## Facts

- The United States sought an order under 18 U.S.C. § 2703(d) (Stored Communications Act) compelling Twitter, Inc. to disclose specified non-content account records associated with three subscribers in connection with an ongoing criminal investigation involving unauthorized disclosures of classified information.
- A magistrate judge issued the § 2703(d) order and initially sealed the order and related filings.
- The government later moved to unseal the order so Twitter could notify the subscribers; the magistrate judge granted that motion.
- The subscribers moved to vacate the § 2703(d) order and to unseal: (1) materials tied to the Twitter order, and (2) additional § 2703(d) orders and related dockets/filings connected to the broader investigation.
- The magistrate judge denied vacatur, unsealed certain litigation-related pleadings concerning the Twitter order, and kept most § 2703(d) materials sealed.
- The district court overruled the subscribers’ objections and affirmed, applying a “clearly erroneous or contrary to law” standard of review to the magistrate judge’s rulings.
- The subscribers appealed the sealing rulings and the refusal to vacate the § 2703(d) order.

## Issues

1. Whether the First Amendment provides a right of public access to § 2703(d) orders, applications, and related filings during an ongoing pre-indictment investigation.
2. Whether a common-law presumption of access applies to § 2703(d) materials and, if so, whether investigative interests justify continued sealing.
3. Whether the district court applied the correct standard when reviewing the magistrate judge’s decisions on sealing and vacatur.
4. Whether the § 2703(d) order was validly issued under the statute and consistent with constitutional protections given the records sought.

## Decision

- The Fourth Circuit affirmed the district court’s orders.
- The court held there is no First Amendment right of access to § 2703(d) orders and related materials at the investigative stage.
- The court held that § 2703(d) applications and orders qualify as judicial records that can carry a common-law presumption of access, but the presumption was overcome here by countervailing interests in protecting an ongoing investigation.
- The court approved the district court’s deferential review of the magistrate judge’s nondispositive pretrial rulings.
- The court upheld the § 2703(d) order as meeting the statute’s “specific and articulable facts” standard and rejected constitutional challenges based on the non-content, third-party-held nature of the requested records.

## Legal Principles

- The First Amendment right of access applies only where both historical practice and functional considerations (“experience and logic”) support openness; pre-indictment investigative processes analogous to grand jury and warrant materials do not satisfy that test.
- § 2703(d) orders and related applications are judicial records for common-law access purposes, but the common-law presumption is qualified and may be outweighed by strong governmental interests, including protection of an ongoing criminal investigation.
- Sealing determinations in this context may be sustained when narrowly limited disclosures are permitted while continued sealing is justified by concrete risks to investigative integrity, including alerting investigative targets and exposing direction and scope.
- District courts may treat magistrate judge decisions regarding sealing and related pretrial matters as nondispositive and review objections under the “clearly erroneous or contrary to law” standard.
- Under § 2703(d), the government must show specific and articulable facts establishing reasonable grounds to believe requested non-content records are relevant and material to an ongoing criminal investigation; non-content metadata held by a provider is subject to reduced privacy expectations under then-existing third-party doctrine.

## Conclusion

The Fourth Circuit upheld continued sealing of most § 2703(d) investigative materials, holding that no First Amendment access right attached and that any common-law presumption of access was outweighed by the government’s interest in preserving the integrity of an ongoing investigation, while also sustaining the statutory and constitutional validity of the § 2703(d) order for non-content Twitter records.


In re U.S. for an Ord. Pursuant to 18 U.S.C. § 2703(d), 707 F.3d 283 (4th Cir. 2013)