DOJ wins access to WikiLeaks-related Twitter accounts

Judge grants Justice Department access to Twitter accounts, including details about associated IP and e-mail addresses, but not text of private messages.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
5 min read

A federal judge in Virginia today granted federal prosecutors access to WikiLeaks-related Twitter accounts, including information about what Internet and e-mail addresses are associated with them.

The 20-page ruling represents a clear victory for the U.S. Department of Justice, which 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.

U.S. Magistrate Judge Theresa Buchanan rejected arguments raised by the ACLU, the Electronic Frontier Foundation, and a host of private attorneys representing the Twitter account holders, who had asserted that their privacy was protected by federal law, the First Amendment, and the Fourth Amendment.

Buchanan rejected each of the arguments in quick succession, saying that there was no First Amendment issue because activists "have already made their Twitter posts and associations publicly available." The account holders have "no Fourth Amendment privacy interest in their IP addresses," she said, and federal privacy law did not apply because prosecutors were not seeking contents of the communications.

Cindy Cohn, legal director of the EFF, told CNET this afternoon that her group and the other attorneys involved in this case plan an appeal, probably "to a district judge next," and then likely to an appeals court if necessary.

A representative for the U.S. Attorney's office involved in this case declined to comment on today's ruling.

The accounts at issue include those of 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 appear not to have contested it (prosecutors say nobody "associated with" WikiLeaks has filed an objection).

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. As of last month, at least, Twitter has not yet divulged any nonpublic data.

A second portion of Buchanan's ruling unsealed previously nonpublic documents and revealed the following:

* A court filing shows that Twitter undertook a pro-privacy move that few Internet companies would have chosen. It filed a motion on February 8 asking for permission not to turn over data from the WikiLeaks account, even though WikiLeaks itself had not retained counsel and objected.

* The Geneva-based Inter-Parliamentary Union adopted a confidential motion in January on behalf of Jónsdóttir. It says that members of parliaments "benefit from" the right to privacy and the right to free speech and "expresses deep concern" that the Justice Department's request violates those rights. It requests that IPU Secretary General Anders Johnsson "communicate these concerns" to the United States and says that the case will be brought up again during its April 2011 assembly.

* Another IPU document submitted to the court in Alexandria, Va., argues that the order "should be vacated" because there is no "pressing need for state inspection of [Jónsdóttir's] private communication," which could interfere with her ability to use social media to do her job as a member of parliament.

* A motion from the Justice Department, with some pages partly blacked out, argues that: "The subscribers' request would identify other witnesses, if any, who the government or the grand jury had requested to provide evidence. The chilling effect on potential witnesses of such a disclosure would undermine a fundamental government interest."

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 is "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.

The Twitter account holders were more successful in their second request to Buchanan. That request asked her to unseal the documents in this case, which have--in an unusual move--been kept hidden from public view.

Buchanan today partially granted the request to make the documents public. She did, however, rule that certain documents related to the grand jury probe will remain sealed. "The sealed documents at issue set forth sensitive nonpublic facts, including the identity of targets and witnesses in an ongoing criminal investigation," she wrote.

Aden Fine, ACLU staff attorney, said: "While we disagree with the court's decision, the court did the right thing in making sure that all of the documents associated with this legal challenge are now publicly available."

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.

It also covers "all records" and "correspondence" relating to those accounts, which appears to be broad enough to sweep in the content of messages such as direct messages sent through Twitter or tweets from a nonpublic account. That would have allowed the account holders to cite a nonbinding but influential opinion from a federal appeals court, which concluded that a 2703(d) order is insufficient for content data and a search warrant is necessary.

The EFF's Cohn said, however, that Justice Department attorneys effectively narrowed their request to avoid asking for content, even though "it sure seemed like the order sought" it.

Jónsdóttir was a close ally of Assange and supported efforts to turn her small north Atlantic nation into a virtual data haven. A New Yorker profile last year, for instance, depicted Jónsdóttir as almost an accidental politician whose self-described political views are mostly anarchist and who volunteered with Wikileaks.

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., Jónsdóttir said the organization should find a spokesman who's not such a controversial figure.

Jónsdóttir said in a Twitter message after the ruling that it's now "time to apply pressure on social media to move their servers out of the U.S." Appelbaum, who gave a speech at a hacker conference in New York last year on behalf of WikiLeaks, sent out a note saying: "Bad news is exhausting."