Legal Issues

by Mike Masnick

Filed Under:
occupy boston, subpoena

aclu, twitter

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

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?

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  1. icon
    That Anonymous Coward (profile), 3 Jan 2012 @ 4:37pm

    This topic got derailed on Boingboing by someone pointing out that the "target" was promoting Operation Robin Hood, a buncha charges to stolen credit cards donated to charities, and that someone promoting this needs to be dealt with.
    The problems with that...

    1 - It predates the op being promoted.
    2 - It is in the time frame when Occupy Boston was being dismantled.
    3 - Guido Fawkes is the name used by a UK Blogger, and appeared as the "real name" of @p0isAn0N.
    4 - Boston is requesting information on possibly THOUSANDS of people who might have tweeted or retweeted messages bearing these hashtags.
    5 - There was a dox release from a "private" server of BPD names and such, and the tag #d0xcak3 was used.

    This is a grandstanding play, executed in a completely stupid way. If they thought the ACLU was bothersome when they showed up to their secret meeting to protect 1 persons information, how will they feel with thousands of people who might have merely retweeted or tweeted a message of support of Occupy Boston trying to fight this poorly crafted information grab without any judicial oversight?

    An analogy would be sending one of these requests to Google demanding the IP addresses of every person who used a set of search terms for a 1 week period and demanding (with no force of law) that it be kept secret from those people. See the only people I see getting away with that nowdays are private for profit extortion mills who have a former RIAA lobbyist as their Judge. She feels people do not have any right to privacy until they are actually named, while letting people request lots of information about them on questionable "evidence" that has never been demonstrated to be true and factual.

    At some point someone needs to point out that subscriber information is not a cookie jar you can just raid whenever you want. We are supposed to have free speech in this country, as long as we are in a clearly marked free speech zone 15 miles from where anyone might hear us. The chilling effect here is because you supported people protesting the government, Boston now gets to build a file on you. It doesn't matter if your in California, Florida, or another country. They can get your information and then decide they want more for their "secret" hearing and profile everyone who was against their actions at Occupy Boston, or who enjoyed seeing them being taken down a peg.

    I would like to point out that last time we saw grand standing like this was some AG's looking for reelection or new elected office taking on Craigslist. The result there was tools used to stop the trafficking in people, were lost. The AG's, in some cases, were acting well outside the definition of their office and authority. It would be horrible for someone running for office to not get the Police Union support, how many people need to be harassed to win their support and does that outweigh the right to privacy.
    People will say they are Anons they don't deserve the same rights as everyone else, I point out how well that has worked so far in history (protip: when they take away everyone else you disliked, then they come for you).
    Why would someone need a Grand Jury to pursue someone who they are so sure they can prove "broke" into a system and released information?
    Given their apparent lack of understanding of twitter, its possible they will need to subpoena someone to explain how computers work.
    That or maybe they just want to build secret files like the FBI kept on 60's "radicals" who protested peacefully for peace... because I am sure that police showing up to question an employee would look cool to an employer. All because that person retweeted a request for blankets or something for Occupy Boston, we didn't make them get fired we aren't responsible for what an employer might do to people we show up and question.

    Its 2012, can you smell the Tyranny?
    First they came for the Muslims, and I said nothing because Fox told me to fear Muslims.
    Then they came for the Brown people, and I said nothing because Fox told me Brown people stole my job.
    Then they came for Anonymous, and I said nothing because Fox told me LolCat meme's lead to Erectile Dysfunction.
    Now they are here for me, why isn't there anyone saying anything?

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