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<div class="node-header"> <span class="submitted"> Published on
Wednesday, February 22, 2012 by <a
href="http://www.commondreams.org">Common Dreams</a> </span>
<div class="node-title">
<h2 class="title">Warrantless Surveillance?: Gov't Subpoenas OWS
Activist's Twitter Records</h2>
</div>
<h3 class="subtitle">Malcolm Harris: Subpoena dangerous because it
might "produce a chilling effect and discourage people from
using Twitter while protesting."</h3>
<div class="author"> - Common Dreams staff </div>
</div>
<p>A government subpoena requesting an Occupy Wall Street
protester's Twitter records raises questions about the
government's use of warrantless surveillance and attempts at
squashing activists' use of social media.</p>
<p><span class="image-right" style="width: 275px;"> <img
src="cid:part2.08050907.01060206@gmail.com" alt="" title=""
class="imagecache imagecache-headline_image imagecache-default
imagecache-headline_image_default" height="153" width="275"> <span
class="caption"> </span></span>Hanni Fakhoury of <strong>EFF</strong>
<a
href="https://www.eff.org/deeplinks/2012/02/malcolm-harris-occupy-wall-street-twitter-government-pressure">explains</a>
the case involving request for Malcolm Harris' Twitter records:</p>
<blockquote>
<p>On October 1, 2011, over 700 Occupy Wall Street protesters were
<a
href="http://cityroom.blogs.nytimes.com/2011/10/01/police-arresting-protesters-on-brooklyn-bridge/?scp=2&sq=october%201,%202011%20occupy%20wall%20street%20brooklyn%20bridge&st=cse">arrested
on the Brooklyn Bridge</a>. Most of the protesters, including
<a href="https://twitter.com/getsworse">Malcolm Harris</a>, were
charged with the mundane crime of <a
href="http://ypdcrime.com/penal.law/article240.htm">disorderly
conduct</a>, a "violation" under New York law that has a
maximum punishment of <a
href="http://ypdcrime.com/penal.law/article55.htm">15 days in
jail</a> or a <a
href="http://ypdcrime.com/penal.law/article80.htm">$250 fine</a>.</p>
<p>And yet on the basis of a charge no more consequential than
speeding ticket, the New York City District Attorney's office
sent a poorly worded <a
href="http://www.scribd.com/doc/79940746/Subpoena-on-destructuremal">subpoena</a>
to Twitter requesting "any and all user information, including
email address, as well as any and all tweets posted for the
period of 9/15/2011-12/31/2011" regarding Mr. Harris' Twitter
account, @destructuremal. Unsurprisingly, the government wanted
to keep it quiet, but thankfully Twitter didn't listen. Instead,
<a
href="https://support.twitter.com/articles/41949-guidelines-for-law-enforcement">as
it has consistently warned law enforcement</a>, Twitter
notified Mr. Harris, who through his lawyer, Martin Stolar of
the <a href="http://www.nlg.org/">National Lawyers Guild</a>,
has <a
href="http://nlgnyc.org/2012/02/06/national-lawyers-guild-calls-twitter-subpoena-improper/">moved
to challenge the subpoena</a> in court.</p>
<p>The subpoena is astonishing not only for its poor grammar, but
also for the breadth of information the government wants for a
trivial crime that hardly requires it. The government's request
that Twitter hand over Tweets is unlikely to succeed because
consistent with the <a
href="http://www.law.cornell.edu/uscode/text/18/part-I/chapter-121">Stored
Communications Act</a>, Twitter releases "contents of
communication" (effectively Tweets and private messages between
Twitter users) only <a
href="https://support.twitter.com/articles/41949-guidelines-for-law-enforcement">with
a search warrant</a>. In any event, Mr. Harris' account is
"public", meaning the government could obtain Tweets simply by
checking out Mr. Harris' Twitter feed. Plus, requesting Tweets
only highlights the absurdity of the entire situation: why would
the government need Tweets from both before and after the
October 1 protest to prove he was obstructing traffic on the
bridge? In any event, government fishing expeditions like this
raise serious First Amendment concerns. Mr. Harris was very
outspoken about his support of and involvement in the Occupy
Wall Street movement. With this overbroad subpoena, the
government would be able to learn about who Mr. Harris was
communicating with for an extensive period of time not only
through Tweets, but through direct messages. And with the
government's request for all email addresses associated with
