What do an Icelandic parliamentarian, a US computer researcher and a Dutch businessman have in common? They're challenging the US government's right to get Twitter to disclose their private information under sealed court order.
A hearing on this took place Tuesday in a federal court in Alexandria, Virginia, but no decision was reached; the judge is to issue a written opinion later.
The Electronic Freedom Foundation and the ACLU are representing Birgitta Jonsdottir, a member of the Parliament of Iceland. Dutch entrepreneur and hacker Rop Gonggrijp, and U.S. computer programmer Jacob Appelbaum are represented by private law firms as well as local counsel in Virginia.
The dispute cuts to the core of the question of whether WikiLeaks allies are part of a criminal conspiracy or a political discussion. It also challenges the Obama administration's argument that it can demand to see computer data and read months' worth of private messages, even if they have nothing to do with WikiLeaks.
Iceland's foreign ministry last month summoned the US ambassador in Reykjavik to express "serious concern" about the bid to obtain personal information about Jonsdottir, the Icelandic MP.
Jonsdottir, an early WikiLeaks supporter who distanced herself from the site a few months ago, is an active promoter of freedom of information and a member of the Icelandic parliament's foreign affairs committee.
In a tweet sent to AFP, Jonsdottir said she was determined to fight for her right and the right of "other social media users" to privacy.
"I don't have much choice, do I -- nor other social media users," she said when asked if she would hand over her Twitter account details to the US authorities.
"That's why this has to be fought and discussed."
More from the Toronto Globe and Mail, during an official visit to Canada in January:
Ms. Jonsdottir has led a movement in her country to advance free speech, freedom of the press and transparency in government. This initiative, the Icelandic Modern Media Initiative, aims to bring together transparency laws from multiple jurisdictions to create the strongest media freedom laws in the world. This week it was revealed that the U.S. Justice Department, which is trying to build a criminal case against Wikileaks, is trying to access Ms. Jonsdottir’s Twitter account, as well as the account of Wikileaks founder Julian Assange, saying they have relevant material to an ongoing criminal investigation.
Q: There is no indication they [the U.S.] are targeting you?
A: You don’t know because of timing. They might think I have some information or might want to interrogate me or get my computer. Or they might just turn me away at the border. I left Wikileaks in early October 2010, late September....
The Icelandic Modern Media Initiative (IMMI) is an open source legislation so any country can take it and adapt it and cherry pick from the best laws around the world. We know how difficult it is for investigative journalists because of all the gag orders and privacy restraints. I see Wikileaks as people who do direct action and move the barriers for the norm, and thus it will be easier for others to go a bit further. If we claim we live in a democracy but don’t have free press or freedom of information online, then we are obviously not in a very democratic society.
Q: With Wikileaks, the response has been to the contrary, with governments looking at ways to better secure and protect information so there will be no paper trail. Can you address that?
A: I think what governments need to learn instead of trying to create more secrecy is that the process around secrecy is unchecked. A lot of material is labeled secret because it can be. There is no transparency in the process and no explanation. Maybe governments can learn something instead of becoming defensive when their weaknesses are exposed....
Q: Why did you leave Wikileaks?
A: The “Collateral Murder” video..[a classified U.S. military video depicting the slaying of a dozen people in Baghdad, including two Reuters news staff]. We produced it with Icelandic State TV. We felt we needed to do fact checking. We sent a journalist to Baghdad and spotted children in the van to see if he could find the witnesses, a soldier carrying them. The journalist found the children and their mother. The man driving the van was their father and he was driving them to school. Showed video to families of Reuters staff. Hardest thing about process was putting faces to names of bodies being torn apart. That was one of my jobs.
Wikileaks was criticized for the name “Collateral Murder”. I didn’t like it either. But we didn’t have an agenda against the U.S. authorities. Despite the criticism on the name of the video, we did actually go through it very, very carefully. I did some of the background work and we found out about the names of the journalists and their families. The more we discovered the more humane the story became. I was in Iceland and heard from a solider on YouTube messaging system. He said ‘I was the soldier who found the children in the van and who is carrying them. I could never stop thinking about them’. He has come forward and publicly apologized to Iraqi people and become active in Veterans for Peace in the U.S. But none of the U.S. media was interested in picking up his story. We printed out his letter of apology and gave it to the press and none of them picked it up. So I often question the ability of the media to dig a bit further and to do their job with this sort of material. It is troubling that the media doesn’t care. That’s why Wikileaks has gone further and further to try to get attention to the leaks.
