In Re: 2703 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
In Re: APPLICATION OF THE UNITED 
STATES OF AMERICA FOR AN ORDER
PURSUANT TO 18 U.S.C. SECTION
2703(D)
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.  No. 11-5151
JACOB APPELBAUM; ROP GONGGRIJP;
BIRGITTA JONSDOTTIR,
Defendants-Appellants,
and
TWITTER, INCORPORATED,
Defendant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Liam O’Grady, District Judge.
(1:11-dm-00003-TCB-LO-1)
Argued: October 26, 2012
Decided: January 25, 2013
Before GREGORY and DUNCAN, Circuit Judges, and
Samuel G. WILSON, United States District Judge for the
Western District of Virginia, sitting by designation.
2 In Re: APPLICATION OF THE UNITED STATES
Petition denied by published opinion. Judge Gregory wrote
the opinion, in which Judge Duncan joined. Judge Wilson
wrote a separate concurring opinion.
COUNSEL
ARGUED: Aden J. Fine, AMERICAN CIVIL LIBERTIES
UNION, New York, New York, for Appellants. Andrew
Peterson, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee. ON BRIEF: Cindy A.
Cohn, Lee Tien, Marcia Hofman, ELECTRONIC FRONTIER
FOUNDATION, San Francisco, California, Rebecca K. Glen-
berg, AMERICAN CIVIL LIBERTIES UNION OF VIR-
GINIA FOUNDATION, INC., Richmond, Virginia, for
Appellant Birgitta Jonsdottir; Rachael E. Meny, John W.
Keker, Steven P. Ragland, KEKER & VAN NEST LLP, San
Francisco, California, John K. Zwerling, Stuart Sears, ZWER-
LING, LEIBIG & MOSELEY, PC, Alexandria, Virginia, for
Appellant Jacob Appelbaum; John D. Cline, LAW OFFICE
OF JOHN D. CLINE, San Francisco, California, K.C. Max-
well, LAW OFFICE OF K.C. MAXWELL, San Francisco,
California, Nina J. Ginsberg, DIMUROGINSBERG, PC,
Alexandria, Virginia, for Appellant Rop Gonggrijp. Neil H.
MacBride, United States Attorney, Lindsay Kelly, Assistant
United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee.
OPINION
GREGORY, Circuit Judge:
We are called upon to determine the public’s right to access
orders issued under 18 U.S.C. § 2703(d) and related docu-
ments at the pre-grand jury phase of an ongoing criminal
investigation. Because we find that there is no First Amend-
In Re: APPLICATION OF THE UNITED STATES 3
ment right to access such documents, and the common law
right to access such documents is presently outweighed by
countervailing interests, we deny the request for relief.
I.
A.
Title II of the Electronic Communications Privacy Act of
1986, commonly known as the Stored Communications Act
("SCA"), was enacted to protect the privacy of users of elec-
tronic communications by criminalizing the unauthorized
access of the contents and transactional records of stored wire
and electronic communications, while providing an avenue
for law enforcement entities to compel a provider of elec-
tronic communication services to disclose the contents and
records of electronic communications. Pub. L. No. 99–508,
100 Stat. 1848, 1868 (codified at 18 U.S.C. §§ 2701-2711).
As one Senator remarked, the SCA was "designed to protect
legitimate law enforcement needs while minimizing intrusions
on the privacy of system users as well as the business needs
of electronic communications system providers." 132 Cong.
Rec. 14601 (1986) (statement of Sen. Leahy).
To obtain records of stored electronic communications,
such as a subscriber’s name, address, length of subscription,
and other like data, the government must secure either a war-
rant pursuant to Federal Rule of Criminal Procedure 41, or a
court order under 18 U.S.C. § 2703(d). 18 U.S.C. § 2703(c).
Orders issued under § 2703(d) may be granted if the govern-
ment "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 informa-
tion sought, are relevant and material to an ongoing criminal
investigation." 18 U.S.C. § 2703(d). This is essentially a rea-
sonable suspicion standard.
In seeking access to records, the government need not give
prior notice to the subscriber or customer. 18 U.S.C.
4 In Re: APPLICATION OF THE UNITED STATES
§ 2703(c)(3). The SCA also provides for gag orders, which
direct the recipient of a § 2703(d) order to refrain from dis-
closing the existence of the order or investigation. See 18
U.S.C. § 2705(b).
B.
This case involves the § 2703(d) orders pertaining to the
Government’s request for records of electronic communica-
tions relevant to an ongoing criminal investigation. The
underlying facts of the investigation, which are not presently
before us, relate to the unauthorized release of classified doc-
uments to WikiLeaks.org, and the alleged involvement of
Bradley E. Manning, a U.S. Army Private First Class.
