Sunday, January 9, 2011

US Subpoenas Wikileaks Tweets, And Why This Could Affect You

The DOJ sent Twitter the subpoena on Dec. 14, but it remained sealed until Jan. 5 when a judge granted Twitter's request that it be allowed to notify the users whose records had been requested.
Copies of the documents were posted by late Friday night.
The DOJ wants information dating back to Nov. 1, 2009, about Twitter user names, messages, physical and e-mail addresses, Twitter session times, IP addresses and credit card and bank account information.
The US is also seeking details about Dutch hacker Rop Gonggrijp and programmer Jacob Appelbaum, both of whom have previously worked with WikiLeaks.

Update (12:20am GMT): Mark Stephens on the BBC News also makes clear that the court order will also cover the “600,000 odd followers that Wikileaks has on Twitter“.

The US government has subpoenaed Twitter in a bid to support an ongoing criminal investigation into whether Wikileaks and people involved or connected to Wikileaks, including an Icelandic member of parliament, broke the law.

According to Wikileaks lawyer Mark Stephens live on the BBC News a short time ago, it is believed Facebook and Google (see here) have also been contacted regarding Wikileaks members and potential whistleblowers.
Update (12:20am GMT): Mark Stephens on the BBC News also makes clear that the court order will also cover the “600,000 odd followers that Wikileaks has on Twitter“.

The order asks specifically for names of those attached to selected accounts, user and screen names, and any registered mailing or postal addresses. It also asks for email addresses, credit card details where possible, and even content relating to connected mobile phones.

The server logs which could identify the computer and geographical location of where even private messages were sent from have also been ordered to be handed over.

According to CNN:

“A federal court in Virginia has ordered Twitter to provide information for each account registered to Assange, U.S. Army Pfc. Bradley Manning, Rop Gonggrijp, a reported computer hacker from the Netherlands, and Birgitta Jónsdóttir, a member of parliament in Iceland and a former volunteer with WikiLeaks, according to documents sent to CNN by Jónsdóttir.”

Twitter is in a difficult position. Considering their stance during the Iranian elections supporting the freedom of speech, it will appear as if the company is backtracking or giving into pressure by handing over details of its users to its government.

Jónsdóttir retweeted a message purporting Twitter’s efforts, however, in bringing this subpoena into the public domain.

This case should resonate with younger users especially, as prolific social network users, that US law can apply to users of social networking sites to users outside the United States, as seen in this case.

Though datacenters are held worldwide in different locations to allow network load balancing, locale reliability and data backups, the organisations which provide these services are based mostly in the US. Both Twitter and Facebook are based in California, as are many startup and social media companies.

For example, if one publishes a threatening tweet from the UK to a service based in the US, this can be used in a UK or US court of law if the company is subpoenaed.

Users should also be reminded that sharing links to still-classified documents hosted by Wikileaks could be risky to future career prospects, such as in the public sector or the diplomatic corps.

The younger generation who are largely unaware of legal processes should be aware that it is nearly impossible to delete a message from the Web once it has been published. Also, as this case shows, published content even from social networking sites can be used against you in a court of law.

Kick off your day with ZDNet's daily e-mail newsletter. It's the freshest tech news and opinion, served hot. Get it.

Zack Whittaker, the youngest in the ZDNet network, is a British student at the University of Kent, where he studies a BA (Hons) Criminology and Social Policy undergraduate degree.

Disclosure : Zack Whittaker

I worked at Microsoft as an intern a few years ago but have since cut my ties with them. 

I'm very grateful for their support over the years and the acquaintances I've made and the positive impact they've had on my future career. In spite of this, I remain impartial and unbiased to my views.

I don't hold any stock or shares, investments or industrial secrets in any company, but have signed confidentiality agreements with a number of UK and US organizations, whose names I am not at liberty to disclose.

I am highly involved with Kent Union, the University of Kent's student union, a charitable organization which seeks to represent every student at either Canterbury, Medway, Tonbridge, Brussels or Paris campuses. Between May 2009 and December 2009, I was elected as a voluntary, non-salaried position - as welfare officer for Rutherford College at the university.

Between October 2009 and December 2009, I was elected as a voluntary, non-salaried position - as ordinary council member for Kent Union Council, the governing body for the students union. No other company, body, governmental department, non-governmental organization or third sector organization employs me or pays me a salary in any capacity whatsoever.
(Updated: 23rd February 2010)

Biography: Zack Whittaker

Zack Whittaker started playing with computers before he could even tie his shoelaces; although that skill wasn't discovered until he was 10. Amongst many things, he is a good-for-nothing, pink sock wearing, British student at the University of Kent in Canterbury, UK working towards a BA (Hons) Criminology and Social Policy.

In between studying, drinking, and occasionally sleeping, he works with researchers studying neurological illnesses like Tourette's syndrome (of which he suffers from), and gives talks and lectures on disabilities.

