WikiLeaks hearing set in dispute over Twitter data

A federal judge in Virginia has set a hearing for next week in a high-profile case that will decide whether the U.S. Justice Department can obtain records about the Twitter accounts used by WikiLeaks activists.

The hearing, scheduled for February 15 in Alexandra, Va., is expected to focus on whether the Justice Department has the legal justification for its request for the account details, and whether the almost-entirely-secret court records in this case should be made available for public viewing.

As CNET previously reported, federal prosecutors obtained a court order directing Twitter to turn over information about the accounts of activists with ties to WikiLeaks, including Icelandic politician Birgitta Jonsdottir, legendary Dutch hacker and entrepreneur Rop Gonggrijp, and U.S. computer programmer Jacob Appelbaum. It also covers "subscriber account information" for Bradley Manning, the U.S. Army private charged with leaking classified information, and WikiLeaks frontman Julian Assange.

Lawyers for Jonsdottir, Gonggrijp, and Appelbaum have jointly filed a motion with the Virginia court--it and their other motions were unsealed today--arguing that the Justice Department's request should be slapped down. "There can be no reasonable basis for finding that the information sought here regarding the parties' Twitter accounts is both 'relevant' and 'material' to an ongoing investigation," they wrote, saying that their clients also use Twitter for political and personal discussions unrelated to WikiLeaks.

The U.S. government began a criminal investigation of WikiLeaks and Assange last July after the Web site began releasing what would become a deluge of confidential military and State Department files. In November, Attorney General Eric Holder said that the probe was "ongoing," and a few weeks later an attorney for Assange said he had been told that a grand jury had been empaneled in Alexandria, Va. Possible criminal charges include violations of the Espionage Act.

The order sent to Twitter initially was signed and kept under seal by U.S. Magistrate Judge Theresa Buchanan in Alexandria, Va., on December 14, and gave the social-networking site three days to comply. It was eventually unsealed on January 5. But many of the key documents in this case, including, oddly, the Justice Department's original request, remain off-limits.

That's also unacceptable, attorneys for the WikiLeaks activists have argued in a separate motion asking that the documents be made available to the public. Their joint brief says the "sealed materials are of immense public interest," and requests that "all documents relating to the Twitter order" and similar orders sent to any other companies be unsealed as well. Despite speculation, no other company has confirmed receiving such a request.

The Electronic Frontier Foundation and the ACLU are representing Jonsdottir. The law firm Keker and Van Nest is representing Appelbaum. John Cline represents Gonggrijp.

A wide-ranging court order
Buchanan's order isn't a traditional subpoena. Rather, it's what's known as a 2703(d) order, which allows police to obtain certain records from a Web site or Internet provider if they are "relevant and material to an ongoing criminal investigation." The 2703(d) order is broad. It requests any "contact information" associated with the accounts from November 1, 2009, to the present; "connection records, or records of session times and durations;" and "records of user activity for any connections made to or from the account," including Internet addresses used.

While it was unclear whether the original order requested the contents of communications, such as direct messages, the attorneys for the WikiLeaks volunteers indicated that's no longer an issue.

Buchanan's original order from December directed Twitter not to disclose "the existence of the investigation" to anyone, but that gag order was lifted last month. Twitter's law enforcement guidelines say "our policy is to notify users of requests for their information prior to disclosure."

Jonsdottir was a close ally of Assange and supported efforts to turn Iceland into a virtual data haven. But after Assange became embroiled in allegations of sexual assault, which have led to the Swedish government attempting to extradite him from the U.K., Jonsdottir said the organization should find a spokesman who's not such a controversial figure.

"WikiLeaks should have spokespeople that are conservative and not strong persons, rather dull, so to speak, so that the message will be delivered without the messenger getting all the attention," Jonsdottir said at the time. Though she said she did not believe the allegations, she suggested that Assange step aside, which he did not do.