As part of its investigation, the Government petitioned the
U.S. District Court for the Eastern District of Virginia and
obtained an order pursuant to § 2703(d), from a magistrate
judge ("Twitter Order"), directing Twitter, Inc. ("Twitter") to
disclose records of electronic communications pertaining to
Appellants Jacob Appelbaum, Rop Gonggrijp, and Birgitta
Jonsdottir ("Subscribers").1 Specifically, the order directed
Twitter to provide Subscribers’ names, usernames, personal
contact information, account information, connection records,
financial data,2 length of service, direct messages to and from
email addresses and Internet Protocol addresses for all com-
munications between November 1, 2009, and December 14,
2010.
The issuing magistrate judge determined that prior notice
"to any person" of the Twitter Order, the Government’s appli-
cation for the Twitter Order ("Twitter Application"), and the
1
The Twitter Order also sought information pertaining to Manning and
Julian Assange, WikiLeaks.org’s founder. Manning and Assange did not
challenge the Twitter Order or participate in litigating access.
2
The Government subsequently discarded its request for financial infor-
mation.
In Re: APPLICATION OF THE UNITED STATES 5
ongoing criminal investigation, would "seriously jeopardize
the investigation." Consequently, the magistrate judge sealed
the Twitter Order and Application, and directed Twitter not to
disclose their existence, or the investigation to any person
unless and until otherwise ordered by the court. On January
5, 2011, upon the Government’s motion, the magistrate judge
unsealed the Twitter Order and authorized Twitter to disclose
the order to Subscribers.
On January 26, 2011, Subscribers moved the court to
vacate the Twitter Order, unseal all documents relating to the
Twitter Order, and unseal and publicly docket any other
§ 2703(d) orders on the subject of the investigation pertaining
to Subscribers that were issued to companies other than Twit-
ter ("Other § 2703(d) Orders").
Following a hearing on the motions, the magistrate judge
issued a memorandum opinion and an order denying the
motion to vacate, and partially granting the motion to unseal
as follows: it (1) granted the motion to unseal pleadings filed
during the litigation over the Twitter Order; (2) denied the
motion to unseal the Twitter Application; (3) denied the
motion to unseal the Other § 2703(d) Orders; and (4) took
under advisement the issue of public docketing of the Other
§ 2703(d) Orders and related motions. In ruling on the motion
to unseal, the magistrate judge determined that there was no
First Amendment right to access the Twitter Application, and
the Other § 2703(d) Orders and their applications. The magis-
trate judge also determined that the common law presumption
of access to judicial records was overcome because the sealed
documents contained "sensitive nonpublic facts, including the
identity of targets and witnesses in an ongoing criminal inves-
tigation."
While Subscribers’ request for public docketing was pend-
ing, the Eastern District reviewed and changed the docketing
procedures of its clerk’s office. Specifically, the Eastern Dis-
trict instituted new case-numbering procedures by creating an
6 In Re: APPLICATION OF THE UNITED STATES
"EC" docket for recording cases pertaining to requests for pen
registers and § 2703(d) orders. The EC docket is a "running
list" that is publicly available from the district court’s clerk’s
office. It indicates all assigned case numbers, the date of
assignment, the presiding judge, and whether the case is
sealed. However, it lacks individual docket entries for all
types of documents filed in each case and the dates of such
entries.
Following the creation of the EC docket, the magistrate
judge denied Subscribers’ public docketing request, reasoning
that "there exists no right to public notice of all the types of
documents filed in a sealed case." Subscribers then filed
objections to the magistrate judge’s sealing and docketing
decisions with the district court.
In reviewing the magistrate judge’s decisions, the district
court applied a clearly erroneous or contrary to law standard
of review and overruled Subscribers’ objections. The district
court stated that it "also conducted a de novo review and
f[ound] that [the magistrate judge]’s findings and orders sur-
vive a more demanding scrutiny." In re Appl. of the U.S. for
an Order Pursuant to 18 U.S.C. § 2703(d), 830 F. Supp. 2d
114, 122 n.7 (E.D. Va. 2011). The district court then affirmed
the magistrate judge’s sealing and docketing decisions.
Subscribers appealed.
II.
We first address the basis for our jurisdiction over this mat-
ter. We have stated "[m]andamus, not appeal, ‘is the preferred
method of review for orders restricting [access] to criminal
proceedings.’" Balt. Sun Co. v. Goetz, 886 F.2d 60, 63 (4th
Cir. 1989) (quoting Wash. Post Co. v. Soussoudis, 807 F.2d
383, 388 (4th Cir. 1986)). As mandamus is the preferred
method for reviewing courts’ orders restricting access to crim-
inal proceedings, we treat Subscribers’ appeal as a petition for
In Re: APPLICATION OF THE UNITED STATES 7
mandamus, and we have jurisdiction under the All Writs Act,
28 U.S.C. § 1651. See Wash. Post Co., 807 F.2d at 388.3
"[W]rits of mandamus are to be issued only in extraordi-
nary circumstances." Id. at 393 (citing Platt v. Minn. Mining
& Mfg. Co., 376 U.S. 240, 245 (1964)). To successfully
obtain mandamus relief, a petitioner must show that "he has
a clear and indisputable right to the relief sought," and "there
are no other adequate means to attain the relief he desires." In
re Braxton, 258 F.3d 250, 261 (4th Cir. 2001) (citations omit-
ted). For the reasons that follow, Subscribers fail to establish
they have a clear and indisputable right to the relief sought
and therefore, we deny the petition for mandamus.
