[governance] Secret Orders Target Email: WikiLeaks Backer's Information Sought

[Riaz K Tayob]

[affected party not party to the case?]

<http://on.wsj.com/pWFyRw>
OCTOBER 10, 2011
Secret Orders Target Email
WikiLeaks Backer's Information Sought
By JULIA ANGWIN
The U.S. government has obtained a controversial type of secret court
order to force Google Inc. and small Internet provider Sonic.net Inc.
to turn over information from the email accounts of WikiLeaks
volunteer Jacob Appelbaum, according to documents reviewed by The Wall
Street Journal.
Sonic said it fought the government's order and lost, and was forced
to turn over information. Challenging the order was "rather expensive,
but we felt it was the right thing to do," said Sonic's chief
executive, Dane Jasper. The government's request included the email
addresses of people Mr. Appelbaum corresponded with the past two
years, but not the full emails.
Both Google and Sonic pressed for the right to inform Mr. Appelbaum of
the secret court orders, according to people familiar with the
investigation. Google declined to comment. Mr. Appelbaum, 28 years
old, hasn't been charged with wrongdoing.
The court clashes in the WikiLeaks case provide a rare public window
into the growing debate over a federal law that lets the government
secretly obtain information from people's email and cellphones without
a search warrant. Several court decisions have questioned whether the
law, the Electronic Communications Privacy Act, violates the U.S.
Constitution's Fourth Amendment protections against unreasonable
searches and seizures.
WikiLeaks is a publisher of documents that people can submit
anonymously. After WikiLeaks released a trove of classified government
diplomatic cables last year, U.S. Attorney General Eric Holder said
the U.S. was pursuing an "active criminal investigation" of WikiLeaks.
Passed in 1986, the Electronic Communications Privacy Act is older
than the World Wide Web, which was dreamed up in 1989. A coalition of
technology companies—including Google, Microsoft Corp. and AT&T
Corp.—is lobbying Congress to update the law to require search
warrants in more digital investigations.
The law was designed to give the same protections to electronic
communications that were already in place for phone calls and regular
mail. But it didn't envision a time when cellphones transmitted
locations and people stored important documents on remote services,
such as Gmail, rather than on their own computers.
Law enforcement uses the law to obtain some emails, cellphone-location
records and other digital documents without getting a search warrant
or showing probable cause that a crime has been committed. Instead the
law sets a lower bar: The government must show only "reasonable
grounds" that the records would be "relevant and material" to an
investigation.
As a result, it can be easier for law-enforcement officers to see a
person's email information than it is to see their postal mail.
Another significant difference: A person whose email is inspected this
way often never knows a search was conducted. That's because court
orders under the 1986 law are almost always sealed, and the Internet
provider is generally prohibited from notifying the customer whose
data is searched. By contrast, search warrants are generally delivered
to people whose property is being searched.
The secrecy makes it difficult to determine how often such court
orders are used. Anecdotal data suggest that digital searches are
becoming common.
In 2009, Google began disclosing the volume of requests for user data
it received from the U.S. government. In the six months ending Dec.
31, Google said it received 4,601 requests and complied with 94% of
them. The data include all types of requests, including search
warrants, subpoenas and requests under the 1986 law.
At a Senate hearing in April on whether the 1986 law needs updating,
Associate Deputy Attorney General James A. Baker cautioned Congress
"that raising the standard for obtaining information under ECPA may
substantially slow criminal and national security investigations."
In May, the ECPA's author, U.S. Sen. Patrick Leahy (D., Vt.), said the
original law is "significantly outdated and outpaced by rapid changes
in technology." He introduced a bill adopting many of the
recommendations of the technology coalition lobbying for changes to
the law.
Some federal courts have questioned the law's constitutionality. In a
landmark case in December, the U.S. Court of Appeals for the Sixth
Circuit ruled that the government violated the Fourth Amendment when
it obtained 27,000 emails without a search warrant.
"The police may not storm the post office and intercept a letter, and
