2703d orders under seal for Docket No. 10GJ3793
- posted February 3, 2012
[UPDATE March 24, 2013]
According to United States Attorney Neil MacBride and Assistant United States Attorneys Lindsay A. Kelly and Andrew Peterson:
“On May 4, 2011 (the “May 4 Order”), the magistrate judge granted (at least in part) the Subscribers’ request for public docketing when she ordered documents related to the Twitter Order assigned to the newly created “ec” docket, case number 1:11-ec-3. JA 167. The magistrate judge directed that docket 1:11-ec-3 be recorded “on the running list in the usual manner” and ordered all documents to remain sealed. Id. On June 1, 2011 (the “June 1 Order”), the magistrate judge explained that the running list, which “shows at a minimum all assigned case numbers other than grand jury cases, and whether a particular case is under seal…satisfies the public’s right to know that a particular case exists and has been sealed.” JA 181. Specifically, the running list informs the public of the docket number, the date the docket number was assigned, the judge it was assigned to, and whether the order was filed under seal. JA 278. The Subscribers promptly filed objections to the May 4 Order and the June 1 Order with the district court. (Source: In re: Twitter 2703(d) Order; 10GJ3793 (Appeal 11-5151) Corrected BRIEF by Appellee US in electronic and paper format. Type of Brief: Response. Method of Filing Paper Copies: mail. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 03/02/2012. [998801620] [11-5151] Andrew Peterson)
[END UPDATE March 24, 2013]
[UPDATE October 31, 2012]
In their January 1, 2012 Appeal to the Fourth Circuit, appellants Jacob Appelbaum, Rop Gonggrijp, and Birgitta
Jonsdottir (“Movants”) relate:
“On November 10, 2011, the district court issued a Memorandum Opinion and an Order denying all of Movants’ Objections. The last nine pages of the sixty page Memorandum Opinion, JA-274-82, address the motion for unsealing and public docketing.
With respect to the motion to unseal, the court found that there was no First Amendment right of access to the sealed documents because the government’s application and affidavits contain “sensitive information” about the details of the government’s criminal investigation, JA-276-77, and publicly disclosing the Section 2703 affidavits would result in “no marked improvement” to the functioning of the judicial system, JA-277. The court similarly found that there was no common law right of access to any of the sealed documents, including the other Section 2703 orders, and that the government’s interest in protecting its ongoing investigation outweighed any interests for access. JA-278-81.
With respect to public docketing, the district court held that providing individual docket entries on the docket sheet would harm the government’s investigation, that it is not required by either the First Amendment or the common law, and that the existing EC running list was legally sufficient. JA-277-78, 281. [Footnote] 8
[END UPDATE October 31, 2012]
The docket number for the Grand Jury criminal investigation of WikiLeaks case is 10GJ379. The list below comes directly from a Declaration of Stuart Sears, lawyer to Jacob Appelbaum, which was placed as Exhibit B in a legal declaration entered into the record on May 19, 2011.
“On May 16, 2011, I [Stuart Sears, attorney for Jacob Appelbaum in re Twitter Secret Order] personally went to the Clerk’s office to view the running list reflecting the documents filed in this case. I was assisted again by the supervisor, Mr. Banke. The running list I was shown was almost identical to the previous case list that I had seen on May 6, which merely showed the existence of the four ec cases. The only change in the list was that, for 1:11-ec-3, there were now two new notations directly under the case number: “12/14/10 Under Seal Application and Order; 1/5/11 Motion and Order to unseal order of 12/14/10 (granted).” No notations were added to any of the other ec cases. In addition, the list now included the existence of additional 1:11-ec cases, running from 1:11-ec-5 through 1:11-ec-9. There were no notations or information regarding these additional cases. A true and correct copy of this running list that I viewed is attached hereto as Exhibit B (Source: In Re Application of the USA For an Order Pursuant to 18 USC Section 2703(d), Declaration of Stuart Sears)
Background
“Following the filing of Movants’ motions under the original docket number 10-GJ-3793 [WikiLeaks Grand Jury Docket No.], the Court created a new docket number, 1:11-dm-00003, to handle the litigation documents regarding the motions. None of the documents existing prior to the filing of Movants’ motions, including the Twitter Order, the government’s Application for that Order, or the government’s motion to unseal the Twitter Order, were filed or docketed in this new 1:11-dm-00003 docket. JA-1-15. A subsequent search of the Court’s public docket revealed that three other dm docket numbers were created at the same time, immediately after the filing of Movants’ motions: 1:11-dm-00001, 1:11-dm-00002, and 1:11-dm-00004. A short time later, 1:11-dm-00005 was also created. There are no publicly available docket entries for these other dm matters. Movants reasonably believe that these dockets were created in connection with orders to companies other than Twitter, with each order assigned to a different “dm” number. (Source: In Re Application of the USA For an Order Pursuant to 18 USC Section 2703(d), Appeal of Secrecy Ruling)
Counsel for Movants was initially not permitted to view the “running list” referenced in the May 4 Order at the Clerk’s Office, but eventually was permitted to view a one-page computer entry listing four “EC” cases–1:11-ec-00001, 1:11- ec-00002, 1:11-ec-00003, and 1:11-ec-00004. JA-168. There was no information on this one-page entry other than these docket numbers, the fact that they were all assigned to Magistrate Buchanan, and that the dockets had been created on the days immediately before and after the May 4 Order. Id.