He grew up in "Robin Hood Country" in Nottinghamshire, UK for the best part of his life, but still heads there on occasion to see his ever-supporting and loving family, godchildren and his friends. Although due to his age he may seem inexperienced and misguided, but he's already totalled up many years of work, education, knowledge and general (mis)adventure.

Iceland blasts US demand for lawmaker's details in WikiLeaks probe

Icelandic politicians have blasted US demands for Twitter to hand over a member of parliament's account details. Birgitta Jonsdottir faces investigation as one of several people connected to the website WikiLeaks.

Politicians in Iceland have hit out at a US request for Twitter to hand over details of a member of the country's parliament because of her connections with WikiLeaks.

A subpoena for parliamentary representative Birgitta Jonsdottir's details was issued as part of an investigation involving several individuals associated with the whistle-blowing website.

ildunterschrift: Großansicht des Bildes mit der Bildunterschrift:  Skarphedinsson denounced the US demand as 'intolerable'Icelandic Foreign Minister Oessur Skarphedinsson said it was not acceptable that US authorities had demanded the information.

"According to the documents that I have seen, an Icelandic parliamentarian is being investigated in a criminal case in the United States for no reason at all," Skarphedinsson told Icelandic public radio RUV.

"It is intolerable that an elected representative is being treated like that," he said.

'Serious and peculiar'

The country's Interior Minister Oegmundur Jonasson told the Icelandic daily newspaper Morgunbladir that the investigation into Jonsdottir was "serious and peculiar" and voiced support for WikiLeaks' actions in releasing classified information online.

Jonsdottir formerly acted as a spokeswoman for Wikileaks and was involved with the website's release of classified video footage last year showing a US Apache helicopter shooting dead Iraqi civilians, including two journalists from the news agency Reuters.

On Twitter, Jonsdottir said that she would call Iceland's justice minister to discuss the request, and hinted that she felt menaced by the US request.

"(The) USA government wants to know about all my tweets and more since 1 November 2009. Do they realize I am a member of parliament in Iceland?"
Bildunterschrift: Großansicht des Bildes mit der Bildunterschrift:  Jonsdottir helped release a video that showed the killing of innocent Iraqi civilians"I think I am being given a message, almost like someone breathing in a phone," she said.

Demand for online and personal data 

The subpoena obtained by the US Department of Justice in mid-December was made public on Friday after San Franciso-based Twitter won a legal battle requesting a right to inform the individuals involved. Among the information sought are online connection records, session times, IP addresses used to access Twitter, emails and residential addresses as well as bank and credit card account details.

Individuals whose details were requested also include WikiLeaks founder Julian Assange, Dutch hacker Rop Gonggrijp, US programmer Jacob Appelbaum and US Army intelligence analyst Bradley Manning - who is alleged to have sent Wikileaks the secret diplomatic service cables.
The US is examining possible charges against Assange over the publication of the cables, which it claimed were irresponsible. The US State Department said on Friday that it had issued warnings to several hundred people worldwide who it believed had been put at risk by the release.

Author: Richard Connor (AFP, Reuters), Editor: Mark Rossman

TorontoStar: WikiLeaks subpoenas spill out into public realm: Newly disclosed documents sent to Twitter Inc. by the U.S. Atto...
WikiLeaks subpoenas spill out into public realm - -

IQXS: Wikileaks cable confirms extensive Soviet UFO investigations
Wikileaks cable confirms extensive Soviet UFO investigations ... -

latimes: WikiLeaks says U.S. is demanding its Twitter accounts
WikiLeaks says U.S. is demanding its Twitter account info ... -

nytimesbusiness: U.S. Subpoenas Twitter Over WikiLeaks Supporters
U.S. Subpoenas Twitter Over WikiLeaks Supporters - -

Nickrob: Wikileaks reveals that the honeybees are dying because Bayer poisons them & the EPA knows about it & feigns ignorance.
Leaked document shows EPA allowed bee-toxic pesticide despite own ... -

In this week's New Yorker, Peter Maass -- who was in Iraq covering the war at the time -- examines the iconic, manufactured toppling of the Saddam statue in Baghdad's Firdos Square, an event the American media relentlessly exploited in April, 2003, to propagandize citizens into believing that Iraqis were gleeful over the U.S. invasion and that the war was a smashing success.  Acknowledging that the episode demonstrated that American troops had taken over the center of Baghdad, Maas nonetheless explains that "everything else the toppling was said to represent during repeated replays on television -- victory for America, the end of the war, joy throughout Iraq -- was a disservice to the truth."

