ATTACHMENT A IN THE UNITED STATES DISTRICT COURT ED FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION 23" JAN [8 i2: 53' IN Misc. No. 10 p255 mm,? mm PRESERVATION REQUEST RELATING TO GMAIL ACCOUNT FILED UNDER SEAL GOOGLE INCJS MOTION TO MODIFY 2703(d) ORDER FOR PURPOSE OF PROVIDING NOTICE TO USER 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.I I 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 Goo'gle Gmail user - the subject of the demand at. issue here (theme?li?ma-qu?heaheadypublie nature of the Wikileaks investigation, the fact that a nearly identical order to another provider involving the same account identi?er 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 See, Scott Shane and John F. Burns. U.S. Subpoenas Witter ?ier WikiLeaks Supporters N.Y. Times, Jan. 3, 20! I. IIOWworld/OQwikihtml (last visited Jan. 13, Anthony Beadle. US. orders Twitter to hand over Wikileaks records. Reuters. Jan. 8, 20 l. 10 08 (last visited Jan. 14, 201 Ravi Somaiya, Release on Bail hfWikr'Leah Founder Is Delayed by Appeal, NY. Times}, Dec. 14, 2010, available at (last visited ?Jan. 3. 201 Assange attorney: Secret grand jury meeting in Virginia on WWI eats. CNN Justice, Dec. I3. 2010, (last visited Jan. 3, Dan Goodin, Grandqu meets to decide ?ne The Register, Dec. 13, 20:0. availabie (last visited Jan. 3. 20! I). - 1 See Declaration orJohn K. Roche, Ex. 1 (?Roche Dash?). 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. II. 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 identi?er .as 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 ts use. 5 2703(d) (the ?Twitter Order?)? Twitter ashed the government to unseal that order so that it might give its users notice and an opportunity to assert any privileges I 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 tor the twitter user-the next day the government procured this Order undersea! 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 I, 2009 to the present. This Order contains the identical perpetual nondisclosure provision that was present in the Twitter Order, prohibiting Google from ?disclos[ing] 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." Roche Decl., Ex. 2. Id. Ex. 3. Pursuant to Google?s policy and having learned through the extensive coverage of the unsealed Twitter Order ?int-recount records had been sought and that motions to object are imminently due from- the Twitter users whose data has been requested, Google 5 noti?ed the government that it too sought to notify its user of the Order. The government declined to agree to a modi?cation to allow this, purportedly because the Order involves a 6 different investigation. 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? Google respect?tlly submits that this Order, like the Twitter Order, may present substantial speech concerns and may implicate journalistic and academic freedom. Furthermore, the government?s investigation of Wikileaks generally, and its interest in the -user name speci?cally, 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 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. 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. Roche DeclB. Relevant Actors Google provides electronic mail services to the public through its Gmail service. Google assiduously protects the privacy and {ice speech rights of its Gmail users, as evidenced by its opposition, with the support of the US. State Department, to the Chinese government?s attack on the Gmail accounts ofChinese human rights activists.? 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 Arnendment concems, Google may move to nnseal 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 orother applicable privileges and articulate their concerns to the Court. It is for those reasons that Google asks the Court to unseat the Order as the Court did for another provider in the same Grand Jury proceeding. Wikilealrs 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 Hem, Googie. Citing Attack. Threatens :9 Exit Chino. N.v. Times, Jan. 20I l. 3lworldfasial (last visited Jan. I3, 20! 9 Salmeron v. ?ner-prise Recovery Systems, Inc, 519 F.3d 781, 791 n.1 (7th Cir. 2009) by Chinese dissidents, journalists, mathematicians and startup company technologists, from the US, Taiwan. Europe, Australia and South Wikileaks styles itself as ?an uncensorable version of Wikipedia for untraceable mass document leaking and analysis.? wikilealrs. org! wild} Wilcileaks: About (last visited July I6. 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?? as. v. Shaina?. No. 4:09-cn-14 (CDL), 2009 WI. 3681827, at *1 ml Ga. Nov. 2. 2009) (?Twitter?s users can send and feed electronic messages lcnown as ?tweets.? A truest is a short text post (up to Ho 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 commt on and could not con?rm whether the Twitter scooter-s controlled by the same user as the Gmail_secotmt. it is instructive to note mai'ic a ?tweet,? the Twitter csemdicatcc that since at least raid-December 20 10 ?as boon well aware that a gouernment investigation is underway.? C. Procedural Posture The Twitter Order was issued on December 14. 2010 and relates to the ongoing Wikileaks investigation, which is obviously an issue public interest." The Twitter Order demanded the production of subscriber irlfonnatiou and certain 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 nam_ It also contained a non-disclosure provision. The grandjury investigation underlying the Twitter Order was widely reported in the New York See-tweet of Dec I7. 2010 49.2 p.m. (?Unrelated to any travel issues - the so: is now actively bothering my ?ends and questionhtg them inside the United States"). 58'19462465835008 {last visited on Dec. 21. 2010}.- see air- tweet uric". 7. 20] 9:26 pm. (?Note that we can assume Googlc Faccbook also have secret US subpoenas. They make no comment. Did they foldT'), (last visited Jan. 18-. 20! I). Itcch Deal. Ex. 2. Times and other media outlets around the time the Twitter Order was issued.'2 Indeed, prior to issuance of the order, the Attorney General had acknowledged that the government was actively investigating Wikiieaks.? On January 5, 2011, upon motion by the govemment made at the behest of Twitter,? Magistrate Judge Buchanan unsealed the Twitter Order and authorized Twitter to disclose it to its users, including Twitter user-3 In the days following January 5, 2011, the unsealed Twitter Order was posted on the intemet and widely discussed in the media." On January 7, 201 l, a ?tweet? from Twitter user' -tated that ?we can assume Google 6?6 Faceboolc also have secret US government subpoenas?" 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 '2 Ravi Somaiye, Release on Bail of WikiLeais Founder Is Deioyedby Appeal. NY. Times, Dec. 14, 20 I0. Elworldfeurope? (last visited Jan. 3. 201 see also Ass-tinge attorney: Secret grand jury meettng in Virginia on Wtkiieolts, CNN Justice, Dec. I3, 2010, (inst visited Jan. 3, 201 Dan Goodin, Grant-{Jury meets to deoto'e?rte of Miami: founder, The Register, Dec. 13, 2010, (last visited Jan. I, 201 '3 Ellen Nakashima Jerry Markon. WikiLeaksjbunder eouid be charged under Espionage Act. Wash. Post. Nov. 30. 20l0, 12905973.html (last visited Jan. 3, 2011). Perkins Coie LLP represents both Twitter and Google. '5 Roche Decl., Ex. 3. See, Scott Shane and John. F. Burns, US. Subpoenas Witter Over Wt?t?Leais Supporters, N.Y. Times, Jan. 8, 201 l, 1101t09t'worldlo9wilcihtml (last visited Jan. 13, 201 Anthony Beadle, us. orders Twitter to hand over Wiltileais records, Reuters. Jan. 8. 201 I. 10108 (last visited Jan. 14, 201 '7 See tweet of Jan. 7, 201 9:26 pm. ("Note that we can assume Google Faceb olt also have secret US government subpoenas. They make no comment. Did they httpu'ltwittemolri-l (last visited Jan. 18, ZQI I). Order and compels Google to produce the identical information as the Twitter Order for the Google Gmail 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(t) ?for the preservation of all stored communications, records, and other evidence? in Google?s possession regarding Gmail user-?n November 2009 to the present..9 That same da'y, Google?s outside counsel spoke with several government attorneys regarding the nondisclosure provisions in this Order.20 Google?s attorney noti?ed 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 Google?s request saying only that the Order involves a different investigation than the one underlying the Twitter Order.22 No ?rrther explanation was provided.23 govemrnent offered to release Google from the notice constraint 90 days after it produced, with a provision allowing the government to petition for a ?n'ther Gnogle consequently noti?ed the government that it intended to ?le this motion to unseal the order and to modify its nondisclosure provisions so that Google '3 See Roche Ex. I. '9 ratcould give immediate notice to its user.? Google?s attorney and the government subsequently agreed'on a schedule for ?ling and argument of this motion. ARGUMENT I A. There is No Need for Secrecy of the Order or the Preservation Request Nondiselosure orders are permitted in extraordinary circumstances under IS U.S.C. 2705. The Order in this matter relies upon the standard set forth in which provides for nondisclosure when noti?cation will result in ?seriously jeopardizing an investigation." Nondisclosure requests such as this are subject to the most demanding scrutiny, particularly when they are inde?nite in'scope: If the recipients of [surveillance] orders are forever enjoined ?'om discussing them, the individual targets may never learn that they had been subjected to such surveillance, and this lack of information will inevitably sti?e public debate about the proper scope and extent of this important law enforcement too]. By constricting the ?ow of information at its source; the government dries up the marketplace of ideas just as effectively as a customer- targetedinjunction'wo ulddor?iven-thepublic?sintense interest in this area of law; such content-based restrictions are subject to rigorous scrutiny. In re Sealing and Non-Disclosure of Pen/1' rap/2703(c0 Orders, 5 62 F. Supp. 2d 876, 882 (SD. 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 govemment made in the af?davit 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 identi?er, it 2? See Roche Decl. 1 6. is dif?cult to understand how the govemment could 'rneet the ?seriously jeopardia'ng? standard in this case. The government?s offer to release Google from the notice constraint a?er 90 days demonstrates that a limited nondisclosure provision could have been requested in the ?rst place, and that this very public investigation is at or near an end, which further obviates the need for con?dentiality. Nor does the Order meet the traditional standard for grand jury con?dentiality. Grand jury proceedings are traditionally con?dential because if preindicttnent 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 ?ee, or would try to in?uence 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 "82, 187 n.6 (4th Cir. 1996) (quoting Douglas Oil CM219 (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. (3.1.3., 558 F.3d 326, 334 (4th Cir. 2009) (quoting In re Jury Subpoena, 438 F.3d 1138, 1 140 (no. Cir. 2005)). In this case, the grand jury?s investigation of the Twitter is 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. B. The Order May Raise Signi?cant Free Speech arid Other Privilege Issues Grand jury proceedings are not exempt'from the limits of the First Amendment. Branzburg v. Hayes, 408 US. 665, 707-08 (1972). Accordingly, courts must ?strike? 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 .lury Subpoena: Subpoena Duces Tecum, 829 F.2d 1291, 1305 (4th Cir. 1987) (Wilkinson, ., concurring). Shielded by the First Amendment, the press ?has been a mighty catalyst in awakening public interest in govemmental affairs, exposing corruption among public of?cers and employees and generally informing the citizenry of public events and occurrences.? Estes v. Texas, 381 US. 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.? Ashcroft 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 ?'eedom is therefore a special concern of the First Amendment . . . Keyishian v. Board of Regents of Universior of State of N. K, 385 US. 589, 603 (1967). To the extent that the Gmail user-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. l0 The Department of Justice itself recognizes that ?the prosecutorial power of the govermnent should not be used in such a way that it impairs a reporter?s reaponsibility to cover as broadly as possible controversial public issues,? and has thus enacted special procedures for obtaining information ?'orn or about members of the news media. See 28 C.F.R. 50.10; see- also US. Attorney's Manual, 9-13.400. Therefore, given the extraordinarp controversy and newsvuorthiness surrounding Wildlealrs? alleged actions, the applicability of any privilege may be heightened. In?re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, Cir. 2006 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.") (Tatel, J., concurring). Had Gmail user- 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 unreasonable or oppressive] subpoena, the majority [in Brambarg] must have meant, at the very least, that the First Amendment demands a broader notion of ?harassment? forjournalists than for other witnesses") ate], 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 Urn? . demanded therein. IV. CONCLUSION Google takes no position regarding the propriety of Wikileaks? alleged actions or the govemment?s investigation, but given the extraordinary nature of the issues surrounding the Wildleaks 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 ?mher 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 ?le an appropriate response. In the meantime, Google has preserved responsive information, and will produce that information if its user does not ?le a motion or other pleading in opposition within 20 days of the Court?s order. DATED this 18th dayr of January, 2011. By Respect?illy sub Perkins 1? .. - Suite 600 Washington, DC. 20005-3960 Phone: 202-434-1627 Fax: 202-654-9106 JRoche@perkinscoie.eorn Albert Gidari (pro hac vice pending) Perkins Coie LLP . 1201 Third Avenue, Suite 4300 I2 Seattle, Washington 9810] Phone: 206-359-8000 Fax: 20653593000 AGidari@perkinscoie.com Attorneys for Google Inc. CERTIFICATE OF SERVICE I hereby certiiy that on this 18th day of January, 20l 1, the foregoing doouInent was sent via hand delivery and email to the following persons: !Istant Unit! States Attorney United States Attorney?s Of?ce Eastern District of Virginia Justin W. Williams United States Attorney?s Building 2100 Jamieson Avenue Alexandria, VA 22314-5794 703-299 703-299 facsimile) ?k@usdoi-snv Attorneys for the United States motto 68594) as _ie, LLP 700 13th St, 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 CLER IN ORDERAND 2703(1) Misc. No. marshy PRESERVATION REQUEST LATINO FILED UNDER SEAL I DECLARATION OF JOHN K. ROCHE IN SUPPORT OF GOOGLE MOTION TO MODIFY 2703 1! ORDER FOR PURPOSE OF PROVIDING NOTICE TO USER TO GMAIL ACCOUNT I, John K. Roche, declare as follows: I. 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 associate in the law ?rm 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 W?mmo?his?omissuedio I Coogle 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, 26] 1 order of this Court unsealing the Twitter Order. - I 5. Attached hereto as Exhibit 4 is the January 12, 20] I preservation request issued to Google pursuant to] 8 U.S.C. 27030) in the above-referenced matter. 6. On January 12, 20] l, I spoke with several government attorneys regarding the nondisclosure provisions in the Order. I noti?ed the govemment 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 ?mher explanation was provided. The government offered to release Google from the notice constraint 90 days after it produced, with a provision allowing the goverrunent?to petition for a further extension. I consequently noti?ed the government that Google intendedto ?le 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 peijury under the laws of the United States of America that the foregoing is true and correct. is tdth' 18thda ofian ,2011. xecue 15' uary ?it Roche 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 Attomey?s Of?ce Eastern District of Virginia Justin W. Williams United States Attorney?s Building 2100 Jamieson Avenue Alexandria, YA 22314-5794 (feelsimiie Attorneys for the United States if? I By Roche 68594} LLP 700 13th N.W., Suite 600 Washington, DC. 20005-3960 Phone: 202-434-1627 Fax: 202-654-9106 JRoche@perkinseoie.com Attorneys for Google Inc. 1 EXHIBIT 1 JAN. 5.2011 mm - "0.2150 F. 1/4 11.8. Department of Justice United States Attorney Eastern District of Virginia mm: mum Unifld muf?n JJMJ'amrcm (Mun Aitmnd?a. I?m-a: 133 MS 794 293-5 790 FACSIMILE TRANSMISSION COVER PAGE 115'} fl rd: in .313 Min: Weaver) Racer-aka 2"1?39/ - 54,29 sm- mm ?a PHONE N03 - FAX NO: NUMBER OF PAGES: .3 l 'Not Including Cover Pager" Love! of Transmitted Information: El Non-Sensitive Information Sensitive But Undoulfiad(SBU) Limited Of?cial Use (LOU) '3 Gdenry Information El Tax Information a Law Enforcemsnt Information Victim Witness Information CONTENTS: WARNING: MannatiOn attached to this cover sheet is sonsitlve U.S. Govermnent Property. Ifyou are not the intended'rccipient of this infom'tetion, disclosure. reproduction. distribution, or use of this informalion is prohibited. Please notify this of?ce immediately at the above number to mange for proper dism?bution. EXHIBIT 2. 0130.14.20") ?0.2530 P. us. Department ofJuaitice United States Attorney Eastem Dis-Mar of Virginia Min ii". mm Stalin-Moray? Infin'mg 21mm Anna: Jihad-?2. {703} 2994700 FACSMILE TRANSMISSION COVER PAGE DATE: 10 Twi'Htr Tm!- $521 . PHONE: mmxm: m2_qqg? SENDER: Mariam? 1b swam mom: NO: ma I NUMBER. OF PAGES: (It *Not Including Cover Page; Non-Sensitive Information Sensitive But Unclassi?ed (SBU) Of?cial Us. (LOU) Grand Jury Information Tax Information LIW Enforcement In formation El Victim Witness Information CONTENTS: WARNWG: Information attached to this cover sheet is sensitive 11.5. Government Property. Ifyou are not tha Intended recipient ofthis information. disclosure. reproduction. distribution. 01? ?53 of this is prohibited. Please. notify this of?ce inunediately at the above number to arrange for pmper distribution. - etc. 14.2010 than . Home P. 2/4 UNITED STATES Coonr FORTHEEASTERN DISTRICT or VIRGINIA ALEXANDRIA DIVISION . IN RE APPLICATION OF THE UNITED STATES OF FOR. MISC. N0. 10013793 AN ORDER PURSUANT TO 'l is U.S.C. 2703(d) Filed Under Seal This matter having come before the Court to an application under Title United States Code, Section 2703, which application requests the issuance of an order under Title 18, United States Code, Section 2703(d) directing Miter. Inc, an electronic communications service provider andior a remote computing service, located San Francisco, California. to disclose certain records and other information. as set forthin Attachment A to thi Order, the Court ?nds that the applicant has offered speci?c and articulablc facts showing that there are reasonable grands to believe that the records or otheriofonnation sought are relevant and material to an ongoing" criminal investigation. 11? APPEARING that the infonnation sought in 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 dieteth would seriously jeopardize the investigation; it IS ORDERED pursuant to Title is. United States Code, Section 2703(d) that Twitter, Inc. will. within three days of the date of this Order, turn over to the United Stator the records and other information as set forth in Attachment A to Order. - 03.14.2010 4:I5m no.2530 P. 3/4_ IT [3 FURTHER ORDERED that the Clerk of the Court shall provide the United states Attorney?s Of?ce with three (3) certi?ed copies of this applieatido and Greer. ms FURTHER ORDERED that the application and this Order are sealed until otherwise ordered by the Court. and that Twitter shall not diecloso the e?stoncc of the application or this Order of the Court, or the catishnee of the investigation. to the listed - subscriber or to any other person, unless and until authon to. do so by the Court. '.fl I . ted States Magistrate {ng'e - electronic media. or email ND. 2530_ P. 4/4 ATTACHMENT A You ereto provide the foilowi information, if available, preferably as data ?les on CDROM hot by incohnilc to A. The following customcr or account information for each cocotmt registered to or associated wi for the time period l. 2009 to present: subscriber names, user names, screen names, or (idler identities; . mulling addresses. residential addresses, business addresses. e-mail addresses, and other contact information; - connection records, or records ofeescicn times and durations; length cfsetVlce (including start date) and types of service utilized; telephone or insinuncct or other a obocriher monitor or identity. including any temporarily assigned network oddrere;ond - - mom nod source of payment for such service (including any credit card or bank accomt number) and billing records. B. All records and other information relating to the eccounict) and time period in Part A, including; 1. records cfuoer activity for any connections modern or from the Account. including thedote. ?ora. length, and method of connections, data transfer volume, user name, and source and destination internet Protocol nddres?ec); non-content information associated with the contents of any communication or tile stored by or for the such as the source and destination email addresses and iP?otidresseo? . correspondence and notes of records related to the account(s). EXHIBIT 3 Ft? Lil CLERK. 1' m: In' ?lFItft-iif?l? r: IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division IN THE MATTER OF THE ?2703 ORDER RELATING TO 1 UNTS: MISC. N0. 10(313793 ORDER TO UNS EAL THE ORDER BURSUANT TO 18 U.S.C. 52703] This matter having come before the Court pursuant to an application under Title l8, United States Code, ?2703(d), it appearing that it is in the best interest of the investigation to unseal the . Court?s Order ochoember I4. 2010 and authorize Twi?er to disclose that Order to its subscribers and customers. it is hereby ORDERED that the above-captioned Order of December 2010 pursuant to us use. ?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. 1 UNITED STATES MAGISTRATE JUDGE {0 Alexandria, irginin EXHIBIT 4 JAN. NOJBH P. FAX TRANSMISSION Unfta'd States Mama: Eaatarn District of Virulnla Justin W. U3. Attorney?s Oman Building 2109 mm m. VA 22314 To. I custodianofRecords Bangle Fax 850-849-2939; 950-249?3429 I Voice 793-299-3169 From . Assistant United States Attorney Fax 703-299-3731 Data January 12I 2M1 $993 3. Including this [age Subject Preservation letter under 19 1.1.3.0. see. 2703?) 2:10am I Norm P. 2/3 US. Depot-uncut of Justice United States Attorney Eastern District of Virginia Alumni-lat 5?1 21314 PHONE: 701-19947? Juror ?(Hus airways ain?t-a Bulking innuary 2011 Gouglc 1600 Amphitheatre Parkway Mountain View, CA 94043 Attn: Custodian of Records Facsimile: 650-649-2939; 650-2fl9-3429 Re: Request for Preservation of Records Dear Google: I Pursuant to Title 18, United States Code. Section 2703 this letter is a. formal request for the preservation of all stored communications. records. and other evidence in iour iossession regarding the following email account pending ?trther legal process: (?the Account?) November 2009 to the present. other person. other than as necessary to comply with this request. Ifeemplianec with this request might result in a permanent or temporary termination of service to the Account, or otherwise alert any user of I the Account as to your actions to prescn'cthe information described below, please contact me as 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 electronic or other form, including information stored on backup media. if available: I. The contents of any communication or ?le stored by or for the Account and any associated accounts. and any information associated with these communications or ?les, och as the source and destination email addresses or 11' addresses. 2. All records and other lnfonnation relating to the Account and any associated accounts ineluding the following: a. subscriber names, user names, screen names. or other identities; JAN. l2.201l H0.23l3 P. 3/3 'mailing addresses, residential addresses, business addresses. e-mail addresses, and other contact information; length ofservice (including start date) and types of servi?o utilized: records of user activity for any connections mode to or ?oor the Account, including the date. time, length, and method of connections, data. transfer volume. user name, and source and destination lntemot Pretocol . telephone records, including local and long distance telephone connection records. caller identi?cation records. cellular site and sector information, GPS data. and cellular network identifying infomction (such as the IMSI, MSISDN, lMEl, MBID. or telephone or instrument number or other subscribe; number or identity, including' temporarily assigned network address; means and source ofpeyrnent for the Account (including any credit card or bank account numbers) and billing records; correspondence and other records ofeontac?t by any person or entity about the A Account, such as ?Help Desk" notes: and any other records or evidence relating to the Account. lfyou have questions regarding this request, please call me at 703 429- Sincerely, ATTORNEY or Attorney UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION am FEB --3 5c. CLERK - 5 INREAPPLICATION OF THE UNITED STATES OF AMERICA FOR MISC. N0. 10GB 793 AN ORDER PURSUANT TO ll?DM?2 18 U.S.C. 2703(d) Filed Under Seal To: John K. Roche, Esquire Perkins Coie LLP 700 13th St, N.W., Suite 600 Washington, DC, 20005-3960 PHONE: 202.434.1627 FAX: 202.654.9106 JRoche@Derkinscoie.com You are hereby noti?ed that on Wednesday, February 9, 2011, at 11:30 am, a hearing will be held before The Honorable Iva?n D. Davis, Magistrate Judge on the Fourth Floor at the U.S. District Court, Alexandria,'Virginia, on the Government?s MotiOn to Continue Hearing ?led on February 3, 2011; and Google, lne.?s Motion to Modify 2703(d) Order ?led on January 18, 2011. Executed on f5 (25? United States Attorney Assistant United States Attorney Justin W. Williams U.S. Attorney?s Building 2100 amieson Avenue Alexandria, VA 22314 Phone: 703-299-3700 Fax: 703-2993981 ATTACHMENT i THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIAZQH Jr}; 28 3: Sb Division strait us DISTRICT COURT ALEXAHDRIA. ?Ji??li?ii?x IN THE MATTER. OF THE 2703(d) ORDER Case No. 1:10oI379'3 AND 2703-(t) PRESERVATION REQUEST - RELATING TO GMAIL ACCOUNT - - RESPONSE OF THE UNITED STATES TO MOTION TO MODIFY 2703 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 the. subscriber of the-fl 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-iubscriber and his attorneys; and furtherTequestS" that-thluhseriheshe order to ?le an appropriate reSponSe. For the reasons set forth below, the United States opposes Google?s motion and requests that the Court?scurrent 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, 2611, the United . States does not oppose a modi?cation 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 Factual 8; Procedural Background On January 4, 2011, upon application ofthe United States pursuant to 18 use. 2703 this Court issued the Order, requiring Google to disclose certain non-content subscriber and transactional records for the-ccount. The contents of the subscriber?s communications Were not required. See Roche Decl., Ex. 1. The Order also. provided 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.? See id. Several weeks earlier, on December 14, 2010, Magistrate Judge had issued a, different order, also pursuant to 18 U.S.C. 2703 that required Twitter, Inc. to disclose similar categories of non-content business records for several Twitter accounts, including a Twitter account under the names:- See Roche Decl., Ex. 2. This order (the ?Tw 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. A?er learning that Twitter would ?le a motion to modi?r 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 ?nding it was in the best interest of the investigation to permit disclosure to its subscribers and customers, Magistrate Judge anted the government?s application to unseal the Twitter Order and authorized Twitter to disclose'it (?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 Goo gle asked the government to agree to modify the Order to allow Google to provide immediate notice of the Order to use-rid his legal representative. See J. Roche Dec]. ?516. 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.l 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 Deol. ?l 6. Google declined to agree to the government?s proposed modi?cation of the Order and instead ?led the instant motion on January 18, 2011. mm This Court should not modify its Order to permit Google to provide the-subscriber the-subscriber. and his attorneys. The Order should remain sealed at this time. The 'Order satis?es 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. Furthennore,.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 Gongle that ?the Order involve[d] a different investigation than the one underlying the Twitter Order.? Roche Dec]. ?116; 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. 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 Proneer Issued. A. The Order Is Proper Under 18 U.S.C. 27050:). As this Court hasalready concluded, the non-disclosure provision of the Order is appropriate under 18 U.S.C. 2705(b). Under 2705 the government may apply for an order commanding the recipient of a 2703 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 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? I (1) endangering the life or physical safety of an individual; (2) ?ight from prosecution; (3) destruction of or tampering with evidence; seriously jeopardizing an investigation or unduly delaying a tria 18 U.SZC. ?2705(b). The government?s Original application, which remains under seal, already provided this Court with reason to believe that noti?cation would have one or more of these adverse results. Based on this information, the Court decided that it was appropriate to include a non-disclosure provision in the Order. See Gov?t Ex Parts Submission, Ex. 1. The government?s application, without more, provided sufficient basis for the Court to conclude that notifying 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 11), further confirm that disclosing the Order will seriously jeopardize the investigation, Therefore, the non?disclosure provision in the Order is proper under 18 U.S.C. 2705 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 signi?cant free speech and other privilege issues,? Google Mot. at 10. ButGoogle does not explain what those issues are. First, Goo gle 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, Goo gle 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- 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 Order is proper, and neither the-subscriber nor Goo gle could mount a viable challenge, First Amendment or otherwise, to the Order: To begin with, even if meFubscriber 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. ?2704Cb), these remedies apply to legal pro'cess seeking the content of the subscrib er?s communications and do not apply to legal process for business records under 18 U.S.C. 2703(d), like the Order here?- Instead, 2703 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 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. 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 con?dence." 4 Branzburg v. Hayes, 408 U.S. 665, 682 2 Even if the subscriber 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 lent.r enforcement inquiry is legitimate and that the communications sought are relevant to 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 continued 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 [3 U.S.C. 2703(c)(3). Section 2703 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. 2103(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 Accordingly, a party who challenges a 2703 court order should be subjected to standards that are at least as stringent as those applied to a motion to quash a subpoena. (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 ?nnishing 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 Sham, 978 F.2d 850, 852 (4th Cir. 1992); Univ. of 12. E.E.O.C., 493 US. 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). lnthis case, even if the-subscriber 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 government?s decision to pursue the records described in the Order was also subject to judicial review by this Court, which concluded that it was proper to issue the Order because the government ?offered Speci?c 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 Dec1., Ex. 1; see also 18 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-subscriber. or anyone else. See United States v. Steelhammer, 539 F.2d 373, 376 (4th Cir. 1976) (Winter, 1., dissenting), adopted by the The government does not concede that the-ubscriber is a journalist. 