In Re: Grand Jury Subpoena ( 2012 )

FILED
UNITEI) sTATEs 1)1sTR1cT coURT FEB Z 3 2012
FOR THE DISTRICT OF COLUMBIA C|erk. U.S. District & Bankruptcy
Courts for the D\strict of Co|umbca
)
1N RE GRAND JURY SUBPoENA ) Mis¢. No. 11-527 (RCL)
N0. 11116275 )
)
ORDER
The Court on December 9, 2011 issued a Memorandum and Order in the above-captioned
case. The order in part denied a motion, filed by the American Civil Liberties Union of the
Nation’s Capital on behalf of an anonymous user of the web site Twitter.com, to quash a grand
jury subpoena issued against Twitter.com for records pertaining to the identity of the anonymous
user. Following issuance of the order, no notice of appeal was filed, and upon inquiry the
govemment represented to the Court that the matter had been resolved. The Court issued an
order to show cause why the December 9 order should remain under seal on January 24, 2012.
The government filed a notice of consent to unsealing on January 31, 20l2. The anonymous
movant filed a response on February 13, 2012 consenting to unsealing of the order but requesting
that his Twitter username and pseudonym be redacted from the public version of the document.
The anonymous movant represented in his response that following the order and prior to
Twitter’s compliance with the subpoena the movant disclosed his identity to the Federal Bureau
of investigation and voluntarily appeared for an interview with the FBI. The anonymous movant
did so in return for the government’s agreement that it not contact his family, neighbors,
employer, or co-workers regarding the investigation unless further investigation was warranted.
The government closed its investigation after the interview. The anonymous movant seeks
redaction of the information at issue in order to mask his personal connection with the events and
analysis set forth in the Court’s December 9 order. The anonymous movant in compliance with
the Court’s January 24 order submitted a proposed redacted version of the December 9 Order
that the anonymous movant believes could be released to the public.
Fed. R. Crim. P. 6(e) prohibits disclosure of "matters occurring before the grand jury," R.
6(e)(2), and requires that "records, orders, and subpoenas relating to grand-jury proceedings . . .
be kept under seal to the extent and as long as necessary to prevent the unauthorized disclosure
of a matter occurring before a grand jury," R. 6(e)(6). The concept of a "matter occurring before
a grand jury" encompasses "the identities of witnesses or jurors, the substance of testimony as
well as actual transcripts, the strategy or direction of the investigation, the deliberations or
questions of jurors, and the like." In re Motions of D0w jones & C0., 142 F.3d 496, 500 (D.C.
Cir. 1998). lt seems unlikely that public release of the Court’s December 9 order would
jeopardize grand jury secrecy. That order refers to the anonymous movant only through his
Twitter username and pseudonym, and does not otherwise disclose any details regarding the
grand jury proceedings at issue. However, the anonymous movant argues that there are
individuals who could tie his username and/or pseudonym to his actual identity. Thus, he posits,
public release of the December 9 order without the requested redactions would disclose to those
individuals who know the real-life identity of the anonymous user that he was the target of a
grand jury investigation, The anonymous movant further argues that he would be exposed to
"ridicule and obloquy" as a result, and notes that an important justification for grand jury secrecy
is to "assure that persons who are accused but exonerated by the grand jury will not be held up to
public ridicule." In re Grana' Jury Subpoena, Judith Miller, 438 F.3d 1l38, 1140 (D.C. Cir.
2006) (quoting Douglas Oz``l Co. v. Petrol Stops, Nw., 441 U.S. 21 l, 219 (1979)). The Court is
sensitive to these concems, and further notes that, even if unsealing of the December 9 order in
full would not compromise grand jury secrecy, the anonymous movant’s arguments would still
counsel the Court to redact out the requested information. The public interest in the order’s legal
analysis does not extend as strongly to details regarding the specific Twitter account at issue, and
the anonymous movant’s objections, privacy interests, and the possibility of prejudice upon
disclosure are all significant. See United States v. Hubbard, 650 F.2d 293, 317-322 (D.C. Cir.
1980) (listing factors relevant to a court’s decision to unseal documents).
The Court will accordingly accede to the anonymous movant’s request and release a
public version of its December 9 order with the redactions proposed by the anonymous movant.
'l``he Court will redact the Twitter username and pseudonym, and where the Court previously
referred to the anonymous movant by the last name of his pseudonym, the Court will instead
refer to the anonymous movant as "Mr. X." The Court will also comply with the anonymous
movant’s request to redact out information in footnote one, which explained the Court’s previous
decision to refer to the anonymous movant by the last name of his pseudonym, The anonymous
movant requests no other redactions, and the public version of the order otherwise remains
unchanged from the version that will remain under seal; although certain portions of the
December 9 order were written under the assumption that the anonymous movant’s Twitter
username and pseudonym would become public, the public version of the order does not alter
those sections. It is therefore hereby
ORDERED that the Clerk’s Office release to the public the redacted version of the
Court’s December 9, 2011 Order attached hereto.
so oRDERED rhis@``*"‘eday of February 2012.
E/ru C~
RoYoE c. LAMBERTH
Chief judge
United States District Court