Twitter Ordered To Give The US Government The Information It Has On Users Associated With WikiLeaks

By Jerry Smith Mar 12 2011
assangewatch.blogspot.com

U.S. Magistrate Judge Theresa Buchanan has upheld her order for Twitter to give U.S. investigators the data it has on subscribers “associated with WikiLeaks,” including WikiLeaks founder Julian Assange, U.S. soldier Bradley Manning, Icelandic parliamentarian Birgitta Jonsdottir, US computer researcher Jacob Appelbaum, and Dutch volunteer for WikiLeaks Rop Gonggrijp.

The United States government is trying to use the information in the Twitter accounts to build a case against WikiLeaks and its founder Julian Assange for publishing the the secret military communications relating to the Iraq and Afghan wars, publishing the roughly 250,000 classified diplomatic cables and releasing the Collateral Murder video.

The petitioners, Jonsdottir, Appelbaum, and Gonggrijp are being represented by lawyers from the ACLU, the EFF, and some private attorneys. Assange and Manning did not contest the order. WikiLeaks and Assange felt the U.S. lacked jurisdiction "over expressive activities beyond its borders," and said they would not be taking part in the hearing.

Lawyers for Jonsdottir, Appelbaum, and Gonggrijp say they plan to appeal Buchanan's ruling to a U.S. District Judge, and then to an appeals court if necessary.

Aden Fine, staff attorney for the American Civil Liberties Union (ACLU) Speech, Privacy and Technology Project and one on the attorneys representing Jonsdottir said:

“We’re obviously disappointed this decision permits the government to secretly obtain private information about individuals’ Internet communications.”

"From our perspective, the government should not be able to obtain information about Internet users' communications, but above all, the government shouldn't be able to do so in secret."

"The government should not be able to obtain information about individuals' Internet communications unless they withstand First Amendment scrutiny, and they didn't do that here."

“Case law from the Supreme Court makes it clear that individuals have a right to challenge government requests for information about them.”

"The government has asked for information about every single use of Twitter by our client, whether it is related to the government investigation or not, and we don't think the First Amendment permits that."

Fine also said:

"This ruling gives the government the ability to secretly amass private information related to individuals' internet communications."

"If this ruling stands, our client may be prevented from challenging the government's requests to other companies because she might never know if and how many other companies have been ordered to turn over information about her."

“This decision permits the government to obtain court orders requiring the disclosure of private information in secret."

"Except in extraordinary circumstances, the government should not be able to obtain this information in secret. That's not how our system works."

Cindy Cohn, legal director of the San Francisco-based Electronic Frontier Foundation (EFF) and one of the lawyers representing Jonsdottir called the ruling “troubling” and thinks that it will make it easier for the government to get the information people must give to online companies in order to use websites like Facebook or Twitter and said:

“The judge downplayed what can be learned from non-content information that we give to third-parties all the time."

Cohen was also trouble by the part of the ruling that keeps much of the case sealed and said:

"What we don't know is who else they're trying to get information from."

Judge Buchanan said the petitioners didn’t have a valid position to challenge her previous order because the government wasn’t seeking the contents of any communications they made using Twitter and the individuals involved had already made their posts public on Twitter as well as their associations.

Prosecutors had requested subscriber names, contact information, billing records, user activity, Internet Protocol addresses and source and destination e-mail addresses.

Judge Buchanan rejected the arguments from the petitioners that the governments request required a search warrant or that allowing the request would be an unconstitutional invasion of privacy.

She also rejected the petitioners request to unseal all the records in the court files pertaining to the prosecutors’ attempts to obtain information from Twitter or any other companies, but did allow some of the documents to be made public and said:

"The sealed documents at issue set forth sensitive nonpublic facts, including the identity of targets and witnesses in an ongoing criminal investigation.”

Fine said of Judge Buchanan's unsealing of the documents:

"While we disagree with the court's decision, the court did the right thing in making sure that all of the documents associated with this legal challenge are now publicly available."

Judge Buchanan also felt that turning over the Internet Protocol addresses was not a violation of the U.S. Constitution's Fourth Amendment protection against unreasonable search and seizure because it revealed their location and said:

"Petitioners in this case voluntarily conveyed their IP addresses to the Twitter website, thus exposing the information to a third party administrator, and thereby relinquishing any reasonable expectation of privacy."

