WikiWatch Blog

Court Declines to Vacate “Twitter Order”

Andrew Soubel (Editor) (Wolters Kluwer) — Wed, 16 Mar 2011 19:40:57 +0000

A US District Court has denied a motion (Loislaw $) by WikiLeaks supporters Jacob Appelbaum (ioerror), Birgitta Jonsdottir (birgittaj), and Rop Gonggrijp (rop_g) (collectively, petitioners) to vacate a sealed order (Twitter Order) issued under the Stored Communications Act (SCA) (Loislaw $).

The Twitter Order required Twitter, Inc. to turn over to the United States subscriber information concerning WikiLeaks, rop_g, ioerror, birgittaj, Julian Assange, Bradley Manning, Rop Gonggrijp, and Birgitta Jonsdottir. The order was sought as a part of a federal investigation into the release of classified information by WikiLeaks.

In arguing that the Twitter Order should be vacated, the petitioners made four arguments: (1) that they had standing under the SCA; (2) whether the Twitter Order was properly issued under the SCA; (3) whether the Twitter Order violated their First Amendment rights; (4) whether the Twitter Order should have been vacated as to Ms. Jonsdottir for reasons of international comity.

The judge first noted that under the SCA, an order could only be challenged if the contents of electronic communications had been sought. The definition of contents was any information regarding substance, purport, or meaning of a communication. The judge found that the Twitter Order was only a request for records. Therefore, the petitioners lacked standing to bring a challenge.

While the petitioners did lack standing, the judge went on to find that substance of their motion was also “unavailing.”

The petitioners argued that because the information was sought in connection with an investigation into WikiLeaks, and their tweets pertained primarily to non-WikiLeaks topics, the Twitter Order demanded information that was not relevant to the investigation. However, the judge found that the Twitter Order was properly issued because is sought “relevant and material” information for the investigation.

The petitioners also claimed the Twitter Order would have a chilling effect on their First Amendment rights by allowing the government to create a “map of association.” However, the judge found no cognizable First Amendment violation because the petitioners failed to explain how the Twitter Order had a chilling effect. The Twitter Order was a routine compelled disclosure of non-content information which the petitioner provided to Twitter under its privacy policy.

Next, the petitioner argued that the Twitter Order was a warrantless search in violation of the Fourth Amendment because release of their internet protocol addresses (IP Addresses) was “intensely revealing,” and required a warrant. The judge noted that no legitimate expectation of privacy existed in subscriber information voluntarily conveyed to phone and internet companies. Further, several federal circuits had declined to recognize a Fourth Amendment privacy interest in IP addresses. The found that “because the petitioners had conveyed their IP addresses as a condition of use, they have no legitimate Fourth Amendment privacy interest.”

Finally, the judge found that there was no threat to international comity because Ms. Jonsdottir’s tweets had littler relation to her status as an Icelandic Parliament member.

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Bank of America Emails Released by Anonymous

Andrew Soubel (Editor) (Wolters Kluwer) — Mon, 14 Mar 2011 20:08:09 +0000

Fox News, PC World, and Forbes all report that Anonymous, the hacker group, has released emails from Balboa Insurance. Bank of America acquired Balboa as part of its Countrywide acquisition. Anonymous claims the emails prove that Balboa purposefully altered documents so that the information did not match the bank’s loan information. Altering this information would have allowed the bank to increase foreclosures.

It is unclear if this is the information that Wikileaks claimed would be damaging to an American bank.

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Harvard Law Will Review WikiLeak Censorship

Andrew Soubel (Editor) (Wolters Kluwer) — Fri, 04 Mar 2011 21:01:34 +0000

The Ground Report has an article previewing Harvard Law Professor Yochai Benkler’s forthcoming article examining the U.S. government and traditional media’s role in censoring WikiLeaks. The working draft is available here.

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HBGary Federal CEO Resigns

Andrew Soubel (Editor) (Wolters Kluwer) — Wed, 02 Mar 2011 21:07:16 +0000

The San Francisco Business Times reports that Aaron Barr, HBGary Federal’s CEO, has announced his resignation. Mr. Barr’s comments led to HBGary’s email being hacked by the group Anonymous. Within those emails was a presentation, prepared for Bank of America, describing how to attack WikiLeaks and its supporters.

