In re U.S. for an Order Pursuant to 18 U.S.C. Section 2703(d)

During an ongoing criminal investigation involving the unauthorized release of classified documents to WikiLeaks.org, the United States government (plaintiff) requested relevant records of electronic communications under 18 U.S.C. § 2703(d). A magistrate judge issued an order (the Twitter order) directing Twitter, Inc. to disclose electronic records related to Jacob Appelbaum, Rop Gonggrijp, and Birgitta Jonsdottir (collectively, the subscribers) (defendants), including the subscribers’ names, usernames, messages, and other personal data and information. The magistrate sealed the Twitter order, finding that prior notice of the Twitter order and the criminal investigation would jeopardize the investigation. On January 5, 2011, the magistrate granted the government’s motion to unseal the Twitter order and authorized Twitter to disclose the order to the subscribers. The subscribers moved to vacate the Twitter order, unseal all documents related to the order, and unseal and publicly docket any other 18 U.S.C. § 2703(d) orders related to the investigation. The magistrate granted only the motion to unseal pleadings filed during litigation over the Twitter order. The magistrate found that there was no First Amendment right to access certain documents and that the common-law presumption of access to judicial records did not apply, because the documents contained sensitive nonpublic facts. The subscribers filed objections with the district court. The district court overruled the objections under a clearly-erroneous standard. The district court affirmed the magistrate’s decisions. The subscribers appealed.