After Movants, through counsel, contacted the Clerk’s Office and the Magistrate’s chambers, Movants were informed that additional information would be publicly docketed on the running list. JA-169. The new list was identical to the one-page computer entry Movants had previously seen, except that two new notations had been added regarding the individual documents associated with the ec-3 (Twitter) docket, and the list now included references to an ec-5, ec-6, ec-7, ec-8, and ec-9 docket. JA-175-177. Unlike the ec-3 docket, the other EC dockets contain no individual docket entries or other information indicating what documents have been filed. All that appears for them is a case name, “USA v. Under Seal,” the name of the judge assigned to the matter, the date the matter was put on the EC list, and miscellaneous case assignment information. As with the parallel dm-1, dm-2, dm-4, and dm-5 docket numbers created following the filing of Movants’ original motions, Movants reasonably believe that the ec-1, ec-2, ec-4, and ec-5 dockets, all created between May 2 and May 6 and assigned to Magistrate Buchanan, concern Section 2703-related orders to companies other than Twitter that were the subject of Movants’ motion for unsealing and public docketing. (Source: In Re Application of the USA For an Order Pursuant to 18 USC Section 2703(d), Appeal of Secrecy Ruling)
Eastern District of Virginia
Report Date: 5/16/2011
Detail Report
| CASE | ASSIGNMENT | JUDGE | SOURCE | [WHAT IS THIS?] |
|---|---|---|---|---|
| 1:11-ec-00001 |
Assigned: 05/02/2011 |
Presider: Buchanan Theresa Caroll Referral: |
Pres. Deck: A-Criminal (EC Cases) Instance No.: 1 Card No.: 5 User: jlan |
|
| Not Filed | ||||
| 1:11-ec-00002 |
Assigned: 05/03/2011 |
Presider: Buchanan Theresa Caroll Referral: |
Pres. Deck: A-Criminal (EC Cases) Instance No.: 1 Card No.: 6 User: jlan |
|
| Not Filed | ||||
| 1:11-ec-00003 U.S. v Under Seal; 12/14/10 Under Seal Application and Order; 1/5/11 Motion (granted) |
Assigned: 05/03/2011 |
Presider: Buchanan Theresa Caroll Referral: |
Pres. Deck: A-Criminal (EC Cases) Instance No.: 1 Card No.: 7 User: rban |
Twitter Secret Order @brigittaj @rop_g @ioerror |
| Not Filed | ||||
| 1:11-ec-00004 USA v Under Seal; |
Assigned: 05/05/2011 |
Presider: Buchanan Theresa Caroll Referral: |
Pres. Deck: A-Criminal (EC Cases) Instance No.: 1 Card No.: 8 User: jcor |
|
| Not Filed | ||||
| 1:11-ec-00005 USA v Under Seal; |
Assigned: 05/06/2011 |
Presider: Buchanan Theresa Caroll Referral: |
Pres. Deck: A-Criminal (EC Cases) Instance No.: 1 Card No.: 18 User: jcor |
|
| Not Filed | ||||
| 1:11-ec-00006 USA v Under Seal; |
Assigned: 05/11/2011 |
Presider: Jones, Thomas Rawles, Jr Referral: |
Pres. Deck: A-Criminal (EC Cases) Instance No.: 1 Card No.: 13 User: jsch |
|
| Not Filed | ||||
| 1:11-ec-00007 USA v Under Seal; |
Assigned: 05/12/2011 |
Presider: Jones, Thomas Rawles, Jr Referral: |
Pres. Deck: A-Criminal (EC Cases) Instance No.: 1 Card No.: 14 User: jcor |
|
| Not Filed | ||||
| 1:11-ec-00008 USA v Under Seal; |
Assigned: 05/12/2011 |
Presider: Jones, Thomas Rawles, Jr Referral: |
Pres. Deck: A-Criminal (EC Cases) Instance No.: 1 Card No.: 15 User: jcor |
|
| Not Filed | ||||
| 1:11-ec-00009 USA v Under Seal; |
Assigned: 05/13/2011 |
Presider: Jones, Thomas Rawles, Jr Referral: |
Pres. Deck: A-Criminal (EC Cases) Instance No.: 1 Card No.: 16 User: jcor |
Additional Information and Definitions
“In any event, the government has already minimized to the extent possible inclusion of non WikiLeaks-related information by agreeing to narrow Twitter’s response to non-content information concerning direct (i.e., private) messages only between the four identified accounts, see supra n.1, and to exclude records of user activity for connections to or from the accounts relating to public followers, Apache logs, or replies to Twitter feeds.” (Source: In Re Application of the USA For an Order Pursuant to 18 USC Section 2703(d), Government’s Response to Objections of Three Twitter Subscribers to Magistrate Judge’s March 11, 2011, Opinion Denying Motion to Vacate and Denying in Part Motion to Unseal)
