from the that-old-4th-amendment dept
You may recall that in its quixotic attempt to go after Wikileaks, the US government has been snooping through the private communications of a bunch of folks they're trying to connect to the organization, including Icelandic politician Birgitta Jonsdottir and Jacob Appelbaum, who gets detained and harassed every time he re-enters the country. All of this came to light only because Twitter actually stood up to the US government and refused to just hand over info that was requested using the obscure 2703(d) process. Twitter also got the court to allow it to reveal the existence of the order (something that every other company which has received one has kept secret). A court eventually ruled that Twitter had to hand over the requested info.Following this, Jonsdottir, Appelbaum and one other person, Rop Gonggrijp, (represented by the ACLU and the EFF), chose not to challenge that ruling, but did appeal concerning the secrecy around the order -- asking the court to have the specific 2703(d) order unsealed -- arguing that they have the right to access judicial documents about themselves. However, last week, an appeals court rejected that appeal, and basically said that the feds can sniff through your digital data without your knowledge, and, well, too bad if you don't like it.
Even though the court did find that 2703(d) orders are "judicial records," which could make them subject to a right to access, they then claimed that, well, when the government investigates things, it should be able to do so in absolute secrecy, and who really cares about pesky little things like oversight or a right to know about it.
Subscribers' contentions fail for several reasons. First, the record shows that the magistrate judge considered the stated public interests and found that the Government's interests in maintaining the secrecy of its investigation, preventing potential subjects from being tipped off, or altering behavior to thwart the Government's ongoing investigation, outweighed those interests.The government gets to peer deeper and deeper into our lives, and we're less and less able to even know about it.
Further, we agree with the magistrate judge's findings that the common law presumption of access to § 2703 orders is outweighed by the Government's interest in continued sealing because the publicity surrounding the WikiLeaks investigation does not justify its unsealing. The mere fact that a case is high profile in nature does not necessarily justify public access.... Additionally, Subscribers' contention that the balance of interests tips in the public's favor because the Government approved the disclosure of the existence of its investigation by moving the district court to unseal the Twitter Order is adequately counterbalanced by the magistrate judge's finding that the "sealed documents at issue set forth sensitive nonpublic facts, including the identity of targets and witnesses in an ongoing criminal investigation."
