Peter Kemp
WL Central
January 8, 2011

The US Department of Justice has issued a subpoena on Twitter for material related to Birgitta Jónsdóttir, including her personal details and, it can be assumed, all her private direct messages.

Activist, writer, and web developer Birgitta Jonsdottir became a member of the Icelandic Parliament in April 2009.

Ms Jónsdóttir twittered thus:
department of justice are requesting twitter to provide the info – i got 10 days to stop it via legal process before twitter hands it over.

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?

While this is not in any way confirmed, it appears that while the subpoena is from the DOJ it may actually emanate from the Grand Jury so far held in secret (but often mentioned or alluded to in the mainstream media) to examine whether or not Wikileaks people in general and Julian Assange in particular can be charged with an offence.

Subpoenae are a normal part of a criminal justice system and ordinarily there are restrictions against abuse, for both prosecution and defence.

The normal common law test for subponae is the “legitimate forensic purpose” test. Arguable for and against (with respective case law in mind in whatever jurisdiction one happens to be in), the test is for the purpose of eliminating or significantly reducing “fishing expeditions: to reduce waste of a court’s time and to eliminate the speculative and wide subpoena that would require truckloads of documents to satisfy it.

Arguably, the subpoena upon Twitter for Ms Jónsdóttir’s personal details and presumably personal messages to other Twitter members, is a fishing expedition. Inherent in that subpoena is a belief by the DOJ that some sort of incriminating evidence exists to use against Julian Assange, given that Mr Assange was in Iceland and had conversations with Ms Jónsdóttir on various matters, including the “Collateral Murder” video, a Wikileaks major”leak” at that time.

Unfortunately, the power of a grand jury may well allow such “fishing expeditions”. This writer is not a USA attorney so I will leave commentary on that to others, however, if that power allows it, then a question of enforceability arises if as a result of the first subponena, Ms Jónsdóttir is herself subpoenaed. That might appear to be far fetched, but accurate personal details are extraordinarily helpful IF a second subpoena is on the drawing board.

With Ms Jónsdóttir being outside the jurisdiction, which would appear to be an insurmountable problem for the DOJ, (and Europeans would likely close ranks to protest), the USA seems determined on “fishing expeditions”.

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Even if there is no second subpoena, this first subpoena on Twitter again puts a US corporation in a difficult position. Complying with the subpoena would set a precedent that could do Twitter a lot of commercial damage with its members, for obvious reasons.

We have no idea of the return date of the subpoena, when it is due for court, (or Grand Jury as the case may be) nor the venue. All we can say is that it will after 10 days have expired, the time allowed for Ms Jónsdóttir to lodge objections to Twitter, on grounds of privacy, (and possibly legitimate forensic purpose) etc.

Assuming the grand jury, (wherever and whenever that is), Twitter’s corporate attorneys will likely answer the subpoena in secret, (as is the whole process before any possible indictement of Julian Assange) and we probably won’t ever know the arguments presented.

This writer is of the opinion that this subpoena represents a dangerous precedent with a threat both to privacy and political communication.

Update 1: If the subpoena has been issued by a US court (process), Ms Jónsdóttir should have the opportunity for an attorney representing her to appear and object. It remains to be seen what Twitter’s position is, but it would seem to be in their interests to oppose the subpoena. Ordinarily the material is served on a court’s registry office (Australia) and the court decides whether it is to be released to the parties or not. Admissability issues of that material (hearsay, whatever) arise later, such as at trial.

Update 2:
The subpoena is issued on a document labelled the United States District Court for the Eastern District of Virginia, Alexandria Division.

Originally sealed, then unsealed to allow the persons named apparently to respond, the subpoena names rop_g; ioerror; birgittaj; Julian Assange; Bradley Manning; Rop Gongrijp; Birgitta Jonsdottir for the time period November 1, 2009 to present.

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It requests in Part A of the attachment subscriber names, user names etc; mailing addresses, residential addresses, business addresses ect; connection records; length of service; telephone numbers; assigned network addresses; payment arrangements and billing records and other miscellaneous records (part B)such as correspondence and notes related to the accounts of the persons named.

What is interesting are the grounds for the subpoena order:

that the applicant has offered that there are specific and articulable facts showing there are reasonable grounds to believe that the records or other information sought are relevant and material to an ongoing criminal investigation.

In the sealed version, Twitter was given three days to comply.

The unsealing order dated 5th January 2011, while simply unsealing (Twitter was then able to advise the subjects of the subpoena), states all other previous orders are to remain in effect. The material is almost certainly, already in the hands of the Clerk (Registrar)of the Court pursuant to the original orders.

It would be interesting to see any affidavit/document that the applicant submitted to the court supporting the subpoena, ie the “reasonable grounds”which are “relevant” and “material.”

The very idea of Julian Assange and Birgitta Jónsdóttir incriminating themselves even with direct messages to colleagues and each other, on Twitter, is beyond belief.

This is a bigger fishing expedition than what was expected on Ms Jónsdóttir’s original tweets.

But now there is a court where the subpoena is to be/has been returned and will be argued over. Expect mass filing of motions to dismiss the subpoena.

That argument, we hope not “in camera”, may well be be very illuminating. In this writer’s opinion, the whole exercise smacks of desperation on the part of the Department of Justice.

(Special thanks to Glen Greenwald and Salon for the links to the Pdf subpoena files.)


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