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.