A District Judge in the U.S. upheld Thursday an earlier order that Twitter must provide certain types of information of account holders to government investigators working on the WikiLeaks case, and declined to unseal records that could provide information on whether the prosecutors had tried to get similar information from other Internet companies.
The Judge also defended the secrecy surrounding the order for information, stating that surprise in the execution of the order may be even more important than speed, because electronic evidence can be destroyed more easily than physical evidence.
The Twitter accounts at issue are those of Birgitta Jónsdóttir, a member of the Icelandic parliament, Jacob Appelbaum, and Rop Gonggrijp, who had objected to earlier rulings by United States Magistrate Judge Theresa Carroll Buchanan.
The 60-page opinion on Thursday by Judge Liam O'Grady of the United States District Court for the Eastern District of Virginia, Alexandria division, has been criticized by the Electronic Frontier Foundation (EFF), which together with the American Civil Liberties Union, represents Jónsdóttir in the case.
"We are gravely worried by the court's conclusion that records about you that are collected by Internet services like Twitter, Facebook, Skype and Google are fair game for warrantless searches by the government," EFF legal director Cindy Cohn said in a statement.
"People around the world will take note, and since they can easily move their data to companies who host it in locations that better protect their privacy than the U.S. does, I expect that many will do so," Jónsdóttir said.
On Dec. 14, Magistrate Judge Buchanan issued an order upon ex parte application by the government, referred to as the Twitter Order, instructing Twitter to provide specified electronic records to the government after she found that there were reasonable grounds to believe that the records or other information sought were relevant and material to an ongoing criminal investigation, and that prior information of the investigation, application and order would jeopardize the investigation.
The order, known as a 2703 order, was issued under Title II of the Electronic Communications Privacy Act, known as the Stored Communications Act.
Magistrate Judge Buchanan unsealed the order on Jan. 5 following a motion by Twitter and consent by the government, finding that it is in the best interest of the investigation for Twitter to disclose the order to its subscribers.
The government asked for information such as IP (Internet Protocol) addresses, connection records, subscriber names, email addresses, screen names of Julian Assange, founder of WikiLeaks, Bradley Manning, a U.S. army officer charged with leaking information to WikiLeaks, and the three petitioners.
As a general rule, the Fourth Amendment forbids warrantless searches, but to determine if the Twitter Order effected a search, the court must ask whether the petitioners had a reasonable expectation of privacy in the IP address information as collected and stored by Twitter, Judge O'Grady said.
The Fourth Amendment to the U.S. Constitution protects individuals from unreasonable searches and seizures.
The petitioners had accepted Twitter's privacy policy, which permits collection of certain information like IP address information. The petitioners countered that users were not explicitly notified that Twitter collects IP addresses, but they voluntarily chose to use Internet technology to communicate with Twitter, and thereby consented to whatever disclosures would be necessary to complete their communications, the Judge said. They also knew that their communications with Twitter would be transmitted out of private spaces and onto the Internet for routing to Twitter, he added.
Judge O'Grady also upheld Magistrate Judge Buchanan's refusal to order unsealing and public docketing of all orders in the investigation that may be addressed to service providers other than Twitter, as the docket sheet containing the information requested would disclose the progress of the government investigation in significant detail. The Judge previously noted Magistrate Judge Buchanan's concern that the documents contained sensitive non-public facts including the identities of targets and witnesses.
