European politicos protest DOJ WikiLeaks-Twitter probe

Flap caused by U.S. Justice Department's demand for WikiLeaks-related Twitter account data spreads to the EU, but U.S. State Department defends move as "appropriate and necessary."

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

An influential group of European politicians is protesting the U.S. government's attempt to pry WikiLeaks-related information out of Twitter, saying that EU privacy rules may have been violated.

The parliamentary maneuver expected tomorrow comes as London-based lawyers for WikiLeaks editor Julian Assange warned that their client could face illegal rendition to the United States, execution, or indefinite detention "at Guantanamo Bay or elsewhere," and a U.K. judge set a two-day extradition hearing to start on February.

Tomorrow's parliamentary protest, calling on the EU to "ask the U.S. authorities for clarifications on the subpoenas imposed on Twitter," is being organized by a group called the Alliance of Liberals and Democrats for Europe. It boasts 85 members, making it the third largest group in the European Parliament, and claims it holds the balance of power between the left and the right.

On Friday, Twitter notified a handful of its subscribers with ties to WikiLeaks that the U.S. Justice Department had obtained a court order for their "subscriber account information." The order covers accounts linked to WikiLeaks including those of Bradley Manning, the U.S. Army private accused of leaking classified documents; Seattle-based WikiLeaks volunteer Jacob Appelbaum; Dutch hacker and XS4ALL Internet provider co-founder Rop Gonggrijp; and Birgitta Jónsdóttir, a member of the Icelandic parliament.

The Alliance of Liberals and Democrats for Europe hosted Assange and Jónsdóttir at an event in July 2010 devoted to protecting free speech. (Iceland enjoys close economic ties with the EU and has applied for full membership.)

We defend "the right to offend which is an essential part of freedom of expression, and we will stand with those who come under pressure to freely express their views," Alexander Lambsdorff, a member of the European Parliament from Germany, said at the event.

Around the same time, the U.S. government began a criminal investigation of WikiLeaks and Assange 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 court order to Twitter (PDF), signed by U.S. Magistrate Judge Theresa Buchanan in Alexandria, Va., is the first public evidence of this investigation. The San Francisco-based Electronic Frontier Foundation, CNET previously reported, will represent Jónsdóttir (but not the other account holders) and oppose the court order sought by prosecutors.

"It sort of feels to me as if they've become quite desperate," Jónsdóttir said at an conference in Canada today, referring to the Justice Department. She said prosecutors shouldn't expect to obtain much from accounts used by such a security-conscious, encryption-savvy cadre of activists: "None of us would ever use Twitter messaging to say anything sensitive."

Prosecutors send subpoenas to and serve other legal process on Web sites and Internet service providers every day. But because Jónsdóttir is one of 63 members of Iceland's national parliament who serves on the foreign affairs committee, the order appears to have caused an international diplomatic incident outside of Europe as well: last weekend, the Icelandic government summoned U.S. ambassador Luis Arreaga to a meeting.

Earlier today, P.J. Crowley, the U.S. State Department's spokesman, gave a speech in Washington, D.C. that defended the Obama administration's legal pursuit of WikiLeaks:

WikiLeaks is about the unauthorized disclosure of classified information. It is not an exercise in Internet freedom. It is about the legitimate investigation of a crime. It is about the need to continue to protect sensitive information while enabling the free flow of public information...

We remain arguably the most transparent society in the world. The American people, through innovations including C-SPAN, are a well-informed citizenry, which is crucial to a functioning democracy. We can have a discussion about how well our democracy is functioning, and whether political figures are spending more time pandering or posturing on television than actually governing.

We are a nation of laws, and the laws of our country have been violated. Since we function under the rule of law, it is appropriate and necessary that we investigate and prosecute those who have violated U.S law. Some have suggested that the ongoing investigation marks a retreat from our commitment to freedom of expression, freedom of the press and Internet freedom. Nonsense. These are universal principles and our commitment is unwavering.

A preliminary legal brief (PDF) that Assange's lawyers filed with the London court today takes issue with that characterization of the U.S. legal system, arguing: "If Mr. Assange were rendered to the USA, without assurances that the death penalty would not be carried out, there is a real risk that he could be made subject to the death penalty. It is well-known that prominent figures have implied, if not stated outright, that Mr. Assange should be executed."

Details on the Twitter data request
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 requests "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 non-public account. That could allow the account holders to claim that the 2703(d) order is unconstitutional. (One federal appeals court recently ruled that under the Fourth Amendment, a 2703(d) order is insufficient for the contents of communications and search warrant is needed, although that decision is not binding in Virginia or San Francisco.)

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

Jónsdóttir was a close ally of Assange and supported efforts to turn the 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.

"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," Jónsdóttir said at the time. Although she said she did not believe the allegations, she suggested that Assange step aside, which he did not do.