[governance] Warrantless Surveillance?: Gov't Subpoenas OWS Activist's Twitter Records

Riaz K Tayob riaz.tayob at gmail.com
Thu Feb 23 04:47:04 EST 2012


Published on Wednesday, February 22, 2012 by Common Dreams 
<http://www.commondreams.org>


    Warrantless Surveillance?: Gov't Subpoenas OWS Activist's Twitter
    Records


      Malcolm Harris: Subpoena dangerous because it might "produce a
      chilling effect and discourage people from using Twitter while
      protesting."

- Common Dreams staff

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.

Hanni Fakhoury of *EFF* explains 
<https://www.eff.org/deeplinks/2012/02/malcolm-harris-occupy-wall-street-twitter-government-pressure> 
the case involving request for Malcolm Harris' Twitter records:

    On October 1, 2011, over 700 Occupy Wall Street protesters were
    arrested on the Brooklyn Bridge
    <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>.
    Most of the protesters, including Malcolm Harris
    <https://twitter.com/getsworse>, were charged with the mundane crime
    of disorderly conduct
    <http://ypdcrime.com/penal.law/article240.htm>, a "violation" under
    New York law that has a maximum punishment of 15 days in jail
    <http://ypdcrime.com/penal.law/article55.htm> or a $250 fine
    <http://ypdcrime.com/penal.law/article80.htm>.

    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 subpoena
    <http://www.scribd.com/doc/79940746/Subpoena-on-destructuremal> 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, as it has
    consistently warned law enforcement
    <https://support.twitter.com/articles/41949-guidelines-for-law-enforcement>,
    Twitter notified Mr. Harris, who through his lawyer, Martin Stolar
    of the National Lawyers Guild <http://www.nlg.org/>, has moved to
    challenge the subpoena
    <http://nlgnyc.org/2012/02/06/national-lawyers-guild-calls-twitter-subpoena-improper/>
    in court.

    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
    Stored Communications Act
    <http://www.law.cornell.edu/uscode/text/18/part-I/chapter-121>,
    Twitter releases "contents of communication" (effectively Tweets and
    private messages between Twitter users) only with a search warrant
    <https://support.twitter.com/articles/41949-guidelines-for-law-enforcement>.
    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."

    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: location data
    <https://www.eff.org/issues/location-privacy>. 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
    majority
    <http://articles.cnn.com/2011-06-01/tech/twitter.users.phone.gahran_1_feature-phones-mobile-users-social-media?_s=PM:TECH>
    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.

    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
    consistently argued
    <https://www.eff.org/deeplinks/2011/11/2011-in-review-location-privacy>,
    the Fourth Amendment protects this information.

Occupy Wall Street October 1st(photo: Adrian Kinloch) 
<http://www.flickr.com/photos/akinloch/6202490380/>

Writing on *Reuters* earlier this month, Harris says 
<http://blogs.reuters.com/great-debate/2012/02/17/my-tweets-refuse-to-be-subpoenaed/> 
the ultimate goal of the subpoena is to discourage activists from using 
Twitter as a platform:

    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.

    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.

    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.

Harris spoke with *RT* about the Twitter subpoena:

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