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Democrats Call for Investigation into Firm/Tech Companies

Andrew Soubel (Editor) (Wolters Kluwer) — Tue, 01 Mar 2011 16:57:02 +0000

The Washington Post reports that Democrats in the US Congress are calling for an investigation into the Hunton & Williams law firm and HBGary Federal, Berico Technologies and Palantir Technologies for their role in a possible “disinformation campaign” against WikiLeaks, for Bank of America, and the U.S. Chamber of Commerce.

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Law Firm and Security Firms Responsible for WikiLeaks Response Plan

Andrew Soubel (Editor) (Wolters Kluwer) — Mon, 14 Feb 2011 21:08:13 +0000

According to USA Today, Bank of America (BofA) denies that it ever saw the presentation prepared by three data intelligence firms. If BofA’s statement is correct, then that means that the three security firms and possibly the law firm Hunton & Williams were responsible for the preparation of the presentation.

The NYT reports that BofA and the US Chamber of Commerce (who also was revealed as a possible recipient of the security firms work) did not work directly with HBGary Federal, one of the security firms. Instead, HBGary Federal was offering to work with BofA and the Chamber’s law firm Hunton & Williams.

According to dBusinessNews, Hunton & Williams, for the fourth consecutive time, was named the top firm for privacy by Computerworld in its 2010 report on “Best Privacy Advisers.”

Lastly Forbes reports, the WikiLeaks presentation and the fifty seven thousand HBGary Federal and HBGary emails were all released by the hacker group Anonymous. Anonymous posted the second batch of emails at AnonLeaks.ru, which features a countdown to launch.

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WikiLeaks Banking Documents Dull?

Andrew Soubel (Editor) (Wolters Kluwer) — Thu, 10 Feb 2011 19:32:58 +0000

Reuters is reporting that sources close to WikiLeaks founder Julian Assange state that Assange has said privately that he is unsure if the banking documents contain any damaging information.

The Tech Herald and Security Magazine report on a presentation given to Bank of America by Palantir Technologies, Berico Technologies and HBGary regarding options to counter WikiLeaks possible disclosure of its data. The Business Insider posted the complete presentation that the data firms gave to Bank of America.

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WikiLeaks Cables State Saudi Oil Reserves Possibly Overstated

Andrew Soubel (Editor) (Wolters Kluwer) — Wed, 09 Feb 2011 16:52:26 +0000

The Guardian reports that the latest release by WikiLeaks of diplomatic cables show U.S. officials think that Saudi Arabia is overpromising on its capacity to supply oil. The actual cable are reporduced on the Guardian website here, here, here, and here. According to the cables, Sadad al-Husseini, a geologist and former head of exploration at the Saudi oil monopoly Aramco stated:

“Saudi Arabia might reach an output of 12m barrels a day in 10 years but before then – possibly as early as 2012 – global oil production would have hit its highest point. This crunch point is known as “peak oil”.”

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WikiLeaks in the News, February 8

Andrew Soubel (Editor) (Wolters Kluwer) — Tue, 08 Feb 2011 17:05:41 +0000

The NYT reports on WikiLeaks founder Julian Assange’s second day of court hearings in the UK, in which he is fighting extradition to Sweden.

The Guardian reports that the US Air Force has retracted its guidance issued last week banning the families of staff from reading classified material released by WikiLeaks. The Air Force stated that it had not sanctioned the guidance.

Forbes reports that WikiLeaks Julian Assange host a “Live People’s Conference” during which he answered questions from group members. The full video can be seen here: WikiLeaks Roundtable: 1st Live People's Conference.

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WikiLeaks Nominated for Nobel Peace Prize

Andrew Soubel (Editor) (Wolters Kluwer) — Thu, 03 Feb 2011 18:01:13 +0000

Voice of America and CNN report that WikiLeaks has been nominated, by a Norwegian lawmaker, for the Nobel Peace Prize. Any lawmaker, academic or award recipient can nominate anyone for the prize.

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WikiLeaks in the News, February 1

Andrew Soubel (Editor) (Wolters Kluwer) — Tue, 01 Feb 2011 16:49:46 +0000

The Center for Public Integrity reports has an interesting take on WikiLeaks from the Enron whistleblower Sherron Watkins. Ms. Watkins states that she doesn’t trust the Securities and Exchange Commission to handle tips from company insiders, instead she would probably instead take information to an organization like WikiLeaks.

