In 140 characters or fewer, can you rewrite a 25-year-old definition of privacy?
That was the question at stake in a Virginia federal courtroom Tuesday as U.S. prosecutors insisted Twitter turn over records of three users linked to the WikiLeaks controversy.
Defense lawyers for online activists Rop Gonggrijp, Jacob Appelbaum and Birgitta Jonsdottir said the laws governing communications records date back to 1986 and do not address privacy issues created by the Internet, The Washington Post reported.
Prosecutors countered that their requests are routine and that the government needs this information to protect national security.
U.S. District Judge Theresa Carroll Buchanan ruled in December that Twitter must surrender its clients’ information. But the American Civil Liberties Union and Electronic Frontier Foundation filed three motions on behalf of Jonsdottir in January: one to overturn Buchanan’s initial ruling, one to unseal documents stating why prosecutors want the data, and one to unseal hearings in the case, which were originally private.
Buchanan granted the third motion, and Tuesday’s session was the first public hearing in the WikiLeaks case. WikiLeaks founder Julian Assange and other contributors to the website are under investigation for disclosing thousands of classified U.S. documents.
Speaking Wednesday, ACLU spokesman Siracusa Hillman dismissed the argument that the prosecutors’ requests are standard.
“The government cannot engage in behaviors that violate the Constitution, whether it engages in them frequently or not,” Hillman said.
The requests seek records of every tweet the defendants generated over a year, including many unrelated to WikiLeaks, Hillman said. The broad timeframe and scope of the order would infringe on the defendants’ freedom of speech.
Furthermore, the privacy rights granted by the Fourth Amendment protect location and timing data, which can be derived from Internet protocol addresses and other information the government seeks to obtain, he said.
The main law addressing communication privacy—the 1986 Electronic Communications Privacy Act—affords electronic communications limited protection compared to other forms, according to The New York Times. Wiretapping phones requires a court order, and searching homes requires a warrant, but law enforcement officials need no permission to read e-mails older than 180 days.
James Carafano, a national security scholar at the conservative Heritage Foundation, said he saw no distinction between the request for the Twitter records and other cases in which the government has sought business records to prosecute someone who threatened national security.
“Somehow people think this presents new, exciting territory, and I’m scratching my head going, ‘What’s new about this?’” Carafano said.
The First and Fourth Amendments do not provide absolute protection for free speech, Carafano said. He likened the defense’s arguments to claiming that because the Mafia uses a private cell phone to plot someone’s murder, it is an invasion of privacy to investigate the case.
According to The New York Times, Buchanan has not said when she will rule on the case. During Tuesday’s hearing, she questioned whether the amount of information prosecutors would be able to obtain from Twitter would legitimately threaten the defendants’ privacy. It is unclear whether the company collects all the data the government has requested.