III.
Subscribers raise two substantive issues on appeal: (1)
whether the district court erred in refusing to unseal the Other
§ 2703(d) Orders and derivative motions and orders concern-
ing such orders; and (2) the sufficiency of the docketing sys-
tem employed by district courts in the Eastern District of
Virginia.4 Overlaying these two issues is whether the district
court applied the proper standard of review to the magistrate
judge’s decisions. We first address the procedural issue, and
then address the substantive issues in turn.
A.
Subscribers contend that in reviewing the magistrate
judge’s decisions, the district court erred by applying a
3
We note that even if we treat this request for relief as an appealable
collateral order under Cohen v. Beneficial Indus. Loan Corp., 337 U.S.
541 (1949), we would reach the same result.
4
We do not address the following issues abandoned on appeal: (1) the
denial of the motion to vacate the Twitter Order; (2) the denial of the
motion to unseal the Twitter Application; and (3) the denial of the motion
to unseal applications for the Other § 2703(d) Orders.
8 In Re: APPLICATION OF THE UNITED STATES
"clearly erroneous or contrary to law" standard, as opposed to
a de novo standard of review. We have held that a magistrate
judge’s power to control access to judicial documents or
docket sheets derives from the district court’s inherent power
to control access. See Wash. Post Co. v. Hughes, 923 F.2d
324, 326 n.2 (4th Cir. 1991) ("A magistrate’s power to seal
or unseal documents derives from the district court’s power to
take such actions"); see also ACLU v. Holder, 673 F.3d 245,
256 (4th Cir. 2011) (whether to seal a docket sheet is within
the district court’s inherent power).
A magistrate judge’s power to control access falls under the
"additional duties" prong of the Federal Magistrates Act, 28
U.S.C. § 636(b)(3), and decisions under this prong are
accorded de novo review by the district court. Hughes, 923
F.2d at 326 n.2 (citing Matthews v. Weber, 423 U.S. 261, 273
(1976)). Consequently, in this proceeding, both the magistrate
judge’s sealing and docketing decisions fall within the "addi-
tional duties" provision of § 636(b)(3), and are reviewable de
novo. Upon a careful examination of the district court’s rul-
ings, we hold that the district court applied the appropriate
standard of review to the magistrate judge’s decisions.5
B.
Subscribers next contend that the district court erred in per-
mitting the Other § 2703(d) Orders and related documents to
remain sealed because these documents are subject to the
right of access. The right of public access derives from two
independent sources: the First Amendment and the common
law. Va. Dep’t of State Police v. Wash. Post, 386 F.3d 567,
575 (4th Cir. 2004). "The distinction between the rights of
access afforded by the common law and the First Amendment
5
As we noted in our discussion of the facts, although the district court
purported to apply a "clearly erroneous or contrary to law" standard, it
nevertheless found that the magistrate judge’s decisions survived de novo
review.
In Re: APPLICATION OF THE UNITED STATES 9
is ‘significant,’ because the common law ‘does not afford as
much substantive protection to the interests of the press and
the public as does the First Amendment.’" Id. (quoting Goetz,
886 F.2d at 64; Rushford v. New Yorker Magazine, 846 F.2d
249, 253 (4th Cir. 1988)). Specifically, the common law pre-
sumes a right to access all judicial records and documents, but
this presumption can be rebutted if "the public’s right of
access is outweighed by competing interests." In re Knight
Publ’g Co., 743 F.2d 231, 235 (4th Cir. 1984); see United
States v. Moussaoui, 65 F. App’x 881, 886 (4th Cir. 2003)
(unpublished). On the other hand, the First Amendment pro-
vides a right of access only to particular judicial records and
documents, and this right yields only in the existence of a
"compelling governmental interest . . . [that is] narrowly tai-
lored to serve that interest." Va. Dep’t of State Police, 386
F.3d at 575.
i.
For a right of access to a document to exist under either the
First Amendment or the common law, the document must be
a "judicial record." Goetz, 886 F.2d at 63-64. Whether a cer-
tain document is a "judicial record" is a question of law, and
we determine it de novo. See id.; Lugosch v. Pyramid Co. of
Onondaga, 435 F.3d 110, 121 (2d Cir. 2006).