they are likewise forbidden from using the phone system to make a
clandestine recording of a telephone call—unless they get a warrant,"
Judge Danny Boggs wrote in the 98-page opinion. "It only stands to
reason that, if government agents compel an [Internet service
provider] to surrender the contents of a subscriber's emails, those
agents have thereby conducted a Fourth Amendment search."
In August, the U.S. District Court of the Eastern District of New York
over-ruled a government request to obtain cellphone location records
without a warrant, calling it "Orwellian." Judge Nicholas Garaufis
wrote: "It is time that the courts begin to address whether
revolutionary changes in technology require changes to existing Fourth
Amendment doctrine." The government has appealed.
The WikiLeaks case became a test bed for the law's interpretation
earlier this year when Twitter fought a court order to turn over
records from the accounts of WikiLeaks supporters including Mr.
Appelbaum.
Mr. Applebaum is a developer for the Tor Project Inc., a Walpole,
Mass., nonprofit that provides free tools that help people maintain
their anonymity online. Tor's tools are often used by people living in
countries where Internet traffic is monitored by the government. Tor
obtains some of its funding from the U.S. government.
Mr. Appelbaum has also volunteered for WikiLeaks, which recommends
people use Tor's tools to protect their identities when submitting
documents to its website. In April 2010, Mr. Appelbaum's involvement
in WikiLeaks was inadvertently disclosed publicly in a blog post on
the website of the Committee to Protect Journalists. The reporter,
Danny O'Brien, said Mr. Appelbaum had thought he was speaking
anonymously. Mr. O'Brien said he later offered to remove Mr.
Appelbaum's name from the post.
After the blog post appeared, Mr. Appelbaum became a public advocate
for WikiLeaks. In June, he gave a speech at a Northern California
technology camp where he called WikiLeaks founder Julian Assange one
of the "biggest inspirations in my life."
On Dec. 14, the U.S. Department of Justice obtained a court order for
information from the Twitter account of people including Mr. Appelbaum
and WikiLeaks supporters Birgitta Jonsdottir, a member of the
Icelandic parliament, and Rop Gonggrijp, a Dutch computer programmer.
Neither has been charged with wrongdoing.
The order sought the "Internet protocol," or IP, addresses of the
devices from which people logged into their accounts. An IP address is
a unique number assigned to a device connected to the Internet.
The order also sought the email addresses of the people with whom
those accounts communicated. The order was filed under seal, but
Twitter successfully won from the court the right to notify the
subscribers whose information was sought.
On Jan. 26, attorneys for Mr. Appelbaum, Mr. Gonggrijp and Ms.
Jonsdottir jointly filed a motion to vacate the court order. They
argued, among other things, that because IP addresses can be used to
locate a person in "specific geographic destinations," it constituted
a search under the Fourth Amendment and thus required a warrant.
The government argued that IP addresses don't reveal precise location
and are more akin to phone numbers. At a Feb. 15 hearing, Assistant
U.S. Attorney John S. Davis said, "this is a standard… investigative
measure that is used in criminal investigations every day of the year
all over this country."
On March 11, U.S. Magistrate Judge Theresa Carroll Buchanan denied the
WikiLeaks supporters' motion. They have appealed.
Twitter hasn't turned over information from the accounts of Mr.
Appelbaum, Ms. Jonsdottir and Mr. Gonggrijp, according to people
familiar with the investigation.
The court orders reviewed by the Journal seek the same type of
information that Twitter was asked to turn over. The secret Google
order is dated Jan. 4 and directs the search giant to hand over the IP
address from which Mr. Appelbaum logged into his gmail.com account and
the email and IP addresses of the users with whom he communicated
dating back to Nov. 1, 2009. It isn't clear whether Google fought the
order or turned over documents.
The secret Sonic order is dated April 15 and directs Sonic to turn
over the same type of information from Mr. Appelbaum's email account
dating back to Nov. 1, 2009.
On Aug. 31, the court agreed to lift the seal on the Sonic order to
provide Mr. Appelbaum a copy of it. Sonic Chief Executive Mr. Jasper
said the company also sought to unseal the rest of its legal filings
but that request "came back virtually entirely denied."
-- 


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