Judge Won’t Stop WikiLeaks Twitter-Records Request

by Kim Zetter, m.wired.com
March 11th 2011

The U.S. government is getting closer to getting data from Twitter about various associates of WikiLeaks.

The people whose Twitter records were being requested had moved to throw out the government’s request for data, but a judge denied that motion Friday, ruling that the associates don’t have standing to challenge it.

The judge also denied a request to unseal the government’s application for the Twitter order.

Judge Theresa Buchanan, in the Eastern District of Virginia, ruled that because the government was not seeking the content of the Twitter accounts in question (.pdf), the subjects did not have standing to challenge the government’s request for the records. Content, under the Stored Communications Act, is “any information concerning the substance, purport, or meaning of that communication.”

The government is looking for data about the Twitter users’ accounts and how they are used, not the content of tweets or direct messages. It’s the Twitter equivalent of a list of incoming and outgoing phone numbers.

“The Twitter Order does not demand the contents of any communication,” Judge Buchanan wrote in her opinion, “and thus constitutes only a request for records under [the law].”

The Justice Department served Twitter last December with an order seeking information on several people associated with the secret-spilling site WikiLeaks: Birgitta Jonsdottir, a member of Iceland’s parliament; Julian Assange, founder of WikiLeaks; Bradley Manning, suspected of leaking classified information to WikiLeaks; WikiLeaks’ U.S. representative Jacob Appelbaum; and Dutch businessman and activist Rop Gonggrijp. Jonsdottir and Gonggrijp helped WikiLeaks prepare a classified U.S. Army video that the site published last April.

While the application for the Twitter order is still sealed, the court unsealed the order itself, at Twitter’s request. According to the order, the government seeks full contact details for the accounts (including phone numbers and addresses), IP addresses used to access the accounts, connection records (“records of session times and durations”) and data-transfer information, such as the size of data file sent to someone else and the destination IP.

Since Twitter is used for sending 140-character updates, not data files, the wording of the request suggests that it’s likely a boilerplate form that could also have been submitted to ISPs, e-mail providers and social networking sites like Facebook.

The Justice Department’s demand for the records is part of a grand jury investigation that appears to be probing WikiLeaks for its high-profile leaks of classified U.S. material. It is seeking the records under 18 USC 2703(d), a provision of the 1994 Stored Communications Act that governs law enforcement access to non-content internet records, such as transaction information.

More powerful than a subpoena, but not as strong as a search warrant, a 2703(d) order is supposed to be issued when prosecutors provide a judge with “specific and articulable facts” that show the information they seek is relevant and material to a criminal investigation. But the people targeted in the records demand don’t have to themselves be suspected of criminal wrongdoing.

After Twitter notified Jonsdottir in January that the government had sought information about her account, the EFF and the ACLU filed a motion challenging the government’s attempt to obtain the records, asking the court to vacate the order. In their motion, the two groups said the government’s demand for the records violated First Amendment speech rights and Fourth Amendment privacy rights of the Twitter-account holders, among other things.

The groups also filed motions to unseal records in the case, hoping to gain information about the government’s grounds for seeking the records, as well as any information that might indicate if the government had sought similar records from Facebook, ISPs or other service providers.

A hearing to discuss the motion to vacate the Twitter order was held in mid-February.

In her ruling Friday, Buchanan discussed whether the government provided sufficient justification in its application to obtain the records. She acknowledged that the complainants were facing an uphill battle in arguing against the legitimacy of the government’s request, because the government’s application is still sealed and therefore unavailable to them. Nonetheless, she concluded that the government’s application stated “specific and articulable” facts that were sufficient for issuing the Twitter order:

The disclosures sought are “relevant and material” to a legitimate law enforcement inquiry. Also, the scope of the Twitter Order is appropriate even if it compels disclosure of some unhelpful information. Indeed, §2703(d) is routinely used to compel disclosure of records, only some of which are later determined to be essential to the government’s case. Thus, the Twitter Order was properly issued pursuant to §2703(d).

Buchanan further ruled that the request did not violate the account holder’s First Amendment rights, because the order did not seek to control their speech or their associations. Nor did it violate the Fourth Amendment, because the account holders did not have a reasonable expectation of privacy over subscriber information they freely provided to Twitter.

“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,” Judge Buchanan wriote.

Attorneys with the EFF and ACLU told Threat Level they plan to appeal the decision.

“Case law from the Supreme Court makes it clear that individuals have a right to challenge government requests for information about them,” said ACLU attorney Aden Fine. “This decision permits the government to obtain court orders requiring the disclosure of private information in secret. That’s not how our system works.”

He also disputed Judge Buchanan’s assertion that users have no expectation of privacy over data they willingly give Twitter and other third parties.

“She’s essentially saying there are no constitutional interests at stake here, because this is all public information,” he said. “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.”

Twitter said in a statement that 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.”

Photo: Birgitta Jonsdottir, a member of Iceland’s parliament. (Friðrik Tryggvason/Wikimedia Commons)

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Original Page: http://m.wired.com/threatlevel/2011/03/judge-denies-on-twitter-case/

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