Although we have never explicitly defined "judicial
records," it is commonsensical that judicially authored or cre-
ated documents are judicial records. Thus, we have no diffi-
culty holding that the actual § 2703(d) orders and subsequent
orders issued by the court are judicial records.6
6
Citing United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995), the
Government contends that § 2703(d) orders themselves are not "judicial
records" because they are "not useful to the judicial process," and they are
merely a vehicle used to obtain relevant business records. This argument
is unavailing because Amodeo applies to documents filed with the court,
not by the court. See Amodeo, 44 F.3d at 145 ("We think that the mere fil-
ing of a paper or document with the court is insufficient to render that
paper a judicial document subject to the right of public access." (emphasis
added)).
10 In Re: APPLICATION OF THE UNITED STATES
With respect to whether the derivative § 2703(d) motions
are "judicial records," our prior cases guide this inquiry. In
Rushford, we held that discovery documents filed in connec-
tion with a dispositive motion, such as a motion for summary
judgment, were subject to the right of access because "sum-
mary judgment adjudicates substantive rights." 846 F.2d at
252. In In re Policy Management Systems Corp., we refrained
from ascribing the First Amendment right of access to docu-
ments not considered by the court but filed with a motion to
dismiss, reasoning that they "do not play any role in the adju-
dicative process." 67 F.3d 296 (4th Cir. 1995) (unpublished
table decision). Taken together, Rushford and In re Policy
Management Systems Corp. hold that documents filed with
the court are "judicial records" if they play a role in the adju-
dicative process, or adjudicate substantive rights. We adopt
that definition. In doing so, we are in harmony with the deci-
sions of several of our sister circuits. See, e.g., In re Provi-
dence Journal Co., 293 F.3d 1, 9 (1st Cir. 2002) (examining
the common law presumption of access coextensively with
the definition of "judicial records," and holding that the pre-
sumption attaches to "those materials which properly come
before the court in the course of an adjudicatory proceeding
and which are relevant to that adjudication." (citation omit-
ted)); United States v. El-Sayegh, 131 F.3d 158, 163 (D.C.
Cir. 1997) ("[W]hat makes a document a judicial record and
subjects it to the common law right of access is the role it
plays in the adjudicatory process."); Amodeo, 44 F.3d at 145("[T]he item filed must be relevant to the performance of the
judicial function and useful in the judicial process in order for
it to be designated a judicial document."). Applying this defi-
nition, the derivative § 2703(d) motions are "judicial records"
because they were filed with the objective of obtaining judi-
cial action or relief pertaining to § 2703(d) orders. See also
Goetz, 886 F.2d at 63-64 (holding search warrant affidavits
are "judicial records" because they are considered by a judi-
cial officer in determining whether to issue a warrant, and are
available in a subsequent proceeding if sufficiency is chal-
lenged).
In Re: APPLICATION OF THE UNITED STATES 11
Because we conclude that § 2703(d) orders7 are "judicial
records," the common law presumption of access attaches to
these documents. However, we next examine whether, in
addition to the common law presumption, a First Amendment
right of access to these documents also exists.
ii.
To determine whether the First Amendment provides a
right to access § 2703(d) orders and proceedings, we employ
the "experience and logic" test, asking: "(1) ‘whether the
place and process have historically been open to the press and
general public,’ and (2) ‘whether public access plays a signifi-
cant positive role in the functioning of the particular process
in question." Goetz, 886 F.2d at 64 (quoting Press-Enterprise
Co. v. Superior Court, 478 U.S. 1, 8-10 (1988)). Here, neither
prong is satisfied.
Subscribers concede that there is no long tradition of access
specifically for § 2703(d) orders, given that the SCA was
enacted in 1986.8 However, they argue that under Press-
Enterprise, where a relatively new process is at issue, courts
focus on the logic prong. Our post-Press Enterprise precedent
makes clear that both the experience and logic prongs are
required. See Goetz, 886 F.2d at 64 (stating a conjunctive
test); see also United States v. Gonzales, 150 F.3d 1246, 1258
(10th Cir. 1998) (citing Goetz for the proposition that some
courts adopt the approach that Press-Enterprise requires satis-
faction of both prongs).
7
From here, § 2703 orders refers to Other § 2703 Orders, and subse-
quent related motions and orders.
8
Subscribers alternatively argue that a § 2703(d) order is a judicial
order, and there is "an exceedingly long history of access to judicial opin-
ions and orders." This interpretation of the First Amendment right of
access is too broad, and directly contrary to our holding that this right
extends only to "‘particular judicial records and documents.’" Va. Dep’t
of State Police, 386 F.3d at 575 (quoting Stone v. Univ. of Md. Med. Sys.
Corp., 855 F.2d 178, 180 (4th Cir. 1988)).
12 In Re: APPLICATION OF THE UNITED STATES
Even assuming only the logic prong is required, this prong
is not met.9 The logic prong asks whether public access plays
a significant role in the process in question. The § 2703(d)
process is investigative, and openness of the orders does not
play a significant role in the functioning of investigations.
