Guest blogged by Ernest A. Canning
Follow @WikiLeaks on Twitter? If so, the U.S. government wants your details, and is trying to get at it through an extraordinary legal procedure.
Last month, in covering the landmark appellate court decision, United States vs. Warshak [PDF], which invalidated provisions of the 1986 Stored Communications Act to the extent that the Act permitted the government, without a warrant, in violation of the Fourth Amendment right against unreasonable search and seizure without probable cause, to obtain electronic communications from an ISP (Internet Service Provider), we cautioned that it was unclear whether our courts would arrive at the same conclusion when the government invokes claims of “national security” issues.
That question is about to be tested as the Eric Holder Department of Justice has obtained what Salon’s Glenn Greenwald described as a “sweeping” District Court order seeking — in relation to WikiLeaks’ Twitter account — “all mailing addresses and billing information known for the user, all connection records and session times, all IP addresses used to access Twitter, all known email accounts, as well as the ‘means and source of payment,’ including banking records and credit cards.” …
This vast trove of information, which Greenwald, a Constitutional attorney and former litigator, postulates may also have been obtained from Google and Facebook, is sought not upon a warrant based upon probable cause that a crime has been committed, but upon the provisions of Section 2703 of the Electronic Communications Privacy Act. That provision authorizes the government, without notice to a subscriber or customer, to obtain information which has been stored by a remote computing service for more than 180 days upon nothing more than a reasonable belief the information is “relevant and material to an ongoing investigation.”
The question presented is whether this not only violates WikiLeaks’ Fourth Amendment right against unreasonable search and seizure, but whether this intrudes on the First, Fifth and Fourteenth Amendment rights of those who support (or even just “follow”) WikiLeaks because of its role in fulfilling the fundamental Fourth Estate function of bringing transparency to both governments and powerful private corporations.
‘Serving the governed, not the governors’
In exposing government and corporate perfidy, WikiLeaks fulfills the very reason why we have a First Amendment.
One of the more intriguing features of the WikiLeaks “controversy” is the manner in which it has revealed that many of the talking heads employed by the corporate media don’t seem to have a clue when it comes to the core function of journalism — a point underscored when Brad Friedman covered the absurd efforts by CNN’s Don Lemon and by CNN’s Jessica Yellin to place the question of whether WikiLeaks is a “terrorist organization” on equal footing with the question of whether Julian Assange is a journalist.
The core function of journalism was described by Justice Hugo Black
in New York Times vs. United States (the 1971 “Pentagon Papers” case) as follows:
In Moyers on America
As it turned out, it was the anti-war movement, marginalized and ignored time and again by the corporate media, which proved to be right all along.
The absurd hatchet jobs, such as CNN’s effort to compare Assange to Bonnie and Clyde and other criminals who actually committed crimes, reflect, perhaps, not just a Jim Lehrer form of subservience to those in power, but an embarrassment that flows from the fact that WikiLeaks serves as a poignant reminder of the corporate media’s dismal failure to measure up to the underlying purpose of the First Amendment.
‘The inexorable march’
The government’s subpoena of WikiLeaks’ Twitter accounts not only intrudes upon WikiLeaks rights against unreasonable search and seizure, but upon our rights of association and access to truth.
In Warshak, the U.S. Sixth Circuit Court of Appeal recognized that by “obtaining access to someone’s email, government agents gain the ability to peer deeply into his activities” and that the “Fourth Amendment must keep pace with the inexorable march of technological progress, or its guarantees will whither and perish.”
But the broad scope of the government’s WikiLeaks Twitter subpoena intrudes upon more than WikiLeaks’ right against unreasonable search and seizure. According to Glenn Greenwald, Birgitta Jónsdóttir, a former WikiLeaks volunteer and current member of the Icelandic Parliament, complained about the subpoena’s extraordinary reach.
“usa government wants to know about all my tweets and more since november 1st 2009,” she tweeted on Friday. “do they realize i am a member of parliament in iceland?”
As the BCC reported over the weekend, Jónsdóttir “was the chief sponsor of the Icelandic Modern Media Initiative (IMMI) law, which made Iceland an international haven for investigative journalism and free speech.”
“i think i am being given a message, almost like someone breathing in a phone,” she wrote in follow-up.
‘Encroachment upon personal liberty’
The action taken by the DoJ entails not just government harassment of a legitimate journalistic organization and impairment of the public’s right to know, but a direct infringement on the right of associational privacy guaranteed by the First, Fifth and Fourteenth Amendments to the U.S. Constitution.
As noted by the Supreme Court in Bates v. City of Little Rock (1960) — a case in which the convictions of the custodians of records for local branches of the N.A.A.C.P were overturned after they were found guilty of having refused to furnish city officials with lists of their members — “privacy in group associations may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.” The Court described the “repressive effect” of such an intrusion as a “significant encroachment upon personal liberty” which can be subordinated only where the state’s interest is compelling.