“The Subscribers challenged the Order with respect to the three Twitter accounts with which they are identified. But with respect to the fourth Twitter account, WikiLeaks, no party raised objections as to Twitter’s production of records related to it. No person appeared on behalf of WikiLeaks in the proceedings before the magistrate judge, who dismissed as moot Twitter’s motion for clarification related to production of records from the WikiLeaks account. Twitter did not object to the dismissal. Thus, both the owner of the WikiLeaks Twitter account and Twitter itself have waived any right to appeal the Order’s directive to produce records relating to the account. See Wells v. Shriners Hospital, 109 F.3d 198, 199 (4 th Cir. 1997) (“the consequence of failing to file objections is waiver of the right to appeal”). (Source: In Re Application of the USA For an Order Pursuant to 18 USC Section 2703(d), Government’s Response to Objections of Three Twitter Subscribers to Magistrate Judge’s March 11, 2011, Opinion Denying Motion to Vacate and Denying in Part Motion to Unseal)
“An ‘ec’ case number is a new designation used by the Clerk’s office for pen registers and orders issued pursuant to 18 U.S.C. Section 2703(d).” (Source: In Re Application of the USA For an Order Pursuant to 18 USC Section 2703(d), Government’s Response to Objections to Judge Buchanan’s May 4, 2011 Docketing Order)
“The Clerk’s office manages three types of “cases.” See District Clerk’s Manual Section 4.03. These are civil, criminal, and magistrate judge cases, designated ‘cv,’ ‘cr’ and ‘mj’ respectively. Id. ‘Mj’ numbers are used for proceedings before a magistrate judge which have not yet become a criminal case.” (Source: In Re Application of the USA For an Order Pursuant to 18 USC Section 2703(d), Government’s Response to Objections to Judge Buchanan’s May 4, 2011 Docketing Order)
“The Clerk’s office also tracks some other ancillary and supplementary proceedings that do not fall within the three categories above. Id. Section 4.03(a)(1). Such proceedings are assigned ‘miscellaneous numbers,’ and these matters are not considered ‘cases.’ Id. (‘Miscellaneous numbers are assigned to a variety of matters filed with the court which are not properly considered civil or criminal cases.’). Miscellaneous numbers are assigned to actions concerning “administrative matters that require resolution through the judicial system.” Id. The District Clerk’s Manual identifies numerous proceedings that may be assigned miscellaneous numbers, such as pen registers, wire interceptions, and grand jury matters. Id.” (Source: In Re Application of the USA For an Order Pursuant to 18 USC Section 2703(d), Government’s Response to Objections to Judge Buchanan’s May 4, 2011 Docketing Order)
“‘DM’ Numbers A ‘DM’ number is assigned by the Clerk’s office in the Eastern District of Virginia to miscellaneous matters. Courts around the country use different numbering systems for miscellaneous matters, including ‘mc,’ ‘ms,’ and others. See Tim Reagan and George Cort, Sealed Cases in the Federal Courts (‘Sealed Cases’) 23 (Federal Judicial Center 2009). However, only the Eastern District of Virginia uses ‘dm’ numbers. Id. (noting that only one district uses ‘dm’ numbers for miscellaneous matters).” (Source: In Re Application of the USA For an Order Pursuant to 18 USC Section 2703(d), Government’s Response to Objections to Judge Buchanan’s May 4, 2011 Docketing Order)