Section 2703(d) proceedings consist of the issuance of and
compliance with § 2703(d) orders,10 are ex parte in nature,
and occur at the investigative, pre-grand jury, pre-indictment
phase of what may or may not mature into an indictment. Pre-
indictment investigative processes "where privacy and
secrecy are the norm" "are not amenable to the practices and
procedures employed in connection with other judicial pro-
ceedings." See In re Sealed Case, 199 F.3d 522, 526 (D.C.
Cir. 2000).
Subscribers contend that transparency of § 2703(d) orders
and motions, which are "the very foundation of our judicial
system," "would ensure fairness, decrease bias, improve pub-
lic perception of the justice system, and enhance the chances
that the orders are well-justified and not overbroad." We are
not persuaded by this argument because in Press-Enterprise,
the Supreme Court noted:
9
The experience prong also fails because § 2703(d) orders are most
analogous to sealed or unexecuted search warrants and grand jury pro-
ceedings for which traditionally, there is no history of access. See Goetz,
886 F.2d at 64-65. Moreover, where the Government "has always been
able to restrict access" to § 2703(d) orders by requesting a sealing order,
regardless of the statutory default, the lack of historical access argument
is not undermined. See Times Mirror Co. v. United States, 873 F.2d 1210,
1214 (9th Cir. 1989) ("Th[e] general availability [of post-execution war-
rant materials], does not undermine the government’s claim [where the
government] has always been able to restrict access to warrant materials
by requesting a sealing order, which courts have granted freely upon a
showing that a given criminal investigation requires secrecy."). As such,
there is no history of access to § 2703(d) orders.
10
Section § 2703(d) proceedings may also consist of a motion by the
recipient electronic communications provider to quash or modify a
§ 2703(d) order, "if the information or records requested are unusually
voluminous in nature or compliance with such order otherwise would
cause an undue burden on such provider." 18 U.S.C. § 2703(d).
In Re: APPLICATION OF THE UNITED STATES 13
Although many governmental processes best operate
under public scrutiny, it takes little imagination to
recognize that there are some kinds of government
operations that would be totally frustrated if con-
ducted openly. A classic example is that "the proper
functioning of our grand jury system depends upon
the secrecy of grand jury proceedings."
478 U.S. at 8-9 (quoting Douglas Oil Co. v. Petrol Stops Nw.,
441 U.S. 211, 218 (1979)). Section 2703(d) proceedings can
be likened to grand jury proceedings. In fact, they are a step
removed from grand jury proceedings, and are perhaps even
more sacrosanct. Proceedings for the issuance of § 2703(d)
orders are also like proceedings for the issuance of search
warrants, which we have noted are not open. See Goetz, 886
F.2d at 64 (observing that the Supreme Court has twice "rec-
ognized that proceedings for the issuance of search warrants
are not open"). Because secrecy is necessary for the proper
functioning of the criminal investigations at this § 2703(d)
phase, openness will frustrate the government’s operations.11
Because § 2703(d) orders and proceedings fail the logic
prong, we hold that there is no First Amendment right to
access them.
iii.
We next consider whether the common law presumption of
access to § 2703(d) orders requires access. This presumption
is not insurmountable, and access may be denied if certain
substantive and procedural preconditions are satisfied. See
Goetz, 886 F.2d at 65 ("[T]he press and the public have a
common law qualified right of access to judicial records."
11
Further evidence that the logic prong favors sealing is that prior notice
to the subscriber or customer is not statutorily required, and the govern-
ment can request a gag order to prevent the recipients of § 2703(d) orders
from disclosing the existence of the orders and investigations. 18 U.S.C.
§§ 2703(c) & 2705(b).
14 In Re: APPLICATION OF THE UNITED STATES
(emphasis added)). In undertaking this inquiry, we note that
the common law right of access to judicial records is "com-
mitted to the sound discretion of the judicial officer who
issued the [§ 2703(d) orders]." Id.
1.
To substantively overcome the common law presumption
of access to § 2703(d) orders, a court must find that there is
a "significant countervailing interest" in support of sealing
that outweighs the public’s interest in openness. Under Seal
v. Under Seal, 326 F.3d 479, 486 (4th Cir. 2003) (citing Rush-
ford, 846 F.2d at 253).12 In balancing the government’s inter-
est and the public’s right to access, a court may consider the
following factors: "[1] whether the records are sought for
improper purposes, such as promoting public scandals or
unfairly gaining a business advantage; [2] whether release
would enhance the public’s understanding of an important
historical event; and [3] whether the public has already had
access to the information contained in the records." In re
Knight, 743 F.2d at 235.
