Wednesday, March 16, 2011

Court Decision to Allow Government to Obtain Twitter Records in Wikileaks Case Raises First Amendment and Fourth Amendment Concerns

A Federal Magistrate Judge in Virginia has ruled that the government can access Twitter accounts in connection with the Wikileaks investigation.  A copy of the decision is here.

The case arose when three Twitter users sought to prevent the government from obtaining copies of information in their accounts.  The information sought by the government included personal information, billing information and “records of user activity for any connections made to or from the Account, including date, time, length, and method of connections, data transfer volume, user name, and source and destination Internet Protocol address(es).”  The government did not seek content information. 

While the decision deals with some statutory issues, I want to highlight to constitutional issues.  The users claimed that the government request violated their First amendment rights, particularly speech and free association. 

The court believed that it was required to balance the possible constitutional infringement and the government’s need for the records.  In doing so, the court held that the government could access the records because there was no evidence that the investigation was instituted or conducted in bad faith, maliciously, or with intent to harass.

Perhaps most importantly, the court believed that the users had not demonstrated that providing the information would have a chilling effect on speech or association.  This is partly because the users made their posts publicly available. 

In regards to the Fourth Amendment, the users claimed that the Fourth Amendment protected against disclosure without a warrant their IP address information.  The claim is that this information warrants Fourth Amendment protection because it is “intensely revealing as to location.”  This argument failed because the users voluntarily conveyed to Twitter their IP addresses.  In this regards, IP addresses are like phone numbers.  And many courts have held that phone records that show only calls and numbers are not subject to Fourth amendment protections. 

My view is that this decision is potentially problematic from a First Amendment standpoint.  It is not hard to imagine that a government program of obtaining IP address or lists of accounts followed would chill association.  I hope to post more thoughts on this later.

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