CASE No. IS/01 - BIRGITTA JÓNSDÓTTIR - ICELAND
Resolution adopted unanimously by the IPU Governing Council at its 189th session
(Bern, 19 October 2011)
The Governing Council of the Inter-Parliamentary Union,
Having before it the case of Ms. Birgitta Jónsdóttir, a member of the Icelandic Parliament, which has been the subject of a study and report of the Committee on the Human Rights of Parliamentarians following the Procedure for the treatment by the Inter-Parliamentary Union of communications concerning violations of the human rights of members of parliament,
Taking note of the report of the Committee on the Human Rights of Parliamentarians, which contains a detailed outline of the case (CL/189/11(b)-R.1),
Considering the following information on file:
- Birgitta Jónsdóttir has been a member of the Icelandic Parliament since July 2009. She was the co-producer of a video, released by Wikileaks, showing United States soldiers shooting civilians in Baghdad from a helicopter;
- On 7 January 2011, she was informed by Twitter that it had received an Order from the United States District Court for the Eastern Division of Virginia to turn over to the United States the records and other information concerning her account. Twitter was given until 26 January to provide the information to the United States Government;
- The information sought by the United States Government with respect to Birgitta Jónsdóttir concerned the period from 1 November 2009 to date and involves subscriber account information including names, user names, screen names or other identities, mailing and other addresses, connection records, or records of session times and duration, length and types of service, telephone or instrument number or other subscriber number or identity, means and sources of payment for such services, including any credit card or bank account number, and billing records, records of user activity for any connections made to or from the account, including the date, time, length, and method of connections, data transfer volume, user name, and source and destination Internet protocol address(es), non-content information associated with the contents of any communication or file stored by or for the account, and correspondence and notes of records related to the accounts;
- The first court order, dated 14 December 2010, was originally kept secret and was only revealed to Birgitta Jónsdóttir and two other persons concerned by the same order, after Twitter took steps to ensure that it could notify the individual concerned;
- The Order of 14 December 2010 has been challenged by the three individuals, with the Electronic Frontier Foundation, the American Civil Liberties Union and the American Civil Liberties Union Foundation representing Ms. Jónsdóttir in the proceedings; on 26 January 2011, the defence counsel of the three individuals submitted a joint sealed motion to the United States District Court for the Eastern District of Virginia, requesting it to unseal the still secret court record of the United States Government's efforts to collect private records from Twitter as well as other companies which may have received such demands; a second joint motion, filed that same day, requested the Court to reconsider and overturn the 14 October 2010 Order;
At the request of Ms. Jónsdóttir’s legal counsel in the United States, the IPU submitted on 14 February 2011 a Memorandum to the Court concerning Ms. Jónsdóttir; the Memorandum was accepted by the judge and has become part of the court records;it sets out concerns regarding the potential impact of the Twitter order on:
(a) Ms. Jónsdóttir’s freedom of expression and her ability fully to exercise her parliamentary mandate;
(b) parliamentary immunity as the Twitter order renders the immunity guaranteed to her under Article 49 of the Constitution of Iceland null and void;
(c) her right to privacy; and
(d) her right to defend herself insofar as the United States authorities may be seeking disclosure of information from other service providers; the Memorandum, therefore, supported the defence motion to vacate the Twitter order and to unseal all other similar disclosure orders regarding Ms. Jónsdóttir;
On 11 March 2011, the Court denied the motion to vacate, granted the motion to unseal only in part and took the request for public docketing of certain material under consideration; the defence counsel has filed objections against the ruling, which are still pending before the District Court Judge,
Considering moreover that:
- Members of parliament enjoy fundamental freedoms, including the right to privacy as well as specific measures of protection to allow them to carry out their work unimpeded;
- Parliamentary immunity ensures that members of parliament cannot be held to account for the opinions they express and the votes they cast, and countries have generally put special mechanisms in place to ensure that they can carry out their mandate without undue restrictions and with full respect for their freedom of expression; as regards Iceland, members of the Althingi are protected under Article 49 of the Icelandic Constitution, which states that: “No member of Althingi may be subjected to custody on remand during a session of Althingi without the consent of Althingi, nor may a criminal action be brought against him unless he is caught in the act of committing a crime. No member of Althingi may be held accountable outside Althingi for statements made by him in Althingi, except with the consent of Althingi”;
- In all countries, freedom of expression is essential to democracy; citizens cannot exercise their right to vote or take part in public decision-making if they lack free access to information and ideas and are unable to express their views freely;
- Freedom of expression is even more essential to members of parliament and is recognized as such by courts the world over; without the ability to express their opinions freely, members of parliament cannot represent the people who have elected them;
- Members of parliament are elected by people to represent them in parliament. In their daily work they legislate and they hold the governments to account. They are unable to perform these duties if they cannot receive and exchange information freely without fear of intimidation;
