Jan 17, 2012

The Boston fishing party and Australians’ rights online

A Melbourne activist is caught up in a remarkable social media fishing expedition by the state of Massachusetts.

Bernard Keane — Politics editor

Bernard Keane

Politics editor

An Australian activist is fighting an attempt by Boston authorities to subpoena information about her from Twitter in relation to the #occupy movement. Asher Wolf, a transparency and information activist, is based in Melbourne and over the past 18 months has quietly become one of the key people on Twitter for following news about transparency issues, WikiLeaks, net surveillance and the Occupy movement, via her extensive and systematic retweeting of information from around the world. Just before Christmas, she learnt that the Boston District Attorney Benjamin A. Goldberger had contacted Twitter and demanded user information about "Guido Fawkes, @p0isonANon, @occupyBoston, #BostonPD, #d0xcak3" in what is called an administrative subpoena, commonly issued by law enforcement agencies to holders of information such as telecommunications companies. The subpoena itself is bizarre and quickly became an internet laughing stock, as it got the #occupy account for Boston wrong (it’s @occupy_Boston, inter alia), it spelt @DoxCak3 wrongly, and purported to subpoena information about any account that used the hashtags #BostonPD and #d0xcak3. ("Guido Fawkes" isn’t a reference to the British blogger but the pseudonym of the holder of the account @p0isonANon i.e. it’s redundant). But in trying to subpoena a hashtag, the Boston DA, one Benjamin A. Goldberger, either through a lack of understanding of social media, or as part of an extraordinary international fishing expedition, has sought information about anyone who used the hashtags in a tweet during the dates identified in the subpoena. Goldberger also demanded that Twitter keep the subpoena secret, a request rejected by the company in the absence of any legal basis for it. Twitter last year defeated an attempt by the Department of Justice to keep secret a judicial order demanding information on users associated with WikiLeaks. Australian lawyers Doogue & O’Brien, acting for Wolf and another, have told Goldberger and Twitter that they will resist the subpoena, given its broad scope and the "fishing expedition" nature of the request. "The ultimate effect of your subpoena is to pose a direct challenge to our client’s right to free speech. This is particularly concerning in light of the fact that one of our clients is a journalist who uses Twitter, amongst other media, to report on current affairs. Twitter encourages the free flow of information and reportage. The course which you have taken will inevitably stifle this important function." How much standing Twitter's Australian users have is unclear. The user @p0isonANon, with assistance from the American Civil Liberties Union, is currently seeking to overturn the subpoena in the Massachusetts courts. But the subpoena is directed to Twitter, and it is up to the company, which is registered in Delaware and headquartered in San Francisco, to determine its compliance. Lawyer Bill Doogue says the current goal is to get more information, particularly about the criminal investigation the subpoena says is currently under way. "The simple step of subpoenaing a hashtag captures people doing nothing wrong or potentially wrong -- so why should their details be made available?" Doogue says, "But the essence is that Twitter shouldn’t be logging details like IP addresses." WikiLeaks recently launched a campaign to encourage Twitter, considered the most liberal-minded major social media company for its efforts to fight the Department of Justice, to end logging of real-time user information such as IP addresses. "In a progressive company concerned with protecting privacy and security of user data -- the defacto position should be no data retention," says Wolf. The broader issue here is how governments (and the corporations they frequently act at the behest of) are seeking to respond to the borderless nature not so much of the internet itself as of internet communities. The issue takes a number of forms: the UK legal industry maintains it has a form of extraterritorial jurisdiction, and has so aggressively asserted its right to silence people via internet-related libel cases that US lawmakers have responded. But at the same time, the United States assumes an almost unlimited extraterritoriality in the application of its laws, both generally and specifically on online issues -- the NDAA signed by Obama recently arrogates to the US military the power to abduct and indefinitely detain anyone considered to be linked to the War on Terror; British student Richard O’Dwyer is to be extradited under anti-terror legislation to face a decade in jail in the US merely for building a website that linked to filesharing sites. However, when the world’s biggest social media companies are based in the US, governments there need no extraterritoriality, leaving users in any country using sites like Facebook and Twitter, or services like Google, liable to monitoring by the US government or state agencies via US law. As Wolf points out, geographic segmentation is currently a standard feature of internet commerce, which means that in effect non-US internet users get the worst of both worlds when it comes to the borderless internet: they are subject to US monitoring of social media networks but often can't access the full benefits of US internet commerce. "If Amazon and iTunes can segment their markets for restrictive purposes," Wolf says, "then why not Twitter, to meet legal requirements enacted by countries demanding privacy protection for their citizens? "If the Australian government wanted to protect its citizens it could legislate to protect data owned or generated by Australian citizens -- by enacting strict laws against data retention," she says. "For instance, the government could legislate companies wishing to do business with Australian citizens must delete data and  traffic logs after a period of no more than three months after Australian citizens deleting their personal material. Australia should also place pressure on fellow common law countries to bring in similar legislation." The only real solution is social media networks outside the jurisdiction of nation-states. WikiLeaks is currently establishing its own social network, Friends of WikiLeaks, and Anonymous has established AnonPlus; there have also been anonymous microblogging sites such as Youmitter established, but their lack of critical mass is a key impediment, as is resilience in the face of surges in traffic, and they remain vulnerable, to the extent that it's enforceable, to authorities claiming to exercise jurisdiction over whatever servers are used to host the networks.

