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Second judge gives DOJ access to WikiLeaks-related Twitter accounts

A second federal judge agrees that the Justice Department's request for WikiLeaks-related Twitter account details is perfectly legal and constitutional.

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
4 min read

The U.S. Justice Department will be allowed access to WikiLeaks-related Twitter accounts, including information about what Internet and e-mail addresses are associated with them, a federal district judge ruled today.

The 60-page ruling from U.S. District Judge Liam O'Grady in Virginia represents a second victory for the 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.

"The Twitter order did not violate the Constitution," O'Grady concluded. In addition, he said, there was no evidence that it violated federal privacy laws.

O'Grady's ruling follows a previous decision in March, when a magistrate judge also sided with the Justice Department. A few weeks later, attorneys for the Twitter account holders filed an appeal with O'Grady.

Kevin Bankston, a senior staff attorney at the Electronic Frontier Foundation, which is representing one of the Twitter account holders, said his group is "considering our options for how best to protect our clients' rights in response to this dangerous decision." A Justice Department spokesman declined to comment.

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 alleged WikiLeaks source Bradley Manning, who did not contest it.

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 in July 2010 after the Web site began releasing what would become a deluge of confidential military and State Department files. Last 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.

O'Grady said that he would alter the magistrate judge's ruling only if it was "clearly erroneous or contrary to law," and that it was not.

Attorneys for the Twitter account holders, including the Electronic Frontier Foundation and the ACLU, had tried to convince the court that there was a constitutional right to privacy that the Justice Department's request for Internet Protocol addresses triggered.

As a legal argument, it was a long shot: no court has accepted that position before (though a related case involving cell phone tracking is before the U.S. Supreme Court). It didn't work here. "The mere recording of IP address information and subsequent access by the government cannot by itself violate the Fourth Amendment," O'Grady ruled. He also rejected a First Amendment argument that claimed the ruling would infringe upon the right to free speech and free expression.

U.S. Magistrate Judge Theresa 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."

That's not as privacy-protective as a search warrant, which is one reason EFF objected. The ruling, Bankston says, means that "essentially any data about you collected by an Internet service is fair game for warrantless searches by the government." (EFF, Google, Facebook, eBay, and many other groups are seeking to change federal privacy law to require warrants for content-related information, such as the text of e-mail or direct messages.)

The 2703(d) order is broad. It requests any "contact information" associated with the accounts from November 1, 2009, through the time it was granted, "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.

Buchanan's original order directed Twitter not to disclose "the existence of the investigation" to anyone, but that gag order was lifted at the company's request. 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, for instance, depicted Jónsdóttir as almost an accidental politician whose self-described political views are mostly anarchist and who volunteered with WikiLeaks.