[Infowarrior] - Judge denies request to throw out order seeking WikiLeaks Twitter records

[Richard Forno]

Judge denies request to throw out order seeking WikiLeaks Twitter records

By Kim Zetter, wired.com | Last updated about an hour ago

http://arstechnica.com/tech-policy/news/2011/03/judge-denies-request-to-throw-out-order-seeking-wikileaks-twitter-records.ars
       
A judge presiding over the US government’s request for Twitter records relating to associates of Wikileaks has denied a motion to throw out the request, ruling that the associates don’t have standing to challenge it.

The judge also denied a request to unseal the government’s application for the Twitter order.

Judge Theresa Buchanan, in the Eastern District of Virginia, ruled that because the government was not seeking content of the Twitter accounts in question (PDF), the subjects did not have standing to challenge the government’s request for the records. Content, under the Stored Communications Act, is “any information concerning the substance, purport, or meaning of that communication.”

“The Twitter Order does not demand the contents of any communication,” Judge Buchanan writes in her opinion, “and thus constitutes only a request for records under [the law].”

Last December, the Justice Department served Twitter with an order seeking information on several people associated with the secret-spilling site WikiLeaks: Birgitta Jonsdottir, a member of Iceland’s parliament; Julian Assange, founder of WikiLeaks; Bradley Manning, suspected of leaking classified information to WikiLeaks; WikiLeaks’ US representative Jacob Appelbaum; and Dutch businessman and activist Rop Gonggrijp. Jonsdottir and Gonggrijp helped WikiLeaks prepare a classified US Army video that the site published last April.

According to the court order, unsealed by the court at Twitter’s request, the government sought full contact details for the accounts (phone numbers and addresses), IP addresses used to access the accounts, connection records (“records of session times and durations”) and data transfer information, such as the size of data file sent to someone else and the destination IP. The latter suggested the request was likely a boilerplate form that could also have been submitted to ISPs, e-mail providers and social networking sites like Facebook.

The department’s demand for the records is part of a grand jury investigation that’s believed to be probing WikiLeaks for its high-profile leaks of classified US material. It is seeking the records under 18 USC 2703(d), a provision of the 1994 Stored Communications Act that governs law enforcement access to non-content Internet records, such as transaction information.

More powerful than a subpoena, but less strong than a search warrant, a 2703(d) order is supposed to be issued when prosecutors provide a judge with “specific and articulable facts” that show the information sought is relevant and material to a criminal investigation. But the people targeted in the records demand don’t have to be suspected of criminal wrongdoing themselves.

In January, after Twitter notified Jonsdottir that the government had sought information about her account, the EFF and the ACLU filed a motion challenging the government’s attempt to obtain the records, asking the court to vacate the order. In their motion, the two groups said the government’s demand for the records violated First Amendment speech rights and Fourth Amendment privacy rights of the Twitter account holders, among other things.

The groups also filed motions to unseal records in the case, hoping to gain information about the government’s justification for seeking the records, as well as any information that might indicate if the government had sought similar records from Facebook, ISPs or other service providers.

The EFF and the ACLU filed the motion to challenge on Jan. 26, as well as a motion to unseal the filing, which was granted in February. A hearing to discuss the motion to vacate the Twitter order was held in mid-February.

In her ruling today, Buchanan discussed whether the government provided sufficient justification in its application to obtain the records. She acknowledged that the complainants were facing an uphill battle in arguing against the legitimacy of the government’s request, since the government’s application is still sealed and therefore unavailable to them. Nonetheless, she concluded that the government’s application stated “specific and articulable” facts that were sufficient for issuing the Twitter order.

The disclosures sought are “relevant and material” to a legitimate law enforcement inquiry. Also, the scope of the Twitter Order is appropriate even if it compels disclosure of some unhelpful information. Indeed, §2703(d) is routinely used to compel disclosure of records, only some of which are later determined to be essential to the government’s case. Thus, the Twitter Order was properly issued pursuant to §2703(d).

She further ruled that the request did not violate the account holder’s First Amendment rights since the order did not seek to control their speech or their associations. Nor did it violate the Fourth Amendment because the accountholders did not have a reasonable expectation of privacy over subscriber information they freely provided to Twitter.

“Similarly, the Fourth Amendment permits the government to warrantlessly install a pen register to record numbers dialed from a telephone because a person voluntarily conveys the numbers without a legitimate expectation of privacy,” Judge Buchanan writes.

An attorney with EFF told Threat Level that her group plans to appeal the decision.