The Independent reports that Secretary of State Hillary Clinton summoned 260 US ambassadors and envoys for a week of brainstorming and re-evaluation in Washington not least thanks to the work of WikiLeaks.

The Telegraph and the BBC report that a UK government minister gave the Libyans advice on how to secure the Lockerbie bombers freedom, according to cables released by WikiLeaks.

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Welcome to Wolters Kluwer WikiWatch

Sonali Oberg (Acquisitions Editor) (Wolters Kluwer) — Mon, 31 Jan 2011 01:03:32 +0000

Welcome to Wolters Kluwer Wiki Watch. Wolters Kluwer Law & Business is excited to sponsor this blog as a forum for analysis, commentary, and discussion of information technology, computer law, data privacy, intellectual property, e-commerce, and litigation issues relating to information law.

Wolters Kluwer is one of the most respected publishers in the world, and we are committed to developing new media products that meet the needs of our customers.

We will draw contributions from an international group of legal professionals: lawyers, academics, and business analysts. The blog will have a discussion forum and will feature a guest blogger’s analysis of current developments in the field of information law.

We encourage interaction, and hope that we can promote debate on particular issues.

We hope that you will visit the blog often, and we invite you to participate in the discussion. We look forward to building a lively forum for discussion.

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The Cost of Information

Alan S. Wernick (FSB FisherBroyles LLP) — Mon, 31 Jan 2011 01:01:28 +0000

There is a cost to creating information, and users of information place a value on the information. “Cost” and “value” are not just money – they include time, utilization of other resources, and in some cases human lives. Part of the cost is the harm to persons and property that may occur with the misuse of the information.

Freedom of speech, which concept is perhaps one of the underpinnings for Stewart Brand’s comment in the 1960s that “information wants to be free,” has its limits. The 1919 decision by U.S. Supreme Court Justice Oliver Wendell Holmes, Junior, in Schenck v. United States sets forth an often quoted statement that “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.” The courts today, in the United States and elsewhere, continue to struggle with defining these limits in our global village.

As a practical consideration, part of the cost of production and dissemination of information through Wikileak type sources includes the potential harm that information may cause. For example, alleged informants/collaborators in Afghanistan whose names news accounts said were revealed in a recent Wikileaks disclosure now face potential threats to themselves and their families as a result of this production and dissemination of information. Economists call these types of costs “externalities.”

An externality refers to any impact of an economic activity that is not captured in its price. The impact can be positive or negative. One traditional example is of a coal-burning power plant which sends pollution into the air. The cost of dealing with this pollution is not borne by the power plant, so it is not integrated into the price of the power. This cost is the externality. In the case of websites like Wikileaks, the cost of responding to the potential threats resulting from unauthorized disclosures and distribution of information is not borne directly by the Wikileaks producers.

Although it has been in recent news, Wikileaks is not the only “leaking” website (e.g., there are others including OpenLeaks, BrusselsLeaks, IndoLeaks, LiveLeaks, TuniLeaks, TradeLeaks, etc.) – all purport to have information that they have obtained by various means and now choose to disclose and distribute. In some cases these websites may pay others for the information. In some cases the suppliers of this information, in exchange for the money they may receive from the leaking websites, are drawn by greed, ignorance, or otherwise to violate their duties of trust to their employer or, in some cases, to their fellow citizens, or even their own conscience. In some cases the suppliers of the information may have the perspective that their unauthorized disclosure of the information to leaking websites will expose perceived wrongdoings by others (e.g., an employer engaging in illegal activities).

Not all “leaks” are “bad” or “wrong” or illegal. Each case requires critical thinking and analysis since any leaking of information will have consequences, or externalities. Problems will arise when information is distributed absent honest critical aforethought.

What are the tests that the courts, and our global village, might use to determine these information use parameters? How do cultural differences impact this analysis? What are appropriate remedies applicable to the person(s) creating, supplying, or disclosing the information? Perhaps the greater impact of the disclosures by the leaking websites will be the robust debate engendered by the activities of the leaking websites and not the information disclosed and distributed. What do you think?

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WikiLeaks in the News, January 31

Andrew Soubel (Editor) (Wolters Kluwer) — Mon, 31 Jan 2011 00:00:44 +0000

An interview of WikiLeaks founder Julian Assange by Steve Kroft from CBS’s 60 Minutes news magazine aired last night. The interview and an extended “Overtime” are available at the link above. Assange discussed himself, how WikiLeaks was similar to a press operation, and the possibility that WikiLeaks has Bank of America data.