7 court en banc, 561 F.2d 539, 540 (4th Cir. 1977) 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 the-subscriber to disclose his Google records himself, th- subscriber would not have a colorable First Amendment argument for quashing the Order. The-subscriber?s potential challenges to the Order are even weaker because of the Order?s limited sc0pe. The Order requires Google to disclose certain of its business. records about the- subscriber account, but it does not seek the content of any communication, attempt to control or direct the, content of the subscriber?s Speech, or impose direct burdens on any journalistic or academic activities in which the -subscriber may be engaging. See Roche Decl., Ex. 1; Branzburg, 408 US. at 691 (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 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 subscriber?s name and address, the IP addresses associated with the- subscriber?s logins to the account, and the email addresses of those with whom the subscriber has corresponded. See Roche Decl., Ex. 1; 18 U.S.C. 2703 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) (subscriber information); United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008) (source or destination addresses of email). As discussed above, even ifthe-ubscriber had standing to challenge the Order, he has no viable arguments for quashng 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 noti?ed 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 See 18 U.S.C. 2703(c)(3) governmental entity receiving records or information under this subsection is not required to provide notice to a subscriber or 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 discussed above, the Order was issued under 2703 (0) because it seeks only records and other information pertaining to th-ubscriber, not including the contents of communications. See Roche Decl., Ex. 1; 18 U.S.C. 2703(c)(1)(B) and (authorizing government to use a court order under 2703 to obtain the records described in the Order). Accordingly, the -subscriber is not entitled to notice of the Order from the government, from Google, or from anyone else. See SEC. v. Jerry T. O?Brien, Inc. 467 US. 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?). 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 9. g, In re Application of United States of America for an Order Pursuant to 18 US. C. 2 703(d) Directed to Cablevision Systems Corp, 158 F.Supp.2d 644, 648?49 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 ?nancialinstitutions); 18 U.S.C. 2511(2)(a)(ii) (prohibiting disclosure of wire interceptions); 3123 gd) (prohibiting disclosure of pen registers or trap and trace devices)). Indeed, 18 U.S.C. 270 was enacted almost twenty-five years ago, and to the requirements of the First Amendment. See Electronic Communications Privacy Act of 198 6, PL 201, 100 Stat. 1348 (1986). Furthermore, the government has already told Google that it will agree to seek modi?cation 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 ?perpetua or ?inde?nite? period of non-disclosure. Google Mot. at 2, 7, Accordingly, even if Google had challenged the non-disclosure provision based on its own-First Amendment rights, 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 Order1 Particularly When Unsealing the Twitter Order Already has Seriously eonardized 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 l, 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 unsealng 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 unsealing and disclosure of the Twitter Order, had the government known then what it does now, . it would not have voluntarily ?led the motion to authorize it. The Twitter Unsealing Order was premised on the Court?s ?nding 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 Twitter Order, including its estimation of the importance of the informatioh 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 11 nonvdisclosure order and sealing were no longer legally justi?ed. 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 remainjusti?ed 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 US. 471, 490 (1999) (quoting Wayte v. United States, 470 US. 598, 607?608 (1985)) (issues that fall within the scape of prosecutorial . discretion are ?particularly ill-suited to judicial review?); see also United States 12. Juvenile Male, 2010 WL 5158562 (4th Cir. 2010) (unpublished) (??he?Govemment's certi?cation that a substantial federal interest exists is generally regarded as a matter of prosecutorial discretion,_and deference?) (citing United States v. Juvenile Male 1, 86 F.3d 1314, 1319 (4th Cir.l996)); Hickman v. Taylor, 329 US. 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 particularizecl 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. Speci?cally, the government failed to anticipate the degree of damage that would be caused by the unsealing and disclosure of the Twitter Order:' (1) (2) 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 See Gov?t 'Ex. 1. One reason for sealing and ordering non-disclosure under Section 2705 in the Twitter (3) case, as well'as here, is. because it might cause suspects to change their patterns of behaviour, notify confederates or ?ee. Once the Twitter Order was unsealed, the Twitter account holder with the usemame-rmounced 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 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? apparently continued to use his Twitter account to receive Direct Messages until he had 13 (4) actual knowledge of the speci?c investigative steps taken to obtain transactional records from that account. This con?rms the government?s representations in its current application for non-disclosure and indicates that the user might be willing to destroy evidence or otherwise try to disrupt the ongoing investigation. Because ?of the disclosure of the Twitter Order, a public campaign commenced, pressuring providers to challenge non-disclosure orders to disclose compulsory process. On January 8, 2011, the Twitter account of -Weeted, ?Note that we can assume Go-ogle Facebook also have secret U.S. governinent subpoenas. They make no comment. Did they fold?" See Gov?t Ex. 3. On January 10, 201i, the Twitter account of _posted, ?This matter do es beg the question who else has gotten such court orders and whether other parties have silently complied with such orders. Hello Facebook? See Gov?t Ex: 4; see also Wikipedia, ?Twitter subpoena,? subpoena, Gov?t Ex. 5; P. Beaumont, guardian.co.uk, 8, 2011, 'us-subnoenas; http://techland .time.coni/201 1/ 01/ market?for-consumer?privagl (?The tech world is abuzz with a remarkable display of backbone by Twitter in the-case. It deserves wider notice? . . . ?Twitter stalled, ?ghting 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 noti?ed its users and promised to hand over nothing if they ?led a motion to quash within ten days. That is simply the gold standard of customer protection, 14 (5) enabling courts to balance the legitimate needs of prosecutors with the civil liberties of their targets. It almost never happens?); 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?); the-secret-s_ub_ml. Because the Twitter Order was posted on the Internet, without redaction, an employee at the US. Attorney?s Of?ce was subjected to harassment over the IJnternet, including the 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. 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 con?rmed 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 alterin their modes of communication to evade future investigative efforts. The disclosure and unsealng 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. Rainer, 934 F.Supp. 721, 723 1996) (citing Douglas Oil Co. v. Petrol Stops Northwest, 441 US. 211, 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 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 eopardizing 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 'ot behaviofto avoid?clEtEE?mT 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 justi?ed, and disclosure is not in the best interest of the investigation.6 To the contrary", if the government knew on Jannary 4, 2011 what it does now, it would not have moved to unseal and authorize disclosure of the Twitter Order. 5 In this case, the government has offered to selfaimpose 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 signi?cantly je0pardize the investigation. Respectfully Submitted, By: Assistant United States Attorney 17 CERTIFICATE OF SERVICE Ihereby certify that a true and correct copy of the foregoing pleading was delivered on this 28th day of Januaiy 2011 to the Clerk?s Of?ce and that service will be made on the following individuals by electronic mail and otherwise: John K. Roche, Esquire Perkins Coie 700 13th St, N.W., Suite 600 Washington, DC. 20005-3960 PHONE: 202.434.1627 FAX: 202.654.9106 Assistant United States Attorney 18 GOVERNMENT EXHIBIT 1 I DOJ subpoenas Twitterrecords of several WildLeaks Page 1 of 7 Latest Stories 0 Hot epics 0 Sections 32; Blogs a 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 01" .several volunteer By Glenn Greenwald AP U.S. Attorney General Eric Holder. 0 Blog: 0 Glenn Greenwald 0 Topics: 0 WikiLeaks 1 11 DOJ subpoenas Twitter records of several 51: Page 2 of 7 (updated below Update IT Update Ell) Last night, a former- volunteer and current member of the _Parliament announced (on Twitter) that she had been noti?ed by Twitter that the DOJ had served a? Subpoena demanding information "about all my tweets and more since November 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 including and It also seeks the same information for ?and for -Twitter account. The information demanded by the is sweepng 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 1, 2009, through the present. A egg)! 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 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 kept secret from the targets of the Order. It gave Twitter three days to respond and barred the company ?om 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 me. Quinn ?28/2011 subpoenas Twitterrecords of several- Page 3 of 7 old 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 an one having to do with_ Previously, as well as supporter_ both American citizens - - had their laptops and other electronic equipment seized at the border by Homeland Security agents when attempting to resenter the U.S. UPDATE: Three other points: ?rst, the three named producers of the "Collateral Murder" video depicting and commenting on the U.S. Apache lico ter attack on journalists and civilians in Baghdad -- were H, and ?me name. is misspelled in the DOJ's documents). Since has had no connection to WikiLeaks for i_ st, anti ally Overtime, 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 Sub oena or that they did request it but the court denied it (then again, neither are names of Twitter accounts, and the company has no way of knowng 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 H: It?s worth recalling andl 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 showingwhat the U.S. Government is doing: something investigative journalists, by de?nition, do all the time. LHm-II-rnnk;13 nr?nn 1 I D-OJ subpoenas Twitter records of several Page 4 of 7 And. the key question now is this: did other Internet and social network companies (Google, Faeebooh, etc.) receive similar Orders and then quietly comply? It?s dif?cult to imagine why the 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 Interior Minister, Ogmundur Jonasson, described the DOJ's efforts to obtain the Twitter information of a_ I as grave and odd.? While suggesting some criticisms of he added: "if we manage to make government traIISparent 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 of a ., .. as part of an effort to intimidate anyone supporting ?and'to criminalize journalism that exposes what the US. Government does is one of the most extreme acts yet in the Obama administration's alwaysesoalating 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 "mo st transparent administration in history" and to "Protect Whistleblowers." Share This 0 View 715 Comments 0 Twitter Else 0 Stumbleupon Reddit Linkage 0 Email h?n Hm ohile 1/ 01/ 07/twitter/ in. .. 1/2 8/201 1 ?0.14. 2010 140.2530 P. 1/4 US. Department of Justice United States Attorney Eastern DiSfi?Z'Cf of Virginia J?m?u W. Williams Umer Sratasri?omey?e?uiidmg 2100 Jamieson Avenue Alemmb'ia, Virginia 22314-5794 (703) 299-3700 TRANSMIS SIGN COVER, PAGE DATE: i?lilLii IO miter em ?Timi- PHONE: TO 99 qqgg? I [mm i? PHONE 7010.: 705 - . FAX 140.: . 703 NUMBER OF PAGES: *Not Including Cover Page* Level of Transmitted Information: . Non-Sensitive Informatioil Sensitive But Unclassi?ed (SBU) Limited Of?cial Use (LOU) Grand ury Infermation El Tax Informatitm Law Enforcement Information Victim Witness Information CONTENTS: Infonnatien mashed tethis cover sheet is sensitive US. Government Property. Ifyou are not the intended recipient of this information, disclowre, reproduntien, dish'ihutien, or use of this infonnation is preliibiied. I?iease dutify ?if 5 office immediately at the Wave number to arrange for proper distribution. -. . N0.2530 P. 2/4 UNITED STATES DISTRICT Coder roe TEE EASTERN DISTRICT OF vreonon ALEXANDRIA DIVISION IN RE APPLICATION OF THE UNITED STATES OF AMERICA FOR MISC. NO. 10613793 AN ORDER PURSUANT TO 18 U.S.C.. 2703((1) . Filed Under Seal This matter having come before the Court persuant to an application under Title 18, United States Code, Section 2703, which application requests the issuance of an order under Title 13, United States Code, Section 27 03 directing Witter, 1110., an electronic communications service provider and/or a remote computing service?located in San Francisco, California, to disclose certain records and other infonnation, as set forth in Attachment A to this Order, the Court ?nds that the applicant has offered speci?c and articulable facts showing that there are reasonable grounds to believe that thereeords or other information sought are relevant and 2 material to an ongoing criminal investigation. IT APPEARING that the information sought is relevant and material to on 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 jeopardine the - investigation; I IT IS ORDERED-pinsuant to Title 18, United States Code, Section 2703 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. N0.2530 P. 3/4 I'i' IS FURTHER ORDERED that the Clerk oftho Court shall provide the United States Attorney'e Of?ce with three (3) certi?ed copies of this application and Outer. 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 theinvesti gaiion, to the listed subscriber or to any other person, unless and until authorized to do so by the Court. ted States Magistrate Date DtU.l4. 2010 .5 [10.2530 P. 4/4 ATTACHMENT A, You are to provide the foliowin information, it? available, preferably as data ?les on electronic media, or email Gt Glhel?i?ti?e b? f??sim?? ?9 A. The following cu stomes or subscriber account information for each account registered to or assc ciated with for the time period November 1, 20 09 to present: 1. subscriber names, user names, screen names, or other identities; 2. mailing addresses, residential addresses, baseless addresses, email addresses, and other contact connection records, or records of session times and durations; 4. length of service (including start date) and types of service utilized; 5. telephone or insinunent number or other subscriber number or identity, including any temporarily assigned network address; and means and source of payment for such service (inciuding any Credit card 01' bank account number) and billing records. El. All records and other information relating to the account(s) and time period in Part A, including; 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); non?content information associated with the contents of any 0r ?le 3. stored by or IP addresses. . correspondence and notes of records related to the account(s). GOVERNMENT EXHIBIT 2 amine: .r :Ihiehhpip?aHSum: lfig'fi'l'silfd in: E?ir?iqs W315 ?nun?.1. - -- a" a Ewing?s; I rI.i?'f?tt?ti?g. ., . .v 0.: . 15}Ewh?ag_ 1va . . . . - . As ?zii?zdzg ?tw-l?lim? Nah Mal,- _nuhm.7-1 51.993153?? Login Join Twitter! Do not send me Direct Messages My twitter account I contents have apparently been invited to the (presumably? a-m L555 r'gr .413 .apn Ramada-i by :7 [nam?e ?2011Twitter AboutUs Contact Blog Status Resources API Business Help Jobs Terms .- ..-.-.- . aha-u; 5' tween-'1} f3: a: - GOVERNMENT EXHIBIT 3 .rm? warp .- die-IL] a. Ef?e-Hz: 95}: Himm- E'T?'l?tlr'r ?i?rfl?lmeah: yes-iiire} a; these we: Note that we can assume Google"& Facebook also have secret US government subpeonas. They make no wwmentbidihey f0] d? 12 2% AM Jan 5331 via. web Rammed by 100+ pecan Business Heip Jobs Term 117.11;- 5? inf. ?2011 Blog Status Resources 1.39%. 3124-32 GOVERNMENT EXHIBIT 4 . . Page 2 o-fs trying to save the wounded, and you wake up the next day a nefarious left-wing tenor activist-adjudant secretly spending millions on web hosting. I wonder what i'll be tomorrow. January 12th,2_01l - 02$? Please share: Er] I gr} eff: ?35. On the Twitter court order Dear journalists. -Yet again I am being inundated with your e-mails. text messages. phone calls 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 with the same 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 droughts just once on this blog. I realize you may "just have a few questions? or desperately need my voice or footage of my talking head. but l'ii most likely still point you to this text. it's nothing personal. What happened? On December 14 of 201 o. the US Department of .itrstice has had a court order Issued to force Twitter is send them various bits of Intern-ration my Twitter account as well as of the twitter accounts of - r' previous biog post. i have erroneously referred to this order about various aspects of this order can be round Leg. regarding .. . In my I not a its larvyer. but some apparently pro ourr oughis u. asasubpoe. rc i found out about the order because ?l'witter did the right thing and successfully fought for a court ole; so they were able to tell us. The email} from twitter also says we have ten days to announce that we?re ?ghting this in court or otherwise they'll give the DOJ the requested information. t'il write more about Twitter?s rote soon. apparently someone thinks that whatever records has regarding my account are 'relevant and material to an ongoing criminal investigation'. It is not clear from the documents that have presently been made pubiiowhat my role in this apparent investigation is. So what does Twitter have on me? Basically my tweets. which are publicly accessible, and the lP?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 biog. 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 suoh court orders and whether other parties have silently compiled with such orders. Hello Facebook'r' Googie? Why did this happen? i don't know. But from Ute list of names we can speculate this has something to do with the release oi the 'Collstarai Murder video in split of 2010. That video. shot from a US helicopter over Baghdad. shelve the shooting oi a Reuters photographer and subseguentiy oi the civilians that try to rescue him. i travelled to ioeland to help out with the preparations for disseminating this video. i feel. probably like most people that saw the video. that shot-ring that The entire process of releasing ls ridiculously well?documented as Ratii Khatchadourian. a journalist for The New Yorker. was with us the whole _lima. I recommend his edicts for an in-deplh look at whathappened. For a broader look at my life over the past year or so. I recommend reading a Rnynoig ggeeclg I delivered in Berlin a law weeks ago. - So what am i 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. Sol am talking to lawyers. trying to better understand what is going on and I am weighing my options. Frequont readers of this biog will likely be the ?rst to know if I have something new to say. January 10th. 1 Please share: .. {if 09 comments Ef?e are 1:7: v: the: US DOJ wants mv twitter account info It's a warm and fuzzy feeling to know that somewhere. far away. people are thinking about you. Last night] received this rather interesting e?mail from twitter: Kessel. 11:20 am (PST): Dear Twitter User. We are writing to inform you that Twitter has received legal process requosting information regarding your Twitter acoount.. A. copy of the legal procass is attached. The legal process requires Twitter to produce dooumenls related to your account. Please be advised that 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 ?led 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 or the ACLU . 1/27/2011 GOVERNMENT EXHIBIT 5 Twitter subpoena Wilripedia, the free I Page 1 of 8 Twitter subpoena From Wikipedia, the free 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 of While only ?ve 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 [11mm 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 appealmm Subsequent reactions included the discussion of secret subpoenas in the U.S., criticism of the particular subpoena issued,m [819] an immediate,[4] temporaryuo] 0.5 percent reduction in the number of Twitter followers of and calls for the recognition and emulation of Twitter's stancem] Contents I I Chronology I 1.1 Subpoena issued with accompanying gag order I 1.2 Appeal and publication of the subpoena I 1.3 Users' opposition to the subpoena I 2 Subsequent reactions I 3 See also I 4 References I 5 External links btto l/ 27/ 20 1 Twitter subpoena Wikipedia, the free Page 2 of 8 Chrenelngy 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 Tom Corbett was elected as governor of it was revealed that he had issued a subpoena against Twitter to demand personal information on two users who criticised hin1.[.12] The Philadelphia Inquirer claimed that the subpoena was issued because of the two users' criticisms of Corbettm] 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 subpoenam] The subpoena was "dropped" by the Attorney-General's of?cem] 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 . the existence of the subpoena without prior authorization. Issued in relation to oin investigations of named were 0 Hm requisite information included their user names, a esses, ep one numbers, bank account details, and credit card numbersm _1awyer Mark Stephens argued thatm since the applicatibn 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 of- Twitter w? 4 . alleged it had evidence suggesting similar subpoenas had been issued to Google and Facebook,[14] and lawyer Mark Stephens said that similar information had been sought not only from Google and Facebook but ?amnm?c. thhn?na 1/77/70] 1 Twitter subpoena - Wilriipedia, the free Page 3 of 8 also ?om EBay's Skype unitml-called for Google and Facebook to unseal the subpoenas if they had received them,[14] but no spokespeople were available to commentm Appeal and publication of the subpoena Twitter applied to notify its users of the issue of the subpoenal?n?m] On 5 January 2011 it was noti?ed of success in its appeal,[6] allowing the company to inform its users and to ive them ten days in turn in which to appealm] After Twitter informed she released a message via the micro? blogging site that the govermnent wants to know about all my tweets and more since november 2009. Do they realize I am a member of parliament in 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 Users? opposition to the subpoena Among those speci?cally named by the subpoena, _17] all stated that they would oppose it. Lawyer Aden Fine of the ACLU participated in defending those subpoenaedml Hstated that she had contacted the Icelandic Minister of Justice and uman and commented that the government is trying to criminalize whistleblowing and publication of whistleblowing Subsequent reactions The New York imes observed that the US government issues. over ?fty thousand such requests for information each year, typically accompanied by the so?called gag order,m linking the case to how 1986 Privacy Law is Outrun by the Nicholas Merrill, the ?rst to ?le a constitutional I 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 Wm- Hen wikinediaorg/wiki/Twitter subpoena 1/27/2011 Twitter subpoena Wikipedia, the free Page 4 of 8 people" Lawmakers in Iceland criticised the subpoena as an instance of _lawyer,-1Vlark Stephens, interpreted the subpoena as a sign that US authorities were deSperate to develop a criminal case against - 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 Juan Cole, a historian of the modern Middle East and South Asia, described the subpoena as "a ?shing expedition and legally fishy in that regard? that "is being pursued by the Obama administration out of terror that further massive leaks will be made He contrasted the legal action against people. associated with Him the lack of legal actions against "Bush administration 0 ?icia s, 5110 as Dick Cheney, who ordered people tortured [and] have not been in any way inconvenienced by Obama and Cole suggested that users of social media should shift ??om 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 actionm and grew to 650,000 as of 13 January 2011110] 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 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 govermnen ".1241 Wired staff writer Ryan Singel said that Twitter's "action in asking for the gag order to be overturned sets a new um urilri?np?in nro/wiki/Twitter subpoena 1/27/2011 Twitter subpoena - Wikipedia, the free - 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" See also a Foreign Intelligence SurveillanCe Act US Act of 1978, preventing spying on US citizens without a court order . Electronic Communications Privacy Act US Act of 1986, before widespread email and cellphone usage PATRIOT Act - US Act of 2001, introducing counter-terrorism measures I American Civil Liberties Union v. Ashcroft (2004) - ?rst constitutional challenge of US PATRIOT Act national security letter provisions I InfOrmation sensitivity References 1. A a a Larson, Erik (10 January 2011). Twitter Subpoena on WikiLeaks is Harassment, Lawyer Sa 3? .Bloomberg. omfnews/201 1?0 1 -1 Retrieved 10 January 2011. 2. A a a "Twitter Subpoena" (PDF). Salon. Archived ?rom the original . 1f01/07/twitter/subpoe: on 11 January 2011. Retrieved 10 January 2011. 3. A a Whittaker, Zack (8 January 2011). Subpoenas Wikileaks Tweets, and Why This Could Affect You" . Archived from the original on 11 January 2011. Retrieved 12 January 2011. 4. a 6 Staff writer (10 January 2011). Turns to Twitter as WildLeaks Chase Continues" . The Sydney Morning Herald. Archived from the original gy/ techno lo wilcileaks?chase?continues?201 10109~19jy5.htm1) on 1. 1 January 201 1. Retrieved 1 1 anuary 2011 . nan/mug [Ti1riH?n?r' ?277/201 1 Twitter subpoena ?erkipedia, the free 5. 6. Page 6 of 8 A a Sonne, Paul (10 January 2011). Asks Twitter for Data" article/SB 100014-24052?7487 04482704576072081785 . The Walt Street Journai. Retrieved 10 January 2011. A a ?Twitter Unsealing Order" (PDF). m. Archived from the original (bray/hopgonggrijpmpJanuary 2011. Retrieved 11 anuary 2011. A a (registration required) Cohen, Noam (9 January 2011). "Twitter Shines a Spotlight on Secret F.B.I. Subpoenas" partner=rss&emc=rss) . The New York Times. Retrieved 10 January 2011. . A ?1 Connor, Richard January 2011). "Iceland Blasts US Demand for Lawmaker's Details in ?robe? world?e/dwiarticlei' 0,,1475 82 0.11tm1) . Deutsche Welle. Retrieved 10 January 2011. A a Rushe, Dominic (8 anuai 2011). "Icelandic MP Fights US Demand for Her Twitter Account Details Brands Efforts by US Justice Department To Access Her Private Information 1Completely Unacceptable? 1/jan/08/us-twitter-hand? 10. ll. 12. subpoena wildleaks?rnessages. Retrieved 10 January 2011. A a "Get short, timeiy messages from .Twitter. 13 January 20 . I rived from the original on 13 January 2011. Retrieved 13 January 2011. A a Singel, Ryan (10 January 2011). "Twitter's Response to Subpoena Should Be the Industry Standar . Wired. Archived from the original on 11 January 2011. Retrieved 11 January 2011. A a Staff writer (20 May 2010). "Corbett Subpoenas Twitter for Critics' Names" . The Philadelphia Inquirer. Archived from the original on 11 January 2011. Retrieved 12 January 2011. 1/27/2011 Twitter subpoena - Wilripedia, the free 13.. 14-. 15. 16. 18. 19. 20. 1-1.1..-. nr-n-luriL-i I'T'uriH-pr onTn-nnp?nq Page 7 of 8 A a Kravets, David (21 May 2010). AG Dropping Twitter Subpoena" . Wired. Archived from the original on 11 anuary 201 1 . Retrieved 12 January 2011. . A a Yost, Pete; Satter, Raphael G. (8 January 2011). ubpoenas Spill Out into Public Realm" . Associated Press (via Toronto Star). Archived from the ori inal A out?into?publio-reahn) on 11 January 2011. Retrieved 12 January 2011. A ?7 Greenwald, Glenn. Subpoenas Twitter Records of Several Volunteers" . Salon. Archived from the original g1enn_greenwa1d/201 1/ 01/ 07/twitter) on 11 January 2011. Retrieved 10 January 201 1. Beaumont, Peter (8 January Demands Goo gle and Facebook Unseal US Subpoenas" . The Guardian. htth/Www. guardiancouldrnedia?Ol l/j anft) 8111s-twitter?hand?icelandic- Hmessages. Retrieved 10 January 2011. 17. osenball, Mark (11 January 2011). Activists May Seek To Quash Demand for Does" . Beaters. Archived from the original 1011 1) on 1 1 January 2011. Retrieved 12 January 2011. "1986 Privacy Law is Outrun by the Web? 1/0 1/10I'techno logy! 1 Oprivaey .htrn 1? partner=rss&emc=rss) . The New York Times. partner=rss&e1nc=rss. Retrieved 13 January 2011. Morin, Joseph er al. (8 January 2011). ?Iceland Protests over US Probe of Lawmaker? . The Financial Times. 0 0 1 44feab49a.ht1nl# axazl Ad qdyPId. RetrieVed 1 0 January 20 1 1 . ?3 Cole, Juan (8 January 2011). Subpoenas Twitter Account of Volunteer and Now . Juan Cole. Archived from the original subpoenas-twittenaccount-of on 1177mm Twitter subpoena Wilripedia, the free Page 8 of 8 11 January 2011. Retrieved 12 January 201 1. - 21- Sherington, Greg (11 January 2011). Subpoena of Iceland Twitter Accounts? . Sydney Law School. http:/l sydneyeduau/news! law/ Retrieved 13 January 2011. 22. A "Anonymous urges global protests" . 12191486) . BBC. Retrieved 17 January 2011. 23. Calls on Commission to clarify issue of US Government subpoenas" Wikileaks?subpoenas-3 6732/) . Alliance of Liberals and Democrats for Europe. subpoenas-3 6732/. Retrieved 17 January 2011. a 24. "Social Media and Law Enforcement: Who GetsWhat Data and When?" . Electronic Frontier Foundation. Weft" . org/deep links1201 1/0 1/socia1?me die?and-law?enforcement?who- gets-what. Retrieved 22 January 2011. External links ll Twitter Help Center: Guidelines for Law Enforcement enforcement) Retrieved ?om Categories: Privacy of telecommunications I Twitter WikiLeaks I This page was last modi?ed on 26 January 2011 at 21:04. I TeXt is available under the Creative Commons Attribution?ShareAlike License; additional terms may apply. SeeTerms of Use for details. Wikipedia? is a registered trademark of the Wikimedia Foundation, Inc., a non?pro?t organization. I nwiLm?n?n 1 1 GOVERNMENT EXHIBIT 6 From: Rent: You guys are ?le-king nazis trying to controll the whole fucking world. Well guess what. WE DO NOT FORGIVE. WE DO NOT FORGET. - EXPECT US. 1L IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DMSION JAN ?8 912: 53 In RE menu onnan ANEB 270301) i Misc. No. COURT PRESERVATION REQUEST EINIA no omen accounr FILED UNDER SEAL NOTICE OF HEARING PLEASE TAKE NOTICE that, by agreement with the United States Attorney's Of?ce and subject to consultation with chambers, on February 2, 2011 at 9:00 a.rn., or as soon thereafter as possible, Google Inc. bring on for hearing its Motion to Modify 270301) Order for Purpose er Providing Notice to User. This motion will be heard in the Albert Iv. Bryan United States Courthouse, 401 Courthouse Square, Alexandria, VA 22314. DATED this 18th day of January, 2011. Respectfully 5 By Io {Eeehe (veneeasert) LLP 700 13th St., N.W., Suite 600 Washington, DC. 20005-3960 Phone: 202?434-1627 Fax: 202-654-9106 JRoehe@perkinscoie.eom Albert Gidari (pro hac vice pending) Perkins Coie LLP 1201 Third Avenue, Suite 4800 Seattle, Washington 98101 Phone: 206.3 59.8000 Fax: 206.359.9000 AGidari@perltinscoie.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 follow?ng persons: . Assistant United States Attorney United States Attorney?s O?ice Eastern District of Virginia Justin W. Williams United States Attorney?s Building . 