Reporter, activity and security guy Jacob Appelbaum has been harassed by the government for years for helping with Wikileaks. We've written before about how he gets detained
at the border and is ordered to hand over all of his electronic equipment. A few years ago, we wrote about the ridiculous legal fight
in which the Justice Department demanded that Twitter hand over Appelbaum's messages without telling anyone, as part of the still ridiculous
grand jury investigation into Wikileaks (which still isn't over
If you recall, as part of that discussion about the legal fight with Twitter -- in which we gave kudos
to Twitter for standing up for its users' privacy -- it also came out that similar demands for information were also sent
to Google and Sonic.net in trying to access Appelbaum's details. Sonic.net quickly said that it fought the request -- but Google gave no comment. We found this to be disappointing at the time.
However, late last week, it was finally revealed -- four years later -- that Google not only fought the order, but was gagged from talking about it until just recently
. Reading through the full set of released documents
(300 pages) is quite incredible -- as are Appelbaum's own comments
as he reads through the document himself.
If you don't recall the big legal fight with Twitter, the DOJ refused to get a warrant, but instead got what's known as a 2703(d) order
, which has a much lower privacy protection standard. A warrant, as you know, requires probable cause. A 2703(d) order just requires "reasonable grounds to believe that the contents [of the email] are relevant and material to an ongoing criminal investigation."
This whole thing started in late 2010 when the grand jury investigation sent those 2703(d) orders out -- each accompanied by a gag order. Twitter fought the gag order and was able to get a judge to unseal it in early January 2011 for the sake of alerting the users in question, to see if they would protest (which they did, though unsuccessfully). Twitter alerted
a few users, including Appelbaum, that the feds had requested information. While many had assumed the feds had used a warrant or a traditional subpoena, it was quickly revealed
that it was the 2703(d) process, raising many more concerns. The fact that there were also a number of mistakes in the order raised further concerns. The revelation of this order got a lot of press attention, which the DOJ hated
In fact, that's what much of the (now revealed) argument between Google and the DOJ is discussing. Google points out that the identical order in the identical investigation was made public concerning Twitter's involvement, and thus, there is no reason not to make it public for Google too. The DOJ responds about just how incredibly harmful the press attention of the Twitter order is... though they fail to explain a single way it is harmful, other than that some online internet commenters were kinda mean
to them. First, the DOJ insisted that it was important that Google be gagged, and then said that Twitter's ungagging "seriously jeopardized the investigation."
The Order should remain sealed at this time. The Order satisfies all statutory and constitutional requirements, and the [REDACTED] subscriber would not have a valid basis for challenging it even if Google did provide him with notice. Furthermore, unsealing and permitting disclosure at this time is not in the best interest of the investigation. Unsealing and permitting disclosure of the Twitter Order has already seriously jeopardized the investigation and the government believes that further disclosures at this time will exacerbate this problem.
Of course, the DOJ never actually goes into any detail about how revealing that it was digging for information jeopardized the investigation at all. It just makes these baseless claims. Later, it further argues that unsealing the Twitter order (which it had agreed to allow) was a mistake in hindsight:
Indeed, in light of the events that followed the unsealing and disclosure of the Twitter Order, had the government known then what it does now, it would not have voluntarily filed the motion to authorize it.
Why is that? Well, the only argument the government seems to make is that once the Twitter Order was public, people got mad and said not nice things about the DOJ. First, it points to this Glenn Greenwald article
from 2011, in which he revealed more details of the original Twitter Order, including the name of the magistrate judge who signed off on it. The DOJ presents this as if it's harassment, though read the article and see if that's reasonable. And then it further claims that the US Attorneys were "harassed on the internet." But the only evidence it provides is this:
So some kid gets angry and fires off an angry email to the DOJ with the Anonymous tagline at the end, and the DOJ gets all weak-kneed? Really?
Even more bizarre, the DOJ includes a long paragraph talking about how all of the praise
that Twitter got after the Twitter Order was revealed explains why the Google Order shouldn't be revealed. That is, the DOJ is explicitly saying "man, it would suck if actually protecting the privacy of users became contagious":
That does not seem like a legitimate reason for a gag order. It sounds like the DOJ is unwilling to support due process and is afraid to actually have to defend its actions.
In response to this, Google quite reasonably points out that the government's argument cancels out its own argument. At one point, for example, the DOJ pointed to one of the people it was seeking information on Tweeting to followers not to send direct messages, and another saying that it's likely that Google and Facebook received similar orders. As Google points out, given that, the targets already suspect what is going on and thus it couldn't possibly make sense to maintain the gag order. As for the "parade of horribles" above, Google rightly points out that none of them show how revealing the Google Order will exacerbate
any of the "problems" it outlined.
The fight was put on hold while the individuals in question (including Appelbaum) fought the Twitter Order. And, when that failed
, the case picked up again, with the DOJ saying "look, that failed, so this case is over." Google responded, quite reasonably, that whether or not the individuals succeeded in stopping the information disclosure is a wholly separate issue from whether or not the gag order makes sense. Unfortunately, in the end, the court rejected all of Google's arguments. The court relies heavily on the fact that Appelbaum (though, bizarrely, his name is redacted here) tweeted the following
: "Do not send me Direct Messages - My twitter account contents have apparently been invited to the (presumably-Grand Jury) in Alexandria."
To the court, this is evidence that any disclosure will lead to a change in behavior.
Furthermore, the court ridiculously buys into the claims by the DOJ that the "public campaign" supporting Twitter for standing up for the rights of its users is a form of witness intimidation
That concluding line is really incredible:
If the Google Order were unsealed, future service providers may do precisely what Google has done in this instance, namely resist compliance with a lawful §2703(d) order by bringing baseless legal challenges that have the effect of impeding the government's progress in the Wikileaks investigation.
In other words, merely challenging the legitimacy of a gag order with an associated court order to hand over someone's info -- in other words protecting a user's privacy
is somehow seen as evidence of impeding an investigation. This is ridiculous
Finally, as Lauren Weinstein points out in his own analysis of these newly released documents, this does show just how strongly Google fought the government
to block the government from getting access to user info. There is this false belief out there that Google, in particular, has given the government free access to its servers (in part because of an incorrect interpretation of a Snowden document early on). Yet, this highlights how Google actually fought quite hard to protect its users' info (and this all happened more than two years before the Snowden leaks). Indeed, in my original post
, about the revelation that Google had received a similar order, we were disappointed that unlike Twitter and Sonic, Google refused to comment. We had no way of knowing that the company had been gagged.
Even Appelbaum -- not exactly one to cheer on Google in most settings -- now admits that he's impressed by how strongly Google fought. A few of his tweets explaining this:
Separately, he notes that while we know about Twitter, Sonic and Google... we don't know about Facebook or Yahoo, leading him to wonder
what happened there:
No matter what, this seems like yet another example of the DOJ being out of control and trying to cover up its own actions to keep them out of the public debate, rather than for any legitimate purpose.