Archive for January, 2011

US Subpoena: Twitter Does the Right Thing

Finally, something good to say about Twitter.  Generally, I found the whole concept of Twitter — expressing yourself in 140 characters or less  — awful, but now I think Twitter’s great.  This is not because I’m a sudden convert to brevity, though. It’s because Twitter’s done the right thing by users, setting at least a minimal baseline that other ‘digital intermediaries’ would do well to follow (but typically do not).

In December last year,Twitter was approached by a subpeona wielding US DOJ with the request to turn over account user information for a targeted list of people that were, in one way or another, associated with Wikileaks. It refused to do so without without first notifying the people targeted. They also gave them ten days to respond before just handing over OPD (other people’s data) to the DOJ.  It also appears that Twitter successfully challenged a ‘gag’ order preventing them from notifying these people that the US Government was seeking information about them (see the story by Declan McCullagh of CNET here).

So far, we know that the DOJ’s list included at least three people. The first is an Icelandic politician and member of the National Parliament, Birgitta Jonsdottir. She’s probably on it because she has a radical plan to make Iceland a digital freedom of expression haven, and because she brought Julian Assange, one of the founders and posterboy for WikiLeaks, to a party at the US ambassador’s house in Reykjavik last year (see McCullagh).  Kind of embarrassing, in hindsight, I’d guess, especially since nobody recognized him.

In Jonsdottir’s plan, Iceland would be turned into a ‘digital free speech’ haven; kind of what like the Cayman Islands are to banking. The purpose, however, would be noble — to advance human rights and democratic governance by promoting freedom of expression — rather than laundering money or evading taxes.

Besides these good things, Iceland would be perfect as a ‘digital free speech zone’ because its cool climate would minimize the high cost and ecological consequences of running massive air conditioners non-stop to keep Internet servers and data warehouses cool. Fiber optic cables already link the UK and Iceland, but those cables overwhelmingly serve the interests of financial traders in the City of London, not free speech. Even these well-pampered malcontents, however, complain that the zillionth of a second delay in fibre optic cables from London to Reykjavik retards their ability to trade.

Iceland knows all about the financial traders too, because of the calamitous impact that the Global Financial Crisis has had on the tiny country.  Rather than the country continuing under the tutelage of the IMF — the first in Europe to do so since the UK in 1976, and not since the late-19th Century when financial crisis wreaked havoc on Spain, Portugal and other ‘weak economies’ of the continent — the Icelandic ‘digital free media zone’ could also be a great source of economic growth. In such an instance, perhaps ‘digital capitalism’, human rights and democracy really could go hand in hand.

I think this is a great idea for Canada, too. I’d suggest that the Maritimes could be our own little ‘Iceland within’, given that the trans-atlantic cables carrying the vast majority of communications between North America and Europe traverse there.  They have done so since the middle of the 19th century.

The climate’s reasonably cool, too, so keeping servers and data warehouses from over-heating would also be cost effective and a good option environmentally. It’d be a great economic development and diversification strategy, too.

Doing this in Canada would no doubt require bending the Canadian Government’s, and the Communication Security Establishment (CSE) in particular, preference to use Nova Scotia and Newfoundland’s place at the crossroads of world communication for surveillance and national security purposes. If this could be achieved, the results would allow a kind of ‘North Atlantic Digital Free Media Zone’ to be formed, with Iceland and Canada as its inaugural members.

The Scandanavian countries — Norway, Sweden, Denmark, Finland — might also be easily cajoled into expanding the terrain further. Such an initiative would surely allow Canada, to use an expression beloved of conservative thinkers, to ‘punch well above its weight’ in all matters digital.  We could be a beacon to the world — the cornerstone of a vast North Atlantic Digital Free Media Zone rather than just the familiar zones of free trade and fast capital flows.

I digress.  Back to Twitter, the ‘poster child’ of open and responsible social networking for the moment.  Two other people, besides Josdottir, have apparently been contacted by Twitter in relation to this matter.  The first is Wikileaks’ volunteer, Jacob Applebaum, who was also notified by Twitter that the US Government was scrounging around and wanted the records on his use of the short messaging service.  Twitter sent a similar letter to the famous Dutch hacker, Rop Gongrijp,as well, who promptly responded by posting the notice on his blog. You can see it here.

