The news that the U.S. Department of Justice had tapped Twitter for information about the accounts of people related to WikiLeaks was hardly a day old before that organization screamed out–via Twitter–that all of its followers on the micro-blogging site might very well be targets as well. We asked experts on computer crime and Internet privacy if that were the case, and it turns out the concern is probably overblown.
“I don’t think the DOJ wants to know who follows WikiLeaks because that’s not helpful information,” said Orin Kerr, a professor at George Washington University Law School and a former U.S. attorney for the Eastern District of Virginia, which often tries national security cases and is the office which issued the Twitter order.
The tweet WikiLeaks sent on Saturday read: “WARNING all 637,000 @wikileaksfollowers are a target of US gov subpoena against Twitter.” The section of the order in question said the government wanted “all non-content information associated with the contents of any communication or file stored by or for the account(s).”
WikiLeaks apparently interpreted that to mean that, among the other pieces of information the government wanted, it also sought the list of people who had signed up to follow the organization’s Twitter feed. According to the experts Fast Company spoke with, the law is broad enough–and sufficiently undefined in precedent–that that line could, in theory, refer to information about followers. But, said the experts, even if the government was interested in that information, which they didn’t think it was, lawyers for either the account owners or Twitter would likely push back on that point, and the government would drop that portion of the request so as not to risk getting the entire order tossed out.
“I’m 99% sure that the government did not mean to include followers, and I’m 99% sure that if the government did seek followers, that would be quashed on First Amendment grounds,” said Jim Dempsey, vice president for public policy at the Center for Democracy & Technology.
The line was one part of a longer list of pieces of information the government sought from Twitter. The other items included things like the actual subscriber names, their addresses, and contact information. It also asked for the dates and times they logged in, the IP addresses from which they accessed the service, and the durations of their sessions. For the most part, the list seemed to have been mostly taken verbatim from a template used by the DOJ’s Computer Crime & Intellectual Property Section.
The “non-content” bullet point usually refers to metadata associated with an account or with specific emails. It’s labeled “non-content” to distinguish it from what the law considers “content.” The actual message of an email, for example, counts as “content.” But the fact that an email was sent, the date and time it was sent, and the person to whom it was sent falls under “non-content.” Requesting non-content information requires a lower burden of proof that the information is relevant to an investigation, said the experts, and therefore investigators usually request that first as they build their case.
Though the government hasn’t commented on the order sent to Twitter, the working assumption among most observers is that it’s part of the government’s investigation into the leaking of confidential documents to WikiLeaks. Such orders, called 2703(d) orders, in reference to the statute from which they derive, are quite common and are used to collect evidence from which a case can be made.
Both Dempsey and Kerr said the information the government was probably most interested in were the IP addresses and session dates and times. If the ISPs that own those IP addresses are located in the United States, the government would use the information it collected from Twitter to request further information from the ISPs. “Through its building blocks,” said Dempsey, “a little bit of information from Twitter, a little bit of information from here, a little bit of information from there, they might be able to put together a mosaic that rises to the level of probable cause.”