Court: Government Need Not Justify Warrantless Data Requests

by Brian Donohue

A Virginia appeals court on Friday denied a right-to-access order filed by the Electronic Frontier Foundation and the American Civil Liberties Union on behalf of Icelandic parliamentarian Birgitta Jonsdottir and computer security researchers Jacob Appelbaum and Rop Gonggrijp. The denial confirms a lower court's ruling that neither those individuals nor the public has the right to see the documents a court uses to justify its warrantless acquisition of information.The right-to-access order sought to obtain an unknown number of documents obtained from Twitter that government prosecutors submitted to the courts during the investigation of Wikileaks.

The right-to-access order did not challenge the court’s November 2011 decision that required Twitter to turn over Jonsdottir's, Appelbaum's, and Gonggrijp’s records, but rather attempted to unseal the various documents submitted by the prosecution.

The premise of Jonsdottir's, Appelbaum's, and Gonggrijp’s argument was that the order documents should be unsealed because they contain information the American public is deeply interested in, namely the ongoing debate about the Wikileaks publications and the extent and nature of the government’s electronic surveillance activities. In addition, the appellants argued a number of legal precedent- and technicality-based points challenging the lower court's decision.

In essence, the appeals and the circuit court agreed with the lower court and said "there are legitimate concerns that publication of the documents at this juncture will hamper the investigatory process."

The appeals court reasoned that the lower court’s judge was correct to keep the documents sealed because the government’s interest in maintaining the secrecy of its investigation outweighed the appellants' contentions. The appeals court went on to argue that public interest in the Wikileaks investigation was not a justification for public access and that the appellants' more technical and procedural arguments against the magistrate judge and her decision were unmerited. f]

“This case shows just how easy it is for the government to obtain information about what people are doing on the Internet, and it highlights the need for our electronic privacy laws to catch up with technology,” said Aden Fine, the ACLU attorney who argued the case. “The government should not be able to get private information like this without getting a warrant and also satisfying the standard required by the First Amendment, and it shouldn’t be able to do so in secret except in unusual circumstances.”

Fine went on to argue that this case offered the rare opportunity for the public to learn about the government’s increasing use of electronic surveillance, but that the decision ultimately made it easier for the government to maintain the secrecy of its electronic surveillance activities.

The acquisition of Jonsdottir's, Appelbaum's, and Gonggrijp’s Twitter records relates to the U.S. government’s ongoing investigation of Wikileaks and their publication of U.S. State Department cables in 2010 and 2011. The government order directed Twitter to hand over the “names, usernames, personal contact information, account information, connection records, financial data, length of service, direct messages to and from email addresses and Internet Protocol addresses for all communications between November 1, 2009, and December 14, 2010.”

http://threatpost.com/en_us/blogs/court-government-need-not-justify-warrantless-data-requests-012813