On January 12, 2011, the government agreed with Twitter to a narrowing of the terms of the Order, reducing the number of records to be disclosed.
(Gov’t Obj. to Mot. of ThreeTwitter Subscribers to Vacate Order at 2 n.1.) On January 26, 2011, the Subscribers moved tovacate the Order, citing a variety of statutory and constitutional grounds, and also moved tounseal certain court records in this matter.
The government objected to both motions. OnFebruary 15, 2011, the magistrate judge heard oral argument on the Subscribers’ motions.On March 11, 2011, the magistrate judge issued the Opinion, which denied theSubscribers’ motion to vacate, and denied in part, granted in part, and took under furtherconsideration in part their motion to unseal. On March 25, 2011, the Subscribers filed objectionsto the Opinion. The government now responds to those objections
Standard of Review
The Subscribers ostensibly file their objections pursuant to Federal Rule of CriminalProcedure 59 or Federal Rule of Civil Procedure 72. (Subscribers’ Obj. at 5.) Since this matterarises from the Subscribers’ motion to vacate a § 2703(d) order that was issued in a pendinggrand jury investigation, the rules of criminal procedure apply.
Fed. R. Crim. P. 1;
United States v. Awadallah,
349 F.3d 42, 49-55 (2
Cir. 2003) (finding that “grand jury proceeding” is a“criminal proceeding” for purposes of the material witness warrant statute).
Cf. Application of
The Subscribers challenged the Order with respect to the three Twitter accounts with which theyare identified. But with respect to the fourth Twitter account, WikiLeaks, no party raisedobjections as to Twitter’s production of records related to it. No person appeared on behalf of Wikileaks in the proceedings before the magistrate judge, who dismissed as moot Twitter’smotion for clarification related to production of records from the WikiLeaks account. Twitterdid not object to the dismissal. Thus, both the owner of the Wikileaks Twitter account andTwitter itself have waived any right to appeal the Order’s directive to produce records relating tothe account.
See Wells v. Shriners Hospital
, 109 F.3d 198, 199 (4
Cir. 1997) (“the consequenceof failing to file objections is waiver of the right to appeal”).
Case 1:11-dm-00003-TCB -LO Document 55 Filed 04/08/11 Page 2 of 32