“An ‘EC’ number is a new numbering system used by the Clerk’s office for pen registers and orders issued pursuant to 18 U.S.C. Section 2703(d). All such pen registers and Section 2703(d) orders are given an ‘ec’ number and docketed at the time of issuance. A list of all such cases is available in the Clerk’s office (the ‘running list’). Subscribers’ Obj. Att. B. The ‘running list’ 3 also contains a list of pleadings that have been unsealed in any ‘ec’ matter, but not an itemized list of all the sealed documents in any ‘ec’ matter. (Source: In Re Application of the USA For an Order Pursuant to 18 USC Section 2703(d), Government’s Response to Objections to Judge Buchanan’s May 4, 2011 Docketing Order)
“A ‘GJ’ number is assigned by the United States Attorney’s Office, not the Clerk’s office. GJ numbers are used by the United States Attorney’s Office to identify documents related to a grand jury investigation. “GJ” numbers are created by U.S. Attorney’s Office staff, and are used to ensure that subpoenas and other documents related to various investigations are appropriately handled and filed. An investigation assigned a “gj” number may become a criminal case, or it may not.” (Source: In Re Application of the USA For an Order Pursuant to 18 USC Section 2703(d), Government’s Response to Objections to Judge Buchanan’s May 4, 2011 Docketing Order)
“B. There Is No Case 10-GJ-3793, So There Is No Docket to Unseal. The subscribers state that they filed motions in case 10-gj-3793, and that they moved for the unsealing and public docketing “of all Section 2703-related documents on the 10-gj-3793 docket.” Subscribers’ Obj. at 3. However, there is no case 10-gj-3793, and no corresponding docket maintained by the Clerk. Thus, the subscribers’ request to the Court for the unsealing of the docket for case number 10-gj-3793 is misplaced. The Court cannot unseal a docket that does not exist. Nor does any law require this Court to create a docket listing documents filed according to a number assigned by the United States Attorney’s Office, or to seek out matters docketed under other numbers and identify them on a docket specific to the subscribers. Thus, to the extent the subscribers’ request that the Court order the creation of a docket relating to the ongoing investigation identified by 10-gj-3793, the request should be denied.” (Source: In Re Application of the USA For an Order Pursuant to 18 USC Section 2703(d), Government’s Response to Objections to Judge Buchanan’s May 4, 2011 Docketing Order)
“Although no right to public docketing of Section 2703(d) orders exists, the Clerk does publicly docket Section 2703(d) orders in accordance with Local Criminal Rule 49. When a sealed Section 2703(d) order is filed, the Clerk’s office assigns that order an ‘ec’ number. Pen registers are also assigned ‘ec’ numbers. The list of all matters given an ‘ec’ number by the Clerk’s office is available to the public (the ‘running list’). Footnote 8 Thus, the existence of any sealed Section 2703(d) order or 8 pen register is made public, although details of the Section 2703(d) orders or pen registers are not. As such, there is public notice that a Section 2703(d) order has issued, thus allowing a challenge by any member of the public to the sealing of such order.” (Source: In Re Application of the USA For an Order Pursuant to 18 USC Section 2703(d), Government’s Response to Objections to Judge Buchanan’s May 4, 2011 Docketing Order)
“That the ‘running list’ does not contain individual docket entries for each document file…” (Source: In Re Application of the USA For an Order Pursuant to 18 USC Section 2703(d), Government’s Response to Objections to Judge Buchanan’s May 4, 2011 Docketing Order)
“A docket is a ‘map’ of a proceeding…” (Source: In Re Application of the USA For an Order Pursuant to 18 USC Section 2703(d), Government’s Response to Objections to Judge Buchanan’s May 4, 2011 Docketing Order)
“For the same reasons, to the extent that any Section 2703(d) orders pre-date the Clerk’s ‘ec’ 12 numbering system, the subscribers are not entitled to a list of such orders that relate to the subscribers.” (Source: In Re Application of the USA For an Order Pursuant to 18 USC Section 2703(d), Government’s Response to Objections to Judge Buchanan’s May 4, 2011 Docketing Order)