks and cannot be relevant or material to any investigation."
(Mot. Vacate at 6-7.) Accordingly, say the Subscribers, the Order must be vacated and the
government’s application disclosed, to allow them “a fair opportunity to challenge the
Govermnent’s assertions and highlight any material misstatements or omissions.” (Mot. Vacate
at 7.)

logins; and 6, the government believed that the records of user activity for any connections to or
from the Account would include non-content information relating to direct messages between the
four accounts listed in the Order (Wikileaks, rop_g, ioerror, and birgiittaj), for example non-
content information reflecting the fact that a message was passed between such accounts. The
government also understood that Twitter was looking into whether it agreed that the Order
covered such connection records and whether it was possible to produce them from an
engineering standpoint. The government confirmed that it was not seeking any information
(content or non-content) relating to direct messages except those exchanged among any ofthe
four accounts listed in the Order.

3

The Subscriber’s statutory claim is meritless. As this Court lias already determined, the
government’s application for the Order (the Application) satisfied the governing standard by
alleging “specific and articulable facts showing that there are reasonable grounds to believe that
the records or other information sought are relevant and material to an ongoing criminal
investigation.” (Order at 1.) The Order is therefore fully compliant with § 2703(d), and the
Court should reject the Subscribers’ speculation that the Application “likely contains material
errors or omissions” that fender it insufficient. (Mot. Vacate at 1,)

Several additional reasons require rejection, of the Subscribers’ § 2703(d) argument, hr
the first place, the Subscribers cannot move to vacate the Order on statutory grounds. The Order
was issued under 18 U.S.C. § 2703(d), which is part of the Stored Communications Act (18
U.S.C. §§ 2701-12) (the SCA). That Act expressly prohibits the improvising of remedies.
Specifically, Congress provided that “[tjhe remedies and sanctions described in (the SCA] are the
only judicial remedies and sanctions for nonconstitutional violations of [the SCA].” 18 U.S.C. §
2708; see United Stales v. Clenney, No. 09-5114, slip op. at 13 (4lh Cir. Feb. 3,2011). Thus,
because the Subscribers’ first argument- alleges a nonconstitutional violation of § 2703(d), they
may invoke only the “judicial remedies” described in the SCA to address the putative illegality.
Accordingly, in challenging the Order based on an alleged violation of the § 2703(d) standard,
the Subscribers must identify authority in the SCA that permits such a motion in the first place.
But the Subscribers have failed to do so, and with good reason - the SCA does not authorize
them to move to vacate the Order for a nonconstitutional § 2703(d) violation.

The SCA provides only two ways to challenge' a § 2703(d) order. First, the "service
provider” may move to quash or modify the order “if the information or records requested are

4

unusually voluminous in nature or compliance with such order otherwise would cause an undue
burden on such provider.” 18 U.S.C. § 2703(d). This remedy would theoretically be available to
Twitter, the named service provider, but it is not available, to the Subscribers.

Second, a “subscriber or customer” may move to vacate an order, but only under certain
conditions, including when the order seeks the contents of that subscriber or customer’s
communications. See 18 U.S.C. § 2704(b)(l )(A) (motion to vacate must state “that the applicant
is a customer or subscriber to the service from which the contents of electronic communications
maintained for him have been sought”). Here, of course, the Order seeks only “non-content”
records and information about the Subscribers’ Twitter accounts,.

Notably, subscribers are not entitled to notice that the government has sought disclosure
of non-content information under § 2703(c), as the government has here. See 18 U.S.C. §
2703(c)(3) (“A governmental entity receiving records or information under tins section is not
required to provide notice to a subscriber or customer”). On the other hand, if the government
were seeking content information under Section 2703(b), notice- (albeit notice that may be
delayed) is required unless a search warrant is obtained, See 18 U.S.C § 2703(b)(1). Since
Congress required that subscribers be notified only when content is disclosed, it makes sense that
Congress provided subscribers with the ability to contest only such disclosures. See Ctenney,
No. 09-5114, slip op. at 12 (noting that statute “draws a distinction between the content of a
communication and the records pertaining to a communication service account”).2

2If the Subscribers have been aggrieved by a wilful violation of the SCA, they may sue the
United States for money damages under 18 U.S.C. § 2712. Challenging the Order in the manner
chosen here, however, is simply not among the options Congress authorized.

5

The above-described legal framework comports with practical demands and with
common sense. Pre-indictment challenges can interfere with ongoing criminal investigations,
and Congress carefully and appropriately tailored the ability to challenge the government’s
acquisition of non-content information. Because the Subscribers cannot avail themselves of the
only remedies- set forth in the SCA, the Subscribers have no basis to move to vacate the Order on
statutory grounds.

Moreover, even assuming that the procedures in § 2704(b). were available to the

Subscribers, any challenge to the Order under § 2704(b) would fail. That section provides that a
motion to vacate must be denied if “there is a reason to believe that the law enforcement inquiry
is legitimate and that the communications sought are relevant to that inquiry.” 18 U.S.C. §
2704(b)(4). In this case, any motion to vacate the Order under § 2704(b) would be denied
because in the Ordef this Court has already concluded that the government satisfied the higher §
2703(d) standard of providing “specific and articulable facts showing that there are reasonable
grounds to believe that the records or other information sought are relevant and material to an
ongoing criminal investigation,”3

3By its terms, section 2704(b) does not permit customers to contest whether the records
sought by a § 2703(d) order are Material to gin investigation, and legislative history confirms that
Congress intended not to provide customers with this authority. As described above, until 1994,
the standard for issuing a § 2703(d) order was identical to that for evaluating a § 2704(b)
challenge: in both cases, courts had to determine whether the records sought were “relevant to a
legitimate law enforcement inquiry.” See Pub..L. 99-508, Title II, § 201, Oct. 21,1986,100 Stat.
1861. In 1994, Congress changed the § 2703(d) standard to require that the records be “relevant
and material to an ongoing criminal investigation,” but left § 2704 unchanged, thereby
precluding customers from employing the new materiality standard in § 2704 litigation. See
Pub.L. 103-414, Title II, § 207(a), Oct. 25,1994,108 Stat. 4292.

6

Lacking a legitimate statutory remedy, the Subscribers instead ask the Court to review its
own issuance of the Order de novo and evaluate, again, whether the Application meets the
“specific and articulable facts” standard in 18 U.S.C. § 2703(d). (Mot. Vacate at 4-6.) For all
the reasons set forth above, the SCA does not allow the Subscribers to seek such a review.
Further, even if this Court were to reconsider the Application, it would find it more than
sufficient to meet tire § 2703(d) standard. Specifically, as narrowed by the government’s
agreement with Twitter, the Order seeks certain non-content business records that may be
obtained via a subpoena with no threshold showing to the court, namely (a) subscriber
information, including the subscriber’s name, address, connection records, subscriber number,
and length of service; mid (b) correspondence and records relating to an account. These types of
business records can be routinely obtained from providers by subpoena, and the Subscribers have
no reasonable expectation of privacy in them. See Clenney, No. 09-5114, at 11 (recognizing that
under § 2703(c)(2) government can bypass warrant or court order procedures “and simply
subpoena the records if it seeks only basic subscriber information, such as the name and address
of the customer and telephone call logs”); United States v. Bynum, 604 F.3d 161,, 164 (4th Cir.
2010) (individual had no subjective or reasonable expectation of privacy in his internet and
—phone "subscriber information," i.erhisname, email address, telephone number and physical
address, when he voluntarily conveyed this information to internet and telephone companies)
(citing Smith, 442 U.S. at 744, and United States v. Petrine, 518 F.3d 1196,1204 (10th Cir.

2008)).

Further, the following non-content information is the only material sought from Twitter
that required the government to show specific and articulable facts to support a reason to believe

7

that such information was relevant and material to an ongoing criminal investigation. (The
Application adequately established this, as this Court has already found.) As narrowed by the
government’s agreement, see note 1 supra, the Order requires disclosure of the following non-
content information:

1. Records of user activity for connections made between the four listed accounts (to
or from), including IP addresses (which are akin to telephone numbers for a
computer), and dates, and times (this would include the IP addresses of direct
(private) twitter messages between the relevant accounts, for example); and

2. non-content information associated with the contents of communications or stored
files (this would include, for example, the IP address of the recipient of a direct
message to the extent that recipient is also an account user).

At least one court has ruled that “the ‘specific and articulable facts’ standard derives from
the Supreme Court's decision in Teny.” United States y. Perrine, 518 F.3d 1196,1202 (10th Cir.
2008) (citing Terry v. Ohio, 392 U.S. 1 (1968)). It follows that "this standard is a lesser one than
probable cause.” in re Application of United States for an Order Directing a Provider of
Electronic Communication Service to Disclose Records to Government, 620 F.3d 304, 313 (3d
Cir. 2010) (Third Circuit Opinion)-, see United States v. Warshak, — F.3d —, 2010 WL
5071766, at *16 (6th Cir. Dec. 14, 2010) (noting “diminished standard that applies to § 2703(d)
applications”); see also S. Rep. No. 99-541, at 44-45 (1986), reprinted in 1986 U.S.C.CiA.N.
3555, 3598-99. 'The Teny standard is met “when an officer ‘point[s] to specific and articulable
facts which, taken together with rational inferences from those facts, evince more than an
inchoate and unparticularized suspicion or hunch of criminal activity?” United States v. Mason,
628 F.3d 123,128 (4th Cir. 2010) (quoting United States v. Branch, 537 F.3d328,336 (4th Cir.
2008)).

The Subscribers imply that the “specific and articulable facts” standard is more onerous

8

than the Terry rule (Mot, Vacate at 5), but they identify no court that has adopted this position,
and die government is aware of none. The presence of the word “material” in 18 U.S.C.

§ 2703(d) does not transform the § 2703(d) standard into one that requires a showing that the
records sought are “vital," “highly relevant.” or “essentialas the Subscribers suggest. (Mot.
Vacate at 5.) The Subscribers’ contrary argument is based on cases that discuss “materiality" in
contexts very different from § 2703(d). See (Mot. Vacate at 5); United States v. Valenzuela-
Berrtal, 458 U.S, 858, 867-73 (1982) (evaluating whether deportation of potential witnesses
violated defendant’s constitutional rights); Roviaro v. United States, 353 U.S. 53, 62-65 (1957)
(evaluating whether government could withhold identity of undercover informer); United States
v. Smith. 780 F.2d 1102,1109 (4th Cir. 1985) (evaluating whether government could preclude
defendant from introducing classified information at trial). Here, thefacts described in the
Application fully meet the Terry standard and therefore satisfy § 2703(d)’s requirements.

Mason, 628 F.3d at 128.

Further, there is no merit to the Subscribers’ claim that the records described in the Order
cannot be “relevant and material to an ongoing criminal investigation” simply because some of
them relate to communications “that have nothing whatsoever to do with. WikiLeaks.” (Mot.
Vacate‘at 6.) By the Subscribers’ logic, tire government could never use a § 2703(d) order to
obtain email transaction logs or phone bills unless the government could show that every email
or phone call related directly to the crime under investigation, And their position has radical
practical implications. Should providers be required in tire first instance to review individual
transaction records to determine relevancy? Providers are singularly til-equipped to determine
precisely what information would be relevant to an ongoing investigation. The government is

9

aware of no court that has adopted such a restrictive and impractical view of § 2703(d). Nor is
such a view required by law. See In re Subpoena Duces Tecum, 228 F.3d at 348-49 (in
explaining that subpoenas are less intrusive than search warrants find therefore require a lower
standard, noting that “[t]he Government cannot be required to justify the issuance of a grand juiy
subpoena by presenting evidence sufficient to establish probable cause because the very purpose
of requesting the information is to ascertain whether probable cause exists”) (quoting United
States v. R. Enterprises, Inc., 498 U.S. 292 (1991)). Contrary to the Subscribers’ assertions, the
Order requires the production of very limited transactional information that is directly relevant
and material to the ongoing criminal investigation. This is- especially true since with the
government’s agreement the Order is limited to connection information between the identified
account holders.

In summary, because the SCA strictly limits the remedies available to subscribers whose
non-content information is sought, the Subscribers cannot challenge this Court’s finding under §
2703(d) .that “specific and articulable facts” support the Order. And even if they could mount
such a challenge, it would fail, since the facts in the Affidavit aie iftore. than sufficient.

B. The Order Does Not Infringe Upon Any First Amendment
Rights Held by the Subscribers.

The Subscribers next protest that the Order, which seeks limited subscriber information,

such as names and addresses, and transactional records, such as connection data, all of which are

business records of Twitter but not the content of the Subscribers’ communications, “threatens

the Parties’ protected First Amendment rights.” (Mot. Vacate at 7If The Subscribers accuse the

^Neither Mr. Gonggrijp nor Ms. Jonsdottir appears to be a United States'citizen. Additionally, no
information, whether in their filing or within the government’s knowledge, suggests that either of
them maintained a significant continuing presence in the United States during the period of the

10

government of undertaking a “fishing- expedition” that may chill their rights “to speak freely and
associate with others.” (Mot. Vacate at 8.) They conclude that under the First Amendment,
unless the government can show that the information sought “would further a compelling
interest,” and that its request is “the least restrictive way to serve that interest,” the Order must be
vacated. (Mot. Vacate at 10.)

But the Subscribers’ argument is long on rhetoric and short on facts demonstrating an
actual “chill” on First Amendment freedoms. In reality the Order, which is not conceptually

-t

different from a routine subpoena seeking telephone subscriber information and toll records from
a telephone company, in no way inhibits the exercise of First Amendment rights.

Moreover, the Parties cannot demonstrate that they are entitled to “particular scrutiny” of
tlie Order based on alleged First Amendment interests, (Mot. Vacate at 8.) The Fourth Circuit
has specifically declined to apply the “substantial relationship” test, which balances First
Amendment freedoms against the government’s interest in investigating crime, to a grand jury
subpoena seeking corporate records of a distributor of sexually explicit films. In re Grand Jury
87-3 Subpoena Duces Tecum, 955 F.2d 229,234 (4th Cir. 1992). Instead, the court directed the
district court to “balance the possible constitutional infringement and file government’s need for

investigation. There is a legitimate question whether the rights under the Constitution of non-
citizen, non-national, non-residents of the United States are substantially identical to those of
citizens, residents, or individuals acting vyithinthe United States. See, e.g., United States v.
Verdugo-Urquidez, 494 U.S. 259, 265 (1990) (textual analysis of Constitution “suggests that ‘the
people’ protected by the Fourth Amendment, and by the First and Second Amendments... refers
to a class of persons who are part of a national community or who have otherwise developed
sufficient connection with this country to be considered part of that community”). Mr. Gonggrijp
and Ms; Jonsdottir do not address this threshold question before making arguments that imply
that the First and Fourth Amendments, apply to them just as they do to Mr. Appelbaum (who is a
United States citizen). In any event, for the reasons set forth Infra, none of the Subscribers
identifies a constitutional, violation warranting the extraordinary relief that they seek.

11

I

documents” when ruling on thei motion to quash, “on a case-by-case basis and without putting
any special burden on the government.” Id.

Doubtless, as the Subscribers assert, the freedoms of speech and association constitute
important rights protected by the First Amendment. But, setting aside legal platitudes, the
Subscribers fail to present a cognizable First Amendment claim. The irony presented in this case
is that the Subscribers publicly posted their Tweets — the contents of their messages — on the
Internet Information about the Subscribers’ Twitter .followers was. also public, since the
followers of the Subscribers’ Tweets posted their replies on the Internet. Thus, although the
Subscribers claim otherwise, the government has not embarked on a “fishing expedition into
information about their postings.” (Mot. Vacate at 8.) Nothing remains to fish for, since the
Subscribers and their associates have already made their postings available for all the world to
see, and can have no expectation of privacy in them. Nor.does the government seek the contents
of any of the Subscribers’ private direct messages (akin to private Internet chats), or seek to
identity others with whom the Subscribers communicated by direct messages. (Mot. Vacate at
8.) As narrowed by the government’s agreement with Twitter, the Order’s scope extends only to
non-content connection records for past communications involving the identified account
- holders.- It does not seek prospective connection records* or attempt to identify the Subscribers’
associates. It does not control or direct tire content of the Subscribers’ speech, or restrain, punish
or burden any speech or association in which the Subscribers may have engaged. For good
reason, the Subscribers fail to explain how the Order chills their freedom of speech or
association: they cannot. See Univ. of Pennsylvania v. E.E.O.C., 493 U.S. 182, 197-98 (1990)
(subpoena for academic papers did not impose content-based or direct burden on university);

12

Branzburg v, Hayes, 408 U.S. 665, 682,691 (1972) (requiring reporter to comply with subpoena
“involves no restraint on what newspapers may publish, or on the type or quality of information
reporters may seek to acquire,” nor does it threaten “a large number or percentage of all
confidential news sources”).

Thus, even if the “substantial relationship” test were required in the Fourth Circuit —
which it is not - since enforcement of the Order will not chill speech, or association, that test
would not apply. In re Grand Jury 87-3 Subpoena Duces Tecum, 955 F.2d at 234 (following
Branzburg and University of Pennsylvania). To the extent that the provider, Twitter, stands in
the same shoes as an ordinary citizen before this Court, “neither the First Amendment nor any
other constitutional provision protects [it] from disclosing to a grand jury information that [it]
has received in confidence,”5 absent a showing of harassment or bad faith, Branzburg, 408 U.S.
at 682,707; Univ. of Pennsylvania, 493 U.S. at 201 n.8 (1990) (implying that “the bad-faith
exercise of grand jury powers” is the only basis for a First Amendment challenge to a subpoena);
In re Sham, 978 F.2d 850, 852 (4th Cir. 1992).

Finally, the Subscribers do not allege - and cannot show - that the government has acted

in bad faith, either in conducting its criminal investigation or in obtaining the Order. The

government described the nature of its investigation in its Application, allowing the Court to

assess the legitimacy of the case before deciding to issue the Order. The government’s decision

5Most cases that evaluate First Amendment challenges to the compelled disclosure of documents
involve subpoenas, rather than court orders. Court orders issued under 18 U.S.C. § 2703(d), such
as the Order, are similar to subpoenas because they also require the disclosure of documents, but
they are arguably more protective of citizens’ interests because they are subject to prior judicial
review and require a higher factual showing for issuance. Accordingly, a party attempting to
challenge a § 2703(d) court order should be subject to' standards that are at least as stringent as
those applied to a motion to quash a subpoena.