The reason I left Wikileaks was what happened around the “Collateral Murder”, I realized this was going to grow into a massive organization or would bring attention to the organization. I felt it didn’t have the structures in place in how to utilize volunteers and security. I was concerned about lack of transparency in relation to the money issues. I wanted a meeting. I became obsessed that we had to have a meeting to create the structures and if you don’t have proper structures and a means for people to communicate in a functional way, it’s a disaster. I couldn’t get the meeting. All the volunteers wanted the meeting except one. He didn’t feel it was necessary...
Q: Who gets to decide what is secret?
A: The public should be able to ask why. Should be a process where they can get an answer to why. There is nothing wrong with transparency. We haven’t suffered because of lack of transparency or too much freedom of information. We have suffered more because of secrets.
In a Democracy Now interview, Jonsdottir said:
...I think that opens up a whole can of worms when it comes to parliamentary immunity worldwide. And that’s why Icelandic authorities are taking this very seriously. And the foreign affairs minister and the justice minister have both said that they are concerned about this and are looking into this. And the president of the Icelandic parliament, equivalent to the speaker of the House, is looking into the legalities around this issue.
And let’s just turn the tables around, and like, currently there’s an investigation into how Iceland became a part of the Coalition of the Willing for the Iraqi war, and there’s an investigation in our parliament. Let’s say that I would like to get the information from all members of the Foreign Affairs Committee in the U.S. Senate in relation to their knowledge about war crimes in Iraq. Would the U.S. authorities feel comfortable with that? Let’s say every member of parliament that has ever fought for Tibet or Taiwan or other countries that China is not happy about, would the rest of the, like, let’s say, the United States parliamentarians be happy if China would order, have similar orders on their privacy?
At the same time as the hearing in Virginia, a few miles north in the District of Columbia an audience at George Washington University was listening to US Secretary of State Hillary Clinton talk about Internet freedom, saying the United States is "committed to continuing our conversation with people around the world."
"The demand for access to platforms of expression cannot be satisfied when using them lands you in prison," Clinton said in the speech, referring to crackdowns on bloggers and Twitter users in countries like Syria or Iran.
Cindy Cohn of the Electronic Frontier Foundation noted that as Clinton spoke, "the US Department of Justice was trying to keep secret many of the facts of its investigation into the very mechanism that inspired the revolutions in Egypt and Tunisia."
In Jonsdottir's case, actions by the court and US government are "especially troubling" because they show a disregard for Icelandic law, which gives lawmakers in the Nordic country broad immunity, according to Cohn.
"Courts usually try to honor another country's laws," she said.
From PC Magazine:
"Twitter is a publication and communication service, so the information sought by the government relates to what these individuals said and where they were when they said it," said EFF legal director Cindy Cohn.According to the CNet article, the court order aimed at Twitter also included a request for "subscriber account information" for Pfc. Bradley Manning, who has been accused of leaking information to Wikileaks although the government hasn't been able to link Manning to Julian Assange, Wikileaks founder. Information on Assange himself is also sought, according to a Bloomberg News article that also said that U.S. investigators sought similar information from Google Inc., Facebook Inc. and EBay Inc.’s Skype unit.
"This raises serious First and Fourth Amendment concerns. It is especially troubling since the request seeks information about all statements made by these people, regardless of whether their speech relates to WikiLeaks."
Because the orders are under seal, the companies face serious legal penalties if they inform the users involved that they are being investigated. Users of these services do not know if they have been targeted, have no knowledge of what information the government seeks, and lack recourse to question the purpose of the orders.
More from the PCMag article:
"We are troubled that the original court order requiring Twitter to turn over its users' private records was filed under seal," said Aden Fine, staff attorney with the ACLU Speech, Privacy and Technology Project. "Except in truly extraordinary circumstances, Internet users should receive notice and an opportunity to go to court to defend their constitutional rights before their privacy is compromised. That's what is happening now, and we are hopeful that the court will unseal the rest of the sealed materials."
