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In re United States

United States District Court, D. Columbia.

April 28, 2014

IN THE MATTER OF THE APPLICATION OF THE UNITED STATES OF AMERICA FOR AN ORDER OF NONDISCLOSURE PURSUANT TO 18 U.S.C. § 2705(b) FOR GRAND JURY SUBPOENA #GJ2014031422765

For United States of America, Interested Party: T. Patrick Martin, LEAD ATTORNEY, Corbin A. Weiss, Gordon Michael Harvey, U.S. ATTORNEY'S OFFICE, Washington, DC.

For American Civil Liberties Union, American Civil Liberties Union of The Nation's Capital, Movants: Arthur B. Spitzer, LEAD ATTORNEY, AMERICAN CIVIL LIBERTIES UNION OF THE NATION'S CAPITAL, Washington, DC.

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MEMORANDUM OPINION

RICHARD W. ROBERTS, Chief United states District Judge.

The government challenges two orders issued by Magistrate Judge John Facciola

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regarding the government's application for an order under 18 U.S.C. § 2705(b). The first order invited Twitter, Inc. (" Twitter" ) to intervene as a respondent and file a notice with the court on whether Twitter intended to be heard on the merits of the government's application. The second order instructed the government to file a public, redacted copy of its application and draft order. Because the express terms of 18 U.S.C. § 2705(b) and applicable legal precedent governing public access to grand jury proceedings and materials do not support the first order inviting Twitter to intervene or the second order instructing the government to file a public, redacted copy of the non-disclosure application, the orders will be vacated. In addition, because the government has provided facts sufficient to support issuing an order for delayed notice under 18 U.S.C. § 2705(b), the government's application for a nondisclosure order will be granted, and the related court records will be sealed under Rule 6(e) of the Federal Rules of Criminal Procedure.

BACKGROUND

On March 20, 2014, the government filed an application and proposed order under 18 U.S.C. § 2705(b) for an order commanding Twitter not to notify any person of the existence or content of grand jury subpoena #GJ2014031422765 for 90 days or until further court order. The government also moved to seal the application and proposed order under Rule 6(e) of the Federal Rules of Criminal Procedure.

On March 24, 2014, the magistrate judge issued an order inviting Twitter to intervene as a respondent and file a notice on the public docket indicating whether Twitter intended to be heard on the merits of the government's application. In addition, the magistrate judge ordered Twitter not to disclose to any individual outside of Twitter information regarding the federal grand jury subpoena. A second order, issued by the magistrate judge on the same day, instructed the government to file a public, redacted copy of its application for a nondisclosure order and proposed order.

On March 27, 2014, the government filed what it styled as an appeal from the magistrate judge's two orders regarding the government's application for an order under 18 U.S.C. § 2705(b). The government moved to vacate the orders issued by the magistrate judge and moved for the district court to grant its application for a nondisclosure order. In addition, the government moved to seal the appeal and resulting order.

On that same day, Twitter was ordered not to file during the pendency of the appeal any notice on the public docket indicating its intent to be heard on the merits of the government's nondisclosure application, or any other filing. The government's motion to seal was also granted.

DISCUSSION

I. JURISDICTION


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