Working jointly with ProPublica on this investigation, Maass describes the hidden, indispensable role the U.S. military played in that event -- which has long been known -- though he convincingly argues that the primary culprit in this propaganda effort was the Americans media.  That is who did more than anyone to wildly distort this event.  As usual, the Watchdog Press not only happily ingests and trumpets pro-government propaganda, but does so even more enthusiastically and uncritically than government spokespeople themselves.

The reason there's so little government censorship of the press in America is because it's totally unnecessary; why would the government even want to censor a media this compliant and subservient?  Recall the derision heaped upon the media even by Bush's own former Press Secretary, Scott McClellan, for being "too deferential" to administration propaganda.  As soon as an entity emerges that provides genuinely adversarial coverage of the U.S. Government -- such as WikiLeaks, whistleblowers, or isolated articles exposing its malfeasance -- the repressive measures come fast and furious.  But in general, it's no more necessary for the U.S. Government to censor the American media than it would be for Barack Obama to try to silence Robert Gibbs.
In describing the military-subservient mentality that dominated how most American establishment reporters covered the Saddam-statue incident, Maass includes these highly revealing anecdotes, including one about The New York Times' lead war correspondent, John Burns:

The media have been criticized for accepting the Bush Administration’s claims, in the run-up to the invasion, that Iraq had weapons of mass destruction. The W.M.D. myth, and the media’s embrace of it, encouraged public support for war. The media also failed at Firdos Square, but in this case it was the media, rather than the government, that created the victory myth.

One of the first TV reporters to broadcast from Firdos was David Chater, a correspondent for Sky News, the British satellite channel whose feed from Baghdad was carried by Fox News. (Both channels are owned by News Corp.) Before the marines arrived, Chater had believed, as many journalists did, that his life was at risk from American shells, Iraqi thugs, and looting mobs.

"That’s an amazing sight, isn’t it?" Chater said as the tanks rolled in. "A great relief, a great sight for all the journalists here. . . . The Americans waving to us now -- fantastic, fantastic to see they’re here at last.” Moments later, outside the Palestine, Chater smiled broadly and told one marine, “Bloody good to see you.” Noticing an American flag in another marine’s hands, Chater cheerily said, "Get that flag going!"

Another correspondent, John Burns, of the Times, had similar feelings. Representing the most prominent American publication, Burns had a particularly hard time with the security thugs who had menaced many journalists at the Palestine. His gratitude toward the marines was explicit. "They were my liberators, too," he later wrote. "They seemed like ministering angels to me."

The happy relief felt by some journalists on the ground was compounded by editors and anchors back home. Primed for triumph, they were ready to latch onto a symbol of what they believed would be a joyous finale to the war.

It's not surprising that war journalists who feel endangered would be grateful to the U.S. military for protecting them.  Indeed, that's the whole premise of the embed program:  having American journalists dependent upon U.S. forces for everything -- from their safety to their sustenance -- will render them grateful and will cause them to identify not as independent journalists but as members (and dependents) of the invading force.  

However understandable that might be, seeing the invading American army as "ministering angels" and "my liberators, too" cannot but shape and distort one's "reporting" on the war.  

Maass details that deliberately propagandistic pro-war "reporting" around this event infected every precinct of The Liberal Media.  As but one example, NPR's Baghdad reporter Anne Garrels expressly told her editors that they were getting the statue story wrong, but she recounted how NPR "editors requested . . . that she emphasize the celebratory angle."  The article described numerous examples of editors similarly distorting the statue-toppling coverage, as well as TV journalists gushing falsehood-based awe which -- even seven years later -- makes one cringe with embarrassment and disgust.  For instance, CNN's Bill Hemmer intoned:  "You think about seminal moments in a nation's history . . . indelible moments like the fall of the Berlin Wall, and that’s what we’re seeing right now"; Wolf Blitzer described the toppling as "the image that sums up the day and, in many ways, the war itself"; Brit Hume on Fox News said: "This transcends anything I've ever seen. . . . This speaks volumes, and with power that no words can really match."  And on and on and on.

But, though Maass doesn't say so, it was Burns' dutiful pro-U.S. agitprop in The New York Times on behalf of the war fought by America's "ministering angels" -- "his liberators, too" -- that played a major role in shaping how this story was ultimately perceived.  On April 20, Burns wrote:

In the late afternoon of Wednesday, April 9, Marine Corps tanks entered eastern Baghdad from the south and took control of the district by the river that encompasses the Palestine and Sheraton hotels. Within three hours, after attempts by Iraqi men with sledgehammers and ropes had failed, the marines brought up an M-80 recovery tank with a long boom to assist in hauling down a 30-foot cast-iron statue of Mr. Hussein in Firdos Square, behind the hotels.

If any one moment marked the end of Mr. Hussein's rule, it was the sight of the statue's legs cracking, its torso tumbling, and the severed head and body being pelted with garbage and shoes -- the ultimate Arab insult -- by the hundreds of Iraqis who had gathered to celebrate their freedom.

