Google released another legal disclosure notice related to the United States government’s ongoing grand jury investigation into WikiLeaks. It informed journalist and technologist Jacob Appelbaum, who previously worked with WikiLeaks, that Google was ordered to provide data from his account.
The disclosure suggests the grand jury investigation may have sought Appelbaum’s data because the US government believed data would contain details on WikiLeaks’ publication of State Department cables.
Appelbaum has been under investigation because of his connection to WikiLeaks for four to five years. He has been detained and interrogated at the US border multiple times. He was one of three subjects of an order the government issued to Twitter for account data for its investigation, which Twitter and other groups like the American Civil Liberties Union (ACLU) and Electronic Frontier Foundation (EFF) challenged in court.
He was recently profiled along with Chinese activist and artist Ai Weiwei in a short film by Laura Poitras, “The Art of Dissent.” He lives in Berlin, where he has spent the past couple of years reporting on documents from NSA whistleblower Edward Snowden for media organizations like Der Spiegel. His lawyers have advised him not to return to the US.
Google’s full legal disclosure to Appelbaum consisted of 306 pages of documents. He did not post the disclosure in its entirety but shared screen shots of parts of the disclosure through his Twitter account.
On April 1, the government apparently determined there was some information that could be disclosed to Appelbaum.
The government seems to confirm in legal documents that it does not consider WikiLeaks to be a journalistic enterprise. It also writes, “The government does not concede that the [redacted] subscriber is a journalist,” referring to Appelbaum.
Nevertheless, the government broaches the issue and insists “newsmen” may be subject to grand jury investigations of this intrusive nature.
“Journalists have no special privilege to resist compelled disclosure of their records, absent evidence that the government is acting in bad faith,” the government asserts. “Even if the [redacted] subscriber were to bring a First Amendment challenge, he could not quash the order because he could not show that the government has acted in bad faith, either in conducting its criminal investigation or in obtaining the order.”
Later, the government adds, “The government has acted in good faith throughout this criminal investigation, and there is no evidence that either the investigation or the order is intended to harass the [redacted] subscriber or anyone else.”
Appelbaum mentioned that this reminded him of how the government targeted New York Times reporter James Risen when they were investigating CIA whistleblower Jeffrey Sterling. He also recalled that a US border agent once said to him he would be “endlessly harassed.”
That experience would seem to call into question the government’s claim it has not acted in bad faith. Plus, given that his Google data was targeted in secret, Appelbaum could not possibly mount a First Amendment challenge because his lawyers did not even know to file a challenge or what to challenge exactly.
Additionally, Appelbaum suggested he expected the government would go after his Google data. He used Google’s services because he knew the company would use its legal services to fight for disclosure of this kind of information.
The US government does not believe their actions are easily defensible if known to the public so prosecutors aggressively campaign to keep it totally secret. It argues it cannot allow Google to notify Appelbaum that his data has been targeted because Twitter notified Appelbaum, Rop Gonggrijp, and Birgitta Jonsdottir and that enabled a public campaign to pressure providers to “challenge non-disclosure orders.”
“Disclosure would seriously jeopardize the investigation because it might cause suspects to change their patterns of behavior, notify confederates, or flee,” the government maintains. “Once the Twitter Order was unsealed, the Twitter account holder with the username [redacted] announced a change in his behavior and made a general announcement to others who might potentially have evidence relevant to the investigation by posting a message to Twitter on January 7, 2011, that stated ‘Do not send me Direct Messages—My Twitter account contents have apparently been invited to the (presumably Grand Jury) in Alexandria.'”
The government adds, “Other providers—who are potential witnesses—may fear that public exposure of their willing compliance with court orders relating to this investigation will hurt their reputation and feel pressure to challenge non-disclosure orders. Providers might also fear retribution beyond damage to goodwill. The press has widely reported that companies who withdrew their services from WikiLeaks have been cyber attacked.”
This is utter nonsense. Some WikiLeaks supporters upset with companies like Visa and Mastercard for denying services to WikiLeaks launched denial-of-service attacks in protest. These people were also upset with lawmakers like Sen. Joe Lieberman, who convinced Amazon to kick WikiLeaks off its web hosting service just as it was releasing US diplomatic cables.
Google and other companies did not demand that users connected to WikiLeaks be notified their data was targeted because of fear of retribution. Some of these companies want to notify their users so they can show they will stick up for their privacy and convince people to keep using their services. Some of these companies want to prove they will not freely share their users’ data for investigations, when real and articulable criminal suspicion is entirely lacking and the government is abusing authority to target dissidents.
Journalist Glenn Greenwald’s coverage of the Twitter order was explicitly singled out as endangering the investigation because the judge’s name, the names of prosecutors, a legal assistant’s name, and contact information for a prosecutor and the legal assistant were not censored in the order. This shows how terrified the government is that the public might try to hold officials accountable for exercising their power to broadly target personal data for a secret investigation into a media organization.
This disclosure of information from Google comes months after Google informed other WikiLeaks staff—Sarah Harrison, investigations editor, Kristin Hrafnsson, spokesperson, and Joseph Farrell, section editor—they each had their accounts targeted.
In March 2012, the US government served search warrants and demanded that the company hand over data from WikiLeaks staff members for the purpose of an investigation into violations of the Espionage Act, Computer Fraud and Abuse Act (CFAA), a larceny statute and a “conspiracy to commit offense or to defraud the United States” statute.
Albert Gidari, an attorney for Google, explained, “From January 2011 to the present, Google has continued to fight to lift the gag orders on any legal process it has received on WikiLeaks.” He indicated that there are “affidavits and applications underlying the orders,” which remain sealed and Google is fighting to have them unsealed. He was likely referring to the kind of information finally provided to Appelbaum.
The government claimed that the Google data was for an investigation separate from the investigation underlying the order for Twitter data.
There are at least a “dozen outstanding search warrants and court orders” that attorney Ahmed Ghappour says have been issued but remain sealed. He is helping journalist Alexa O’Brien fight for the unsealing of those documents. “That such a broad dragnet could remain secret for so long defies principles such as transparency, speech and privacy, all fundamental to our democracy,” he declared in an interview with the Post.
Regardless of what the government claims to be investigating, the fact remains that their target is a media organization, which it refuses to recognize as such so prosecutors can justify trampling freedom of the press in the process of targeting individuals involved in publishing secret documents.
Appelbaum characterized the investigation as a “political process designed to tie up effective journalists and supporters.”
“It is important to not be intimidated by political harassment, even from a state which claims to be proper,” he added. “Refuse to be terrorized!”
He promised to keep working “ceaselessly to release more documents in the public interest” and dedicated the disclosure of this information from Google to WikiLeaks editor-in-chief Julian Assange, who has now been in the Ecuadorian embassy in London for three years.
Creative Commons Licensed Image from Flickr by re:publica