The United States Department of Justice recently used a secret court order to get information from the email accounts of WikiLeaks volunteer Jacob Appelbaum, according to the Wall Street Journal.
The DoJ reportedly put the squeeze on Google and Sonic.net, a small Internet service provider (ISP), to turn over the email addresses of the people with whom Appelbaum communicated.
The court order was apparently granted under the auspices of the Electronic Communications Privacy Act.
That tactic doesn’t sit well with many privacy advocates.
“The Electronic Communications Privacy Act arguably makes this practice legal — in the sense that it has not, to date, been declared illegal,” attorney Joseph Sanscrainte told TechNewsWorld.
“From our perspective, the government shouldn’t be able to get this information without making a much higher showing of probable cause,” Aden Fine, a senior staff attorney with the American Civil Liberties Union, told TechNewsWorld.
Sonic.net CEO Dane Jasper, who fought the order, declined comment because the case is under seal.
Google and the DoJ did not respond to requests for comment by press time.
The Law and Online Communications
As things stand, the DoJ is within the law when it obtains a secret court order to obtain online records of individuals.
The practice is “constitutional until such time as at least one federal court declares this to be unconstitutional,” Sanscrainte said. “Until this occurs, this is a relatively easy way for government investigators to obtain information without having to obtain a warrant,” he added.
“Except in extraordinary circumstances, Internet users should always be given notice and the opportunity to protect their rights, and to know if they’re being infringed,” the ACLU’s Fine stated.
The DoJ “takes the position that these orders are routine,” Fine said. “We obviously don’t agree that court orders should be issued in secret. That’s not how our judicial system works.”
The legal grounds for opposing such orders are primarily based on the Fourth Amendment, which protects against unreasonable searches and seizures, Sanscrainte said.
The secret court order applying to Google is dated Jan. 4; the one applying to Sonic is dated April 15, according to the Journal.
It first asked Google to hand over the IP address from which Appelbaum logged into his gmail account, and the email and IP addresses of people he communicated with back to November of 2009. It’s not clear whether or not Google fought the order.
The order to Sonic demanded it turn over the same information from Appelbaum’s email account dating back to November of 2009.
Every Step You Take
It’s unclear how often the federal government resorts to secret court orders to conduct surveillance on suspects.
However, statistics published by privacy researcher Christopher Soghoian indicate the DoJ obtained almost 12,500 court orders for pen registers in 2009.
Pen registers record phone traffic or Internet communications issuing from a particular phone number or IP address.
Other stats on U.S. government surveillance reports from Soghoian can be viewed here.
“Public access to court proceedings in America is the norm, and unfortunately, it’s becoming increasingly apparent that the government is doing its best to obtain this information in secret,” the ACLU’s Fine said.
Fight the Power!
The DoJ’s reported activity contradicts remarks on Internet freedom by U.S. Secretary of State Hillary Clinton in January of 2010.
Even in authoritarian countries, information networks are helping people discover new facts and making governments more accountable, Clinton said. Freedom of expression is first among people’s basic freedoms, she declared.
A coalition consisting of the ACLU, Google, Microsoft and privacy groups has urged Congress to update the Electronic Communications Privacy Act.
The coalition, named “Digital Due Process,” contends that ECPA is outdated.
The DoJ’s getting Appelbaum’s records through a secret court order “is a situation that clearly illustrates how the revolutionary changes in our ability to communicate electronically requires ongoing review and updating of our laws,” Sanscrainte said.
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