To be in the square at that moment was to know, beyond doubt, that Iraqis in their millions hated Mr. Hussein, that the truth about Iraq was the diametric opposite of all that he and his acolytes had maintained, and that all else that was said about him in the years that went before was the product of relentless terror.

"Good, good, Bush!" the crowds chanted. "Down, down, Saddam!" Men and women wept, and reached out to shake the hands of the marines, or simply touch their uniforms. "Thank you, mister!" they cried, again and again. Hours later, the crowds still milled about the fallen idol, spitting and mocking. 

That is the most revered and most decorated war reporter in America's Liberal Media.

The Washington Post's Richard Cohen today has an uncharacteristically insightful column arguing that reverence for the U.S. military is sustained by the fact that most Americans have  no experience serving in it and thus idealize its actions and those who lead it.  That's certainly true, but it's journalists -- especially the ones who cover the Pentagon and its wars -- who succumb to that worship dynamic far more than any other class of people.  In October,  John Parker -- the former military reporter and fellow of the University of Maryland Knight Center for Specialized Journalism-Military Reporting -- mocked Pentagon reporters for uncritically spouting the military's line about WikiLeaks (he singled out NPR's Tom Gjelten) and explained the key dynamic as follows:

The career trend of too many Pentagon journalists typically arrives at the same vanishing point: Over time they are co-opted by a combination of awe -- interacting so closely with the most powerfully romanticized force of violence in the history of humanity -- and the admirable and seductive allure of the sharp, amazingly focused demeanor of highly trained military minds. Top military officers have their s*** together and it's personally humbling for reporters who've never served to witness that kind of impeccable competence. These unspoken factors, not to mention the inner pull of reporters' innate patriotism, have lured otherwise smart journalists to abandon -- justifiably in their minds -- their professional obligation to treat all sources equally and skeptically.

Too many military reporters in the online/broadcast field have simply given up their watchdog role for the illusion of being a part of power.

This dynamic infects most establishment journalism:  political reporters come to revere the most successful political operatives (and thus worship in Jay Rosen's "Church of the Savvy"), economic reporters come to admire the most powerful financial officials, etc.  But for so many reasons, including the ones Parker describes, this psychological capture -- blindly gushing over the subjects one covers -- is most severe when it comes to reporting on military leaders.  

Recall how Burns -- when attacking Michael Hastings on The Hugh Hewitt Show for the crime of making Gen. Stanley McChystal look bad -- boasted, as though he himself is a combatant, of the "long, informal periods traveling on helicopters over hostile territory with the generals chatting over their headset, bunking down for the night side by side on a piece of rough-hewn concrete" and how this "builds up a kind of trust" that should shape what the public learns and does not learn about these officials.  

Or recall the embarrassingly glowing paean to McChrystal Burns penned upon the General's firing, or the even more gushing McChrystal profile published by his fellow NYT reporters upon his hiring.  Or Lara Logan's snide, lapdog-like defense of The General ("Michael Hastings has never served his country the way McChrystal has").  When it comes to how they speak and think of the military officials they cover, they sound like giddy teenage fan club Presidents rather than critical, independent reporters.  Could anyone imagine David Halberstam describing American generals in Vietnam as "ministering angels" and "his liberators, too"?

Maass has written a very good article, but the one bothersome aspect of retrospectives like this one is that some perceive that the failings they describe are confined to a discrete historical event or matters of the past.  It's vital when discussing the American media's failings during the Iraq War to remember that -- aside from Judy Miller -- most of them believe they and their industry did nothing wrong (Richard Wolffe:  "the press here does a fantastic job of adhering to journalistic standards and covering politics in general"; David Gregory:  "there are a lot of critics who think that . . . we didn't do our job. I respectfully disagree. It's not our role"; Charlie Gibson:  rejecting criticisms of the American media on the ground that "there was a lot of skepticism raised" by journalists about Bush's case for war; see also: Brian Williams righteously defending the honor of the retired Generals in the Bush Pentagon's propaganda program).

They haven't changed in the slightest since the Saddam statue incident because they don't think they did anything wrong, don't believe there are any lessons to learn.   Maas' article isn't about what the American media did.  It's about what the American media is.

Quite related to all of this:  The New York Times' Stanley Fish reviews a new book to be released shortly by a variety of law professors -- including Cass Sunstein and Martha Nussbaum -- arguing that more legal restraints on the Internet are needed to prevent and punish misinformation enabled by online anonymity.  Right:  unlike for our establishment media outlets, which are Beacons of Informed, Accountable and Objective Truth.  Along those lines, Newsweek today has a darkly and unintentionally hilarious article purporting to explain why most American journalists refuse to defend WikiLeaks and the government's assault on its press freedoms.  It contains this line:  "American journalists, unlike many of their foreign counterparts, have a strong commitment to objectivity and nonpartisanship."  The level of self-delusion necessary to produce such a claim is unfathomable.

