Why Twitter Was the Only Company to Challenge the Secret WikiLeaks Subpoena

The government has almost certainly made secret requests for WikiLeaks-related material from other companies. But only Twitter (successfully at least) fought to have to have those orders brought into the open. Here’s why.

Secret subpoenas* information requests of the kind the Department of Justice sent Twitter are apparently not unusual. In fact, other tech companies may also have received similar WikiLeaks-related requests. But what is unusual in this story is that Twitter resisted. Which raises an interesting question: Assuming that Twitter was not the only company to have been served a secret subpoena order, why was it the only company that fought back? The answer might lie in the figure leading Twitter’s legal efforts, Alexander Macgillivray (right), an incredibly mild mannered (really) but sharp-as-a-tack cyber law expert.

Twitter’s general counsel comes out of Harvard’s prestigious Berkman Center for Internet and Society, the cyber law powerhouse that has churned out some of the leading Internet legal thinkers. The center was founded a little over a decade ago by none other than Charles Nesson, the famous defender of Pentagon Papers leaker Daniel Ellsberg. While at Harvard, Macgillivray helped teach a course on the law of cyberspace, along with Wendy Seltzer, a fellow at Princeton’s Center for Information Technology Policy. Today Seltzer leads the Chilling Effects clearinghouse, a collaboration between several law schools and the Electronic Frontier Foundation, which tracks legal challenges to lawful online activity.

After Harvard, Macgillivray worked as a litigator for Silicon Valley super-firm Wilson Sonsini Goodrich & Rosati before moving to Google, where he first spearheaded legal issues for products like Search and Gmail. He soon found himself enmeshed in the fractious Google Books lawsuit. Observers credit Macgillivray’s agile mind and creative thinking with architecting with the Google Books Settlement--a solution that both enabled Google to lawfully scan the contents of university libraries and to create a mechanism for authors and publishers to get their out-of-print books back into circulation.

Twitter wooed Macgillivray away from Google in the summer of 2009, and he now heads a 25-person legal team. Throughout his career, he has remained an avid student of Internet and intellectual property law, and calls himself a tinkerer of sorts--his personal website is called “bricoleur,” a French term he says refers to one who “[tries] things out until they figure out how to do something.”

Macgillivray also curates a Twitter list of the primary thinkers tangling with cyber issues, and he has occasionally returned to Berkman to guest lecture or speak on topics of the day. Coincidentally, a week before the DOJ subpoena, Macgillivray was tweeting about a government analysis looking at which criminal statutes might apply to the WikiLeaks-style publication of leaked classified documents.

Twitter has declined to comment on the original subpoena order and the company’s fight to get it unsealed. What we do know is that it was faxed to Twitter on December 14. On January 5, the same magistrate who signed the first order, signed a new one, ordering the first to be unsealed. And on January 7, Twitter sent notifications to at least several of the holders of the accounts listed on the subpoena order, telling them the company would respond to the request in 10 days, unless “we receive notice from you that a motion to quash the legal process has been filed or that this matter has been otherwise resolved.”

It’s reasonable to assume that Macgillivray is the person who either led or played a significant role in the thinking that resulted in the decision to challenge the secrecy aspect of the order. If so, it’s a smart move.

Whatever Twitter might feel about the subpoena order (and we at Fast Company haven’t seen any sign that it feels strongly one way or the other--though the notice to the account holders did conveniently include contact information for both the EFF and the ACLU), by making the subpoena order public, Twitter takes itself out of the drama.

With this solution, Twitter gets to act the part of good citizen—both to its users and to the government. But it leaves the job of taking a stand on the appropriateness of the subpoenaorder itself to the targets. And indeed, two have said they plan to contest it. (One other said he is considering his options. The other two people named in the order--other than the WikiLeaks account itself--are Julian Assange (who it’s not clear actually has his own Twitter feed) and Bradley Manning, the accused leaker who is currently being held in a military jail.)

It’s impossible to know whether other companies received similar subpoenas orders and, if so, whether they handed over the required information. That’s because the orders’ secrecy requirement forbids recipients from even acknowledging their existence. (The original Twitter subpoena reads: “[T]he application and this Order are sealed until otherwise ordered by the Court, and… Twitter shall not disclose the existence of the application and this Order of the Court, or the existence of this investigation, to the listed subscriber or to any other person, unless and until authorized to do so by the Court.”)

Indeed, neither Google nor Facebook have responded to requests for comment on whether they were served with similar subpoenas orders. Which could mean either “Yes, we have but are prevented by law from acknowledging that,” or “No, we haven’t, and we simply aren’t talking about it.”

But it’s not improbable that both have--and likely others as well. It appears that the attorney general conducting the investigation is interested in discovering who the account holders communicated with. While the Twitter subpoena order does not ask for the content of messages--whether public or private--it does ask for records of addresses with which the accounts communicated. (See #B.2. on p. 4 of the subpoena order.)

To us, this looks like the government is using the records request as a tactic to ferret out who else might have been involved in the leak. If so, it would make sense to request records from Facebook, given that Manning reportedly stated that, after deciding to leak classified materials, he had reached out to activists on Facebook. Similarly, if we were a U.S. Attorney on a fishing expedition, we would assume that Manning, Julian Assange, and the others named in the Twitter subpoena order, might have Gmail accounts--in which case, it would make sense to request those records from Google as well. And to make similar requests to any other companies the targets might have used for similar communications.

WikiLeaks, for its part, certainly seems to think that Google and Facebook were served similar subpoenas order. On January 7, WikiLeaks tweeted: “Note that we can assume Google & Facebook also have secret US government subpeonas (sic). They make no comment. Did they fold?”

We may never know. But if they did, it may in part be due to the fact that they did not have a cyber-law bricoleur like Macgillivray helping them think through their possible options.