13

to pursue the particular records described in the Order was also subject to oversight by this
Court, which, concluded that the Order was warranted because the government “offered specific ■
and articulable facts showing that' there are reasonable grounds to believe that the records or
other information sought are relevant and material to an ongoing criminal investigation,'’ 18
U.S.C. § 2703(d). The government has acted in good faith throughout, and there is no evidence
that either the investigation or the Order is intended to harass the Subscribers or anyone else. See
In re Grand Jury 87-3, 955 F.2d at 233 n.3 (noting that there was no allegation of grand jury bad
faith); United States v. Steelhammer, 539 F.2d 373, 376 (4th Cir.. 1976) (Winter, J., dissenting),
adopted by the court en banc, 561 F,2d 539,540 (4th Cir. 1977) (“[T]he record fails to turn up
even a scintilla of evidence that the reporters were subpoenaed to harass them or to embarrass
their newsgathering abilities ...”), Accordingly, the Subscribers have no colorable First
Amendment claim justifying vacation of the Order.

C. Because the Subscribers Have No Expectation of Privacy in

Their IP Addresses Provided to Twitter, the Order Does Not
Violate Their Fourth Amendment Rights.

The Court should likewise reject the Subscribers’ claim that the Order threatens their
Fourth Amendment rights. The Subscribers identify only one aspect of the Order that supposedly
implicates such rights: its directive that Twitter produce tire Internet Protocol (“IP”) addresses
that the Subscribers used to log in to their Twitter accounts at particular dates and times. (Mot.
Vacate at 10.) According to the Subscribers, this IP address information, in connection with tine
dates and times of the account logins, implicates the Fourth Amendment because it “could allow
the government to discern the physical location of the parties at the exact time they were

14

publishing on Twitter.” Id. However, even assuming for argument's sake that the Subscribers
have standing to bring a Fourth Amendment challenge to the Order, the Subscribers have no
Fourth Amendment interest in. IP address information, and the Order cannot not be vacated on
that ground.

IP addresses are analogous to telephone numbers. See United States v. Forrester, 512
F.3d 500, 510 (9th Cir. 2008). Just as every telephone is assigned a number that phone
companies use to route calls, every computer directly connected to the Internet is assigned an IP
address that '‘serves as tire routing address for email, pictures, requests to view a web page, and
other data sent across the Internet.” Register.com, Inc. v. Verio, Inc., 3.56 F.3d 393,409 (2d Cir.
2004). “Like telephone numbers,... IP addresses are not merely passively conveyed through
third party equipment, but rather are voluntarily turned over in order to direct the third parly's
servers.” Forrester, 512 F.3d at 510. Accordingly, the government’s acquisition of IP address
information is properly analyzed using the same legal framework that applies to the
government’s acquisition of phone numbers. See id. (concluding that real-time collection of IP
addresses of websites visited by Internet user was “constitutionally indistinguishable” from the
use of a pen register to collect numbers dialed from a phone line).

Because IP addresses are analogous to phone numbers and should be governed by the
same legal rules, Smithv. Maryland, 442 U.S. 735 (1979), disposes of the Subscribers’ Fourth
Amendment claim. In Smith, the Supreme Court concluded among other tilings that telephone
users had no reasonable expectation of privacy in the telephone numbers they dialed because they
“voluntarily conveyed numerical information to the telephone company” and thereby “assumed
the risk that the company would reveal to police the numbers ... dialed.” 442 U.S. at 744. This

15

conclusion is consistent with the general rule that “a person has no legitimate expectation of
privacy in information he voluntarily turns over to third parties.” Id, at 74344 (citing eases); see
also United States v. Miller, 425 U.S. 435,440 (1976) (bank depositor had no “legitimate
expectation of privacy” in financial information “voluntarily conveyed to,.. banks and exposed
to their employees in the ordinary course of business”); Byhum, 604 F. 3d at 164 (internet user
had no legitimate expectation of privacy in subscriber information that he voluntarily conveyed
to his internet company). Just as telephone users voluntarily transmit phone numbers to their
phone providers» the Subscribers voluntarily transmitted their IP addresses to Twitter to gain
access to their Twitter, accounts, thereby assuming the risk that Twitter would reveal the
addresses to law enforcement agents. See Forrester, 512 F,3d at 510. Indeed, Twitter’s Privacy
Policy places all Users on notice that Twitter servers “automatically record information (‘Log
Data’) created by your use of the Services,” and specifies that this Log Data “may include
information such as your IP address.” Twitter Privacy Policy, http://twitter.com/privacy (last
visited February 1,2011). Accordingly, based on the Supreme Court’s reasoning in Smith, the
Subscribers cannot now claim a reasonable expectation of privacy in Twitter’s records of their IP
addresses.6

To the government’s knowledge, no court has concluded that Internet users have a

6Even if the Subscribers somehow had a reasonable expectation of privacy in their IP address
information, the Order would not be improper under tire Fourth Amendment. See Smith, 442
U.S. at 744 (“[T]he Fourth Amendment does not prohibit the obtaining of information revealed
to a third party and conveyed by him to Government authorities.”); S.E.C, v. Jerry T. O’Brien,
Inc., 467 U.S. 735,743 (1984) (past Supreme Court rulings “disable respondents from arguing
that notice of subpoenas issued to third parties is necessary to allow a target to prevent an
unconstitutional search or seizure of his papers”); Okla. Press Pub. Co. v. Walling, 327 U.S. 186,
208 (1946) (explaining Fourth Amendment requirements for subpoenas).

16

reasonable expectation of privacy in IP address records. Indeed, at least two courts of appeals
have affirmatively held that Internet risers have no reasonable expectation of privacy in IP
address information.7 See Forrester, 512 F.3d at 510 (“[E]-maiI and Internet users have no
expectation of privacy in ... the IP addresses of the websites they visit because they should know
that this information is provided to and used by Internet service providers for the specific purpose
of directing the routing of information.”); United States v. Christie, 624 F.3d 558, 574 (3d Cir.
2010) (”[N]o reasonable expectation of privacy exists in an IP address, because that information
is also conveyed to and, indeed, from third parties,'including ISPs,”). This Court should adopt
tire reasoning of these cases and hold that tire Subscribers lack a reasonable expectation of
privacy in their IP address information.

Moreover, there is no merit to the Subscribers’ suggestion that the Court should depart
liom these cases and conclude that IP address records deserve Fourth Amendment protection
because they “could allow the government to discern the physical location of the [Subscribers] at
the exact time they were publishing on Twitter.” (Mot. Vacate at 10,) Business records do not
become privileged merely because they contain information that might enable the government to

7The Subscribers do not address these cases and instead imply in a footnote that only opinions
“specifically addressing Twitter data" are directly on point. (Mot. Vacate at 12 n. 10,) But there
is no legal basis for distinguishing Twitter’s IP address records from thé TP address records of
any other Internet service provider, hr any event, cases that analyze the. Collection o f IP address
information axe much more relevant to the Subscribers’ Fourth Amendment argument than the
cases cited by the Subscribers in tire same footnote, which evaluate government searches of
computers seized from private homes and government efforts to obtain the content of email
messages. See Trulock v. Freeh, 275 F.3d 391,402-03 (4th Cir. 2001) (consent-based search of
home, computer, and computer files); United States v. Mann, 592 F,3d 779,786 (7th Cir. 2010)
(warrant-based search of computers seized from defendant’s home); United States v. Carey, 172
F.3d 1268, 1275 (10th Cir, 1999) (same); United States v. Warshak, — F.3d —, 2010 WL
5071766, at *11, *14(6tliCir. Dec. 14,2010) (use of § 2703 process'to obtain content of email
messages).

17

discern a person’s location. For example, traditional land-line telephone records reveal that a
caller was using a particular land-line telephone number at a particular time, and investigators
have long been able to use such information to place a caller in a particular- location (often a
private home) at the time of the call. However, telephone users have no reasonable expectation
of privacy in this land-line information, even when collected in real-time, when the government
obtains it from the phone provider. See Smith, 442 U.S. at 745 (concluding that phone user had
no legitimate expectation of privacy in phone numbers he dialed); Reporters Committee for
Freedom ofPressv. AT&T, 593 F.2d 1030,1046 n.49 (D.C. Cir. 1978) (citingcases for
proposition that telephone subscribers have no Fourth Amendment basis for challenging
government inspection of their toll records). In this respect, IP address connection records are no
different than land-line telephone records, except.that they are less geo-specific, not more, since
many computers are considerably more mobile than land-line telephones. Further, the
government is not required to obtain a warrant before compelling businesses to produce other
types of business records from which location-based inferences could be drawn, such as bank
records, employment records, credit card records, and other records of customer purchases. See,
e.g., Miller, 425 U.S. at 444 (rejecting Fourth Amendment challenge to subpoena for bank
records). In short, the Subscribers do not have a Fourth Amendment interest in Twitter’s records
of their IP addresses even if the government could use these records to discern thé Subscribers’
locations at certain times.

The cases cited by the Subscribers do not support their claim that they have a Fourth
Amendment interest in Twitter’s IP address records. First, United States v. Karo, 468 U.S. 705
(1984), requires the government to obtain a warrant before using a tracking device to reveal

18

information about the interior of a private location. 468 U.S. at 715. But neither the Supreme
Court nor the Fourth Circuit has applied this tracking-device standard to business records, even
though many kinds of business records could reveal someone’s location at aparticular time.
Indeed, if Karo did apply to business records, it would implicitly overrule Smith v. Maryland,
United States v. Miller, and other Supreme Court cases that have upheld the government’s ability
to obtain business records without a warrant. Plainly, Karo did not void all of this settled
precedent.

Furthermore, applying the Karo standard to all business records would have absurd and

unworkable results. For example, the government would have to obtain a warrant, rather than a

subpoena, to require a company to disclose phone records, security surveillance videos, visitor

sign-in sheets, or even time-stamped photographs of an employee in her office, because any of

these records could reveal someone’s location in a private space at a particular time. See United

States v. Gray, 491 F,3d 138,153 (4th Cir. 2007) (citing O’Connor v. Ortega, 480 U.S. 709
/

(1987)) C‘[A]n individual canhave an expectation of privacy in his workplace.”). The logical
result of such an expansion of Karo would be that the government would be required to use a
warrant, rather than a subpoena, whenever it sought to obtain business records. The Fourth
Amendment has never been so construed.

Even if tire Karo tracking-device standard were somehow applicable here, the Subscribers
still would have no Fourth Amendment interest in Twitier’s records of their IP addresses.
Although the government must obtain a warrant to use a tracking device to “reveal a critical fact”
about the interior of a private home, Karo, 468 U.S. at 715, no warrant is required when the
government obtains more generalized information about a tracking device’s location, even when

19

the device is actually located in a private space.8 See id at 720 (finding no Fourth Amendment
violation when government used tracking device to determine that can of ether was inside
warehouse because, inter alia, the device “did not identify the specific locker in which the ether
was located”)- Twitter’s IP address records, without more, do not reveal the type of precise
location information protected by the Karo standard. See (Mot. Vacate at 11 n.9 (“[Q]ne of the
leading companies advertises that its free geolocation tool can determine the location of‘79% [of
U.S. IP addresses! within a 25 mile radius.”).) Accordingly, even if Karo applied to business
records, the Subscribers have failed to establish that the government's acquisition of Twitter IP
address records would violate a Fourth Amendment right, under Karo. Cf United States v.
Ortega-Estrada, 2008 WL 4716949, at *13 (N.D. Ga. Oct. 22,2008) (finding that even GPS
information accurate to within 32 meters “revealed only a general area where the suspect was at a
particular time, and thus, did not invade a place-where he might have an expectation of privacy”).

The Third Circuit Opinion, on which the Subscribers principally rely, also does not help
their cause. (Mot. Vacate at 13.) In that case, the court agreed that the privacy interests at issue
in Karo “are confined to the interior of the home,” Third Circuit Opinion, 620 F.3d at 312, and it
declined to hold that probable cause was always required for the government’s collection of
historical cell-site location information (CSLI) because there was no evidence in the record that

sThe Subscribers cite a recent D.C. Circuit decision, United States v. Maynard, 615 F.3d
544 (D.C. Cir. 2010), which suggests that the continued use of a tracking device in public may
raise additional issues under the Fourth Amendment. (Mot. Vacate at 14.) In addition to being
inapplicable here, this decision is inconsistent with Supreme Court precedent, including Smith v.
Maryland and Katz v. United States, 389 U.S. 347 (1967), and conflicts with tracking-device
decisions of three oilier courts o f appeals. See United States v. Marquez, 603 F.3d 604,609-10
(8 th Cir. 2010); United States v. Pineda-Moreno, 591 F.3d 1212,1216-17 (9th Cir. 2010); United
States v. Garcia, 474 F.3d 994, 997-98 (7th Cir. 2007).

20

historical CSLI revealed information about the interior of a home.“5 See id at 313. Likewise, the
Subscribers have presented no evidence that Twitter’s IP address records would reveal
information about the interiors of their homes. Furthermore, even if the Third Circuit’s opinion
were persuasive and binding on this Court, cf. 620 F.3d at 320 (Tashima, J,, concurring) (noting
that majority opinion ‘Vests magistrate judges with arbitrary and uncabined discretion to grant or
deny issuance of § 2703(d) orders at the whim of the magistrate, even when the conditions of the
statute are met” (footnote omitted)), its reasoning is inapplicable to the collection of IP addresses
because such addresses are much more analogous to the phone numbers collected in Smith v.
Maryland than they are to CSLI. Accordingly, even though the Third Circuit concluded that
Smith is inapplicable to CSLI (a conclusion with which the government disagrees), it does not
follow that Smith is inapplicable to IP address records.* * 10 In fact, just eight days after issuing the
Third Circuit Opinion, the Third Circuit died',Smith in support of its conclusion that “no
reasonable expectation of privacy exists in an IP address.” United Stales v; Chdstie, 624 F.3d
558,574 (3d Cir. 2010).

In summary, for all of these reasons, the Order does not implicate the Subscribers’ Fourth
Amendment rights, and cannot be vacated On that ground.

D. Having Properly Issued the Order, This Court Need Not

"Records of CSLI reveal among other things the location of the antenna tower that carried a given

call at a particular date and time. See Third Circuit Opinion, 620 F.3d at 308.

10The Third Circuit distinguished Smith on the ground that cell-phonc customers do not
“voluntarily” share CSLI with their phone providers. See Third Circuit Opinion, 620 F.3d at
317-18. This basis for distinguishing Smith is not available to the Subscribers because, as
discussed above, they voluntarily conveyed their IP address information to Twitter when they
logged into their Twitter accounts. Moreover, in an increasingly tech-savvy world, the notion,
baldly asserted by the Subscribers, that a typical Internet user has no awareness that his IP
address is transmitted to the Internet sites with which he or she communicates (such as Twitter),
is dubious at best. (Mot. Vacate at 14.)

21

Reconsider Its Decision and Should Reject, the Subscribers’

Constitutional Avoidance Argument.

The Subscribers next ask the Court to apply the doctrine of constitutional avoidance in
light of a § 2703(d) application that supposedly “raises serious constitutional questions/’ and to
vacate the Order and require that the government instead obtain a warrant based on probable
cause. (Mot. Vacate at 16.) But as demonstrated supra, although the Subscribers try gamely to
conjure them, no “serious constitutional questions” attend the government’s straightforward §
2703(d) application in this case. And even if, as Subscribers claim, § 2703(d) gave courts the
discretion to “deny applications for § 2703(d) orders” that satisfy the §. 2703(d) standard (Mot.
Vacate at 14), that discretion would be inapplicable here, since the Court is not being asked to
rule on a pending application, but instead to vacate its already-issued order. The Subscribers
have identified no provision of the SCA that gives courts the discretion to vacate valid orders in
order to avoid deciding constitutional challenges. Indeed, as detailed supra in Section 11(A), the
Subscribers are seeking yet another improvised remedy not authorized by the SCA. Accordingly,
the Court should decline the Subscribers’ invitation to vacate the Order.

Additionally, the alternative reading of § 2703(d) advanced by the Subscribers is contrary
to the statute’s language and structure. The Subscribers’ argument relies on a Third Circuit case
interpreting the “only if’ language of § 2703(d) to mean that the “specific and articulable facts”
requirement is a necessary condition for obtaining a 2703(d) order, but not a sufficient one. See
Third Circuit Opinion, 620 F.3d at 319 (stating that § 2703(d) “gives the MJ the option to require
a warrant showing probable cause,” although such a requirement was “an option to be Used
sparingly”). This alternative interpretation of § 2703(d) should be rejected because it renders

22

superfluous the phrase “and shall issue” in § 2703(d). The Subscribers’ “necessary but not
necessarily sufficient” interpretation of § 2703(d) is equivalent to the following formulation,
which omits the critical “and shall issue” language of § 2703(d): a § 2703(d) order “may be
issued by any court that, is a court of competent jurisdiction only if the governmental entity offers

specific and articulable facts_____” The Subscribers’ interpretation therefore violates the cardinal

principle of statutory construction that a statute ought whenever possible be construed in such a
way that no “clause, sentence, or word shall be superfluous, void, or insignificant.” Gunnells v.
Iiealthplan Servs., 348 F,3d 417,439-40 (4th Cir. 2003) (quoting TRW Inc. v. Andrews, 534 U.S,
19,21 (2001) (internal quotation marks omitted)). Furthermore, the word “shall” has critical
importance in a statute: "[t]he word ‘shall’ is ordinarily ‘tire language of command,Alabama
v. Bozeman, 533 U.S. 146, 153' (2001). Because the Subscribers’ interpretation of § 2703(d)
improperly renders “shall” superfluous, it offers no basis for the Court’s reconsideration of the
Order.

Moreover, as Judge Tashima stated in his concurrence in Third Circuit Opinion, the
Subscribers’ construction of § 2703(d) “provides no standards for the approval or disapproval of
an application” fora § 2703(d) order. 620 F.3d at 319 (Tashima, J., concurring). Their
interpretation would permit a magistrate judge to arbitrarily deny an application under § 2703(d)
without any reasoned basis. As Judge Tashima stated, such an interpretation “is contrary to the
spirit of the statute.” Id, The Subscribers divine a “sliding scale” at work in § 2703(d),
Subscribers’ Brief at 15, but fail to delimit how far the scale may slide: indeed, under the
Subscribers’ interpretation of the language of § 2703(d), a court could reject a § 2703(d) order
even if the government established probable cause. In enacting the SCA, Congress could no t

23

have intended such a chaotic and standard-less regime.