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9 thoughts on “The Boston fishing party and Australians’ rights online

  1. ggm

    The usual mantra from business is ‘only actions which maximise shareholder value’

    Arguably, taking social media offshore, outside the US jurisdiction, and giving the finger to the DoC would, at this point, be the most likely strategy to maximise shareholder value.

  2. SusieQ

    I’m a little tired of the US thinking it can control everything and everybody (hello guys if your’re reading this!!!) because of something we might have an opinion on being posted on an internet site.
    And considering the Australian governments attitude to Wikileaks, can you really see them doing anything to protect Australian citizens against any US action? Or will they wait till one of our citizens is the subject of an extradition request?

  3. Scott

    Some of the comments in the article sound a little naive in my opinion.

    It’s pretty simple really. To use US sites, you have to understand that you fall under US law. That is the price you pay for the ability to use Twitter, facebook etc. And it’s not as if these things aren’t made clear. There is always a “End user agreement” or “Acceptable use policy” when registering on the sites. It’s just that no one ever reads them.

  4. Edward James

    Government Australian British USA who ever want control of our freedoms to express first. Everything else is expected to fall into line behind that control. Perhaps we will see a rusty old ship parked in international waters full of high tech encripted wireless internet. A flash back to pirate radio. Edward James

  5. shotinfo

    Do you really think this is a US issue? The Australian Vaccination Network was ordered almost 2 years ago by the Health Care Complaints Commission (HCCC) to put a statement on our website saying that we are anti-vaccine when we are not. Due to our refusal to be told what we can and cannot say (censorship on the internet), the HCCC issued a public warning and government representatives are actively engaged with organisations that are trying to force us to close our doors. We are currently fighting them in the Supreme Court and believe that this battle is not just about one small parent-run organisation – it encompasses all our rights and freedoms – even those who hold beliefs not defended by corporate government.

    Freedom of communication is not supported in Australia any more than it is in the US. The difference is however, that the US has a Bill of Rights guaranteeing basic freedoms whilst we in Oz have nothing to protect us.

    Anyone who believes in democracy must support the right to communicate without interference, suppression and censorship. The moves to control the internet are not simply coming out of the US but are home-grown as well.

    Meryl Dorey
    Australian Vaccination Network

  6. Johnson Clayton

    These people who think a internet service not logging IP addresses will save them from being identified are idiots. That’s not how the internet has ever worked, and its never going to work that way.

    Regardless of whether my servers I host log IP addresses for web applications or not. If I need to find a hacker, I can always go to my upstream provider and ask them for the uplink logs. Which can NOT be made to not be logged. It is a necessary tool for fighting hackers, routing the internet, and keeping things running smoothly.

    Without this ability the hackers would have everyone of your credit card numbers. So you idiots wasting time on this. Need to get over it. There are 11 servers in the world that HAVE to log every transaction that goes from point to point. Get over it. You can never really hide on the internet. Someone who knows what they are doing can always find you.

    If you don’t want to become a target. Don’t say things that will make you a target. Plain and simple. Your one and only defense.

  7. Jean

    Ah, people making wise and perceptive remarks about Twitter, which I understand is some kind of Internet + mobile phone thingy.
    Make one feel so old.

  8. SusieQ

    Jean, yes, I’m with you, never used Twitter, not in a hurry to either.

    Johnson Clayton – whilst I appreciate your explanation, surely its getting a bit much for the US to spread its paranoid tenticles to other countries in this way? Yes, we should all be careful, but surely having an opinion on, for example, the Occupy movement here in Australia and expressing that view on Twitter here in Australia should not mean you have the heavies from the US breathing down your neck? The case of the British student, as mentioned in the article, is a perfect example of this.

    Surely we, as citizens of Australia, should be able to express opinions within the laws of our own country without having to worry whether we have broken the law in other countries.

  9. Cassidy Crystal

    Just wondering if there’s a lesson to be learned from a business which plans to float off-shore with out-sourced labor on board who make occasional visits to Seattle, thereby avoiding all kinds of immigration and labor regulations, etc. Is there someplace on the waters that is under NO government control? Just wondering.

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