In a 1958 decision, NAACP v. Alabama ex rel. Patterson, the Court stated:
The potential harm by such an intrusion is by no means hypothetical. Recall that, last December, students at Columbia University’s School of International and Public affairs were warned by the U.S. State Department that “talking about WikiLeaks on Facebook or Twitter could endanger your job prospects.”
In the end, it is not just WikiLeaks and Julian Assange who have been targeted by the government and their corporate media stooges, but democracy itself, for democracy cannot exist without an informed electorate.
UPDATE: Somewhat related… Ryan Singel at WIRED’s Threat Level blog notes Twitter’s response to the DoJ’s subpeona’s “should be the industry standard”, as they, unlike most other corporations in similar recent predicaments, actually went to court to challenge the formerly sealed court orders on behalf of their “customers”.
Writes Singel:
Twitter beta-tested a spine.
Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968).
thought provoking. Question, is the 1st Amendment applicable to Wikileaks, a foreign entity?
I follow wikileaks on twitter and so should everybody.
If you dont have a twitter account, get one, then find Wikileaks and follow.
An excellent article, thank you.
Hello WingnutSteve,
I am always glad to see an honest(sic) wingnut. About the first amendment might I point out that you are like all other wingnuts (sure of yourself ((actually full of yourself)) and lacking knowledge of what you speak). Why don’t you find an adult to get the first amendment for you or maybe you might be able to do it by yourself and actually read in at least three times and try to understand the meaning of the words. If and when you do? you will understand why your question never needs to be asked; that is similar to Lincoln’s Gettysburg Address about “these truths being self-evident”.
I’d highly recommend that you re-read this piece, Wingnutsteve.
The 1st, 5th & 14th Amendment issue arises in relation to the right to associational privacy.
In Bates, it was not the 1st, 5th & 14th Amendment rights of the NAACP custodians of record which were violated but the right of the members of the NAACP to remain anonymous to the government. In Bates the Supreme Court overturned the convictions of the custodians of record because the city’s demand for the lists violated the right to associational privacy of the “members” of the NAACP.
Here, what is at stake is not WikiLeaks’ right to associational privacy. It is the right of those who support or simply follow WikiLeaks on Twitter to remain anonymous to the government. It is their 1st, 5th & 14th amendment right which will be violated by the subpoena.
Wingnutsteve — I think Canning is talking policy and hasn’t tried to address the issue of whether the First Amendment applies to someone like Birgitta Jónsdóttir. Twitter itself is a US organization.
Those who support or follow WikiLeaks on Twitter, Paul McCarthy, are by no means confined to Birgitta Jónsdóttir, or other members of the legislatures of another country.
I think it safe to assume that large numbers of U.S. citizens have either supported or followed WikiLeaks on Twitter, including students at Columbia University’s School of International and Public Affairs, whose future ability to obtain government employment is at risk if the government is permitted this intrusion into their associational privacy.
It is their 1st Amendment rights that provide the basis for my legal analysis.
Relax Kenneth, I misread a sentence in Ernest’s article and so I asked a question. He answered it, I reread the sentence and realized my mistake. Thanks for your help Mr. Canning, again it was a very thought provoking piece.
And of course it’s always kinda funny to see how a simple question can cause so much anger. Kenneth, methinks you are the one who is full of yourself.
Kenneth Fingeret @ 3:
Your personal attacks on WingnutSteve are out of line and against our few rules for posting comments here. I’m quite certain you can make the same point without resorting to personal attacks that way. In the future, I will need to simply delete such posts, which I really don’t like to do! So please consider this a friendly warning.
Unfortunately, I only saw the comment now, after it’s been up all day (and after Steve has responded). But, Steve, given you were the one attacked here, if you’d like me to remove his post, just let me know.
No worries Brad, I’m used to childlike comments by Mr. Fingeret such as this:
COMMENT #15 [Permalink]
… Kenneth Fingeret said on 11/17/2010 @ 4:25 am PT…
Hello Brad,
Kudos for attempting a dialog with the wingtard nuts. Re comment # 14 from WingnutSteve. Have you or would you like the first hand experience of being raped yourself. If you like I am sure that someone you know could provide it to you.
The 14th Amendment applies to the states and sub-governments within the state, like counties and cities, so it would not apply to the federal DOJ.
The Bill of Rights does apply to the DOJ and I agree with Mr. Canning that the DOJ induced the federal district court to join the DOJ in violating several of the amendments in the Bill of Rights.
You are technically correct, Dredd, but both the 5th and 14th amendments contain the identical “due process” language, making the Court’s previous analysis of the right to associational privacy in Bates, et al., applicable to the DoJ.