WASHINGTON — The controversy began with an announcement on – where else? – Twitter.
“Just got this,” Birgitta Jónsdóttir wrote on Jan. 7, adding in a second tweet: “usa government wants to know about all my tweets and more since november 1st 2009. do they realize i am a member of parliament in iceland?”
The Department of Justice had obtained a secret order for all of Jónsdóttir’s Twitter account information. Twitter was supposed to provide the information and not tell the users involved that their information was being shared with the Justice Department. Twitter fought for and won the ability to inform Jónsdóttir of the order. The announcement set off a firestorm of Page One media coverage and renewed calls for the reform of a little-known communications law.
Timeline: The Electronic Communications Privacy Act
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Jonsdottir and the two other people named in the order – Jacob Appelbaum and Rop Gonggrijp – had been listed as producers on the WikiLeaks video “Collateral Murder,” which shows U.S. troops in Iraq shooting unarmed civilians, including two Reuters journalists. The Justice Department had announced it was looking for ways to prosecute the organization for recent leaks of classified material.
“I’d been expecting something,” Jónsdóttir said when reached by phone recently. When Jónsdóttir traveled to the U.S. 10 days after the video posted, she made sure to notify Iceland’s foreign affairs minister so she could get a diplomatic passport.
But Jónsdóttir’s brush with the U.S. government actually came thanks to the Electronic Communications Privacy Act, a law passed in 1986 that privacy advocates say doesn’t properly protect people now that even private correspondence happens online.
“Once upon a time, we mostly kept our files in our houses,” said Ryan Calo, director of the consumer privacy project at Stanford University’s Center for Internet and Society. Today, he said, we put our personal information “in the hands of third parties.”
ECPA, as it is known, lets government investigators compel those third parties – in this case, Twitter – to secretly give up their clients’ personal information. The Dec. 14 order asking for Jónsdóttir’s information demanded that Twitter not “disclose the existence of the application or this Order of the Court, or the existence of the investigation, to the listed subscriber or to any other person, unless and until authorized to do so by the Court.”
Twitter challenged the order, and three weeks later, the judge who approved it also allowed it to be unsealed. That’s when Jónsdóttir – and the global media – found out.
When she found out, Jónsdóttir got in touch with some friends from the Electronic Frontier Foundation. The EFF and the American Civil Liberties Union are now fighting the order in court.
The ACLU maintains that the order – and the part of ECPA that allows it – violate both the First and Fourth Amendment. Prosecutors ought to have to get a warrant based on probable cause for this kind of information, ACLU Spokesman Benjamin Siracusa Hillman said.
This kind of a case wasn’t particularly surprising, Siracusa Hillman said, but it was of great concern that the order targeted information “that we viewed as deeply private and expressive.” Jónsdóttir is a political activist and she tweets “on a whole bunch of issues, most of which have nothing to do with WikiLeaks,” he added.
The ACLU argues that because this part of the statute is unconstitutional, it shouldn’t be enforced. But, Siracusa Hillman said, “Congress can always choose to enact greater privacy protection than the constitution requires.”
Reform on the table?
Murmurs of reform have come from both chambers. The House and Senate Judiciary Committees each held hearings just last year to assess how well ECPA protects privacy, national security and American business interests in the 21st century.
Congressmen on both sides of the aisle described the act’s inadequacies as indisputable. “No one would quibble with the notion that ECPA is outdated,” Senate Judiciary Chairman Patrick Leahy, D-Vt., said in his opening speech.
House Judiciary member Jim Sensenbrenner, R-Wis., now the committee’s chairman, noted that the issue is “not one that I think reeks of partisan divisions.”
“I think we all know that a 24-year-old original law and a 16-year-old second law is way out of date compared to where the technology is at,” he said, citing the conflicting interpretations the law has generated in the realm of cell phone privacy as proof that it must be updated.
Justice Department officials have been less enthusiastic. At last year’s Senate hearing, Associate Deputy Attorney General James A. Baker listed cases the department could not have solved without the act, including one in which an EPCA subpoena helped identify the creator of a child pornography site. He described the law as “forward-looking” and suggested problems with applying it to the Internet lie with the courts, not the law itself.
But Leahy cited changing it as part of his agenda for the new Congress in a speech on Jan. 11. “The Judiciary Committee will continue the work we started last year to update the Electronic Communications Privacy Act, so that security agencies have the tools needed to keep us safe from cyber threats, and our federal privacy laws keep pace with advancing technology,” he said.
Reform is “one of the issues that we need to take a look at this year,” though no timeline has yet been set, said Leahy spokeswoman Erica Chabot.
The Twitter fight carries on
The more immediate fight over ECPA is in the ongoing Twitter case. The ACLU and the Justice Department argued in a Feb. 15 hearing at a federal court in Virginia.
Justice Department prosecutors responded directly to the ACLU’s criticism of the law’s constitutionality. They called their order to Twitter “routine” and said it had to remain sealed to protect national security, according to the Washington Post.
Justice Department representative Tracy Schmaler said she had no further comment when contacted in early March.
The Department has supporters, too. The First Amendment does not give WikiLeaks the right to endanger Americans by revealing state secrets, said James Carafano, a national security scholar at the conservative Heritage Foundation.
“There’s no absolute protection for free speech,” Carafano said.
The ACLU wants the judge to undo the order. “We’ve also sought to unseal any other orders that may exist, in order to be able to challenge those orders,” Siracusa Hillman said. “Since we don’t know whether or not they exist, it’s obviously difficult to challenge them.”
As for Jónsdóttir? She’s not planning to come to the United States any time soon. She’s not afraid, but any kind of interrogation “would be really unpleasant,” she said.
She has plenty to do in Iceland anyways, including finishing work on a media law that she’s hoping will be the most advanced in the world.
The proposal, which copies select parts of media law from all over the world – including American whistleblower protection law – has passed in the Icelandic parliament, but the process requires updating 13 separate parts of Icelandic law, which Jónsdóttir hopes will be done by the middle of this year.
“I want this to be sort of the benchmark, the standard for how we modernize” freedom of speech, Jónsdóttir said. “You have to upgrade these laws all the time,” she added.