- Citizens will not communicate sometimes sensitive information to their representative without the assurance that their identity will be protected. Members of parliament therefore find themselves in the same situation as journalists, with an absolute need to be able to protect their sources,
Also considering the following:
- Twitter is a website owned and operated by Twitter Inc. It offers a social networking and microblogging service that enables its users to send and read messages called Tweets, which are text-based posts of up 140 characters displayed on the user's profile page. Tweets are publicly visible by default; however, senders can restrict message delivery to followers;
- Members of parliament are increasingly availing themselves of modern means of communication with citizens. A vast majority of parliamentarians today communicate by email. Social media - Facebook, Twitter, etc. - are on the rise, particularly among young members of parliament and when MPs communicate with youth. These forms of communication are rapidly complementing and replacing yesterday's telex, telephone calls and faxes;
- The new social media offer vast opportunities for members of parliament to communicate with the public and to exchange information that is essential to them in their daily work. The use of these media, however, also presents significant risks to parliamentarians that their privacy will be invaded and their parliamentary work impaired;
- For members of parliament, it is essential that any private communication they receive is accorded the same level of protection regardless of the technology, platform and business model used to create, communicate and store it. This does not appear to be the case today,
Considering finally, that Ms. Jónsdóttir is concerned that the United States authorities are seeking disclosure of information from other US-based service providers without her knowledge;
there are fears that those providers may meanwhile already have turned over to the Court information on her accounts; moreover, according to information provided in October 2011, Ms. Jónsdóttir may have become the subject in the United States of America of a preliminary criminal investigation before a grand jury in relation to three files which seem to concern information retrieved from her accounts with other social media and Internet search engines,
1. Affirms that freedom of expression goes to the heart of democracy and is essential to members of parliament; without the ability to express their opinions freely, members of parliament cannot represent the people who have elected them; if they cannot receive and exchange information freely without fear of interference they cannot legislate and hold the government to account;
2. Recalls that Article 19 of the Universal Declaration of Human Rights upholds the right of everyone to freedom of opinion and expression; it stipulates that this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers;
3. Notes that, under standard human rights conventions and their jurisprudence, restrictions on the freedom of expression are subject to a threefold test: they should be prescribed by law, they must be necessary in a democratic society, and they must be proportionate to these necessary purposes;
4. Fails to see how the restrictions on freedom of expression that would result from compliance with the Twitter court order can be justified on such grounds, and holds that, on the contrary, such compliance would jeopardize a member of parliament's right to freedom of expression and hence his/her ability to seek, receive and impart information freely, which is absolutely necessary in a democratic society;
5. Is concerned that the national and international legal framework concerning the use of electronic media, including social media, does not appear to provide sufficient guarantees to ensure respect for freedom of expression, access to information and the right to privacy; the guarantees protecting freedom of expression and privacy in the “offline world” seem not to operate in the “online world”;
6. Notes also with concern that the parliamentary immunity Ms. Jónsdóttir would hav enjoyed under Icelandic law in exercising the political activity which is apparently at stake, is not operational in this case; given that the use of social networks by parliamentarians with their constituents and others is today commonplace in many countries, disclosure orders such as the one in question would undermine and even render void the ability of States to protect their members of parliament from unwarranted interference with their mandates;
7. Expresses deep concern, therefore, at the efforts made by a State to obtain information about the communications of a member of parliament of another State and the likely consequences of this for members of parliament the world over on their ability to discharge their popular mandate freely;
8. Is further concerned that Ms. Jónsdóttir may not only be subject to profiling but be subjected to a criminal investigation on the basis of information retrieved from social media and Internet search engines obtained without her having had the possibility of challenging its disclosure; notes in this regard that, unlike Twitter, other companies do not necessarily inform their users of judicial requests for information concerning them directly; considers that such a situation would be a grave breach of Ms. Jónsdóttir’s fundamental right to defend herself;
9. Requests the Secretary General to communicate its concerns in this case to the parliamentary authorities in Iceland and in the United States of America, and to seek their views along with official information regarding a criminal investigation possibly under way against Ms. Jónsdóttir;
10. Also requests the Secretary General to conduct a study on the impact of the use of social networks on the exercise of the parliamentary mandate;
11. Requests the Committee to continue examining this case and report to it at its next session, to be held during the 126th IPU Assembly (March/April 2012).