Furthermore, the Subscribers’ argument that their interpretation of § 2703(d) is required
by the doctrine of constitutional avoidance is mistaken.' Under this doctrine, “when an Act of
Congress raises a serious doubt as to its constitutionality, [courts should] fust ascertain whether a
construction of the statute is fairly possible by which the question may be avoided.” Zadvydas v.
Davis, 533 U.S. 678,689 (2001) (internal citations omitted). Here, as shown supra, the
Subscribers have utterly failed to raise serious doubts about the constitutionality of § 2703(d),
rendering that doctrine inapposite.

Thus, there is no reason for this Court to avoid any constitutional challenges, serious or
otherwise, raised by the Subscribers. “[I]na field like search and seizure law, where lawmakers
are continually struggling to update legislation to cope with changing technology, the
presumption, inherent in the doctrine of constitutional avoidance, that Congress did not intend to
promulgate legislation which ‘raises serious constitutional doubts,’ has little applicability.” In re
Application of the United States, 632 F. Supp. 2d 202,210 (E.D.N.Y. 2008) (internal citation
omitted). For ail of these reasons, the Court should reject the Subscribers’ constitutional
avoidance argument and decline to vacate the Order.

: E, Subscriber Jonsdottir’s Status as a Member of Iceland’s * -------

Parliament Does Not Insulate Twitter’s Records From
Disclosure Under the Order.

Lastly, the Subscribers claim that Ms. Jonsdottir’s status as a member of die Icelandic
Parliament means that the Order “appears to violate Icelandic law,” since she is “protected by a
strong constitutional immunity in Iceland.” (Mot. Vacate at 16.) The Subscribers protest that the
government “is conducting a criminal investigation which sweeps in Ms. Jonsdottir’s

24

publications in Icelandic on topics of Icelandic concern - records that could not be obtained
under Icelandic law.” (Mot. Vacate at 16-17.) The Subscribers also darkly warn drat this
investigation "creates a perilous precedent for foreign government efforts to seek information
about members of the U.S. Congress»” and urge that the Order be vacated. (Mot. Vacate at 17.)

In raising their legislative immunity claim, the Subscribers invoke the Speech or Debate
Clause, (Mot. Vacate at 16 n.12). It provides, "for any Speech or Debate in either House,
[Senators and Representatives] shall not be questioned in any other place.” U.S. Const, art. I, §

6, cl. 1. The Speech or Debate Clause “serves to immunize a member of Congress from being
questioned about his legislative acts.” United Slates v. Jefferson, 546 F.3d 300, 304 n.2 (4lh Cir.
2008). "Put simply, the Clause provides legislators with absolute immunity for their legislative
activities, relieving them from defending those actions in court.” Id. at 310. But the
constitutional protections afforded legislators are limited arid circumscribed. The Speech or
Debate Clause prohibits “inquiry only into those things generally said or done in the House or the
Senate in the performance of official duties and into the motivation for those acts.” United States
v. Brewster, 408 U.S. 501, 512 (1972); United States v. Jefferson, 534 F. Supp. 2d 645,651 (E.D.
Va. 2008) (“[T]he privilege applies only to those activities integral to a Member’s legislative

------function,-¿e., activities that are integral to the Member’s participation in the drafting,-- - ---

consideration, debate, and passage or defeat of legislation” (footnotes omitted)). But the Clause
does not bar an “inquiry into activities that are casually or incidentally related to legislative
affairs but not a part of the legislative process itself.” Brewster, 408 U.S. at 528. And, of course,
“the Speech or Debate Clause is not. a license to commit crime.” Jefferson, 534 F. Supp. 2d at
652.

25

Here, the Subscribers7 assertion of legislative immunity based on Ms. Jonsdottir’s status
as a foreign legislator is fatally flawed, in several respects. First, of course, Ms. Jonsdottir is not
a member of Congress, and thus cannot claim the protections of the Speech or Debate Clause.
That Clause by its terms applies only to “Senator's and Representatives.” See United States v.
GillocK 445 U.S. 360,366 n.5 (1980).

Second, even if apart from the Speech or Debate Clause Ms. Jonsdottir qualifies for
“legislative immunity77 in courts of the United States, see E.E. O. C. v. Wash Suburban Sanitary
Comm., — F.3d —,2011 WL 228591 (4* Cir. 2011) (protected legislative acts “generally bear
the outward marks of public decisionmaking, including the observance of formal legislative
procedures”), in this preliminary investigative proceeding there is no occasion to assert that
doctrine. The Order seeks business records from Twitter, not Ms. Jonsdottir. It does not require
Ms. Jonsdottir’s participation or presence, or that she do anything at all. The Order does not seek
sensitive or confidential infonnafion, but rather data that Ms. Jonsdottir voluntarily provided to
an American corporation, and in which she has no privacy interest. Tire Order does not compel
testimony - from any person. Cf. U.S. Const, ait. I, § 6, cl. 1 (legislators “shall not be questioned
... .”). It does not seek content - so it is inelevant whether Ms. Jonsdottir’s Tweets were

------“predominantly in Icelandic,” or in any other language.-(Mot. Vacate at 16.) ft does not seek —

information about any aspect of parliamentary affairs in Iceland* including any of Ms.
Jonsdottir’s legislative acts or activities. It does not seek information regarding other Twitter
accounts known to be used by members of Iceland’s parliament; the other Subscribers do not
hold such status. In short, upon examination, the Subscribers’ claim that Ms. Jonsdottir’s status
as a parliamentarian gives rise to “concerns” in this § 2703(d) proceeding is vacuous. Cf. Wash.

26

Suburban Sanitary Comm,, 2011 WL 228591, at *9 (refusing to quash administrative subpoena
at preliminary stage of investigation where it was unknown whether investigation would evolve
into lawsuit or whether defending such a suit would require legislators’ testimony or
involvement).

Third, even if Ms. Jopsdottir could invoke legislative immunity here, and further could
show that she used her Twitter account to communicate with her constituents about'matters in
Iceland’s parliament, that factor is of no moment, since her Tweets to constituents were not
protected legislative acts. The Founders never intended to grant legislative immunity “for
defamatory statements scattered far and wide by mail, press, and the electronic media.”
Hutchinson v. Proxmire, 443 U.S. 111, 132 (1979). Moreover, a legislator’s public statements,
including newsletters and press releases, are “not part of the legislative function or the
deliberations that makeup the legislative process.” Id. at 133. Accordingly, “transmittal of such
information by press releases and newsletters is not protected by the Speech or Debate Clause.”

Id. ■ It follows that the Subscribers cannot hope to demonstrate that Ms. Jonsdottir is entitled to
legislative immunity - whatever that might mean in this § 2703(d) proceeding - based on her
public Tweets.

—■ ■ — Fourth, and finally* a legislator cannot decline to participate in a lawful criminal------

investigation, or prevent others from doing so, based on his or her status. In Gravel v. United
Stales, 408 U.S. 606 (1972), a United States Senator moved to quash a federal grand jury
subpoena served on a member of the senator’s own staff. The grand jury was investigating
possible ciimes relating to the release and dissemination of the Pentagon Papers. It appeared that
the Senator had read extensively to a subcommittee from the Pentagon Papers (which were then

27

classified) and had placed all 47 volumes in the public record, and had afterwards negotiated

with publishers about publishing the documents. 408 U.S. at 609-10. In the grand jury

investigation, the Senator intervened, citing the Speech or Debate Clause, and moved to quash

the subpoena and to require the government to specify the questions to be asked his aide.

The Supreme Court held that the Senator’s aide was required to testify before the grand

jury. Reflecting upon the Speech or Debate Clause, the Court stated:

[The Clause], as we have emphasized, does not purport to confer a general
exemption upon Members of Congress from liability or process in criminal cases.

Quite the contrary is true. While the Speech or Debate Clause recognizes speech,
voting, and other legislative acts as exempt from liability that might otherwise
attach, it does not privilege either Senator or aide to violate an otherwise criminal
law in preparing for or implementing legislative acts. If republication of these
classified papers would be a crime under an Act of Congress, it would not be
entitled to immunity under tile Speech or Debate Clause. It also appears that the
grand jury was pursuing this very subject in the normal course of a valid
investigation.

408 U.S. at 626. The Couit further opined that it did not “perceive any constitutional or other
privilege that shields [the aide], any more than any other witness, from grand jury questions-
relevant to tracing the source of obviously highly classified documents that came into the
Senator’s possession and are the basic subject of inquiry in this case, as long as no legislative act
is implicated by the questions.” Id. at 628 (footnote omitted).

Gravel demonstrates that a senator cannot use his status to exempt himself from a
criminal investigation, or to prevent a third party from complying with lawful investigative
process. See Brewster, 408 U.S. at 516 (purpose of Speech or Debate Clause was not “to make
Members of Congress super-citizens, immune from criminal responsibility”). Here, Ms.
Jonsdottir manifestly cannot invoke her position as an Icelandic parliamentarian and thereby

28

black. Twitter’s compliance with an Order to provide non-privileged and non-content information
that she voluntarily relinquished to that corporation months ago. Even if she were a member of
Congress, sire could not do so.

III. Conclusion

For the reasons stated, this Court should deny the Subscribers’ motion to vacate the Order
of December 14,2010.

Respectfully submitted,

Neil H. MacBride
United States Attorney

By: _______/s[__________________

John S. Davis
Tracy Doherty-McCormick
Assistant United States Attorneys
United States Attorney's Office
2100 Jamieson Avenue
Alexandria, Virginia 22314
(703) 299-3700

29

CERTIFICATE OF SERVICE.

I HEREBY CERTIFY that a true copy of the foregoing Objection was filed with the
Clerk of the Court on February 7,2011, and a copy of this filing was e-mailed to opposing

counsel at the following addresses:

John K. Zwerling
Stuart Seal's

Zwerling, Liebig & Moseley, P.C.
108 N. Alfred Street
Alexandria, VA 22314
JZ@Zwerling.com
Counsel for Jacob Appelbaum

Nina J. Ginsberg
Dimuro Ginsberg P.C.

908 King Street, Suite 200
Alexandria, VA 22314
nginsberg@dimuro.com
Counsel for Rop Gonggrijp

Johnathan Shapiro

Greenspun, Shapiro, Davis, & Leary

3955 Chain Bridge Rd

Second Floor

Fairfax, VA 22030

Js@greenspunlaw. com

Counsel for Birgitta Jonsdottir

Rebecca K. Glenberg

ACLU of Virginia Foundation, Inc.

530 E. Main Street, Suite 310

Richmond, VA 23219

rglcnberE@acluva.org

________________/si_____________

John S. Davis

Assistant United States Attorney
2100 Jamison Avenue
Alexandria, VA 22314
Phone: (703) 299-3700
Fax: (703) 299-3982

30

ATTACHMENT I

THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA

FILED

Alexandria Division

IN THE MATTER OF THE 2703(d) ORDER
AND 2703(f) PRESERVATION REQUEST
RELATING TO GMAIL ACCOUNT

Case No. 1:10GJ3793
ll-DM-2

UNDER SEAL

2011 FEB 28 P ip 50

CLERK US DISTRICT COURT
ALEXANDRIA. VIRGINIA

RESPONSE OF THE UNITED STATES TO GOOGLE’S MOTION TO STAY
PRODUCTION PENDING RULING ON GOOGLE’S OBJECTION TO

MAGISTRATE’S ORDER

The United States, by and through Neil H. MacBride, United States Attorney, opposes
Google Inc.’s (“Google”) motion to stay production of documents (“Google Motion to Stay”)
pending this Court’s ruling on Google’s motion objecting to (“Google Motion”) Magistrate
Judge |Udecisions that the court-ordered legal process for business records pursuant to the
Stored Communications Act (“SCA”) (18 U.S.C. §§ 2701-12) should remain under seal and not
be disclosed for a limited period of time pending the ongoing criminal investigation.

As further described in the factual background of the Government’s Response to
Google’s Motion (“Government Response”), incorporated here by reference, Google has
objected to Magistrate ruling on February 9,2011 that denied in part and granted in part
Google’s motion to modify the court’s order of January 4,2011 (the “Order”) requiring Google
to produce subscriber and transaction records related to the Gmail account®

(the ‘'||^Usubscriber”) under 18 U.S.C. § 2703(d). Google had asked JudgeHiBo unseal
and vacate the Order’s non-disclosure provisions, which the court had properly included
pursuant to 18 U.S.C. § 2705 and Local Criminal Rule 49, so that Google could “provide
immediate notice” to the ioerror subscriber. Google Mot. at 2 (emphasis added). Magistrate

d

1

^adopted, instead, the government’s reasonable proposal to modify the Order to authorize
Google to provide notice to the^^^^ubscriber “within (90) days of providing... the
information requested in [the] Order, unless the government files a motion for an extension of
that non-notification period.” Roche Decl. Ex. 4. Magistrate Davis further ordered “that the
government may request an extension of the [Order’s] non-notification period for a maximum of
sixty (60) days.” (“Order 2”) Id

For the reasons set forth below, the United States opposes Google’s Motion to Stay its
production of documents and information pending the court’s consideration of its objections.
Google has failed to meet its burden to show that this Court should exercise its discretion and
grant a stay. It failed to show a strong likelihood of success on the merits and irreparable injury
absent a stay. To the contrary, a stay will injure the United States and is contrary to the public’s
interest.

Standard of Review

In deciding whether to stay enforcement of an order, the Court should consider the
following factors: “(1) whether the stay applicant has made a strong showing that he is likely to
succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3)
whether issuance of the stay will substantially injure the other parties interested in the
proceeding; and (4) whe[re] the public interest lies.” GTSICorp. v. Wildflower Int'l, Inc., No.
I:09cvl23,2009 WL 3245396 at *1 (ED.Va. Sept. 29,2009) (citing Hilton v. Braunskill, 481
U.S. 770,776 (1987) (collecting cases) and James Wm. Moore, Moore's Federal Practice §
62.06[3] (3d ed.2007)); United States v. Clark, Nos. C-79-190-G, 193G, 1980 WL 1502 at *1
(M.D.N.C. Feb. 6,1980) (citing 11 Wright & Miller, Federal Practice and Procedure § 2904 at

2

316(1973) and Long v. Robinson, 432 F. 2d 977 (4th Cir. 1970)); see also United States v. Dyer,
750 F.Supp. 1278, 1299 n. 40 (E.D.Va. 1990).

“A stay is not a matter of right, even if irreparable injury might otherwise result.” Nken v.
Holder, 129 S.Ct. 1749,1760-61 (2009) (quoting Virginia R. Co., v. United States, 272 U.S. 658,
672 (1926)). It is “an exercise of judicial discretion,” and its issuance depends “upon the
circumstances of the particular case.” Nken, 129 S.Ct. at 1761 (citing Virginia R. Co, 272 U.S. at
672-673 and Hilton, 481 U.S, at 777). The party seeking a stay bears the burden to show “that
the circumstances justify an exercise of that discretion.” Nken, 129 S.Ct. at 1761 (citing Clinton
v. Jones, 520 U.S. 681, 708 (1997); Landis v. North American Co., 299 U.S. 248,255 (1936)).

Analysis

I. Google Has Failed to Make a Strong Showing that It is Likely to Succeed on the Merits

The Court must consider the following two aspects in weighing Google’s likelihood of
success: (1) the standard of review used to determine whether to overturn Magistrate I
determination of a non-dispositive motion; and (2) the underlying merits. GTSI Corp., 2009 WL
3245396.at *1.

A. Standard of Review

The parties disagree on the appropriate standard of review. See Google Mot. at 8; Gov’t
Resp. at 4-6. The United States believes that Google’s motion involves non-dispositive matters
under Rule 59(a) of the Federal Rules of Criminal Procedure. See In re U.S. for Order Directing
a Provider of Electronic Communication Service to Disclose Records to the Government, Mag.
No. 07-524M, 2008 WL4191511, at *1 (W.D.Pa. Sept. 10,2008), vacated on other grounds by
620 F,3d 304 (3d Cir. 2010) (reviewing objections to magistrate judge’s denial of a § 2703(d)
court order under Fed. R. Crim. P. 59(a) and 28 U.S.C. § 636(b)(1)); In re U.S. for an Order

3

Authorizing the Disclosure of Prospective Cell Site Information, No. 06-MISC-004,2006 WL
2871743, at*l (E.D. Wise. Oct. 6,2006) (same).

Non-dispositive orders are overturned only if “clearly erroneous or contrary to law.” See
Fed.R.Crim.P. 59(a); see also 28 U.S.C. § 636(b)(1)(A) (“A judge of the court may reconsider
any pretrial matter under this subparagraph (A) where it has been shown that the magistrate
judge’s order is clearly erroneous or contrary to law.”); GTSI Corp., 2009 WL 3245896 at *2
(district court should overturn magistrate judge’s civil discovery order only if it is “clearly
erroneous or contrary to law”).

Google argues for a de novo standard of review on the basis that the Orders are
dispositive as to Google, a third-party recipient of court-ordered process. Google is wrong as
demonstrated by the plain reading of Rule 59 of the Federal Rules of Criminal Procedure.1
Further, the cases Google cites in support of de novo review are inapposite, applying to whether
a district court order is an immediately appealable final order for purposes of appellate review
under 28 U.S.C. § 1291, not to whether a Magistrate’s Order is dispositive or non-dispositive
under Rule 59.

Therefore, the appropriate standard of review is the standard set forth in Rule 59(a),
clearly erroneous or contrary to law. In any event, even were the court to conduct a de novo
review, Judge Orders are correct, not contrary to law. No error was committed, let alone

clear error.

1 Rule 59(a) authorizes a party to file objections to a magistrate judge order that determines “any
matter that does not dispose of a char ge or defense,” Fed. R. Crim. P. 59(a), while Rule 59(b)
authorizes a party to file objections to a magistrate judge’s “proposed findings and
recommendations” for disposing of “a defendant’s motion to dismiss or quash an indictment or
information, a motion to suppress evidence, or any matter that may dispose of a charge or
defense.” Fed. R. Crim. P. 59(b)(1), (2).

