Three WikiLeaks associates entangled in a federal grand jury probe in Virginia asked a federal judge Friday to reverse a ruling that would hand over records of their Twitter use to federal prosecutors, arguing that the ruling violates a federal statute and the constitution.

The 41-page filing (.pdf) argues that Magistrate Judge Theresa Buchanan, in Alexandria, Virginia, erred earlier this month when she ordered Twitter to turn over non-content information on the Twitter accounts of WikiLeaks activist Jacob Appelbaum, Dutch businessman Rop Gonggrijp and Birgitta Jonsdottir, a member of Iceland’s parliament who helped WikiLeaks prepare a classified U.S. Army video for release last April.

They’re asking for a U.S. district judge to overrule the magistrate. “It’s an appeal, so you can’t really put in much that’s new,” says Cindy Cohn, legal director for the Electronic Frontier Foundation, which is representing Jonsdottir in the case. “But we did point out that the magistrate got some things wrong.”

The government has agreed not to press Twitter for the records until the appeal is done, says Cohn.

The Justice Department’s demand for the records is part of a grand jury investigation that appears to be probing WikiLeaks for its high-profile leaks of classified U.S. material. The government is seeking the records under 18 USC 2703(d), a provision of the 1994 Stored Communications Act that governs law enforcement access to non-content internet records, such as transaction information.

More powerful than a subpoena, but not as strong as a search warrant, a 2703(d) order is supposed to be issued when prosecutors provide a judge with “specific and articulable facts” that show the information they seek is relevant and material to a criminal investigation. But the people targeted in the records demand don’t have to themselves be suspected of criminal wrongdoing.

In their new filing, the three argue that the government could not have met that legal standard in its sealed application for the records order, and instead prosecutors appear to be acting on a “hunch” that “all of the Parties’ Twitter records have some connection to its WikiLeaks investigation. That cannot be the case — the vast majority of the Parties’ Twitter activity has nothing to do with WikiLeaks.”

They also reasserted their earlier arguments — rejected by Buchanan on March 11 — that the Twitter order violates their First Amendment rights of speech and association.

Among other things, they noted, the logs held by Twitter — including IP addresses — would reveal where they were physically located while tweeting, and “information about the identity and geographical location of every person with whom the Parties have associated by exchanging private DMs.”

Moreover, they argue, the entire investigation into WikiLeaks implicates the free speech rights of a publisher.

“While the government has refused to provide the Parties with its Application, it has declared its disapprobation of WikiLeaks and its desire to prosecute somebody associated with it,” they wrote. “Attorney General [Eric] Holder personally proclaimed that the government will prosecute anyone it can and that the Department of Justice’s tough talk ‘is not saber-rattling.’ No matter how much the government dislikes any given speech or advocacy, it cannot use that protected conduct as a pretext for overboard searches or a basis for criminality.”

The order being challenged demanded information from the accounts from November 1, 2009 to June of last year, and also sought the same information on the WikiLeaks’ Twitter account.

The government has informally agreed to narrow that time frame, according to the filing. Regarding Twitter direct messages, prosecutors have informally agreed to only obtain the non-content information on DMs sent or received among the four accounts, says Cohn.

A hearing on the issue is tentatively set for April 22.

Image: Jacob Appelbaum speaking on behalf of WikiLeaks at The Next HOPE conference in New York in July of last year. Courtesy Cosmiclint/flickr

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