by Matthew L. Schafer
On February 8, the District Court for the Eastern District of Virginia unsealed motions made by the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU) challenging an earlier subpoena seeking information related to WikiLeaks supporters’ Twitter accounts.
On January 26, 2011, the EFF and the ACLU filed the motions to vacate a U.S. District Court order requiring Twitter to divulge personal information of alleged WikiLeaks supporters and to unseal the currently sealed court records.
Those January 26 motions were unsealed after the EFF and ACLU filed–and the Court granted–a motion to unseal the motions on January 31. The January 31 motion argued that the information should be available to the public in accordance with “the longstanding principle that the judicial process… should be as open… as possible.”
The motions come after a December 14 court decision, ruling that the microblogging website Twitter must turn over information about certain users to the Department of Justice. Among other things, the subpoena seeks the alleged WikiLeaks supporters subscriber names, user names, mailing addresses, e-mail addresses, records of session times and durations, length of service, network address, and the means and source of payment for the service.
The subpoena also seeks “non-content information associated with the contents of any communication,” and correspondence relating to the accounts. The alleged supporters include Birgitta Jonsdottir, a member of the Icelandic Parliament, as well as PFC Bradley Manning, who is being held in connection with the leak of thousands of classified cables.
In the motion to vacate, the EFF and ACLU argue that the order seeking Twitter account information should be vacated, as “there is no reasonable basis for the Order.” The motion goes on to argue that there are no “specific and articulable facts” to show that the Twitter information sought is relevant to “an ongoing criminal investigation.”
The EFF and ACLU also made First Amendment arguments against the order. First, they argued that even unpopular speech is protected by the First Amendment, and was free from government attempts to “forbid or proscribe advocacy.”
“The Court [has emphasized] that the government may not prohibit ‘dissemination of social, economic and political doctrine’—even that ‘which a vast majority of its citizens believes to be false and fraught with evil consequence,”’ counsel argued, quoting the Supreme Court in Virginia v. Black.
Counsel also argued that the United States Government is on a “fishing expedition into information about all the Parties’ Twitter postings,” and the subpoena violated the parties’ Fourth Amendment rights to be free from unreasonable seizures.
“The Order threatens such [Fourth Amendment] rights because it requires the production of the IP addresses used by Parties at particular dates and times… [potentially] reveal[ing] when Parties were located in particular private spaces,” counsel for the alleged WikiLeaks supporters argued.
The EFF and ACLU also made the argument in a separate motion to unseal all of the court records regarding the case. There, counsel argued that “there is a presumption of access to judicial records like sealed documents under both the common law and the First Amendment.”
“We are troubled that the original court order requiring Twitter to turn over its users’ private records was filed under seal,” Attorney Aden Fine of the ACLU Speech, Privacy and Technology Project said. “Except in truly extraordinary circumstances, Internet users should receive notice and an opportunity to go to court to defend their constitutional rights before their privacy is compromised.”
A hearing regarding the motions to vacate and unseal the court records will take place on February 15 in Virginia.