4th Circuit Rules Public has No Right to Access Stored Communications Act Orders

On Jan. 25, 2013, the U.S Court of Appeals for the Fourth Circuit held that the public has no First Amendment right to access court orders issued under the Stored Communications Act. United States v. Applebaum (In re Application of the United States of America for an Order Pursuant to 18 U.S.C. Section 2703(d)).

As a reminder of what we have already read and discussed in class related to the Stored Communications Act, it was enacted to protect the privacy of those who use electronic communications. The act criminalizes the unauthorized access of the contents and transactional records of stored wire and electronic communications, but still provides law enforcement agencies with the ability to require a provider of electronic communication services to disclose the contents of electronic communications. Pub. L. No. 99–508 (codified at 18 U.S.C. §§ 2701-2711).

For law enforcement to obtain stored electronic communications, like a user's name, address, or other data, the government must either get a warrant, or a court order under 18 U.S.C. § 2703(d) The Fourth Circuit described the standard used as "essentially a reasonable suspicion standard." The government does not have to let the user know they are seeking access to these records.

In this case, the issue revolved around orders related to the Government's request for stored communications  relevant to an ongoing criminal investigation into U.S. Army Private Bradley Manning's alleged unauthorized disclosure of government documents to WikiLeaks. (For more on the background of Manning's document disclosure, see the New York Times Topic page with all of its coverage.) As a part of its investigation into the leaks, the Government sought orders to compel Twitter to disclose  account information and IP addresses of a list of individuals. The U.S. District Court for the Eastern District of Virginia granted the original orders in December 2010 and they were sealed.

Several of the Twitter subscribers who were the subjects of these court orders filed a motion with the distrit court to have the orders unsealed and made available on the public docket. The district court determined in March 2011 that there was no First Amendment right to have access to the orders, and that the presumption of access to court records was overcome in this case because the documents included “sensitive nonpublic facts, including the identity of targets and witnesses in an ongoing criminal investigation.”

The subscribers appealed to the Fourth Circuit, asking it to issue a writ of mandamus that would order the district court to unseal the orders. The Fourth Circuit agreed with the district court and also said the reasons the Government are seeking the records can also remain sealed.

The ACLU and the Electronic Frontier Foundation took interest in the case and expressed disappointment in the result. “This case shows just how easy it is for the government to obtain information about what people are doing on the Internet, and it highlights the need for our electronic privacy laws to catch up with technology,” ACLU attorney Aden Fine said. “The government should not be able to get private information like this without getting a warrant and also satisfying the standard required by the First Amendment, and it shouldn’t be able to do so in secret except in unusual circumstances.”

This case illustrates a lot of what we have been discussing and debating in class this semester. It brings up the constitutional concerns juxtaposed with statutory regime in place that was articulated as protective of privacy.

But beyond Government leakers, this case has general implications for all Internet users. Robyn Hagan Cain, a senior blogger for FindLaw, pointed out that this case highlights that the government can request individuals' electronic communications from a service like Twitter without needing probable cause, which a subpoena would require, but a court order does not. The user also has no right to know this information is being sought. The petitioners in this case only knew because Twitter notified them. And, finally EFF Legal Director Cindy Cohn cautioned all Internet users after the decision:  "When you use the Internet, you entrust your online conversations, thoughts, experiences, locations, photos, and more to dozens of companies who host or transfer your data. In light of that technological reality, we are gravely worried by the court's conclusion that records about you that are collected by Internet services like Twitter, Facebook, Skype and Google are fair game for warrantless searches by the government."