U.S. Magistrate Judge Theresa Buchanan in Alexandria, during an hour-long hearing today, considered a challenge to her order requiring Twitter to give investigators data on subscribers “associated with WikiLeaks,” including its leader, Julian Assange, and Bradley Manning, a U.S. soldier charged with leaking classified information.
“The government says there’s no expectation of privacy when logging into Twitter,” John Keker, a San Francisco-based lawyer representing one of the WikiLeaks backers, told Buchanan during the hearing. “Our point is, this is not phone records. It’s not bank records. This is something different.”
Keker said the information would allow the government to create a map of people tied to WikiLeaks, which could chill free speech online.
“It is incredibly powerful to know who the opposition is and who they’re working with,” Keker said, citing as an example Egypt and Tunisia, where citizens used social networks to push for regime changes.
Buchanan questioned Keker’s argument that turning over the information would violate Fourth Amendment protections against warrantless searches and seizures by the government. She said she thought Keker exaggerated the amount of information her order would allow the government to get.
“What they’re seeking is location data and timing data,” Buchanan said. The judge didn’t rule from the bench, saying she would issue an opinion.
The hearing was the first public skirmish in the government’s criminal investigation of Assange and others who may have helped leak diplomatic cables and classified military documents through the WikiLeaks website.
“This is just round one in what promises to be an ongoing fight about the government trying to have the tools to bring WikiLeaks into an American court,” Bruce D. Brown, a media lawyer at Baker Hostetler in Washington, said in a phone interview.
Buchanan on Dec. 14 ordered Twitter to give the government records and information related to the accounts of several named individuals and anyone else linked to Assange. Prosecutors asked for subscriber names, contact information, billing records, user activity, Internet Protocol addresses and source and destination e-mail addresses.
The judge initially barred the San Francisco-based social networking company from disclosing the government’s demand, which came as part of a federal grand jury investigation in Virginia. She unsealed the order on Jan. 5, saying it was in the “best interest of the investigation” and allowed Twitter to disclose the order to its users.
Three subscribers whose records are being sought are Jacob Appelbaum, a computer security researcher, who represented WikiLeaks at a 2010 hacker’s conference in New York; Birgitta Jonsdottir, a member of the Icelandic parliament, elected to a four-year term in 2009; and Rop Gonggrijp, described in court papers as a Dutch activist and businessman who helped found the first public Internet service provider in the Netherlands.
The three claim the order supporting the government’s request is overly broad and doesn’t explain how the information is “relevant and material” to the criminal probe.
“There are First Amendment implications because information being sought pertains to speech,” said Cindy Cohn, the legal director of the San Francisco-based Electronic Frontier Foundation, which is representing Jonsdottir. “We also think there are Fourth Amendment implications because some of the information reveals location.”
Twitter negotiated with the government to restrict the time frame of the order to activity from Nov. 15, 2009, to June 1, 2010, and limit the scope of the information being sought, according to court papers.
The three are asking Buchanan to force investigators to seek a warrant for the information. A search warrant would mean the government has shown probable cause, a higher hurdle than the “relevant” and “material” standard under the Stored Communications Act, on which Buchanan based her order.
The WikiLeaks backers also have asked that the court unseal all records in the court file related to prosecutors’ efforts to get information from Twitter and any other companies.
“It’s very alarming that the government is trying to obtain detailed information about people’s communications over the Internet,” Aden Fine, a lawyer with the American Civil Liberties Union who also represents Jonsdottir, said in an interview. “They shouldn’t be able to get that in the first place, but above all they shouldn’t be able to get it in secret.” Fine made the same argument to Buchanan today in court.
John Davis, an assistant U.S. attorney in Alexandria, said in court today that the government’s request from Twitter was routine.
“This is a standard -- as this court knows well -- investigative measure used in criminal investigations every day of the year all over the country,” Davis said.
Assistant U.S. Attorney Andy Peterson told Buchanan the government is still in the preliminary stages of its WikiLeaks investigation and that publicly releasing information would damage its probe.
Carolyn Penner, a Twitter spokeswoman, didn’t return e-mail and phone messages seeking comment.
Privacy lawyers said the information being sought by the government is common in criminal probes and predicted the Twitter users will have a hard time convincing the judge that her order was improper.
“This is almost impossible to win when the government has thought seriously about what it was doing,” said Stewart Baker, a lawyer at Steptoe & Johnson LLP in Washington who was assistant secretary of policy at the Department of Homeland Security under President George W. Bush.
Marc Zwillinger, an Internet privacy and security expert, said the Fourth Amendment typically wouldn’t protect “transactional information” related to communications, such as dialed phone numbers or IP addresses.
U.S. investigators sought similar information from Google Inc., Facebook Inc. and EBay Inc.’s Skype unit, said Mark Stephens, a lawyer for Assange, in an interview last month. Stephens regularly represents media organizations, including Bloomberg News.
Assange, an Australian who was arrested last month in London and is free on bail, is facing extradition to Sweden to face unrelated allegations of sexual misconduct against two women. Stephens has said the case in Sweden is politically motivated and related to WikiLeaks.
The case is In Re Application of the U.S. For an Order Pursuant to 18 USC 2703(d), 10-GJ-3793, U.S. District Court, Eastern District of Virginia (Alexandria).
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