Francisco Vera contributed to this post.
Today, Access filed a Freedom of Information Act request before the Federal Bureau of Investigation and the U.S. Department of Justice to ask which governments are requesting user information through mutual legal assistance treaties. This filing comes two days after a blogger and lawyer Rodrigo Ferrari was formally charged by Chilean prosecutors, who obtained his Twitter information through such a process, which was seemingly executed improperly.
The Chilean government requested the US government to ask Twitter to release the IP address of the computer that posted the tweets on the @losluksic @andronicoluksic and @luksicandronico accounts. ONG Derechos Digitales reports that Mr. Ferrari created a Twitter account that parodied the Luksic family, one of the wealthiest families in Chile. The Chilean prosecutor accused Mr. Ferrari with “usurpación de identidad” or “identity usurpation,” a charge which only requires the actual appropriation of another person’s identity.
Yet, the request that was made to the United States government, where Twitter is headquartered, seems to have identified the crime of “identity theft,” which requires the use of another person’s identity with the intent to commit an unlawful activity. Doing a parody of a family, “losluksic” (The Luksics), the only account that Mr. Ferrari has taken responsibility for, is hardly the intention to commit a crime, but apparently it becomes so when you make fun of a Forbes 500 billionaire family.
While the Chilean law mandates that any request for information be authorized by a judicial warrant, the case file fails to reveal any sort of authorization or warrant approved by a judge.
Similar protections are afforded in the U.S. Constitution’s Fourth Amendment, the right of the people to be secure in their persons, houses, papers, and effects.
Moreover, the crime stated by the Chilean government, and which prompted the request to the U.S., is called “usurpation of identity,” a charge which does not exist in U.S. law. However, when returning the requested information to the Chilean government, the US Government cited a charge of “identity theft.” However, this charge under U.S. law requires an element of financial gain, which does not appear to be present in the current case. It’s unclear whether the U.S. Government misinterpreted the request or whether the Chilean Government misrepresented the alleged crime.
Claudio Ruiz, Derechos Digitales’ Executive Director, conveyed, “The only offense is to have parodied a powerful person.” With this case, we ask ourselves how many other requests seeking online account information Chile and other countries have made to the U.S. government without adequate procedural protections.
As Access has argued before, more and more countries are requesting data information from ISPs. Recent transparency reports from Google revealed that an overwhelming number of requests are performed through subpoenas instead of search warrants — the latter have a higher evidentiary threshold requiring a demonstration of probable cause. Similarly, Twitter’s semi-annual transparency report shows that only 19% of requests in the U.S. were conducted through search warrants.
This startling statistic demonstrates that the overwhelming majority of information obtained by the U.S. government is not authorized by a judge. Interestingly, if Mr. Ferrari’s account data had been held in Chile, government authorities there would have had to obtain a search warrant to acquire his information, according to Chilean Law.
To find out more details about which governments are requesting user information held in the U.S. through these MLATs, the type of information sought, in how many cases the US government complied with the request and what was the nature for rejecting them, Access today has filed a Freedom of Information Act request with the U.S. Department of Justice and the Federal Bureau of Investigation. We hope this will shine some light on law enforcement agents around the world who are circumventing due process protections through the MLAT process. We’ll post an update when we hear back.