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

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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.”

14 Comments

Chip

WOW, so much he said she said, it said, that said. The bottom line to me is how is it that Doj a branch of the Government, a PUBLIC entity that should be transparent isn’t

Absolute power corrupts absolutely

What is the biggest liar on the face of the earth? The US Government.

All because Google, Wiki, Twitter ect ect are in fact businesses they have to follow the orders set forth by the DoJ. Kinda like the Terms of Agreement that make us all criminals if needed when required.

At least that is my take on it

Joan

What right does the author feel he has to call Kim Dotcom a Fugitive?? This needs to be corrected.

He’s currently remaining in the country he is a citizen of and is exercising his right to justice in the New Zealand courts like any other citizen.

He has offered to go to the US under the condition he has a fair trial (money to fund a trial, and freedom unless found guilty). Guess what? The US has refused to offer a fair trial…

Julia

Did I understand this correctly,
There was a search warrant issued for a Google account on 24 Aug 2011.
A gag order was in place, then lifted. Google did not inform the account holder, but informed Wikileaks. Am I understanding that correctly?

Bella Magnani

No, not quite. See the conversation between me and the author below. I was confused at first, but it seems that whoever the Wikileaks-related Google subscriber was – informed by Google after the 24 Aug 2011 search warrant was lifted in Feb 2012 – never told Wikileaks about it. My money is on it being Siggi Thordarson, the Icelandic volunteer who the FBI paid as an informant against Wikileaks. The FBI got kicked out by the Icelandic Interior Minister when he found out about the illegal FBI op there, and Siggi is now in jail for fraud and paedophile offences. Or it could be Daniel Domscheit-Berg, another defector who many thought was working with the FBI.

fustbariclation

If you hand the keys over to the state, then this is exactly what you can expect.

In a corporate plutocracy, you’d have thought, though, that twitter and google would have enough money to buy whatever influence they wanted.

It isn’t really credible to suggest that google and twitter are unique in companies in not having ‘lobbyists’ to buy what they want.

Julia

Your statement assumes that every company would “spend to buy influence” in an unethical fashion.
Nevertheless are also eluding to Google’s State department ties,
That is well enough.
It is not a matter of “handing the keys over to the state”
The “keys” to the government are counterfeit. ie fraudulently made

Bella Magnani

This article doesn’t get anywhere near close enough to proving the 2012 lifting of the Google gag order relates specifically to a WikiLeaks subscriber. Where did you disprove your original idea that it related to Kim Dotcom? It’s known Google informed two ex-volunteers of the Wikileaks organisation about their data being subpeonaed by the DoJ in June 2013 (Herbert Snorsson & Smari McCarthy) and they both promptly broadcast the fact loudly:

Herbert Snorrson 21/6/13: On Confirmed Assumptions or Not Trusting Google is Good Idea:
http://archive.is/KWpdI

Smari McCarthy 21/6/13: The Dragnet at the Edge of Forever
http://www.smarimccarthy.is/2013/06/the-dragnet-at-the-edge-of-forever/

Jacob Applebaum, another associate of Wikileaks, has also always been highly vocal about his own attempts to find out whether Google has handed over his data, with no luck.

Where is your proof that subsequent to receiving the court’s permission to alert its 2012 gag-lifted subscriber that Google actually did so? It’s a bit of a leap, isn’t it, for you to suggest that “Google is likely being truthful” (and, by implication, that Wikileaks is “lying”)? In view of the threat of the US Grand Jury investigation, which they’ve been aware of since September 2010, Wikileaks has always been highly motivated to publicise the latest developments in the case. They made an announcement about the search warrants sent by Google the day the Wikileaks staff members received them, publishing the original documents a couple of weeks later.

On the other hand, Google has always been highly motivated to obscure the extent of their co-operation with the NSA and other government entities from their users as much as possible.

Bella Magnani

How does the author of this article get from an order dated 28 Feb 2012 saying Google can inform its subscriber about a search warrant dated 24 Aug 2011 to saying “we now know that was about Wikileaks”? Why do you think that 28 Feb 2012 order relates to “a successful challenge by Google to be able to inform Wikileaks”? The search warrants that Wikileaks is complaining Google never told them about are dated 5 April 2012. Any challenges made by Google, or indeed any lifting of gag orders relating to them, are going to be dated later than 5 April 2012.

