Update: EFF has informed us that Judge O'Grady canceled oral arguments in this case. He will still review the motion and submit an opinion at a later date.
On Friday, the case to bar federal prosecutors from accessing Twitter records related to users associated with WikiLeaks heads back to court. A Magistrate judge heard the users’ motions earlier this year and turned down their request to toss the order out. Now the case is going to be heard in front of a District Court judge.
A lawyer for the users tells Fast Company this is not exactly an appeal. It’s more like Round 2 with a higher-level judge. “The first decision was by a Magistrate judge, not a full District Court judge, so we have the right to ask a full judge to review her decision,” Electronic Frontier Foundation legal director Cindy Cohn tells us by email.
The case, if you recall, started back in December, when Twitter received an order from the Department of Justice to turn over records related to the use of the service by five people associated with WikiLeaks, among them WikiLeaks impresario Julian Assange. The order, whose technical name is a 2703(d), is part of an investigation into who leaked confidential U.S. government documents to WikiLeaks. Bradley Manning, the Army private accused of the crime, was among the five whose Twitter records were requested.
The initial order was secret, but Twitter managed to get it unsealed in January and subsequently notified the affected users. The ACLU and the EFF are now fighting on behalf of three of those people to get the order tossed out—U.S. computer security expert Jacob Applebaum, Icelandic parliamentarian Birgitta Jonsdottir, and Dutch hacker Rop Gonggrijp.
In addition to getting the order tossed out, the three petitioners are also trying to get the court to unseal the government documents requesting the order in the first place. It’s possible that the order is part of a larger fishing expedition on the part of prosecutors, and the original application could contain information about other services that are also in government sights.
In February, the petitioners’ motions were heard by a Magistrate judge in Virginia. In March, the judge denied their motion, saying there wasn’t anything inappropriate about the government’s request. The judge also disagreed with the users’ assertions that the order violated their First Amendment rights and as well as their Fourth Amendment rights against unlawful search and seizure. The opinion stated that, because prosecutors weren’t asking for the content of Twitter messages, only for information like IP addresses used to access the service, contact information associated with the accounts, and usage logs, the order didn’t impinge on rights to free speech.
Friday’s hearing takes place in front of Judge Liam O’Grady in the U.S. District Court for the Eastern District of Virginia. It’s unclear when O’Grady will make a decision, though probably not for at least a few weeks after the conclusion of oral arguments.
Twitter is staying out of the case. It has maintained that its responsibility was to notify the users of the order and let them fight it if they found it objectionable. If the users lose their case, Twitter will be required by law to turn the records over.