List of every sealed 2703(d) order in Eastern District of Virginia, May 2011 – April 2013
- posted May 16, 2013
The 76 page document below contains a list of every electronic communication ‘ec’ orders under seal for criminal cases in the U.S. District Court for the Eastern District of Virginia between May 2011 and April 2013.
The list begins in May 2011 because public docketing of ‘ec’ orders was established by court order in the Twitter 2703(d) case brought by Jacob Appelbaum, Rop Gonggrijp, Birgitta Jonsdottir. When the list was established, it contained nine entries— presumed to be other secret ‘ec’ orders related the grand jury investigation of WikiLeaks.
As of April 11, 2013, the list contains approximately 800 entries. While the Clerk’s Office implied that most of the entries contained in this document pertained to the “same” investigation, there is no way to publicly confirm if that is the case. The entries are sealed.
In the appeal of the Twitter 2703(d) ruling, the Government represented to the Fourth Circuit, “that, once charges are filed or the investigation is closed, it will move to unseal any other Section 2703(d) orders issued during the [WikiLeaks] investigation.
The criminal investigation into WikiLeaks is a joint partnership between the Departments of Defense, State, and Justice.
On November 29, 2010 and December 6, 2010 the U.S. Attorney General at the Department of Justice Eric Holder publicly confirmed an “active, ongoing criminal investigation” and grand jury probe of WikiLeaks. The criminal investigation was confirmed to be ongoing on March 26, 2013.
An agent for Army CID testified at Manning’s pretrial hearing in December 2011 that seven civilians were investigated by the FBI, including the “founders, owners, or managers of WikiLeaks.” The FBI file, lead military prosecutor, Major Fein said, was “42,135 pages or 3,475 documents”– the entirety of which is classified at the Secret level. In November 2012, Fein, stated in court that the Army CID investigation into WikiLeaks is ongoing because the media organization continues to publish classified information.
In January 2013, military prosecutors filed for judicial notice of news reports they intend to use to try to ‘substantiate’ the identity of an individual Manning allegedly chatted with, who military prosecutors allege is Julian Assange. The news reports were published by New Yorker Magazine, The New York Times, and the BBC.
Manning stated at an inquiry hearing where he pled to nine lesser included offenses of the Espionage Act and one violation of Article 92 for failure to obey a lawful general regulation that he did not know the identity of the individual he allegedly chat with at the WikiLeaks organization and that he takes sole responsibility for the leaks.
Contained in the list below is a 2703(d) order issued to Google on June 10, 2011 and a search warrant issued to Google on August 24, 2011. Both the 2703(d) order and search warrant pertain to the same subscriber and are referred to together by the U.S. Attorney for the Eastern District of Virginia, Neil MacBride, and Assistant U.S. Attorney with the National Security Division at the Department of Justice, Andrew Peterson, in a Government filing.
In the filing the Government asked for clarification in opposition to Google’s motion to unseal to authorize the search provider to disclose the secret order to its subscriber.
“On February 28, 2012, this Court entered orders in 1:11 EC 56 and 1:11 SW 454 authorizing Google to “deliver to its subscriber” a redacted copy of the search warrant filed under that number and a copy of the Court’s June 20, 2011 Order issued pursuant to 18 U.S.C. § 2703(d).”
In the Government’s recounting of the case for the filing, MacBride and Peterson cite the Court’s February 28, 2012 ruling to unseal the secret order to the subscriber:
“It is difficult to imagine circumstances in which this Google subscriber, as described by the government in its brief, has not assumed government access to this account and acted accordingly.” In re a 18 U.S.C. § 2703(d) Order issued to Google, Inc. on June 10, 2011, No. 1:11 EC 56 (E.D. Va. Feb. 28,2011) (emphasis added [by MacBride and Peterson]).
The Government goes on to say the Court found “that Google’s
subscriber was aware of the government’s investigation and likely assumed government access to the account.”
The Government also argued that the sealing be extended while the Government and Google clarify their oppositional understanding of the unsealing order. Google understood the Court’s February 28, 2012 order to mean that the secret order to be revealed to any person, although Google only intended to share it with the subscriber. While the Government understood the unsealing to pertained to the individual subscriber alone.
On March 26, 2012 the Court ruled that the secret order could be unsealed and that the subscriber was at liberty to disclose its contents to others.
The Court ruled similarly the same day regarding permissible disclosure for the Search Warrant Issued to Google on August 24, 2011
A 2703(d) or ‘ec’ order requires “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.”
A search warrant, or ‘sw’ on the other hand, must specifically describe probable cause for evidence of a crime.
In October 2011, Julia Angwin reported in the Wall Street Journal that she had viewed a secret order dated January 4, 2011 ordering Google order to hand over “the IP address from which Mr. Appelbaum logged into his gmail.com account and the email and IP addresses of the users with whom he communicated dating back to Nov. 1, 2009. It isn’t clear whether Google fought the order or turned over documents.”
Angwin says it wasn’t “clear whether Google fought the order or turned over documents.” According to sources familiar with the case, “both Google and Sonic pressed for the right to inform Mr. Appelbaum of the secret court orders.”