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US Judge Orders Twitter To Give Up WikiLeaks Data
cultiv8 writes "A US judge Friday ordered Twitter to hand over the data of three users in contact with the activist site WikiLeaks. 'US Magistrate Judge Theresa Buchanan rejected arguments raised by the ACLU, the Electronic Frontier Foundation, and a host of private attorneys representing the Twitter account holders, who had asserted that their privacy was protected by federal law, the First Amendment, and the Fourth Amendment. Buchanan rejected each of the arguments in quick succession, saying that there was no First Amendment issue because activists "have already made their Twitter posts and associations publicly available." The account holders have "no Fourth Amendment privacy interest in their IP addresses," she said, and federal privacy law did not apply because prosecutors were not seeking contents of the communications.'"
As a lawyer, I wish articles like this would link the decision at the very beginning or the very end of the article always. Here, no thanks to the /. summary!
Decisions relying on anti-"chilling effect" policy reasons for the conclusion tend to be at the appellate level, not the district level, and especially not at the magistrate level. Magistrates are appointed for a short number of years and are not Article III judges. Doing what the Article III judges (district, circuit, SCOTUS) say is of the utmost importance to them since Magistrates are basically merely auxiliaries or para-judges. So, no, magistrate judges will almost never rely on public policy concerns such as "chilling effects" to decide an issue. This is my experience as someone who used to work directly for a federal magistrate judge doing research for him.
Now, I humbly offer my analysis of the decision (apologies for it not being perfect writing, but it's Saturday, and the goal is just to shed a little light on what actually is going on in the decision):
Facts
Issues
Standing under SCA
No, they dont. SCA gives standing only if contents of communications are requested. The distinction between contents and records (non-content data such as ID, access time, etc.) is explicitly made in the law itself, so this isn't just semantics. Government wins issue 1.
Proper issuance of order
Users argue the government did not follow proper procedure to get the order. Users argue info requested is not relevant and material to investigation. Court says it is.
First Amendment
Users argue it creates a chilling effect on free speech by creating a "map of association." Court says that the association between these users was made publicly by the users themselves already, so no chilling effect in this instance can be had. This is where the whole "publicly policy" issue would come into play in an appellate court, but not in an Article I magistrate court. While it could have a chilling effect on other associations (which I personally doubt, as, IIRC from my use on Twitter, everyone's Twitter friend list is publicly accessible anyway), it's not for the magistrate court to decide. That would be for the Circuit or Supreme Courts.
Fourth Amendment
Users argue it's a warrantless search, and the requested IP addresses are "intensely revealing" as to location, including location within a home and movements within. OK, wtf is this bullcrap? Turning over an IP address will tell the police which room in a house you were posting in? That sounds really specious.
In any case, court enters into a "reasonableness" analysis as is de rigueur with Fourth Amendment issues--does the act infringe on expectation of privacy society consideres reasonable? There is no reasonable expectation of privacy in data voluntarily turned over to third parties. This may not be true if the EULA specifies that data will be kept private, but the court doesn't address this issue because the argument was never made. Instead, the court says: Look, you gave Twitter your IP address, so you can't reasonably expect it to be kept secret from police. Other courts have apparently said si