2100 Jamieson Avenue Alexandria, VA 22314-5794 -faesimile) Attorneys for the United States BY John. K. (V 68594) 5 C01 LP 700 13th St., N.W., Suite 600 Washington, DC. 20005-3960 Phone: 202-434-1627 Fax: 7119?6543106 JRoehe@perkinseoie.com Attomeys for Google Inc. ATTACHMENT IN THE UNITED STATES DISTRICT COIJRT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION 35 ORDERAND 2703(1) Misc. No. ,IoGJmm FEB 3 PRESERVATION REQUEST RELATING - . mm To ACCOUNT - FILED GOOGLE REPLY IN SUPPORT OF ITS MOTION TO MODIFY 2703 ORDER FOR PURPOSE OF PROVIDING ACCOUNT HOLDER Google Inc. (?Google?) hereby submits this Reply in Support of its Motion to Modify 2703 Order for Purpose of Providing Notice to Account Holder. The government admits in its response brief that the demand at issue here (the ?Order?)' and the unsealed Twitter Order2 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 Goo gle accounts. These facts alone damonsnate fifth? Order to mnemm?th?enra place or to remain sealed now. Moreover, rather than demonstrating how unsealing the Order will harm its well? puhlicized 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. See Declaration of John K. Roche, Ex. 1 (?Roche 21d 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 le? to wonder why the I government agreed to unseal the Twitter Order in the ?rst place in order to allow those users an opportunity to ?le their objections. Indeed, the Twitter use-Jay have already ?led an opposition to the Twitter Order with this Court. lfhe or she has, it would certainly be incongruous for thisCourt to hear those objections 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 speci?cally ask that the government advise the Court whether such objections have been ?led 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. ARGUMENT A. The Government?s Response Con?rms 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 inscrutany claims that the Order must remain sealed because it involves ?a different sage? than the Twitter Order. - See Govermnent Response, at 3 see also id. at 13. This Opaque rationale for re?rsing 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 grand jury con?dentiality. See Ooogle?s Motion, at 9. Speci?cally, the Wildleaks investigation and the government?s interest in- electronic communications are already a well- I publicized matter of public record. McHan v. CIR, 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 1 138, 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, 1137 11.6 (4th Cir. 1996). The government claims thatunsealing the Order may result in ?fwitness 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 de?cient 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 ink its brief, the Twitter user-1d other targets of the investigation are already working under the assumption that their Goo gle 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 . . . See Government Response, at 13. This argument also fails because if - is a ?ight risk, the widespread media coverage of the Twitter Order would have already presumably given him or her and any err-conspirators all the notice they need to start packing their bags, regardless of whether Twitter?s- and 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 thesame 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 identi?ers 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 the Order to remain sealed. B. The Court Should Grant- the Opportunity to Assess the Legality of the Order Google understands that Twitter?s Iser and the other users affected by the Twitter Order were granted a certain period of time in which to ?le their Opposition to the Twitter Order. See Government Exhibit The government should disclose whether or not such ?lings have been made. If Twitter?s-lser did indeed ?le an opposition brief, it would be logical to assume there is an excellent chance that Google? 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 th-Twitter account has ?led an opposition with this Court to the Twitter Order. If the user has, Google respectfully submits that the Court should not collaterally prejudge the merits of that opposition by accepting the government?s assertions that any arguments raised. by Google- in response to the Order ?would be meritless.? See Government Response, at 6. -s arguments are meritless, then the government has nothing to fear. On the other hand, 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 -f the Order at the same time Twitter?s - may be asserting his or her rights in regard to the materially identical Twitter Order seems unfair to the user. i Ind Geog-1e is not privy to all the orders that may have been issued to all the providers of services to user ut 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. 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. a the government has seen ?t 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 .s 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 which-feels he or she is entitled. -might assert that the Order?s demand for ?the source and destination email addresses and IP_addresses? for commrmications in his or her account will reveal con?dential 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 -nay wish to raise before this Court. In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 1164 (D.C. Cir. 2006) (T ate], 1., Concurring) (the Supreme Court?s Branzburg decision ?places limits on grandjury 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, Scrimon v. Enterprise Recovery Systems, Inn, 579 F.3d 78?, 1'91 11.! [7th Cir. 2009) by Chinese dissidents, journalists, mathematicians and startup company technologists. from the US, Taiwan, Europe, Australia and South A?ica,? Wikiieahs styles itself as uncensorableverslou oi? Wilcipcdia for mtraceabie mass document leaking and analysis.? voic?ealrs. org;f wild! Wiicileaks: About [last visited July 16, 2009).? Adam L. Peuenherg. res, He ?3 a Jownah?sr, Too, Washington Post, Jan. 30, 2011, dyofcontentlarticle??l 1f 01i23fAR201 10 128 06360.!1tml (?Based on the wording of many of these [press shield] statutes, Assange ?ts the de?nition of a journalist, and what WildLeaks does quali?es as journalism?) (last visited on Jan. 30, 2011); US sofdiers can he demoralized by WtkiLeoks docs: Marrell, Daily Pak Banker, Oct. 25, 2010, 2010 WLNR 2135601? (describing Wikileaks as working with ?a group run by academics"); Activists targeted as secrets exposed, Australian, Apr. 12, 2010, 2010 WLNR 7507443 (describing Wikileaks as consisting of ?computer programmers, academics and activists?). 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, 25 (2d Cir. 1984) (?Surely the application of a scholar?s privilege, it exists, requires athreshold 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 con?dentiality to various sources to conduct the study, and of the fact that the disclosure requested by the subpoena will seriously impinge upon that con?dentiality?); US. v. Doe, 460 F.2d 328, 334 (1 st Cir. 1072) (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 o?ictals or other (emphasis added). Conversely-nay simply be an independent party who has voiced support for Wik?eaks. If so, that activity is at the core of free speech and is certainly entitled-to protection. Gentile v. State Bar of Nevada, 501 US. 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- not .Google or the government is in the best position to assess the propriety of any legal process related to the- Gmail account, and the Court should have the opportunity to hear the objections. In Jury Subpbena, 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?). C. I The Order is :1 Prior Restraint on Google?s Right to Free Speech Finally, while arguments raised for the ?rst time in reply are generally not censidered, Google must correct'the government?s erroneous assertion that ?Goo gle has no viable First Amendment argument to make on its own behalf.? See Government Response, at 6. 0n the contrary, the non?disclosure provision in the Order certainly prevents Goo gle ?om communicating with its user and ?is fairly characterized as a regulation of pure speec Barmr'cki 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, Google, is a corporate entity. First Na: '1 Bank of Boston v. Bello?i, 435 US. 765, 777 (1973) (?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 Cir. I 2001). Accordingly, such restraints are subject to the most demanding scrutiny. In re Sealing andNon?Disclosure 0fPen/Trap/2703(d) Orders, 56?. F. Supp. 2d 876, 881-82 (SD. Tex. 2008) (?Prohibiting a service provider ?om disclosing the existence of the penltrap or the investigation means that the ?rst-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 While Google certainly could have made its own First Amendment arguments, and this Court certainly may consider them on its own, the point of Goo gle?s motion was to ensure that its user had the opportunity to assert such rights. 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 de?ned by 18 U.S.C. 2705(a)(2). Goo gle 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 -electronic 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 justi?ed under these highly unique and unusual circumstances. II. For the reasons stated here and in Google?s motion, Google respect?rlly requests that the Court grant its motion and modify the Order pursuant to the terms of Google?s proposed order. DATED this '1 St day of February, 2011. '1'th 13th St., .W., Suite 600 Washington, DC. 20005-3960 Phone: 202?434-1621 Fax: 202-654-9106 JRoche@perkinscoie.com Albert Gidari (pro hat: vice pending) Perkins Coie LLP 1201 Third Avenue, Suite 4800 Seattle, Washington 98101 Phone: 206.359.8000 Fax: 206.359.9000 Attorneys for Google Inc. CERTIFICATE OF SERVICE IAhereby certify that on this day of February, 2011, the foregoing document was sent via hand delivery and email to the following persons: Assistant U?ited States Attorney United States Attorney?s Of?ce Eastern District of Virginia . Justin W. Williams United States Attorney?s uilding 2100 Jamieson Avenue Alexandria, VA 22314-5794 Attorneys for the United States Fax: 202-654-9106 JRoche@perkioscoie.oom Attorneys for Goo gle Inc. 10 ATTACHMENT THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Z?ll FEB -3 A n. 53 CLERK US DISTRICT CUU ALEXANDRIA. Alexandria Division IN THE MATTER OF THE 2703(d) ORDER Case NO. Inocmss AND 2703a) PRESERVATION REQUEST RELATING TO GMAIL ACCOUNT 1 MOTION TO CONTINUE HEARING - The United States by and through ?United States Attorney, and - - 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 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 ?prejudge? any free speech or privilege objections that Google?s user may wish to - the account holder in this case has already ?led 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. In its reply, Google asked ?that the government advise the Court whether such objections have "been ?led 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 ?led by those users. On December 14, 2010, Magistrate Judge -issued 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 - 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 adepted Twitter?s legal strategy, both by ?ling its own motion to provide its user with the opportunity to contest the Google Order, and, within its ?lings, 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 is 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, To a considerable extent Google has argued that, as Twitter goes, so goes Google. See Goo gle Reply at 5-7. In the event Magistrate Judge? 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 - 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. Friday, February 4, 2011. Therefore the United States requests this Court to continue the hearing scheduled Respectfully Submitted, Assistant United States Attorney 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 Of?ce 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, DC. 20005-3960 PHONE: 202.434.1627 FAX: 202.654.9106 E-MAIL: .THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA . . . . -3 1'57 '21 08 Alexandria u-?ims?tmer IJIRGI IN THE MATTER OF THE 2703(d) ORDER Case NO. 3793 AND 2703(r) PRESERVATION REQUEST RELATING To GMAIL ACCOUNT ?'13 '2 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 ?nding 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 pr0posed order was delivered on this 3rd day of February 2011 to the Clerk?s Of?ce 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, 20005?3960 PHONE: 202.434.1627 FAX: 202.654.9106 JRoche@ner1dnscoie.com Assistant United States Attorney ATTACHMENT IL. UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division cm??g?g?sm IN RE 2703(d) ORDER AND 2703a), PRESERVATION TO GMAIL ACCOUT Misc. No. 10613793 FILED UNDER SEAL ORDER FOR REASONS stated ?'om'the bench and in ascord with speci?c rulings and instructions thereto; it is hereby ORDERED that Goo gle?s Motion to Modify 2703 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. Inthat regard, it is further I I ORDERED that Google is authorized to provide noti?cation of this Court?s 2703 - emu-user- ofprovidlng to the United States government the information requested in said Order, unless the government ?les a motion for an extension of that non-noti?cation period; it is further ORDERED that the government may request an extension of the non-noti?cation period for a maximum. of sixty (60) days. A TRUE COPY, TESTE: CLERK. U.S. DISTRICT COURT 'r I 1" The Clerk is directed to ?le 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 Hamlets My Alexandria, Virginia ATTACHMENT i FIL IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA .. ALEXANDRIADIVISIQN.- Z?ll FEB 3: 38 Misc.No!3 PRESERVATION REQ TING To GMAILACCOUNT FILED UNDER SEAL GOOGLE OBJECT IONS T0 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.l 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 n. services 'eommunTc?ated and whidhEn?iputers to do so. The Google Ornail user A - - - is the subject of the demand at issue here (the Because of the already public nature of the Wildleaks investigation, and the fact that a nearly identical order to Twitter involving the same account identi?er- had been unsealed by this Court in the same See, Scott Shane and John E. Bums, as. Subpoenas I'witter Over MHLeaks Supporters, NY. Times, Jan. 3, 201 I, 1/0 llOQlworld/OQwikihtml (last visited Jan. 13, 2011); Anthony Beadle, US. orders Witter to handover Wikileakv records, Renters, Ian. 8, 201 l, {last visited Jan. 14, 2011}; Ravi Somaiya, Release on Bar? of Wikr?Leels Founder 1's Delayed by Appeal, NH. Times, Dec. 14, 2-310, availabie or waorlda?eurcpel {last visited Jan. 3, 20] Assange attorney: Secret grandjm}? meeting in Virginia on CNN Justice, Dec. 13, 2011], 10-12- {last visited Ian. 3, 2011); Dan Goodin, Grantiij meets to decide ?u?e of WikiLeakrjbunden The Register, Dec. l3, 20m, available at 12/131assange _grand _jury/ (last visited an. 3, 2011). - 2 See Declaration of John K. Roche, Ex. 1 (?Roche Grand Jury proceeding (?Twitter Google ?led a motion to modiiy the Order. Google?s .__mntion.reguested thatitbe permitted to give. notice. of the Order to. the Gmail user and the. user?s . .. attorney so they would have a meaning?rl opportunity to contest the request. Shortly after Google ?led its motion, the user identi?ed in the Twitter Order ?led his own motion to vacate the Twitter Order.4 That motion was unsealed by this Court and posted on the lntemet 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 Googleis request to provide immediate notice of the Order to its user.6 Instead, Magistrate Judge nudio?zed 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-noti?cation period.T Google respect?illy objects to Magistrate Judge - ruling because the government?s investigation of Wikileaks generally, and its interest in the name speci?cally, is a matter of public record, thus ?obviating the need for this Order?s nondisclosure provision. -- --Furthermore,? the-6rder;--like-thee Twitter-Orderrmay present- - - - 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 justi?ed under these I circumstances. Finally, Google has preserved the requested records, thus there is no danger of 3 Roche DeclSee Electronic Frontier Foundation, Legal Battle Over Government Demands for Twitter Records Unsealed by Court, Feb. 8, 20] I, (last visited on Feb. 16, 2011). 6 Id. Ex. 4. 7 Id. loss or destruction of the information sought. Accordingly, Google requests that the Court .modifyjhis .Qrder to..p.ermit. notice. cf the Order and, preservation request to be. given .to Google?s . 4 .. user and attorney and that the user be given 20 days from the date of the Court?s order to seek any relief. II. 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 US. State Department, to the Chinese government?s attack on the Gmail accounts of Chinese human rights activists.8 Goo gle?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 disclosure-totheuser [EaYhn??an?aa?s? h?p'i?ii 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 iinportant 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 Hel?, Google. CitingAttack, Threatens to Exit China, N.Y. Times, 1 an. 13, 2011, 10/01! lB/world/asial Sheij &pagewanted?nint (last visited Jan. 13, 2011). Wildleaks describes itself as a journalistic enterprise for mass document leaking and as enterprise that consists o?cr works journalists and academics.? Whether Wildleaks does in fact consist of journalists or academics or engage in journalism is a matter of public debate, and an issue upon which Goo gle 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. Sheinutt, No. (CDL), 2009 WL 3681827, at *1 n.1 (M .D. Ca. 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 con?rm whether the Twitter I acmun-s 001111011?. by the same user as the Gmai- account, iris instructive t; 9 Safrneron Enterprise Recovery Systems, Inc, 579' F.3d 137179! n.1 {7th Cir. 2009) by Chinese dissidents, jburnalists, mathematicians and startup company technologists, ?cm the US, Tatum, Europe, Australia and South Ali-tea," [as itself as ?an uncensorable version of Wikipedia for Lmtraccable mass document leaking and analysis.? wikileaks. org! wikil Wittileaks: About (last visited July 16, Adam L. Penenberg. i?es. He's nJowmeh?sr, Too. Washington Post, Jan. 30, 2011, IIDIIZSIARZOI (?Based on the Wording of many of these [press shield] statutes, Assange ?ts the de?nition ufajournalist, and what WikiLeaIts does quali?es asjournalism.") (last visited on Jan. 201 US soldiers can be denieratfzed by mitigates deer: Morreii, Daily Pak Banker, Oct. 25, 2010, 2010 WLNR 2135601? (describing Wikileaks as working with ?a group run by academics?}; Activists targeted as secrets exposed, Australian, Apr. 12. 2010, 2010 WLNR 7507443 (describing W?dleaks as consisting of ?computer programmers, academics and note that in a ?tweet,? the Twitter user-indicates that since at least mid-December 2010 I has been well aware that .a government investigation __.._dervray. B. Procedural Posture The Twitter Order was issued on December 14, 2010 and relates to the ongoing Wildleaks investigation, which is obviously an issue of great public haterest.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 name-It also contained a non-disclosure provision. The grand jury investigation underlying the Twitter Order was Widely reported in the New Yarfr Times and other media outlets around the time the Twitter Order was issued.I3 Indeed, prior to issuance of the order, the Attorney General had acknowledged that the government was actively investigating Wikileaks.l4 See q?tweet of Dec. 17, 2010 4:22 p.111. (?Unrelated to any travel issues - the FBI is now actively bothering my 'ends and questioning them inside the United States?), (last visited on Dec. 21, 2010}; see also tweet of Jan. 201] 9:26 pm. ("Note that we can assume Google Faeebook also have secret US gOVernment subpoenas. They make no comment. Did they (last visited I an. 18, 2011). Roche Decl, Ex. 2. ?3 Ravi Somaiya, Reieare on Bail of??ikiLeaks onnder is Delayed by Appeal, FLY. Times, Dec. 14, 2010, I (last visited Jan. 3, 201 see also Arrange attorney: Secret meeting in Virginia on WikiLeaks, CNN Justice, Dec. 13, 2010, (last visited Jan. 3, 201 Dan Goodin, Grana?jnry moors to decidefore The Register,_Dee. 13, 2010, [last visited Jan. 3, 2011). Ellen Nakashima 6?6 Jerry Markon, ikiLealnr founder could be charged under Espionage Act, Wash. Post, Nov. 30, 2010, (last visited Jan. 3, 2011). On January 5, 2011, upon motion by the government made at the behest of Witter,? Judge Buchanan unsealed. the Twitter Order and. authorizedTwitter to disclose it 1.0 its users, including Twitter user -6 In the days following January 5, 2011, the unsealed Twitter Order was posted on the Intemet and wider discussed in the media.? On January 7, 2011, a ?tweet? from Twitter user -ated that ?we can assume Google Facebook also have secret US government subpoenas?"l On January 4, 2011, the day a?er 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 account-9 The perpetual nondisclosure provision in the Order is identical to the Twitter Order nondisclosure provision. ?5 Perkins LLP represents both Twitter and Google. ?6 Roche Decl, Ex. 5. 17 See, Scott Shane and John F. Burns, LES. Subpoenas Witter Over MkiLeaIrs Supporters, N.Y. Times, Jan. 8, 2011, 1101! world1'09wikihtml {last visited an. 13, 20] Anthony Beadle, US. orders Twitter to hand over Wikffeakr records, Reuters, Jan. 3, 2011, (last visited Jan. 14, 2011). ?3 See ?ioerro_1" tweet of Jan. 7, 201 i 9:26 that we can assume Google 85 Facebook also have secret US government subpoenas. They make no comment. Did they fold.? (last visited Jan. 13, 2011). - . 19 See Roche Decl, Ex. 1.. 'u - On January 12, 2011, the government issued a preservation requestpursuant to 18 U.S.C. fifQ!? 1:11;. amnion 9f nomrm1nications,renords,and. other eiddence?iim .- Google?s possession regarding Gmail user-for November 2009 to the present.20 That same day, Goo gle?s counsel noti?ed the government that Go Ogle wished to immediately give notice of the Order to its user and requested that the government agree to so mo di?y the Order. The government declined this request, sayin only that Google is ?a different case? ?om Twitter.? 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 timber extension. Google declined this offer and, pursuant to the parties? agreed schedule, ?led its motion to modify the Order on January 18, 201 1. On January 26, 2011, three of the users identi?ed in the Twitter Order, including Twitter?-? user, ?led a motion to vacate that order on statutory and Constitutional On January 28, 2011, the government ?led 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 Goo gle 2? 1d,. Ex. 4. 2? lat, Ex. 7, at 3 ml. 11mat3 n.l. mi accounts.24 These facts alone demonstrate that there is no cause for the Order to have been . 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 ?thher exacerbated by unsealing this Order.25 On February 9, 2011, Magistrate Judge-denied Google?s request to provide immediate notice of the Order to its user.26 Instead, Magistrate Judgluthorized 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-noti?cation period.? On February 15, 2011, Magistrate Judge - heard argument on the motion to vacate the Twitter Order, but to Google?s knowledge has not yet rendered a decision on that motion. In- A. Standard of Review Google brings its objections pursuant to Fed. R. CrimOrder Directing 0 Provider of Electronic Communication Service to Disclose Records to the Government, Magistrate?s No. 07-524M, 2008 419151 1 (W .D. Pa. Sept. 10, 2008) (objections brought under Rule 59 to magistrate?s ruling regarding 2703(d) order?, vacated on 2" Id. at Ex. 7 (Exs. 251d. at 11-16. ?5 Id. Ex. 4. 2' Id. other grounds by, 620 F.3d 304 (3d Cir. 2010). Because Magistrate Judg-February 9th ruling on Genuie?s m..__oti_on nmndi?t meQrderisdiructe?ta imitates. is, .Cisusleit ice. - dispositive ?nal order. (1.8. v. Myers, 593 F.3d 338, 345 (4th Cir. 2010) (discovery order directed at athird party is ?an immediately appealable ?nal order.?) (quoting Church of Scientoldgy ofCalg'fbmz11.11 (1992)). Accordingly, the district court must consider Google?s objections de novo. See Fed. R. Crim. P. B. 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. I 2705. The Order in this matter relies upon the standard set forth in 2705(b)(5), which provides for nondisclosure when noti?cation will result in ?seriously jeopardizing an investigation? Nondisclosnre requests such as this are subject to the most demanding scrutiny: If the recipients of [surveillance] orders are forever enjoined from discussing them, the individual target's 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 I constricting the ?ow of infonnation at its source, the governinent dries up the marketplace of ideasjust 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 of Pen/T rap/2703 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 af?davit 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 identi?er, it offer to release Goonle ?om the notice constraintaftg 90 days is dif?th to understand how the government could meet the ?seriously jeopardizing? standard demonstrates that a limited nondisclosure provision could have been requested in the ?rst place, and that this very public investigation is at or near an end, which. further obviates the need for con?dentiality. Nor does the Order meet the traditional standard for grand jury con?dentiality. Grand jury proceedings are traditionally con?dential because if preindicnnent proceedings were made public, many prospective witnesses would be hesitant to come forward vohmtarily, 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 daddy, 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 ?ee, or would try to in?uence 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 he held up to public ridicule. E52181. 72 ran 1252,. 1_1?7 11-6 on Cir. 1926) ?30: for?! ?93; N. W., 441 U.S. 211, 219 (1979)). or course, ?it is a ?oommonlsonse proposition that secrecy is no longer ?necessary? when the contents of grand jury matters have become public?; McHan v. 558 F.3d 326, 334 (4th 2009) (quoting In re Grand Jury Subpoena, 438 F.3d 1138, 1140 (0.0. Cir. 2006)). In this case, the grand jury?s investigation of the Twitter user-is 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. -md. . The government claimed in its response brief before Magistrate Judge. that unsealmgmaqmimv resulLin i?vn'tmess mnmiclationf? the. fonn cfencouraginaurcriders .. .. ?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 o'utside 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 de?cient or mrlaw?il 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 administering may use assessing an modes of communication to evade future investigative efforts,? but as the government netes in its brief, the Twitter use. 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 eaten-ms 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 2? Roche Decl, Ex. 7- 29Id [nu?I hi suspects to I. . . See Government Response, at 13.3'0 This argument also fails because if Drdetntonldhavealreaditn, presumably given him or her and any loo-conspirators all the notice they need to start packing their bags, regardless of whether Twitter?s _and Google?.? are one and the same. I 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! Gbogle 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 identi?ers of personnel redacted before unsealing the Order or preservation letter. I 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 A of the. Order or. the. preservation Then: is no. muse fondle. 9dr: is. unde?ned: C. The Order May Raise Signi?cant Constitutional and Statutory Issues As noted, three of the users identi?ed in the Twitter Order, including Twitter?s - user, ?led a motion to vacate that order on Constitutional and statutory grounds.32 In summary, they argued that because the Twitter, Order seeks a vast array of information that has no relation to Wik?eaks, it could not meet the ?speci?c and articulable facts? standard set forth in 18 U.S.C. 3? Id. 3' Id. ?2 Roche 3. 2703 and that it intrudes upon their First and Fourth Amendment rights for similar reasons 3; lfoueassumesfonthesalce 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 Goo gle 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. D. The Order is a Prior Restraint 011 Google?s Right to Free Speech The non-disclosure provision in the Order prevents Ghogle from communicating with its user and ?is fairly characterized as a regulation of pure speec Bartm?cki v. Vopper, 532 US. 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 . warm: theses?? in?rm fi?li?liPeak?igz is, Google, is a' corporate entity. First Nat '1 Bank ofBoston v. 435 Us. 765, 777 (1973) (?The inherent worth of the speech in terms of its capacity for informing the public does not I depend upon the identity of its source, whether corporation, association, union, or individuali?). Prior restraints on speech ?are constimtionally disfavored in this nation nearly to the point of extinction.? United States v. Brown, 250 F.3d 907, 915 (5th Cir. 200]). 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, 381?82 (S .D. Tex. 2008) (?Prohibiting a service provider from disclosing the existence of the pen/trap or the investigation means that the ?rst- Id. hand experiences of the recipients of these orders are completely excluded from-the public injunction would Here, Magistrate Judge- endorsed the government?s o?'er to limit the nondisclosure requirement in the Order to a period of 90 days. While such nondisclosure requirements of a I 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 justi?ed under these circumstances. IV. CONCLUSION Google takes no position regarding the propriety of Wildleaks? alleged actions or the government?s investigation, but given the extraordinary nature of the issues surrounding the very public Wikileaks investigation, Goo gle requests only that the Court modify the Order to permit . notice?of the'Orde'j?r ?andpreservation request to heaven to Google?s user and the "135695" attorneys. Goo gle 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 ?'om the date of the Court?s order to ?le an appropriate response. In the meantime, Google has preserved responsive information, and will produce that information if its user does not ?le a motion. or o?ier pleading in opposition within 20 days of the Court?s order. . . DATED this 17th day of February, 2011. 131 h-n U'l .1: Respeet?illy submitted, John ache ie LLP 0 13th St, N.W., Suite 600 Washingto?, DC. 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 Goo gle Inc. CERTIFICATE OF SERVICE hand delivery and email to the following persons: s15 :11 es omey United States Attorney?s Office Eastern District of Virginia Justin W. Williams United States Attorney?s Building 2100 Jamieson Avenue Alexandria, VA 22314-5794- Attomeys for the United States Was DC. 20005?3960 Phone: 202-434-1627 Fax: 202-654-9106 JRoche@perkinscoie.com Attorneys for 699 gle Inc. ATTACHMENT 3 IN THE UNITED STATES DISTRICT COURT non THE EASTERN DISTRICT OF VIRGINIA ALEXANDBLADMSIQN .. .. .. . nu FEB 11 33?5" RT retrieve ORDERAanvosm -- PRESERVATION REQIJEST RELATING TO GMAIL .. FILED UNDER SEAL GOOGLE MOTION TO STAY PRODUCTION PENDING APPEAL OE ORDER AND MEMORANDUM IN SUPPORT This matter involves a grand jury investigation of the Wildleaks 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 the subject of Such a demand issued by this Comton 4, 2011. Because of the already public nature of the Wikileaks investigation, and the fact a nearly I identical order to Twitter involving the same account identi?er ?-had been unsealed by See, eg, Scott Shane and John F. Btu-us, HS. Subpoenas Twitter Over WtkiLeots Supporters, NY. Times, I an. 8, 201 l, 1ft] lt09fworldf09w?tijitml (last visited Jan- 13, 201]); Anthony Beadle, orders Witter to hand over recor?, Reuters, Ian. 3, 2011, 164201 10103 (last visited Jan. 14, 201 Ravi Somaiya, Release on Boil othRiLeaks Founder Is Delayed by Appeal, NH. Titties, Dec. 14, 2010, avattabte at (last visited Jan. 3, 2011);1i35ange attorney: Secret meeting in Virginia on (MN Justice, Dec. 13, 2010, {last visited Jan. 3, 20! Dan Goodin, meets to decide fate of The Register, Dec. 13, 2010, nvattable at 12! {last visited Jan. 3, 2011). 1 See Declaration of John K. Reche, Ex. 1 (?Roche this Court in the same Grand Jury proceeding (?Twitter Goo gle ?led a motion to the Gmail user and the user?s attorney so they would have a meaning?il opportunity to contest the requeSt. Shortly after Gobgle'?i?d its motion", the: user identi?edas in the Ttiritt'er Order ?led 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 Goo le?s re uest to provide immediate notice of the Order to its user}5 Instead, ?1 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- noti?cation period.7 However, because the government?s interest in -elec_tronic communications is already so Well-publicized and there is no risk of destruction of evidence, a nondisclosure period of any length is not justi?ed under these circumstances. Accordingly, Google has today ?led its Objections to Magisttate?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 ?led 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 DeclSee Electronic Frontier Foundation, Legal Barrie Over Government Demands for Twitter Records Unsealed by Court, Feb. 8, 2011, [last visited on Feb. 16, 201]). 6 Id. Ex. 4. Id. mndi?tthe. Orders _G_ongle_?smojion requested that ithe permitted to. gine notice. of the Orderto - .. to_ar9_id..nrsd99ti9n of. dnameats and. Mann atisn Wilh?llt notice. to subscriber. . subscriber will suffer irreparable injury absent a stay because without a stay the very injury that 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 hifonnation 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 unjusti?ed 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 r?gard 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.- 5 9, which were also ?led today. Rather than burden the Court with a duplicative recitation of facts, that factual background is expressly incorporated herein. I 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 inoperable 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. US. v. Dyer, 750 F. Supp. 1278, 1299 n.40 (ED. Va. 1990 . B. The Court Should Grant a Stay of Production Pending Google?s Appeal .1 . Eurasia-s. Made on the Marita. As set forth in Google?s Objections to Magistrate?s Order of February 9, 2011 and Notice government?s investigation of Wikileaks generally, and its interest in the -user name speci?cally, 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 concems that the user may wish to raise before this Conrt. 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 justi?ed 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 respect?illy 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 Goo gle 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 govenunent 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 ?unring the bell? once the information has been released.? 