Twitter is to be applauded for not just handing over information from and about its users willy-nilly without letting them know first that it had been strong-armed into doing so by the US Government.  Its letters to Josdottir, Applebaum and Gongrijp give them 10 days to respond and suggests that they look to the Electronic Frontier Foundation, the public interest legal watchdog on all matters digital and related to the internet/cyberspace, for advice in the matter.

So far, the EFF will represent Josdottir in the U.S. on the matter, although Iceland has also turned up the political heat on the US over the issue of such treatment of one of its members of National Parliament.  A group of EU Parliamentarians, the Alliance of Liberals and Democrats, a body that is 85 members strong and the most influential and largest of its kind, has also weighed in on the case in no uncertain terms.

Thus, this is no longer just a legal case implicating Twitter; it is also a diplomatic one, too. Nation-States, and the US in particular, are clearly flexing their muscle and attempting to assert their sovereignty over cyberspace. Scholars like Lawrence Lessig, Ronald Diebert, Jonathan Zittrain, and Timothy Wu have long shown that cyberspace is no more immune to government intervention than you or are I are immune to the laws of gravity.  From struggles over the Internet Corporation for the Assignment Names and Numbers (ICANN), to the rift between Google and China and, now, the ‘Twitter case” clearly expose that fallacy for what it is.

Many other ‘info intermediaries’, from Internet Service Providers (ISPs) to search engines, social networking sites, and phone companies just turn this stuff over when requested.  The hand-over and take-down notices issued to these key ‘digital intermediaries’ by government, law enforcement and entertainment industries are plentiful.  The demands are often times ‘overly-broad’, especially with respect to claims of copyright infringement.

That companies comply with such demands was made painfully clear during the Terrorist Surveillance Project and unauthorized electronic wiretaps cases during the Bush Administration’s so-called Global War on Terrorism, as broken in 2005 by NYT writers James Risen and Eric Lichtblau, although only after even the editorial board at the NYT sat on the story for a year.

As the subsequent court cases showed, all of the major telephone companies in the US, except Qwest, silently complied, and subsequently tried to obstruct and obscure their role (see here, here and here).  While the court’s condemned these activities, they were retroactively made legal through new legislation passed by the US Congress in 2008.

Today’s ‘digial intermediaries’ collect and keep vast stores of information that we generate for three reasons: (1) for business strategy; (2) because user information is a valuable commodity and (3) because they are required to do so by law, so that the State can pull on this resource in the interest of fighting crime and National Security when it asserts the need (and gains the legal authority) to do so.

In order to get a magnitude of the sweeping discretion that these entities reserve for themselves, try to keep the scales peeled back from your eyes and read the “acceptable user/terms of service” policies of your Internet and telephone provider (e.g. Verizon, Comcast, Bell Canada, Rogers),  the SNS site you use most (Facebook, MySpace, Orkut), or the search engine you like most (Google, Yahoo, Bing).  The breadth of control asserted over user generated content (UGC) is breathtakingly broad.

According to these defacto ‘private laws of cyberspace’, what these firms do with the stuff we generate online is pretty much up to them (within broad limits, as the Privacy Commissioner of Canada made readily apparent to Facebook in 2009, for example). Typically, they hand stuff over to law enforcement without you knowing about it.

We typically think that we are generating information for those we know and perhaps an audience that we would like to appeal to for one reason or another, but ‘digital intermediaries’ make money by selling access to our personal information and User Created Content to others, typically advertisers and marketers.  The problem with this is that in creating these ‘digital stores’ of information, they also create a repository that governments and security interests can gain access to. The EFF advises the shortest ‘user information retention policies’ possible; thus far, it is mostly small outfits that do so, such as IndyMedia centres.

It is against this backdrop that the significance of what Twitter has done is clear. It has not flouted the law, but complied with it in a way that seems to afford a great deal of respect for users’ interests.  It has at the very least given considerable weight to the interests of its users, rather than just to its own commercial interests or those of the US DOJ.  It has helped render the process transparent and public. It has given Jonsdottir, Applebaum and Gongrijp time to cobble together a meaningful response; and to cultivate our interest and some media attention in the meantime. Twitter has also indicated that in these kinds of situations, a powerful counter-legal response is required.  And to do that, one of the best around is the Electronic Freedom Foundation.

This is about communication rights, on the one hand, and law and interests of the state on the other.  Twitter has helped to frame it like that, and should be commended for doing so.  So, in 140 words or less, Twitter has done the right thing.

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