12
We reject Subscribers’ contention that the magistrate judge erred by
applying an "outweigh" standard, as opposed to a "heavily outweigh" stan-
dard in determining whether the common law right of access must yield
to the government’s interest. Subscribers rely on Virginia Department of
State Police where we stated: "‘This presumption of access, however, can
be rebutted if countervailing interests heavily outweigh the public interests
in access,’ and ‘[t]he party seeking to overcome the presumption bears the
burden of showing some significant interest that outweighs the presump-
tion.’" 386 F.3d at 575 (quoting Rushford, 846 F.2d at 253) (emphasis
added)). Neither Goetz, In re Knight, nor Moussaoui—which all relied on
Nixon—use a "heavily outweigh" standard. Rushford, which Virginia
Department of State Police relies on, also relied on Nixon. Moreover,
Rushford subsequently states: "The party seeking to overcome the pre-
sumption bears the burden of showing some significant interest that out-
weighs the presumption." Rushford, 846 F.2d at 253. As such, to
overcome the common law presumption of access, the government’s inter-
ests must merely outweigh the public’s interest.
In Re: APPLICATION OF THE UNITED STATES 15
Subscribers contend that the Government lacks a legitimate
interest in continued sealing, and the magistrate judge "im-
properly relegated," and failed to weigh the public’s "strong"
interest in having access to the § 2703 orders and motions.
Among the identified public interests, Subscribers state an
interest in: participating in a matter of national importance,
which is the ongoing debate about WikiLeaks’ publications;
understanding the nature and scope of the government’s elec-
tronic surveillance of internet activities; and to the extent the
§ 2703 orders have not been complied with, providing Sub-
scribers with an opportunity to challenge the orders to pre-
clude a violation of their constitutional rights.
Subscribers’ contentions fail for several reasons. First, the
record shows that the magistrate judge considered the stated
public interests and found that the Government’s interests in
maintaining the secrecy of its investigation, preventing poten-
tial subjects from being tipped off, or altering behavior to
thwart the Government’s ongoing investigation, outweighed
those interests.
Further, we agree with the magistrate judge’s findings that
the common law presumption of access to § 2703 orders is
outweighed by the Government’s interest in continued sealing
because the publicity surrounding the WikiLeaks investiga-
tion does not justify its unsealing. The mere fact that a case
is high profile in nature does not necessarily justify public
access. See United States v. McVeigh, 119 F.3d 806 (10th Cir.
1997) (upholding the sealing of documents in the Oklahoma
City bombing trial); Moussaoui, 65 F. App’x at 887 n.5
(upholding sealed classified documents related to the terrorist
attacks on September 11, 2001). Additionally, Subscribers’
contention that the balance of interests tips in the public’s
favor because the Government approved the disclosure of the
existence of its investigation by moving the district court to
unseal the Twitter Order is adequately counterbalanced by the
magistrate judge’s finding that the "sealed documents at issue
16 In Re: APPLICATION OF THE UNITED STATES
set forth sensitive nonpublic facts, including the identity of
targets and witnesses in an ongoing criminal investigation."
The magistrate judge also found that "there are legitimate
concerns that publication of the documents at this juncture
will hamper the investigatory process." Regardless of the exe-
cution of, or compliance with, the Other § 2703(d) Orders, to
allow the public or Subscribers access to the orders after such
a finding is an improper means of circumventing the SCA’s
clear assessment that in some instances, non-disclosure of the
existence of the orders is warranted. Accord 18 U.S.C.
§ 2705(b). As such, the magistrate judge did not abuse her
discretion in finding that the Government’s interests are sig-
nificantly countervailing, and outweigh the public’s common
law presumption of access. Hence, the substantive require-
ments to sealing are met.
2.
Turning to the procedural requirements, in determining
whether to seal judicial records, a judicial officer "‘must con-
sider alternatives to sealing the documents’ which may
include giving the public access to some of the documents or
releasing a redacted version of the documents that are the sub-
ject of the government’s motion to seal." Media Gen. Opera-
tions, Inc. v. Buchanan, 417 F.3d 424, 429 (4th Cir. 2005)
(quoting Goetz, 886 F.2d at 65–66). "Adherence to this proce-
dure serves to ensure that the decision to seal materials will
not be made lightly and that it will be subject to meaningful
appellate review." Va. Dep’t of State Police, 386 F.3d at 576.
Subscribers’ procedural contentions are that the magistrate
judge failed to: (1) provide individualized sealing analysis for
each document; and (2) consider alternatives to sealing such
as redactions. These arguments belie the record. The magis-
trate judge made a measured and specific determination as to
sealing, and in the memorandum opinion, "order[ed] that only
documents specified below shall be unsealed." Later in the
In Re: APPLICATION OF THE UNITED STATES 17
opinion, the magistrate judge outlined the rationale for unseal-
ing certain documents, while refusing to unseal others, and
approved certain redactions and permitted the disclosure of
redacted documents. As such, the magistrate judge individu-
ally considered the documents, and redacted and unsealed cer-
tain documents, satisfying the procedural requirements for
sealing.
Because both the substantive and procedural requirements
are met, the magistrate judge did not err in sealing the
§ 2703(d) orders. Since we conclude that there is no First
Amendment right to access § 2703(d) orders, and the common
law right of access is outweighed by the Government’s inter-
est in maintaining the ongoing investigation, Subscribers lack
a clear and indisputable right to the relief sought. Thus, we
deny the petition for mandamus.
