Ernest A. Canning Byon 1/10/2011, 4:35pm PT

Guest blogged by Ernest A. Canning

Follow @WikiLeaks on Twitter? If so, the U.S. government wants your details, and is trying to get at it through an extraordinary legal procedure.

Last month, in covering the landmark appellate court decision, United States vs. Warshak [PDF], which invalidated provisions of the 1986 Stored Communications Act to the extent that the Act permitted the government, without a warrant, in violation of the Fourth Amendment right against unreasonable search and seizure without probable cause, to obtain electronic communications from an ISP (Internet Service Provider), we cautioned that it was unclear whether our courts would arrive at the same conclusion when the government invokes claims of "national security" issues.

That question is about to be tested as the Eric Holder Department of Justice has obtained what Salon's Glenn Greenwald described as a "sweeping" District Court order seeking --- in relation to WikiLeaks' Twitter account --- "all mailing addresses and billing information known for the user, all connection records and session times, all IP addresses used to access Twitter, all known email accounts, as well as the 'means and source of payment,' including banking records and credit cards." ...

This vast trove of information, which Greenwald, a Constitutional attorney and former litigator, postulates may also have been obtained from Google and Facebook, is sought not upon a warrant based upon probable cause that a crime has been committed, but upon the provisions of Section 2703 of the Electronic Communications Privacy Act. That provision authorizes the government, without notice to a subscriber or customer, to obtain information which has been stored by a remote computing service for more than 180 days upon nothing more than a reasonable belief the information is "relevant and material to an ongoing investigation."

The question presented is whether this not only violates WikiLeaks' Fourth Amendment right against unreasonable search and seizure, but whether this intrudes on the First, Fifth and Fourteenth Amendment rights of those who support (or even just "follow") WikiLeaks because of its role in fulfilling the fundamental Fourth Estate function of bringing transparency to both governments and powerful private corporations.

'Serving the governed, not the governors'

In exposing government and corporate perfidy, WikiLeaks fulfills the very reason why we have a First Amendment.

One of the more intriguing features of the WikiLeaks "controversy" is the manner in which it has revealed that many of the talking heads employed by the corporate media don't seem to have a clue when it comes to the core function of journalism --- a point underscored when Brad Friedman covered the absurd efforts by CNN's Don Lemon and by CNN's Jessica Yellin to place the question of whether WikiLeaks is a "terrorist organization" on equal footing with the question of whether Julian Assange is a journalist.

The core function of journalism was described by Justice Hugo Black

in New York Times vs. United States (the 1971 "Pentagon Papers" case) as follows:

In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to have served the governed, not the governors ... The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die...

In Moyers on America , Bill Moyers, one of this nation's finest journalists, provided an ideal example of how far the mainstream media strayed from this core function by offering his lament for Jim Lehrer of PBS' belief that "unless an official says something is so, it isn't news:"

Why were journalists not discussing the occupation of Iraq? Because, says Lehrer, "the word 'occupation'...was never mentioned in the run-up to the war." Washington talked about the invasion as "'a war of liberation,' not a war of occupation. So as a consequence, those of us in journalism never even looked at the issue of occupation."

As it turned out, it was the anti-war movement, marginalized and ignored time and again by the corporate media, which proved to be right all along.

The absurd hatchet jobs, such as CNN's effort to compare Assange to Bonnie and Clyde and other criminals who actually committed crimes, reflect, perhaps, not just a Jim Lehrer form of subservience to those in power, but an embarrassment that flows from the fact that WikiLeaks serves as a poignant reminder of the corporate media's dismal failure to measure up to the underlying purpose of the First Amendment.

'The inexorable march'

The government's subpoena of WikiLeaks' Twitter accounts not only intrudes upon WikiLeaks rights against unreasonable search and seizure, but upon our rights of association and access to truth.

In Warshak, the U.S. Sixth Circuit Court of Appeal recognized that by "obtaining access to someone’s email, government agents gain the ability to peer deeply into his activities" and that the "Fourth Amendment must keep pace with the inexorable march of technological progress, or its guarantees will whither and perish."

But the broad scope of the government's WikiLeaks Twitter subpoena intrudes upon more than WikiLeaks' right against unreasonable search and seizure. According to Glenn Greenwald, Birgitta Jónsdóttir, a former WikiLeaks volunteer and current member of the Icelandic Parliament, complained about the subpoena's extraordinary reach.

"usa government wants to know about all my tweets and more since november 1st 2009," she tweeted on Friday. "do they realize i am a member of parliament in iceland?"

As the BCC reported over the weekend, Jónsdóttir "was the chief sponsor of the Icelandic Modern Media Initiative (IMMI) law, which made Iceland an international haven for investigative journalism and free speech."

"i think i am being given a message, almost like someone breathing in a phone," she wrote in follow-up.

'Encroachment upon personal liberty'

The action taken by the DoJ entails not just government harassment of a legitimate journalistic organization and impairment of the public's right to know, but a direct infringement on the right of associational privacy guaranteed by the First, Fifth and Fourteenth Amendments to the U.S. Constitution.

As noted by the Supreme Court in Bates v. City of Little Rock (1960) --- a case in which the convictions of the custodians of records for local branches of the N.A.A.C.P were overturned after they were found guilty of having refused to furnish city officials with lists of their members --- "privacy in group associations may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs." The Court described the "repressive effect" of such an intrusion as a "significant encroachment upon personal liberty" which can be subordinated only where the state's interest is compelling.

In a 1958 decision, NAACP v. Alabama ex rel. Patterson, the Court stated:

It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the "liberty" assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.

The potential harm by such an intrusion is by no means hypothetical. Recall that, last December, students at Columbia University's School of International and Public affairs were warned by the U.S. State Department that "talking about WikiLeaks on Facebook or Twitter could endanger your job prospects."

In the end, it is not just WikiLeaks and Julian Assange who have been targeted by the government and their corporate media stooges, but democracy itself, for democracy cannot exist without an informed electorate.

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UPDATE: Somewhat related... Ryan Singel at WIRED's Threat Level blog notes Twitter's response to the DoJ's subpeona's "should be the industry standard", as they, unlike most other corporations in similar recent predicaments, actually went to court to challenge the formerly sealed court orders on behalf of their "customers".

Writes Singel:

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.

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Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968).



