WikiLeaks Supporters Lose Court Bid to Protect Twitter Records

Three WikiLeaks supporters have lost their bid to protect their Twitter records from U.S. investigators trying to prosecute the whistleblowing site over its publication of secret and sensitive government documents.

A U.S. District judge in Alexandria, Virginia, rejected a request by Birgitta Jonsdottir, Jacob Appelbaum and Rop Gonggrijp to block prosecutors from obtaining the data while a federal appeals court considers their challenge to the government’s request for the data.

Judge Liam O’Grady wrote in his ruling that he was rejecting the request because the defendants were not likely to win their appeal, according to the court document (.pdf).

The U.S. Justice Department served Twitter with a subpoena in December 2010 as part of a Grand Jury investigation looking at possible criminal charges against WikiLeaks.

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 less so 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.

The court order sought the full contact details for the Twitter accounts (phone numbers and addresses even though Twitter doesn’t collect these – only an e-mail address), account payment method if any (credit card and bank account number), IP addresses used to access the account, 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 (though this isn’t technically possible in Twitter).

The Electronic Frontier Foundation and the American Civil Liberties Union had sought to fight the Twitter order, arguing in part that it violated the account holders’ First Amendment rights.

But last March, Judge Theresa Buchanan, in the Eastern District of Virginia, ruled that because the government was not seeking the content of the Twitter accounts, the subjects did not have standing to challenge the government’s request for the records. The defendants are appealing this decision and asked a court to prevent the government from obtaining that information until a ruling on the appeal was made.

But prosecutors claimed that a delay in turning over the Twitter data was delaying the grand jury’s criminal investigation.

“Ongoing litigation has already deprived the grand jury of the requested information for more than a year,” Andrew Peterson, an assistant U.S. attorney in Alexandria asserted in a court filing. “This, in turn, has prevented the grand jury from following up on investigative leads generated from the Twitter records for more than a year.”

The government also used secret orders to obtain information from Google and internet service provider on Appelbaum’s accounts with those providers. The order to Google directed the search giant to hand over the IP address Appelbaum used to log into his Gmail account as well as the email and IP addresses of anyone he communicated with going back to Nov. 1, 2009. The order to Sonic sought the same type of information, including the email addresses of people with whom Appelbaum communicated, but did not seek the content of that correspondence. Sonic publicly revealed that it sought to fight the order but lost, and was forced to turn over the requested information.

Photo: Eldh/Flickr