4

B. Merits of Google’s Objections

Google objects to the Orders principally because it wishes to immediately disclose the
existence of the Order to the mjsubscriber before producing the required records instead of
waiting 90 days following its production to make the disclosure. Thus, Google disagrees with
Magistrate Judge jmjdecision to include non-disclosure and sealing provisions in the Order.

As discussed in the Government’s Response, however, Judge has already limited
the duration of the non-disclosure and sealing provisions, and Google has failed to demonstrate
that Magistrate order of such provisions was unlawful or erroneous in any respect. Gov’t
Resp. at 10-11. Google has failed to articulate (1) how compliance with the non-disclosure and
sealing provisions unduly burdened Google under § 2703(d)2 and (2) any other statutory
provision authorizing Google to challenge such provisions. Id.

Google’s Motion does not even discuss this issue except for proffering its opinion that
there is no need for secrecy. Google Mot. at 9-12. The Government’s Response refutes this
opinion, amply demonstrating that: (1) the non-disclosure and sealing provisions in the Order
remain valid and warranted more than ever (Gov’t Response at 8-10); and (2) the unsealing and
disclosure of the Twitter Order has already seriously jeopardized the investigation, and
additional disclosures will exacerbate the harm caused by that disclosure. Gov’t Resp. at 16-18.

It is not enough that Google’s “chance of success on the merits be ‘better than

i

negligible.’” Nken, 129'S.Ct. at 1761 (quoting Sofmetv. INS, 188 F.3d703,707 (7th Cir. 1999).

Google must make a “strong showing,” GTSI Corp. 2009 WL 3245396, at *1, that it is likely to

succeed. It has not made such a showing. Google has failed to show that Judge |

2 Pursuant to this section, a service provider, such as Google, may move to quash or modify an
order “if the information or records requested are unusually voluminous in nature or compliance
with such order otherwise would cause an undue burden on such provider.” 18 U.S.C, §
2703(d).

5

conclusions were erroneous, and it has certainly not shown that they were clearly erroneous or
contrary to law. Gov’t Resp. at 10-11. Google is not likely to succeed on the merits of its
objections, and its motion to stay should fail for this reason alone.

Google, however, persists in claiming that the non-disclosure and sealing provisions may
prevent the subscriber from raising constitutional issues and that such provisions

constitute an unconstitutional prior restraint on Google’s free speech. Google Mot. at 11-12. To
the contrary, as is more fully described in the Government’s Response, at 11-16, Google has
failed to show ~ and has not even come close to establishing a “strong” showing — that it is
likely to succeed on these claims. The Orders satisfy all statutory and constitutional
requirements, and the sealing and non-disclosure provisions, which are now of limited duration,
should remain in effect. Google has established no statutory basis for it to challenge the Order
and has no meritorious First Amendment challenge to a 90-day non-disclosure provision (with
the potential for 60 additional days), pending the ongoing investigation. Id. The|
subscriber is not entitled to notice under § 2703(d), and the^Ujjsubscriber would not have a
valid basis to challenge the Order even if Google did provide him with notice. Id.

II. Google Has Faded to Show that it will be Irreparably Injured Absent a Stay

Google has failed to show how its rights will be injured by producing the required
records pending a court decision on the delayed disclosure provisions of the Order. Although
Google alludes to possible injury of its First Amendment rights, this misses the mark. Google
seeks to stay its production of records from the^^J^ubscriber account - not to stay the non-
disclosure and sealing provisions. And, Google has wholly failed to explain how production of
such records implicates its First Amendment interests whatsoever. In other words, pending this
Court’s decision on Google’s objections, the non-disclosure and sealing provisions of the Order

6

apply to Google. In the meantime, Google cannot disclose the Order’s existence irrespective of
the outcome. Thus, granting or denying Google’s motion to stay the production of records is
irrelevant to Google’s alleged First Amendment rights to disclosure. Denying the stay does not
irreparably injure any such right, even assuming such a right exists.

Google attempts to overcome its lack of injury by linking itself to alleged injuries that it
speculates the subscriber might suffer. Thus, Google’s Motion to Stay primarily rests on
the claim that once Google produces the records, the Court cannot “unring the bell.” Google
Mot. to Stay at 4-5 (citing Maness v. Meyers, 419 U.S. 449,460 (1975)). Even assuming Google
can properly step into the shoes of the subscriber, its conclusory statements insufficiently

establish irreparable injury. The Order does not prevent Google from notifying the |
subscriber forever. It simply delays notification until after Google has produced the documents
for a reasonable period of time pending the ongoing criminal investigation. Google presumably
will notify the H| subscriber at the appropriate time after the records have been produced.
The subscriber remains free, at that time, to attempt to challenge the disclosure or wait to
challenge any use of such records in court. Google has not asserted that the production of the
relevant records would waive any privilege or claim that the^^H subscriber might have. Even
if there were such a claim or privilege, the subscriber would not suffer “irreparable injury”
because he could adjudicate any such claims at another stage in the proceedings. See generally,
New York Times Co. v. Jascalevich, 439 U.S. 1301,1302 (1978) (denying application for stay of
New Jersey Supreme Court order that refused to stay and denied leave to appeal an order of a
state trial court refusing to quash a subpoena to New York Times and reporter issued in a
criminal trial: applicants would have a full hearing and there was no authority that a newsman
need not produce material documents; the Court would prefer to address any issues at a later

7

stage in the proceedings, and because the trial court viewed the documents sufficiently material
to conduct an in camera inspection, no perceptible irreparable injury); Mohawk Industries Inc. v.
Carpenter, — U.S. —, 130 S.Ct. 599, 607 (2009) (in ruling that a disclosure order of attorney-
client privilege documents did not qualify for immediate appeal, explaining that [ajppellate
courts can remedy the improper disclosure of privileged material in the same way they remedy a
host of other erroneous evidentiary rulings: by vacating an adverse judgment and remanding for
a new trial in which the protected material and its ffuits are excluded from evidence.”); United
States v. Myers, 593 F.3d 338,346 (4th Cir. 2010).

III. The Issuance of a Stay will Substantially Injure the United States

Google argues that the government will suffer no harm if the Court grants the motion to
stay production of the subscriber and transactional records from the account. Google

claims that there is no risk that the records will be destroyed, so the only issue is when the
government will receive the records. Google Mot. to Stay at 5.

To the contrary, Google’s resistance to providing the records has already frustrated the
government’s ability to efficiently conduct a lawful criminal investigation. The Order was
issued by a neutral magistrate judge on January 4, 2011. Google’s compliance was due within
three days thereafter. The two-month delay in getting the sought-after records has already
prejudiced the investigation. See Nken, 129 S.Ct. at 1757 (“[t]he parties and the public, while
entitled to both careful review and a meaningful decision, are also generally entitled to the
prompt execution of orders that the legislature has made final.”). First, the delay has deprived
the government of potential evidence. Second, the delay has prevented the government from
sending follow-up legal process, as needed, on investigative leads from the records. For
instance, the records might identify accounts or other subscriber information of which the

8

government is unaware or might include transactional information helpful to obtain search
warrant(s).

Google’s attempt to stay production of routine legal process based on its unfounded

objections to the non-disclosure and sealing provisions of the Order have diverted time and

attention from the investigation Google attempts to escape this by-claiming the government is

not harmed because it agreed to a stay on the Twitter matter and moved to continue Magistrate

Blearing until Judge^^^H could rule on the underlying merits of the Twitter

subscribers’ claims.3 That is not the legal standard. The harms suffered by the government are

synonymous with the public’s interest in effective law enforcement and the efficient conduct of

the criminal justice system. Indeed, “these [two] factors merge when the Government is the

opposing party.” Nken, 129 S.Ct. at 1762. The public’s interest is addressed further below,

IV. The Public’s Interest in Law Enforcement and the Effective and Efficient

Administration of the Criminal Justice System is Best Served by Requiring Google to
Disclose the Records Pending the Court’s Consideration of its Objections

Google focuses on whether the public interest is served by its disclosure of the Order to
the lÊÊKÊtoubscriber. Google Mot. to Stay at 5-6 (“the public can have no interest in the
enforcement of a nondisclosure provision” where the investigation is public). Again, this is not
at issue in the instant motion. The issue presented here is whether a stay on Google’s production
of the required records serves the public interest. It does not. Conversely, the public interest in
effective law enforcement and the efficient administration of the criminal just system has been
firmly established in a variety of contexts. See generally, e.g., Zurcher v. Stanford Daily, 436
U.S. 547, 560-62 n. 8 (1970) (recognizing the fundamental public interest in implementing the

3 The government made this motion on the basis of Google’s concern that a decision by
Magistrate f^^vould “prejudge[] any free speech or privilege objections that Google’s user
may wish to raise by describing them as meritless.” See Gov’t Motion to Continue Hearing at 1.

9

and effective administration of the criminal justice system will be harmed by a stay. Thus, the
Court should deny Google’s Motion to Stay.

. Respectfully Submitted,

Assistant United States Attorney

11

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing pleading was delivered on
this 28th day of February 2011 to the Clerk’s Office and that service will be made on the
following individuals by electronic mail and otherwise:

John K. Roche, Esquire

Perkins Coie LLP

700 13th St., N.W., Suite 600

Washington, D.C. 20005-3960

PHONE: 202.434.1627

FAX: 202.654.9106

E-MAIL: JRoche@Derkinscoie.com

Assistant United States Attorney

12

ATTACHMENT J



FILE1D

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

ALEXANDRIA DIVISIOIJDIJ HAR -T p g: 01

)

)

IN RE 2703(d) ORDER AND 2703(f) )

PRESERVATION REQUEST RELATING )
TO GMAIL ACCOUNTH^HB )

______________________:_________:___)

CLERK US DISTRICT COURT

ll-DM-2

FILED UNDER SEAL

GOOGLE INC.’S REPLY IN SUPPORT OF ITS
OBJECTIONS TO MAGISTRATE’S ORDER OF FEBRUARY 9,2011
AND NOTICE OF APPEAL PURSUANT TO FED. R. CRLVI. P. 59

Google Lie. (“Google”) hereby submits this Reply in Support of its Objections to
Magistrate’s Order of February 9,2011 and Notice of Appeal Pursuant to Fed. R.Crim. P. 59.

The government has admitted that die demand at issue here (the “Order”)1 and the
unsealed Twitter Order1 2 relate to the same investigation. The government has also
acknowledged that the subjects of the Twitter Order (including Twitter user^^Jand anyone
who has heard about the highly publicized Twitter Order) already are operating under the
assumption that the government has sought information related to their Google accounts. These
facts alone demonstrate that there is no cause for the Order to have been sealed in the first place
or to remain sealed now. The government has “buyer’s remorse” for having unsealed the Twitter
Order, and wants Google’s subscriber and Google to pay for the government’s perceived mistake
by compelled silence.

Rather than demonstrating how unsealing the Order to Google will harm its well-
publicized investigation, the government lists a “parade of horribles” that allegedly have already

1 See Declaration of John K. Roche, Ex. 1 (“Roche Decl.”) (filed Feb. 17,2011).

2 Id. Ex. 2.

occurred since it unsealed the Twitter Order. The government fails to establish how any of these
past developments could be further exacerbated by unsealing this Order. The subject of the
Order likely already knows or has surmised that the government has sought the account
information. All that compelled silence would accomplish here is to prevent the user from
raising more informed objections and obtaining judicial review as the Twitter user^^has
sought to do in regard to the Twitter Order.

Accordingly, for these reasons and those stated below and in Google’s Objections,
Google respectfully requests that the Court modify the Order pursuant to the terms of Google’s
proposed order.

I. ARGUMENT

A. The Court's Standard of Review Is Be Novo

Judicial orders based on sealed certifications from the government must be reviewed de
novo because review of such orders is done “ex parte and thus unaided by the adversarial
process.” US. v. Rosen, 447 F. Supp. 2d 538,545 (E.D. Va. 2006) (rejecting the government’s
contention that a reviewing district court must accord the Foreign Intelligence Surveillance
Court’s probable cause determination “substantial deference”). Neither the government nor
Judge^Urevealed anything to Google about what was included in the government’s ex parte
application for the Order, thus precluding any adversarial proceeding over the substance of that
application. As such, respectfully, the Court owes no deference to Judge ^^^conclusion that
notification of the Order will "seriously jeopardiz[e] an investigation” under 18 U.S.C. § 2705.
Id. (conducting de novo review “with no deference accorded to the [Foreign Intelligence
Surveillance Court’s] probable cause determinations”).

-2-

\

Furthermore, as Google noted in its Objections, the Supreme Court and the Fourth Circuit
have found that discovery orders directed at third parties are dispositive for appellate purposes.
U.S. v. Myers, 593 F.3d 338,345 (4th Cir. 2010) (discovery order directed at athird party is “an
immediately appealable final order.”) (quoting Church of Scientology ofCalifornia v. US., 506
U.S. 9,18 n.l 1 (1992)). Accordingly, such orders are necessarily governed by the de novo
standard of review for dispositive orders under Fed. R. Crim. P. 59(b)(3). The government
claims these cases are inapposite because they address appeals from the decision of a district
court to an appellate circuit court under 28 U.S.C. § 1291, rather than appeals from a magistrate
judge to a district court judge under Fed. R. Cr. P. 59. See Government Response, at 7. This
argument elevates form over substance because a district court acts in an appellate capacity when
reviewing a magistrate’s order, thus making these cases relevant to the Court’s analysis.

B. Google Has a Right to Challenge the Nondisclosure Provision in the Order

The government erroneously claims that Judgd^^^'concluded that Google has no
statutory basis to challenge the non-disclosure and sealing provisions in the Order.” See
Government Response, at 10. In fact, Judge Davis partially granted Google’s motion by limiting
the nondisclosure period in the Order to 90 days, which he certainly would not have done had he
concluded that Google had no right to bring the motion in the first place.

Furthermore, 18 U.S.C. § 2703(d) gives providers the right to ask a court to quash or
modify an order when compliance “would cause an undue burden on such provider.” This right
must include the ability to challenge a provision in a § 2703(d).order that a provider believes is
not adequately supported by fact or law. Were it otherwise, providers would be forced to blindly
produce records even if they received an order that did not make any of the requisite findings
under § 2703(d). See 18 U.S.C. § 2703(d) (requiring “specific and articulable facts showing that

-3-

there are reasonable grounds to believe that... the records or other information sought, are
relevant and material to an ongoing criminal investigation.”). The government’s interpretation of
§ 2703(d) must be rejected so as to avoid this absurd result Aremu v. Dep’t of Homeland
Security, 450 F.3d 578, 583 (4th Cir. 2006) (“[A] court must, if possible, interpret statutes to
avoid absurd results.”).

C. The Government Cannot Show a Need for Secrecy of the Order or the Preservation

Request

Regardless of what standard of review the Court applies, the government cannot satisfy
the standard set forth in 18 U:S.C. § 2705(b)(5), which provides for nondisclosure when
notification will result in “seriously jeopardizing an investigation.”

First, the government attempts to justify the nondisclosure provision by claiming that
unsealing this Order may cause the targets to “alter their modes of communication to evade
future investigative efforts.” See Government Response, at 17. However, the government has
already conceded that the targets of the investigation are already working under the assumption
that their Google accounts are the subject of legal process from this grand jury investigation. See
Government Response (dated January 28,2011), at 14; see also Government Exhibits 3-4.3
Therefore, disclosing this Order will do nothing to alter anyone’s behavior, except that!
may exercise the right to defend his or her legal interests in court. And of course, to the extent
Ihas already destroyed evidence, unsealing the Order will not reverse those actions either.
Second, the government rehashes its claim that unsealing the Order may result in
“witness intimidation” in the form of encouraging providers “to feel pressure to challenge non-
disclosure orders.” See Government Response, at 18. This argument is specious for the reasons

3 Roche Decl., Ex. 7; see also ^H^retweet of Jan. 7,2011 @ 9:26 p.m. (“Note that we can assume Google &
Facebook also have secret US government subpoenas. They make no comment. Did they fold?”),
http://lwitter.convjm||last visited Jan. 18,2011).

-4-

previously noted in Google’s Objections. Google will only add that if a provider believes a
nondisclosure provision in an order is unlawful, then it should challenge the order. The
government contuses witness intimidation with a provider’s legitimate right to protect its First
Amendment rights and the privacy of its users.

Finally, the government claims.that its employees were harassed after the disclosure of
the Twitter Order and that the same can be expected if this Order is disclosed. See Government
Response, at 18. No public servant deserves such treatment, and in order to avoid any such
incidents in the future, the government should request that the Court order any personal
identifiers of government personnel redacted before unsealing the Order or preservation letter.
Google would certainly agree that such a measure is appropriate here.

D. The Order May Raise Significant Constitutional and Statutory Issues

As Google noted in its Objections, three of the users identified in the Twitter Order,
including Twitter’s user, filed a motion to vacate that order on Constitutional and

statutory grounds.4 That motion was argued on February 15th,' and as of this writing is still
under advisement before Judge m|. One can only assume that if the users’ arguments
were as meritless as the government claims,5 Judge ^^m^vould have disposed of them from
the bench, or without entertaining any oral argument at all, rather than considering them as Her
Honor has for the better part of a month. And one can only surmise whether knowledge of the
Order here would affect the users’ claims or Judge s decision-making. The gag order

here serves the purpose only of preventing the user from fully articulating objections based on
the full scope of the information sought

4 Roche Decl., Ex, 3.

5 Government’s Response, at 13.

-5-

E. The Order is a Prior Restraint on Google’s Right to Free Speech

The government cannot seriously dispute the fact that the non-disclosure provision in the
Order is a prior restraint on Google’s First Amendment rights. In re Sealing and Non-Disclosure
ofPenJTrap/2703(d) Orders, 562 F. Supp. 2d 876, 882 (S.D. Tex. 2008) (“a non-disclosure order
imposes a prior restraint on speech.”). The only question is whether the government can carry its
“heavy burden of showing justification for the imposition of such a restraint.” Id. (quoting
Capital Cities Media, Inc. v. Toole, 463 U.S. 1303, 1305 (1983).

