March 11, 2011, 6:58 PM EST
by Tom Schoenberg
(Updates with ACLU comment in 11th paragraph.)
March 11 (Bloomberg) — Three WikiLeaks backers lost a bid to block U.S. prosecutors from reviewing their Twitter account data in a criminal probe of leaks of classified information.
U.S. Magistrate Judge Theresa Buchanan in Alexandria, Virginia, today upheld her earlier order requiring Twitter to give investigators data on subscribers “associated with WikiLeaks,” including the group’s leader, Julian Assange, and on Bradley Manning, a U.S. soldier charged with leaking classified information.
“Petitioners in this case voluntarily conveyed their IP addresses to the Twitter website, thus exposing the information to a third party administrator, and thereby relinquishing any reasonable expectation of privacy,” Buchanan said in a 20-page ruling.
The litigation over the Twitter data is the first public skirmish in the government’s criminal investigation of Assange and others who may have helped leak diplomatic cables and classified military documents through the WikiLeaks website.
Buchanan on Dec. 14 ordered Twitter to give the government records and information related to the accounts of several identified individuals and anyone else linked to Assange. Prosecutors asked for subscriber names, contact information, billing records, user activity, Internet Protocol addresses and source and destination e-mail addresses.
Invasion of Privacy
Buchanan, whose ruling can be appealed to a district court judge, said the three backers didn’t have standing to challenge her previous order because the government wasn’t seeking the contents of any communications they made using Twitter.
Buchanan rejected arguments from the WikiLeaks backers that the government’s request requires a search warrant and if approved would allow an unconstitutional invasion of privacy.
She also denied the backers’ request to unseal all records in the court file related to prosecutors’ efforts to get information from Twitter and any other companies. Buchanan said the documents include “the identity of targets and witnesses in an ongoing criminal investigation.”
She did allow some of the court documents filed in the Twitter dispute to be made public on court’s online docketing system.
Three subscribers whose records are being sought are Jacob Appelbaum, a computer security researcher, who represented WikiLeaks at a 2010 hacker’s conference in New York; Birgitta Jonsdottir, a member of the Icelandic parliament, elected to a four-year term in 2009; and Rop Gonggrijp, described in court papers as a Dutch activist and businessman who helped found the first public Internet service provider in the Netherlands.
“We’re obviously disappointed this decision permits the government to secretly obtain private information about individuals’ Internet communications,” said Aden Fine, a lawyer with the American Civil Liberties Union who represents Jonsdottir. Fine said his client will appeal.
Cindy Cohn, the legal director of the San Francisco-based Electronic Frontier Foundation, said the ruling was “troubling” and will make it easier for the government to access information people must give to companies in order to use online products such as Facebook and Twitter.
“The judge downplayed what can be learned from non-content information that we give to third-parties all the time,” said Cohn, who also is representing Jonsdottir.
Peter Carr, a spokesman for U.S. Attorney Neil MacBride, declined to comment.
The judge initially barred the San Francisco-based social networking company from disclosing the government’s demand, which came as part of a federal grand jury investigation in Virginia. She unsealed the order on Jan. 5, saying it was in the “best interest of the investigation” and allowed Twitter to disclose the order to its users. Buchanan held a public hearing on the dispute on Feb. 15.
during the Feb. 15 hearing, John Keker, a San Francisco- based lawyer representing one of the WikiLeaks backers, argued that the government was seeking material from that differed from phone or banks records.
The Twitter account data could be used to chill free speech online by allowing the government to create a map of people tied to WikiLeaks, Keker told Buchanan.
“It is incredibly powerful to know who the opposition is and who they’re working with,” Keker said in court.
Keker said that turning over the information would violate Fourth Amendment protections against warrantless searches and seizures by the government.
John Davis, an assistant U.S. attorney in Alexandria, said in court that the government’s request was routine.
“this is a standard — as this court knows well — investigative measure used in criminal investigations every day of the year all over the country,” Davis said.
Prosecutors told Buchanan that public release of filings in the case would damage a probe that’s still in its early stages.
The three WikiLeaks backers claim the initial order supporting the government’s request was overly broad and didn’t explain how the information is “relevant and material” to the criminal probe.
Twitter negotiated with the government to restrict the time frame of the order to activity from Nov. 15, 2009, to June 1, 2010, and limit the scope of the information being sought, according to court papers.
The three asked Buchanan to force investigators to seek a warrant for the information. A search warrant would mean the government has shown probable cause, a higher hurdle than the “relevant” and “material” standard for information requests under the Stored Communications Act, on which Buchanan based her December order.
U.S. investigators sought similar information from Google inc., Facebook inc. and EBay inc.’s Skype unit, mark Stephens, a lawyer for Assange, said in an interview last month. Stephens regularly represents media organizations, including Bloomberg News.
U.S. Attorney General Eric Holder said Nov. 29 that the Justice Department is investigating the posting by WikiLeaks of thousands of classified U.S. diplomatic communications and military documents.
Assange, an Australian who was arrested in December in London and is free on bail, is facing extradition to Sweden to face unrelated allegations of sexual misconduct against two women. Stephens has said the case in Sweden is politically motivated and related to WikiLeaks.
The case is In re Application of the U.S. For an Order Pursuant to 18 USC 2703(d), 11-dm-00003, U.S. District Court, Eastern District of Virginia (Alexandria).
–With assistance from Erik Larson in London. Editors: Fred Strasser, Glenn Holdcraft
To contact the reporter on this story: Tom Schoenberg in Washington at firstname.lastname@example.org
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WikiLeaks Backers Lose Twitter Data Fight in Assange Probe