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.

David has been recognized by Chambers USA and Chambers…

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.

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 twice being named Dealmaker of the Year by The American Lawyer. 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).

David’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. 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 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, David is regularly engaged by the world’s leading multi-national companies across a range of industries to advise on strategic legal projects, including supply chain matters, related to their positioning in the emerging competition between the U.S. and China, as well as on emerging legal issues such as outbound investment restrictions and regulations governing information and communications technologies and services (ICTS). David also has testified before a congressional commission regarding U.S. national security, trade, and investment matters with China.

In addition, in the foreign investment and national security area, David 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 companies and private equity firms, 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.”

In his cybersecurity practice, David 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. David 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.

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