Google respectfully submits that because the government’s interest in |^U|electronic
communications is already so well-publicized and there is absolutely no risk of destruction of
evidence, the balance tips decidedly in favor of Google’s First Amendment rights.

For the reasons stated here and in Google’s Objections, Google respectfully requests that
the Court sustain its Objections and modify the Order pursuant to the terms of Google’s
proposed order.

* II. CONCLUSION

DATED this 7th day of March, 2011.

Re:

By

Washington, D.C. 20005-3960
Phone: 202-434-1627
Fax: 202-654-9106

JRoche@perldnscoie.com

Albert Gidari (admitted pro hac vice)
Perkins Coie LLP

-6-

1201 Third Avenue, Suite 4800
Seattle, Washington 98101
Phone: 206-359-8000
Fax: 206-359-9000
AGidari@perkinscoie.com

Attorneys for Google Inc.

CERTIFICATE OF SERVICE

I hereby certify that on this 7th day of March, 2011, the foregoing document was sent via hand
delivery and email to the following persons:

Assistant United States Attorney

United States Attorney’s Office

Eastern District of Virginia

Justin W. Williams United States Attorney’s Building

2100 Jamieson Avenue

Alexandria, VA 22314-5794

Washington, D.C. 20005-3960
Phone: 202-434-1627
Fax: 202-654-9106
JRoche@perkinscoie.com

Attorneys for Google Inc.

-7-

ATTACHMENT K

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

FILED

2011 HAR -1 P 12:01

IN RE 2703(d) ORDER AND 2703(f) )

PRESERVATION REQUEST RELATING )

TO GMAIL ACCOUNT

)

) FILED UNDER SEAL

)

GOOGLE INC.’S REPLY IN SUPPORT OF ITS

MOTION TO STAY PRODUCTION PENDING APPEAL OF MAGISTRATE’S ORDER

Google Inc. (“Google”) hereby submits this Reply in Support of its Motion to Stay
Production Pending Appeal of Magistrate’s Order.

Google respectfully submits that a stay should be granted because, as demonstrated in its
Objections and Reply in support thereof, it has made a strong showing of likely success on the
merits. Furthermore, Google’s subscriber and Google will suffer irreparable injury absent a stay
because without a stay the very injury that Google seeks to avoid - production of documents and
information without notice to its subscriber - will occur. Moreover, the issuance of a stay will
not injure the government or harm the public interest, as illustrated by the fact that the
government previously sought to continue Google’s original motion to modify this Court’s order
of January 4,2011 (the “Order”)1 until after Judge ^m^resolved a similar motion related to
the Twitter Order, of December 14,2010.1 2 Finally, the issuance of a stay is in the public’s
interest because the public can have no interest in the enforcement of an unjustified
nondisclosure provision and a stay will ensure that the user is afforded an opportunity to assert
any constitutional or statutory rights he or she may have with regard to the Order.

1 See Declaration of John K. Roche, Ex. 1 (“Roche Decl.”) (filed Feb. 17,2011).

2 Roche Decl., Exs. 2-3.

I.

ARGUMENT

A. The Court Should Grant a Stay of Production Pending Google’s Appeal

1. Google Has Made a Strong Showing of Likely Success on the Merits

There is no dispute that the government’s investigation of Wikileaks generally, and its
interest in the^gp user name specifically, is a matter of public record. Moreover, as noted in
Google’s Reply in Support of its Objections, the government has offered ho plausible
justification for its assertion that disclosure of the Order will seriously jeopardize its
investigation. Accordingly, Google respectfully submits it has a strong likelihood of success on
the merits of this Court’s de novo3 review of Judge J^^^ruling on Google’s motion to modify
the Order.

2. Google’s Subscriber and Google Will Suffer Irreparable Injury Absent a
Stay

The government claims that Google will not be injured absent a stay because “[t]he Order
does not prevent Google from notifying thd^J^Jubscriber forever.” See Government
Response, at 7. The point of Google’s motion is to permit Google to notify its user before it
produces anything to the government. Notification after the fact will be small solace to Google’s
user because by then the government will have spent the previous 3-5 months poring over his or
her account records in the hope of finding “investigative leads” and “other subscriber
information of which the government is unaware [which] might include transactional
information helpful to obtain search warrants)See Government Response, at 8-9. Moreover,
despite the government’s claims to the contrary, it is not at all clear that the user will in fact be
able to challenge the introduction of these records in court at a later date. U.S. v. Qing Li, No. 07

3 US. v. Rosen, 447 F. Supp. 2d 538,545 (E.D. Va. 2006) (judicial orders based on sealed certifications from the
government are reviewed de novo).

-2-

CR 2915 JM, 2008 WL 789899, at *3 (S.D. Cal. Mar. 20,2008) (holding that the Stored
Communications Act provides no suppression remedy) (collecting cases).

Furthermore, the government cannot seriously dispute the fact that the non-disclosure
provision in the Order is a prior restraint on Google's First Amendment rights. In re Sealing and
Non-Disclosure ofPen/Trap/2703(d) Orders, 562 F. Supp. 2d 876, 882 (S.D. Tex. 2008) (“a
non-disclosure order imposes a prior restraint on speech.”). The only question is whether the
government can carry its “heavy burden of showing justification for the imposition of such a
restraint” Id. (quoting Capital Cities Media, Inc. v. Toole, 463 U.S. 1303, 1305 (1983).

Google respectfully submits that because the government’s interest in electronic

communications is already so well-publicized and there is absolutely no risk of destruction of
evidence, the balance tips decidedly in favor of Google’s First Amendment rights. Accordingly,
Google and its user will suffer irreparable injury absent a stay.

3. A Stay Will Not Injure the Government or Harm the Public Interest

The government conceded it would not be injured by a stay when it moved to delay the
hearing on Google’s original motion until after Judge had an opportunity to rule on the

motions raised in regard to the Twitter Order. Judge^^^H has had those motions under
advisement for nearly three weeks now, and the government utterly fails to explain why it
suddenly needs the documents immediately when it previously indicated it would be satisfied to
wait until a ruling from Judge^^m^ the Twitter matter. This unexplained contradiction is
enough to establish that the government has no urgent need for these records and will not be
injured by a stay. In addition, Google has preserved the responsive records so there is no danger
that the data will be lost while this Court addresses the underlying Objections. It follows then
that if the government admittedly has no urgent need for these records and the records are not at

risk of loss, there will be no harm to “the public interest in effective law enforcement and
efficient administration of the criminal justice system” as the government claims. See
Government Response, at 9.

n. CONCLUSION

For the reasons stated, Google requests an order to stay production of records and
information in response to the Order while its concurrently filed Objections are pending.

DATED this 7th day of March, 2011.



John K&Sfche (VSB# 68594)

700 13th St., N.W., Suite 600
Washington, D.C. 20005-3960
Phone: 202-434-1627
Fax: 202-654-9106
JRoche@perkinscoie.com

Albert Gidari (admitted pro hac vice)

Perkins Coie LLP

1201 Third Avenue, Suite 4800

Seattle, Washington 98101

Phone: 206-359-8000

Fax: 206-359-9000

AGidari@perkinscoie.com

Attorneys for Google Inc.

-4-

CERTIFICATE OF SERVICE

I hereby certify that on this 7th day of March, 2011, the foregoing document was sent via hand
delivery and email to the folio-vying persons:

mey

United States Attorney’s Office

Eastern District of Virginia

Justin W. Williams United States Attorney’s Building

2100 Jamieson Avenue

Alexandria, VA 22314-5794

Attorneys for the United States

By

Washington, D,C. 20005-3960
Phone: 202-434-1627
Fax: 202-654-9106

JRoche@perkinscoie.com

Attorneys for Google Inc.

S

-5-

ATTACHMENT L

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

FU-



IN THE MATTER OF THE 2703(d) ORDER
AND 2703(f) PRESERVATION REQUEST
RELATING TO GMAIL ACCOUNT

m 1Ï P 3- 33

Case No. 1:10GJ3% -^-DM-2
UNDER SEALC&VfXAHD^ ^VIRGINIA
Hearing: March 24,2011 (T 3E)

NOTICE OF RELEVANT DECISION

The United States hereby provides the Court and opposing counsel
decision relevant to Google Inc.’s objections to Magistrate Judge
Objections”) that the court-ordered legal process for business records purs
Communications Act (“SCA”) (18 U.S.C. §§ 2701-12) should remain under
disclosed for a limited period of time pending the ongoing criminal investigatic:
In support of Google’s Objections, Google explained that “three of the
the Twitter Order, including Twitter’s ^J^^user, filed a motion to vai
Constitutional and statutory grounds.” Google Obj. at 12; Google Reply,
argued that it is “reasonable to assume that the user may wish to assert similar
Order.” Google Obj. at 13. Therefore, the United States provides notice that o
Magistrate Judge issued the attached Memorandum Opinion and

Twitter Order.

Respectfully Submitted,

Ord

with notice of a
dcision (“Google’s
ikant to the Stored
seal and not be
n.

users identified in
(fate that order on
5. Google also
objections to this
March 11, 2011,
er concerning the

at

■n

By:

Assistant United States Attorney



CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing pleading was delivered on
this 22nd day ofMarch 2011 to the Clerk’s Office and that service will be made on the following
individuals by electronic mail:

John K. Roche, Esquire

Perkins Coie LLP

700 13th St., N.W., Suite 600

Washington, D.C. 20005-3960

PHONE: 202.434.1627

FAX: 202.654.9106

E-MAIL: JRoche@perkinscoie.com

Case 1:11-dm-OOC *TCB ^¡§0$ Document38 F J 03/11/11 Page 1 of 20

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

)

)

)

)

)

In Re: §2703(d) Order; 10GJ3793 ) Miscellaneous No. I:lldm00003

)

}

)

)

)

)

MEMORANDUM OPINION

This matter came before the Court the Motion of Real Parties

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

BACKGROUND

Petitioners are Twitter users associated with account names
of interest to the government. Petitioner Jacob Appelbaum
(Twitter name "ioerror") is a United States citizen and resident,
described as a computer security researcher. (Pet. Motion to
Unseal at 3). Rop Gonggrijp (Twitter name "rop_g") is a Dutch
citizen and computer security specialist. Id. Birgitta

Case 1:11-dm-QQQ TCB “SEALED* Document 38- Fi 03/11/11 Page 2 of 20

Jonsdottir (Twitter name "birgittaj") is an Icelandic citizen and
resident. She currently serves as a member of the Parliament of
Iceland. Id.

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

A. The following customer or subscriber account information for

each account registered to or associated with Wikileaks;

rop__g; ioerror; birgittaj; Julian Assange; Bradely Manning;

Rop Gongrijp [sic.]? Birgitta Jonsdottir for the time period

November-1, 2009 to present:

1. subscriber names, user names, screen names, or other
identities;

2. mailing addresses, residential addresses, business
addresses, e-mail addresses, and other contact
information;

3. connection records, or records of session times and
durations;

4. length of service (including start date) and types of
service utilized;

5. - telephone or instrument number or other subscriber

number or identity, including any temporarily assigned
network address? and

6. means and source of payment for such service (including
any credit card or bank account number) and billing
records.

2

Case 1:11-dm-000l TCB *SEALED* Document 38 Fi, 03/11/11 Page 3 of 20

B. All records and. other information relating to the account(s)

and time period in Part A, including:

1. records of user activity for any connections made to or
from the Account, including, date, time, length, and
method of connections, data transfer volume, user name,
and source and destination Internet Protocol

address(es);

2. non-content information associated with the contents of
any communication or file stored by or for the
account(s), such as the source and destination email
addresses and IP addresses.

3. correspondence and notes of records related to the
account (s)^.

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

ANALYSIS

I. Motion to Vacate

Petitioners request that the Twitter Order be vacated. The
parties have raised the following issues in their briefs: (1)

whether petitioners have standing under the Stored Communications
Act ("SCA") to bring a motion to vacate, (2) whether the Twitter
Order was properly issued under 18 U.S.C. §2703, (3) whether the

Twitter Order violates petitioners' First Amendment rights, (3)

3

Case 1:11 -dm-000 TCB *SEALED* Document 38 F, .03/11/11 Page 4 of 20

whether the Twitter Order violates petitioners ' Fourth Amendment
rights, and (4) whether the Twitter Order should be vacated as to
Ms. Jonsdottir for reasons of international comity.

(1) Petitioners' Standing Under 18 U.S.C, §2704 (b)

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

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

(A) name;

(B) address ;

(C) local and long distance telephone connection
records, or records of session times and
durations;

4

Case 1 ;11-dm-OOCH. FCB ‘SEALED* Document 38 Fi, . 03/11/11 Page 5 of 20

(D) length of service (including start date) and types
of service utilized;

(E) telephone or instrument number or other subscriber
number or identity, including any temporarily
assigned network address; and

(F) means and source of payment for such service
(including any credit card or bank account
number)', of a subscriber to or customer of such
service when the governmental entity uses...any
means available under paragraph (1) (emphasis
supplied).

The Twitter Order does not demand the contents of any
communication, and thus constitutes only a request for records
under §2703 (c). Even though the Twitter Order seeks information
additional to the specific records listed in §2703(c)-- data
transfer volume, source and destination Internet Protocol
addresses, and [Twitter's) correspondence and notes of records
related to the accounts -- these, too, are non-content "records"
under §2703(c)(1). Therefore, as the targets of mere records
disclosure, petitioners may npt bring a customer challenge under
§2704.

Petitioners, unable to overcome the language of §2704,
assert in reply that they have standing based on general due
process, but cite no authority on point. Moreover, §2704 seems
to recognize that only targets of content disclosures would have
a viable constitutional challenge to the compelled disclosure of
private communications. Customers who voluntarily provide non-
content records to an internet service provider would not enjoy
the same level of protection.

(2) Proper Issuance of the Twitter Order

5

Case 1:11 -dm-OQC -TCB *SEALED* Document 38 F J 03/11/11 Page 6 of 20

Notwithstanding petitioners' lack of standing to bring their
motion to vacate, the Court finds that the substance of their
motion is equally unavailing.

The Twitter Order came before the Court upon the
government's motion and supporting application for an order
pursuant to 18 U.S.C. §2703 (d). Section 2703(d) provides in
pertinent part:

"(d) Requirements for court order.--A court order for
disclosure under subsection (b) or (c) may be issued by any
court that is a court of competent jurisdiction and shall
issue only if the governmental entity offers specific and
articulable facts showing that there are reasonable grounds
to believe that the contents of a wire or electronic
communication, or the records or other information sought,
are relevant and material to an ongoing criminal
investigation." (emphasis supplied).

On December 14, 2010, the Court found that the application
satisfied §2703(d) and entered the Twitter Order. Petitioners
now ask the Court to reconsider the sufficiency of the underlying
application pursuant to §2704(b)(1)(B), which authorizes
customers to move to vacate an order upon a showing "that there
has not been substantial compliance" with §2703 (d). Because the
application remains sealed, petitioners face the difficulty of
challenging a document they have not seen. Nevertheless,
petitioners speculate that regardless of the application's
factual support, it could not have justified the scope of the
Twitter Order. That is, petitioners contend that because their
publically posted "tweets" pertained mostly to non-Wikileaks
topics, the Twitter Order necessarily demands data that has no
connection to Wikileaks and cannot be "relevant or material" to
any ongoing investigation as §2703 (d) requires. Notwithstanding

6

Case 1:11 -dm-000 TCB ‘SEALED* Document 38 R 03/11/11 Page7of20

petitioners' questions, the Court remains convinced that the
application stated "specific and articulable" facts sufficient to
issue the Twitter Order under §2703(d) . The disclosures sought
are "relevant and material" to a legitimate law enforcement
inquiry. Also, the scope of the Twitter Order is appropriate
even if it compels disclosure of some unhelpful information.
Indeed, §2703(d) is routinely used to compel disclosure of
records, only some of which are later determined to be essential
to the government's case. Thus, the Twitter Order was properly
issued pursuant to §2703(d).

As an alternative, petitioners propose that, even if the
government has stated facts sufficient to meet the §2703(d)
"relevant and material" standard, the Court should use its
discretion to require the government to meet the probable cause
standard required for a search warrant. See In re Application of
the United States for an Order Directing a Provider of Elec.
Commc'n Serv.. to Disclose Records to Gov't, 620 F.3d 304, 315-17
(3d Cir. 2010). The Court declines to deviate from the standard
expressly provided in §2703(d). At an early stage, the
requirement of a higher probable cause standard for non-content
information voluntarily released to a third party would
needlessly hamper an investigation. See In re Subpoena Duces
Tecum, 228 F.3d 341, 348-39 (4th Cir, 2000). Therefore, the
Court finds that the Twitter Order was properly issued.

(3) First Amendment Claim

7

Case 1:11-dm-000l TCB ’'SEALED* Document 38 Fi. 03/11/11 Page 8 of 20

Petitioners claim the Twitter Order allows the government to
create a "map of association" that will have a chilling effect on
their First Amendment rights.1

. The First Amendment guarantees freedom of speech and
assembly.* 2 Recognizing the "close nexus between freedoms of
speech and assembly", the Supreme Court has established an
implicit First Amendment right to freely associate. N.A.A.C.P,
v. Alabama ex rel. Patterson, 357 U.S. 449,460 (1958). The
freedom of association may be hampered by compelled disclosure of
a political or religious organization's membership. Id. at 462
(preventing compelled disclosure of NAACP membership list) .
However, the freedom of association does not shield members from
cooperating with legitimate government investigations. United
States v. Mayer, 503 F.3d 740, 748 (9th Cir, 2007). Other First
Amendment interests also yield to the investigatory process.
Brazenburg v. Hayes, 408 U.S. 665, 682, 691 (1972)(freedom of the

‘Though they assert First and Fourth Amendment claims,
petitioners cite no authority as to the applicability of the
United States Constitution to non-citizens residing and acting
outside of the U.S. See United States v. Verdugo-Urquidez, 494
U.S. 259, 265 (1990)(Fourth Amendment inapplicable where American
authorities searched the home of a Mexican citizen and resident,
who had no voluntary attachment to the United States; Wang v.
Reno, 81 F.3d 808,817-18 (9th Cir, 1996)(alien entitled to 5th
Amendment due process rights only after government created
"special relationship with alien" by paroling him from China to
U.S. to testify at drug trial). The Court has serious doubts as
to whether Ms. Jonsdottir and Mr. Gonggrijp enjoy rights under
the U.S. Constitution.

