DOJ defends WikiLeaks probe of Twitter accounts

The U.S. Justice Department today dismissed as "absurd" any privacy and free speech concerns about its request for access to the Twitter accounts of WikiLeaks volunteers.

In a 32-page brief filed in federal court in Virginia, prosecutors characterized their request for a court order as a "routine compelled disclosure" that raises no constitutional issues.

These types of records "are widely subpoenaed by grand juries without raising 'chilling effects,' or occasioning constitutional litigation and delays," prosecutors wrote. Any claim that Twitter's logs "are subject to heightened protections under the First Amendment is baseless," they say, adding that there is no "legitimate expectation of privacy" in Internet addresses provided to a third party.

Today's brief follows an appeal that attorneys representing the WikiLeaks volunteers filed March 25. A hearing has been set for later this month in Arlington, Va., before U.S. District Judge Liam O'Grady.

The attorneys' appeal to O'Grady seeks to throw out a magistrate judge's ruling on March 11 that granted prosecutors access to the accounts, including information about what Internet and e-mail addresses are associated with them. The government sought the court order as part of a grand jury probe that appears to be investigating whether WikiLeaks principals, including editor Julian Assange, violated American criminal laws.

The accounts at issue include Birgitta Jónsdóttir, a member of the Icelandic parliament who helped with WikiLeaks' release of a classified U.S. military video; Seattle-based WikiLeaks volunteer Jacob Appelbaum; and Dutch hacker and XS4ALL Internet provider co-founder Rop Gonggrijp. The order also sought records relating to Assange and suspected WikiLeaks source Bradley Manning, who did not contest the request.

The Justice Department's brief filed this afternoon, which asks O'Grady to "direct Twitter to fully and promptly comply," also raises a series of other arguments including: criminal procedures instead of civil should apply; the order complied with the Stored Communications Act; and that the Fourth Amendment doesn't apply.

In their own brief last month, attorneys for the Twitter account holders said prosecutors' request violates federal law, "intrudes upon" their clients' First Amendment right to freedom of association, and "threatens" their right to privacy. (PDF)

The court order approved by U.S. Magistrate Judge Theresa Buchanan would require Twitter to divulge "all" direct messages, even ones unrelated to WikiLeaks, argue the ACLU, the Electronic Frontier Foundation, and a host of private attorneys representing the Twitter account holders. It "has a chilling effect not only on the parties' speech and association rights," they say, "but on the rights of Twitter users in general."

This case came to light in January, when Twitter notified the subscribers that prosecutors had obtained a court order for their "account information." That led Jónsdóttir, Appelbaum, and Gonggrijp to retain their own attorneys, who filed motions asking the judge to overturn her earlier decision.

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.

Buchanan's order isn't a traditional subpoena or search warrant--in fact, if the Justice Department obtained a search warrant, the ACLU and EFF would likely drop the case. 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." In this case, prosecutors are asking for logs and other information about the account but not "content" such as direct messages.