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(3) Clarifying the standard for issuing 2703(d) orders A third potentially appropriate topic for legislation is to clarify the standard for issuance of a court order under 2703(d) of ECPA. ECPA provides that the government can use a court order under 2703(d) to compel the production of non-content data, such as email addresses, IP addresses, or historical location information stored by providers. These orders can also compel production of some stored content of communications, although compelling content generally requires notice to the subscriber. According to the statute, '[a] court order for disclosure... may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.' 18 U.S.C. 2703(d).
Until recently, no court had questioned that the United States was entitled to a 2703(d) order when it made the 'specific and articulable facts' showing specified by 2703(d). However, the Third Circuit recently held that because the statute says that a 2703(d) order 'may' be issued if the government makes the necessary showing, judges may choose not to sign an application even if it provides the statutory showing. See In re Application of the United States, 620 F.3d 304 (3d Cir. 2010). The Third Circuit's approach thus makes the issuance of 2703(d) orders unpredictable and potentially inconsistent; some judges may impose additional requirements, while others may not. For example, some judges will issue these orders based on the statutory 'reasonable grounds' standard, while others will devise higher burdens.
In considering the standard for issuing 2703(d) orders, it is important to consider the role they play in early stages of criminal and national security investigations. In the Wikileaks investigation, for example, this point was recently emphasized by Magistrate Judge Buchanan in the Eastern District of Virginia. In denying a motion to vacate a 2703(d) order directed to Twitter, Judge Buchanan explained that 'at an early stage, the requirement of a higher probable cause standard for non-content information voluntarily released to a third party would needlessly hamper an investigation.' In re 2703(d), 2011 WL 900120, at *4 (E.D. Va. March 11, 2011).
Other statutes and rules governing the issuance of legal process, such as search warrants and pen/trap orders, require a magistrate to issue legal process when it finds that the United States has made the required showing. The Third Circuit's interpretation of 2703(d), under which a court is free to reject the government's application even when it meets the statutory standard, is at odds with this approach. Legislation could address this issue. |
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Name(s:) |
James Baker |
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Title: |
Deputy Attorney General |
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Agency(ies): |
Department of Justice |
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Concerning: |
Grand Jury, Twitter 2703(d) Order, 2703(d) Order |
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Url: |
Url Link
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Title: |
The Electronic Communications Privacy Act: Government Perspectives on Protecting Privacy in the Digital Age' |
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Authoring or Creator Agency: |
Senate Committee on the Judiciary, United States Senate |
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Concerning: |
"Grand Jury, Twitter 2703(d) Order, 2703(d) Order |
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Archive Link |
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Title: |
Statement of James A. Baker Associate Deputy Attorney General before the Committee on the Judiciary United States Senate Entitled 'The Electronic Communications Privacy Act: Government perspectives on Protecting provacy in the Digital Age' Presented April 6, 2011 |
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Author: |
James Baker |
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Title: |
Associate Deputy Attorney General |
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Authoring or Creator Agency: |
Department of Justice |
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Concerning: |
"Twitter 2703(d), 2703(d) Orders, Grand Jury |
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