The world's media has jumped on the news that the US Department of Justice has sought, and obtained a court order seeking to compel Twitter to reveal account information associated with several of its users who are associated with Wikileaks.

Communications privacy law is exceedingly complex, and unfortunately, none of the legal experts who actually specialize in this area (people like Orin Kerr, Paul Ohm, Jennifer Granick and Kevin Bankston) have yet to chime in with their thoughts. As such, many commentators and journalists are completely botching their analysis of this interesting event. While I'm not a lawyer, the topic of government requests to Internet companies is the focus of my dissertation, so I'm going to try to provide a bit of useful analysis. However, as always, I'm not a lawyer, so take this with a grain of salt.

A quick introduction to the law

On December 14, An Attorney in the US the Department of Justice obtained a court order compelling Twitter to reveal records associated with several of its users. The order, issued under 18 USC 2703(d) is not a subpoena (even though the AP, New York Times, Salon and many other outlets have reported that it is). Subpoenas are essentially letters written by law enforcement officers, on official agency letterhead, and have not been reviewed or signed by a judge. The 2703(d) order in question was issued by a magistrate judge.

Per the statute, a judge isn't supposed to issue a 2703(d) order unless the government "offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation". We don't know what these facts are though -- as it doesn't look as though the government's original request to the court has been made public. (It isn't clear if those records themselves remain sealed. I tried to find the case in PACER, and couldn't locate it, so this will have to wait until Monday, when someone can call up the Clerk's office to ask for the documents). 

"d" orders can be used to obtain customer records (name, address, credit card info, IP addresses used to connect to the service), non-content data associated with individual communications (to/from and timestamps from emails, etc). They can also be used to obtain any saved, outbound communications (such as the "sent" mail folder), all communications that are more than 180 days old, as well as those that have been opened and viewed at least once (except in the 9th circuit). If the government wants access to unread messages that are 180 days old or newer, it must seek a rule 41 court order, which requires a showing of probable cause.

The order to twitter

The government's wikileaks "d" order, as the statute permits, requests the customer subscriber info associated with the account (essentially copying this language in full from the statute). …

It is the second part of the order that is more interesting. Again, as the statute allows, the government is requesting non-content information associated with individual communications. What the government appears to be seeking in part 2 is the metadata associated with every Twitter communication to and from the users named in the order. What this means is up to debate. It could mean the name and timestamp of every user who has sent or received a private message to one of the named individuals. It might also mean the list of individuals who have publicly communicated, or mentioned the named individual, or who have been named in a tweet by those persons. It might even include a list of followers, although this information is public already, so it is unclear why the government would seek it through a court order….

The statute (and caselaw) permits the government to use a "d" order to get access to communications older than 180 days, those that have been read at least once (outside the 9th circuit), and saved outgoing messages. What isn't so clear to me though, is if the government has requested this information from Twitter or not when it asks for "correspondence and notes of records related to the accounts".

My initial impression is that this is not a request for communications content, but communications between the user and twitter itself (for example, customer service inquiries). However, I'm not really sure about this though... so I'll wait for the real experts to weigh in on this bit.

Reading between the lines

With that discussion of the law out of the way, lets get to the fun part: Speculation. Based on this order, and the events that followed, there are some interesting observations to be made.

1. Amateur Hour. The 2703(d) order misspelled the names of one of the targets, Rop Gonggrijp. It also requested credit card and bank account numbers of several Twitter users, even though Twitter is a free service and so doesn't have such information (presumably someone at DOJ knows a little about Twitter, since the agency has 350,000 followers of its official Twitter account).

The Department of Justice prosecutor named in the order, Tracy Doherty-McCormick, was prosecuting online child exploitation cases just five months before the Twitter order was issued. Given that the wikileaks investigation is the most high-profile national security investigation of the decade, and that the court order seeks records associated with an Icelandic member of parliament, you would think that DOJ would assign this case to someone more senior.

From my own experience, outside of the Computer Crime & Intellectual Property Section (CCIPS) and the National Security Division, most DOJ attorneys know very little about technology. As such, it may simply be that Doherty-McCormick, through her experience in prosecuting pedophiles caught in online stings, may be the most tech savvy prosecutor in her office, and thus could have been brought in to help with the investigation on that basis alone.

However, the technical knowledge involved in tricking a pedophile into meeting what he believes is a 13 year old girl isn't quite the same as is required by someone investigating a sophisticated organization run by skilled computer security researchers. Presumably, Doherty-McCormick is in regular communication with tech-savvy attorneys from CCIPS, who are likely assisting in this matter. 

