Kim Zetter at Wired:
The U.S. Justice Department has served Twitter with a subpoena seeking information on an Icelandic lawmaker who has worked with WikiLeaks and its founder Julian Assange, the lawmaker told Threat Level on Friday.
“I got the letter from Twitter a couple of hours ago, saying I got 10 days to stop it,” wrote Birgitta Jonsdottir, a member of Iceland’s parliament, in an e-mail. “Looking for legal ways to do it. Will be talking to lawyers from EFF tonight.”
EFF refers to the Electronic Frontier Foundation, a non-profit civil liberties group in the United States.
On her Twitter feed, Jonsdottir said the government is seeking an archive of tweets she sent out since Nov. 1, 2009 as well as “personal information” for her account. (See update below)
Josdottir told Threat Level that the request was filed under seal by the Justice Department on December 14 in U.S. District Court in Alexandria, Virginia. This is the same jurisdiction where, according to previous press reports, a federal grand jury is investigating possible charges against Assange, with whom Jonsdottir has worked closely.
It’s worth recalling — and I hope journalists writing about this story remind themselves — that all of this extraordinary probing and “criminal” investigating is stemming from WikiLeaks’ doing nothing more than publishing classified information showing what the U.S. Government is doing: something investigative journalists, by definition, do all the time.
And the key question now is this: did other Internet and social network companies (Google, Facebook, etc.) receive similar Orders and then quietly comply? It’s difficult to imagine why the DOJ would want information only from Twitter; if anything, given the limited information it has about users, Twitter would seem one of the least fruitful avenues to pursue. But if other companies did receive and quietly comply with these orders, it will be a long time before we know, if we ever do, given the prohibition in these orders on disclosing even its existence to anyone.
Jacob Palmer at GizmoCrunch:
If you’re wondering whether Twitter will fold or fight (with lawyers to back them up) after receiving the subpoena, the following clause from Twitter’s “spy guide” policy will tell you:
“In accordance with our Privacy Policy and Terms of Service, non-public information about Twitter users is not released unless we have received a subpoena, court order or other legal process document.” Such requests would only be valid if sent by law enforcement.”
So yes, they would most likely fold faster than Superman on laundry day. More on this as it develops.
Ryan Singel at Wired:
To Twitter’s credit, the company didn’t just open up its database, find the information the feds were seeking (such as the IP and e-mail addresses used by the targets) and quietly continue on with building new features. Instead the company successfully challenged the gag order in court, and then told the targets their data was being requested, giving them time to try and quash the order themselves.
Twitter and other companies, notably Google, have a policy of notifying a user before responding to a subpoena, or a similar request for records. That gives the user a fair chance to go to court and try and quash the subpoena. That’s a great policy. But it has one fatal flaw. If the records request comes with a gag order, the company can’t notify anyone. And it’s quite routine for law enforcement to staple a gag order to a records request.
That’s what makes Twitter’s move so important. It briefly carried the torch for its users during that crucial period when, because of the gag order, its users couldn’t carry it themselves. The company’s action in asking for the gag order to be overturned sets a new precedent that we can only hope that other companies begin to follow.
The decision would be laudable in almost any situation, and may even be unprecendented by a massive tech firm. The only other gag orders I can think of that were challenged in court were those served on the Internet Archive, on a small library and on Nicholas Merrill, the president of the small New York City ISP Calyx Internet Access, who spent years resisting a National Security Letter order seeking information about one of his clients.
Even more remarkable, Twitter’s move comes as a litany of companies, including PayPal, Mastercard, VISA and Bank of America, follow the political winds away from the First Amendment, banning donations to WikiLeaks. And Amazon.com voluntarily threw the site off its hosting platform, even though there’s nothing illegal in publishing classified documents.
By standing up for its users, Twitter showed guts and principles. Much of it is likely attributable to Twitter’s general counsel Alexander Macgillivray. As security and privacy blogger Christopher Soghoian notes, Macgillivray was one of the first law students at Harvards’ Berkman internet law center and at in his previous job at Google “played a major role in getting the company to contribute takedown requests to chillingeffects.org.”
Alexis Madrigal at The Atlantic
E.B. Boyd at Fast Company:
Twitter’s general counsel comes out of Harvard’s prestigious Berkman Center for Internet and Society, the cyber law powerhouse that has churned out some of the leading Internet legal thinkers. The center was founded a little over a decade ago by none other than Charles Nesson, the famous defender of Pentagon Papers leaker Daniel Ellsberg. While at Harvard, Macgillivray helped teach a course on the law of cyberspace, along with Wendy Seltzer, a fellow at Princeton’s Center for Information Technology Policy. Today Seltzer leads the Chilling Effects clearinghouse, a collaboration between several law schools and the Electronic Frontier Foundation, which tracks legal challenges to lawful online activity.