In December, investigators obtained a sealed court order to collect records from Twitter, Inc. When Twitter decided to fight the order, the people involved were informed, and the battle was on.
One of the newly-available motions is a request to unseal the still-secret court records of the government's attempts to collect private records from Twitter, Inc., as well as other companies who may have received demands for information from thegovernment. The second motion seeks to overturn the December 14 court order requiring Twitter to provide information about its users. The third motion was subsequently filed to unseal the original two motions.
The hearing in Alexandria was to deal with the first two motions.
According to Wired, Gonggripp worked with Jonsdottir to prepare the classified Army video for release last April. It's also possible that the US government is interested in Jonsdottir because she wrote in her blog on Dec. 12 about the possibility of offering Julian Assange political asylum in Iceland; she did not think he would be safe either in England or the US.
Last month Jonsdottir received notice from Twitter that the U.S. Justice Department was seeking records from her Twitter account from Nov. 1, 2009 on. According to the court order, unsealed by the court at Twitter’s request, the government also wants the same information on accounts for Appelbaum and Gonggrijp. The order seeks full contact details for the accounts (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. The latter suggest the request is likely a boilerplate request, of a form that might be submitted to ISPs, e-mail providers and social networking sites like Facebook.
The Electronic Frontier Foundation and the American Civil Liberties Union filed the motion to challenge on Jan. 26, as well as a motion to unseal the filing, which was granted Tuesday. The groups have also sought to unseal the Justice Department’s application for the order it served on Twitter, which provides the government’s justification for demanding the information. The demand for the records is part of a grand jury investigation that’s believed to be probing WikiLeaks for its high-profile leaks of classified U.S. material.
The government 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 less than 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 sought is relevant and material to a criminal investigation. But the people targeted in the records demand don’t have to be suspected of criminal wrongdoing themselves.
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 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....
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. ...
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. ...
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.
UPDATE, 3:20 p.m.: During Hilary Clinton's speech, 71-year-old Ray McGovern was dragged away from the audience by two security guards for silently protesting the wars in Afghanistan and Iraq.
“So this is America,” said McGovern as he was hustled from the room by two security guards. “This is America.”There is video of this at the link.
McGovern, a former Army intelligence officer and a 27-year veteran of the CIA, was wearing a “Veterans for Peace” t-shirt and, according to witnesses, was standing silently with his back to Secretary Clinton before he was set upon by the two agents who bruised, bloodied and handcuffed McGovern, a cancer survivor....
McGovern was released later and is fine now, according to the article.
...Just minutes after McGovern had been dragged from the room and handcuffed, Clinton hailed the need for respecting different points of view and giving them space for their expression.
“The goal is not to tell people how to use the Internet any more than we ought to tell people how to use any public square, whether it’s Tahrir Square or Times Square,” Clinton said. “The value of these spaces derives from the variety of activities people can pursue in them, from holding a rally to selling their vegetables, to having a private conversation. …
“Together, the freedoms of expression, assembly, and association online comprise what I’ve called the freedom to connect. The United States supports this freedom for people everywhere, and we have called on other nations to do the same.”
Secretary Clinton also tried to square the circle of her enthusiasm for Internet freedom and the extraordinary steps the Obama administration is taking to find legal grounds to prosecute WikiLeaks and its founder, Julian Assange, along with suspected leaker Pvt. Bradley Manning, for posting classified U.S. documents on the Internet.
“I know that government confidentiality has been a topic of debate during the past few months because of WikiLeaks, but it’s been a false debate in many ways,” she said. “Fundamentally, the WikiLeaks incident began with an act of theft. Government documents were stolen, just the same as if they had been smuggled out in a briefcase.
“Some have suggested that this theft was justified because governments have a responsibility to conduct all of our work out in the open in the full view of our citizens. I respectfully disagree. … The fact that WikiLeaks used the Internet is not the reason we criticized its actions. [The case of] WikiLeaks does not challenge our commitment to Internet freedom.”...