2. Three of the individuals named in the order, Jacob Appelbaum, Rop Gonggrijp, and Julian Assange are computer security experts - Appelbaum has worked with the Tor project, and has co-authored some pretty awesome encryption research, Assange co-authored a deniable encrypted filesystem, and Rop has worked for several years to create mobile phone encryption software. All three likely use strong encryption to store and transmit sensitive communications and use Tor to mask their IP addresses. As such, I'm not really sure what DOJ hopes to gain by asking Twitter for this data -- as it is doubtful that these individuals have entrusted Twitter with anything private.

3. Why the "d" order? For a case this high profile, it is quite shocking that the government is using a "d" order to try and gather information. At least for Assange and Manning, surely there is sufficient evidence already to demonstrate probable cause, and get a rule 41 warrant, which could be used to get full communications content and prospective location information? What is even more surprising though, is that criminal statutes are being used, and not foreign intelligence laws. To be perfectly frank, I would have bet money that DOJ had already obtained a FISA order to monitor Assange and any of his associates. I really don't know what to make of this.

4. Twitter. The bigger story here, IMHO, far more interesting than the government request for wikileaks related info, is the fact that Twitter has gone out of its way to fight for its users' privacy. The company went to court, and was successful in asking the judge to unseal the order (something it is not required to do), and then promptly notified its users, so that they could seek to quash the order. Twitter could have quite easily complied with the order, and would have had zero legal liability for doing so. In fact, many other Internet companies routinely hand over their users' data in response to government requests, and never take steps to either have the orders unsealed, or give their users notice and thus an opportunity to fight the order.

Alex Macgillivray, Twitter's general counsel is clearly behind this strong, pro-privacy move. Macgillivray was one of the first law students at Harvard's Berkman Center. Until he moved to Twitter, he worked on copyright and privacy issues at Google, where, he played a major role in getting the company to contribute takedown requests to Not surprisingly, Twitter recently started sending copies of takedowns to chillingeffects too.

It is wonderful to see companies taking a strong stance, and fighting for their users' privacy. I am sure that this will pay long term PR dividends to Twitter, and is a refreshing change, compared to the actions by some other major telecommunications and internet application providers, who often bend over backwards to help law enforcement agencies. Simply put, the contrast between Amazon, Paypal (owned by eBay) and Twitter couldn't be clearer.

As one further example of this difference, consider Twitter's actions here in contrast with comments from eBay's director of compliance a few years back:

We [eBay] try to make rules to make it difficult for people to commit fraud and easy for you [law enforcement agencies] to investigate. One is our Privacy policy. I know from investigating eBay fraud cases that eBay has probably the most generous policy of any internet company when it comes to sharing information. [emphasis added]

We do not require a subpoena except for very limited circumstances. We require a subpoena when we need the financial information from the site, credit card info or sometimes IP information.

5. Did the government seek the contents of private messages? As I wrote above, it's not clear if the government sought the content of private messages. Had they sought such information, I would have expected them to be clearer in describing that information. However, based on Twitter's actions in getting the court to unseal the 2703(d) order, had the government sought communications content, I would fully expect to see the company to fight that order, on 4th amendment grounds.

My guess is that the government opted to not ask for such information, purely as a strategic matter, as it probably feared that Twitter would lawyer up, refuse to disclose any communications content, and seek to have that part of 18 USC 2703 ruled unconstitutional. Over the past year or so, several courts have taken a dim view of the government's practice of obtaining various forms of private data without probable cause warrants. A 2703(d) request for content from Twitter would be an ideal opportunity for courts to examine this issue, and would likely have been very risky for the government.

What comes next

This case is extremely high profile -- it involves data privacy; Twitter, arguably the hottest communications service a hot communications tool; wikileaks; and a member of the Icelandic parliament. I fully expect this to go to court, and for absolutely everyone to try and get involved in this case -- privacy groups, communications providers, and perhaps even the Icelandic government will all likely file amicus briefs.

By Nancy A. Youssef | McClatchy Newspapers

WASHINGTON — Not so long ago, WikiLeaks founder Julian Assange could count on American journalists to support his campaign to publish secret documents that banks and governments didn't want the world to see.

But just three years after a major court confrontation that saw many of America's most important journalism organizations file briefs on WikiLeaks' behalf, much of the U.S. journalistic community has shunned Assange — even as reporters write scores, if not hundreds, of stories based on WikiLeaks' trove of leaked State Department cables.

Some call him a traitor, responsible for what's arguably one of the biggest U.S. national security breaches ever. Others say a man who calls for government transparency has been too opaque about how he obtained the documents.

The freedom of the press committee of the Overseas Press Club of America in New York City declared him "not one of us." The Associated Press, which once filed legal briefs on Assange's behalf, refuses to comment about him. And the National Press Club in Washington, the venue less than a year ago for an Assange news conference, has decided not to speak out about the possibility that he'll be charged with a crime.

