Does the U.S. government need a warrant to view Twitter activity in the process of investigating a crime? According to a recent ruling, the answer is no.
A U.S. District Court made the ruling, concerning federal inquiries into the online activity of three WikiLeaks associates - Jacob Appelbaum, Birgitta Jonsdottir and Rop Gonggrijp - none of whom have yet been charged with a crime. Under citation of the Electronic Communications Privacy Act, Judge Liam O'Grady ruled that these WikiLeaks associates had no reasonable expectation of privacy when using Twitter.
The U.S. Justice Dept. opened a criminal probe of WikiLeaks following their leak of diplomatic cables in February 2010. Their investigation into WikiLeaks and founder/editor-in-chief Julian Assange is ongoing.
This recent ruling classifies said Twitter inquiries, which were made without a warrant, under a less stringent set of criteria than is required to obtain a search warrant.
Information that requires a warrant is connected to the well-known legal term "probable cause," regarding a suspect's involvement in a crime, while the collection of information without a warrant falls under the less stringent criteria of "resonable grounds" that the material collected would be "relevant and material" to an investigation.
The law in question, the Electronic Communications Privacy Act (ECPA), was passed in 1984, before the invention of the Web. The ECPA has come under fire by some Internet businesses and lawmakers for granting too much power to the FBI.
Conversely, the U.S. Justice Dept. has argued that changing the ECPA would “substantially slow criminal and national security investigations.”
Another legal concept relevant to the recent district court ruling is the "third-party doctrine," under which people being investigated are granted no reasonable expectation of privacy concerning information given to a third party, like an Internet service provider.
Previous requests by the U.S. government in the investigation of one of these three WikiLeaks associates, Jacob Applebaum, included a secret court order to force Google, Inc. and a small Internet service provider Sonic.net to submit information from the associate's email accounts. Both Google and Sonic, as well as representative of the three WikiLeaks associates, have unsuccessfully pressed the courts to unseal these reports.
In 2009, Google began disclosing the amount of requests made by the U.S. government for user data, which include information collected under warrants, subpoenas, and requests like these made into Applebaum, Jonsdottir, and Gonggrijp, under the ECPA.
In six months of that year, Google reported that it had received 4.601 requests and had complied with 94% of them.
In May of 2011, the author of ECPA, U.S. Sentaor Patrick Leahy (D., Vt.), stated that the law is "significantly outdated and outpaced by rapid changes in technology." Sen. Leahy introduced a bill at that time with changes providing for recent developments in Internet technology.
“The consequences of this decision for me are extremely limited: there’s not a whole lot you can learn from records that Twitter has on me that you can’t learn from reading my blog. There are bigger principles at stake though, and this is not a good ruling for online privacy," wrote one of the WikiLeaks associates in question, Rop Gonggrijp, in a blog post Friday,