Tuesday, February 12, 2013

No 1st Amendment or common law right to access documents

In re:  Application of the United States of America for an Order Pursuant to 18 U.S.C. Sect. 2703(d), US v. Appelbaum, et al.:  In this case, the Fourth Circuit considers orders issued by a magistrate judge under the Stored Communications Act ("SCA"), 18 U.S.C. § 2703, requested by the Government, directed to Twitter, Inc., to disclose records of electronic communications relevant to the ongoing criminal investigation surrounding Wikileaks.org and U.S. Army Private First Class Bradley E. Manning. Specifically, the Government requested records of Defendants Jacob Appelbaum, Rop Gonggrijp, and Birgitta Jonsdottir, including their names, usernames, personal contact information, account information, connection records, length of service, direct messages to and from email addresses and IP addresses for all communications between November 2009 and December 2010.

The Twitter Order was originally sealed to keep the criminal investigation private, but upon the Government’s motion in January 2011, the magistrate court unsealed the documents, allowing Twitter to alert its subscribers to the existence of the Order. The defendants/subscribers then petitioned the court to vacate the Twitter Order, and unseal any other similar orders that may have been issued to other companies. The magistrate court issued a memorandum opinion and order denying the motion to vacate and partially granting the motion to unseal, determining that there was no First Amendment right to access the Government’s Twitter application, and the other § 2703(d) Orders and their applications. The defendants filed objections to the magistrate court’s decisions, and the district court affirmed; defendant then filed an appeal to the Fourth Circuit.

On appeal, the Fourth Circuit first determined that a common law right to access attaches to the documents here. Next, it articulated the standard for determining whether the First Amendment might provide a right to access orders issued under the SCA as the "experience and logic" test: 1) whether the place and process have historically been open to the press and general public; and 2) whether public access plays a significant positive role in the functioning of the particular process in question. The Fourth Circuit held that the latter prong, the "logic" one was not met here, as "secrecy is necessary for the proper functioning of criminal investigations at this § 2703(d) phase, openness will frustrate the government’s operations." So, no First Amendment right to access the documents in question. Similarly, the Fourth Circuit held that the common law right to access the documents was not insurmountable because this presumption may be outweighed when the Government’s interest in continued sealing of documents due to publicity surrounding the Wikileaks investigation does not justify the unsealing of relevant records.

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