an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Everyone's naturally tweeting about it: Twitter successfully fought to make public government subpoenas for information about Wikileaks supporters. When the ruled for Wikileaks and unsealed the subpoenas, the Wikileaks supporters then were informed of the subpoenas and could fight them on their own.
Considering Wikileaks is making a sweeping transparency argument accusing governments of too much secrecy, appending gag orders to these subpoenas is almost ironic.
Ryan Singel at Wired has perhaps the best piece on the matter. He argues that Twitter's response should be the industry norm. His most memorable line is that Twitter "beta-tested" a new feature: a spine.
Fast Company, meanwhile, credits Twitter's actions to the deft brilliance of its general counsel.
I can't help but think it's a little sad that this act today requires heroism. Twitter was merely trying to follow the law by challenging inappropriate gag orders. But the act might require courage. Qwest claimed it was punished by the government for refusing to cooperate with the Bush administration's illegal warrantless wiretapping, while AT&T and Verizon received retroactive immunity for breaking the law at government direction.
One hopes that Twitter doesn't face some punishment for merely asking the judge to rule on the law here. If Twitter is punished somehow, we could guess what the industry norm may become.
At the same time, people are asking questions not just about industry norms but also about what the law and U.S. international policy should be. Next week, on Capitol Hill, the Congressional Internet Caucus Advisory Committee is hosting its annual, important, conference on Internet issues. One panel is devoted to this question:
Can the U.S. Continue to Support a Free Global Internet in the Age of Wikileaks, Cyberwar and Rampant Copyright Piracy
I think the answer is yes, depending on how you define a free global Internet. But I'm happy to see this issue debated publicly rather than under gag order.