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January 25, 2013

In Twitter/WikiLeaks Case, Appeals Court Rules Government Allowed to Keep Surveillance Secret

Posted in: WikiLeaks

An appeal requesting that all orders or court documents relating to three individuals under investigation because of their association with WikiLeaks be unsealed or publicly listed was denied by a federal appeals court in Virginia.

The three individuals—Tor software developer Jacob Appelbaum and Icelandic parliamentarian Birgitta Jonsdottir and Rop Gonggrijp, who worked on the release of the “Collateral Murder” video, are known to have been subjected to a Justice Department order to allow the government to look at their Twitter account data as part of an investigation into WikiLeaks. The three challenged this order in 2011, but a judge ruled against them finding the order was ”routine” and “compelled disclosure of non-content information, which petitioners voluntarily provided to Twitter pursuant to Twitter’s Privacy Policy.”

The American Civil Liberties Union (ACLU) represented Appelbaum, Gonggrijp and Jonsdottir. When the effort to stop the government’s collection of private Twitter data failed, the ACLU proceeded to push for the disclosure of records that would show what other companies had been served government requests for the users’ data.

Initially, the government’s order to collect the private data from Twitter was secret. The government filed a motion to unseal and the three were made aware of the fact that the government was not only interested the WikiLeaks organization’s Twitter data but was also snooping around in their data. (The order, according to the ACLU, said the government was interested in personal contact information, financial data, account activity information, including the date, time, and length of connections, as well as the source and destination Internet Protocol address(es), and (4) DM information, including the email addresses and IP addresses of everyone with whom the user sent and received DMs sent from November 1, 2009 to the present.)

Aden Fine, an ACLU attorney who argued the case before the appeals court last October, reacted, “This case shows just how easy it is for the government to obtain information about what people are doing on the internet, and it highlights the need for our electronic privacy laws to catch up with technology. The government should not be able to get private information like this without getting a warrant and also satisfying the standard required by the First Amendment, and it shouldn’t be able to do so in secret except in unusual circumstances.”

He found the ruling made it “easier for the government to keep its electronic surveillance activities hidden, even when there is no longer any need to keep them secret.”

The ACLU argued in its appeal:

With regard to unsealing, the government failed to meet its heavy burden to overcome the presumption of access to judicial orders and motions for three principal reasons. First, the government did not demonstrate a significant, let alone compelling, interest in continued sealing of these orders and motions because it removed the core reason for secrecy—tipping off the target of an investigation— when it unsealed the Twitter Order. Second, the public has a significant interest in access to these judicial orders and motions because they concern subjects of immense national interest—the government’s investigation of WikiLeaks and the government’s growing use of electronic surveillance measures. Finally, the government failed to establish why redacted versions of the judicial orders and motions would not eliminate any purported need for sealing. [emphasis added]

The federal appeals court did not accept the arguments made by the ACLU. The ruling outlined that orders for data from communications under the Stored Communication Act are not something that any person has a First Amendment right to access. “Pre-indictment investigative matters such as § 2703(d) orders, pen registers, and wiretaps, which are all akin to grand jury investigations,” do not have to be publicly docketed (or disclosed). The court claimed the ACLU had failed to cite a prior case where such records had been made public because of a First Amendment right to access. And it explicitly stated that the court refused to “venture into these uncharted waters” and make such records available now.

Additionally significant (and perhaps alarming to those who are being swept up in this wide government investigation into people associated with WikiLeaks), the court concluded the publicity surrounding the WikiLeaks investigation did not justify unsealing the records.  It did not agree that the unsealing of the Twitter Order was enough to tip the balance in favor of disclosure. This was because the magistrate judge told the court the sealed documents set forth sensitive nonpublic facts, including the identity of targets and witnesses in an ongoing criminal investigation.” If they were made public, the publication would “hamper the investigatory process.”

For now, the Surveillance State will continue to benefit from antiquated communications statutes and function as a beast that operates in complete secrecy and beyond the reach of the law. The public will remain in the dark and those who think their data might be the subject of secret surveillance because they have had prior interactions with individuals connected or associated with WikiLeaks will not be able to know they are being investigated.


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