Justice Department Confirms WikiLeaks Investigation Continues as Google Claims It Fought Gag Orders

The spokesperson for Eastern District of Virginia has confirmed that the United States Justice Department’s investigation into WikiLeaks continues. The confirmation came when asked to comment on search warrants that were served against Google for data associated with three of the media organization’s staff members. And, in an interview for The Washington Post, a lawyer for Google explained that the company had fought the gag orders, which prohibited them from informing WikiLeaks staff about the search warrants.

Sarah Harrison, investigations editor, Kristin Hrafnsson, spokesperson and Joseph Farrell, section editor, each had search warrants served against them in March 2012.

The warrants required the disclosure of: all contents of emails associated, “including stored or preserved copies of emails sent to and from the account, draft emails and deleted emails; all records or other information related to the identity of the account (associated phone numbers, IP addresses, types of services utilized, account status, log files, any credit or bank account numbers associated); all records or other information “stored at any time by an individual using the account; any communications the person had with Google.

It was not until December 23, 2014, that Google could finally send notifications to the staff members that their communications and data associated with their Google accounts had been targeted.

Attorney Albert Gidari told the Post that the company has a policy of fighting “all gag orders” that are imposed to prevent customers from learning “their emails and other data were sought by the US government.”

“From January 2011 to the present, Google has continued to fight to lift the gag orders on any legal process it has received on WikiLeaks,” Gidari declared. He indicated that there are “affidavits and applications underlying the orders,” which remain sealed and Google is fighting to have them unsealed.

The Post acknowledges a difference in how Twitter responded when it was subpoenaed by the government and ordered to provide data related to the WikiLeaks account and the accounts of some of the organization’s known volunteers. The company immediately informed the government they would inform WikiLeaks of the subpoenas. Controversy erupted, and Twitter fought the subpoena until a judge upheld it as constitutional in November 2011.

This publicity upset the Justice Department. The name of a prosecutor, Tracy McCormick, and her phone number had been on the disclosed records. The government did not want to make the same mistake when serving search warrants for data from Google. As a result, Gidari said the company had to litigate “up and down through the courts,” in order to get the orders changed so they could notify WikiLeaks staff.

The American Civil Liberties Union has challenged these kind of gag orders, especially when they are used to keep users or subscribers from learning about sweeping warrants for their data.

Although it was not a federal case, in July 2013, the Manhattan District Attorney served warrants related to 381 Facebook accounts, “as part of an investigation into allegations of social security fraud and false claims of medical disabilities.” The warrants were approved by the New York County Supreme Court. Facebook was gagged from informing its users that the warrants targeted their private messages, chat histories, photographs, any comments on any pages of friends or family, etc, according to a brief from the ACLU.

“The First Amendment requires such gag orders to be narrowly tailored to serve a compelling government interest. Here, the District Attorney offered only generalized risks of disclosing the existence of the warrants, and in any event the gag order was not narrowly tailored because it was never limited in duration by its terms—when issued it imposed a gag in perpetuity,” the ACLU argued.

The nature of the gag order in the case of the search warrants against WikiLeaks is unknown, however, it is most likely designed to be in force indefinitely.

To the extent that search warrants are not particularized enough and allow what amounts to a fishing expedition by a grand jury, that presents constitutional issues as well. Google, as a custodian of WikiLeaks staff members’ records, is the only party in a position to challenge the constitutionality of a search warrant or subpoena, especially if the government is gagging the company from notifying those targeted.

Lawyers for WikiLeaks staff initially were upset because it appeared Google had not done all that much to challenge the government. The notice that WikiLeaks staff received on December 23 did not contain any details on any legal actions taken to defend their rights. And the news that Google had taken a stand was called a “positive development” by one of the organization’s attorneys, Michael Ratner.

There are at least a “dozen outstanding search warrants and court orders” that attorney Ahmed Ghappour says have been issued but remain sealed. He is helping journalist Alexa O’Brien fight for the unsealing of those documents. “That such a broad dragnet could remain secret for so long defies principles such as transparency, speech and privacy, all fundamental to our democracy,” he declared in an interview with the Post.

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The issue of search warrants served against WikiLeaks has received very limited attention from US media. The Post deserves credit for being one of the first major establishment news media outlets to give it the coverage and attention deserved.

This is the extent of the New York Times coverage thus far.

While the media organization remains reserved or silent in the face of a federal government claiming universal jurisdiction to investigate a foreign media organization for alleged offenses ranging from espionage to conspiracy, it continues to cite documents published by WikiLeaks in news reports. A diplomatic cable provided to the organization by US military whistleblower Chelsea Manning was referenced in this story on India replacing its envoy to the United States.

As previously stated, imagine the US government had served search warrants on the editors of The New York Times. Imagine Google received these warrants, and they were as broad as the ones issued against WikiLeaks editors—and Google could not tell the New York Times. The entire US press corps would be livid, as they rightfully were when it became known that the Justice Department had seized the Associated Press’ phone records for a leak investigation.

It is easy to shrug this off as being different because of one’s view that WikiLeaks “differs from journalism,” as the Washington editorial board once argued. But the same laws that should protect WikiLeaks are the same laws that should protect the New York Times.

The same legal precedents established in the criminal investigation against WikiLeaks will be the same precedents that may eventually be used to investigate the Times, if the Justice Department ever feels it is necessary.

The escalation in the number of leak investigations and prosecutions suggests a future where journalists at establishment media organizations are increasingly likely to be targeted like WikiLeaks. Out of pure self-interest, if nothing else, there should be more interest and coverage of the government’s continued investigation.