3 lara?ran?ny rill. natal- apply to pre-trial proceedings and surrender of non-constitutional rights or privileges). 3? minimal periods of time, unquestionably constitutes irreparable injury. Newsom ex rel. I Newsom v. Albemarle County School Bat, 354 F.3d 249, 261 (4th Cir. 2003) (quoting Elrod v. Burns, 427 US. 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 I needed: Indeed; the government ?led a motion to delay the hearing on Googleis 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 sta?y 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 :1 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 the interest in the electronic communications of the- user name are so public Milan 1.1-. .. 438 F.3d 1138, 1140 (DC. Cir. 2006)) (?it is a ?common-sense proposition that secrecy is no longer matters~ become Furthennore, 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 (?Surcly, upholding constitutional rights serves the public interest?). CONCLUSION For the reasons stated, Goo gle requests an order to stay production of documents and information in response to the Order while its concurrently ?led Objections are pending. DATED this 17th day of February, 2011. Respect?nW Br John oehe (V 68594) Washington, DC. 20005-3960 Phone: 202-434-1627 Fax: 202-654?9106 JRoche@pe1kinscoie.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.eom Attorneys for Goo gle Inc. CERTIFICATE OF SERVICE #1112:st sst?fy MMsl?Zth?sy at say; rig- . hand delivery and email to following persons: Assistant United States Attorney United States Attorney?s Of?ce Eastern District of Virginia Justin W. Williams United States Attorney?s Building 2100 Iamieson Avenue Alexandri VA 22314?5794 Attorneys for the United States By I . John .Etoche 63594) as Die, LLP 7 0 .,N.W.,Suite 600 DE. 20005-3960 Phone: 202-434-1627 Fax: 202-654-9106 JRoche@psrkinscoie.com Attorneys for Goo gle Inc; . . . .. IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION Misc. No. 10GJ3793 RE 2703(3) ORDER AND 2703a) PRESERVATION REQUEST RELATING TO GMAIL ACCOUNT 1 FILED UNDER SEAL DECLARATION OF JOHN K. ROCHE IN SUPPORT OF GOOGLE OBJECTIONS TO ORDER OF FEBRUARY 9, 2011 AND NOTICE OF APPEAL PURSUANT TO FED. R. CRIM. P. 59 AND MOTION TO STAY PRODUCTION PENDING APPEAL OF ORDER I, John K. Roche, declare as follows: I. 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? ?rm 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 thefacts set forth below and am competent to testify about the matters stated harem. i 2. Attached hereto as Exhibit 1 is the January 4, 2011 order of this Court issued to Google pursuant to 18 U. 3.0. 2703(d) (the ?Order?) in the above-referenced matter. 3. Attached hereto as Errliibit 2 is the December 14, 2010 order-of this 09m 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 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 Goo gle?s Motion to Modify 2703 Order for the Purpose of Providing Notice to User. 6. Attachedheretb as Exhibit 5 is the January 5, 2511 order of this fo?u?ea? the Twitter Order. 7. Attached hereto as Exhibit 6 is the January 12, 201 1 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 doogle?s Motion to Modify 2703 Order for the Purpose of Providing Notice to User. I declare under penalty of peljury under the laws of the United States oi' America that the foregoing is true and correct. I Executed this 17th day of February, 2011. 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: Unit??'g?tes money United States Attorney?s Of?ce Eastern District of Virginia Justin W. Williams United States Attorney?s Building 2100 J'amieson Avenue Alexandria, VA 22314-5794 Attorneys for the United States . Roche (V 68594) ie, LLP- 700 13th St, N.W., Suite 600 Washington, DC. 20005-3960 Phone: 202-43 4-1 627 Fax: 202-654-9106 JRoche@perkinscoie.com Attorneys for Google Inc. EXHIBIT 1 JAN. 5.21m "0.2750 9. 1/4 of Justice United States Attorney Eastern Disrrict of Virginia Mt!" FF. Budding 21W Virginia 2331+! 79-! (103)299-er TRANSMISSION COVER PAGE DATE: I (I To; Le inc. mom: - W: Windum ?ewv?do I roman; 650) m- 2439/ 550) Ml- 34m 3mm: mm+ 'l'b ammo; 351%? NUMBER OF PAGES: 3 - *Not handing Cover Page* Level of Transmitted Information:- Non-Sandi!" Information - Smi?venut Unchained (830) Limited Of?eill 11:00.00) Grand Jury In?rmu?on El Tu him-mu Luv Enforcement Information El Victim wum: Inform?un I CONTENTS: WARNING: Mbnnatian attached to this cover sheet is sens Riva 1.1.3. Gowrmnent Propmty. 'Ifyou not the intended mipid?t ofthis fufonna?on, disclosure. mpmduc?ou. dish-amtkm. or um of - this mfonuatlpn i3 pmhibitcd. Please nu?fy this of?ce immadiately at the Elbow: numberto arrange fur proper distribution. .I. - EXHIBIT 2 'oEc.14.20w "04530 p. 1/4 US. Deportment of Justice United StatesAI?tamey Eastern District of Virginia Min IE ??i?rm Unmd??hia?mmg?: Building 2! comm Arum 1703} 2mm FACSMILE TRANSMISSION COVER PAGE BATE: [Jamil Ii) T0: ?Wilma HM: ka noan PHONE: TO FMCNOJ 44E) - 67615? SEWER: Ami/kw} 1b mono no; . new Fame; . 793' NUMBER on mans: *Notmoluding 00on Page?? Le?vol of Transmitted Information: - Non-Sensitivo Information Sensitive But Unola?i?ed- Limited omen: Us: (LOU) . Grand any Information El Tax Information Law Enforcement Information El Victim Witness Information CONTENTS: WW6: Ibfonnation attached to this cover. shoot is Sensitive US. Govcmmoni Propo'rty. Ifyou are not 1115 intended robipient. ofthis infomotion. disclosure, reproduction, damnation. or use of this hforma?un is pr?hibitcd. Plans: notify this Of?ce humediat?y at the above [lumbar to arrange for prayer distribution. - 0m. 14. 2010 00.1530 9, 214' UNITED STATES Dormer Coonr DISTRICT or VIRGINIA ALEXANDRM DIVISION . INREAPPLICATION come UNITED STATES or FOR MISC. NO. IOGJ3793 ANORDERPURSUANTTO . . 13 0.3.0. 270331) Filed Under Seal 9112133: This matter netting come before the Court p'tusuant to an application under Title 18, llnited States Code, Section 2103, which application requests the issuance ofan order under Title 10, United States Code. Section 2703(d) directing "Miner. Inc, an electronic communications service provider nndlor a remote computing service. located in-Son Francisco. Califomia, to disclose certain records and other information, as set fOr?l in Attnehment A to this Order, the Count ?nds ting: the applicant has offered speci?c and articulable ifaot? showing that there are reasonable and: that in. records or 0m mg?? and material to ongoing criminal intestigation. 1?1? APPEARING that: the infannation songlat relevant and material to on ongoing criminal investigation. and that prior notice of this Order to any nerson of this intres?go'tion or this application and Order entered in connection would seriously Jeopardiz'e the investigatiim; I IT IS ORDERED pursunnt to Title 18. United States Code. Section 2703(d) that Twitter, I 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. - nec.14.201-o 4:1er "0.2530 F. 3/4 [3 ORDERED that the Clerk of the Court shall provide the United States Attorney's Of?ce with three (3) certi?ed copies ofthis application and Outer. IT IS that the application and this Order are sealed until otherwise ordered by the Court. and that 'I?Wltter shall not dieelose the existence ofthe application or this Order of the Court, or ?le-existence of the.investiga?an1 to the listed subscriber or to any other person, unless attd'until authorizedto do so by the Court. - 03114.20? N0. 1530 P. 4/4 ATTACHMENT A You atoto provide the foil infomm?on, if available, as data ?les on CID-ROM olectrmio media, or email 1* otherwise by tomato - A account infonnotion for pool: account to or associde _0 time period Novombcr 1, 2009 to present: 3 4. 5. 6.. submi?cr nnmno, user names, scram names, or o'thor idon??os addresscs. residential addresses, business addresses, o-moil addresses, and other contact lnfor?totlon; connection records, or records ofsossioo times and durations: length (including stmdotc) and-types of service utilizcd; or instrumontnombor or othcr number or idontity, include any tsunami]? assigned work - mom and comcc for? such service (including oily-credit card or bank account amino!) and billing records. B. Allrocords and other inibm?onrclatiitgto the account(s) PortA, including; 3. records of user activity Eb: any connections random or ?om tho Aocmtut. including tho onto, timo, length. and mothod of connections, data transfer volume, usor name. and some: and don?nntiun [um Protocol addressm): . 110th infonnotion ossociatcd with the contents of any or standby or for the acootmqs); such as tho source and dostinolicn email addresses and IP addresses. . correspondence and notes of records related to the moms): Ema 3 ?5.01 - - UNITED STATES DISTRICT COURT . EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION JAN 21 Sb mum c'i?iigiga?nmmemm . MISC NO. 613793 ORAL REQUESTED IN RE APPLICATION OF THE UNITED STATES OF AMERICA FOR AN ORDER PURSUANT TO 18 U.S.C. 2703((1) MOTION OF REAL PARTIES IN INTEREST JACOB APPELBAUM ONSDOTTIR, AND ROP T0 VACATE DECEMBER 14, 2010 ORDER J015.01 TABLE OF CONTENTS Page INTRODUCTION . .4 .. 1 BACKGROUND ..2 A. No ?speci?c and articulahle facts? exist to that the information sought is ?relevant and material? to an ongoing criminal investigation. ..4 B. The Order Should he Vacated Because it [alludes Upon the Parties? First Amendment Rights .. .o C. The Order Should be Vacated Because it Threatens the Parties? Fourth Amendment Rights. 10 D. The Court Should Exercise its Disme?on Under 18 U.S.C. 2703(d) and Avoid Serious Constitutional Questions by Vacating the Order and Remit-Engame .t ..14 E. The Request for Information about a Member of the Icelandic Parliament, Ms. Ionsdo?ir, Raises Additional Concerns. ..16 CONCLUSION ..- ..17 TABLE OF AUTHORITIES Paggsl Federal Cases Ashwander v. Tennessee Valley Auth. 297 11.3. 288 (1936) ..16 Haves 408 US. 665 (1972) City ome?drio v. Quon 130 S. Ct. 2619, 177 L. Ed. 26 216 (2010) ..16 Cromer v. Brown - 88 F.3d 1315 (4th Cir. 1994) ..8 Eostlandv. DES. Serviceman? Fund 421 U.S. 491 (1975) ..: ..9 Franks v. Delaware . 438 US. 154 (1918) .. . . Gibson v. Fla. Legislative Invest. Comm. 3'12 US. 539 (1963) - . ..- 9 Hess v. Indiana 414 1.1.5. 105 (1973FirstN'a?? Bank 701 F.2d 115 (10th Cir. 1933) .. .. In re Grand Jurv 87-3 Subpoena 955 F.2d 229 (4111 Cir. 1992) I . ..9 In re Grand Jury Subpoenas Duces Tecum- 78 F.3d 1307 (81h Cir. 1996) ..9 Inc. v. Verio. Inc. . 3551330393 (2nd Cir. 2004) ..11 Kvllo v. United States 533 us. 27(2001) -. . Local 1314. Int'l Longshoremenfs'Ass?n v. Water?ont Comm of NY. Harbor 667?F.2d 067 (2d Cir: 1981) NMCP v. Alabam357 US. 449 (1958) .2 ..7 North Carolina Rt. To Li'sz v. Bartlett 168 F.3d 705 (4th Cir. 1999) ..- .. . ..8 Noto v. Unifed States - 367 US. 290 (1961283 FJSupp'. a??dEz?f.? Robert: v. US. Javcees" . - 468 US. 609 (1984) .-12 3015.01 .. ll Review United States 353 vs. 53 (1957) .5 Shelton v. Tucker 364 us. 479 (1960) ..3 Smith v. Maryland 442 U.s.735(1979) ..13 Sony Music Entertainment Inc. v. Does 1-40 326 F. Sgpp. 2d 556 (3.13.191. 2004) Stone:- California 376 U.S. 483 .., 13- Truiock v. Fresh 275 F.3d 391 (4th Cir. 2001) - .- . -. 12 United States v. Brignani?Ponce - 422 US 873 (1975) . . - . ..5 United States v. Carey . - 172 F.3d 1268 (10th Cir. 1999) . ..12 United States v.Karo I 468 US 705 (1984) . .. ..12, 13, 14 United States v. Mann - 592 F.3d 779 (7th Cir. I ..12 United States v. Mavan I 615 F.3d 544 (DC. Cir. 2010). pet. reh'g' en banc denied (D.C. C11: Nov. 19, 2010) United States v. Smith 780 F.2d 1102 (4th Cir. 1985) (en banc) .. . United States v. Valenzuela-Berna! I 453 as. 858 (1982) ..5 Virginia v. Black 538 (2003) .. a State Cases Brandenburg v. Ohio . - 39s us. 444 (1969) ..7 em; v. Ohio I 392 US 1 (1968) .. - . - .- United?tatestanes - - - - - .. . . - - . . . .. . Cir: u' Federal Statutes 18 U.S.C. 2701 et seq. .passim Federal Rules Rule 41 of the Federal Rules of Criminal Procedure ..first Ametidm'e?t .7 . Fourteenth Ame?dment Fourth Amendment .. . ..passim 43015.01 .. . ll] Article 1, Section 6, Clause 1, of the US. OtherAutlm?ties HR. Rep. No. 103-827 (1994A001 0 w, I. INTRODUCTION Real parties in interest I acob Appelbaum, Birgitta Jonsdottir, and Rep 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 27030!) of the Stored Communications Act, 18 U.S.C. 2701 at seq. (?December 14 Orda? or ?0rder?). There is no reasonable basis for the Order and the Court should vacate it for the following reasons. First, the face of the December 14 Order demonstrates that the government?s axparte Application purportedly ?showing that there are reasonable grounds? for the Order liker contains material errors or omissions that render the Application insuf?cient.l The face of the December 14 Order indicates that the govmmnent?s underlying investigation presumably relates, in some way, to the website WikiLealcs. Under 18? 0.8.0. 2703 therefore, any application must provide ?speci?c and articulable facts? showing that the Parties? Twitter information sought is both ?relevant? and ?material? to an on-going investigation about WikiLeaks. No such ?speci?c and articulable facts? could have been provided here, however, because the government has sought information about on or the Parties? Twitter?related publications and speech Over a 6 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-W?riLealts?related infarmation cannot be relevant or material to a WikiLeaks-related investigation and the Application cannot have provided the speci?c facts needed to justify a proper 2703 order. I I $eco_nd,_th? Prder intrudes upon important Amendment rights: _It is impennissibly' 'ov?rbroad because it demands production of information that will not directly ?nthEr 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 As detailed below, the govemrnent?a Ic?IS?lil? provide the Parties with its Application, 2 therefore denying the Parties an opportunity to repent! directly to its assertions, does not prevent the Earliest from challenging these problema 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 ?led a companion Motion to Unscal the Application. lf?ie Court orders disclosure of such materials, the Parties will supplement this Motion. comm know, that it impermissable. They each spoke on Twitter about what has become a political cause, 123., the WiidLealcs website and its formder Julian Assange. But, the First Amandment . guarantees their right to speak up for and ?eely associate eVen unpopular people and causes. Where a disclosure demand implicates First Amendment ?reedoms, it must be scrutinized with special care and governmental ?shing expeditions that improperly intimidate and silence cannot survive First Amendment scrutiny. I Third, the Order threatens the Parlies? Fourth Amendment rights because disclosure could reveal that the Parti were located in particular private spaces at particular times?information inwhich'they maintain a reasonable expectation of privacy. The government cannot track movements and location that may reveal intimate details of a person?s life without the safeguards ofa valid walnut based on probable cause. Fom'da, because the Order and Application raise serious constitutional concerns, the Com should exercise its discretion under 2703(d) to require the govemment to obtain a warrant based on probable cause. ?lhe Court should exercise this discre?on to avoid the constitutional questions raised by warrantiess disclosure and-ermine that the Parties? rights are not improperly trampled. I Finally, the demand for information about Ms. Ionsdottir?a Member of the Icelandic Parliament?4s contrary to Icelandic law and creates a disturbing precedent regiu'ding a foreign government?s ability to collect private data ?'om another country?s of?cials. When congress amended the'Stored Act in 1994, it emphasized the need to ?guard against ??shing law enforcement.? See H.R. Rep. No. 03-827, 51.3192 994), reprinted is 1994 3489., 3511:121 Hera-the Courtshould do Just I that by vacating the Debbmb'e'r l4 Order and denying. the government?s Application for records. . related to the Twitter accounts associated with ?rop_g?; ?ioerror,? and ?birgittaj.? II. BACKGROUND Qn December 14, 2910, this Court entered a sealed order directing Twitter, inc. to provide the government 'with records and other related to the accounts o'fsevefdl of' 15. JD 01 2 its users, including the Parties here. Sears Deni,2 Exh. 1 (the ?Dec. 14 Order?). On January 5, the Court unsealed the Order. Sears Deal, Exh. 2. Twitter informed the Parties of the record demand two days later. See, eg, Sears Decl, Exh. 3. The Parties? Motion for Unsealing of Sealed Court Records, ?led concurrently; provides a detailed factual and procedural background. The Parties incorporate that discussion by reference rather than repeat it here. See Motion for Unsealing of Sealed Court Records at 445. In sum, the December 14 Order requires Twitter to provide the government with records related to the Parties? Twitter accounts ?inc1uding home addresses, connection records, and Internet Protocol addresses? 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 The heart of the service is short, public text messages that express opinions, relate thoughts, and provide commentary. Users can also provide links to other websites (if space pennits), ?re-tweet? rte-publish) Twitter messages made by others, and send direct messages to other users. - Here, all three Parties?Jacob Appelbaum, Birgitta Jonsdottire and Rep Gonggrijp?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 extensiver 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? I,ublications. and private messages, mapping their associations andaudience: Even the actual information to be produced under the Order was nanowod by the gou?ntin?nt pursuant to concerns raised by Twitter,4 it requires Twitter to disclose such information for of the 1 Declaration of Stuart Sears in Support of Motion Of Real Parties In Interest Jacob Appelbaum, Birgitta Jonsdottir, and Rep Gonggrijp to Vacate December 14. 2010 Order {herehtafter ?Sears w. -- . 3 An internet Erotocol address is a unique'mnnetical?address that identi?es individual' computers or other devices as internist otter the Internet. See in?a? at 111.0: 4 The govenuncnt has not conceded that its original Order was improper in any manner. Nor has the govenuncnt agreed never to ask for the tint} scope of the originally demanded information. 0 .0 4015 1 3 .Parties? Twitter-related speech (?ealled ??I?weet's?) for multiple months, i. e. November 1 5, 2009 to June 1, 2010, regardless of any connection between the postings and Wikilealcs. Such information is also requested for all of the Parties? Twitter-based direct mess ages between each other during the same multi-month time period?again, regardless of any connection between the messages and WW. The Order?s breadth is signi?cant because each of the Parties use Twitter extensively and/or have thousands of ?Tollowers? who follow what they post? as of January 25, 2011, Mr. Appelbautn has posted 7,909 Tweets and has 10,699 followers, Ms. Jonsdottir has posted 1211 Tweets and has 5,904 folloWers, and Mr. 6011ij has posted 77 Tweets and has 4223 followers. Mr. Appelbamn, Ms. I ondotb'r and Mr. Gongrijp have also all published many Twitter messages that are wholly unrelated to Wm, 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 Dec]. Exh. 4 (examples of the Parties' non-WildLealcs related Twitter postings). Thus, the Application and Order must be viewed for what they are?an improper and overbroad ?shing expedition. ARGUMENT A. No ?specific and articulable facts? exist to show that the information sought is ?relevant and material? to an ongoing criminal investigation. - To obtain an order to disclose customer records under the Stored Comrmmications Act, the government must provide ?speci?c and articulablc facts showing that there are reasonable grounds to believe that the records or information sought? are relevant an_;_d material to an ongoing criminal investigation." 18 U.S.C. 2703(d) (emphasis added): In the December 14 _0'rder, the Court found that itappeared ?that the'inforr?natidn sohght .relevant'and material to an ongoing criminal investigation? and granted the 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 govemment?s Applicatiorj must Hiker-i?! 9" dmssioqsl??cau5? be no reasoh?ble basis As a result, Movahts? challenge to the December 14 Order need not be limited to the narrowed demand. - ?015.01 1 4 ?for ?nding that the information sought here regarding the Parties? Twitter accounts is both ?relevant? ?material?. to an ongoing investigation. Section 2703?s ?ispeci?c and articulable" fact standard requires more than mere suspicion to justify a disclosure order. Even in the context of an investigative stop based on soapectcd illegality, the government cannot simply rely upon an ?inchoate and unparticularized suspicion or hunch,? but instead must demonstrate speci?c facts regarding pussible illegal conduct to justify a stop. See, Terry v. Ohio, 392 US l, 27 (1968); United States v. Jones, 242 F.3d 215, 217 (4th Cir. 2001) (?nding that the ?speci?c and articul able? standard forbids reliance on suspicions or hrmohes and therefore rejecting a search based upon an uncorrob orated tip); Wted States v. Brfg?anf?Ponce, 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 speci?c facts demonstrating reasons to believe that potential illegal conduct may be occurring). Here, however, the is reaching beyond a simple investigative stop and is broadly seeking non-public information regarding the Parties? protected Twitter-based speech and associational contacts. At a minimum, therefore, the government must be required to articulate ?speci?c and articulable facts? that do more than speculate about a nenus between the speci?c information sought and the potential targets of the government?s eriLeaks-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. 3'0 establish materiality, the party seeking disclosure must establish through more I I than mere speculation that the infonhatiori is, rte, Vital" or ?highly relevant? to the inquiry or . . ?helpful? or ?essential? to the party?s position. See,.e.g., United States v. Valenzuela-Bemal, 453 US. 858, 867-73 (1982) (access to evidence); Roviaro v. United States, 353 us. 53, 62-65 (1957) of infonnant?s identity); United Stores {Smith-78.9 F.2d 1102, 1.1.09 Cir. .. 1985') (?n'biz'mi) (standard for?o?fercoining classi?ed info?ril?ladon privilege}: . Tellingly, the Ci'overnment refuses to provide its Application to the Parties so that the Acorem 5 Parties may directly challenge the Government?s statements seeking to'justify the search? But; whatever the Application may claim, it cannot tell the whole story and cannot establish that the information sought in this Order ishoth ?relevant and material to an ongoing criminal investigation.? 13 use. :5 2703(d) (emphasis added). Indeed, although the face ofthe December 14 Order suggests that this investigation relates to WildLeakss, the Order requires Twitter to provide the government with records related to thousands of the Parties? ?Tweets? 'over many months that have nothing whatsoever to do with WildleakS. The Parties Tweets about issues such as the political situations in Tibet and radisia, a volcano in Iceland, the Tea obscenity and gay marriage laws and charitable cases are not relevant to the government?s purported investigative purpose?and they certainly cannot be vital or essential to the government?s investigation into W?riLeaks. Moreover, despite the fact that the Parties? Twitter messages cover a broad range of non- WiliiLeaks topics, the government wants private information? related to the Parties? accounts, their Tweets and all their direct messages to each other and certain others during the relevant time period?even intennatien that the Parties do not choose to share with the world. This includes the Internet Protocol address addreSS?) information related to each time the Parties logged Twitter'over a 6 V2 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 this multi?month time period. This Order production of this information for all the Parties? Tweets and direct messages during a multi?month time period, without regard to whether the mess ages relate to WikiLeaks or mysteneci?cebiet..In lightiof the Order?s mandate to produce a broad swath of data that has no connection - The Parties have ?led a companion Motion to Unseal the Application and will supplement this Motion it'the Conn orders disclostne. 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 the government?s statements directly on Reply, ftl?iress isstied after the Order lice-ante pithtic con?rm WiiriLealrs connection. . See. tag, Soho: Sitters and John F. Bums, HS. Subpoenas Twitter ?ier WikiLeais Supporters;N.Y: Times, Ian. 9,2011, at A1 available at David Batty, US Orders Witter To Hand Over WiidLeokr Members 'Privotc Details, The Guardian Joa-T 3 540015.01 6 whatsoever to Wildlnalrs and cannot be relevant or material to any investigation, the December 14 Order should be vacated, the Application disclosed, and the Parties afforded a fair opportunity to ?nther challenge the Government?s assertions and highlight any material misstatements or omissions in the Application. See Franks v. Delaware, 438 U. S. 154, 169 (1973). B. The Order Should be Vacated Because it Intrudes Upon the Parties? First Amendment Rights. On its face, the Order threatens the Par?es? 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, eg., Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (?the constitutional guarantees office speech and ?ne 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 vs. 105, 103-109 (1973) (the state may not advocacy ofthe use of force or law?breaking unless the charged conduct is ?intended to produce, and likely to produce, disorder?) (emphasis inoriginal)). I . ?The Supreme Court's holding in Virginia v. Black, 538 U.S.343 (2003), illustrates the sanctity of speech. The Court emphasized that the government may not prohibit ?dissemination of social, economic and political that ?which a vast majority of its citizens believes to be false and ?aught with evil consequence.? Id. at 358 (citation omitted). Even distaste?ll and threatening gatherings and speeches are protected in our democracy. Brandenburg, 395 US. at 447. As the Court explained in Brandenburg, efforts to ?pmtish mere advbcacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action? violate the First Autendinent: Id. at? 449. I - Moreover, freedom of association even with unpopular individuals and groups is an inseparable aspect of Constitutional ?liberty.? NAACP v. Alabama ex: rel. Patterson, 357 us. 449, 460 (1958) (?It is beyond debate that freedom to engage in association for the advancement of; ideas is aninseparable ofthe light; {recess of; the Fourteenth Amendmentmhich embraces freedom of Indeed, tight to . - associate in order to express one?s views is ?inseparable? from the right to spealc freely.? Cromer 40015.01 7 v. Bram, 38 F.3d 1315, 1331 (4th Cir. 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 en Id. (quoting Roberts v. US. 468-U.S. 609, 622 (1984)); see also shean v. Tucker, 364 US. 479, 486 (1960) (?the right of free association is a right closely allied to ?eedom of and a right which, like free speech, lies at the foundation of a ?ee society? Here, the government has declared its disapprobation of eriIeaks 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 tall: ?is not saber-rattling.? See Pete Yost, Assoc. Press, Holder says Wik?eah under investigation, (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 preten for searches or a basis for criminality." The Government?s ?shing expedition into information all the Parties? Twitter postings, and about certain of the Parties? messages, over a 6 month time period may chill the 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. Carolina in To Life v. Bartlett, 168 no 705, 715 (4th Cir. 1999). Moreover, where ?an investigation . . . intrudes into the area of constimtionally protected rights of speech, press, association and petition," the government must ?convincingly show a substantial relation between the information sought and a subject _of overriding and compelling state interest.? Gibson Legislative Invest: Comer, 3.72 Us 539, 546 (1 see to}, In r'e Grand Jun} Subpoenas Duces Tecum, 73 F.3d 1307, 1312 (8th Cir. 1996) grand jury subpoena will be 7 Even where an organization. is alleged to have_i]legitimate aims, the govermnent may not paint all supporters or advocates Wlih a broad brush, ignoring the particulars behind each individual's speecm. association, and intent. Rather, the actions of personsaccused of 1:111meth pupp?r?ng. .. - - sdch?g'to??s?frttils't bejt?rdged omens 'rrlr??r?; foretherwrse?the?r'?s?a?danger that she iri sympathy 'with the legitimate aims of the organisation, but not speci?cally intending to aeoornplish them by marl to? violence, might be punished for his adherence to law ?ll and constitutionally protected purposes, because of other unprotected purposes which he does not necessarily share.? Note United States, 367 US. 290, 295L300 (1961). - 40015.01 8 enforced despite a First?Amendment challenge if the government can demonstiate a compelling interest in and a suf?cient nexus between the information sought and the subject matter of its investi ga?omi?); In re First No "1 Bank, 701 F.2d 115, ll 9 (10th Cir. 1983) (?If the district court determines that enforcement of the subpoena w0uld liker chill associations] rights, the - Government must show a compelling need"). As the Supreme Court has cautioned, ?justi?able governmean 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 US. 665, 680-81 (1972). . Courts have long recognized individuals? right to challen?e disclosure demands that implicate First Amendment ?zeedoms and reviewed such demands with special care. See, erg, Bastiand v. US. Serviceka Fund, 421 Us. 491, 501 n.14 (1975) (individuals must have right to challenge third-party subpoena for their records or unconstimtional intrusions could go unchallenged); Pollard v. Roberts, 283 F. Supp. 248, 258-59 (ED. Ark. 1968) (tines-judge comt), a??dper curiam, 393 us. 14 (1968) (enjoining subpoenas directed at third-party bank because enforcement would violate customer?s First Amendment rights of association); In re First Net 730111;, 701 meat 117-19 (remanding for evidentiary hearing on claims that government?s compulsion of information ?'om third parties would violate target?s First Aruendment right of association); Local 1814, Int ?1 Longshoremen 's Ass 'n v. Waterjieonr Comm Harbor, 667 F.2d 267, 271, 2.74 (2d Cir. 1981) (upholding district court?s decision to narrow third?party subpoena to limit impairmth oftargets? First Amendment rights - of association),3 . Here, the government? Application the QIder vsith'the l?arties? First Amendment including-by IP address information and other details for all .f - the Parties? Twitter messages posted over a period of more than six months. The government The Palms mums that the Fourth Circuithas wondered aloud in dicta about how the First Amendment ?the standatde screaming said any summations" {are Grand Jae - - - . . . see-sweet #55 F.3d 229,232+3414th Eir- 1992J-- Rummage: -- liftendmem ?ghts were-mt im??mmqm the Gangt'avoided the sol: stantial relationshi test - issue. Id. at 232?33. It'speei?oalljr'did not decide ?the ?First- Amendment versus Gram? 11135" dilemma" that other courts have resolved by requni mg the government to satis?j the substantial relationship test, as discussed above. .4uu1 5.01 9 cannot claim that all?or even most?~0f these postings have gag?n'ng to do with WiltiLeaks, its criminal investigation, or matters to be considered by the grand jury. The Application and Order also seek details related to all directmessages between the Parties without any apparent showing - that any such messages that might exist are related in any way to WikiLcalcS, the government's criminal investigation, or matters to be considered by the grand jury. In light of signi?cant First Amendment concerns, the cannot use the Parties? purported association with WikiLeaks as a suf?cient basis for obtaining the Twitter records here. The Court should vacate its December 14 Order and reconsider in light of these First Amendment principles. Unless the government can show that the information sought would ?nther a compelling interest and that the requests here are the least restrictive way to serve that interest, the government?s e??orts to seek private data regarding the Parties? Tv'vitter use should be rejected. C. The Order Should be Vacated Because it Threatens the Parties? Fourth Athena-hen: Rights. In addition to implicating the Parties? First Amendment rights, the Order threatens to violate Parties? Fonrth Amendment rights as well. The Order threatens such rights because it requires production of the IP addresses used by Parties at particular dates and times when they logged into theirTwitter 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. 1? 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 phblishing on Twitter. 'As the Second Circuit explained: The Inte'met is comprised of numerous interconnected communications and computer nettvorlrs connecting a wide range of end-users to each outer. Every end?user's computer that is connected to the intemct is assigned a unique lnternct Protocol number address), Such as 123.456.78.90, that identi?es its location (in, a particular computeruto-network connection) and serves as the routing -addre33:foi- Quail, pinches, regu?sts toftjew a web'pa'gc, and other' data.th - - f" Register. com, Inc. v. Ve?o, Inc, 356 F. 3d 393, 409-410 (2nd Cir. 2004) (citation omitted). In .1 :0150 i 10 a. I- . 