February 22, 2013

Hon. Eric H. Holder, Jr
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001

Hon. John Kerry
Secretary of State
U.S. Department of State
2201 C Street, NW
Washington, DC 20520

Dear Attorney General Holder and Secretary Kerry,

We are writing on behalf of the more than 3,350 members of PEN American Center, an organization of writers dedicated to protecting freedom of expression wherever it is threatened, to express our concern over reports that the U.S. government played a role in pressing for the release of information about a Twitter user who is now standing trial in Chile for activities that would appear to be protected under international and regional guarantees of freedom of expression.

According to our information, Mr. Rodrigo Ferrari, a Chilean blogger and lawyer, is currently standing trial on identity theft charges and may face between 61 and 541 days in jail if convicted. The charges, which are called “usurpation of identity” in Chile, evidently stem from the fact that Mr. Ferrari maintained and operated the Twitter account @losluksic, in which he parodied wealthy Chilean businessman Andronico Luksic. That the @losluksic account was parodic was clear both visually—the Twitter avatar for the account featured a graphic with money raining from the sky and a description that read “tenemos cualquier plata,” “we have so much money”—and from the content itself. As one Chilean radio commentator explained, “for anyone who has read [the Tweets], there is an abyss of common sense” between the “parody account and the usurpation of identity.” Such parody accounts are of course common features of the social media landscape, and clearly protected gestures of freedom of expression under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Nevertheless, lawyers for Mr. Luksic filed a complaint against Mr. Ferrari claiming identity theft, which has resulted in the current prosecution.

Our concern is over reports that the Department of State and the Department of Justice, acting upon a request from the government of Chile, may have ordered Twitter to release user information that identified Mr. Ferrari as the owner of the parody account @losluksic. We understand that the Departments may have provided this information even without a subpoena or formal request from the court hearing the case. Though we recognize that this assistance was apparently offered under the framework of a Mutual Legal Assistance Treaty, and that such treaties generally require compliance with requests by prosecutors for information in criminal cases, we note that states may refuse requests for information when investigations have been initiated to prosecute an individual “for reasons of…ideology,” and when the request refers “to a common crime prosecuted for political reasons.” The Inter-American Convention on Mutual Assistance in Criminal Matters further exempts states from complying with requests when “public policy…or basic public interests are prejudiced.”

Promoting free expression over the Internet and through digital technologies has been one of the most visible public policy priorities of the State Department under this administration. It is a priority that PEN shares: alarmed by proliferating violations of the right to freedom of expression on digital media, the global membership of PEN has adopted the attached Declaration on Digital Freedom, which offers guidelines to both governments and businesses for protecting the right of all to seek, receive, and impart information freely through electronic media. We believe that complying with the request for user information that led to the identification and prosecution of Mr. Ferrari undermines the principles that PEN has outlined in this declaration and that the State Department has worked in so many ways to advance under this administration.

We would welcome any information you might provide that might clarify the involvement of the U.S. Department of State and Department of Justice in this case, as well as additional information on how such requests are evaluated to ensure that information concerning digital media users is not divulged in cases with free expression implications. Thank you for your attention to this matter.

Peter Godwin

Suzanne Nossel
Executive Director

Larry Siems
Director, Freedom to Write and International Programs

Roberta Jacobson, Assistant Secretary of State for Western Hemisphere Affairs
Michael H. Posner, Assistant Secretary, Bureau of Democracy, Human Rights, and Labor
Alec Ross, Senior Advisor for Innovation
Dan Baer, Deputy Assistant Secretary. Bureau of Democracy, Human Rights and Labor
Alejandro D. Wolff, Ambassador, Chile
Lanny Breuer, Assistant Attorney General
Jose W. Fernandez, Assistant Secretary, Bureau of Economic and Business Affairs