Prosecutors Defend Probe of WikiLeaks-Related Twitter Accounts
(WIRED) Prosecutors are urging a federal judge in Virginia to rule against three associates of WikiLeaks who are fighting to keep records of their Twitter use out of the hands of the government.
For four months the Justice Department has been seeking non-content information about WikiLeaks’ official Twitter account, and the accounts of three people connected to the group: Seattle coder and activist Jacob Appelbaum; Birgitta Jonsdottir, a member of Iceland’s parliament; and Dutch businessman Rop Gonggrijp. Jonsdottir and Gonggrijp helped WikiLeaks prepare the release of a classified U.S. Army video published last year as “Collateral Murder,” and Appelbaum is the group’s U.S. representative.
A magistrate judge in Alexandria, Virginia, approved the records demand last month as part of a grand jury investigation that appears to be probing WikiLeaks for its high-profile leaks of classified U.S. material. WikiLeaks itself hasn’t challenged the demand for records pertaining to the organization’s feed, but the three individuals have been fighting the case with the help of the American Civil Liberties Union and the Electronic Frontier Foundation.
The government 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 not as strong as 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 they seek is relevant and material to a criminal investigation. But the people targeted in the records demand don’t themselves have to be suspected of criminal wrongdoing.
In an appeal filed March 25, the three WikiLeaks associates argue that the government could not have met the legal standard in its sealed application for the records order, and instead prosecutors appear to be acting on a “hunch” that “all of the Parties’ Twitter records have some connection to its WikiLeaks investigation. That cannot be the case — the vast majority of the Parties’ Twitter activity has nothing to do with WikiLeaks.”
The government on Friday scoffed at that argument:
[T]here is no merit to the Subscribers’ pronouncement that the records described in the Order cannot be “relevant and material to an ongoing criminal investigation” simply because, in the Subscribers’ view, much of their Twitter activity “has nothing to do with Wikileaks.” By the Subscribers’ logic, the government could never use a § 2703(d) order to obtain e-mail transaction logs or phone bills unless it could show that every e-mail or phone call related directly to the crime under investigation. Indeed, such a standard could almost never be met.
The feds also contested the WikiLeaks’ associates argument — supported by prominent computer scientists — that the internet IP addresses they used to access Twitter should be protected from the warrantless search, because it can reveal their location, movements and associations:
Moreover, business records do not become privileged merely because they contain information that might enable the government to discern a person’s location. For example, telephone users have no reasonable expectation of privacy in traditional land-line telephone records, even though investigators have long been able to use such information to place a caller in a particular location (often a private home) at the time of the call. See Smith, 442 U.S. at 745 (concluding that phone user had no legitimate expectation of privacy in phone numbers he dialed, even when collected in real time). Further, the government is not required to obtain a warrant before compelling businesses to produce other types of records from which location-based inferences could be drawn, such as bank records, employment records, credit card records, and other records of customer purchases. See, e.g., Miller, 425 U.S. at 444 (rejecting Fourth Amendment challenge to subpoena for bank records). In short, the Subscribers do not have a Fourth Amendment interest in Twitter’s records of their IP addresses even if the government could use those records to discern the Subscribers’ locations at certain times.
The order being challenged demanded information from the accounts from Nov. 1, 2009, to June 2010. The government has agreed to narrow that time frame, and to seek only the non-content information on Twitter direct messages sent or received among the four accounts.
A hearing on the appeal is set for later this month.
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