Gov't Able To Keep Details Entirely Private In 'Public' Hearing Over Twitter Subpoena

Legal Issues

from the what-case? dept

We’ve been hearing more and more stories about the government being extra secretive in so many things, avoiding scrutiny at every turn, and here’s yet another example. You may have heard that, last month, the Boston police, along with a Massachusetts ADA, sent a vague and broad subpoena to Twitter, demanding “all available subscriber info… including address logs for account creations,” for any activity between December 8th and December 13th, 2011 for the following list:

• Guido Fawkes
• @p0isAn0N
• @OccupyBoston
• #BostonPD
• #d0xcak3

This is kind of a weird list. While the second and third items on the list are usernames, the rest are not, so it’s not entirely clear what Twitter would need to send in response to those requests. #BostonPD, in particular, is a bit weird, since it’s just a tag. It seems like the police are fishing for any info on anyone who used that hashtag over a five day period.

Either way, the subpoena asks Twitter to keep the subpoena itself secret:

In order to protect the confidentiality and integrity of the ongoing criminal investigation, this office asks that you not disclose the existence of this request to the subscriber as disclosure could impede the ongoing criminal investigation.

However, it appears that Twitter did, in fact, forward the subpoena on to the user @p0isAn0N, who posted it publicly. That resulted in the ACLU jumping on board to represent the anonymous user of that account and to protect the subpoena… leading to a bizarre and Kafkaesque hearing in which the case itself was never even named and the government representatives conferred privately (without the other side’s lawyers) for an extended period of time, and then everything was put under a gag order for the parties who did hear what was going on. I’ll let Kade Crockford from the ACLU explain the situation. He had gone to the court to hear what happened and basically heard a lot of nothing:

We entered the courtroom. I sat in the front row, behind the bar. Presiding Judge Carol Ball called our cooperating attorney Peter Krupp?s name, and the Assistant District Attorney?s name. She did not call out the name of the case to begin the proceedings, as is custom.

The ADA approached the sidebar, the area adjacent to the judge?s perch, far enough away from us, the general public, that we couldn?t hear the content of the hushed conversation spoken there. Krupp objected immediately, before even approaching the bench; he wanted the case heard in open court. (The judge had already sealed the proceedings the day before, pending a hearing this morning.) Krupp?s objection was not granted. Our legal team therefore approached the sidebar, joining the judge and the prosecution.

Then we among the general public, including journalists from all the major media outfits in Boston, listened and heard nothing, as the prosecutors, our lawyers and the judge conversed secretly, in plain sight. I have no idea what they said. I still don?t know, because my colleagues, lawyers at the ACLU of Massachusetts, are prohibited by court order from telling me.

So all I know is what I saw. As Donald Rumsfeld said, there are known knowns, known unknowns and unknown unknowns. After the proceedings this morning, I?m left with little of the former, and a whole lot of the latter two.

The known knowns: the scrum of lawyers, defense and prosecution, addressed the judge. I saw the judge speak to the lawyers. Then I saw our attorneys return to their bench, closer to where I was sitting, out of earshot of the sidebar. But the ADA stayed with the judge. He spoke to her, with his back to the courtroom, for about ten minutes. Our attorneys didn?t get to hear what he said to her, didn?t have a chance to respond to whatever the government was saying about our client, about the case. It was frankly shocking.

After those ten minutes of secret government-judge conversation, our attorneys were invited back to the sidebar, whereupon the scrum of lawyers spoke with the judge for another ten or fifteen minutes. Then they dispersed. The judge uttered not one word to the open court. And that was it.

After this, the lawyers for the ACLU were only able to say that they couldn’t say anything. They couldn’t say what the judge said or decided. They couldn’t say if the judge granted the ACLU’s motion to quash the subpoenas. Basically, the public knows nothing. The government, I’m sure, insisted that this was all a matter of great importance and a criminal investigation for which it must be kept secret — but it’s getting more and more difficult to believe the government when it keeps trying to brush pretty much everything it can under the rug. Furthermore, if this were truly a key criminal investigation, shouldn’t the subpoena have actually been narrowly focused on the key issue, rather than seeking subscriber info on everyone who used the hashtag #BostonPD?

Filed Under: occupy boston, subpoena
Companies: aclu, twitter