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Twitter Must Turn Over Data in WikiLeaks Case

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Twitter by JoshSemans on Flickr

Image by JoshSemans on Flickr

A federal court judge has ruled that the private Twitter information of three WikiLeaks associates must be handed over to a grand jury investigating the case; the 60-page memorandum opinion (PDF) penned by Judge Liam O’Grady upheld a previous decision by a Magistrate Judge Theresa Carroll Buchanan.

Birgitta Jonsdottir, a member of Iceland’s parliament, and computer experts Rop Gongrjip of the Netherlands and Jacob Appelbaum of the United States are the subjects of a grand jury investigation into their possible roles in the leaking of classified U.S. military documents and materials. The trio argued the government shouldn’t be able to gain access to their Twitter accounts as they had a reasonable expectation of privacy in the information contained therein.

In his analysis, Judge O’Grady focused on the fact that before setting up an account, users must click to accept Twitter’s Privacy Policy, which states that the company may provide a user’s information, including IP addresses, to law enforcement officials. By accepting the terms, the judge reasoned, the petitioners lost any reasonable expectation of privacy in the information in their Twitter accounts.

The lawyer for the WikiLeaks trio went with the “but nobody really reads those things” argument, but Judge O’Grady flatly rejected it: “Petitioners’ apparent willingness to provide their information to Twitter — with or without reading Twitter’s policies — weighs in favor of a finding that petitioners voluntarily revealed their IP address information to Twitter.”

The ruling also denied the petitioners’ request to unseal further law enforcement requests for Internet user information under § 2703 of the Electronics Communications and Privacy Act. Requests for electronic content fall under § 2703 (a) and (b), while those for non-content, such as IP addresses, fall under subsection (c); for information requests under the latter subsection, the user does not have to be notified. Subsection (d) permits such government requests — no need for a search warrant — so long as the entity can show “specific and articulable facts” that show the requested information is “relevant and material to an ongoing investigation.”

There was no disagreement among the parties that the requests were for non-content, thus falling under subsection (c), which, Magistrate Judge Buchanan had ruled, did not have a corresponding provision through which challenges to requests could be brought before execution. Accordingly, Judge Buchanan ruled the WikiLeaks trio had no standing to challenge the requests, and Judge O’Grady agreed, upholding the ruling.

The petitioners also made arguments based on the 4th Amendment (unreasonable search and seizure) and the 14th Amendment (procedural due process). Regarding the former, the court referred back to the finding that the petitioners had no reasonable expectation in their Twitter data; therefore there could be no 4th amendment violation.

Regarding procedural due process, Judge O’Grady found that a pre-execution hearing (meaning before the request for information was carried out) was not necessary in order for petitioners to obtain “full relief,” particularly because § 2703 orders already go through a judicial review process; accordingly, no dice on the 14th amendment argument either as there was no violation of due process.

Moreover, wrote the court, as an overarching theme, the element of surprise is important in grand jury investigations: “Allowing routine challenges of 2703 orders would undermine grand jury secrecy, which helps maintain the integrity of the grand jury’s function.”

The petitioners’ 1st Amendment argument, claiming that the so-called “Twitter Order” violates their rights to free speech and association, also fell flat on the court, which found no constitutional violations by the Order whatsoever.

And so, in sum, this decision was a huge victory for prosecutors that won’t make online privacy advocates very happy. Indeed, we’ll probably be seeing more of this case in the 4th Circuit Court of Appeals, so stay tuned.

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November 11th, 2011 at 5:52 pm