Aug 242011
 
 August 24, 2011  Court, Online, Surveillance

Earlier today, the Wikileaks Twitter account tweeted:

Our Californian DNS hoster, Dynadot, has received a PATRIOT act production order for information on Julian Assange. It has complied.

and:

The production order seeks all available information on Julian Assange and WikiLeaks, for the US grand jury in Alexandria, Washington.

Well, no, and no, and no.

The PATRIOT Act claim was reiterated in a subsequent editorial on their web site, but as a quick perusal of the order demonstrates, this had nothing to do with the PATRIOT Act. The order was pursuant to the Stored Communications Act (SCA), part of ECPA, and was not for “all available information.” It was identical to the 2703(d) order  to compel production of non-content information that had been issued to Twitter on the same date, January 4, 2011. And like the Twitter order, it was filed under seal and barred the recipient from notifying Wikileaks or Assange of the order.

Unlike the Twitter situation, however, where Twitter successfully fought to notify their customers so that they could challenge the order, there is no indication that Dynadot successfully fought the gag order. Indeed, there is no indication as to whether they fought the order at all, as it seems that they only notified Wikileaks and Assange after they complied with it. Dynadot declined to discuss the matter, saying “Per our Privacy Policy, Dynadot does not provide information concerning customer accounts with anyone other than the account holder.” Unless Wikileaks puts the question to Dynadot and shares the answer, we may not know until court records are eventually (and hopefully) unsealed.

In the meantime, Wikileaks has not indicated that it intends to take any legal action in response to the order. While several individuals associated with Wikileaks – Birgitta Jonsdottir, Jacob Appelbaum, and Rop Gonggrijp. – all retained U.S. legal counsel to challenge the Twitter order and continue to fight it, Wikileaks and Assange did not fight it and apparently have not fought it for their accounts.

Wikileaks’ failure to arrange for legal counsel in the U.S. and failure to vigorously fight these orders may have little impact on them in the big picture, but it sets a dangerous precedent and only reinforces government efforts to compel production of records while gagging the recipient of such orders. I really wish they would fight this. At the very least, having U.S. legal counsel might spare them from making erroneous and credibility-challenging claims about the nature of actions against them. The PATRIOT Act error was not their first erroneous set of claims. They also seemingly misunderstood or misinterpreted the Twitter order.

If Wikileaks really wants to protect free speech, why isn’t it fighting these orders?

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