Handling of Twitter 'Subpoenas' Shows Judges Need to Step Up Scrutiny
As part of its investigation of WikiLeaks, the Justice Department continues to pursue its effort to require Twitter to turn over records about all the communications activity of three of its users who have some connection to WikiLeaks. The case highlights multiple issues with the current rules for government access to the vast stores of revealing information logged by providers of communications services. A previous post asked "What Do the Twitter 'Subpoenas' Really Mean?" noting, first of all, that they are not subpoenas at all but court orders under "section 2703(d)," a provision of the Electronic Communications Privacy Act. In this post, we want to comment on what the case says about the role of the courts in ensuring that governmental intrusions on communicative and expressive activity are well justified and limited in scope.
First, a recap: In December of last year, the Justice Department wanted access to the full Twitter steam—whether or not it involved WikiLeaks—of four individuals, among whom were Jacob Appelbaum (a U.S. citizen), Rop Gonggrijpa (a Dutch citizen), and Birgitta Jonsdottir (a member of the Parliament of Iceland). A Virginia magistrate judge approved the request; neither Twitter nor the individuals involved had any notice of or any opportunity to object to the government request before the court acted. The court order was "under seal," meaning that Twitter wasn't allowed to tell any of the individuals involved that such a request had been made. Twitter pleaded with the court asking that it be allowed to notify the users so they could object. The court unsealed the order and allowed Twitter to notify the users; lawyers were hired and objections to the government request filed with the court. However, in March a judge refused to dismiss the Justice Department's order; the decision was promptly appealed.
The case illustrates the challenges of fighting a government order under section 2703(d) and why judges should take more initiative in probing government assertions.
The first challenge in fighting these 2703(d) orders is that the government gets to file in secret, the targets of the government request don't know about the order and so have no opportunity to fight the request in court. While Twitter, to its credit, declined to comply before asking the judge to unseal the order, in most cases the orders remain sealed and service providers often comply without objection. This puts all the more responsibility on the judge (usually a magistrate) to scrutinize the government request in the first place. Moreover, notice of the existence of the government request or court order may not be enough to ensure adequate review of the basis for the order. In this case, even though the order itself was unsealed, the court declined to unseal the government's justification for seeking the records. So the parties know what the government wants (everything), but not why, making it difficult to challenge government assertions.
The magistrate judge in the Twitter case noted that, "[b]ecause the application remains sealed, petitioners face the difficulty of challenging a document they have not seen." If the court cannot unseal the government's justification for its request for fear of disrupting an ongoing investigation, that increases the burden on the court to appropriately question the government's assertions.
Most importantly, however, when it came to the substance of the government's request, the judge adopted an unduly broad view of the applicable standard, in disregard of the statutory language. Section 2703(d) requires the government to show "specific and articulable facts" indicating that the records sought are "relevant and material to an ongoing criminal investigation." Contrast that with the standard for issuing a subpoena, which is mere relevance and requires little if any factual showing by the government. The section 2703(d) standard is clearly and significantly higher. (On top of that, subpoenas are issued by prosecutors without a judge's approval; here Congress, insisted that a court be involved up front.)
The Twitter users in this case argued that because their "tweets" pertained mostly to non-WikiLeaks topics, they were not "relevant and material" to any ongoing investigation, as section 2703(d) requires. The judge rejected this claim, but did not state why. Instead, the judge merely restated her initial conclusion: "Notwithstanding petitioners' questions, the Court remains convinced that the application stated 'specific and articulable' facts sufficient to issue the Twitter Order under section 2703(d). The disclosures sought are 'relevant and material' to a legitimate law enforcement inquiry." The judge offered no further justification or explanation.
When Government Seeks Data
In any situation where the government seeks data, but especially in the digital age, the scope of the government's request should be part of the inquiry. The language in 2703(d) is drawn from the Supreme Court case of Terry v. Ohio. In addition to introducing the threshold standard of "specific and articulable facts," the Terry case emphasized that every search should be "confined … strictly to what was minimally necessary." In the Twitter case the judge took the opposite approach, acknowledging that the scope of the government's request included material that would probably be "unhelpful" to the government, but stating, with no citation of authority, that section 2703(d) "is routinely used to compel disclosure of records, only some of which are later determined to be essential to the government's case."
Judges reviewing government applications under 2703(d) should follow the example of their colleagues who faced government requests for cell phone tracking under 2703(d). As Mike Isikoff of Newsweek reported, starting several years ago there was a "mini-revolt" by federal magistrates who began questioning—and rejecting—government requests under section 2703(d) for cell phone tracking. In some of those cell tracking cases, the government was trying to use 2703(d), which is in the Stored Communications Act, to compel disclosure of data in real-time. But even with respect to stored location records, there were substantial Fourth Amendment issues, just as there are substantial First and Fourth Amendment issues in the Twitter case. In the cell phone tracking cases, the magistrates conducted their own careful examination of the government's claims and a majority concluded that a warrant was required to track cell phones. In Congressional testimony last year, one of those magistrates described the process that convinced him he needed to more carefully scrutinize government requests under section 2703(d).
In the Twitter case, based on what appears in the magistrate's opinion, adequate attention was not given to the sweeping breadth of the government's request. One could argue that the rules regarding subpoenas allow them to be used almost for fishing expeditions, but that is clearly not the intent of 2703(d). Given the unique intrusiveness of digital technology and given the breadth and richness of data covered by 2703(d), it's time, just as it was in the cell phone cases, for a more probing questioning of other requests under 2703(d). Congress clearly specified a standard higher than that applicable to subpoenas; magistrates now need to give real meaning to the statute's words.