@destructuremal, they could subpoena Mr. Harris' email provider
to get even more information about who he communicated with. The
First Amendment shouldn't be trampled with only an expansive
subpoena in a case that barely registers as "criminal."</p>
<p>Given that much of Mr. Harris' Twitter information (like Tweets
and followers) is already public, it's very likely that the
government was really after something else: <a
href="https://www.eff.org/issues/location-privacy">location
data</a>. By attempting to subpoena these records, the
government can get around the Fourth Amendment's prohibition
against warrantless searches by requesting information that
includes IP addresses. Twitter keeps track of IP address
information regarding every time a person logged into Twitter,
as well as the IP address information related to a Twitter
user's direct messages to other users, and the date and time
information related to these log ins and direct messages. Armed
with IP addresses, the government -- without a warrant -- can go
to an ISP to determine who was assigned that particular IP
address. And if that person connected on a mobile device --
which is where the <a
href="http://articles.cnn.com/2011-06-01/tech/twitter.users.phone.gahran_1_feature-phones-mobile-users-social-media?_s=PM:TECH">majority</a>
of Twitter users access their accounts -- the ISP will hand over
to the government the specific cell tower (and its corresponding
geographic location) which that person used to access Twitter.
This allows the government to piece together a map of where a
person physically is when he opens Twitter on his smartphone,
sends a direct message to a friend, or Tweets. And with that
information, the government could get a record of Mr. Harris'
movement over the three months it requested from Twitter. Its no
surprise then that the government singled out Mr. Harris for
this request: he currently has over 1,500 followers and 7,200
Tweets.</p>
<p>Allowing the government to gets its hands on this data with
nothing more than an administrative subpoena renders the Fourth
Amendment meaningless. Only with the protection of a search
warrant, and the heightened judicial supervision that comes
along with it, can the voracious appetite of law enforcement be
curbed. As we've <a
href="https://www.eff.org/deeplinks/2011/11/2011-in-review-location-privacy">consistently
argued</a>, the Fourth Amendment protects this information.</p>
</blockquote>
<p><a href="http://www.flickr.com/photos/akinloch/6202490380/"
title="Occupy Wall Street October 1st by Adrian Kinloch, on
Flickr"><span class="image-right" style="width: 500px"><img
alt="Occupy Wall Street October 1st"
src="cid:part18.04040404.03070600@gmail.com" style="width:
500px; height: 333px;" title="(photo: Adrian Kinloch)"
border="0"><span class="caption">(photo: Adrian Kinloch)</span></span></a></p>
<p>Writing on <strong>Reuters</strong> earlier this month, Harris <a
href="http://blogs.reuters.com/great-debate/2012/02/17/my-tweets-refuse-to-be-subpoenaed/">says</a>
the ultimate goal of the subpoena is to discourage activists from
using Twitter as a platform:</p>
<blockquote>
<p>The biggest danger that comes from this subpoena isn’t that
it’ll help convict me — I don’t think a judge will have any
trouble understanding what happened on the bridge — but that it
will produce a chilling effect and discourage people from using
Twitter while protesting. It’s a win-win for prosecutors: Either
they use Twitter archives to build cases against demonstrators,
or they scare us away from using the platform.</p>
<p>Wildly casting prosecutorial nets around the Twittersphere and
hoping to bring in something about anything is panicked behavior
not fit for a government that represents all its people,
including its dissenters. At the very least the federal
government can make sure U.S. companies treat dissenters in
Boston or Oakland the way it ensures they’re treated in Tehran
or Damascus.</p>
<p>Reports from Cairo to London to New York show that social media
have served an important, sometimes vital, role in helping
demonstrators keep safe and organize effectively. That’s why the
State Department intervened in Iran in 2009, and that’s why the
District Attorney’s office is requesting my records now.</p>
</blockquote>
<p>Harris spoke with <strong>RT</strong> about the Twitter
subpoena:</p>
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