2"Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government for
a redress of grievances." U.S. Const, amend. I,

8

Case 1:11 -dm-OOOt fCB *SEALED* Document 38 Fih 03/11/11 Page 9 of 20

press); University of Pennsylvania v. E.E.O.C., 493 U.S. 132,
197-98 (1990) (academic freedom). In the context of a criminal
investigation, a district court mu3t "balance the possible
constitutional infringement and the government's need for
documents... on a c-ase-by-case basis and without putting any
special burden on the government", and must also prevent abuse.

In re Grand Jury 87-3 Subpoena Duces Tecum, 955 F.2d 229,234 (4th
Cir. 19 92) .3 Accordingly, a subpoena should be quashed where the
underlying investigation was instituted or conducted in bad
faith, maliciously, or with intent to harass. Id.4

The Court finds no cognizable First Amendment violation
here. Petitioners, who have already made their Twitter posts and
associations publicly available, fail to explain how the Twitter
Order has a chilling effect. The Twitter Order does not seek to
control or direct the content of petitioners.'' speech or
association. Rather, it is a routine compelled disclosure of
non-content information which petitioners voluntarily provided to
Twitter pursuant to Twitter's Privacy Policy. Additionally, the

3Other circuits have adopted a "substantial relationship"
test, whereby the government must show its subpoena serves a
compelling interest that outweighs any alleged chilling effect.
But even courts that have adopted the test regularly refuse to
quash subpoenas on First Amendment grounds. See In re Grand Jury
Proceedings, 776 F.2d 1099,1.103 (2d Cir. 1985) (requiring
cooperation with pre-indictment proceedings); In re Grand Jury
Subpoenas Duces Tecum, 78 F.3d 1307, 1312-13(8th Cir.

1996) (same)? In re Grand Jury Proceedings, 842 F.2d 1229,1236-37
(11th Cir. 1988)(same),

'’Most cases dealing with First Amendment challenges in the
pre-indictment phase involve subpoenas, not §2703(d) court
orders. However, §2703(d) orders resemble subpoenas because they
also compel disclosure of documents.

9

Case 1:11-dm-OOO TCB ‘SEALED* Document38 F».. j 03/11/11 Page10of20

Court's §2703(d) analysis assured that the Twitter Order is
reasonable in scope, and the government has a legitimate interest
in the disclosures sought. See In re Grand Jury 87-3 Subpoena
Duces Tecum, 955 F.2d at 234. Furthermore, there is no
indication of bad faith by the government. Id. Thus,
petitioners' First Amendment challenge to the Twitter Order
fails.

(4) Fourth Amendment Claim

Petitioners argue that the Twitter Order should be vacated
because it amounts to a warrantless search in violation of the
Fourth Amendment. In particular, petitioners challenge the
instruction that Twitter, Inc. produce the internet protocol
addresses C"IP addresses") for petitioners' Twitter accounts for
specified dates and times. Petitioners assert a Fourth Amendment
privacy interest in their IP address information, which they
insist are "intensely revealing" as to location, including the
interior of a home arid movements within.

The Fourth Amendment provides that "the right of the people
to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures, shall not be violated
and no warrants shall issue, but upon probable cause..." U.S.
Const, amend. IV. Not all investigatory techniques by the
government implicate the Fourth Amendment. A government action
constitutes a "search" only if it infringes on an expectation of
privacy that society considers reasonable. United States v,
Jacobsen, 466 U.S. 109,113 (1984). Thus, the government must
obtain a warrant before inspecting places where the public

10

Case 1:11 -dm-OOQC CB "SEALED* Document 38 File.. 03/11/11 Page 11 of 20

traditionally expects privacy, like the inside of a home or the
contents of a letter. United States v. Karo, 468 U.S. 705, 714
(1984)(warrant required to use electronic location-monitoring
device in a private home); Kyllo v. United States, 533 U.S. 27,

34 (2001)(warrant, required to use publically unavailable, sense-
enhancing technology to gather information about the interior of
a home) ; Jacobsen, 466 U.S'. at 114 (warrant required to inspect
the contents of sealed letters and packages) See also United
States v. Warshak, 2010 WL 5071766 at 13-14 (6th Cir.

2 010) (extending Fourth Amendment protection to the contents of
certain email communications).

On the other hand, the Fourth Amendment privacy expectation
does not extend to information voluntarily conveyed to third
parties. For example, a warrantless search of bank customers'
deposit information does not violate the Fourth Amendment,
because there can be no reasonable expectation of privacy in
information voluntarily conveyed to bank employees. United States

V. Miller, 425 U.S. 435, 442 (1976). Similarly, the Fourth
Amendment permits the government to warrantiessly install a pen
register to record numbers dialed from a telephone because a
person voluntarily conveys the numbers without a legitimate
expectation of privacy. Smith v. Maryland, 442 U.S. 735 (1979).

With these principles in mind, the Fourth Circuit has held
that no legitimate expectation of privacy exists in subscriber
information voluntarily conveyed to phone and internet companies.
United States v. Bynum, 604 F.3d 161, 164 (4th Cir. 2010) (citing
Smith v. Maryland, 442 U.S. at 744). In Bynum, the defendant,

11

Case 1:11-dm-OOC -TCB*SEALED* Document38 Fi.^-d 03/11/11 Page12of20

who was convicted of child pornography charges, challenged the
constitutionality of administrative subpoenas the government used
to collect information from his internet and phone companies,
including his name/ email address, phone number, and physical
address. Id. Holding that the subpoenas did not violate the
Fourth Amendment, the Bynum Court reasoned that the defendant had
no expectation of privacy in information he voluntarily conveyed,
and that in doing so, he assumed the risk that the companies-
would turn it over to authorities. Id. Moreover, "every federal
court to address this issue has held that subscriber information
provided to an internet provider is not protected by the Fourth
Amendment." Id. at 164. Accordingly, several circuits have
declined to recognize a Fourth Amendment privacy interest in IP
addresses.5 United States v. Christie, 624 F.3d 558,574 (3d Cir.
2010) ("no reasonable expectation of privacy exists in an IP
address, because that information is also conveyed to and,
indeed, from third parties, including ISPs")? United States v.
Forrester, 512 F.3d 500,510 (9th Cir. 2008); United States v.
Perrine, 518 F.3d 1196, 1204-05 (10th Cir. 2008); see also Bynum

5 Petitioners highlight the Supreme Court's admonition that
courts should avoid unnecessary rulings on how the Fourth
Amendment applies to new technologies. City of Ontario v. Quon,
130 S. Ct. 2619, 2629, 177 L. Ed, 2d 216 (2010). There, in a case
involving employer-provided electronic communication devices, the
Court said "the judiciary risks error by elaborating too fully on
the Fourth Amendment implications of emerging technology before
its role in society has become clear". Here several courts have
encountered IP address issues. This, is not "emerging technology"
worthy of constitutional avoidance.

12

Case 1:11-dm-0C 3-TCB *SEALED* Document 38- t ,,ed 03/11/11 Page 13 of 20

604 F.3d at 164 n.2 (stating that defendant's IP address amounts
to numbers that he "never possessed") .

Here, petitioners have' no Fourth Amendment privacy interest
in their IP addresses. The Court rejects petitioners'
characterization that IP addresses and location information,
paired with inferences, are "intensely revealing" about the
interior of their homes. The Court is aware of no authority
finding that an IP address shows location with precision, let
alone provides insight into a home's interior or a user's
movements. Thus the Kyllo and Karo doctrines are inapposite.
Rather, like a phone number, an IP address is a unique
identifier, assigned through a service provider. Christie, 624

F.3d at 563; Smith v. Maryland, 442 U.S. at 744. Each IP address
corresponds to an internet user's individual computer. Christie,
624 F. 3d at 563. When a user visits a website, the site
administrator can view the IP address. Id. Similarly,
petitioners in this case voluntarily conveyed their IP addresses
to the Twitter website, thus exposing the information to a third
party administrator, and thereby relinquishing any reasonable
expectation of privacy.

In an attempt to distinguish the reasoning of Smith v.
Maryland and Bynum, petitioners contend that Twitter users do not
directly, visibly, or knowingly convey their IP addresses to the
website, and thus maintain a legitimate privacy interest. This
is inaccurate. Before creating a Twitter account, readers are
notified that IP addresses are among the kinds of "Log Data" that
Twitter collects, transfers, and manipulates. See Vlarshak, 2010

13

Case 1:11 -dm-OOOC ,'CB "SEALED* Document38 Filfcu 03/11A11 Page14of20

WL 5071766 at *13 (recognizing that internet service provider's
notice of intent to monitor subscribers' emails diminishes
expectation of privacy). Thus, because petitioners voluntarily
conveyed their IP addresses to Twitter as a condition of use,
they have no legitimate Fourth Amendment privacy interest.

Smith, 422 U.S, at 744/ Bynum, 604 F.3d at 164.6

(5) International Comity

Petitioners argue the Twitter Order should be vacated as to
Ms. Jonsdottir, a member of the Icelandic Parliament.7
Petitioners warn of a threat to international comity, which is
defined as ."the recognition which one nation allows within its
territory to the legislative, executive or judicial acts of
another nation, having due regard both to international duty and
convenience, and to the rights of its own citizens or of other
persons who are under the protection of its laws." In re French
v. Liebmann, 440 F.3d 145,152 (4th Cir. 2006)(citing Hilton v.
Guyot, 159 U.S. -113, 164 (1895).

GAt the hearing, petitioners suggested that they did not
read or understand Twitter's Privacy Policy, such that any
conveyance of IP. addresses to Twitter was involuntary. This is
unpersuasive. Internet users are bound by the terms of click-
though agreements made online. A.V. ex rel. Vanderhye v.
iParadigms, LLC, 544 F.Supp.2d 473,480 (E.D. Va. 2008)(finding a
valid "clickwrap" contract where users clicked "I Agree" to■
acknowledge their acceptance of the terms) (a£f'd A.V. ex rel v.
IParadigms, LLC, 562 F.3d 630,645 n.8 (4th Cir. 2009) , By
clicking on "create my account", petitioners consented to
Twitter's terms of use in a binding "clickwrap" agreement to turn
over to Twitter their IP addresses and more.

7The Court thanks the Inter-Parliamentary Union for its
Amicus Brief on.this issue.

14

Case 1:11-dm-OOQl i'CB ’'SEALED* Document 38 Filfeu 03/11/11 Page 15 of 20

The threshold question in international comity analysis is
whether there is a conflict between foreign and domestic law.
Société Nationale Industrielle Aérospatiale v, ü.S. Dist. Court.,
482 U.S. 522, 555 (1987). A corollary of international comity is
the established presumption against extraterritorial application
of American statutes. In re French, 440 F.3d at 149, 151.

Here, petitioners have not asserted any conflict between
American and Icelandic Law implicating international comity
concerns. Instead, petitioners assert that the disclosures
sought could not be obtained under Icelandic law, which affords
strong immunity to members of parliament. According to the
Inter-Parliamentary Union, Icelandic parliamentary immunity
"ensures that members of parliament cannot be held to account for
the Opinions they express and the votes they cast..," (Sears
Decl. Ex. 6). Here, the Twitter Order does not violate this
provision. It does not ask Ms. Jonsdottir to account for her
opinions. It does not seek information on parliamentary affairs
in Iceland, or any of Ms. Jonsdottir's parliamentary acts. Her
status as a member of parliament is merely incidental to this
investigation. Also, neither petitioners nor the Inters
Parliamentary Union have cited authority to support their
assumption that Icelandic immunity extends to public "tweets".

In the United States, such public statements are not regarded as
part of the legislative function or process, and thus would not
invoke the legislative immunity of the Constitution's Speech and
Debate Clause. Hutchinson v. Proxmire, 443 U.S. Ill, 132
(1979) (no legislative immunity for statements "scattered far and

15

Case 1:11-dm-OOOL CCB*SEALED* Document38- Filed 03/11/11 Page16of20

wide by mail, press, and the electronic media''); United States v.
Gravel, 408 U.S. 606, 616 (1972). Nor would a member of Congress
be permitted to invoke her position to avoid being a witness in a
criminal case. Gravel, 408 U.S. at 622. Thus, the Court rejects
the assertion that the Twitter Order is a clash of American and
Icelandic law that threatens international comity.

Moreover, in accordance with international comity, the
Twitter Order is not an extraterritorial application of American
law. Rather, it is a routine request for information pursuant to
a valid act of the United States Congress, the Stored
Communications Act. It compels disclosures from Twitter, an
American corporation, and requires nothing of Ms. Jonsdottir.

When Ms. Jonsdottir consented to Twitter's Privacy Policy she
assumed the risk that the United State's government could request
such information. For these reasons, the Court declines to vacate
the Twitter Order as to Ms. Jonsdottir.

II, Motion to Unseal

The documents in this matter, 1:ll-dm-00003, were initially
sealed by the Clerk's office. Petitioners now ask that all
documents within this file be unsealed. According to the
parties' agreement, sealing is no longer necessary for the 1: ll-
dm-00003 docket, with the exception of Government's Response in
Opposition to the Real Parties' in Interest Motion for Unsealing
of Sealed Court Records (Dkt. 22) and Twitter's Motion for
Clarification (Dkt. 24), to which the government still objects.

Petitioners further request the unsealing of the application
in support of the Twitter Order and all other documents in case

16

Case 1:11-dm-OOC. ,-TCB *SEALED* Document 38 Filed 03/11/11 Page 17 of 20

number 10-gj-3793. Additionally, to the extent any other
companies received similar orders, petitioners request the
unsealing of those orders and their applications. Petitioners
also request a public docket of such material. .

Petitioners have no right of access to the sealed documents
supporting the Twitter Order in case number 10-gj-3793. At the
pre-indictment phase, "law enforcement agencies must be able to
investigate crime without the details of the investigation being
released to the public in a manner that compromises the
investigation." Va. Dept, of State Police v. Washington Post, 386
F-.3d 567, 574 (4th Cir. 2004). Secrecy protects the safety of
law enforcement officers and prevents destruction of evidence.
Media General Operations v. Buchanan, 417 F.3d 424,429 (4th Cir.
2005). It also protects witnesses from intimidation or
retaliation. In re Grand Jury Investigation of Cuisinarts, Inc.,
665 F.2d 24, 27-28 (2d Cir. 1981). Additionally, secrecy
prevents unnecessary exposure of those who may be the subject of
an investigation, but are later exonerated. Douglas Oil Co. V.
Petrol Stops N.W., 441 U.S. 211, 219 (1979). For these reasons,
sensitive investigatory material is appropriately sealed. Va.
Dept, of State Police, 386 F.3d at 589.

In spite of these considerations, petitioners claim this
material should be accessible pursuant to the common law
presumption that public documents, including judicial records,
are open and available for citizens to inspect. Media General
Operations v. Buchanan, 417 F.3d 424, 429 (4th Cir. 2005)(citing
Nixon v. Warner Communications, Inc., 435 U.S. 589, 597-98

17

Case 1:11-dm-OOOw-TCB *SEALED* Document 38 Filed 03/11/11 Page 19 of 20

right of access only when (1) the place or process to which
access is sought has been historically open to the public, and
(2) public access plays a significant positive role in the
particular process, Baltimore Sun v. Goetz, 8B6 F.2d 60, 63-64
(4th Cir. 1989) . As set forth above, there is no history of
openness for documents related to an ongoing criminal !
investigation. Additionally, there are legitimate concerns that
publication of the documents at this juncture will hamper the
investigatory process, ’ Thus, there is no First Amendment
justification for unsealing the 10-gj-3793 documents.

Concerning petitioners' request for public docketing of 10-
gj-3793, this requires further review and will be taken under
consideration.

Regarding case number 1;ll-dm-00003, the Court has reviewed
the redactions requested by the government as to docket numbers
22 and 24. As to the Government's Response in Opposition to the
Real Parties' in Interest Motion for Unsealing of Sealed Court
Records (Dkt. 22), the Court finds that the proposed redactions
do not reveal any sensitive investigatory facts which are not
already revealed by the Twitter Order. Therefore, it shall be
unsealed. The government's remaining proposed redaction is the
email address of a government attorney appearing on Twitter,
Inc.'s Motion for Clarification. (Dkt. 24). The Court finds that
this redaction is appropriate, and the redacted version of
Twitter Inc.'s motion shall be released.

CONCLUSION

19

ATTACHMENT M

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

)

) Misc.No. 10GJ3793

)

) ll-DM-2

)

) FILED UNDER SEAL

)

GOOGLE INC.’S RESPONSE TO NOTICE OF RELEVANT DECISION1

IN RE 2703(d) ORDER AND 2703(f)
PRESERVATION REQUEST RELATING
TO GMAIL ACCOUNT*-

Google Inc. (“Google”) hereby responds to the government’s Notice of Relevant
Decision regarding Judge Order and Memorandum Opinion denying the motion to

vacate the Twitter Order.1 2

At the outset, Google notes that the Order and Memorandum Opinion do not affect
whether the government met the § 2705(b) nondisclosure standard here when it unsealed an
order the day before seeking the same information on the same account name from another
provider.

Furthermore, at page 9, Judge ^^^^foundteno cognizable First Amendment
violation” because the Twitter users “have already made their Twitter posts and associations
publicly available ....” Google respectfully submits this analysis would not apply to any First
Amendment challenge brought by Google’s^J^Juser because emails and contact lists in a
Gmail account are not in any sense publicly available.

1 In the absence of a formal rule governing supplemental authority, Google adheres to the 350-word count limitation
in Fed. R. App. 28(j). ■

2 See Declaration of John K. Roche, Ex. 2 (“Roche Decl.”) (filed Feb. 17,2011).

Finally, Google also respectfully submits that Judge;

conclusion that the

Twitter users lack standing under 18 U.S.C. § 2704 (see Memorandum Opinion, at 4-5) would
not foreclose a First Amendment challenge by Google’s user to the government’s

attempt to obtain his or her non-content records. In re First Nat. Bank, Englewood, Colo., 701
F.2d 115,118-19 (10th Cir. 1983) (organization and members had standing to challenge on First
Amendment association grounds a grand jury subpoena issued to their bank); Paton v. La Prade,
524 F.2d 862, 873 (3d Cir. 1975) (individual had standing to raise First Amendment challenge to
Postal Regulation authorizing “mail covers,” i.e., process by which Post Office copies address
information on a suspect’s mail and forwards to law enforcement); cf. Amnesty International
USA v. Clapper, 09-4112-cv (2d Cir. Mar. 21,2011) (slip op.) (individuals and organizations
have standing to challenge § 702 of FISA on First and Fourth Amendment grounds).

