[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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