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 speci?c geographic designations, using a publicly available database operated by the dmerican Registry for Internet These geographic designations indicate the ?lilrely? locations of the residences or other vench where defendants used their Internet-connected computers.? Sony Music Entertainmenrhc. v. Does 1-40, 326 F. Supp. 2d 556, 567 2004). To the extent that an IP address alone does not reveal physical location, an IP address in combination with the records of the Internal Service Provider that assigned the IP address to a particular subscriber can still reveal physical lecation, as explained in the Justice Department?s computer search and surveillance manual: In a common computer search scenario, investigators learn of online criminal conduct. Using records obtained from a victim or from a service provider, investigators determine the Internet Protocol address used to commit the crime. Using a subpoena or other process. ..investlgato:s then compel the Internet Service Provider that has control over that IP address to identify which of its customers was assigned that IP address at the relevant time. .. 1* Computer Crime and Intellectual Property Section, Criminal Division, US. Department of Justice, Searching and Seizing Computers and Obtaining Evidence in Crimiml Investigations, regardless oftvhetherthe underlying'spee'ch was related to regardless .. 40015.01 ch. II, 'at 65, available at s&srnanua12002.pdf (last visited Jan. 24, 2011). Thus, by demanding the IP addresses linked to each date and tone that of the Parties logged into the Twitter service over a? mu] ti-month period, the government can use Such information to try to determine the l?a?ies? locations at the very-times they were engaged in publishing?.- they were Tweeting from a public or a private space. The government?s request for IP addresses here is signi?cant given how such information The ac. curacy aflp on s?t? Intemet users to obfuscate their ll? addresses. :1 cameras Internet use: uhlrees?one' cfsaeratteets that?allow However, one of the leading companies advertises can determine the location of?79% [ofU.S. IP addresses] within a e, (accessed upilslm?ilo?fdf an that its ?ec geloloeation tool 25 mile radius.? MaxMind web sit November 19, 2010). ll may reveal location information. 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 theyhave reasonable expectations of privacy. In 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 ?location[s] not upon to visual surveillance,? such as whether ?a particular article is actually located at a particular time in the private residence,? or to later con?rm that the article remains on the premises, was just as unreasonable as searching the location without a warrant. Karo, 468 US. at. 714-15. Such location tracking, the Court ruled, ?falls within the ambit of the Fourth Arnendment when it reveals irlfonnation that could not have been obtained through visual surveillance" ?our a public place, whetha it reveals that information directly or enables inferences about the contents of protected spaces. Id. at 707, see also Kylie v. (haired States, 533 us. 27, 36 (2001) (rejecting ?the novel proposition that inference insulates a search,? noting that it was ?blatantly contrary? to the Court?s holding in Karo ?where the police ?inferred? item the activation of a beeper that a can of ether was to the home"). This reasonable expectation orptivaoy in the contents of Lm See. protected spaces is not limited to the homo but extends to other private spaces as wel e. See v. City ofSeattle, 337 vs 541, 543 (1967) (business premises); Starter v. Califbmia', 375 US. 433 486 (1964) (hotel room). '9 Although the Parties have not found any cases speci?cally addressing Twitter data, numerous courts have recognized that computer users also. have a reasonable expectation of ?vacy in their . cdmputeier'clated data: Seiz'?ttllack Fresh, 2'75.F.3d (4th Cir. 200%; - (determining whether a search of computers was'reasonahle under 4th standards and holding that the plaintiff ?had a reasonable expectation of privacy in the password protected computer ?les? United States 1). Mann, 592 F.3d 779, 786 (7th Cir. 2010) [reviewing computer searches under 4th Amendment standards and condoning that those ?involved in searches of digital media need to exercise caution to ensure searches are narrowly tailored to uncover on those things described? in a States v. Carey, l'l? F-3d 1263, 1275 (10th Cir. 1999) (noting 4th Amendment concerns to searching computer storeddata, particularly where relevant and non-relevant ?les are together); see also United Stiller.- v. . solowrsmaoa at at 11:14 (sentence-14,2010} atomg as given the continental" . _similarities bethcn email and traditional forms of communication, it would de?z common sense - .. . to. afford emails lesser Fourth Amendment Protection?and thereforeholding that ?a subscribe;- . enjoys a reasonable expectation of privacy in the contents of emails that are shared with, or sent or received through, a commercial l0015.01 1 2 . Relying on Kara and rho, the Third Circuit rocently concluded that the records of a cell phone provider that indicate the location of a subs criber's cell phone (?cell site location information? or may violate the Fourth Amendment to the extent such re cords can establish that a cell phone was in a particular private space at a particular time. In re Application of 023. an OrderDirecting a Provider ofElec. Commc?n Sci-v. to Disclose Records to Gov 620 F.3d 304 (3d Cir. 2010) (??ird Circuit' Opinion?). Speci?cally, a majority of the Panel concluded that it ?cannot reject the hypothesis that CSLI may, under certain be used to approximate the past location of a person. Ifit- can be used to allow the inference of preSent, or evon ?rture, 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 ashima, 1., concerning) (citing Kylie for the prOposition that government access to CSLI absent a showing of probable cause would violate the Fourth Amendment if that information ?lreVeals a cell phone user's I location the interior or cartilage of his home?). Importan?y, 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 he unprotected under the Fourth Amendment in Smith v. Maryland, 442 US- 735, 744-45 (1979), the Court emphasized that cell phone users do not voluntarily convey their location to the 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 thatcallwill also locate the caller3 let. alone generate a permanent record of location. ?When a cellphone call, He has not: vohmta?ly' exposed anything at all.? See Mini . - Circuit Opinion, 620 F.3d at 317 (It is ?unlikely that cell phone customers are aware that their cell phone providers collect and store historical location therefore cell phone customer-has not fvoluntarily' shared his location informationvvith a cellular providervin any .- 5 . I .meallillg?ll 1 - 5: -.-. .. I The .5311?: 103i? applies t0' the Parties' records here. Even thongh records are held by' . .4 015.01 0 l3 Twitter, like with CSLI, 'I?Zvvitter users do not voluntarily convey their IP address to the Twitter intemet site they visit in a manner that is analdgous to the dialing of a telephone. Similarly, as with CSLI, it is unlikely that typical Internet users have any awareness of their IP address, or the fact that it is transmitted to the Internet sites that they with such as Twitter. The conclusion that IP address information is protected by the Fourth Amendment is ?nther bolstered by the D.C. Circuit?s recent conclusion that warran?ess use of a GPS device to track the movements of an individual?s'car over the course of a month violates Fourth Amendment protections, United States v. Maynard, 615 F.3d 544, 559 (no. Cir. 2010), pet?. for tab 3; e. bane denied Cir. Nov. 19, 2010). As that court explained, even though the car might move in public spaces, ?the whole of one?s movements over the course of a month is not exposed to the public? and ?prolonged GPS monitoring? reveals an intimate picture of the subjech life that he expects no one to have." Id. at 561-63. Similarly here, IP address information can reveal an intimate portrait of Parties? movements between the private spaces ?'om which they use the Twitter service. Thus, the Court, therefore should vacate its December 14 Order and reconsider the government?s Application light of the principles set forth in Karo, the Third Circuit Opinion and 'Magmara . 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 the serious constitutional questions that the Order raises under both the First and Fourth Amendments, if the Court does not vacate the Order completer it should exercise its discretion under 2703(d) and avoid these constitutional questions by the Government .10 aviarrant on_ probable?causez . - . Although the Stored Communications allows the Government to obtain the records sought ?om 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 that the ?speci?c and articulable facts? showing required by that section is a necessary but not 440015.01 14 - I - g'ovenunent made the shinning required-under that section: Opinion,_ 620 _4.3d at 315-17. "the statute?does so by its use of the phrase ?only if? 2703((1), indicating necessarily suf?cient condition for a 2i 03 order. Id. The practical effect of such a denial is that the government must 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 (l See id. at 316. Therefore, ?the statute as presently written gives the [judge] the option to require a warrant showing probable Id. at 319." The intent of this ?sliding scale? construction of 2703 is evidenced by Congress? recogl??onthat 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 record]: ing systems, Americanshave lost the abilityr to loci: aways great deal of persoriflJ and business informationbusiness whose records are involved, the privacy or proprietary interest that 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, cg, S. I-Irg. 98-1266 at 17 (1984) (?In this rapidly developing area of comrmmications which range from cellular non-Mrs telephone connections to microwave-fed computer terminals, distinctions such as [whether a participant to an electronic can claim a reasonable expectation of privacy] are not always clear or obvious?) (emphasis added). In the context of such constitutional uncertainty, it makes sense that Congress would provide a constitutional safety-valve ibr judges considering government applications under 2703 thereby ?rm-proo?ng the statute by Ms. Jonsdottir's counsel, are and ACLU, served as amici to the Third Circuit and the Western District of on this issue and their briefs provide extensive support for the 'li?rird Circuit-Opinions holdings. 'Sce.Brief for Electronic Jr_?frontier Founda?omicnerican Civil Liberties Union, Foundation of arid Center for D'?rnoer'acy and Technology as Arniei Curiae Opposing the Government's Request for Review, In re Application of an Order Directing a Provider ofElcc. Commc'n Saw. to Disclose Records to Gown-Magistrates No. 07-524M, 2008 WL 4191511 (WI). Pa. 2008), available at ?h ww.e??.or ?lesl?lenodeleelltrackin LenihanArnicus. Brief for Electronic Frontier Fomd?ation et a1. as Amici Curiae Supporting Af?rmance, In re Application of an Order Directing 3 Provider of Elec. Commo'rr Serv. to Disclose Records to Gov?t, 620 F.3d 304 {3d Cir:llivww. esl?l?enode?celltraclrin if?d'i?i??Celli?oZdl?r?cldir Bonner. - for Electronic Frontier Foundation et at. as AmieiCuriae Opposing Rehearing En- Banc, In re Application .ofilui?r on "Order Directing 0: Provider cfElec. Commc'rr Sew. to Disclose Records to Gov?r, 620 F.3d 304 (3d Cir. 2010), available or Amicus Onp__to En Banc Petition? coarser - 5 allowing courts the discretion to deny such applications to avoid potential constinninnal violations or unnecessary constitutional rulings- Considering the longstanding doctrine of constitutional avoidance, and particularly in light of the 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 when faced with a government application that raises serious constitutional questions. See Cigr ofOntarz'o v. Quon, 130 s. or. 2619, 262a, L. on 2d 216 I (2010) (?The judiciary risks error by elaborating ?rlly on the Fourth Amendment implications of emerging technology before its role in society has become clear.? Ashwander v. Tennessee Valley Auth, 297 US. 288, 347-43 (1936) (?The Courtwill not pass upon a constitutional question although preperly presented by the record, if there is also present some other ground upon which the ease maybe disposed As detailed the govermnent?s Application presents these sort of serious questions?raising serious First and Fourth Ammdment concerns. The Court, thaefore, should exercise its discretion under 2703(d), vacate the 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, M?s. Jonsdo?ir, Raises Additional Concerns. The government?s demand for records for Ms. Jonsdottir, an elected member of the Icelandic Parliament, raises additional concems. Such an investigation appears to violate Icelandic law. As indicated by the attached letter from the Acting Permanent Secretary of State for Iceland, Sears Dec], Ext]. 5, and the Decision by the Inter-Parliamentary Union, Sears Decl., 5; Fish. 6, Jonsdotlitisiprdtected?by astrong constitutional Iceland,'rootedin: Article 49 ofthe Icelandic Constitution and a similar provision in the-Icelandic hair on criminal procedure. Similar immunities exist for Parliamentarians around the world.I2 Ms. Ionsdottir?s Tweets are predominantly in Icelandic and largely coucem issues arising in Iceland, such as legislation sponsored by Ms.- the ?ie?lcelaitdic volcanic . '2 The members of the U.S. Congress enjoy similar immunities, rooted in Micle 1; Section 6, Clause 1, of the US. Constitution. 4 .01 0015 enrption. See Sears Decl, 131014. Thus, the government?s overbroad demand for information about Ms. Jonsdottir creates a situation where the DIS. government is conducting a criminal investigation which sweeps in Ms. Ionsdottir?s publications in Icelandic on topics oficelandic 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. 8. Congress. This concern is yet another reason why the Order should be vacated as to Ms. Jonsdottir. I IV. CONCLUSION . For the foregoing reasons the Court should vacate its December 14, 2010 Order requiring Twitter to disclose the Parties? Twitter records reilated to the Parties and their accounts associated with ?ioerror?, and ?birgittaj.? Dated: January 26, 201 1 011:: K. wetting. VSB No. 8201 Stuart Sears, VSB No..'11436. ZWERLING, LEIBIG 8.: MOSELEY, P.C. 108 North Al?ed Street Alexandria, VA 22314 Telephone: (703) 684-8000 Facsimile: - (703) 684-9700 Email: LEW Email: Email: Stuart werlih .eem John W.Keker Qarq?ae?vice pending) . .. . - - (pre- hirc vice pending} KEKER VAN NEST LLP 710 Sansorne Street San Francisco, CA 94111-1704 Teleghone: ?415) 391-5400 Facsimile: 415) 397-7188 Email: Attorneys for JACOB APPELBAUM A00 5.01 1 43015.01 Dated: JanuaryZG, 2011 By: Va." '{arg J. Ginsberg, VSB No. 19472 DEMOGWSBERG, RC. 908 King Street, Suite'200 Alexandria, VA 22314 Phone: 703-684-4333 Fax: 703-548-3181 Email: mucom John D. Cline (pro hm: vice pending) LAW OFFICE OF JOHN D. CLINE 115 Sansomo Sheet, Suite 1204 San Francisco, CA 94104 Phone: 415.322.8319 Fax: 415.524.8265 Email: KC. Maxwell (pro hac vice pmding) LAW OFFICE OF ICC. MAXWELL 115 Sansome Street, Suite 1204 San Fmeiseo,CA 94104 Phone: 415.322.8817 Fax: 415.888.2372 Email: kcm@lgcmaxlaw.oom Attorneys for ROP GONGGRIJP 18 Dated: ianuary 26, 2011 By: Wu" fir-?11mm 14h Re a K. Glenberg, VSB No. 44099 ERICAN CIVIL LIBERTIES UNION OF VIRGINIA FOUNDATION, INC. 530 E. Main Street, Suite 310 Richmond, Virginia 23219 Telephone; (804) 644-8080 Facsimile: (804) 649-2733 Email: Cindy 11. Cuba (pro ?at: vice pending} Lee Tien (pro hac vice pmding) Kevin S. Bankston (pro hate: vice pending) Marcia Ho?nann (pro hac vice pending) FRONTIER FOUNDATION 454 5110de Street San Francisco, CA 94110 . Telephone: (415) 436-9333 x108 Facsimile: - (415) 436-9993 Email: mm Email: ?en@gf? Email: Email: mm Aden I. Fine (pro Ira: ?ve ptmding) Benjgn?n SiracuSa-Hillm?n (pro Fun: vice pending) AMERICAN CIVIL LEERTIES UNION FOUNDATION 125 13:93:] Street, 13* Floor New YorhNY' 10904 Telephone: (212) s49~zsoo Facsunile: (212) 549?2651 - Email: mm . i - .. Email: . Attorneys for . 1 [00150 19 CERTIFICATE OF sermons and cement copy of the foregoing pleading was delivered by I hereby certify that a true 1, to the 11.3. Attorney Box located in the Clerk?s of?ce, hand this 26?? day of January, 201 addressed to: . U.S. Attorney's Of?ce 2100 Jamieson Avenue Alexandria, VA 22314 EXHIBIT 4 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division FEB 9 20" RE 2703(d) ORDER AND 27036) PRESERVATION RE unsr RELATING TO GMAIL ACCOUT Misc. No. 10013193 FILED UNDER SEAL ORDER FOR REASONS stated from'the bench and in accord with speci?c rulings and instructions thereto, it is hereby - ORDERED that Goo gle?s Motion to Modify 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 ?thher ORDERED that Google is authorized to provide noti?cation of this Court?s 2703(d) . Order, dated January 4, 2011, to the Go'ogle Gmail use. Lwithin (90) days of providing "to the United States government the information requested in said Order, unless the government ?les a motion for an extension of that non-noti?cation period; it is further ORDERED that the government may request an extension of the non?noti?cation period for a maximum of sixty (60) days. - ATRUE comments: CLERK. us. DISTRICT count DEPUTY CLERK The Clerk is directed to ?le: this Order udder Seal and to forward copies of this Order to all counsel of record. ENTERED this 9th day of February 2011. Uni?d Stabs mm Judy Alexandria, Virginia EXHIBIT 5 Lem. 5 957mm coun? {59153335. l; - STATES DISTRICT comer marge EASTERN DISTRICT OF VIRGINIA Alexandria Division OFTI-IE ?2703(d) ORDER RELATING To MISC. N0. 10613793 TWITTER ACCO -. ORDER PURSUANT T0 13 use, $70310) This matter having come before the Court-pursuant to an application under Title 18, United States Code, it appealing lira]: it is in. the investigation to unseal the COurt?s Order of 1910 and authorize'l?witter to disclose that Order to its subscribers and customers, it is hemby ORDERED that the above-captioned Order of December 14, 2010 pursuant to 18 0.3.0; ?2703(d) be UNSEALED and that Twitter is authorized to_ disclose such Order. In all other reSpects. the .C or: it's Order of December 14, 2010 remains in effect. rue UNITED STATES MAGISTRATE. JUDGE Date: r0 if I Alexandria, "irgiuia EXHIBIT 6 JAN. 12. 2011 ?0.2313 P. 1/3 . FAX TRANSMISSION UnfEa'd WAWBV Euatom District 91 \?mmla - Justin W. M?m 11.3. W3 O?iw Bullang 21m4an1mn Ave. Mam. Wk 22314 Ta custudian ?Records 6911916 Fax 650-849-2939; 6502493429 From A Voice 703499-3760 11531513111 United States Attorney Fax Dat? January 12. 2011 Pages .3.inc1ud1ng 1115 page Subject Preservation letter under 16 U.8.C. sec. 2703(1) outwit mum ?0.2913 P. 2/3 Department of Justice United States Attomey Eastern District of Virginia PP: mm 9.3 [rrmw?m?u?e?n?tg armament-m dream: it! arm PHONE: 701-199-3712 January 12, 2011 hGOOglo 1600 Amphitheatre Parkway Maumain View. 94043 Am: Custodian of Records Facsimile: 650-649-2939; 650-249-3429 Re: Request for Preservation of Records Dear Googlo: Pursuant to Title 18, United States Code. Seotim 2703 this letter is a formal requeSt for the preservation of all stored and other evid regarding the following email ?mheriegel prooesst Account?) November 2009 to the present. . I request that you not diselose the existence ofthie rte-Quest to the subsoriber or any other person, other than as necessary to comply with this request. Ifeomplionoe with this request might result in a pennaoeut or temporary termination ofservloe to tho or otherwise alert any 11863! of the as to your actions to preserve the information deeotibod below, please ooroaot me as soon as possible and before taking action: I request that you preserve. for a. period of9'0 days, the infometion desoribed belowotureu?y in your possession in a form that toolnden the complete record. This request applies only retrospectively. It does not in any way obligate you to capture and preserve new infometion lite: arises after the date of this request. Thin request applicator the following items, whether in electrode or other form, including infomatiou stored on backup media. it'evoitable: 1. The contents of em- or ?le stored or for the Account and any associated oecotmts, and any information associated with those communications or ?les, such as the southeaucldes?nation email addressesorll'addresses. 2. All records and other hrforrnation, relating to the Account and any associated accounts including the following: a. subscriber names, user names, screen nautee, or other identities; JAIL 12.2011 b. i. Ifyou have?qucstions regarding this request, please call me at No.2813 P. 3/3 mailing addresses, residential addresses, business addresses, email addresses, and othcr contact infOrmation; length of service (including start date) and types of service u?lizcd; rccorda ofuoor comics; for any connections madcto or Account. the date. ?mo, length, and method data. transfer volmnc, user name, and source and destination Intomct Protocol commas): telephone words. including local and long distance tolephonc connection rccords. caller idooti?ca?on records. collular sits and actor information, GPS data, and condor network identifying information (such as tho IMSI, MSISDN, NED. or telcphooc o1! Went umber or other subscribe} number or identity, including tompomily assigned Work address; moans and source (if-payment for the Account (including any credit card or bank account numbers) and. billing words; correspondence and other records of contact by any person or entity about the - Account, such as ?Help Desk? notes; and any other records or oviduct. Mating to the Accoud. Sincerely, UNITED 3 TBS ATTORNEY Asslotmt Uoi?ed States Attomey EXHIBIT 7 FILE THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIAZEH 3m 28 3 5 6 Alexandria Division CLERK US DISTRICT COURT ALLRARERIA. mean IN THEMATTER 0F ORDER Case No. moor-3793 AND 2703.6) PRESERVATION REQUEST RELATING To GMAJL ACCOUNT UNDER SEAL RESPONSE OF THE UNITED STATES TO MOTION TO MODIFY 27039.1 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-mail.eom account (the subscriber?), whose records are the subject of the Order. Goo gle also asks that the, Order be unsealed; requests permission to discuss the Order with the-obscriber and his attorneys; and further requests that th- subscriber be given 20 days from the date of the Court?s order to ?le 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 modi?cation 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(1)). ATTACHMENT - ll?? THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA CSURT - 99? .visemIA IN THE MATTER OF THE 2703(d) ORDER Case NO. AND 2703 PRESERVATION REQUEST RELATING TO GMAIL ACCOUNT UNDER SEAL Alexandria Division ill? RESPONSE OF THE UNITED STATES TO OBJECTIONS TO ORDER OF FEBRUARY 9, 2011 The United States, by and through United States Attorney, Opposes Google Inc.?s (?Google?) objections to Magistrate Judge .decisions that the court-ordered legal process for business records pursuant to the Stored Communications Act (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. Speci?cally, in its pleading, Google Obj clots! to Magistrate Illing on February 9, 2011 that denied in 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 Google had asked Judge -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 Google styles its pleading as ?objections? and ?notice of appeal.? Google?s objections have been made pursuant to Fed.R.Crim. P. 5 9. 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). 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 - subscriber ?within (90) days of providing . . . the information requested in [the] Order, unless the government ?les a motion for an extension of that non-noti?cation period.? Roche Decl. Ex. 4. Magistrate - further ordered ?that the government may request an extension of the [Order?s] non?noti?cation period for a maximum of sixty (60) days.? (?Order Id. For the reasons set forth below, the United States opposes Goo gle?s objections and requests that the Court ?nd 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. Eggtual Procedural Background On January 4, 2011, upon application of the United States pursuant to 2703 ?nding that the information sought was relevant and material to an ongoing criminal investigation, Judge - 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 win?for 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 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 Intemet Protocol address(es); 2. non-content informatidn associated with the contents of any communication or ?le storedby 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). See Roche Decl. Ex. 1. The contents of the-ubscriber?s communications were not required. After ?nding ?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? 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 name- 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 ?le 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, Magistrate Judge-granted the government?s applicatiOn to unseal the Twitter Order and authorized Twitter to disclose it (?Twitter Unsealing Order?) based on the government?s representation that it was in the best interest of the investigation to permit disclosure to Twitteris subscribers and customers. See Roche Decl. Ex. 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- subscriber. See Google Mot. at 7. The government did not agree to this proposed modi?cation. 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, ?fIt?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 DeclThe 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 ?led its motion to modify the Order on January 18, 2011. Google Mot. at 7. On February 9, 2011, fbllowing a hearing, Magistrate Judge-emed Google?s motion in part, as described in u. more detail above. Goo gle now objects to this order. Arggment I. Standard of Review Google ?led its objections pursuant to Federal Rule of Criminal Procedure 59, and therefore this Court should review Google?s objections in accordance with the procedures of that "rule? See Google Mot. at 8. Rule 59(a) authorizes a party to ?le 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 ?le objections to a magistrate judge?s ?proposed ?ndings 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. (2). In the instant matter, Judge - denial of Google?s motion is an order that ?does not dispose of any charge or defense,? I 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 US. for Order-Directing a Provider of Electronic 2 The objection procedures in Rule 59 apply when a districtjudge has referred to a magistrate judge any matter or motion that falls within the scope of subparts and See Fed. R. Crim. P. 59(a), 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 governin roceedings in this court.? ED. Va. Local Cr. Rule 5. Pursuant to this Local Rule, Judge 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. 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. (de?ning ?court of competentjurisdiction?); 28 U.S.C. 63 magistrate judge may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States?). Accordingly, the govenunent agrees that Google may ?le its objections to Judge names Order pursuant to Rule 59. 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.Order Authorizing the Disclosure of Prospective Cell Site Information, 2006 WL 2871743, at *1 (ED. Wise. 2006) (same). Under Rule 59(a), this Court must determine whether Judge -ru1ing 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. see also 28 U.S.C. 636(b)(1)(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 GT SI Corp. v. Wild?ower Int Inc, 2009 WL 3245396, at *2 (ED. 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 -was the judicial officer who issued the 2703 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) common law quali?ed right of access to the warrant papers is committed to the sound discretion of the judicial of?cer 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 L?ldtiieconsidered ?dispositive,? thereby requiring this Court to review Google?s objections Under the de novo standard set forth in Rule 5903). See Google Mot. at 9. But, Rule 59(b) is inapplicable here. Pursuant to his authority under Local Criminal Rule 5 and 18 U.S.C. ?2703 Judge-issued an order, not ?proposed ?ndings and recommendations? that would be subj ect to review under Rule 59 Furthermore, Cioogle?s original motion is nondispositive for purposes of Rule 59 because it ?does not diapose 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. cf Aluminum C0. 0fAm., Badin Works, Badin, MC. v. US. Envtl. Prof. Agency, 663 F.2d 499, 501 (4th Cir. 1981) (motioit to quash ex parte administrative search warrant was dispositive for purposes of 28 U.S.C. 63 6(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 (ED. Va. 1998) (for purposes of determining if a magistrate order is dispositive, distinguishing administrative subpoenas, which are ?nal, appealable orders, from orders enforcing subpoenas issued in connection with civil and criminal actions, or with grand jury proceedings, which are normally not considered ?nal) (citing Reich v. National Engineering Contractng Co., 13 F.3d 93, 95 (4th Cir.1993) (other citations omitted). -Google?s motion simply sought to?modify a ?.2703 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 ?nal order? for purposes of appellate review under 28 U.S.C. 1291, not to whether a Magistrate?s Order is dispositivc or non-dispositive under Rule 59.3 Thus, the standard for this Court?s review is whether Judge-ruling was ?contrary to law or clearly erroneous.? Fed. R. Crim. P. 59(a). 3 Even assuming that Judge denial of Google?s motion is an ?immediately appealable final order" for purposes of esta is ing appellate jurisdiction wider 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. Radduie, 44? U.S. 66?, 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 -comrnitted 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 ?uther disclosures at this time will exacerbate the harm caused by that disclosure. A. The Non-Disclosure and Sealing Provisions 'of the Order Are Proper Under 18 2705(b) and Local Criminal Rule 49. As Judge concluded, the non-disclosure provision of the Order is appropriate under 18 U.S.C. 2705 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 appr0priate. See 18 U.S.C. 2705(1)). The court, in turn, shall issue the requested order: if it determines that there is reason to believe that noti?cation of the existence of the . . . court order will result in? (1) endangering the life or physical safety of an individual; (2) ?ight from prosecution; ?nal and binding disposition? as to a ?dispositive? motion covered by 28 U.S.C. 63 In fact, a ??nal 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 0r written order stating the [magistrate judge?s] determination.? Fed. R. Crim. P. 59(a). (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 .also appropriately sealed the Order. It is generally recognized that the 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 af?davits. Media General Operations, Inc. v. Buchanan, 417 F.3d 424, 429 (4th Cir. 2005); In I re Washington Post Company v. Hughes, 923 F.2d 324, 326 (4th Cir. 1991). ?But the right of access is quali?ed, and a judicial of?cer 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) 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 af?davits and applications is within 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, ., concurring) (citing Branzburg v. Hayes, 408 US. 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." 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 5 67, 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?). the discretionary powers of a judicial of?cer where, among other things, an ??af?davit contain[s] sensitive details of an ongoing investigation? and it is ?clear and apparent from the af?davits 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 onye Care Physicians ofAmerr'ca, 100 F.3d 514, 518 (7th Cir. 1996). The government?s application, without more, provided suf?cient basis for Judge Basis to conclude that notifying the-subscriber of the Order will have one or more of the adverse results listed in 2705(b). See Govermnent Eirhibit 1 (ex parte). 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 further con?rm that unsealing and disclosing the Order would seriously jeopardize the investigation. Therefore, this Court should ?nd that the non-disclosure and sealing provisions in the Order are proper under 18 U.S.C. 2705 and L. Crim. R. no error by including such provisions in the Order, let alone clear error. I B. Google Has No Statutory Basis to Challenge the Non-Disclosure and Sealing Provisions in the Order. Judge -correctly concluded that Google has no statutory basis to challenge the non- disclosure and sealing provisions in the Order. Pursuant to 2703 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((1). 