With a few notable exceptions, it's been left to foreign journalism organizations to offer the loudest calls for the U.S. to recognize WikiLeaks' and Assange's right to publish under the U.S. Constitution's First Amendment.

Assange supporters see U.S. journalists' ambivalence as inviting other government efforts that could lead one day to the prosecution of journalists for doing something that happens fairly routinely now — writing news stories based on leaked government documents.

"Bob Woodward has probably become one of the richest journalists in history by publishing classified documents in book after book. And yet no one would suggest that Bob Woodward be prosecuted because Woodward is accepted in the halls of Washington," said Glenn Greenwald, a lawyer and media critic who writes for the online journal "There is no way of prosecuting Julian Assange without harming investigative journalism."

Woodward, who rose to fame by exposing the Watergate conspiracy that forced President Richard Nixon from office, told a Yale University law school audience in November that WikiLeaks' "willy-nilly" release of documents was "madness" and would be "fuel for those who oppose disclosure." But that appearance came before U.S. Attorney General Eric Holder launched a criminal probe against Assange. Woodward didn't respond to e-mails seeking comment.

Woodward's newspaper, The Washington Post, however, is one of the few that's editorialized against prosecuting Assange. "The government has no business indicting someone who is not a spy and who is not legally bound to keep its secrets," the Post said.

Assange increasingly has presented himself as a journalist in the weeks since Holder's threat to bring charges. He's the website's editor, and WikiLeaks publishes editorials.

Few could argue that WikiLeaks didn't perform journalistic functions in April when it released video taken from an Army helicopter of a 2007 incident where Army pilots fired on civilians in Baghdad, killing 17 Iraqis, including two employees of the Reuters news agency, and wounding two children. 

In addition to editing and captioning the video, WikiLeaks interviewed the Iraqi families about the incident. The release of the video, which Reuters had sought for years but had been denied, was widely covered by U.S. news organizations.

U.S. journalists have been far less zealous about WikiLeaks, however, in the ensuing months, as the Obama administration has mounted increasingly vocal attacks on the organization over three batches of leaked U.S. documents — military logs of events from the war in Afghanistan, including the names of Afghans who'd cooperated with the U.S.; initial incident reports from throughout the Iraq War; and most recently, thousands of diplomatic cables.

The problem with speaking up for WikiLeaks now, said Lucy Dalglish, the executive director of the Reporters Committee for Freedom of the Press, one of the country's most prominent defenders of press freedom and one of the groups that backed WikiLeaks in its 2008 court case, is that she doesn't consider Assange to be a journalist.

Assange, she said, "has done some things that journalists do, but I would argue that what the New York Times does is more journalism. They vet the information. . . . They consider outside sources. They take responsibility. 

They publicly identify themselves. . . .They do some value added. They do something original to it," Dalglish said.

She added that part of her hesitation to back Assange is that the public knows so little about him and how he acquires information.

WikiLeaks "takes secrets. But they are secretive. We don't know who they are.

 I think one thing journalists pride themselves on is transparency. I think people are a little apprehensive because he was releasing information last summer he had an agenda to bring down the U.S. government," she said. "I think that makes people reluctant to jump into making a statement."

Greenwald rejects that argument. He noted that U.S. journalists often don't reveal their sources or how they gather information for stories.

Greenwald said he thinks journalists aren't rallying to defend WikiLeaks because it has no building, no ties to the U.S. and doesn't feel obliged to consult with the U.S. government before publishing. The issue, he said, is that American journalists too often befriend the government and seek its approval for their work.

Besides, he said, the Constitution protects everyone's right to publish.
"What matters is the activity itself and not who the person is. 

Bob Woodward is no more entitled to publish classified information than some random person out of the phone book," Greenwald said.

Greenwald's position is echoed by Joel Simon, the executive director of the New York-based Committee to Protect Journalists, another prominent U.S. advocacy group that's made one of the rare public arguments against prosecuting Assange.

Simon said he and his colleagues had an extensive debate about whether to speak up. In the end, they determined that debating whether Assange is a journalist is irrelevant.

"If he is prosecuted, it will be because he a journalist," Simon said.

The group sent a letter to Holder on Dec. 17 urging him not prosecute Assange, warning that it could have a chilling effect around the world.
"There is a commonality of purpose," Simon said in an interview. "The function of WikiLeaks is to take information, particularly classified information, and distribute it to the public. From a legal perspective, it is essentially a journalistic function. We have to respond when there is a threat to journalism."

The current situation even has split former allies in the battle over press freedom. Daniel Ellsberg, who leaked the Pentagon Papers to The New York Times in 1971, has come out strongly in support of WikiLeaks. But Floyd Abrams, who was the Times' attorney in its fight against the Nixon administration's efforts to block publication, has taken the opposite position.