MSNBC reports that WikiLeaks is continuing to release US Diplomatic cables relating to the Egyptian government. US diplomats raised a number of concerns with the Egyptians including treatment of dissidents, rioters, and bloggers.

CNET reports that a bill giving the President of the United States the authority over privately owned computer systems during a “national cyberemergency,” and prohibiting any review by the court system will be reintroduced this year. Senators Lieberman and Collins, who introduced the bill last year, state that it would only give the President authority over the internet backbone. Some worry, that without judicial review, the President could abuse the authority and shut down the internet similar to what was done in Egypt.

The NYT’s Executive Editor Bill Keller writes a lengthy peice on the NYT’s collaboration with WikiLeaks and Julian Assange on the release of the US diplomatic cables.

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WikiLeaks Rival OpenLeaks Launches

Andrew Soubel (Editor) (Wolters Kluwer) — Fri, 28 Jan 2011 16:19:48 +0000

NPR, PCMag and other are reporting that OpenLeaks, a rival to WikiLeaks launched by a former staffer, went live today.

On its website, OpenLeaks states:

OpenLeaks is a project that aims at making whistleblowing safer and more widespread. This will be done by providing dedicated and generally free services to whistleblowers and organizations interested in transparency. We will also create a Knowledge Base aiming to provide a comprehensive reference to all areas surrounding whistleblowing.

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WikiLeaks in the News, January 25

Andrew Soubel (Editor) (Wolters Kluwer) — Tue, 25 Jan 2011 17:40:48 +0000

GigaOm and Yahoo! News report that the New York Times is considering creating a rival to WikiLeaks. According to GigaOm, “the plan is still in its formative stages, but the idea is to create a “kind of EZ Pass lane for leakers,” to make it easier for them to contact the paper and deliver information.” GigaOm also mentions that former WikiLeaks individuals are set to launch OpenLeaks soon as well.

The New Yorker reports similar information about the NYT and OpenLeaks, but focuses on Al-Jazeera launching a new feature on its Web site called the Transparency Unit—the network’s in-house version of WikiLeaks.

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WikiLeaks in the News, January 20

Andrew Soubel (Editor) (Wolters Kluwer) — Thu, 20 Jan 2011 16:48:21 +0000

Bloomberg is reporting that WikiLeaks may have used music- and photo-sharing networks to obtain and publish classified documents. “WikiLeaks, which has said it doesn’t know who provides it with information, may seek out secret data itself, using so-called “peer-to-peer” networks” according to Tiversa Inc. Tiversa estimates that as much as half of the postings by WikiLeaks could originate from information siphoned from peer-to-peer users.

Bloomberg and Reuters both report that Rudolph Elmer, the banker who gave data to WikiLeaks, was arrested late Wednesday for possible violations of Swiss bank law.

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‘Wikileaks’ Banker Found Guilty

Andrew Soubel (Editor) (Wolters Kluwer) — Wed, 19 Jan 2011 17:31:58 +0000

The Washington Post, BBC, and Deutsche Welle, is reporting that Rudolph Elmer, the Swiss banker who gave WikiLeaks banking data, has been found guilty of violating Switzerland’s banking secrecy laws. He was sentenced to a fine of over 6,000 Swiss francs ($6,000).

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WikiLeaks in the News, January 19

Andrew Soubel (Editor) (Wolters Kluwer) — Wed, 19 Jan 2011 16:31:53 +0000

The Guardian reports that WikiLeaks has caused little real and lasting damage to American diplomacy, senior state department officials have concluded. There is similar coverage at Salon.com.

The NYT reports on the possible tax consequences for the individuals whose data was given to WikiLeaks by ex-Swiss banker Rudolph Elmer.

Bloomberg reports on the begining of ex-Julius Baer banker Rudolph Elmer’s trial for violations of Swiss secrecy laws.

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SEC Curious about BofA’s Wikileaks Documents

Andrew Soubel (Editor) (Wolters Kluwer) — Tue, 18 Jan 2011 20:57:40 +0000

Fox Business is reporting that the Securities Exchange Commission (SEC) is interested in any documents WikiLeaks releases relating to Bank of America. The SEC wants to know if there are documents in WikiLeaks possession that should have been turned over the SEC in previous disclosures.

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