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, 201 l, when asked about. its statutory authority to bring a motion to modify the Order, Google could cite only to 2703 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? disolo sure when the goverrunent had agreed to unseal the Twitter Order one day before it obtained the Order in this case. Judge - explained that 2703 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 reasoned that Google had no evidence that the Order was improperly issued. Finally, Goo gle could not show that compliance would cause an undue burden as required to quash or modify the Order under 2703 See 18 U.S.C. 2703(d). This is because under 2703 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, Goo gle argued that the Order was unlawful, and therefore, imposed an undue burden because the perpetualnature of its non-disclosure provision. Google conceded that this undue burden argument would be weakened, however, if Judge- modi?ed 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 1.8 U.S.C. 2708; United States v. Clenney, F.3d 2011 WL 322640 at 8 (4th Cir. 2011). 5 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 -ound, 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 ?om the perpetual nature of the nondisclosure Order. The court then modi?ed 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 - 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 signi?cant 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 t- 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 Dec]. Ex. 3). 2703(d) order. Indeed, Google customers know about and consent to lawfully issued legal process. See Google Privacy Policy, (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 Deol. Ex. incorporated here by reference, the Order is proper, and neither the- subscriber nor Goo gle can mount a viable challenge. Further, any additional arguments that the -ubscriber 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 Govt. Ex. 2 (ex part3).7 In short, even if the- 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 thlubscriber 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 con?dence.? Branzburg v. Hayes, 408 U.S. 665, 632 (1972). This is true even if WikiLeaks is a journalistic enterprise, which Goo gle 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 ?les 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 350, 852 (4th Cir. 1992); see also Univ. of v. E.E.O.C., 493 US. 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-r 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. Steelhommer, 539 F.2d 373, 376 (4th Cir. 1976) (Winter, ., dissenting), adopted by the court en banc, 561 F.2d 539, 540 (4th Cir. 1977) record fails to turn up even a scintilla of evidence that the reporters were subpoenaedto harass them or to embarrass their newsgathering abilities . . The governntent 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 speci?c and articulable facts showing that there are reasonable grounds to believe that the records or other information sought are relevant and material to ongoing criminal investigation.? Roche Decl. Ex. 1; see also 18 U.S.C. 2703 The - sub scriber?s potential challenges to the Order are even weaker because of the Order?s limited scope. The Order requires Googl?e to disclose certain business and transactional records about the -subscriber?s account. See Roche Decl. Ex. 1. The- subscriber has no reasonable expectation of privacy under the Fourth Amendment in these records. See 14 United States v. Bynam, 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 US. 735, 744 (1979) and United States v. Perrine, 518 F.3d 1196, 1204 (10th Cir. 2008)). It is dif?cult 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. 1). Google Has No Meritorious First Amendment Claims Goo gle 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 In re Application of United States of America for an Order Pursuant to 18 US. C. 2703 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 ?nancial 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)). I Indeed, 18 U.S.C. 2705 was enacted almost twenty-?ve 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 - Order 2, adopting a modi?ed 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 normal investigations.? Google Mot. at 14. See In re Sealng and Non?Disclosure of Pen/Trap/2703 (01) Orders, 562 F.Supp.2d 876, 881482, 895 2008) (recognizing that ?restrictions on speech and public access are presumptively justi?ed while the investigation is ongoing? and permitting a ISO?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 iommitted no error, and the Orders are neither clearly erroneous nor contrary to law. - lite Disclosure of the Twitter Order Does Not Jnstii?v Disclosure of This Order1 Particularly When Unsealing the Twitter Order Already Has Seriously Jeepardized 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 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 govemment? 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 ?led 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 con?rmed 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, the-ubscriber to Twitter announced a change in his behavior and made a general annotmcement 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 (presumath 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 1996) (citing Douglas Oil Co. v. Petrol Stops Northwest, 441 US. 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, EBJ. Into Service Attacks by Wikt?Leaks Supporters, NY Times, 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 justi?ed, and disclosure is not in the best interest of the investigation. Judge -"'committed no error in so concluding and the Orders are not clearly erroneous or contrary to law. 18 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 signi?cantly jeopardiZe the investigation. Finally, the United States respect?illy 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. Respect??ly Submitted, United States Attorney Assistant United States Attorney CERTIFICATE OF SERVICE I hereby certify that a tme and correct copy foregoing pleading was delivered on this 28?? day of February 2011 to the Clerk's Of?ce and that service will be made on the following individuals by electronic and otherwise: John K. Roche, Esquire Perkins Coie LLP 700 13th St., N.W., Suite 600 Washington, DC. 20005?3960 PHONE: 202.434.1627 FAX: 202.654.9106 Assistant nits 20 GOVERNMENT EXHIBIT 2 (1 DKT. #21) sq in F23 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA an ref are :13 in Alexandria Division earns as marsrer sneer area-aerate. wearers IN THE MATTER or THE ?2703(c1) ORDERRELATING To MISC. NO. 10613793 TWITTER ACCOUNTS: WIKJLEAKS, serge; - AND BIRGITTAJ Hearing: February 15, 2011 10:30 am. UNDER SEAL GOVERNMENTS OBJECTION MOTION OF THREE TWITTER so BSCIHBERS TO VACATE. ORDER on DECEMBER 14. 2010. UNDER 3 2703M) 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 Ionsdottir, and Rep Gonggrijp to Vacate December 14, 2010 Order: I. . Background On December 14, 2010, this Court entered a sealed order (the Order) pursuant to 18 2-703 (cl) directing Twitter, Inc, to disclose certain non?content records and other information pertaining to Twitter accounts, including those identi?ed as rOpdg; ioerror; and birgittaj. or each account, the Order speci?ed the following customer or subscriber information, for the period November 1, 2009, to the date of the Order: - subscriber names, user names, screen names, or other identities; mailingaddresSes,.residential addresses, business addresses, email addresses, and other contact information; connection records, or records of session times and durations; length or" service (including start date) and types of service utilized; . telephone or instrument number or other subscribernurnber or identity, including 'any temporarily.r assigned network address; and id mes? 6. . means and Source of payment for such service (including any credit card or bank account ntunher) and billing records. The Order also identi?ed 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 address(es); non-content information associated with the contents of any conununication or ?le stored by or for the account(s), such as the source and destination email addresses anle addresses. - 3. correspondence and notes of records related to the account(s). On January 5, 2011', this Court unsealed the Order (but no other document in this matter), and authorized lwitter 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 (ascociated with in error), Birgitta I onsdottir (assOciated with bir'gittaj), and Rep Gonggrijp (associated with rop_g) (collectively, the Subscribers). After discussions with counsel, on January 12-, 20l l, the ?govenuuent agreed with Twitter to a narrowing of the terms of the Order, reducing the number of records to be disclosed.? 'On ?On or about January 12, 20] 1, the government informed Twitter and the Subscribers that it agreed to the following with respect to the Order: 1. Thegovernment 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 credit card information, it need not provide su? ?h infennation; 3. the government had not sought and did not ex pact to receive the contents of any communications; 4- the government did not expect Twitter to provide records that would he 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 govermnent did not expect Twitter to produce the records of user activity for any cotuiections to or from the Account relating to public followers of a Twitter account, Apachc'logs, or replies to Twitter feeds; 5. the goverlunent and Twitter understood that the records of user activity for any connections to or from the Account would include the l? addresses of the Account holder?s 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((1) 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 Artieulab?l?e Factor? The Subscribers ?rst argue that no ?Specific and articulable facts? demonstrate that the Twitter records identi?ed in the Order are ?relevant and material? to a criminal investigation, as 2703 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? WikiLcaks topics,? the records identi?ed 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 governnient?s application disclosed, to allow them ?a fair. opportunity to challenge the Govemment?s assertions and highlight any material misstatements or omissions.? (Mot. Vacate at Iogins; and 6. the government believedthat the records of user activity for any connections to or from the Account would include non-content information relating to direct messages between the feur accounts listed in the Order (Wikileaks, ropgg, ioerror, and birgiittaj), for example non~ content information re?ecting the fact that a message was passed beb?ecn such accounts. The 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 govenunent con?nned that it was not seeking any information (content or non-content) relating to direct messages eXce'pt those exchanged among any of the four accounts listed in the Order. The Subscriber?s statutow claim is meritless. As this Court has already determined, the government?s application for the Order (the Application) satis?ed the governing standard by alleging ?speci?c and articulable facts showing tliat'there are reasonable grounds to belich that the records or other inferrnation sought are relevant and material to an ongoing criminal investigation.? (Order at The Order is therefore fully compliant with 2703 and the Court should reject the Subscribers? Speculation that the Application ?liker contains material errors or omissions? that render it insuf?cient. (Mot. Vacate at I Several reasons require rejectionof the Subscribers? 2703(d) argument. In the ?rst place, the Subscribers cannot move to vacate the Order on statutory grounds The Order was issued under 13 U.S.C. 2703(d), which is part of the Stored Communications Act (18 U.S.C. 270142) (the SCA). That Act expressly prohibits the improvising of remedies. Speci?cally, Congress provided that ?[t]he remedies and sanctions described in [the are the only judicial remedies and sanctions for nonconstitutional violations of [the 18 U.S.C. 2708; see United States v. Glenna)?, slip op. at 13 (4?h Cir. Feb. 3, 2011). Thus, because the Subsc'ribers? ?rst 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 standard, the Subscribers must identify-authority in the SCA that permits such a motion in the ?rst 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 violation. The SCA provides only two ways to challenge a 2703 order. First, the ?service provider" may move to quaSh or modify the order ?if the information or rebords 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 This remedy would theoretically be available to Twitter, the named seWiCeprovider, but it is not aVailabIe. to the Subsicribers. Second, a ?isubsci?iber or customer? may move to vacate an order, but only under certain conditions, including when the order seeks the contents of that subSGIiber or customer?s communications. See 18 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 conununications maintained for him have been cough Here, of course, the Order Seeks only ?non-content" records and information about the Subscribers? Twitter accounts. Notably, are not entitled to notice that the government has sought disclosure of non-content information under 2703 as the government has here. See 18 U.S.C. 2703 governmental entity receiving records er information under this section is not required to provide notice to a subscriber or customer"). 0n the other hand, if the government were seeking content information under Seetion 2703(b), notice (albeit notice. that may be delayed) is required Unless? a search Warrant is obtained See 18 Since Congress required that subscribers be noti?ed only when content is disclosei'it makes sense that Congress provided subscribers with. the ability to contest only such disclosures. See Chaney, 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 2If the Subscribers have been aggrieved by a wilth violation of the SCA, they may sue the United States for money damages under 13 U.-S.C. 271.2. 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. Pro-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 27040)) 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 Order this Court has already concluded that the government satis?ed the higher 2703(d) standard of providing ?speci?c 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.?3 313)! in terms, sect-ion 2704(b) does not permit customers to contest whether the re?Cords sought. by a 270301) order are material to an'invcs'li-gation, and iegisiative history confirms that Congress intended not to provide customers with this authority. As described above, until 1994, the standard for issuing :1 2703(d) order was identical to that for evaluating a 2704(1)) challenge: in both cases, courts licd'to determine whether the records sought were "relevant to a legitimate law enforcement inr?lnhy.? Sea?l?ub..L. 99?508, Title 11, 201, Oct. 21, 1986, 100 Stat. 1861. In 1994, Congress changed the 210381) 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 Pnb.L. 103-414, Title II, 207(a), Oct. 25, 1994, 108 Stat. 4292. Lacking a legitimate statutory remedy, the Subscribers instead ask the Court to review its own issuance of the Order de new 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 ?nd it more than suf?cient to meet the 2703 (ti) standard. Speci?cally, 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 subscriber information, including the subscriber?s name, address, connection records, subscriber number, and length of service; and 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 (0X2) government can bypass warrant or court order procedures ?and simply subpoena the records if it seeks only basic subscriber inferrnation, such as the name and address of the customer and telephOne call logs?); United States v. 604 F.3d 161,164 (4th Cir. 2010) (individual had no subjective or reasonable expectation of privacy in his internet and ?phone "subscriber information," Let-hisname, email address,~te1ephone number and physical address, when he voluntarily conveyed this information to internet and telephone companies) (citing Smith, 442 US. at 744, and. Ear-tiled States v. Perrine, 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 speci?c and artiqu able facts to support a reason to believe 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 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 11? addresses (which are akin to telephone numbers for a computer), and dates. and times (this Would include the 1P 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 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 ?3pccific and articulable facts? standard derives from the Supreme Court's decision in Terry.? United States v. Perrinc, 518 F.3d 1196, 1202 (10th Cir. 2008) (citing Terry Ohio, 392 US. (1968)). It follows that ?this standard is a lesser one than probable cause.? In re Application of United States for Lin Order Directing a Provider of Electronic Carnmunication 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 8. Rep. No. 99-541, at 44-45 (1986), reprinted in 1986 3555, 3598-99. The Terry standard'is met ?when an of?cer ?point[s] to speci?c and articulable facts which, taken together with rational inferences from those facts, evince more than an inchoate and unparticulariZed suspicion of criminal activity.? United States v. Mason, 628 F.3d 123, 128 (4th Cir. 201-0) (Quoting United?StaIc-s v. Branch, 537 F.3d 328, 336 (4th Cir. 200 i The Subscribers imply that the ?speci?c and articul able facts? standard is more onerous than the Terry rule (Mot. Vacate at 5), but they identify no court that has ad0pted this position, and the government is aware of none. The presence of the word ?material? in 18 U.S.C. 2703 does not transform the 27 03 standard into one that requires a showing that the records sought are ?vital,? ?highly relevant,? or- ?essential,? as the Subscribers suggest. (Mot. Vacate at 5.) The Subscribers? contrary argument is based on cases that discuss ?materiality? in contexts very different from 2703 See'GVIot. Vacate at United States v. Valenzuela- Bernal, 458 US, 853, 867?73 (1982) (evaluating whether deportation of potential witnesses violated defendant?s constitutional rights); Roviaro v. United States. 353 US. 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 couldpreclude defendant ?'om introducing classi?ed hrform'aticn at trial). Here, the-facts described in the Application fully meet the Terry standard and therefore satisfy requirements. Mason, 628 F.3d at 128. Further, there is no merit to the Subscribers? claim that the records desoribed in the Order cannot be ?relevant and material to an ongoing criminal investigation? simply because some of them relate to ?that have nothing whatsoever to do withWikiLeaks.? (Mot. Vacate at By thc?S-uhscribers? logic, the government could never use a 2703 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 radical practical implications. Should providers be required in the ?rst instance to review individual trans-action records to detemiine? relevancy? Providers- are singularly ill-equipped to determine precisely what information would be relevant to an ongoing investigation. The is 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 Ducar Tecum, 228 F.3d at 348-49 (in explaining that subpoenas are less intrusive than search warrants and therefore require a lower standard, noting that ?[t]he Government cannot be required to justify the issuance of a grand jury subpoena by presenting evidence suf?cient 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 US. 2'92. (1991)). Contrary to the Subscribers? assertions, the Order requires the pro duction 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 identi?ed account holders. In summary, because the SCA strictly limits the remedies aVailable to subscribers whose non-content information is songht, the Subscribers cannot challenge this Court?s ?nding under 2703(d) .that ?speci?c and articulable facts? support the Order. And even if they could mount such a challenge, it would?t?ail, since the facts in the Affidavit are more. than suf?cient. 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 Amondmen?t rights.? (Mot. Vacate at The Subscribers accuse the 4Neither Mr. Gonggrijp nor Ms. Jonsdottir appears to be aUnited States citizen. Additionally, no information, whether in their ?ling or Within the government?s knowledge, suggests that either of them maintained a signi?cant continuing presence in the United States during the period of the 10 government of undertaking a ??shing 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 govermnent can that the information sought ?would further acompel ling 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-freedo ms. In reality the Order, which. is not conceptually 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 - the Order based on alleged First Amendment interests. (Mot. Vacate at 8.) The Fourth CirCuit has speci?cally 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 corpomte records ofa distributor of sexually explicit ?lms. In re Grand Jury 8 7?3 Subpoena Duces Tecum, 955 F.2d 229, 234 (4vm Cir._ 1992). Instead, the coort directed the district court to ?balancethe possible constitutional in?ingernent and the 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 within the United States. Sec, 3.3., United States v. Verdugo- Urquidez, 494 U.-S. 259, 265 (1990) (textual analysis of Constitution. ?suggests that ?the people? protected by the Fomth Amendment, and by the First and Second Amendments . . . refers to a class of persons who are part of a national community or who have othelwise developed suf?cient connection with this country to be considered-part of that cominunity?). Mr. Gong-grijp 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. Appelhaum (who is a United States citizen). In any event, for the reasons setter-til iu?a, none of the Subscribers identifies a constitutional.violation warranting the extraordinary relief that they seek. ll documents? when ruling on the modem to quash, ?on a case~by?casc basis and without putting an),r special burden on the Id. Doubtless,_as the Subscribe-rs asse'rhthe freedoms of speech and associatiOn constitute important rights protected by the First Amendment. But, setting aside legal platitudes, the Subscribers faii 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 wasalso public, since the followers of the Sa?tiscribers?l Tweet-s posted their replies on the Intemet. Thus, althOugh the Subscribers claim otherwise, the government has not embarked on a ??shing 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 i see, and can have no expectation ofpr-ivacy in. them. Nor. does the government seek the contents of any of the Subscriber-3? private direct messages (akin to private Internet chats), or seek to identity others with whom the Subscribers communicated by direct messages. (it/lot. Vacate at 8.) As narrowed by the gouernmentis agreement with Twitter, the Order? 3 scope extends only,r to non?content connection records for past comm-miic?ations involving the identi?ed account holders: It does not seek prospectiVe connection records, or attempt to identify the Subscribers? associates. It does not control or direct the content of the Subscribers? speech, or restrain, punish or burden any speech or association'in which the bubsc?bers may have engaged. For good reason, the Subscribers fail to esplain how the Order chills their freedom of speech or association: they cannot. See Univ. v. E.E.0.C., 493 US. 182, 197-98 (1990) (subpoena for academic papers dict 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 con?dential news sources?). Thus, even if the ?substantial relationship? test were required the Fourth Circuit which it is not since enibreernent of the Order will not chill speech or association, that test would not apply. In re Grand Jury 87-3 Subpoena Dudes Team, 955 F.2d at 234 (following Branzburg and University of 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 shorting of harassment or bad faith. Branzburg, 408 U.S. at 6 8'2, 707; Univ. of 493 U.S. at'2?01 11.8 (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?Shain, 978 F.2d 850, 852 (4th Cir. 1992). Finally, the Subscribers do not allege and cannot show that the gotrernrnent 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 leisure the Order. The government?s decision 5M0 st 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. 270301), such as the Order, are similar to subpoenas because they also require the disclosure of deconients, but they are arguably more protectiye of citizens? interests because the).r 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 speci?c . 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. 270331)) 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, S39 F.2d373, 376 (4th Cir.. 1976) (Winter, ., dissenting), adopted by the court en banc, 561 F.2d539, 540 (4th Cir. 1977) record fails to turn up even a scintilla of evidence that the reporters were suprenaed to harass them or to embarrass their uewsgather?ing 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 TP Addresses Provided to Tw-itter, the Order Does Not Violate Their Fourth Amendment Rights.- The Court should likewise reject the Subscribers? claim that the Order threatens their liourth Amendment rights. The Subscribers identify only one aspect of the Order that supposedly implicates such rights: its directive that Twitter produce the Internet Protocol that the Subscribers used to to into their Twitter acco cuts at particular dates and times. (Mot. Vacate at 10.) According to the Subscribers, this IP address information, in connection with the dates and times of the account logius, implicates the Fourth Amendment because it ?could allow the government to discern the physical lccat'icn of the parties at the exact time they were 14 publishin on Twitter,? Id. However, eyen 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 inll? address information, and the Order cannot not be vacated on that ground. 11? addresses are analogous to telephone numbers. See United States v. Forrester, 312 F.3d 500, 510 (9th Cir. 2008). Just as every telephtme is assigned a number that phone companies use to route calls, every computer directly connected to the Inteme't is assigned an IP address that ?serves as the routing address for email, pictures, requests to View a Web page, and other data sent across the Interne Register. com, Inc. v. Verio, Ina, 3.3 6 F.3d 393, 409 (2d Cir. 20 04). ?Like telephone numbers, . . . IP addresses are not merely passively conyeyed through third party equipment, but rather are "voluntarily turned over in order to direct the third party'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 Ii? addresses of websites visited by Inteniet 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 and should be governed by the same legal rules, Smith v. Maryland, 442 US. 735 (1979), disposes of?the Subscribers" Fourth Amendment claim. In Smith, the Supreme Court?eoncluded among other things that telephone users had no reasonable expectation of privacy in the telephone numbers they dialed becahse 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 US. at 744. This 15 conclusion is consistent with the general rule that ?a person has no legitimate expectation of- privaey in information he voluntarily turns over to third parties.? Id. at 743 ~44 (citing cases); see also United States v. Miller, 425 US. 435,440 (1976) (bank depositor had no ?legitimate expectation of privacy? in ?nancial infor'mati on ?voluntarily conVey?ed to . . . banks and exposed to their employees in the ordinary course of business"); Byuum, 604 F.3d at 164 (internal 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 ?Fautomatically 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.? Privacy Policy, (last visited February 1, 2011). Accordingly, based on the Supreme court's reasoning in Sat-i111, the Subscribers cannot new claim a reasonable expectation of privacy in Twitter?s records of their IP addresses.6 To the govornment?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 infermation, the Order Would not be imprOper under the Fourth Amendment. See Smith, 442 US. at 744 Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities?); SE. C. v. Jerry T. ?Bri?en. Inc, 467 US. 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. Wailing, 327 U.S. 186, 208 (1946) (explaining Fourth Amendment requirements for Subpoenas). 16 reasonable expectation of privacy in address records. Indeed, at least two courts of appeals have af?rm ati'Vely held that Internet users have no reasonable expectation of privacy in IP address information.7 See Forrester, 512 F.3d at 510 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 speci?c purpose of directing the routing of United States v. Christie, 62413.3d 558, 574 (3d Cir. 2010) reasonable eXpectation of privacy exists in an address, because that information is also conveyed to and, indeed, from third partiesjincluding This Court should adopt the reasoning of these cases and hold that the 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 from 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 infonnation that might enable the gavernment to TThe 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 1-2 11.10.) But there is no legal basis for distinguishing Twitter's 1P address records from the address records of any other Internet service provider. In any event, cases that analyze the. collection ofI?P address information are much more relevant to the Subscriber's' Fourth Amendment argument than the cases cited by the Subscribers in the same footnote, which evaluate goverrunent searches of computers seized from private homes and government efforts to obtain the content of email messages. See raises Fresh, 275 F.3d 391, 402-03 (4th Cir. 2001) (consent-based search of home, computer, and computer files); United States v. Mom-r, 592 F.3d 7'79, 786 (7th Cir. 2.010) (warrant-based search of computers seized from defendant's home); [hit-red States v. Carey. 17?. F.3d 1268, 1275 (10th Gin 1999) (same); Ur?rired.? States v. Warshek, F.3d m, 2010 WL 50?l766, at *1 1, *14(6th Cir. 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 infbn?nation, even when collected in real-time, when the government obtains it from the phone provider. See Smith, 442 US. at 745 (concluding that phone user had no legitimate expectatibn of privacy in phone numbers he dialed); Reporters Committeefbr Freedom of Press v. 593 F.2d 1030, 1046 1149 (DC. Cir. 1978) (citing cases for proposition-that telephone subscribers have no Fourth Amendment basis for challenging government inspection of their toll records). In this respect, IP-a-ddress connection records are no di?erent than land?line telephone records, exceptthat they are less gee-speci?c, 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 dravm, such as bank records, employment record's, credit card records, and other records of customer purchases. See, a. g. Miller, 425 US. 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 ?go could use these records to dissent the Subscribers? locations at certain times. The cases cited by the Subscribers do not support their cl aim that they have a Fourth Amendment interest in Witter?s IP address records. First, United States v. Karo, 468 US. 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 US. at 715-. But neither the Supreme Court nor the Fourth Circuit has applied this tracking?device standard to business records, even timugh many kinds of business records could reveal someone?s location at a particular time. Indeed, if Karo did apply to business records, it would implicitly overrule Smith v. Maryland, muted 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. Fmtherrnore, applying the Kama 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 of?ce, because any of these records could reveal someone?s location in a private space at a particular time. See United States v. Gray, 49] F.3d 138, 153 (4th Cir. 200??) (citing O?Connor v. Ortega, 480 U.S. 709 (1987)) (?El?n individual e'anhave an expectation of privacy in his workplace?). The logical result of such an e'irpansion ofKaro 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 the Karo tracking?device standard were somehow applicable here, the- Subscribers still wbuld have no Fourth Amendment interest in Twitter?s records of their addresses. Althoughthe govermnent 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 aprivate space.8 See id. at 720 (?nding no Fourth Amendment violation when government used tracking device to detennine that can of ether was inside warehouse because, inter alto,- the device ?did not identify the Speci?c locker in which the ether was located?). witter?s? ll? 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 of the leading companies advertises ?rst its free geolocation tool can determine the location of ?79% [of US. IP addresses] Within a 25 mile Accordingly, even if Karo applied to business records, the Subscribers have failed to establish that the acquisition ofTwitter address records woulclviolate a Fourth Amendment right under Karo. Cf United States v. Ortega-Estrada, zoos wr 4716949, at *13 (up. Ga. Oct. 22, 2003.) (?nding that even are information accurate to Within-32 meters ?hevoaled only a general area where the suspect was at a particular time, and thus, did not-invade a place-where- he might have an eXpectat'ion of privacy?). The Third Circuit Opinion. on which the Subscribers principally rely, also does not help their cause. (Mot. Vacate at 1.3.) In that case, the court agreed that the privacy interests at issue in Karo ?are con?ned 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 cellssite location information (GSLD'because there was no evidence in the record that "ic Subscribers cite a recent DC. Circuit decision, United States Maynard, 615 F.3d 544 (DC. 