Appeals Court Hears Case for Unsealing Orders in Twitter, WikiLeaks Case
RICHMOND, Va. -- Judges asked whether court orders issued under the Electronic Communications Privacy Act (ECPA) should be made public, during oral argument at the 4th U.S. Circuit Court of Appeals on U.S. v. Jacob Appelbaum et al. Should ECPA -- a law designed to protect privacy -- be used to justify publicizing information about individuals’ online communications, asked Judge Samuel Wilson. Because the ACLU and Electronic Frontier Foundation (EFF) are arguing that the public should have access to the court orders, not just the subjects of the investigation, it’s possible they're trying to use ECPA in a way that narrows privacy protections, he said. If that’s the result of the argument presented by the ACLU and EFF, he said “then they might as well not have called this a privacy act.” The threat to privacy is serious, he said, because there are often “very, very private things” in these documents, which can be “embarrassing [and] humiliating” to the people involved.
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The public should know when the government is gaining access to information about individuals’ online communications and activities through court orders, the ACLU and EFF said. They appealed a 2011 U.S. District Court ruling to the contrary in the case of three individuals -- including Icelandic parliamentarian Birgitta Jonsdottir. The people were notified by Twitter that the U.S. government had issued court orders to access their activities and communications on the social media site as a part of an investigation related to WikiLeaks, the website used to release classified documents without authorization. The public should be able to learn if other companies received similar court orders, the ACLU and EFF told the three-judge panel Friday.
ECPA’s language -- in addition to the general standard of openness in the courts system -- should require the government to make public similar court orders issued to other online companies that store information about these users, argued Aden Fine, staff attorney with the ACLU’s Speech, Privacy and Technology Project. Congress did not write Title II of ECPA, the Stored Communications Act (SCA), to include sealed court orders or gag orders by default, as it did in other parts of the law, he said: “Congress made a choice here” and its “intent is clear.” In writing the law this way, he said, Congress made the point that “the public has a right to know what’s happening in the courts.” Sensitive information can be redacted, Fine said, but it’s important that the public has a way of finding out that the court order exists in the first place. The government can choose to undertake the burden of demonstrating that specific court orders should be kept from the public, he said, but the “burden is not on us to unseal the documents."
Sealing court orders preserves the integrity of ongoing investigations, said Assistant U.S. Attorney Andrew Peterson. The plaintiffs are asking “for a roadmap of the investigation,” he said. If subjects of investigations are allowed access to court orders related to those investigations, they could easily delete or manipulate evidence, he said. “There is a compelling government interest” in protecting the integrity of the investigation “that outweighs the public interest” in openness regarding the courts’ actions, Peterson said.
If the government was concerned about the investigation’s integrity, the Department of Justice could have pursued the information through a grand jury, said Judge Roger Gregory. That would have automatically kept the court orders sealed, he said. “You had those options, and you chose not to do it.” Of the argument by the ACLU and EFF, Gregory told Peterson that “if the government is doing something in secret, it’s not good government.” The authors of the Constitution “had a healthy distrust for government,” and structured the government such that it couldn’t act in secret to avoid scrutiny, Gregory said. He echoed the ACLU and EFF argument and told Peterson, “the burden is on you to show that it should be sealed.”