Jeff John Roberts

Thanks for the comment, Bella. Perhaps I should have been clearer above that the Google lawyer, Gidari, confirmed that the 2012 orders relate to Wikileaks.

But, as you point out, it’s not possible to prove that definitively — unless the person to whom those orders relate confirms it. It’s hard to know why they haven’t (perhaps as part of a cooperation deal with the FBI?).

I don’t think Wikileaks as a whole is lying, nor am I 100% convinced Google is telling the whole truth. Short of full facts, all I can do — like everyone else — is put forth my best guess.

And once again, I think the real villain in this story is the Justice Department, which is using gag orders and secret search warrants in a way that is entirely inappropriate.

Bella Magnani

Thanks, Jeff, but I’m still not clear… You’re saying Gidari confirmed that the lifting order dated 28 Feb 2012 (and its related search warrant dated 24 August 2011) is related to Wikileaks, correct? Clearly, this is a completely different search warrant to the three dated 5 April 2012 that are the subject of Wikileaks’ lawyers’ recent letter to Google and the current ruckus.

But Wikileaks’ lawyers say they do NOT know who the 28 Feb 12 order/24 Aug 11 search warrant relates to. Is that also correct? If so, to me that implies Google never informed Wikileaks of this particular warrant, despite having been given permission to by the court.

I agree with you that the real villain is the DoJ – as Ben Wisner said a few days ago “The US grand jury investigation of Wikileaks has been a farce from Day 1 — the notion that foreign publishers are bound by US secrecy law is absurd.” – but I disagree that any of Wikileaks would have failed to exploit whatever legal window they found out about to fight the GJ investigation, or that they wouldn’t inform any associates about potential surveillance dangers. At a press conference in late 2011 about the Wikileaks SpyFiles release, Julian Assange confirmed he’d never used Google mail and told anyone who did “You’re all screwed”.

Jeff John Roberts

Yes, Bella, that’s correct: Gidari confirmed the Feb 28 order are Wikileaks-related, and it is different from the recent ruckus. And Ratner, the lawyer for the 3 staffers, says he does not know what the Feb 28 order is about. Also, and this is key, Gidari says all Google gag orders related to Wikileaks have been lifted.

So how to resolve all this? Possible explanations:

1) Google is not telling the truth. It never notified the account holders affected by the Feb 28 orders (there’s nothing in law that it says it has too). But that’s unlikely since Google was in court in the first place — for the specific purpose of challenging the gag order. (While this could be part of an elaborate ruse involving Google and the government, that just seems far-fetched; it’s more likely the simpler explanation is correct).

2) Ratner, the lawyer, is lying and covering up to prevent other Wikileaks staff members from feeling betrayed. I don’t think this is the case either — it’s more likely he was not involved in the 2012 orders, and genuinely doesn’t know what they’re about.

3) Both Gidari and Ratner are being truthful. If this is the case, the best explanation is that whoever was the subject of the 2012 order (and notification from Google) failing to tell others that the DOJ was coming for Gmail accounts.

I admit that, without complete facts (thanks to the US gov’ts abuse of gag orders), my explanations are speculative. That said, this is the best I can come up with.

Bella Magnani

The only two people who were once associated with Wikileaks who might have been informed by Google after the 28 Feb 2012 gag-lifting that they were the subject of the 24 Aug 2011 search warrant, but who aren’t likely to go public about it or inform Wikileaks or its lawyers are Daniel Domscheit-Berg (suspended by Assange in Sept 2010 for sabotaging the Wikileaks mail server; he later destroyed 3500 unpublished whistleblower submissions he’d stolen and was instrumental in leaking the unredacted Cablegate files) and Siggi Thordarson (recently jailed after pleading guilty to $60k embezzlement from Wikileaks and sex offences with a minor). Both of them could fit the description of a Google subscriber keeping quiet about a ungagged warrant “perhaps as part of a cooperation deal with the FBI”.

Bella Magnani

Ahh, we’ve cross-posted.

Well, I think we both reached a similar conclusion. Your point 3) seems by far the likeliest explanation. Unfortunately, my suggested names aren’t likely to get you any further forward towards the truth – both Siggi and Domscheit-Berg have been caught out lying in public statements, so they are unlikely to start telling the truth now.

mike

There is not the least bit of a reason to assume Google is lying in any way about this situation.

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