2011-03-11 Denial of 'Twitter 3' Request to Throw Out Twitter Order Renews Government War on Internet Freedom, Whistleblowing

Federal Magistrate Judge Theresa C. Buchanan ruled the “Twitter 3,” who have become ensnared in a WikiLeaks investigation, cannot keep the US government from looking at their Twitter information and the information they would like to be public cannot be disclosed. With support from the ACLU and the Electronic Frontier Foundation, Jacob Appelbaum, Birgitta Jonsdottir, and Rop Gonggrijp, the three, will appeal the decision.

The “Twitter 3” sought to convince the court the Twitter Order violated First and Fourth Amendment rights. The Court found there was no First Amendment violation because the three had “already made their Twitter posts and associations publicly available.” The Court memo on the decision explains:

The Twitter Order does not seek to control or direct the content of petitioners’ speech or association. Rather, it is a routine compelled disclosure of non-content information which petitioners voluntarily provided to Twitter pursuant to Twitter’s Privacy Policy. Additionally, the Court’s §2703(d) analysis assured that the Twitter Order is reasonable in scope, and the government has a legitimate interest in the disclosures sought.

On the Fourth Amendment argument, the Court finds no “privacy interest” in protecting “IP addresses” and argued, “The Court is aware of no authority finding that an IP address shows location with precision, let alone provides insight into a home’s interior or a user’s movements.”

The Court claims that what the “Twitter 3” thought would protect them only covers “content” and not “records.” The Twitter Order does not call for details on content, only details on data transfer, volume, source, destination, IP addresses, Twitter correspondence and notes of records. Therefore, the Court asserts the “customers” cannot challenge the Twitter Order.

This distinction between “content” and “records” is key. It provides a nice cover. What guarantees government does not, in the end, look at “content”? If the “records” produce good leads, the content will surely be subject to scrutiny and investigation.

Making it about “records” makes it hard to challenge the following argument in the memo on why documents must remain sealed:

Petitioners have no right of access to the sealed documents supporting the Twitter Order in case number 10-gj-3793. At the pre-indictment phase, “law enforcement agencies must be able to investigate crime without the details of the investigation being released to the public in a manner that compromises the investigation.” Va. Dept. of State Police v. Washington Post, 386 F.3d 567, 574 (4th Cir. 2004). Secrecy protects the safety of law enforcement officers and prevents destruction of evidence. Media General Operations v. Buchanan, 417 F.3d 424,429 (4th Cir. 2005). It also protects witnesses from intimidation or retaliation. In re Grand Jury Investigation of Cuisinarts, Inc., 665 F.2d 24, 27-28 (2d Cir. 1981). Additionally, secrecy prevents unnecessary exposure of those who may be the subject of an investigation, but are later exonerated. Douglas Oil Co. V. Petrol Stops N.W., 441 U.S. 211, 219 (1979). For these reasons, sensitive investigatory material is appropriately sealed. Va. Dept. of State Police, 386 F.3d at 589.

A chilling footnote indicates Jonsdottir and Gonggrijp could face worse repercussions from this Twitter Order than Appelbaum:

Though they assert First and Fourth Amendment claims, petitioners cite no authority as to the applicability of the United States Constitution to non-citizens residing and acting outside of the U.S. See United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990)(Fourth Amendment inapplicable where American authorities searched the home of a Mexican citizen and resident, who had no voluntary attachment to the United States; Wang v. Reno, 81 F.3d 808,817-18 (9th Cir. 1996)(alien entitled to 5th Amendment due process rights only after government created “special relationship with alien” by paroling him from China to U.S. to testify at drug trial). The Court has serious doubts as to whether Ms. Jonsdottir and Mr. Gonggrijp enjoy rights under the U.S. Constitution.

Additionally, the Court memo seems to overlook some elements of the petitioners’ arguments against the Twitter Order on the basis that their arguments stall an investigation into WikiLeaks:

In the context of a criminal investigation, a district court must “balance the possible constitutional infringement and the government’s need for documents...on a case-by-case basis and without putting any special burden on the government”, and must also prevent abuse. In re Grand Jury 87-3 Subpoena Duces Tecum, 955 F.2d 229,234 (4th Cir. 1992). Accordingly, a subpoena should be quashed where the underlying investigation was instituted or conducted in bad faith, maliciously, or with intent to harass.

The three never worked for WikiLeaks, but two of the individuals did work on the “Collateral Murder” video that WikiLeaks released in April of last year. The video showed 2007 attack by a US Army Apache helicopter on a Reuters photographer and his driver. It later showed the helicopter opening fire on a van killing someone trying to save the reporter. The “Good Samaritan” driving the van is killed and the two children are injured badly.

It is this video that former Pfc. Bradley Manning is alleged to have leaked to WikiLeaks. A Panorama documentary on Manning’s detention focuses on how he has been jailed but the shooters in this video, who clearly violated rules of engagement, have enjoyed impunity and managed to walk free.

The release of the video in April created a public relations nightmare for the US government. It continues to be a source of problems as it is really when WikiLeaks began to be a thorn in the side of American superpower.

The information the government would like to gain would likely inform any prosecution of a case against those who leaked the video. They would like the “records” so they can further advance an Obama Administration war on whistleblowing.

If this decision stands, the government will be able to continue to escalate its assault on Internet freedom and whistleblowing.

For previous WL Central coverage of the Twitter Order, click here.