After Harvard, Macgillivray worked as a litigator for Silicon Valley super-firm Wilson Sonsini Goodrich & Rosati before moving to Google, where he first spearheaded legal issues for products like Search and Gmail. He soon found himself enmeshed in the fractious Google Books lawsuit. Observers credit Macgillivray’s agile mind and creative thinking with architecting with the Google Books Settlement–a solution that both enabled Google to lawfully scan the contents of university libraries and to create a mechanism for authors and publishers to get their out-of-print books back into circulation.
Twitter wooed Macgillivray away from Google in the summer of 2009, and he now heads a 25-person legal team. Throughout his career, he has remained an avid student of Internet and intellectual property law, and calls himself a tinkerer of sorts–his personal website is called “bricoleur,” a French term he says refers to one who “[tries] things out until they figure out how to do something.”
Macgillivray also curates a Twitter list of the primary thinkers tangling with cyber issues, and he has occasionally returned to Berkman to guest lecture or speak on topics of the day. Coincidentally, a week before the DOJ subpoena, Macgillivray was tweeting about a government analysis looking at which criminal statutes might apply to the WikiLeaks-style publication of leaked classified documents.
Twitter has declined to comment on the original subpoena and the company’s fight to get it unsealed. What we do know is that the original order was faxed to Twitter on December 14. On January 5, the same magistrate who signed the first order, signed a new one, ordering the first to be unsealed. And on January 7, Twitter sent notifications to at least several of the holders of the accounts listed on the subpoena, telling them the company would respond to the order in 10 days, unless “we receive notice from you that a motion to quash the legal process has been filed or that this matter has been otherwise resolved.”
It’s reasonable to assume that Macgillivray is the person who either led or played a significant role in the thinking that resulted in the decision to challenge the secrecy aspect of the order. If so, it’s a smart move.
Vadim Lavrusik at Mashable:
The journalist cannot adequately promise anonymity on social sites like Twitter or others, but that won’t stop whistle-blowers from contacting journalists on those sites. Whistle-blowers will still reach out to journalists on those platforms because that’s where they are often most accessible. Therefore, it ultimately starts with protection from the platform.
Journalists may be able to offer some protection in knowing that the platform will not disclose source information. But this would take a serious restructuring of the current culture of companies that do not stand up for their users. Twitter’s move to notify its users is a step in the right direction.
But notification is not enough to provide protection to journalists whose information is being subpoenaed by a federal court. In the U.S., 36 states and Washington, D.C. have journalist shield laws — legislation that provides reporters a privilege to refuse to disclose any information or sources obtained during their reporting. The rest of the states either provide some protection or none at all. But because there is no federal statutory reporter’s shield law, Jane Kirtley, who teaches media ethics and law at the University of Minnesota, says that in all likelihood, there would be no protection for a journalist being subpoenaed on a federal level.
Kirtley notes there are federal attorney general guidelines, which discourage the use of subpoenas against the press, but nothing to outright prohibit them as long as the attorney general approves it.
The case with Twitter and other tech companies is that these are not considered to be subpoenas for journalists’ records, so even if there is a privilege, it is unlikely to apply to these records, Kirtley said. This is a loophole that gives journalists little protection or right to protect themselves in their reporting while using such sites.
If a journalist refuses to disclose information to a government entity requesting it in an investigation, the court can simply go to the platform of communication to get the records. With many social media sites playing a vital role in news distribution and watchdog journalism, this requires a stand from those sites against disclosing such information in a broken system that once recognized the value of protecting journalistic integrity.
But ultimately, the privilege of shield laws should also extend to the social platforms hosting the information that is shared between whistle-blowers and journalists. And until there is a federal shield law for reporters, protection for such newsgathering will be nonexistent. This is the only way to fix the broken system. Platforms can only protect their users to a certain extent. It then becomes a legislative issue around the protection of journalists and the Fourth Estate.
Walker Frost at The American Scene:
Let’s rewind to November 2007. Yahoo had just complied with the Chinese government’s request for the IP information and e-mail records of Wang Xiaoning and Shi Tao, two Chinese dissidents who China accused of “illegally providing state secrets to foreign entities.” Michael Callahan, the Yahoo’s executive VP and general counsel, was in Congress getting reamed by the late Tom Lantos (D-CA), Chairman of the House Foreign Affairs Committee, for the company’s gross moral failure: “Yahoo claims that this is just one big misunderstanding. Let me be clear—this was no misunderstanding. This was inexcusably negligent behavior at best, and deliberately deceptive behavior at worst.”
Yahoo’s response: “Like other global organizations we must abide by the laws, regulations and norms of each country in which we operate.”
“Why do you insist on using the phrase, ‘lawful orders?’” Lantos challenged. “These are the demands of a police state.”
Lantos even brought Shi Tao’s mother to the hearing, seated her in the front of the room, and told Yahoo CEO Jerry Yang: “I would urge you to beg the forgiveness of the mother whose son is languishing behind bars thanks to Yahoo’s actions.”
How the tables have turned.
Around The Sphere 