C.
Subscribers next proceed with their challenge to the docket-
ing procedures in the Eastern District of Virginia, arguing that
the docket sheets for cases on the EC docket fail to identify,
through individual docket entries, the type and date of matters
occurring in each case. Docket sheets exist to "provide a map
of proceedings in the underlying case," ensuring "meaningful
access" to criminal proceedings. Hartford Courant Co. v. Pel-
legrino, 380 F.3d 83, 95 (2d Cir. 2004); United States v.
Valenti, 987 F.2d 708, 715 (11th Cir. 1993). Hence, Subscrib-
ers essentially seek notice and an opportunity to participate,
or be heard, in § 2703(d) related proceedings.
As we stated above, there is no First Amendment right of
access to § 2703(d) proceedings. While "[w]e agree that . . .
the public must ordinarily be given notice and an opportunity
to object to sealing of public documents," Media Gen. Opera-
tions, 417 F.3d at 429, we have never held, nor has any other
federal court determined, that pre-indictment investigative
matters such as § 2703(d) orders, pen registers, and wiretaps,
18 In Re: APPLICATION OF THE UNITED STATES
which are all akin to grand jury investigations, must be pub-
licly docketed. See In re Sealed Case, 199 F.3d at 525 (citing
federal public docketing cases and noting that none has
required such in the grand jury context). In fact, none of the
cases Subscribers cite supports such a proposition. See United
States v. Ochoa-Vasquez, 428 F.3d 1015, 1029-30 (11th Cir.
2005) (post-indictment secret docketing procedures are
unconstitutional); Pellegrino, 380 F.3d at 95 (public docket-
ing is required where there is a First Amendment right to
access the related criminal proceeding); In re State–Record
Co., 917 F.2d 124, 128–29 (4th Cir. 1990) (per curiam)
(secret docketing of criminal proceedings related to indicted
public officials violates First Amendment right to access). We
refuse to venture into these uncharted waters, and as such, we
refrain from requiring district courts to publicly docket each
matter in the § 2703(d) context. We therefore deny Subscrib-
ers’ petition for mandamus.
IV.
For the reasons above, we conclude that Subscribers are not
entitled to the relief they seek. Accordingly, we deny the peti-
tion for mandamus. We note that Subscribers are not forever
barred from access to the Other § 2703(d) Orders and deriva-
tive documents because at some point in the future, the Gov-
ernment’s interest in sealing may no longer outweigh the
common law presumption of access. At such point, the Sub-
scribers may seek to unseal these documents.
PETITION FOR MANDAMUS DENIED
WILSON, District Judge, concurring:
I concur in the opinion in all respects except the conclusion
that there is a presumed common law right of access to
§ 2703(d) judicial orders and motions separate and apart from
a subscriber’s individual right of access. Courts cannot pre-
sume common law rights and remedies that conflict with a
In Re: APPLICATION OF THE UNITED STATES 19
statutory scheme or a statute’s essential purpose. In my view,
the presumption here of a common law right of access does
precisely that.
"[A]brogation of common law principles is appropriate
when a contrary statutory purpose is evident." Zeran v. Am.
Online, Inc., 129 F.3d 327, 334 (4th Cir. 1997); see also
United States v. Texas, 507 U.S. 529, 534 (1993) ("In order
to abrogate a common-law principle, the statute must ‘speak
directly’ to the question addressed by the common law."
(quoting Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625
(1978))). Here, the challenged orders and documents all arise
under Title II of the Electronic Communications Privacy Act
of 1986, which is commonly known as the Stored Communi-
cations Act.1 The Act was intended "to update and clarify fed-
eral privacy protections and standards in light of dramatic
changes in new computer and telecommunications technolo-
gies." S. Rep. No. 99-541, at 1 (1986). Congress recognized
that technological advancements had "expanded dramatically"
the opportunity for the government to intrude in the lives of
its citizens. Id. at 2. Constitutional jurisprudence, however,
afforded little protection to the privacy interests of persons
whose information and records were "subject to control by a
third party computer operator." Id. at 3. Congress was con-
cerned that information in the hands of third parties might "be
open to possible wrongful use and public disclosure by law
enforcement authorities as well as unauthorized private par-
ties." Id.
In the face of rapidly evolving technology, the Act
attempted to establish a framework governing the acquisition
and dissemination of this often highly private information, not
only by government officials but by private individuals and
entities as well. See 18 U.S.C. § 2701. It prohibits service pro-
viders from voluntarily disclosing stored customer communi-
1
The Act amended Title III of the Omnibus Crime Control and Safe
Streets Act of 1968—the federal wiretap law.
