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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."
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 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. Most of the protesters, including Malcolm Harris, were charged with the mundane crime of disorderly conduct, a "violation" under New York law that has a maximum punishment of 15 days in jail or a $250 fine.
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 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, Twitter notified Mr. Harris, who through his lawyer, Martin Stolar of the National Lawyers Guild, has moved to challenge the subpoena 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, Twitter releases "contents of communication" (effectively Tweets and private messages between Twitter users) only with a search warrant. 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. 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 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, the Fourth Amendment protects this information.
Writing on Reuters earlier this month, Harris says 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: