Twitter was willing to challenge a grand jury subpoena, but it is unlikely the same can be said about Google and Facebook.
Today is a global day to defend freedom of speech, according to the call for action from Anonymous, an online protest group dedicated to internet freedom. The group feels threatened by government interference and the failure of corporate media to fulfill their vital role in checking the abuse of authority. The outcry is sparked by the intensified government crackdown on WikiLeaks. In an open letter to the Department of Justice, posted to its blog, Anonymous writes:
“We are regretful of your actions to attempt to retrieve information from Twitter about the account belonging to Wikileaks, as by doing so you are attempting to remove the anonymity of the poster and by extension, their right to speech.”
The letter was posted last week as it came to light that the Department of Justice had issued a secret subpoena on Twitter to obtain the accounts and private messages of former WikiLeaks volunteer and member of the Icelandic Parliament, Birgitta Jonsdottir, and Dutch hacker Rop Gongrijp in addition to Julian Assange and Bradley Manning. The subpoena came with a gag order preventing Twitter from notifying the interrogated and was meet by hard criticism. The Icelandic interior minister Ogmundur Jonasson told Icelandic broadcaster RUV that:
"[It is] very serious that a foreign state, the United States, demands such personal information of an Icelandic person, an elected official....This is even more serious when put [in] perspective and concerns freedom of speech and people's freedom in general.”
And the subpoena is indeed very general. It targets not only the investigated individuals, but also requests all records and other information relating to Twitter accounts associated with WikiLeaks "including non-content information associated with the contents of any communication or file stored by or for the account(s).” This includes WikiLeaks followers on Twitter. A recent article on Bloomsberg News cites Assange’s lawyer Mark Stephens as saying:
“The agency’s subpoena of Twitter is “grossly overbroad” and would give prosecutors access to data on a member of Iceland’s parliament and more than 634,000 people who follow WikiLeaks’ so-called tweets on the site.”
Sadly, the request for private information is not unique. According to the New York Times, the subpoena issued on Twitter is noteworthy, not because of its content, but because it has been unsealed. In fact more than 50,000 of these orders, known as national security letters, are sent every year, but they come with a seal of secrecy that prevents the company from revealing its existence to the investigated. By challenging the order legally, Twitter shines as a positive example of a private company that sticks to its ethical policies and stands up for the rights of its users.
It leaves one question lingering in the air: What happens to the remaining unsealed national security letters? Do the recipients simply succumb to government pressure and abide by the requests? WikiLeaks, suspecting the subpoena is a tactic in a larger effort by the Department of Justice to prosecute the organization, speculates that similar subpoenas have been filed to Facebook and Google. Both have refused to comment on the case.
One might ask what legitimizes the national security letters in the first place?
Interviewed by Bloomsberg News, Mark Stephens said that WikiLeaks is nothing but an organization that publishes leaked documents on its Web site and that the subpoena violates the U.S. Constitution’s Fourth Amendment, which prohibits unreasonable government searches. FBI, however, holds that the subpoenas, issued on the basis of a clause in the U.S. Patriot Act, are necessary for "obtaining such records [that] will make the process of identifying computer criminals and tracing their internet communications faster and easier."
Former Senator Russ Feingold has been critical of the law, according to the New York Times, saying it was long past time for Congress “to rein in the use of national security letters,” and that the law was just “about the legislative branch providing an adequate check on the executive branch.” In 2007 criticism was raised from within the FBI, as the inspector general found the agency had abused the guidelines for requiring secret letters by including too many peripheral people in its searches. Adding to the law's questionable legitimacy, a federal court recently ruled the national security letters insufficient to order disclosure of contents of communication. The ruling, however, is binding neither in Virginia, where the subpoena was issued, nor in San Francisco, where Twitter is based along with Facebook and Google. Thus it is in the hands of these companies to challenge the secrecy of the letters.
Nicholas Merrill, founder of the small internet company Calyx Internet Access Corporation, was the first person to file a constitutional challenge against a subpoena issued under the U.S. Patriot Act in 2004. He told the New York Times,"I commend Twitter’s policy of notifying their customers of government requests for their private data and for their challenging and subsequently removing the gag order.”
But Merrill’s lawyer, Jameel Jaffer, does not place much confidence that other companies will show the same spine as Twitter. He argues that the problem of the system is that the privacy rights at stake are not those of the companies holding the information, but of the people whose records are held.
"People used to be the custodians of their own records, their own diaries. Now third parties are custodians of all that,” he said. "Everything you do online is entrusted to someone else — unless you want to go completely off the grid, and I’m not even sure that is possible,” he told the New York Times.
At the biggest hacking conference in Europe, Gonggrijp, now subject to interrogation, raised a similar question: How is it possible to assure confidentiality when private companies vulnerable to political pressure control the infrastructure of the Internet? In his opening speech, he warned about the blind trust many people have in these companies:
“Apple, Google, Facebook...will try to make all of humanity enter their remaining secrets...they’ll further lock us out of our own hardware and they’ll eventually attempt to kill privacy and anonymity altogether. ...We still have to tell most of the people out there, but privacy is not in fact brought about by some magic combination on the intentionally confusing privacy radiobutton page on Facebook.”
The five targeted now feel the consequences of entrusting private companies with personal information. On Jan. 7 Gongrijp and Jonsdottir received emails from Twitter stating that, “Twitter will respond to this request in 10 days from the date of this notice 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."
Even if Twitter challenged the secrecy, the subpoena remains. The investigated have until Monday to stop the information from being handed over. In Iceland the U.S. Ambassador, Luis E. Arreaga, has been called to a meeting and Jonsdottir is currently in contact with U.S.-based lawyers at the Electronic Freedom Foundation. But even if the five win the right to keep their information confidential, many other companies might already have responded to similar requests. Anonymous warns that censorship and journalistic abdication have left us unaware and unable to hold our governments accountable. They call us to join forces Saturday:
“The time has come for the people of the world to take an active part in governing their own lives and freedoms. The world must become aware that its freedoms are in jeopardy. Today, Twitter, tomorrow, what?”
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