At bottom, the user should have a chance to fully raise these arguments.

DATED this 23rd day of March, 2011.

Respectful

700 13th St, N.W., Suite 600
Washington, D.C. 20005-3960
Phone: 202-434-1627
Fax: 202-654-9106

JRoche@perkinscoie.com

Albert Gidari (admittedpro hac vice)
Perkins Coie LLP
1201 Third Avenue, Suite 4800
Seattle, Washington 98101
Phone: 206-359-8000
Fax: 206-359-9000
AGidari@perkinscoie. com

Attorneys for Google Inc.

2

CERTIFICATE OF SERVICE

I hereby certify that on this 23rd day of March, 2011, the foregoing document was sent via hand
delivery and email to the following persons:

Assistant United States Attorney

United States Attorney’s Office

Eastern District of. Virginia

Justin W. Williams United States Attorney’s Building

2100 Jamieson Avenue

Alexandria, VA 22314-5794

Attorneys for the United States

700 13thSt.,N.W., Suite 600
Washington, D.C. 20005-3960
Phone: 202-434-1627
Fax: 202-654-9106
JRoche@perkinscoie.com.

Attorneys for Google Inc.

John KJ&che (VSB# 68594)
PerkifisTioïlpÈLP

3

ATTACHMENT N

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

IN THE MATTER OF THE 2703(d) ) Misc. No. 1:10GJ3793

ORDER AND 2703(1) PRESERVATION )

REQUEST RELATING TO GMAIL ) ll-DM-2

ACCOUNT )

) UNDER SEAL

MEMORANDUM OPINION

At issue in this sealed matter is whether the magistrate judge erred in issuing an order in
connection with a grand jury investigation and pursuant to 18 U.S.C. § 2703(d) directing Google,
Inc., an electronic communications service provider and remote computing service, to disclose
certain noncontent business subscriber and transaction records concerning a particular subscriber
of its service without disclosing the existence of the order to anyone, including the subscriber,
for at least ninety days. For the reasons that follow, Google’s objections to the magistrate
judge’s ruling are overruled in all respects.

I.

This matter arises out of the government’s ongoing grand jury investigation of the alleged
.unlawful disclosure of state secrets through the website known as WikiLeaks (the “WikiLeaks
investigation”). On January 4,2011, the government applied for and was granted an order
(“Google Order”) from a United States magistrate judge pursuant to 18 U.S.C. § 2703(d)
directing Google to provide the government the noncontent business subscriber and transaction
records for the account associated with the email address “
account”), covering die time period from November 1,2009 to present. In re Application of the
United States of America for an Order Pursuant to 18 U.S.C. § 2703(d), No. 1:10GJ3793 (E.D.
Va. Jan. 4,2011) (Order). More specifically, the information ordered disclosed by the Google

Order includes, inter alia, contact information associated with the^^JQaccount, records of
user activity, and source and destination email addresses for any emails stored on the account—
but not the actual content of any emails. The government also requested a provision in the
Google Order pursuant to § 2705(b) barring Google from disclosing the existence of the order to
anyone, a request the magistrate judge granted after finding that disclosure would “seriously
jeopardiz[e] [the] investigation.” See § 2705(b)(5).

The Google Order is not the only § 2703(d) order arising out of the government’s
WikiLeaks investigation. On December 14,2010, before the issuance of the Google Order, a
separate magistrate judge issued an order requiring Twitter, Inc. to disclose noncontent records
for several Twitter accounts, including the account (“Twitter Order”). Like the

Google Order, the Twitter Order originally barred disclosure of the order’s existence, but at
Twitter’s request, the government subsequently consented to unsealing the order. After the
Twitter Order was unsealed, Google then requested that the government consent to unsealing the
Google Order as well. The government, however, did not consent to unsealing the Google Order
entirely, agreeing instead to limit nondisclosure of the Google Order to ninety days, with an
option for the government to extend the nondisclosure period an additional sixty days.
Accordingly, on February 9,2011, the magistrate judge modified the Google Order to include
the ninety-day nondisclosure period with an optional sixty-day extension and rejected Google’s
argument that the order should be unsealed entirely. In re 2703(d) Order and 2703(f)
Preservation Request Relating to Gmail Account ^^Uno. L10GJ3793 (E.D. Va. Feb. 9,
2011) (Order). Google objects to the magistrate judge’s ruling, contending that the Google order
should be unsealed and that Google should be permitted to notify the subscriber—in this

2

instance,'

if the order immediately. The government argues that the magistrate

judge’s ruling was appropriate in all respects and should not be modified.

n.

As always when reviewing a magistrate judge’s order, it is appropriate to begin by
identifying the proper the standard of review. Although the parties agree that the magistrate
judge’s ruling must be reviewed under Rule 59, Fed. R. Crim. P., they disagree about which
subsection applies. The government contends that the ruling can only be modified if the ruling is
“clearly erroneous or contrary to law standard,” based on Rule 59(a). Google, on the other hand,
contends that the ruling must be reviewed de novo, based on Rule 59(b).

Although the issue is one of first impression, a careful examination of Rule 59’s text
resolves the conflict in favor of the government. Rule 59(a) provides that objections to the
determination of a magistrate judge on “any matter that does not dispose of a charge or defense”
must be reviewed by the district court under a clearly erroneous or contrary to law standard. By
contrast, Rule 59(b) provides that objections to dispositive matters—including “a defendant’s
motion to dismiss or quash an indictment or information, a motion to suppress evidence, or any
matter that may dispose of a charge or defense”—must be reviewed by a district court de novo.
Id. The government correctly recognizes that the magistrate judge’s issuance of a § 2703(d)
order is not a dispositive matter, and thus, under Rule 59(a), the order may be modified by the
district court only if the order is clearly erroneous or contrary to law. As the government points
out, the § 2703(d) order does not dispose of a charge or defense; rather, it merely orders the
disclosure of material by a third party in the course of an ongoing investigation. As such, the
order falls squarely within the scope of Rule 59(a). It is equally clear that the order does not fall
within the scope of Rule 59(b) based on the text of that subsection, as the Google Order is not

3

analogous to an order on any of the matters enumerated in Rule 59(b), namely a motion to
dismiss, a motion to suppress evidence, or a motion to quash an indictment.1

Google offers two additional arguments in support of its assertion that the magistrate
judge’s ruling concerned a dispositive matter under Rule 59(a). First, Google notes that in
United States v. Myers, 593 F.3d 338 (4th Cir. 2010), the Fourth Circuit held that it had
jurisdiction to hear the interlocutory appeal of a discovery order directed at a disinterested third
party because such an order is treated as an immediately appealable final order as to that third
party. Id. at 345. Yet, the mere fact that an order is considered final as to a third party and thus
subject to interlocutory appeal is irrelevant to whether the matter is “dispositive” within the
meaning of Rule 59, Fed. R. Crim. P. The question here is simply whether the magistrate
judge’s ruling disposes of a charge or defense, and it clearly does not. Whether Google may
seek an interlocutory appeal in this matter is a separate issue entirely that is neither raised nor
necessary to address here.

Next, Google cites United States v. Rosen, 447 F. Supp. 2d 538 (E.D. Va. 2006), which,
inter alia, reviewed a probable cause determination of a Foreign Intelligence Surveillance Court
(“FISC”) de novo. As an initial matter, Rosen did not conduct any analysis of the standard of
review, noting instead that even under the least deferential standard of review—i.e., de novo
review—the FISC judge’s probable cause determination in that case was correct. Id. at 545.
More importantly, the statutory scheme governing Foreign Intelligence Surveillance Act

1 The government also notes that a court’s decision to seal is generally reviewed only for abuse
of discretion. See Baltimore Sun Co. v. Goetz, 886 F.2d 60,65 (4th Cir. 1989) (“The judicial
officer’s decision to seal, or to grant access, is subject to review under an abuse of discretion
standard.”). Yet, the magistrate judge’s ruling here is not simply an order sealing a pleading, but
rather a broader nondisclosure order pursuant to 18 U.S.C. § 2703(d). Accordingly, as the
parties agree, it is appropriate to review the magistrate judge's ruling under Rule 59 rather than
principles governing sealing orders under Baltimore Sun.

4

warrants is entirely distinct from the statutory scheme in issue here. Compare 50 U.S.C. §§
1805,1806, 1825 within U.S.C. §§ 2703,2705. Thus, the Rosen decision does not inform the
analysis here. Instead, the analysis is appropriately guided by the plain language of Rule 59,
Fed. R. Crim. P. Accordingly, the Google Order will only be modified if it is clearly erroneous
or contrary to law.2

III.

Analysis of Google’s objections to the magistrate judge’s ruling begins with a brief

review of the relevant provisions of the Stored Communications Act (“SCA”), 18 U.S.C. §§

2701 etseq. The SCA permits the government to seek access to customer records stored by the

providers of electronic communication or remote computing services. See 18 U.S.C. § 2703.

Under § 2703(c)(1), a governmental entity may

require a provider of electronic communication service or remote computing
service... to disclose a record or other information pertaining to a subscriber to
or customer of such service (not including the contents of communications)_

The SCA further provides that the government may apply for an order compelling service

providers to disclose this information by demonstrating to a court “specific and articulable facts

showing that there are reasonable grounds to believe... the records or other information sought,

are relevant and material to an ongoing criminal investigation.” § 2703(d). If the government

seeks only noncontent information, the government is hot required to notify the subscriber of the

account in issue of the order’s existence. See § 2703(c)(3). Importantly, under § 2705(b), the

government may also request—as it did here—that the court bar the service provider from

disclosing tiie existence of the § 2703(d) order. Such a request may be granted if the court

2 Nevertheless, while it is not necessary to review the magistrate judge’s ruling de novo, such a
review has been conducted here and reveals no basis on which to modify the magistrate judge’s
ruling. Thus, as explained infra, even were Google correct about the standard of review, its
objections would be overruled.

5

“determines that there is reason to believe that notification of the existence” of the order “will
result” in, inter alia, “seriously jeopardizing an investigation.” § 2705(b).3 The statute also
allows a service provider to move to quash or modify the order “if the information or records
requested are unusually voluminous in nature or compliance with such order otherwise would
cause an undue burden on such provider.” § 2703(d). Significantly, the statute allows no other
grounds on which the service provider may challenge the order.

There is no dispute that the appropriate statutory procedures were followed by the
government in obtaining the Google Order and the accompanying nondisclosure provision. The
magistrate judge found that a disclosure bar was appropriate only after the government
demonstrated that disclosure would seriously jeopardize its investigation. Nevertheless, Google
objects to the magistrate judge’s ruling barring disclosure of the Google Order on three grounds.
First, Google argues that because the Twitter Order has already been unsealed, the investigation
cannot be further jeopardized by disclosure of the Google Order. Second, Google contends that
the Google Order may raise significant constitutional and statutory issues that the J^^^ccount
holder should have an opportunity to assert before the order is executed. Finally, Google argues
that the nondisclosure provision constitutes an unlawful prior restraint on Google’s First
Amendment right to free speech. In response, the government contends that the statute does not
permit a service provider to challenge a § 2703(d) order on the grounds asserted by Google, and
in any event, that Google’s arguments are meritless. A careful examination of the statute and the

3 The statute recognizes that a nondisclosure order may be justified if disclosure would result in
any of the following: (i) endangering the life or physical safety of an individual; (ii) flight from
prosecution; (iii) destruction of or tampering with evidence; (iv) intimidation of potential
witnesses; or (v) otherwise seriously jeopardizing an investigation or unduly delaying a trial. See
§ 2705(b). The government relies on the fifth ground—seriously jeopardizing an investigation—
to justify the nondisclosure provision in issue here.

6

record confirms that the government is correct, both as to Google’s limited standing to challenge
the nondisclosure provision and as to the merits of Google’s arguments.

It is appropriate to begin with the government’s argument that Google’s objections to the
nondisclosure provision are not permitted by the statute. Section 2703(d) states that a service
provider may move to quash or modify the given order on two grounds, namely that the
requested records are “unusually voluminous” or that compliance with the request would cause
an “undue burden.” The government argues that these enumerated grounds for a motion to quash
or modify are the only grounds available to service providers for challenging a § 2703(d) order.
The text of the statute supports the government’s conclusion. Section 2703(d) plainly states that
the motion to quash or modify may be brought “if’ one of the two enumerated grounds are
applicable. The enumeration of two; and only two, grounds for challenging the order implies—
under the “time-honored maxim” expressio unius est exclusio alterius4—that no other grounds
may serve as the basis for a motion to quash or modify the order. Had Congress wished to
authorize a service provider to assert other grounds to challenge the order, it easily could have
done so either by enumerating those additional grounds or by noting that the list was not-
exhaustive.4 5 Congress did neither in the SCA, and its failure to do so must be regarded as a clear
statement of its intent not to recognize further bases for service providers’ challenges to a
§ 2703(d) order.

4 See Ayes v. U.S. Dep’t of Veterans Affairs, 473 F.3d 104, 111 (4th Ctr. 2006) (applying the
“time-honored maxim expressio unius est exclusio alterius (‘the expression of one thing implies
the exclusion of another’)” to find that Congress’s failure to include veteran guaranty
entitlements from among the list of grants enumerated in the antidiscrimination provision of the
Bankruptcy Code, 11 U.S.C. § 252(a), meant that such entitlements were beyond the scope of
that statute).

5 For example, statutes often insert the word “including” before a list of examples when the list is
nonexclusive. See, e.g., West v. Gibson, 527 U.S. 212,218(1999) (in analyzing the Title VII
remedies statute, noting that Congress’s use of the word “including” makes clear the list is not
exhaustive).

7

Without conceding this conclusion, Google argues that even if the “voluminous records”
and “undue burden” grounds are the only acceptable bases for challenging the magistrate judge’s
ruling, Google’s arguments nonetheless may be heard because they fit within the scope of the
“undue burden” provision. To reach this result, Google repackages its arguments as supporting
the broad proposition that Google would suffer an undue burden if it were forced to comply with
a nondisclosure order that is not adequately supported by fact or law. Google Reply Br. at 3.

The SCA’s clear text fully refutes this argument. Significant in this regard is the
placement of the word “otherwise” in the statutory text. Thus, the statute states that a service
provider may move to quash or modify the order “if the information or records requested are
unusually voluminous in nature or compliance with such order otherwise would cause an undue
burden on such provider.” § 2703(d) (emphasis added). The use of "otherwise” following the
reference to “unusually voluminous” indicates—based on the maxim of ejusdem generis—that
the only types of burdens contemplated by the statute are those similar in nature to the burdens
imposed by a request for unusually voluminous records.6 Such burdens would ostensibly include
technical and logistical burdens involved in complying with the § 2703(d) order, but not
Google’s purported “burden” of complying with an order that, in its view, lacks a firm basis in
law or fact. Were the statute read as Google suggests, the phrase “undue burden” would be
broad enough to encompass any objection a service provider might imagine, thus rendering the
conditional language of § 2703(d) a nullity. Accordingly, because none of Google’s grounds for
challenging the order are technical or logistical in nature, Google’s objections to the magistrate
judge’s ruling must be overruled.

6 See id at 109 n.3 ("When general words follow specific words in a statutory enumeration, we
apply the interpretive principle of ejusdem generis (‘of the same kind’) and construe the general
words to embrace only objects similar in nature to those objects enumerated by the preceding
specific words.”) (quotations and ellipsis omitted).

8

Nevertheless, even if one considers the merits of Google’s objections, it is clear that the
objections must be still overruled. Google’s first objection—and certainly its most vigorously
advanced objection—is that, as a factual matter, the government has failed to meet its burden of
showing that disclosure of the Google Order would seriously jeopardize the government’s
ongoing investigation. Google essentially argues that no further injury to the government’s
investigation can occur beyond that which has already occurred owing to publication of the
Twitter Order. Consideration of this argument must begin with an understanding of the harm
purportedly caused by the unsealing of the Twitter Order itself, harm the government asserts
would be compounded if the Google Order were also unsealed.

The record reflects that after the Twitter Order was unsealed, the holder of the |

Twitter account posted an online message indicating that other Twitter users should not send him
or her direct messages over the Twitter service because the account was being monitored by the
government.7 Given this, the government contends that because unsealing the Twitter Order
apparently caused the subscriber to alter his or her behavior, it follows that unsealing the Google
Order could similarly lead to a change in the email usage of whatever entity or person operates
the^memail account with Google.8 This concern is well founded. Even if the |
account holder already suspects that the government seeks information from his or her email

7 Direct messages must be distinguished from general messages—or “tweets”—on the Twitter
website. A direct message is a message sent privately from one Twitter user to another. Tweets
are messages broadcasted publicly by one Twitter user to any and all users who may wish to
view—le.y “follow”—the user’s tweets.

8 Although the government and Google suggested in oral argument that it may be likely that the
same individual maintains both the^|| Twitter account and tham^f^mail.com email
account, this fact is not confirmed in this record, and in any event, is immaterial to the analysis
here.

9

account, it is reasonable to expect that confirmation of this fact would prompt yet additional
steps by this subscriber to avoid government monitoring of his or her accounts or other activities.

In response, Google notes that the Google Order only seeks historical, not prospective,
data, and that Google has already preserved this data, such that any potential change in the
subscriber’s future email behavior caused by unsealing the Google Order is immaterial. What
this argument critically fails to recognize is that the government’s investigation is ongoing, and
any change in the suspect’s behavior, whether with respect to internet usage or otherwise, may
impact or impede subsequent steps in the investigation. For example, if the Google Order were
revealed immediately, the government may be unable to obtain useful information from Google
or other service providers in the future because the subjects of the investigation may alter their
habits or simply destroy relevant information.