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 Maryland and Kate United States, 389 U.S. 347 and con?icts with trackingudevice decisions oi" three other courts of appeals.- See United States v. Marquez, 605 F.3d 609-10 (81116122010); United States v. Pinata-Moreno, 591 F.3d 1212, 1216-17 [9th Cir. 2010}; United States v. Garcia, 474 F.3d 994, 997-93 (7th Cir. 20 historical CSLI revealed infonnation about the interior of?a home.q See id. at 313. Likewise, the Subscribers have presented no evidence that Twitter?s IP address records would reveal infonnatioii about the interiors of their homes. Furthermore, even if the Third Circuit?s Opinion werepersuasive- and binding on this Court, of 620 F.3d at 320 (Tashima, ., concurring) (noting that majority opinion ?vests magistratejudges with arbitrary and uncabined discretion to grant or deny issuance of 270301) 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 cencluded 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.? in fact, just eight days after issuing the Third Circuit Opinion, the Third Circuit cited-Smith in support or its conclusion that ?no reasonable expectation of privacy exists in an IP address." United States v; Christie, 624 F.3d .558, 574 (3d Cir. 2010). In sum mary, for all of these reaSons, the Order does not implicate the Subsc?bers? Fourth Amendment rights, and cannot be vacated on that ground. DC 'H?vi?g Properly ISS?li?d ?ie'Ordc'r', This Court Need Not 9Records of CSLI reveal among other thin gs 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 303. mThe Third Circuitdistinguished on the ground that cell-phone customers do not ?voluntarily? share CSLI with their phone providers. See Third Circuit Opinion, 620 F.3d at 1" 31743. 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 tech-savvy world, the notion, haidly asserted by the Subscribers, that a typical Internet user has no awareness that his IP address is transmitted to the interact sites with which he or she communicates (such as Twitter), is dubious at best. (Mot. Vacate at 14.) a .An. Lhr-' "Ir" ii? 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((1) 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 gamelv to conjure thern, no ?serious constitutional questions? attend the gavenunent?s straightfomard 2703(d) application inthis case. And even if, as Subscribers claim, 270303) gave courts the discretion to_?deny applications for 2.703(d) orders? that satisfy the 2703 stanard (Mot. . Vacate at 14), that discretion would be inapplicable here, since the Court is not being aslced to rule on a pending application, but instead to vacate its already-issued order. The Subscribers have identi?ed 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 IRA), the Subsc?ribers are seeking yet another improvised remedy not anthorized 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 stanite?s language and structure. The subscribers? argument relies on a Third Circirit case interpreting the ?only it? language of 270381) to. mean that the ?speci?c and articulable facts" requirement is ?a necessary condition for obtaining 'a 2703(d) order, but not a suf?cient one. See Third Circuit Opinion, 620 F.3d at 319 (stating that {5.2703 ?gives the MI 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 should be rejected because it renders super?uous the phrase ?and shall issue" in 2703((1). The Subscribers? ?necessary but not necessarily suf?cient? interpretation of 2703(d) is equivalent to the following formulation, which omits the critical ?and shall issue" language of a? 2703M) order ?may be issued by any court that. is a court of competentju?sdictio'n only if the governmental entity offers speci?c and articulable facts . . . The 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 ward shall be superfluous, void, or insigni?cant.? Gunnells v. Serve, 348F361 417, 439?40 (4th Cir. 2003) (quoting TRW Inc. v. Andrei-vs, 534 U.S. 19, 2'1 (200]) (internal quotation marks omitted?. Furthermore, the word ?shall? has critical importance in a statute: ?[tlhe word ?shall? is ordinarily ;the language of Alabama v. Bozemcm, 533 US. 146, 153' (2001). Because the Subscribers? interpretation ot?? 2703(d) improperly renders ?shall? super?uous, it offers no basis for the Caurt?s reconsideration of the Order. Moreover, as Judge Tasl'iima stated in his concurrence in Third Circuit Opinion, the Subserib?ers? construction of 2703 ?provides no standards for the approval or disapprox?al of an application" for :1 2703(d) order. 620' F.3d at 319 (Tashim'a, 1., concurring). Their interpretatibn would permit ?a magistrate judge to arbitrarily denyr an application under 2703(d) without any reasoned basis. As Judge ashima stated, such an interpretation ?is contrary to the spirit of the statute.? Id. The Subscribers divine a ?sliding scale? at work in 2703 Subseribers? 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, Con gress could not 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 ntiStaken.? Under this doctrine, Congress raises a serious doubt as to its consititutionalily, ?when an Act of [coorts should] ?rst 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 Subscriber's have utterly failed to raise serious doubts about the constitutionality of 2703 rendering that doctrine inappo-sit?e. Thus, there is no reason for this Court to avoid any constitutional challenges, serious or otherwise, raised by the are continually struggling to update legisl presumption, inherent in the promulgate legislation. whic Application ofthe omitted). For all of these reasons, the Court shoal Subscribers. a ?eld like search and seizure law, where lawmakers ation to cope with changing technology, the doctrine of cOnstit-utional avoidance, that Congress did not intend to It ?raises serious constitutional doubts,? has little applicability.? In re United States, 632 F. Supp. 2d 202, 210 (E.D.N.Y. 2003) (internal citation reject the Subscribers? constitutional avoidance argument and decline to vacate the Order. . Subscriber Jonstl'ot?r?s Status as a Member 'of Iceland?s Par liamcut D'o cs Not Insulate Twitter?s Records From Disclosure Under the Order. Lastly, Parliament means that the Order strong constitution government ?is conducting the Subscribers claim that Ms. Jonsdottir?s status as a member of the Icelandic ?appears to violate Icelandic law,? since she is ?protected by a al inununity in Iceland." (Mot. VaCate at 16.) The Subscribers protest that the a criminal investigation which sweeps in Ms. onsdottir?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 that this investigation ?creates a perilous precedent for foreign government efforts to seek information about members of the US. 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." US. Const. art. l, 6, cl. 1. The Speech or Debate Clause ?serves to immunize a member of Congress from being questioned about his legislative acts.? United States v. Je?erson, 546 F.3d 300, 304 n.2 (4lh Cir. 200 8). ?Put simply, the Clause provides legislators with absolute immunity for their-legislative activities, relieving them from defending these actions in court." Id. at 310. But the constitutional protections afforded legislators are limited and 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 these acts.? (haired States v. Brewster, 408 US. 501, 512 (1972); United States v. Je?erson, 534 F. Supp. 2d 645, 651 (ED. Va. 2008) privilege applies only to those activities integral to a Member?s legislative . activities that are integral to the Member?s participation in the drafting, - consideration, debate, and passage or defeat of legislation? ?(footnotes om-itted)). 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 nota license to commit crime." Jefferson, 534 F. Supp. 2d; at 652. 25 More, the Subscribers' assertiOn of legislative immunity based on Ms. Jonsdottir?s status as a foreign legislator is fatally ?awed, 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 ?Senators and Representatives.? See United States v. thlock, 445 as. 360, 366 11.5 Second, even if apart from the Speech or Debate Clause Ms. Jonsdottir quali?es for ?legislative immunity? in courts of the United StatesWash: Suburban Sanitary Comm. ?-F.3d 2011 WL 228591 (4Lh Cir. 2011) (protected legislative acts ?generally bear the curward 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 con?dential information, but rather data that Ms. onsdottir voluntarily provided to an American corporation, and in which she has no privacy interest. The Order does notlcompel testimony ?om any person. Cf.? U.S. Const. art. I, 6, cl. 1 (legislators ?shall not be questioned . . . It does not seek content - so it is irrelevant Whether Ms. Jonsdottir?s'Tweets were 4? #?predominantly in lcelandic,? or in any other language-(Mot. Vacate at- 16.) It 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 knovm to be used by members of Iceland?s parliament; the other Subscribers do not he 1d such status. In short, upon examination, the Subscribers? claim that Ms. Jonsdottir?s status as a parliamentarian gives rise to ?concerns? in this 2703 proceeding is vacuous. Cf Wash. 26 Fourth, and ?nally, a legislator cannot decline to participate in a lawful criminal - Suburban Sanitary C'omm. 2011 WL 228591, at *9.(reiiusing to quash administrative subpoena at preliminary stage of investigation where it was unknown whether investigation would evolve into lawsuit or whether deiicnding such a suit would require legislators? testimony or involvement). I Third, even if Ms. onsdo?rtir could invoke legislative 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 US. 1 ll, 132 (1979). Moreover, a legislator?s public statements, including newsletters and press releases, are ?not part of the legislative function or the deliberations that make up 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.? a 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 proceeding - based on her public 'Twects. investigation, or prevent others from doing so, based on his or her status. In Gravel v. United States, 408 U.S. 606 (1972), a United States Senator moved to quash a federal grand jury subpoena served on amember of the senator?s own staff. The grand jury was investigating possible crir'nes-relating to the release and dissemination of the Pentagon Papers. It appeared that the Senator had read extensiver to a subcommittee from the Pentagon Papers (which were then 27 classi?ed) and had placed all 47 volumes in the public record, and had afterwards negotiated with publishers about publishing the documents. 408 US. 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 goverrn'n'ent 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. Re?ecting 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. It republication of these classi?ed papers would be a crime under an Act of Congress, it would not be entitled to immunity under the 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 US. at 626. The Court further epined that it did not ?perceive any constitutional or other privilege that shields [the aide], any more than any other witness, from grand jury questions- relcvant to tracing the sour-Cc oi" obviously highly classi?ed documents that came into the Senator? 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 investi gation, or to prevent athird party from complying ndt?h lawful investigative process. See Brewster, 408 US. at 516 (purpose of Speech or Debate Clause was not ?to make Members of Congress super-citizens, immune from criminal r?eSponsibility?). Here, Ms. Jonsdottir manifestly cannot invoke her position as an Icelandic parliamentarian and thereby block Twitter?s compliance with an Order to provide non-priviie ged and no n?oontent information that she voluntarily relinquished to that corporation months ago Even if she were a member of Congress, she could not do so. Conclusion For the reasons stated, this Court should deny the Suhs'eribers? motion to vacate the Order of December 14, 2010. By: 29 Respeet?ll?ly submitted, Neil H. MaoBride United States Attorney John S. Davis Traey Doherty-McCorn?ek Assistant United States Attomeys United States Attorney's Of?ce 21.00 Jamie-son Avenue Alexandria, Virginia 22314 (703) 299-3700 CERTIFICATE OF SERVICE. I HEREBY CERTIFY that atrue copy of the foregoing Objection was ?led with the Clerk of the COLll't on February 7, 2011, and a copy of this ?ling was e-mailed to opposing counsel at the following addresses: John K. Zweriing Johnathan Shapiro Stuart Sears GreenSpun, Shapiro, Davis, 85 Leary Zwer-ling, Liebig 8r. Moseley, RC. 3955 Chain Bridge Rd 108 N. Alfred Street Se?ooncl Floor Alexandria, VA 22314 Fairfax, VA 2203 0 meerlingeom Js@greenspunlaw.eom Counsel for Jacob Appelbaum Nina J. Ginsberg Dimuro Ginsberg 908 King Street, Suite 200 Alexandria, VA 22314 nginshereagdimuroeom Counsel for Rep Gongg?jp Rebeooa K. Glenberg ACLU of Virginia Foundation, Inc. 530 Main Street, Suite 310 Richmond, VA 23219 rolenherg@.aeinva.org Counsel for Birgitta Jon-sdottir ls/ John S. Davis Assistant United States Attorney 2100 Jamison Avenue Alexandria, VA 22314 Phone: (703) 2996700 Fax: (703) 299?3932 30 ATTACHMENT 1 IL. THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ZDILFEB 28 i3 in 50 Alexandria Division CLERK us DISTRICT cuuar IN THE MATTER OF THE 2703(d) ORDER Case NO. 1:10813793 AND 2703(f) PRESERVATION REQUEST RELATING TO GMAIL ACCOUNT UNDER SEAL RESPONSE OF THE UNITED STATES TO MOTION TO STAY PRODUCTION PENDING RULING ON OBJECTION TO 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 -decisions that the court-ordered legal process for business records pursuant tO the Stored Communications Act (18 U.S.C. 2701-12) should remain under seal and not be disclosed for a limited period Oftime 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 ?-subscriber?) under 13 U.S.C. 2703(d). Google had asked Judge-O 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 cou1d_?provide immediate notice? to the ioerror subscriber. Google Mot. at 2 (emphasis added). Magistrate 1 -adopted, instead, the government?s reasonable proposal to modify the Order to authorize Google to provide notice to the-subscriber ?within (90) days of providing . . . the information requested in [the] Order, unless the government ?les 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-noti?cation period for a maximum of sixty (60) days.? (?Order 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 I 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: whether the stay applicant has made a strong showing that he is likely to I succeed on the merits; (2) whether the applicant will be irreparany injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and the public interest lies.? GTSI Corp. v. Wild?ower Int'l, Inc., No. 1:09cv123, 2009 WL 3245396 at *1 Sept. 29, 2009) (citing Hilton v. Braunskill, 481 US. 770, 776 (19.87) (collecting cases) and James Wm. Moore, Moore's Federal Practice 62.06[3] (3d ed.2007)); United States v. Clark, Nos. 1936, 1980 WL 1502 at *1 (M.D.N.C. Feb. 6, 1980) (citing 11 Wright Miller, Federal Practice and Procedure 2904 at 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 1990). stay is not a matter of right, even if irreparable injury might otherwise result.? Nlcen v. Holder, 129 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 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.? Nlcen, 129 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 Likelv 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 determination of a non-dispositive motion; and (2) the underlying merits. GTSI Corp. 2009 WL 3245396at A. Standard of Review The parties disagree on the appropriate standard of review. See Google Mot. at 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. 2008 WL 4191511, at *1 (WD. Pa. Seth 10, 2008), vacated on other grounds by 620 F.3d 304 (3d Cir. 2010) (reviewing objections to magistrate judge?s denial of a 2703 court order under Fed. R. Crim. P. 59(a) and 28 U.S.C. In re U.S. for an Order Authorizing the Disclosure of Prospective Cell Site Information, No. 2006 WL 2871743, at *1 (ED. 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) 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, athird?party recipient of court-ordered process. Google is wrong as demonstrated by the plain reading of Rule 59 of the Federal Rules of Criminal Pro cedure.l Further, the cases Google cites in support of de novo review are inapposite, applying to whether a district court order is an immediately appealable ?nal order for purposes of appellate review underl28 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 ?le 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 ?le objections to a magistrate judge?s ?proposed ?ndings 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. Grim. P. 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 -subscriber before producing the required records instead of waiting 90 days following its production to make the disclosure. Thus, Google disagrees with Magistrate Judge -decision 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?1 1. 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 1618. It is not encugh that Googlefs ?chance of success on the merits be ?better than negligible.? Nken, at 1761 (quoting So?net v. INS, 188 F.3d 703, 707 (7th Cir. 1999). Google must make a ?strong showing,? GTSI Corp. 2009 WL 3245396, at 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 conclusions were erroneous, and it has certainly not shown that they Were clearly erroneous or contrary to law. Gov?: 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. Go ogle, 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 Gcogle?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 and the- subscriber would not have a valid basis to challenge the Order even it: Google did provide him with notice. Id. 11. Google Has Failed to Show that it will be Irreparablv Injured Absent :1 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 -subscriber 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 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 irreparany 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 US. 449, 460 (1975)). Even assuming Google can properly step into the shoes of the-subscriber, its conclusory statements insuf?ciently establish irreparable injury. The Order does not prevent Google from notifying the- subscriber forever. It simply delays noti?cation until after Google has produced the documents for a reasonable period of time pending the ongoing Criminal investigation. Google presumably will notify the - 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- 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. Jascalevz'ch, 439 US. 1301, 1302 (1978) (denying application for stay of New Jersey Supreme Court order that re?ised 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 stage in the proceedings, and because the trial court viewed the documents suf?ciently material to conduct an in camera inspection, no perceptible irreparable injury); Mohawk Industries Inc. v. Carpenter, U.S. 130 599, 607 (2009) (in ruling that a disclosure order of attorney? client privilege documents did not qualify for immediate appeal, explaining that [a]ppellate 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 fruits are excluded from evidence?); United. States v. Myers, 593 F.3d 333, 346 (4th Cir. 2010). I The Issuance of 3 Stay will Substantially Iniure 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 ef?ciently conduct a lawful criminal investigation. The Order was issued by a neutral magistrate judge on January 4, 201]. Google?s compliance was due three days thereafter. The two-month delay in getting the sought?after records has already prejudiced the investigation. See Nken, 129 at 1757 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 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 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 -learing until Judg- 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 ef?cient conduct of the criminal justice system. Indeed, ?these [two] factors merge when the Government is the opposing party.? Mean, 129 at 1762. The public?s interest is addressed further below. IV. The Public?s Interest in Law Enforcement and the Effective and Ef?cient Administration of the Criminal Justice System is Best Served by Requiring Google to Eclose the Records Peruiiner the Court?s Consideration of its Obiections Google focuses on whether the public interest is served by its disclosure cfrhe Order to the mubscriber. 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 ef?cient administration of the criminal just system has been ?nnly established in a variety of contexts. See generally, Zurcher Stanford Daily, 436 US. 547, 560-62 n. 8 (1970) (recognizing the fundamental public interest in implementing the 3 The government made this motion on the basis of Googie?s concern that a decision by Magistrate -wou1d ?prejudge? any free speech or privilege objections that Google?s usar may wish to raise by describing them as meritiess.? 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. _Respeot?111y Submitted, United States Attorney By: Assistant United States Attorney 11 CERTIFICATE OF SERVICE I hereby certi?r that a. me and correct cop}r of the foregoing pleading was delivered on this 223'.th day of February 2011 to the Clerk?s Of?ce 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, DC. 20005-3960 PHONE: 202.434.1627 FAX: 202.654.9106 E-MAIL: JRoehe@perkinscoie.com Assistant United States Attorney 12 ATTACHMENT IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA run -1 i2: 01 CLERK us . 665% Mscowsl gpvmemm I IN PRESERVATION REQUEST RELATING To GMAIL ACCOUNT FILED UNDER SEAL GOOGLE REPLY IN SUPPORT OF ITS OBJECIIONS TO ORDER OF FEBRUARY 9, 2011 AND NOTICE OF APPEAL PURSUANT TO FED. R. CRIM. P. 59 Google Inc. (?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. P. 59. The government has admitted that the demand at issue here (the ?Order?)1 and the I unsealed Twitter Order2 relate to the same investigation. The government has also acknowledged that the subjects of the Twitter Order (including Twitter user-and 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 ?rst place or to remain sealed now. The government has ?buyer?s remorse? for having unsealed the Twitter Order, and wants Goo gle?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 govemrnent lists a ?parade of horribles? that allegedly have already I See Declaration of John K. Roche, Ex. I (?Roche Decl.?) (?led Feb. 17, 2011). 2 1d. Ex- 2. occurred since it unsealed the Twitter Order. The government fails to establish how any of these past developments could be ?rrther exacerbated by unsealing this Order. The subject of the Order liker 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 ??om 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 respect?rlly requests that'the Court modiiy the Order pursuant to the terms of Google?s proposed order. I. ARGUMENT A. The Court?s Standard of Review is De Novo Judicial orders based on sealed certi?cations from the government must be reviewed de novo because review of such orders is done ?ex park: and thus unaided by the adversarial process.? US. v. Rosco, 447 F. Supp. 2d 53 8, 545 (ED. 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-revealed anything to Goo gle 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 onclusion that noti?cation of the Order will ?seriously jeopardiz[e] an investigation? under 18 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. US. v. Myers, 593 F.3d 538, 345 (4th Cir. 2010) (discovery order directed at a third party is ?an immediately appealable final order.?) (quoting Church of Scientolog) of Cali?ern.ll (1992)). Accordingly, such orders are necessarily governed by the de novo I standard of review for dispositive orders under Fed. R. Crim. P. 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?rorn 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 almagistrate?s order, thus making these cases relevant to the Court?s analysis. B. Google Has a Right to Challenge the Nondiselosure Provision in the Order The government erroneously am that Judg-?concluded that Goo gle 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 ?rst 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 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 ?ndings under 270301). See 18 U.S.C. 2703(d) (requiring ?speci?c 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?). 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) 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 Comt applies, the government cannot satisfy the standard set forth in 18 2705 which provides for nondisclosure when noti?cation 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 ?Jture 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, 2.011), at 14; see also Govemrhent Exhibits 3?4.3 Therefore, disclosing this Order will do nothing to alter anyone?s behavior, except that- rnay exercise the right to defend his or her legal interests in court. And of course, to the extent -has 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 Deel., Ex. 7; see also -retweet of Jan. 7, 2011 9:26 pm. (?Note that we can assume Google Fae ebo etc also have secret US government subpoenas. They make no comment. Did they fold??), visited Jan. 18, 201 -4- previously noted in Goo gle?s Objections. Google will only add that if a provider believes a nondisclosure provision in an order is'unlawful, then it should chellenge the order. The government con?rses witness intimidation with a provider?s legitimate right to protect its First Amendment rights. and the privacy of its users. Finally, the government claimsthat 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 identi?ers of government personnel redacted before unsealing the Order or preservation letter. Goo gle would certainly agree that such a measure is appropriate here. D. The Order May Raise Signi?cant Constitutional and Statutory Issues As Google noted in its Objections, three of the users identi?ed in the Twitter Order, including Twitter?s - user, ?led 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 One can only assume that if the users? arguments were as meritless as the government claims,5 Judge -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 ?ll scope of the information sought. 4 Roche Decl, Ex. 3. 5 Government?s Response, at 13. 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 . ofPenFrap/Z 703(d) Orders, 562 F. Supp. 2d 876, 882 (SD. Tex. 2008) non-disclosure order imposes a prior restraint on speech?). The only question is whether the government can carry its ?heavy burden of showing justi?cation for the imposition of such a restraint." Id. (quoting Capital Cities Media, Inc. v. Toole, 463 US. 1303, 1305 (1933). Google respect?rlly 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. II. CONCLUSION 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. DATED this 7th day of March, 2011- '7 N.W., Suite 600 Washington, DC. 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 93101 Phone: 206-359-8000 Fax: 206-359-9000 AGidari@perkinseoie.com Attorneys for Google Inc. CERTIFICATE OF SERVICE I hereby that on this 7th day of March, 2011, the foregoing document was sent via hand delivery and email to the following persons: Keenan Unit'tai States Attorney United States Attorney?s Of?ce Eastern District of Virginia Justin W. Williams United States Attorney?s Building 2100 Jamieson Avenue Alexandria, VA 22314-5794 Attorneys for the United States . - I 1: - 68594) 700 13th St, N.W., Suite 600 Washington, DC. 20005-3960 Phone: 2024344627 Fax: 202-654-9106 JRoehe@perkinscoie.eom Attorneys for Google Inc. ATTACHMENT ?3 IN THE UNITED STATES DISTRICT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION it!? an -1 12: 01 Misc. No. IOGJ3 - um INRE 2703(d) cg?igag?tf?t?i?hm PRESERVATION REQUEST RELATING 11-DM-2- TO GMAIL ACCOUNT FILED UNDER SEAL GOOGLE REPLY IN SUPPORT OF ITS MOTION TO STAY PRODUCTION PENDING APPEAL OF ORDER Google Inc. (?Google?) hereby submits this Reply in Support of its Motion to Stay Production Pending Appeal of Magistrate?s Order. - Google respect?illy 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, Goo gle?s subscriber and Google will suffer irreparable injury absent a stay because without a stay the very injury that Goo gle 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, 201i (the ?Order??! until a?er Judge-resolved a similar motion related to the Twitter Order. of December '1 4, 2010.2 Finally, the issuance of a stay is in the public?s interest because the public can have no interest in the enforcement of an unjusti?ed nondisclosure provision and a stay will ensure that the user is affordedlan opportunity to assert any constitutional or statutory rights he or she may have with regard to the Order. See Declaration of John K. Roche, Ex..l (?Roche Dosh?) (?led Feb. 17, 2011). 2 Roche Decl, Exs. 2-3. I. ARGUMENT A. The Court Should Grant 21 Stay of Production Pending Google?s Appeal 1. Gougle Has Made a Strong Showing of Likely Success on the Merits There is no dispute that the government?s investigationcf Wikileaks generally, and its interest in the_ user name speci?cally, is a matter of public record.' Moreover, as noted in Google?s Reply in Support of its Objections, the government has offered no plausible justi?cation 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 dc novoa. review of Judge on Google?s motion to modify the Order. 2. Google?s Subscriber and Google Will Suffer Irreparable Injury Absent 21 Stay The government claims that Google will not be injured absent a stay because ?[t]he Order does not prevent Google from notifying m-ubsc?ber 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. Noti?cation alter the fact will be small solace to Goo gle?s user because by then the government will have spen't the previous 3?5 months poring over his or her account records in the hope of ?nding ?investigative leads? and ?other subscriber information of which the government is unaware [which] might include transactional information helpful to obtain search See Government Response, at 8-9. Moreover, despite the govarnment?s clairm 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 U.S. v. Rosen, 447 F. Supp. 2d 538, 545 (ED. Va. 2006) (judicial orders based on sealed certi?cations [tom the government are reviewed de nova). .2- CR 2915 IM, 2008 WL 789899, at *3 (SD. Cal. Mar. 20, 2003) (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 Goo gle?s First Amendment rights. In re Sealing and Non-Disclosure of Pen/T rap/2 703(d) Orders, 562 F. Supp. 2d 876, 882 (SD. Tex. 2008) non-disclosure order imposes a prior restraint on speech?). The only question is whether the' government can carry its ?heavy burden of showing justi?cation for the imposition of such a restraint." Id (quoting Capital Cities Media, Inc. v. Toole, 463 US. 1303, 1305 (1983). Goo gle 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 su?er 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 1 hearing on Google?s original motion until after Judge -lhad opportunity to rule on the motions raised in regard to the Twitter Order. Judge- has had those motions under advisement for nearly three weeks now, and the governinent utterly fails to explain why it suddenly needs the documents immediately when it previously indicated it would be satis?ed to wait until a ruling from Judge-n the Twitter matter. This unexplained contradiction is enough to establish that the govenunent has no urgent need for these records andlwill not be injured by a stay. In addition, Goo gle has preserved the responsive records so there is no danger that the data will be lost while this Court addresses the underlying Objections. Itfollows 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 ef?cient administration of the criminal justice system? as the government claims. See Government Response, at 9. II. CONCLUSION For the reasons stated, Google requests an order to stay production of records and information in response to the Order while its concurrently ?led Objections are pending. DATED this 7th day of Marble, 2011. Respectfully snbmid .3 700 13th St., N.W., Suite 600 Washington, DC. 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 Goo gle 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: Resistant United States Attorney United States Attorney?s Of?ce Eastern District of Virginia Justin W. Williams United States Attorney?s Building 2100 I amieson Avenue Attorneys for the United States Washington, DC. 20005?3960 Phone: 202434-1627 Fax: 202-654-9106 JRoche@perkinscoie.com Attorneys for Google Inc. I ATTACHMENT THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ED Alexandria Division I a- 3? 