20 In Re: APPLICATION OF THE UNITED STATES
cations and records except as specifically authorized, see 18
U.S.C. § 2702(a)–(b), and details the procedures the govern-
ment may employ to obtain stored information from a third-
party provider, depending upon whether the government is
seeking the contents of a stored communication, or non-
content information. See 18 U.S.C. § 2703(a)–(c). A "content"
inquiry to a provider that is not itself authorized to access
content requires either a warrant or advance notice to the sub-
scriber when the content is 180 days old or less.2 See 18
U.S.C. § 2703(b). The advance-notice requirement expressly
applies to administrative subpoenas, grand jury subpoenas,
trial subpoenas, and court orders for disclosure under 18
U.S.C. § 2703(d). 18 U.S.C. § 2703(b). But despite the seem-
ingly broad advance-notice requirement, the statute provides
that the court may delay notice pursuant to § 2705 if, in the
case of a court order, the court determines that there is reason
to believe that the notification of the existence of a court order
may have an "adverse result" (as that term is further defined
by the statute) or, in the case of an administrative or grand
jury subpoena, a supervisory official certifies in writing that
advance notification may have such an effect. See 18 U.S.C.
§ 2705(a)(1)(A)–(B). The government also may apply to the
court under specified circumstances for an order commanding
a provider "to whom a warrant, subpoena, or court order is
directed, for such period as the court deems appropriate, not
to notify any other person of the existence of the warrant, sub-
poena, or court order." See 18 U.S.C. § 2705(b).
When the government seeks something other than content
from a provider, it may do so if it obtains a warrant, court
order, or consent of the subscriber or customer; submits a for-
mal written request relevant to a law enforcement investiga-
tion concerning telemarketing fraud; or simply seeks
essentially billing-related or business records from the pro-
vider (such as names, addresses, local and long-distance tele-
2
"Under the [Act], an email is presumed to be abandoned after 180 days
. . . ." S. Rep. No. 112-258, at 3 (2012).
In Re: APPLICATION OF THE UNITED STATES 21
phone connection records, service periods, telephone or
instrument numbers, or means of payment). See 18 U.S.C.
§ 2703(c)(1)–(2). When the government seeks what are essen-
tially business records, it is not required to provide notice to
the subscriber or customer. See 18 U.S.C. § 2703(c)(3).
Finally, to obtain a court order the government must offer
"specific and articulable facts showing that there are reason-
able grounds to believe that the contents of a wire or elec-
tronic communication, or the records or other information
sought, are relevant and material to an ongoing criminal
investigation." 18 U.S.C. § 2703(d).
The motions that support these § 2703(d) orders, the orders
themselves, and the very existence of these orders implicate
or directly convey highly private information and confirm the
existence of a criminal investigation. Yet an essential purpose
of the Electronic Communications Privacy Act is the protec-
tion of the privacy interests of subscribers or customers in
their electronically stored information and records. To pre-
sume a common law right of access to these records because
the government has obtained an order from a federal
court—which acts in these cases as a limited backstop against
government overreaching—strikes at the Act’s essential pur-
pose. The government’s monitored intrusion of the citizen’s
private interests would thereby justify privacy intrusions by
others. Rather than serving as a check against invasions of
privacy, the Act would serve to magnify them. Consequently,
I believe that a common law right of access is squarely at
odds with the Act’s essential purpose.
Not only does the presumption of a common law right of
access strike at the Act’s essential purpose, it entangles itself
with the Act in incongruous ways. The Act provides, for
example, when notice will be given to an account holder or
subscriber, when it need not be given at all, and when the
court may delay notice. But when there is a public right of
access, this court has prescribed very particular procedures
that the district court must follow when sealing docu-
22 In Re: APPLICATION OF THE UNITED STATES
ments—including the provision of some form of public
notice, a consideration of less drastic alternatives, and factual
findings to the effect that the circumstances of the case war-
rant overriding the public’s presumptive right of access. See
Media Gen. Operations, Inc. v. Buchanan, 417 F.3d 424, 429
(4th Cir. 2005); Ashcraft v. Conoco, Inc., 218 F.3d 282, 288
(4th Cir. 2000). Congress has, however, within the confines
of the Act, specified when notice to the subscriber is required
and when it is not. Surely Congress did not intend that courts
wrestle in every instance in the course of an investigation with
public notice and sealing alternatives in spite of the Act’s
detailed individual notice provisions. Surely the public can
have no greater right of access than the subscriber to matters
involving the subscriber’s own electronic information.
I think it indisputable that Congress’ primary concern in
passing the Electronic Communications Privacy Act of 1986
is revealed by the Act’s very name. Congress sought to pro-
tect the privacy interests of individuals in electronically stored
information. It sought to do so by placing a judicial officer
between law enforcement and the acquisition of that informa-
tion. It is, to say the least, an unintended consequence that
when Congress inserted a judicial officer into the mix, a com-
mon law right of access resulted that would require a sub-
scriber to fight publicly to safeguard that which Congress
deemed private. In my view, a common law right of access
irreconcilably conflicts with the statutory scheme of the Elec-
tronic Communications Privacy Act.