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Birgitta Jonsdottir, formerly of WikiLeaks, and an Icelandic MP, has had her Twitter account subpoenaed by U.S. government. She is photographed at The Globe and Mail during and following an editorial board meeting on Jan. 11, 2011. (Peter Power/Peter Power/The Globe and Mail)
Birgitta Jonsdottir, formerly of WikiLeaks, and an Icelandic MP, has had her Twitter account subpoenaed by U.S. government. She is photographed at The Globe and Mail during and following an editorial board meeting on Jan. 11, 2011. (Peter Power/Peter Power/The Globe and Mail)

Twitter-WikiLeaks case a test of press and privacy rights online Add to ...

Two weeks ago Birgitta Jonsdottir, the self-styled activist Member of Parliament from Iceland and central figure in the important and ongoing Twitter-WikiLeaks cases, was in Ottawa. We sent her a tweet, got a quick reply, then met to talk about whistle-blowers, privacy and the role of the free press in the age of the Internet.

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Ms. Jonsdottir is one of the co-producers of Collateral Murder, a selectively edited video that documents a U.S. military helicopter gunning down two Reuters staff and several others in the streets of Baghdad. The distribution of the video over the Internet in April 2010 shed light on events that the U.S. military had not disclosed and marked the beginning of WikiLeaks’ campaign to release what would be the largest cache of U.S. classified material the world has ever seen.

Over the course of the next year, WikiLeaks joined together with five of the world’s most respected news organizations – The New York Times, The Guardian, Der Speigel, Le Monde and El Pais – to publish material that wreaked havoc with the routine conventions of journalism, diplomacy and war. The near simultaneous publication of the material also set the global news agenda three more times in 2010: (1) during the release of the Afghan and (2) Iraq war logs in July and October, respectively, and (3) a cache of diplomatic cables starting in late November.

The modern day whistle-blowing campaign garnered a number of prestigious awards for journalistic excellence, including Readers’ Choice in Time magazine’s Person of the Year (Julian Assange) (2010), International Piero Passetti Journalism Prize of the National Union of Italian Journalists, Italy (2011) and the Walkley Award for Most Outstanding Contribution to Journalism, Australia (2011), among many others.

It also unleashed the wrath of the U.S. government and a wave of recrimination and reprisals against WikiLeaks, and its key figures. Some literally called for its enigmatic frontman, Julian Assange, to be assassinated. In December 2010, Senator Joe Lieberman, Chair of the Senate Committee on Homeland Security and Governmental Affairs, pressured Amazon, Paypal, Mastercard, Visa and everyDNS to cut-off resources essential to WikiLeaks’ survival: including servers, data storage, domain names and online payments. Apple removed a WikiLeaks app from the iTunes store shortly thereafter.

The actions did not kill WikiLeaks, but they did cause its donor funding to plummet by an estimated 90 per cent.

The publication of classified material by WikiLeaks triggered an investigation by the U.S. Department of Justice into the source of the leaks. That quickly led to the arrest of U.S. Army intelligence analyst, Bradley Manning, in May 2010. It also issued a series of “secret orders” to popular U.S. search and social media sites in a more or less successful bid to access information about people of interest to its WikiLeaks investigation.

Birgitta Jonsdottir is one of those people. So, too, are Mr. Assange, WikiLeaks volunteer Jacob Applebaum and Dutch hacktivist Ron Gongrijp. Their struggle to know which Internet companies received the DOJ’s “secret orders,” and to prevent the disclosure of information about them, raise fundamental questions about state secrets, transparency and privacy rights. They also cut to the heart of journalism in light of how social media like Twitter and Facebook are now routinely used by journalists to access sources, share information, and generally to create and circulate the news.

The Guardian recognized the significance of the Twitter-WikiLeaks cases last month by including Ms. Jonsdottir, Mr. Assange, Mr. Applebaum and Twitter’s chief legal counsel, Alex MacGillvray, on its list of 20 “champions of the open Internet.” The latter was on the list because Twitter was the only Internet company to challenge the DOJ’s “secret orders” (not “court authorized warrants”), while others appear to have rolled-over and shut-up.

Twitter won a small victory in January 2011 when it obtained a court order allowing it to tell Jonsdottir and the rest of the parties involved that Justice wanted information about their accounts. Whatever hope was raised by that ruling, however, was dashed by a blunt district court ruling in the second case 10 months later. It ruled users of commercial social media platforms have no privacy rights because these companies’ business models are based entirely on maximizing the collection and sale of subscriber information. As such, Jonsdottir and the others involved in the case “relinquished any reasonable expectation of privacy” the moment they clicked on Twitter’s terms of service.

