Google, gag orders and WikiLeaks: who’s lying?

The political fallout of WikiLeaks has passed, but the fury of law enforcement has not. More than four years after the organization published a trove of U.S. diplomatic cables, federal agents continue to wage a secret legal campaign to put the screws to those responsible.

This month, a new twist to the story emerged as lawyers for WikiLeaks accused Google of betraying its users by secretly turning over their communications to the Justice Department. Google shot back that it did all that it could, but the government stifled the company with gag orders.

The dispute suggests someone is not telling the truth but, at a deeper level, points to the problem of secret rabbit holes in the U.S. justice system that obscure the existence of criminal investigations.

Google said, WikiLeaks said

Right before Christmas, three WikiLeaks staffers received notice from Google that the search giant had turned over information about their Gmail accounts to law enforcement in early 2012. The news, while unpleasant, can hardly have come as a total surprise: the government has aggressively gone after others involved in the cable dump, and it’s widely known that prosecutors made similar search demands of Twitter.

Lawyers for the WikiLeaks staffers, however, issued a public letter to Google, saying they were “shocked and disturbed” that the company took two and half years to notify them about the requests. They implied Google sold out the staffers, who regard themselves as journalists, to the federal government.

In response, Google took to the press through one of its lawyers, who told the Washington Post that the company had been silenced by court-imposed gag orders, and that it has repeatedly gone to court for the right to tell WikiLeaks users about the search requests.

This does not appear to have satisfied Michael Ratner, a lawyer who represents the staffers.

“To this date we have had no answer to our questions from Google.  To accept that they challenged the gag order, or any other matters, we would need a written answer from Google to our letter,” Ratner told me by email last week. “We also want to be assured that they challenged the gag order before they turned over any of the material.”

He added that the group also wants full copies of all the legal papers that were served on Google, and suggested that the company is not as vigilant in standing up for its customers’ privacy as are Twitter and Microsoft.

The result is a standoff in which it’s impossible for journalists or anyone else to know for certain whether Google is being truthful. Court records and further conversation with a lawyer for Google do, however, provide a better picture of what’s going on.

“Google is still muzzled”

It can be a surprise for lawyers and journalists, who are used to treating court records as public documents, to discover just how

Photo by Alain Bachellier/Flickr
Photo by Alain Bachellier/Flickr

much the Justice Department cloaks its legal process in the name of national security. In cases related to mass data collection, for instance, many of the dockets are sealed, and the tech companies involved are precluded from even disclosing they are before a judge in the first place.

A similar situation surrounds the WikiLeaks investigation. Under laws that govern special subpoenas and search warrants, the Office of the U.S. Attorney in Eastern Virginia has obtained gag orders that forbid Google from telling users that law enforcement has demanded access to their email accounts.

The gag orders normally last 90 days. But according to Al Gidari, a lawyer for Perkins Cole who represents Google, the Justice Department has been pushing judges to renew the order over and over — even though Google presumably gave up information about the accounts long ago. He also suggested that this behavior was tied to public outcry over the government’s demands to obtain Twitter accounts of those it believed were tied to WikiLeaks-related suspects (including an Icelandic member of Parliament).

“[They] became aggressive immediately in the wake of the Twitter backlash and opposed Google notice to users out of the box. Thereafter, it was always a fight to get any notice. Ultimately, Google prevailed with the passage of time and was able to give notice to users but it still can’t discuss the orders,” Gidari said.

Gidari also said that, while all gag orders related to notifying WikiLeaks staff about Google searches have been lifted, other restrictions remain in place.

“The [Assistant U.S. Attorneys] did everything they could to muzzle Google, and Google is still muzzled so I can’t answer specific questions about any order other than to tell you that Google is seeking to have all of it unsealed.”

Gidari added that the reason Google hasn’t released documents about the investigation, or provided formal answers to WikiLeaks’ recent letter, is because it can’t. Under the terms lifting the gag order, Google can’t do anything more than tell the affected users that law enforcement has demanded access to their account.

Unfortunately, Gidari’s explanation can’t be verified since the company hasn’t shared the judge’s ruling that lifted the gag order — and is likely forbidden from doing so.

Meanwhile, an Assistant U.S. Attorney named Andrew Peterson who is involved in at least one case involving WikiLeaks and Google did not respond to multiple requests to explain the state of the gag orders. A spokesman for his office, Joshua Stueve, declined to comment.

Did Wikileaks know all along?

The dearth of documents (recall the government won’t even acknowledge that most of them exist) about the WikiLeaks Julian Assangeinvestigation is frustrating, but the court docket does supply one important clue about what is going on: a few pages of court rulings from 2012 that suggest someone in WikiLeaks knew the Justice Department was targeting Gmail accounts.

I came upon these pages in March of 2012 and surmised they related to either WikiLeaks or to file-sharing kingpin Kim Dotcom (another high-profile fugitive of the U.S. government). Google told me at the time it could not say who the filings were about, while while the government refused to say anything.

Now, we know the filings were about WikiLeaks. And, like the current dispute between Google and the WikiLeaks staffers that came to light around Christmas, they relate to when the company can tell someone that the Justice Department has asked for their emails.

In a crucial passage from the earlier Google file, U.S. Magistrate Judge Thomas Rawles Jones, Jr. tells the government why it can no longer bar Google from telling its subscribers about the search demand (emphasis mine):

However, the court now finds that the government’s interest in concluding its investigation no longer outweighs disclosure to the subscriber of the existence of the warrant.

The sole potential problem that notification might create that was raised by the government with specificity has now been eliminated by subsequent events.

In a related order issued a month later, Judge Rawles issued a further, important clarification: he said his first ruling not only allowed Google to notify the subscriber, but also allowed the subscriber to tell others about the search (the judge added the order would not go into effect for 14 days to grant the government time to appeal, but no such appeal appears to have succeeded).

Google appears to have mounted a successful challenge in 2012 to tell someone in the WikiLeaks organization  — perhaps its leader, Julian Assange — that the Justice Department had carried out a search of their account. If so, this raises the question of why that person failed to broadcast that fact and, in doing so, warn others to be on guard.

In response to a question about the orders that appeared in early 2012, the lawyer for the WikiLeaks staffers simply stated by email, “I don’t know who these orders concern.”

Who is lying?

The recent back and forth between Google and WikiLeaks, along with the existence of the 2012 documents, suggest Google is likely being truthful about its efforts to challenge the gag orders. Meanwhile, someone in WikiLeaks may have failed to use an earlier legal window to tell others in the organization — and the general public — the Justice Department was searching Gmail accounts.

But it’s impossible to know for sure. And that, in turn, points to the biggest liar in the Google-WikiLeaks affair: the U.S. government, which claims that national security requires it to disregard even the most basic principles of procedural justice by scrubbing the very existence of certain dockets — including ones that appear to have no obvious tie to security.

Keep in mind that the secret court orders related to the Google-WikiLeaks conflict are not about disrupting potential terrorist plots. Instead, they represent a process for the Justice Department to search the correspondence of people who consider themselves to be journalists, and to use gag orders to ensure it takes years to learn a search has taken place at all.

This is just the latest spread of a shadow justice system that serves to breed paranoia and distrust. Whether you believe Google or WikiLeaks, their current dispute wouldn’t exist in the first place if the Justice Department scaled back its use of secret investigations.

“Central to this whole question, is not just Google, but the federal government,” Ratner said. “This entire investigation, including the search warrants, is a broad attack on free speech and free press. It should have never begun, and certainly should have ended long ago.”