Jan 11, 2011

Twitter Responds to WikiLeaks Subpoena

Kudos to Twitter for reacting responsibly and with their subscribers best interests.   It feels like a lot of what the DOJ and similar entities are doing is creating a lot of loud noise, in the hopes that if they yell loud enough people will feel they are being protected and they are doing their jobs properly.   This is no different than airport security and the TSA to me.   I hate flying now- I don't feel safe at all.   I feel harassed and frustrated.   I have been in foreign airports where security works, and having seen that standard our US protocols are a joke.   There is no reason to invade privacy and personal space just because they haven't successfully found a motive or a crime.   While I don't think it is smart to publish state secrets (mostly because of the obvious witch hunt that is sure to follow, as we have seen) I also think there should be a way to handle it that does not include bending laws so they fit an agenda.   Twitter has taken a stand and I hope other companies are brave enough (and smart enough) to follow suit.   And let's get these laws tightened and defined...

Twitter's Response to WikiLeaks Subpoena Should Be the Industry Standard 
ANALYSIS — Twitter introduced a new feature last month without telling anyone about it, and the rest of the tech world should take note and come up with their own version of it.
Twitter beta-tested a spine.
On Friday it emerged that the U.S. government recently got a court order demanding that Twitter turn over information about a number of people connected to WikiLeaks, including founder Julian Assange, accused leaker Pfc. Bradley Manning, former WikiLeaks spokeswoman Birgitta Jonsdottir, and WikiLeaks activist Jacob Appelbaum.

The request was approved by a magistrate judge in Alexandria, Virginia where a federal grand jury is looking into charges against WikiLeaks related to its acquisition and publishing of U.S. government classified information.
The court order came with a gag order that prevented Twitter from telling anyone, especially the target of the order, about the order’s existence.
To Twitter’s credit, the company didn’t just open up its database, find the information the feds were seeking (such as the IP and e-mail addresses used by the targets) and quietly continue on with building new features. Instead the company successfully challenged the gag order in court, and then told the targets that their data was being requested, giving them time to try and quash the order themselves.
Twitter and other companies, notably Google, have a policy of notifying a user before responding to a subpoena, or a similar request for records. That gives the user a fair chance to go to court and try and quash the subpoena. That’s a great policy. But it has one fatal flaw. If the records request comes with a gag order, the company can’t notify anyone. And it’s quite routine for law enforcement to staple a gag order to a records request.
That’s what makes Twitter’s move so important. It briefly carried the torch for its users during that crucial period when, because of the gag order, its users couldn’t carry it themselves. The company’s action in asking for the gag order to be overturned sets a new precedent that we can only hope that other companies begin to follow.
The decision would be laudatory in almost any situation, and may even be unprecendented by a massive tech firm. The only other gag orders that I can think of that were challenged in court was one served on the Internet Archive, one on a small library, and another served on Nicholas Merrill, the president of the small NYC-based ISP Calyx Internet Access, who spent years resisting a National Security Letter order seeking information about one of his clients.
Even more remarkable, Twitter’s move comes as a litany of companies, including PayPal, Mastercard, VISA, and Bank of America, follow the political winds away from the First Amendment, banning donations to WikiLeaks. And Amazon.com voluntarily threw the site off its hosting platform, even though there’s nothing illegal in publishing classified documents.
By standing up for its users, Twitter showed guts and principles. Much of it is likely attributable to Twitter’s general counsel Alexander Macgillivray. As security and privacy blogger Christopher Soghoiannotes, Macgillivray was one of the first law students at Harvards’ Berkman internet law center and at in his previous job at Google “played a major role in getting the company to contribute takedown requests to chillingeffects.org.”
Macgillivray declined to comment to Wired.com through Twitter’s spokeswoman.
Of course, it’s not the first time tech companies have stood up to requests for user data. Google beat back a government order to turn over search logs in 2006, after AOL and Microsoft quietly acquiesced. We’ve seen ISPs stand up for their users when movie studios try to force ISPs turn over user information in mass peer-to-peer lawsuits. And just last year, Yahoo successfully resisted the Justice Department’s argument that it didn’t need a warrant to read a user’s e-mails once the user had read them once.
But there’s not yet a culture of companies standing up for users when governments and companies come knocking with subpoenas looking for user data or to unmask an anonymous commenter who says mean things about a company or the local sheriff.
In the WikiLeaks probe, it’s not yet clear whether the feds dropped the same order on other companies.
Regardless, Twitter deserves recognition for its principled upholding of the spirit of the First Amendment. It’s a shame that PayPal, Amazon, Visa, Mastercard, Bank of America and the U.S. government all failed — and continue to to fail — at their own versions of that test.
Photo: Twitter HQ in San Francisco Credit: Ryan Singel/Wired.com

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