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 practice on cross-border investment and national security matters, including reviews conducted by the Committee on Foreign Investment in the United States (CFIUS), and is a partner in the firm’s data privacy and cybersecurity practice.

David has…

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

David 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 being named The American Lawyer’s Dealmaker of the Year three times. His work includes successfully securing three of the four Presidential approvals in the history of CFIUS; securing the only Presidential order protecting a client against a proposed hostile takeover; and negotiating the only “golden share” the U.S. government has taken in a U.S. company. Clients laud him for “[seeing] far more matters than many other lawyers,” his “incredible insight,” and “know[ing] how to structure deals to facilitate regulatory reviews” (Chambers USA).

For more than two decades, David has handled transactions for clients across every sector subject to CFIUS review, including some of the most sensitive and complex matters that have set the template for CFIUS compliance and security agreements in their respective industries. He is also routinely called upon to rescue transactions that encounter challenges in CFIUS; provide strategic counsel to clients on navigating and addressing U.S. national security considerations in commercial transactions; and negotiate solutions with the U.S. government, including equity arrangements, that protect national security interests while preserving shareholder value and U.S. business interests.

In the enforcement area, David has represented clients in numerous enforcement actions pursued by CFIUS, including two of the three largest penalty cases resolved with CFIUS.

Reflecting his experience on complex U.S. national security matters intersecting with China, David is regularly engaged by the world’s leading multinational companies to advise on emerging legal issues, including outbound investment restrictions and regulations governing information and communications technologies and services (ICTS), as well as strategic legal projects related to the evolving U.S.-China competitive landscape.

In addition, in the foreign investment and national security area, David routinely advises clients on matters requiring mitigation of foreign ownership, control, or influence (FOCI) under applicable national industrial security regulations. His work includes advising many of the world’s leading aerospace and defense companies and private equity firms, as well as telecommunications transactions subject to public safety, law enforcement, and national security review by Team Telecom.

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