It is also important to note that revealing the existence of the Google Order might well
disclose to subjects of the investigation additional information or clues about the speed, scope,
and direction of the government’s investigation, information the subjects could use to attempt to
obstruct or frustrate the government’s investigative efforts. Google counters that publication of
the Google Order would result in only a trivial increase in the amount of information already
publicly known about the WikiLeaks investigation. Were this argument adopted, the
implications for future investigative actions by the government pursuant to the SCA would be
dire. Google’s argument, if followed to its logical end, would lead to the disclosure of every
§ 2703(d) order in the government’s WikiLeaks investigation after a single initial public
disclosure. Google’s argument ignores this potential ripple effect. Therefore, even though the
Twitter Order is already public, the government is correct in noting that disclosure of the Google
Order may nonetheless further impede the WikiLeaks investigation.

10

In addition to concerns about the subjects of the investigation altering their behavior, the
government also cites witness intimidation as a potential negative effect of unsealing the Google
Order. In this regard, the government notes that the unsealing of the Twitter Order led to a wave
of public criticism urging service providers to resist the government’s requests for content and
noncontent subscriber information. In the government’s view, disclosure of the Google Order
would further fuel this type of witness intimidation. Additionally, the government points out that
service providers may face retribution for cooperating with the government in connection with
SCA requests in the form of illegal attacks on the service providers’ computer systems by
supporters of WikiLeaks. The government notes that following disclosure of the Twitter Order,
purported WikiLeaks supporters attacked the computer systems of various companies, including
banks, that the supporters believed cooperated with the government’s WikiLeaks investigation.
This mode of witness intimidation, the government points out, would also be fueled by the
disclosure of the Google Order. Given the events that occurred following disclosure of the
Twitter Order, the government is correct to be concerned about the potential for increased
witness intimidation that could result from disclosure of tire Google Order. If the Google Order
were unsealed, future service providers may do precisely what Google has done in this instance,
namely resist compb'ance with a lawful § 2703(d) order by bringing baseless legal challenges
that have the effect of impeding the government’s progress in the WikiLeaks investigation.9

In sum, the government has persuasively demonstrated adequate and legitimate grounds
for a court to conclude, as the magistrate judge did, that there is reason to believe that disclosure
of the Google Order to the subscriber in question will seriously jeopardize the government’s

9 Given the reaction to the publication of the Twitter Order, it appears that the government may
now regret consenting to disclosure of the Twitter Order.

II

ongoing investigation.10 11 Thus, the magistrate judge’s imposition of a ninety-day disclosure bar
pursuant to § 2705(b) was neither clearly erroneous nor contrary to law. Nor does a de novo
review of tire record as a whole reveal any basis on which to modify the Google Order’s
nondisclosure provision. Therefore, under either standard of review, Google’s objection in this
regard must be overruled.

In addition to arguing that the government has failed as a factual matter to demonstrate
that disclosure of the Google Order would seriously jeopardize the investigation, Google also
asserts two legal grounds for rejecting the disclosure bar. First, Google contends that the order
raises potential constitutional and statutory issues that an affected subscriber may wish to raise,
but which cannot be raised at this time because the affected subscriber is unaware of the order’s
existence. The short answer to this argument is that if an individual whose information is sought
by the Google Order wishes to attack the validity of the order, there will be opportunities for
such a challenge after the order is made public. For example, if the information obtained is
offered by the government in a subsequent criminal prosecution, a defendant with standing may
seek exclusion of the evidence.11 And of course, if no one-is prosecuted based on the
information obtained from Google, a § 1983 action might be available if the subscriber can
demonstrate the requisite elements of the § 1983 action, including, most notably, a “deprivation

10 The government also asserts that its investigation has been impeded following unsealing of the
Twitter Order by diverting resources (i) to addressing public criticism of its investigatory tactics,
and (ii) to defending its attorneys from harassment. The government contends that unsealing the
Google Order would further exacerbate these conditions. The SCA does not include criticism of
the government or harassment of government attorneys in the § 2705(b) calculus. Indeed, it is
the integrity of the investigation itself, not the government’s interests in protecting its image or
defending its attorneys against harassment, that are the subject of § 2705(b).

11 Of course, this is not to say that the defendant would have standing to challenge the
admissibility of the evidence, or even that a defendant with standing could properly invoke the
exclusionary rule in the circumstances. Those issues need not be and are not addressed here.

12

of any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983.
Although it does not appear that a § 1983 action based on the Google Order would have any
merit, questions raised by such an action need not be addressed here.

Google’s final objection to the Google Order’s nondisclosure provision rests in the First
Amendment. In essence, Google argues that the nondisclosure provision is an unlawful prior
restraint on its own free speech rights inasmuch as the order prevents Google from discussing the
existence of the order with anyone. Before addressing the merits of this argument, it is important
to note initially that orders barring third parties from disclosing government surveillance tactics
during the course of an investigation are hardly new. The government has long held the power to
compel the assistance of, inter alia, telephone and internet service providers in monitoring
communications. See United States v. New York Tel. Co., 434 U.S. 159, 168 (1977) (recognizing
the authority for the installation of a pen register); United States v. Talbert, 706 F.2d 464,467
(4th Cir. 1983) (recognizing the authority for wiretaps); see also 18 U.S.C. § 3122 (authorizing
statute for pen registers and trap and trace devices). Indeed, the statute invoked by the
government here is nearly twenty five years old. See Electronic Communications Privacy Act of
1986, Pub. L. 99-508, § 201(a), 100 Stat. 1864, (1986). And when the government invokes its
power to obtain information from service providers, courts'routinely bar the providers from
disclosing the existence of the order to anyone, including the relevant subscriber. See, e.g., 18
U.S.C. § 3123(d) (barring disclosure of the existence of pen registers and trap and trace devices
unless otherwise directed by a court); 18U.S.C.§2511 (2)(a)(ii) (barring disclosure of the
existence of wiretaps, unless otherwise directed by a court).

12 See In Re: §2703(d) Order, Misc. No. I:lldm00003,2011 U.S. Dist. LEXIS 25322, at *10-19
(E.D. Va. Mar. 11,2011) (Memorandum Opinion) (rejecting subscribers’ First and Fourth
Amendment challenges to the Twitter Order).

13

Google’s First Amendment argument amounts to an as-applied attack on the SCA’s
constitutionality. Yet, Google cites no case—and none has been found—striking the exercise of
such power as an improper prior restraint under the First Amendment. Nondisclosure provisions
of this sort are so routine that Google’s argument borders on frivolous. Nevertheless, it is not
difficult to perform the required constitutional analysis under the First Amendment, which makes
clear that the nondisclosure provision in the Google Order passes constitutional muster.

It is true, of course, that the nondisclosure provision in issue does constitute a prior
restraint on Google’s right to free speech,13 but it is equally clear that a prior restraint is
permissible where the government demonstrates that the restraint is narrowly tailored to serve a
compelling governmental interest. See Va. Dep’t of State Police v. Wash. Post, 386 F.3d 567,
573 (4th Cir. 2004) (analyzing prior restraints in the context of sealed court documents). It is
well settled that the government has a compelling interest in maintaining the integrity of an
ongoing criminal investigation. Wash. Post, 386 F.3d at 579 (“We note initially our complete
agreement with the general principle that a compelling governmental interest exists in protecting
the integrity of an ongoing law enforcement, investigation.”); In re Sealing & Non-Disclosure,
562 F. Supp. 2d at 895 (“As a rule, sealing and non-disclosure of electronic surveillance orders
[that are not permanent or indefinite] are presumptively justified while the investigation is

ongoing_______”). Of course, “whether this general interest is applicable in a given case will

depend on the specific facts and circumstances presented.” Wash. Post, 386 F.3d at 579. In
conducting such an analysis, consideration must be given to “whether the granting of access...
will disclose facts that are otherwise unknown to the public.” Id.

13 See In re Sealing & Non-Disclosure, 562 F. Supp. 2d 876, 882 (S.D. Tex. 2008) (noting that a
nondisclosure provision in a § 1703(d) order “imposes a prior restraint on speech”).

14

These principles, applied here, point convincingly to the conclusion that the
nondisclosure provision in the Google Order does not infringe any of Google’s First Amendment
rights. Here, it is clear that unsealing the Google Order will reveal steps in the government’s
investigation that ate not currently public. Although the public may speculate that the
government is seeking or has sought access to nonconteni subscriber information with respect to
thc^m^ccount, such access has ever been publicly confirmed. Moreover, as noted infra,
there is reason to believe that such release will seriously jeopardize the government’s ongoing
criminal investigation. The government’s interest in maintaining the integrity of its WikiLeaks
investigation cannot be understated, and the temporary prior restraint on Google’s free speech is
narrowly tailored to serve this compelling interest. Therefore, Google’s First Amendment
challenge to the nondisclosure provision in the Google Order fails.

Accordingly, for the aforementioned reasons, the magistrate judge’s order sealing the
Google Order and barring disclosure of the existence of the Google Order for ninety days, with
ah optional sixty day extension, is neither clearly erroneous nor contrary to law. Additionally, a
de hove review of the record similarly confirms that the magistrate judge’s ruling was correct in
ai! respects. Thus, Google’s objections must be ovemiled.

The Clerk is directed to place this matter under seal and to send a copy of this
Memorandum Opinion to all counsel of record.

15

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

IN THE MATTER OF THE 2703(d) ) Misc. No. 1:10GJ3793

ORDER AND 2703(1) PRESERVATION )

REQUEST RELATING TO GMAIL ) Il-DM-2

ACCOUNT )

) UNDERSEAL

ORDER

The matter is before the Court on Google, Inc.’s motion to stay and objections to
the magistrate judge’s ruling that the order issued to Google pursuant to 18 U.S.C.

§ 2703(d) remain under seal and that Google be ordered not to disclose the existence of
the order to anyone. See In re Application of the United States ofAmerica for an Order
Pursuant to 18 U.S.C. §2703(d), No. 1:10GJ3793 (E.D. Va. Jan. 4,2011) (Order), as
modified by In re 2703(d) Order and 2703(f) Preservation Request Relating to Gmail
Account H

^No. 1:10GJ3793 (E.D. Va. Feb. 9,2011) (Order).

For the reasons stated in the accompanying Memorandum Opinion of even date, a
de novo review of the record as a whole demonstrates that the magistrate judge’s ruling is
correct in all respects, and that the ruling is not contrary to law, clearly erroneous, or an
abuse of discretion.

Accordingly,

It is hereby ORDERED that Google’s objections (Doc. Nos. 15 and 16) are
OVERRULED in all respects.

It is further ORDERED that Google’s motion to stay (Doc. No. 17) is DENIED

AS MOOT.

It is further ORDERED that this Order and the accompanying Memorandum

Opinion shall REMAIN UNDER SEAL until further order of the Court.

It is further ORDERED that once the underlying grand jury investigation is

completed, the government is DIRECTED to advise the Court whether it would then be

appropriate to lift the seal on this Order and the Memorandum Opinion.

It is further ORDERED that Google promptly comply with the magistrate judge’s.

§ 2703(d) order compelling the disclosures described therein and comply with the

accompanying nondisclosure provision in all respeers.

The Clerk is directed to place this matter under seal and to send a copy of this

Order to all counsel of record.

Alexandria, Virginia
March 30,2011

2

ATTACHMENT O

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

)

IN THE MATTER OF THE 2703(D) ORDER ) Criminal No. 1:11 -DM-2
AND 2703(F) PRESERVATION REQUEST )

RELATING TO GMAIL ACCOUNT ) UNDER SEAL

CONSENT MOTION TO UNSEAL

The United States of America and Google Inc. (Google) through undersigned counsel file
this consent motion to unseal the redacted versions of the orders and pleadings in 1:1 l-DM-2
enclosed as Attachments A through O.

I. Background

On January 4, 2011, upon application of the United States pursuant to 18 U.S.C.

§2703(d), Magistrate Judge issllC(J an order, requiring Google to disclose non-

content subscriber and transactional records for a Google account. (Section 2703(d) Application;
Section 2703(d) Order)

The Section 2703(d) Order provided that the “application and [ ] Order are sealed until
otherwise ordered by the court, and that Google shall not disclose the existence of the application
or [ ] Order ... or the existence of the investigation to the listed subscriber or to any other
person, unless and until authorized to do so by the Court. See ex parte, under seal Attachment.
On February 9, 2011, Judge denied in part and granted in part Google’s Motion to Modify
the Section 2703(d) Order. Google was authorized to provide notice of it to its subscriber within
90 days of providing the required information to the government, unless the government filed a
motion for an extension, with a maximum sixty-day extension period. The clerk was directed to
file the order under seal. (“Modified Disclosure and Sealing Order 1”).

1

On March 30, 2011, Judgeoverruled Google’s objections to Judge
ruling, and ordered that the Order and accompanying Memorandum of Opinion remain under
seal until further order of the Court. The United States was directed to advise whether it would
be appropriate to lift the seal once the underlying grand jury investigation was completed. The
clerk was directed to place the matter under seal. (“Modified Disclosure and Sealing Order 2”).
On July 29, 2011, Google provided notice of the Section 2703(d) Order to the subscriber
following expiration of the non-disclosure period.

II. Discussion

The Section 2703(d) Order and Section 2703(d) Application, which contains specific and
sensitive details of the investigation, remain properly sealed while the grand jury investigation
continues.

The United States believes, however, that alternatives less drastic than sealing will now
suffice to protect the investigation with respect to the Modified Disclosure and Sealing Orders 1
and 2 and related pleadings in matter 1:1 l-DM-2 (except ex parte pleadings), which pertain to
sealing and non-disclosure issues.

Specifically, the United States believes that those Orders and pleadings may be unsealed
if “matters occurring before a grand jury” (i.e. accounts and individuals) and personal identifiers
of government officials (i.e. names and contact information)1 are redacted. The United States
also will not seek to prevent Google from disclosing the account name at issue in matter 1:11-
DM-2 to the subscriber of that account.

1 The Attachments reflect redactions to the names and contact information of government and
judicial officials. The United States and Google defer to the Court’s preference in redacting the
names of judicial officials.

2

III. Conclusion

Therefore, the United States and Google respectfully request that the following, redacted
in accordance with Attachments A through O, be unsealed:

A. Google’s Motion to Modify 2703(d) Order for Purpose of Providing Notice
(1/18/11)

B. Government’s Response (1/28/11)

C. Google’s Reply (2/1/11)

D. Government’s Motion to Continue (2/3/11)

E. Modified Disclosure and Sealing Order 1 (Judge |^J) (2/9/11)

F. Google’s Objections to and Appeal of Judge Order (2/17/11)

G. Google’s Motion to Stay Production Pending Appeal (2/17/11)

H. Government’s Response to Google’s Objections (2/28/11)

I. Government’s Response to Google’s Motion to Stay (2/28/2011)

J. Google’s Reply in Support of Objections (3/7/11)

K. Google’s Reply in Support of Motion to Stay Production Pending Appeal (3/7/11)

L. Government’s Notice of Relevant Decision (3/22/2011)

M. Google’s Response to Notice of Relevant Decision (3/23/2011)

N. Modified Disclosure and Sealing Order 2 (Judge^H) (3/30/11)

3

O.

Redacted Consent Motion to Unseal and Order

Dated this 1st day of April 2015. Respectfully submitted,

By:

Assistant United States Attorney
United States Attorney’s Office
2100 Jamieson Avenue
Alexandria, Virginia 22314
Phone: (703) 299-3700
Fax: (703) 299-3980

Attorneys for the United States

John K. Roche (VSB# 68594)

Perkins Coie LLP

700 13th St., N.W., Suite 600

Washington, D.C. 20005-3960

Phone: 202-434-1627

Fax: 202-654-9106

JRoche@perkinscoie.com

Attorneys for Google Inc.

4

CERTIFICATE OF SERVICE

I hereby certify that on this 1st day of April 2015 the foregoing was sent via email and
hand deliver to the following persons:

John K. Roche

Perkins Coie LLP

700 13th St., N.W., Suite 600

Washington, D.C. 20005-3960

Phone: 202-434-1627

Fax: 202-654-9106

JRoche@perkinscoie.com

By:

Assistant United States Attorney
United States Attorney’s Office
2100 Jamieson Avenue
Alexandria, Virginia 22314
Phone: (703) 299-3700
Fax: (703) 299-3980

5

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

)

IN THE MATTER OF THE 2703(D) ORDER ) Criminal No. 1:1 l-DM-2
AND 2703(F) PRESERVATION REQUEST )

RELATING TO GMAIL ACCOUNT ) UNDER SEAL

CONSENT ORDER

WHEREAS, the United States obtained a 2703(d) Order directed to Google Inc.

(Google);

WHEREAS, the United States and Google engaged in litigation regarding the sealing and
non-disclosure of the 2703(d) Order in the matter 1:1 l-DM-2; and

WHEREAS, based on the record before the Court, alternatives less drastic than sealing
will now suffice to protect the investigation with respect to the documents specified below,
which pertain to sealing and non-disclosure issues; it is hereby

ORDERED that the following, redacted in accordance with Attachments A through O, be

unsealed:
A. Google’s Motion to Modify 2703(d) Order for Purpose of Providing Notice (1/18/11)
B. Government’s Response (1/28/11)
C. Google’s Reply (2/1/11)
D. Government’s Motion to Continue (2/3/11)
E. Modified Disclosure and Sealing Order 1 (Judge | ■) (2/9/11)
F. Google’s Objections to and Appeal of Judge | Order (2/17/11)
G. Google’s Motion to Stay Production Pending Appeal (2/17/11)

6

H. Government’s Response to Google’s Objections (2/28/11)

I. Government’s Response to Google’s Motion to Stay (2/28/2011)

J. Google’s Reply in Support of Objections (3/7/11)

K. Google’s Reply in Support of Motion to Stay Production Pending Appeal (3/7/11)

L. Government’s Notice of Relevant Decision (3/22/2011)

M. Google’s Response to Notice of Relevant Decision (3/23/2011)

N. Modified Disclosure and Sealing Order 2 (Judge^j) (3/30/11)

O. Redacted Consent Motion to Unseal and Order

ORDERED that Google may disclose to the subscriber the account at issue in the sealing
and non-disclosure litigation relating to 1:11 -DM-2, and the subscriber is not prohibited from
further disclosing that information.

ORDERED the record in matters 1:1 l-DM-2 remain under seal, and no part of them may
be disclosed without court order except to the extent provided above.

It is so ORDERED.

ENTERED this_____day of April 2015, at Alexandria, Virginia.

7


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