Saturday, November 12, 2011

2703(d) order challenged in Wikileaks investigation

Information related to three Twitter accounts was recently obtained by the government by a 2703(d) order in an investigation related to Wikileaks. The account holders made many claims including: (1) they had a § 2704 right to challenge the order, (2) the release of IP address information violated their Fourth Amendment rights, (3) the order violated their due process rights, and (4) the order violated their First Amendment rights. Finding no violation of § 2704 or any constitutional arguments, the court upheld the order. There is not really anything profound in the case, but the parties were represented by the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU) and presented some interesting arguments.

For those of you not very familiar with the section (like myself before reading this case), under 18 USCS § 2704 details how a user can challenge a subpoena or 2703(d) order under the SCA. It's actually very simple - when the user gets notice, they can challenge it. But the problem presented in this case is that notice is often delayed under § 2705 for fear of destruction of evidence and other considerations. The question raised is whether one should always have the right to challenge before execution of the order. As the court held - and understandably - the answer must be no. Otherwise, the delayed notice provision would be invalidated.

The Twitter users also argue that by revealing their IP addresses to the government, they are giving away their location, making a Karo tracking beeper analogy. The court strikes this argument down because disclosure of phone numbers may give away one's location and does not violate the Fourth Amendment and regardless of tracking abilities, the data was obtained by a non-governmental entity. Plus, there's the third party doctrine (which the court discusses in great detail).

They also argue a right to challenge under due process because "the SCA threatens the rights of any subscriber who cannot oppose an order because the individual does not know about it." However, the court finds that judicial review of the order satisfies due process rights.

Finally, the First Amendment claim argued that the order "has chilled [the users'] rights of association and speech." Despite good arguments, the claim didn't hold up because content wasn't requested in the order, and even if it was, the content was accessible by the public.

The case is In re United States, 2011 U.S. Dist. LEXIS 130171 (E.D. Va. 2011).


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