A federal appeals court has ruled that three suspects targeted in a WikiLeaks investigation have no right to know from which companies, other than Twitter, the government sought to obtain their records.
The ruling, published Friday, upholds a magistrate’s earlier decision that “there exists no right to public notice of all the types of documents filed in a sealed case” and likens the 2703(d) orders in question to grand jury proceedings, which are not subject to public access.
“In fact, they are a step removed from grand jury proceedings, and are perhaps even more sacrosanct,” the judges for the Fourth Circuit Court of Appeals noted in their decision (.pdf). “Because secrecy is necessary for the proper functioning of the criminal investigations at this § 2703(d) phase, openness will frustrate the government’s operations.”
Birgitta Jonsdottir, Jacob Appelbaum and Rop Gonggrijp had sought to obtain a docket list indicating all of the 2703(d) orders the government issued in relation to their case after discovering that the government had issued such an order to Twitter in Dec. 2010, and to Google and Sonic.net in January and April 2011.
Prosecutors had used a 2703(d) order in December 2010 to seek information from Twitter about accounts belonging to the three, as well as WikiLeaks founder Julian Assange and Bradley Manning. Gonggrijp is a Dutch hacker and activist and Jonsdottir was a member of Iceland’s parliament at the time. Appelbaum has served as a U.S. spokesman for WikiLeaks in the past, and both Gonggrijp and Jonsdottir helped WikiLeaks in preparing publication of the “Collateral Murder” video, a video allegedly leaked by former Army intelligence analyst Bradley Manning that showed a U.S. Apache gunship firing on and killing Iraqi civilians and injuring two children. WikiLeaks published the video in April 2010.
A number of sealed dockets in U.S. District Court in Alexandria, Virginia, suggested that there were at least four Justice Department records demands issued in the same manner as the the one sent to Twitter. In May 2011, the American Civil Liberties Union, in conjunction with the Electronic Frontier Foundation, asked a federal judge to open those dockets to the public.
They argued that the documents were subject to the right of public access to judicial records under the First Amendment and common law, and that it was an issue of public interest and national importance to understand the nature and scope of the government’s electronic surveillance of internet activities. The transparency of 2703(d) orders and motions, they said, “would ensure fairness, decrease bias, improve public perception of the justice system, and enhance the chances that the orders are well-justified and not overbroad.”
The order to Twitter had sought full contact details for the accounts of the three targets (phone numbers and addresses), IP addresses used to access the accounts, connection records (“records of session times and durations”) and data transfer information, such as the size of data files sent to someone else and the destination IP.
The secret orders to Google and Sonic.net only pertained to Appelbaum. The initial order to Twitter remained sealed until Twitter succeeded to convince a judge to lift the seal to notify the suspects that their records were being sought so that they could fight the order. Both Sonic and Google asked the court to lift the seal on the orders so that Appelbaum could be told about the requests. A court agreed to unseal the Sonic order in August 2011.
The order to Google directed the search giant to hand over the IP address Appelbaum used to log into his Gmail account as well as the email and IP addresses of anyone he communicated with going back to Nov. 1, 2009. That’s the month that Bradley Manning is believed to have first made contact with WikiLeaks before allegedly leaking the “Collateral Murder” video and another U.S. Army video, as well as more than a million classified and otherwise sensitive military and U.S. State Department documents. The order to Sonic sought the same type of information, including the email addresses of people with whom Appelbaum communicated, but did not seek the content of that correspondence.
Sonic told the Wall Street Journal that it sought to fight the order but lost, and was forced to turn over the requested information. Challenging the order was “rather expensive, but we felt it was the right thing to do,” Sonic’s chief executive, Dane Jasper, told the newspaper.
Google has never disclosed if it fought the order that it received.
“Obviously, we follow the law like any other company,” a Google spokeswoman told CNET. “When we receive a subpoena or court order, we check to see if it meets both the letter and the spirit of the law before complying. And if it doesn’t, we can object or ask that the request is narrowed.”
Court: WikiLeaks Suspects Denied List of Companies Who Received Orders for Records
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