For more than a year, Icelandic Member of Parliament and EFF client Birgitta Jonsdottir—along with security researchers Jacob Appelbaum and Rop Gonggrijp—has fought the efforts of the Department of Justice to force Twitter to give up information about their online activities. In December of 2010, the government obtained a court order requiring, among other things, Twitter to hand over their IP addresses at login (which can be used to trace their locations) along with a long list of other information. EFF, with the ACLU and a host of private attorneys, fought back, but the U.S. courts rebuffed our efforts.
The courts’ analysis is troubling on many grounds. One such ground is the fact that the courts determined Ms. Jonsdottir’s information could be seized despite the fact that Ms. Jonsdottir, whose actions on behalf of Wikileaks all seem to have occurred in Iceland, appears to have complete immunity against this investigation under Icelandic law as a member of the Icelandic Parliament.
While Ms. Jonsdottir’s specific situation is unique, many non-U.S. users of Twitter are rightfully unnerved. At least according to the magistrate and judge in Virginia, all of a users' communications records can be subject to review by the U.S. government without a warrant because the users chose to use an online "cloud" service that stores data about them in the U.S.
But even as the U.S. courts have refused to see the dangerous implications of their rulings, others have appropriately raised alarm. In a little noticed story last fall, the Inter-Parliamentary Union, which represents members of parliament from 157 countries, issued a stunning rebuke to the United States and the Department of Justice over its investigation into Ms. Jonsdottir. In a unanimous declaration, the IPU condemned the Justice Department’s conduct as a violation of Ms. Jonsdottir’s free speech and privacy rights, and even suggested the demands for her private information violated the Universal Declaration of Human Rights.
The IPU noted astutely that “the legal framework concerning the use of electronic media, including social media, does not appear to provide sufficient guarantees to ensure respect for freedom of expression, access to information and the right to privacy; the guarantees protecting freedom of expression and privacy in the 'offline world' seem not to operate in the ‘online world.’”
The IPU is, of course, right. The laws governing stored communications online were written before the World Wide Web even existed and are severely outdated. Congress' failure to update the laws only increases the harm to users as more of our activists move online.
The IPU also noted the special concerns of Parliamentarians by addressing the confluence of the democratic process, privacy protections, and freedom of expression: “For members of parliament, it is essential that any private communication they receive is accorded the same level of protection regardless of the technology, platform and business model used to create, communicate and store it. This does not appear to be the case today.”
The IPU continued on the topic of freedom of expression noting: “In all countries, freedom of expression is essential to democracy; citizens cannot exercise their right to vote or take part in public decision-making if they lack free access to information and ideas and are unable to express their views freely.” The IPU noted correctly that without these freedoms “members of parliament cannot represent the people who have elected them.”
The IPU’s declaration on behalf of Ms. Jonsdottir should serve as a warning to the United States. While the U.S. government advocates for greater Internet freedom abroad, it is vital the U.S. serves as an example for how other governments should approach free speech and privacy online, for both parliamentarians and ordinary people. Especially when confronted by the concerns of elected officials, to do otherwise not only tarnishes our image, but also betrays the foundations of our own representative democracy.
