Attorneys representing WikiLeaks volunteers today asked a Virginia judge to overturn an earlier ruling and bar the U.S. Department of Justice from gaining access to their clients' Twitter accounts.
The appeal, which was expected, seeks to throw out a magistrate judge's ruling on March 11 that granted prosecutors access to the accounts, including information about what Internet and e-mail addresses are associated with them. The government sought the court order as part of a grand jury probe that appears to be investigating whether WikiLeaks principals, including editor Julian Assange, violated U.S. criminal laws.
In a 41-page brief (PDF) filed today, attorneys for the Twitter account holders said prosecutors' request violates federal law, "intrudes upon" their clients' First Amendment right to freedom of association, and "threatens" their right to privacy.
The accounts at issue include Birgitta Jónsdóttir, a member of the Icelandic parliament who helped with WikiLeaks' release of a classified U.S. military video; Seattle-based WikiLeaks volunteer Jacob Appelbaum; and Dutch hacker and XS4ALL Internet provider co-founder Rop Gonggrijp. The order also sought records relating to Assange and suspected WikiLeaks source Bradley Manning, who did not contest the request.
The order approved by U.S. Magistrate Judge Theresa Buchanan would require Twitter to divulge "all" direct messages, even ones unrelated to WikiLeaks, argue the ACLU, the Electronic Frontier Foundation, and a host of private attorneys representing the Twitter account holders. It "has a chilling effect not only on the parties' speech and association rights," they say, "but on the rights of Twitter users in general."
A second section of the brief renews a request to unseal court documents filed by the Justice Department that have been kept from public view so far.
This case came to light in January, when Twitter notified the subscribers that prosecutors had obtained a court order for their "account information." That led Jónsdóttir, Appelbaum, and Gonggrijp to retain their own attorneys, who filed motions asking the judge to overturn her earlier decision.
The U.S. government began a criminal investigation of WikiLeaks and Assange in July after the Web site began releasing what would become a deluge of confidential military and State Department files. In November, Attorney General Eric Holder said that the probe is "ongoing," and a few weeks later an attorney for Assange said he had been told that a grand jury had been empaneled in Alexandria, Va.
Buchanan's order isn't a traditional subpoena or search warrant -- in fact, if the Justice Department obtained a search warrant, the ACLU and EFF would almost certainly drop their objections. Rather, it's what's known as a 2703(d) order, which allows police to obtain certain records from a Web site or Internet provider if they are "relevant and material to an ongoing criminal investigation."
The 2703(d) order is broad. It requests any "contact information" associated with the accounts from November 1, 2009 to the present, "connection records, or records of session times and durations," and "records of user activity for any connections made to or from the account," including Internet addresses used.
It also covers "all records" and "correspondence" relating to those accounts, which appears to be broad enough to sweep in the content of messages such as direct messages sent through Twitter or tweets from a nonpublic account. That would have allowed the account holders to cite a non-binding but influential opinion from a federal appeals court, which concluded that a 2703(d) order is insufficient for content data and a search warrant is necessary.
The Electronic Frontier Foundation's Cindy Cohn has said, however, that Justice Department attorneys effectively narrowed their request to avoid asking for content, even though "it sure seemed like the order sought" it.