by David Fagan and Alex Berengaut

On November 10, 2011, Judge Liam O’Grady of the United States District Court for the Eastern District of Virginia issued a 60-page memorandum opinion in a dispute over the validity of a special court order issued to Twitter for non-content records for certain users connected to the government’s Wikileaks investigation.  The special court order at issue in the case was a so-called “D Order”:  an order issued under the Stored Communications Act (“SCA”), 18 U.S.C. § 2703(d), upon an application by the government including “specific and articulable facts” showing that the information being sought is relevant to an ongoing criminal investigation.

In its opinion, the Court upheld the D Order against numerous non-constitutional and constitutional challenges.  Among other things, the Court ruled that:

  • The users whose non-content records were being sought did not have standing under the SCA to raise a pre-execution non-constitutional challenge to the D Order.  In reaching its conclusion, the Court noted that the SCA gives providers broader rights than users to raise such challenges. 
  • Even though the Order would inevitably capture information not relevant to the Wikileaks investigation, the Order as a whole was not overbroad.  The Court reasoned that “[t]he probability that some gathered information will not be material is not a substantial objection at this stage.” 
  • The targeted users did not have a reasonable expectation of privacy in their IP address information, and, as a result, the Fourth Amendment was not implicated by the Order. 
  • The Due Process Clause of the Fifth Amendment did not afford the users the right to raise a challenge to the D Order before it was executed.  In making this decision, the Court found it significant that D Orders can be issued “only after approval by an impartial judicial officer.” 

The Court also rejected challenges to the Order based on the First Amendment, as well as the subscribers’ parallel request that the Court fully unseal all documents relevant to the dispute. 

Tags: ECPA, Fourth Amendment, Freedom of Expression, SCA, standing, Twitter, Wikileaks
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Photo of David Fagan David Fagan

David Fagan co-chairs the firm’s top ranked practices on cross-border investment and national security matters, including reviews conducted by the Committee on Foreign Investment in the United States (CFIUS), and data privacy and cybersecurity.

Mr. Fagan has been recognized by Chambers USA and…

David Fagan co-chairs the firm’s top ranked practices on cross-border investment and national security matters, including reviews conducted by the Committee on Foreign Investment in the United States (CFIUS), and data privacy and cybersecurity.

Mr. Fagan has been recognized by Chambers USA and Chambers Global for his leading expertise on bet-the-company CFIUS matters and has received multiple accolades for his work in this area, including twice being named Dealmaker of the Year by The American Lawyer for 2016 and 2019. Clients laud him for providing “excellent advice,” “know[ing] everything there is to know about CFIUS” and being “extremely well regarded” by key regulators. (Chambers USA)

In the foreign investment and national security area, Mr. Fagan is known for his work on matters requiring the mitigation of foreign ownership, control or influence (FOCI) under applicable national industrial security regulations, including for many of the world’s leading aerospace and defense firms, private equity firms, and sovereign investors, as well as telecommunications transactions that undergo a public safety, law enforcement, and national security review by the group of agencies known as “Team Telecom.”

Mr. Fagan’s practice covers representations of both foreign and domestic companies before CFIUS and related national security regulators. The representations encompass matters in which the principal assets are in the United States, as well as those in which there is a smaller U.S. nexus but where solving for the CFIUS issues – including through proactive mitigation and carve-outs – is a critical path for the transaction. Mr. Fagan is also routinely called upon to rescue transactions that have run into challenges in CFIUS, and to negotiate solutions with the U.S. government that protect national security interests, while preserving shareholder and U.S. business interests.

Reflecting his work on U.S.-China investment issues and his experience on complex U.S. national security matters intersecting with China, Mr. Fagan is regularly engaged by multi-national companies, including the world’s leading technology companies, to advise on strategic legal projects, including supply chain matters, related to their positioning in the emerging competition between the U.S. and China. Mr. Fagan also has testified before a congressional commission regarding U.S. national security, trade, and investment matters with China.

In the privacy and data security area, Mr. Fagan has counseled companies on responding to some of the most sophisticated documented cyber-based attacks on their networks and information, including the largest documented infrastructure attacks, as well as data security incidents involving millions of affected consumers. He has been engaged by boards of directors of Fortune 500 companies to counsel them on cyber risk and to lead investigations into cyber attacks, and he has responded to investigations and enforcement actions from the Federal Trade Commission (FTC) and state attorneys general. Mr. Fagan has also helped clients respond to ransomware attacks, insider theft, vendor breaches, hacktivists, state-sponsored attacks affecting personal data and trade secrets, and criminal organization attacks directed at stealing personal data, among other matters.

In addition, he routinely counsels clients on preparing for and responding to cyber-based attacks on their networks and information, enhancing their supply chain and product development practices, assessing their security controls and practices for the protection of data, developing and implementing information security programs, and complying with federal and state regulatory requirements. He also frequently advises clients on transactional matters involving the transfer of personal data.

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