Fine disagreed with Judge Buchanan's opinion that users have no expectation of privacy over data they willingly give Twitter and other third parties and said:

“She’s essentially saying there are no constitutional interests at stake here, because this is all public information. But just because a third party has some information, does not mean you have no Fourth Amendment right in that information. Everything that’s at issue here is private information. Most people reasonably believe that that information will be kept private. That’s why in our view the court got it wrong.”

Judge Buchanan also said in her ruling:

"The freedom of association does not shield members from cooperating with legitimate government investigations."

"The Twitter Order does not seek to control or direct the content of petitioners' speech or association."

“Similarly, the Fourth Amendment permits the government to warrantlessly install a pen register to record numbers dialed from a telephone, because a person voluntarily conveys the numbers without a legitimate expectation of privacy.”

In the original order that Judge Buchanan signed prosecutors were looking for about seven months of information from Twitter, including who they followed, who followed them, who they communicated with, and how they logged in, which could identify their location at the time.

John Keker a San Francisco-based lawyer representing one of the petitioners had told Judge Buchanan:

“The government says there’s no expectation of privacy when logging into Twitter. Our point is, this is not phone records. It’s not bank records. This is something different.”

"If they want to go on a fishing expedition, they should get a search warrant or a subpoena."

“It is incredibly powerful to know who the opposition is and who they’re working with.”

John Davis, an assistant U.S. attorney in Alexandria and a lawyer representing the prosecutors said:

"This is a standard investigative measure used every day of the year all across the country."

The second part of Judge Buchanan's ruling unsealed previously nonpublic documents that revealed the following:

A court filing shows that Twitter undertook a pro-privacy move that few Internet companies would have chosen. It filed a motion on February 8 asking for permission not to turn over data from the WikiLeaks account, even though WikiLeaks itself had not retained counsel and objected.

The Geneva-based Inter-Parliamentary Union adopted a confidential motion in January on behalf of Jónsdóttir. It says that members of parliaments "benefit from" the right to privacy and the right to free speech and "expresses deep concern" that the Justice Department's request violates those rights. It requests that IPU Secretary General Anders Johnsson "communicate these concerns" to the United States and says that the case will be brought up again during its April 2011 assembly.

Another IPU document submitted to the court in Alexandria, Va., argues that the order "should be vacated" because there is no "pressing need for state inspection of [Jónsdóttir's] private communication," which could interfere with her ability to use social media to do her job as a member of parliament.

A motion from the Justice Department, with some pages partly blacked out, argues that: "The subscribers' request would identify other witnesses, if any, who the government or the grand jury had requested to provide evidence. The chilling effect on potential witnesses of such a disclosure would undermine a fundamental government interest."

Jonsdottir said in a Twitter message after the ruling that it's:

"time to apply pressure on social media to move their servers out of the U.S."

Appelbaum said:

"Bad news is exhausting."

Steven Aftergood works on government secrecy policy for the Federation of American Scientists. He thinks the government's aggressive pursuit of the Twitter accounts reflects one of two possibilities and said:

"Either the government is being extremely diligent in crossing every 't' and dotting every 'i'. Or the other possibility is that they have no case whatsoever and they're tallying up all conceivable leads. The information they're going to get from Twitter is indirect evidence at best."

Twitter issued a statement and said its policy:

"is designed to allow users to defend their own rights. As such, Twitter will continue to let the judicial process run its course."

Lawyers for Julian Assange have filed an appeal against Judge Howard Riddle's ruling that Assange, who is still under house arrest at Ellingham Hall in Norfolk,UK, should be extradited to Sweden.

Assange has been fighting extradition to Sweden where he has not been charged with anything but is wanted for questioning by the Swedish police about accusations of rape and sexual molestation made against him by Sofia Wilen and Anna Ardin. Assange denies the allegations and says he had consensual sex with the two women.

Assange and his lawyers fear that if he is extradited to Sweden he may then be extradited to the United States, where he could face torture, confinement at Guantanamo Bay, both, or even the death penalty.

Click here to download a pdf file of Judge Buchanan's ruling.