Jan 122011
 January 12, 2011  Posted by  Court, Surveillance

Earlier this week, I blogged about the order Twitter received to produce non-content information concerning the accounts of individuals who have been associated with WikiLeaks and the DOJ’s investigation into leaked files. In the blog entry, I noted the confusing and varying interpretations of the scope of the order:

Last night, WikiLeaks tweeted:

WARNING all 637,000 @wikileaks followers are a target of US gov subpoena against Twitter, under section 2. B http://is.gd/koZIA

Does following someone on Twitter mean that you have accessed or connected to their Account? Or by following someone, are you merely requesting that Twitter serve you tweets from that person’s account, in which case you have not connected to the account at all?

I also wrote:

WikiLeaks may genuinely believe that the order compels production of information on followers. They may be right, but then again, they may be wrong. Alternatively, and less honorably, they may be trying to engender fear – or anger – among their followers and the public as part of media incitement and fund-raising campaigns.

In any event, I hope the real legal experts offer their interpretation of the order and that the public and mainstream media doesn’t just uncritically repeat WikiLeaks’ assertion as if it’s correct.

It took a few downright groveling/pleading emails, but Orin Kerr decided that he would, indeed, blog about the order and what it means. Yesterday, he posted his thoughts on The Volokh Conspiracy. If you read the interaction between us in the Comments under the blog, he makes clear that 2703(d) orders were designed to protect accounts from fishing expeditions of the kind suggested in others’ interpretations of the order. Orin writes:

Each (d) order needs to prove specific and articulable facts to believe that the records in that account are relevant and material to the ongoing investigation.

And in a more strongly worded reply, he says, referring to statements made by Julian Assange’s lawyer, Mark Stephens, in a BBC interview:

If people are interpreting [Mark] Stephens’ words as saying that the one (d) order gives the government access to the account records and login information of 634,400 people, then that is false.

So there you have another interpretation of the order’s scope – this one from a former DOJ attorney.

Great thanks to Orin for sharing his expertise and to John Wesley Hall of FourthAmendment.com, who privately clarifies points for me when I’m confused (as is too often the case!)

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