33 IN THE MATTER. OF THE 2703(d) ORDER Case No. Emil-2T EDURT AND 2703(1) PRESERVATION REQUEST CLERK US BISIRW 3 A. 11.1.11?th RELATING To GMAIL ACCOUNT ALF?mum Hearing: March 24, 2011 (TEE) NOTICE OF RELEVANT DECISION The United States hereby provides the Court and Opposing counsel decision relevant to Google Inc.?s Objections to Magistrate Judge .de Objections?) that the court-ordered legal process for business records pursr with notice of a cision (?Google?s Iant' to the Stored Communications Act (18 U.S.C. 2701?12) should remain under seal and not be 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 -user, ?led a motion to vac Constitutional and statutory grounds.? Google Obj-at 12; Google Reply. a 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 11. users identi?ed in ate that order on 5. Google also objections tO this nMarch 11, 2011, Magistrate Judge - issued the attached Memorandum Opinion and Or Twitter Order. Respect?rlly Submitted, By: Tar concerning the i CERTIFICATE OF SERVICE I hereby certify that a true and correct coPy of the foregoing pleading was delivered on this 22'1d day of March 2011 to the Clerk?s Of?ce 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, DC. 20005-3960 PHONE: 202.434.1627 FAX: 202.654.9106 Assistant United States Atfomey Case 1:11~dm400( -TCB 7'15: Document 38 .1 03/11/11 Page 1 of 20 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division 1 In Re: ?2703{d) Order; 10GJ3793 Misdellaneous No. 1:11dm00003 MEMORANDUM OPINION This matter came before the Court the Motion of Real Parties in Interest Jacob Appelbaum, Birgitta Jonsdottir, and Rep 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). Rep Gonggrijp (Twitter name ?rop_g?) is a Dutch citizen and computer security specialist. Id. Birgitta Case 1:1 Him-000 TCB Document 38- FE 031'11l11 Page 2 cf 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 0.5.0. 2701?2711 (2000 a. 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, ropdg, 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; rcp_g; ioerror; birgittaj; Julian essange; Bradely canning; Rop Gongrijp Birgitta for the time period November-l, 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 a. means and source of payment for such service (including any credit card or bank account number) and billing records. Case1z11-dm?DODL Document 38 Fi. 03/11/11 Page 30f 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); I 2. nonecontent 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(sy. 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 to bring a motion to vacate, (2) whether the Twitter Order was preperly issued under 18 U.S.C. ?2703, (3) whether the Twitter Order violates petitioners? First Amendment rights, (3) Doc'ument3-8 F, .03/11/11 Page40f 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 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 and ?27o3(b), than to their ?records? The statutory definition of ?contents? is ?any information concerning the substance, purport, or meaning of that communication." 18 U.S.C. ?2711(1); lB U.S.C. Targets of content disclosures are authorized to bring a customer challenge under ?2704. Conversely, S2703(c)(l) describes ?records? as ?a record or other information pertaining to a subscriber to or customer of such service (not the contents of Actording to records include: (A) name; (B) address; (C) local and long distance telephone connection records, or records of session times and durations; Case1z11?dm-000k Document38 Fi. .03/11l11 PageSonO (D) length of service {including start date} and types of service utilised, (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 means available under paragraph (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 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)(l). Therefore, as the targets of mere records disclosure, petitioners may not 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 Case1z11?dm-OOC Document 38 J03m/11 Page60f20 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: Requirements for court court order for disclosure under subsection or 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 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 Case TCB Document 38 F. 03/11l11 Page 7 of 20 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, 228 348~39 (4th Cir. 20pm. Therefore, the Court finds that the Twitter Order was properly issued. (3) First Amendment Claim Case1:11?dm?000L Document38 Fin 03/11/11 PageSonO 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. 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. Uhited States v. Nayer, 503 F.3d 740, 748 (9th Cir. 2007). Other First Amendment interests also yield to the investigatcry 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. Fardugo-Urquidez, 494 U.S. 259, 255 (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, 31 F.3d 803,817?18 (9th Cir. 1996)(a1ien entitled to 5th Amendment due process rights only after government created ?special relationship with alien" by parcling him from China to U.S. to testify at drug trial). The Court has serious doubts as to whether as. 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." v.5. Coast. amend. I. 8 FOB Document 38 Fit 03111/11 Pagegof 20 press); university of V. 493 U.S. 182, 197-98 (1990)(academic freedom). In the context of a criminal investigation, a district court must ?balance the possible constitutional infringement and the government's need for a case?by-case basis and without putting any special burden on the government", and must also prevent abuse. In re Grand Jury 37-3 Subpoena Duces Tecum, 955 F.2d 229,234 (4th Cir. 1992).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 petitionersf'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 1099,1103 (2d Cir. 1985)(requiring cooperation with pre?indictment proceedings); In re Grand Jury Subpoenas Duces Tacum, 78 F.3d 130?, Cir. In re Grand Jory Proceedings, 842 F.2d (11th Cir. lQBaltsame). 4Most cases dealing with First Amendment challenges in the predindictment 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?000 TCB Document 38 FL. .1 03111111 Page 10 of 20 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 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 and 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 U.S. Comnn amend. Not all investigatory techniques by the government implicate the Fourth Amendment. A government action constitutes a ?search? only if it infringes on an sipectation 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 Document38 03111111 Page11of2'0 traditionally expects privacy, like the inside of a home or the contents of a letter. United States V. Karo, 468 U.S. 705, 714 (l984)(warrant required to use electronic location?monitoring device in a private home); Kylie 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); Jacobean, 466 U.SZ 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. 2010)(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 (19761. Similarly, the Fourth Amendment permits the government to warrantlessly 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 0.8. 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. 201D)(citing Smith v. Maryland, 442 3.8. at 744). In Bynum, the defendant, ll 'Case1:11-dm-ooc Dooument38 Page120f20 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, 62% F.3d 558,574 (3d Cir. reasonable expectation of privacy exists in an IP address, because that information is also conveyed to and, indeed, from third parties, including United States v. Forrester, 512 F.3d 500,510 {9th Cir. 2008); United States v. Perrine, 510 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 3. ct. 2619, 2629, 177 L. as. 2a 216 {2010}. There, in a case involving employer?provided electronic communitation 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 enconntered address issues. This is not ?emerging technology? worthy of constitutional avoidance. 12 Document38- tueci03111f11 Page130f20 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. Marydand, 442 U.S. at 744. Each 1? 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 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 Warshak, 2010 13' Case 1:11?dm?000L Document 38 Film: 03/11/11 Page 14 of 20 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; synum, 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 comitv, which is defined as Pthe 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}. ?At 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 olick~ though agreements made online. A.V. ex rel. vanderhye v. iParadigms, LLC, 544 F.8upp-2d 473,480 (E.D. Va. 2008}(finding a Valid ?clickwrap? contract where users clicked Agree? to- acknowledge their acceptance of the A.v. ex rel v. iParadigms, LLC, 562 F.3d 630,645 n.B (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 Document 38 Files 03H 1/11 Page 15 0f 20 The threshold question in international comity analysis is whether there is a conflict between foreign and domestic law. Soci?t? Nationals Industrielle A?rospatiale v. U.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'oould 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 (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 Inter: 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 Clapse. HUtchinson v. Proxmire, 443 U.S. 111, 132 (1979)(no legislative immunity for statements ?scattered far and 15 Case1z11rdm?OOUL Document38- Fileu 03/11/11 Page 160f20 wide by mail, press, and the electronic media"); United States V. Gravel, 408 U.S. 606, 616 (1972). 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 gouernment could request such information. For theSe reasons, the Court declines to vacate the Twitter order as to Ms. Jonsdottir. II. Motion to Uhseal The documents in this matter, 1:11?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 1:11- 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?00L. Document 38 Fned 03/11/11 Page 17 of 20 number lD?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.? vs. Dept. of State Police v. washington Post, 386 F43d 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 Jory Investigation of Cuisinarts, Inc., 665 F.2d 24, 27?28 (2d Cir. 1931). 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 Operationsv. Buchanan, 417 F.3d 424, 429 (4th Cir. 2005) (Citing Nixon V. warmer Communications, Inc., 435 U.S. 589, 597?98 17 Case 1:11-dm-000w3TCB 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, 886 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 publicatidn 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 1:11?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. CONCLUS ION 19 ATTACHMENT IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION Misc. N0. 10GJ3793 IN RE 2703(d) ORDER AND 03(1) PRESERVATION REQUEST RELATING '1 1-DM-2 T0 GMAJL ACCOUNT FILED UNDER SEAL GOGGLE INCRS RESPONSE TO NOTICE OF RELEVANT 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.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 -found ?no 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-user because emails and contact lists in a Gmail account are not in any sense publicly available. In the absence of a formal rule governing supplemental authority, Google adheres to the 350-word count limitation in Fed. R. App. 280). - 2 See Declaration ofJohn K. Roche, Ex. 2 (?Roche Decl.?) (?led 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, 701 F.2d 115, 11819 (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," process by which Post Of?ce copies address information on a suspect? 3 mail and forwards to law enforcement); of. 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. Respe By John K. oche (V 68594) Per ore LLP 700 13th St., N.W., Suite 600 Washington, DC. 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 Attomeys for Google Inc. CERTIFICATE OF SERVICE Assistant United States Attorney United States Attorney?s Of?ce Eastern District of. Virginia 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: Justin W. Williams United States Attorney?s Building 2100 amieson Avenue Alexandria,? 22314-5794 Attorneys for the United States By (reg John K. ehe 68594) Per oie, LP 700 13th St., N.W., Suite 600 Washington, DC. 20005?3960 Phone: 202-434-1627 Fax: 202-654-9106 IRoche@perkinscoie.eom. Attorneys for Google Inc. ATTACHMENT THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division IN THE MATTER OF THE 2703(d) Misc. No. ORDER PRESERVATION i REQUEST RELATING TO GMAIL 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 2703(d) directing Google, Inc., an electronic commimicatidns 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 govemment?s ongoing grand jury investigation of the alleged .unlaw?il 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 2703 directing Google to provide the government the noncontent business subscriber and transaction records for the account associated with the email address account"), covering the time period ?'om November 2009 to present. In re Application of the United States ofAmericajbr an Order Pursuant to 13 use 3? 2703(4), No. (ED. Va. Jan- 4, 2011) (Order). More _speci?cally, the information ordered disclosed by the Google Order includes, inter alia, contact information associated with the-account, records of user activity, and source and destination email addresses for any em ails 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(1)) barring Google from disclosing the existence of the order to anyone, a request the magistrate judge granted after ?nding that disclosure would ?seriously jeopardiz[e] [the] investigation.? See 27.05036). The Google Order is not the only 2703 order arising out of the government?s WikiLeaks investigation. On December 14, 2010, before the issuance of the Goo gle 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 unsealng the order. Alter 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 Ooogle Order to ninety days, with an option for the government to extend the nondisclosure period an additional sixty days. Accordingly, on February 9, 201 l, the magistrate judge modi?ed 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 270309 Preservation Request Relating to Gmail Account-No. 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?4n this instance, -?of the order immediately. The government argues that the magistrate judge?s ruling was appropriate in all respects and should not be modi?ed. II. As always when reviewing a magistrate judge?s order, it is appropriate to begin by I 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 modi?ed 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 ?rst impression, a careful examination of Rule 59?s text resolves the con?ict 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 ouash an indictment or (information, a motion 'to suppressrevidence, or any matter that may dispose of a charge or defense"? must be reviewed by a district court de novo. Id. The govemment correctly recognizes that the magistrate judge?s issuance of a 2703 order is not a dispositive matter, and thus, under Rule 59(a), the order may be modi?ed 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 the course of an ongoing investigation. As such, the I 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 analogous to an order on any of the matters enumerated in Rule 5903), namely a motion to dismiss, a motion to suppress evidence, or a motion to quash an indictment.l Google offers two additional arguments in support of its assertion that the magistrate udge?s ruling concerned a dispositive matter under Rule 59(a). First, Goo gle 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 ?nal order as to that third party. Id. at 345. Yet, the mere fact that an order is considered ?nal 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 (ED. Va. 2006), which, inter alia, reviewed a probable cause determination of a Foreign Intelligence Surveillance Court 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?j.e., de n'ova retrieve?the judge?s probable cause determination in that case was correct. Id. at 545. More importantly, the Statutory scheme governing Foreign Intelligence Surveillance Act 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, 836 F.2d 60, 65 (4th Cir. 1939) (?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 with 18 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, theiGoogle Order will only be modi?ed if it is clearly erroneous or contrary to law.2 I 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 18 U.S.C. 2701 et seq. 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 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 ?speci?c 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 If the government seeks only noncontent information, the govemment is not required to notify the subscriber of the account in issue of the order?s ertistence. See 2703(c)(3). Importantly, under 2705(1)), the government may also request?as it did here?that the court bar the service provider from disclosing the 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 modin the magistrate judge?s ruling. as explained in?a, even were Goo gle correct about the standard of review, its objections would be overruled. ?determines that there is reason to believe that noti?cation of the existente" of the order ?will result? in, inter alia, ?seriously jeopardizing an investigation.? 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). Signi?cantly, 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 ?rrther jeopardized by disclosure of the Google Order. Second, Google contends that the Google Order may raise signi?cant constitutional and statutory issues that the -ccount holder should have an opportunity to assert before the order is eirecuted. 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 care?rl examination of the statute and the - 3 The statute recognizes that a nondisclosure order may be justi?ed if disclosure would result in any of the following: endangering the life or physical safety of an individual; (ii) ?ight ?-om prosecution; destruction of or tampering with evidence; (iv) intimidation of potential witnesses; or otherwise seriously jeopardizing an investigation or unduly delaying a trial. See 2705 The government relies on the ?fth ground?seriously jeopardizing an investigation-? to justify the nondisclosure provision in issue here. 6 record con?rms (that the government is correct, both as to Google?s limited standing to challenge the nondisclosure provision and as to the merits of Googleis arguments. It is appropriate to begin with the govemment?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 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 ?it? one of the two enumerated grounds are applicable. The enmneration of two, and only two, grounds for challenging the order implies?? under the ?time-honored maxim? eamressio unius est exclust alterius4?that no other grounds may serve as the basis for a motion to quash or modin 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.5 Congress did neither in the and its failure to do so must be regarded as a clear statement of its intent not to recognize ?nther bases for service providers? challenges to a 2703(d) order. 4 See Ayes v. US. Dep?t of Veterans A?hirs, 473 F.3d 104, 111 (4th Cir. 2006) (applying the ?time-honored maxim expressio unius est exclusio altei'ius (?the expression of one thing implies the exclusion of another?)? to ?nd that Congress?s failure to include veteran guaranty entitlements ?om 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, West v. Gibson, 527 U.S. 212, 218 (I 999) (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, Goo gle?s arguments nonetheless may be heard because they ?t 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 clear text ?Jlly refutes this argument. Signi?cant 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-?hased on the maxim of ejusdem generals?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 I technical and?logistical burdens involved in complying with the 270:3(d) order, but not Google?s purported ?burden? of complying with an order that, in its view, lacks a ?rm 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 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 speci?c 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 speci?c 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 ?rst objection?and certainly its most vigoroust advanced objection?is that, as a factual matter, the government has failed to meet its burden of showing that disclosure of the Goo gle Order would seriously jeopardize the govemment?s ongoing investigation- Google essentially argues that no ?irther injury to the government?s investigation can occur beyond that which has already occtn-red owing to publication of the Twitter Order. Consideration of this argmnent 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 re?ects that after the Twitter Order was unsealed, the holder of thef- 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} 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 th mail account with Google.8 This concern is well ionnded. Even if the - account holder already suspects that the govemment 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 ?follow??the user?s tweets. 3 Although the government and Google suggested in oral argument that it may be likely that the same individual maintains both the- Twitter account and the-rnail.com email account, this fact is not con?rmed in this record, and in any event, is to the analysis here. account, it is reasonable to expect that con?rmation of this fact would prompt yet additional I steps by this subscriber to avoid government monitoring of his or her accounts or other activities. In response, Google notes that the Goo gle 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 erratuple, if the Google Order were revealed irnrnediately, the govemment may be unable to obtain use?il information from Google or other service providers in the ?lture 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 goverrnnent?s investigation, information the subjects could use to attempt to obstruct or ?'ustrate the government?s investigative efforts. Google counters that publication of the Google Order would result in only a trivial increase in the amount of- infonnation already- publicly known about the WikiLeaks investigation. Were this argument adopted, the implications for ?rture 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 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 ?n?ther impede the WildLeaks 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 Goo gle Order. In this regard, the goveninient notes that the unsealin 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 govemment?slview, disclosure of the Google Order would further ?le] 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 witn?ss 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 govemment is. correct to be concenied about the potential for increased witness intimidation that could result ?om disclosure of the Google Order. If the Google Order were unsealed, ?rture service providers may do precisely what Google has done in this instance, namely resist compliance with a lawful 2703(d) order by bringing baseless legal challenges that have the e?'ect 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 govemment?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. ll ongoing investigation.? 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 dc nova review of the record as a whole reveal any basis on which to modify the Google Order?s nondisclosure provision. Therefore, under either standard of review, (ioogle?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 disclosrne bar. First, Gcogle 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." And of course, if no one?is prosecuted based on the information obtained from Google, a {5 1983 action might be available if the subscriber can demonstrate the requisite elements of the 1983 action, including, most notably, a ?deprivation 1? The also asserts that its investigation has been impeded following unseating of the Twitter Order by diverting resources to addressing public criticism of its investigatory tactics, and (ii) to defending its attorneys from harassment. The government contends that unsettling the Google Order would further exacerbate these conditions. The SCA does not include criticism of the government or harassment of- government attorneys in the 27056) 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 {j 2705(b). 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,12 questions raised by such an action need not be addressed here. Google?s ?nal 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 1 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 intemet service providers in monitoring conununications. See United States v. New York Tel. 434 US. 159, 168 (1977) (recognizing the authority for the'installation of a pen register); United .?S'tates 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.near1y twenty ?ve 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 eicistence of the order to anyone, including the relevant subscriber. See, tag, 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); 18 U.S.C. 2511(2)(a)(ii) (barring disclosure of the existence of wiretaps, unless otherwise directed by a court). '2 See In Re: ?2-703(d) Order, Misc. No. 1:11dm00003, 2011 vs. Dist. LEXIS 25322, at *10?19 (ED. 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 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. Nondiscl'osure provisions of this sort are so routine that Google?s argument borders on frivolous. Nevertheless, it is not dif?cult 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 i?olice v. Wash. Post, 386 F.3d 567, 573 (4th Cir. 2004) (analyzing prior restraints in the context of scaled 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 inde?nite] are presumptively justi?ed while the investigation is ongoing . . . Of course, ?whether this general interest is applicable in a given case will depend on the speci?c facts and 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. '3 See In re Sealing Non?Disclosure, 562 F. Supp. 2d 876, 382 (so. Tex. 2003) (noting that a nondisclosure provision in a 1703(d) order ?imposes a prior restraint on speech?). 14 These principles, apylied here, point convincingly to the conclusion that the nondisclosure provision in the Google Order does not infringe any of Google?s First Amendment rights- Herc, it is clearthat unsettling the 60031:: Order will reveal snaps in the government's inveirti-gation that are not currently public. Aldtoogh the public may speculate that the is seeking or has sought access to noncoment subscriber information with respect to the-mount, such aocess has ever been publicly con?rmed- Moreover, as noted in?a, there is reason to believe that Such release will seriously jeopardize the government?s ongoing criminal investigation. The govemment?s interest in maintaining the integrity of its WikiLeaks investigation cannot be understated, and the temperary prior restraint on Goog?le?s free speech is narrowly tailored serve this compelling interest. Therefore, Googlc?s First Amendment challenge to the nondisclosure provision in the Guogle Order fails. Accordingly, for the aforementioned lessens, the magistrate judge?s Order sealing the Google Order and barring discloch of the existence of the Google Order for ninety days, with an optional sixty day extension, is neither clearly cutaneous nor contrary to law. Additionally, a do from twiciv of the record similarly con?rms that the magistrate judge?s oiling was correct in all mp?ots- Thus, Googl'e?s objection-s must be overruled. The Clerk is directed to place this matter under seal and to send a copy of this Memorandum Opinion to all counsel of record. Alexandria,-Virginia Marti}: 30, 2011 rtnet Judge 15 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division IN THE MATTER OF THE 27030)) Misc. No. ORDER AND 2703(1) PRESERVATION REQUEST RELATING TO GMAIL ACCOUNT UNDER SEAL ELDER 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 13 U.S.C- 2703(d) remain under seal and that Goo'gle be ordered not to disclose the existence of the order to anyone. See In re Application of the United States of A merica ?rr an Order Pursuant to 18 U.S.C. 2703M), No. 1210613793 (ED. Va. Ian. 4, as modified by In re 2703 Order and 2703 09 Preservation Request Relating to Gmail Account -No. 110613793 (an. 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 ole 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 ?irther ORDERED that Google?s motion to stay (Doc. No. 17) is DENIED AS MOOT. It is ?mher ORDERED that this Order and the Memurandum Opinion shall REMAIN UNDER SEAL until funher order ofthe. Court. It is further ORDER-ED that once the unde?ying grand jury investigation is wmpletcd, the governmem is DIRECTED to advise the Court whether it would than be approp?ate to li? the seal on this Order and the Memomndum Opinion. It is further OEERED that Google comply with the magistrate judge?s. 2703 Order compelling the disclosures descrith therein and comply with the accompanying nandi-solosum provision in alt respects- The Clerk is directed to place this matter under seal and to send a capy of this Older to all comm] Of record. Alekandria, Virginia March 39, 201] ATTACHMENT 0 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division IN THE MATTER OF THE ORDER AND 2703 (F) PRESERVATION REQUEST RELATING TO GMAIL ACCOUNT Criminal No. UNDER CONSENT MOTION TO UNSEAL The United States of America and Google Inc. (Google) through undersigned counsel ?le this consent motion to unseal the redacted versions of the orders and pleadings in enclosed as Attachments A through 0. I. Background On January 4, 2011, upon application of the United States pursuant to 18 U.S.C. ?2703 Magistrate Judge_ issued 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 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 Attaclnnent. 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 ?led a motion for an extension, with a maximum sixty-day extension period. The clerk was directed to ?le the order under seal. (?Modi?ed Disclosure and Sealing Order On March 30, 2011, Judge- overruled 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. (?Modi?ed Disclosure and Sealing Order 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 Order and Section 2703(d) Application, which contains speci?c 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 suf?ce to protect the investigation with respect to the Modi?ed Disclosure and Sealing Orders 1 and 2 and related pleadings in matter (except ex parte pleadings), which pertain to scaling and non-disclosure issues. Speci?cally, the United States believes that those Orders and pleadings may be unsealed if ?matters occurring before a grand juiy? accounts and individuals) and personal identi?ers of government of?cials 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- to the subscriber of that account. The Attachments re?ect redactions to the names and contact information of government and judicial of?cials. The United States and Google defer to the Court?s preference in redacting the names of judicial of?cials. Conclusion I Therefore, the United States and Google respectfully request that the following, redacted in accordance with Attachments A through 0, be unsealed: A. .05 511F150 .m .m Google?s Motion to Modify 2703 Order for Purpose of Providing Notice (1/18/11) Government?s Response (1/28/11) Google?s Reply (2/1/11) Government?s Motion to Continue (2/3/11) Modi?ed Disclosure and Sealing Order 1 (Judge -) (2/9/11) Google?s Objections to and Appeal of Judge - Order (2/17/11) Google?s Motion to Stay Production Pending Appeal (2/17/11) Government?s Response to Google?s Objections (2/28/11) Government?s Response to Google?s Motion to Stay (2/28/2011) Google?s Reply in Support of Objections (3/7/11) Google?s Reply in Support of Motion to Stay Production Pending Appeal (3/7/11) Government?s Notice of Relevant Decision (3/22/2011) Google?s Response to Notice of Relevant Decision (3/23/2011) Modi?ed Disclosure and Sealing Order 2 (Judge -) (3/30/11) O. Redacted Consent Motion to Unseal and Order Dated this 1St day of April 2015. By: Resiectfulli submitted, Assistant United States Attorney United States Attorney?s Of?ce 2100 Jamieson Avenue Alexandria, Virginia 22314 Phone: (703) 299-3700 Fax: (703) 299-3980 Attorneys for the United States John K. Roche 68594) Perkins Coie LLP 700 13th St, NW, Suite 600 Washington, DC. 20005-3960 Phone: 202?434-1627 Fax: 202-654-9106 JRoche@perkinscoie.com Attorneys for Google Inc. 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., Suite 600 Washington, DC. 20005-3960 Phone: 202-434?1627 Fax: 202?654?9106 JRoche@perkinscoie.com By: Assistant United States Attorney United States Attorney?s Of?ce 2100 amieson Avenue Alexandria, Virginia 22314 Phone: (703) 299?3700 Fax: (703) 299?3980 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division IN THE MATTER OF THE ORDER AND PRESERVATION REQUEST RELATING TO GMAIL ACCOUNT Criminal No. 1 UNDER SEAL CONSENT ORDER WHEREAS, the United States obtained a 2703 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 and WHEREAS, based on the record before the Court, alternatives less drastic than sealing will now suf?ce to protect the investigation with respect to the documents speci?ed below, which pertain to scaling and non-disclosure issues; it is hereby ORDERED that the following, redacted in accordance with Attachments A through 0, be unsealed: A. Google?s Motion to Modify 2703 Order for Purpose of Providing Notice (1/18/1 1) Government?s Response (1/28/11) Google?s Reply (2/1/11) Govemment?s Motion to Continue (2/3/11) Modi?ed Disclosure and Sealing Order 1 (Judge -) (2/9/11) 1? Google?s Objections to and Appeal of Judge- Order (2/17/11) G. Google?s Motion to Stay Production Pending Appeal (2/17/11) N. O. Government?s Response to Google?s Objections (2/28/11) Government?s Response to Google?s Motion to Stay (2/28/2011) Google?s Reply in Support of Objections (3/7/11) Google?s Reply in Support of Motion to Stay Production Pending Appeal (3/7/11) Government?s Notice of Relevant Decision (3/22/2011) Google?s Response to Notice of Relevant Decision (3/23/2011) Modi?ed Disclosure and Sealing Order 2 (Judge -) (3/30/11) 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 and the subscriber is not prohibited from further disclosing that information. ORDERED the record in matters 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.