Google released another legal disclosure notice related to the United States government’s ongoing grand jury investigation into WikiLeaks. It informed journalist and technologist Jacob Appelbaum, who previously worked with WikiLeaks, that Google was ordered to provide data from his account.
The disclosure suggests the grand jury investigation may have sought Appelbaum’s data because the US government believed data would contain details on WikiLeaks’ publication of State Department cables.
Appelbaum has been under investigation because of his connection to WikiLeaks for four to five years. He has been detained and interrogated at the US border multiple times. He was one of three subjects of an order the government issued to Twitter for account data for its investigation, which Twitter and other groups like the American Civil Liberties Union (ACLU) and Electronic Frontier Foundation (EFF) challenged in court.
He was recently profiled along with Chinese activist and artist Ai Weiwei in a short film by Laura Poitras, “The Art of Dissent.” He lives in Berlin, where he has spent the past couple of years reporting on documents from NSA whistleblower Edward Snowden for media organizations like Der Spiegel. His lawyers have advised him not to return to the US.
Google’s full legal disclosure to Appelbaum consisted of 306 pages of documents. He did not post the disclosure in its entirety but shared screen shots of parts of the disclosure through his Twitter account.
On April 1, the government apparently determined there was some information that could be disclosed to Appelbaum.
The government seems to confirm in legal documents that it does not consider WikiLeaks to be a journalistic enterprise. It also writes, “The government does not concede that the [redacted] subscriber is a journalist,” referring to Appelbaum.
Nevertheless, the government broaches the issue and insists “newsmen” may be subject to grand jury investigations of this intrusive nature.
“Journalists have no special privilege to resist compelled disclosure of their records, absent evidence that the government is acting in bad faith,” the government asserts. “Even if the [redacted] subscriber were to bring a First Amendment challenge, he could not quash the order because he could not show that the government has acted in bad faith, either in conducting its criminal investigation or in obtaining the order.”
Later, the government adds, “The government has acted in good faith throughout this criminal investigation, and there is no evidence that either the investigation or the order is intended to harass the [redacted] subscriber or anyone else.”
Appelbaum mentioned that this reminded him of how the government targeted New York Times reporter James Risen when they were investigating CIA whistleblower Jeffrey Sterling. He also recalled that a US border agent once said to him he would be “endlessly harassed.”
That experience would seem to call into question the government’s claim it has not acted in bad faith. Plus, given that his Google data was targeted in secret, Appelbaum could not possibly mount a First Amendment challenge because his lawyers did not even know to file a challenge or what to challenge exactly.