At the end of the legal line, Twitter reluctantly handed over a slew of information about their Internet service device numbers, registration pages, connection records, length of service and so on.

The final round of the Twitter-WikiLeaks cases is expected by the end of June when the ACLU and EFF’s last ditch appeal to reveal what other Internet companies received the Justice Department’s “secret orders” will be decided on. Unless the decision rules in their favour, we may never know for sure who these companies are, although Ms. Jonsdottir notes that all eyes are on Facebook, Google and Skype (Microsoft).

Ms. Jonsdottir isn’t holding her breath. Pausing to reflect on the personal effects of these cases, she remains surprisingly upbeat.

“You have to completely alter your lifestyle,” she says. “It’s not pleasant, but I don’t really care. It’s just insults my sense of justice. I would not put anything on social media sites that I don’t want on the front pages of the press.”

She no longer travels to the U.S. on advice of her lawyers and the State Department of Iceland out of fear that she may be arrested. Yet, more than dwelling on the personal costs, Ms. Jonsdottir wants to prick the fantasy of Barack Obama as a great liberal president and the illusion that the U.S. turned a corner when he replaced George W. Bush. Of course, Mr. Obama has taken a liberal stance on some social issues – his endorsement of gay marriage being the most recent – but the national security imperatives that took root in the U.S. after 9/11 have just gotten further entrenched. The Obama administration has charged more whistle-blowers (six) than all past presidents combined (three), she notes. The Twitter – WikiLeaks cases have also all occurred on Mr. Obama’s watch, she reminds us. More examples wait in the wings.

She is not alone in such views. Harvard University law professor Yochai Benkler argues that the decisions by Amazon, Visa, Paypal and Mastercard to withdraw resources essential to WikiLeaks’ survival under pressure from government official is tantamount to the state using compliant commercial actors to do an end-run around the First Amendment. The latest version of the Reporters without Borders’ Press Freedom Index also shows the U.S. dropping from 20th place in 2009 and 2010 to 47th place in 2011, in contrast to the brief, but substantial, improvement during Mr. Obama’s first year in office.

Ms. Jonsdottir is probably fighting a losing legal battle in the U.S., but back in Iceland she is busy building a model of the free press fit for the digital media age. To do so, she and a few others are spearheading the Icelandic Modern Media Initiative (IMMI), a project launched by Iceland’s Parliament in 2010. It’s aim? To give whistle-blowers, privacy and free speech the highest standard of legal protection in the world, and make net neutrality a cornerstone of Iceland’s new Constitution.

Idealistic? For sure, but realistic too. The new constitution – mostly written online as an experiment in “crowd-sourcing” – is finished and awaits ratification. Reporters Without Borders calls IMMI “exemplary,” and evidence of progress in a country that already ranks at the very top of its press freedom index. Even Google is funding one small element of the effort: the development of a “democracy index.”

Ms. Jonsdottir is undoubtedly pushing the radical edges of what is possible, but she is acutely aware that while we may never know for certain if companies such as Google were served with the Justice Department’s “secret orders,” not all of them are happy to be used as tools of the state, wittingly or not. Venture capitalists have also told her that the Twitter-WikiLeaks saga is casting a pall over all U.S. Internet companies. IMMI’s commitment to creating a free digital media zone – not to mention pitching Iceland’s cool climate, which is good for data centres – is also about attracting investment in Internet businesses in the country.

So, dreaming big is not unbridled idealism, but pushing the envelope of what is possible. That’s what democracy is about, Ms. Jonsdottir says. “Voting every four years is absolutely not democracy,” she exclaims as our conversation draws to a close, “it is just a transfer of power.” And while she thinks that the Internet is fantastic, experience teachers her that it will never be able to create a free press and better democracy unless people fight like hell for what they believe in, and press equally hard to build the political and legal frameworks that allow such goals to be achieved.

Dwayne Winseck is a communications professor at the School of Journalism and Communication, Carleton University in Ottawa. Prof. Winseck been researching and writing about media, telecoms and the Internet in one way or another for nearly 20 years. You can read more comment on his blog, Mediamorphis.

Patrick McCurdy is the Assistant Professor at the Department of Communication, University of Ottawa, he blogs at pmmcc.

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