In an opinion piece in the Wall Street Journal, Abrams noted that Ellsberg himself kept secret four volumes of the classified Pentagon history that became the Pentagon papers because he feared they'd harm diplomatic efforts to end the Vietnam War. Abrams said WikiLeaks' publication of so much secret material could lead to tougher restrictions for U.S. journalists.

"His activities have already doomed proposed federal shield-law legislation protecting journalists' use of confidential sources in the just-adjourned Congress," Abrams wrote. "An indictment of him could be followed by the judicial articulation of far more speech-limiting legal principles than currently exist with respect to even the most responsible reporting about both diplomacy and defense."

And if Assange isn't indicted or is acquitted of any charges, Abrams warned, Congress might pass "new and dangerously restrictive legislation."
There was no such debate in February 2008, when 12 journalism organizations, including the Associated Press and Reporters Committee for the Freedom of the Press, filed a brief on behalf of WikiLeaks and its domain register, Dynadot, in a case brought by a Swiss bank, Bank Julius Baer.

The bank filed the suit after WikiLeaks published hundreds of private documents on a land deal that suggested money laundering and tax evasion. It asked a U.S. district judge in California to enjoin WikiLeaks from publishing the documents and order Dynadot to stop hosting its website.

The judge agreed, but quickly reversed his order after the U.S. journalism organizations weighed in, calling the decision an affront to the First Amendment and WikiLeaks' right to publish.

The Justice Department now appears serious about building a case against Assange, though it remains unclear which law he violated — officials acknowledge that the Espionage Act of 1917 has never been used to prosecute anyone for publication of secret documents.

Last month, a U.S. magistrate in Alexandria, Va., issued a secret subpoena ordering the Twitter online messaging service to turn over all information it has about five of its users, including Assange and Army Pfc. Bradley Manning, 23, the one-time Baghdad-based intelligence analyst accused of unauthorized downloading of the hundreds of thousands of classified U.S. government documents WikiLeaks is now publishing.

The subpoena was unsealed Wednesday after Twitter said it intended to notify each of the account holders that their records had been sought and became public on Friday, when one of those account holders told The Guardian newspaper in London. In addition to Assange's and Manning's, the targeted accounts include those of an Icelandic member of parliament and two computer programmers. WikiLeaks, however, argued in a "tweet" posted Saturday that the records of all 670,000 of its Twitter "followers" are subject to the subpoena because it demands information about outgoing messages from the WikiLeaks account.

Dalglish said her organization might reconsider its silence if the U.S. files a criminal case against Assange. That will depend, she said, on a determination of the case's potential threat to journalism.

Alan Bjerga, the president of the National Press Club, said his organization also might take a stand depending on what the Justice Department does.

"The National Press Club is always concerned about any government action that would harm the ability of journalists to do their work, and any action against Julian Assange that would impede journalists is one we would oppose," he said in an e-mail Saturday. "It is difficult at this time to comment on the specifics of a case the government has yet to make."

Until then, it's fallen largely to foreign-based journalism organizations to defend WikiLeaks.

In August, Paris-based Reporters without Borders wrote a letter condemning Assange for publishing the names of Afghan informants, saying it could endanger lives.

But it decided last month to provide a mirror site to WikiLeaks' website after the WikiLeaks site came under attack.

The change came after lengthy discussion — and because WikiLeaks has since been more cautious about redacting the documents it posts.

"We think WikiLeaks is doing a public service," said Clothilde Le Coz, who directs the group's Washington office.

The idea of America, heralded as a beacon of press freedom internationally, prosecuting someone for publishing secret documents would have a chilling effect throughout the world, the Australian Newspaper Editors wrote in a letter to Australian Prime Minister Julia Gillard, whose government also is considering charges against Assange, who's an Australian citizen.

"Any such action would impact not only on WikiLeaks, but every media organization in the world that aims to inform the public about decisions made on their behalf," the organization said in its Dec. 15 letter. "It is the media's duty to responsibly report such material if it comes into their possession. To aggressively attempt to shut WikiLeaks down, to threaten to prosecute those who publish official leaks, and to pressure companies to cease doing commercial business with WikiLeaks, is a serious threat to democracy, which relies on a free and fearless press."

MORE FROM MCCLATCHY - Official Wikileaks Page [,,] - Secure SSL Chat Page [] - Secure Document Submission Page [] - Points to Official Site [] - Points to Official Site [] - Points to Official Site [] - Points to Official Site [] - Points to Official Site [] - Points to Official Site [] - Points to Official Site [] - Points to Official Site [] - Points to Official Site [] - Points to Official Site [] - Points to Official Site []

Real mirrors on different IP Addresses - Mirror hosted in Switzerland [] - Mirror hosted in Sweden [] - Mirror hosted in the United States []

Important Wikileaks Links - Official Wikileaks Twitter Page ipv6

No comments: