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

Thu Feb 23 04:57:32 EST 2012

omg seriously subpeonaing twitter...and in the US too, the world is really
going topsy turvy.

On Thu, Feb 23, 2012 at 9:47 PM, Riaz K Tayob <riaz.tayob at gmail.com> wrote:

>   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.
>
> [image: 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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