My tweets refuse to be subpoenaed

By Malcolm Harris
February 17, 2012

When I saw an email from Twitter Legal in my inbox, I figured it was spam. Data phishers use those kind of emails to steal user passwords, but this was a genuine warning from the social media giant. The New York District Attorney’s office had filed a subpoena requesting my account information and all of my tweets from last September to the end of the year. Twitter had attached the subpoena, and there was my handle, called by the County of New York to testify against me, the person it represents.

My tweets were being called to testify against their creator because on Oct. 1 of last year I was one of more than 700 people arrested on the Brooklyn Bridge as part of an Occupy Wall Street action. We had planned to march over the pedestrian walkway, but the crowd was too large. The police retreated and allowed us to cross half the bridge before kettling and arresting the entire crowd. I had my phone with me and was using Twitter to spread information to people following at home, as well as people behind me in the march. After a short stint in a cell, I was charged with disorderly conduct and released. I pleaded not guilty, not because I didn’t block traffic, but because I believe the march across the bridge was a constitutionally protected form of political speech.

To try to prepare a convincing case that I intended to block traffic, the district attorney has requested over three months of my tweets, as well as any information attached to my account, including my password and email address. The scope of the request extends back to Sept. 15, two days before the occupation of Zuccotti Park began. Since the subpoena is related only to the disorderly conduct charge, the prosecutors want to look through my tweets — preferably without me knowing — for content from weeks before and months after Oct. 1. That wastes taxpayer dollars and some poor trial prep assistant’s time for what amounts to little more than a politically motivated traffic ticket. My attorney soon informed Twitter of his intention to file a motion to quash the subpoena on four different grounds, and they have agreed not to disclose anything for the time being, at least until a judge rules on the motion later this month.

To anyone who has seen a single episode of Law and Order, this looks like a clear misuse of prosecutorial power, using trial preparation for investigative ends. The surreal subpoena calls for a witness named “Twitter, Inc.” to appear in court and produce the documents or face up to a year in prison and a $1,000 fine, and ends with a gag request attempting to cajole Twitter into not disclosing the search to, well, me. Thankfully Twitter did not abide by that last part. They don’t comment on specific cases (even to those involved in one, like me), but Twitter’s official policy is to inform users when their information is requested unless legally required not to. In this case, they were smart not to take the prosecutors’ word as gospel; the gag request wasn’t binding.

So far there have only been a handful of these electronic subpoenas, all of which (including mine), have been aggregated by Anonymous hackers as part of what they’ve named “#opsubpoenathis.” Local police in Boston subpoenaed two accounts (including @occupyboston) and — bizarrely — two hashtags. In Plano, Texas, authorities subpoenaed the WordPress blog records of Occupy Plano. What we can see across the country is the modest beginning of a national move toward the use of activists’ legal electronic communications against them. Treating it as the serious threat to Internet freedom and political speech that it is, the National Lawyers Guild, Electronic Frontiers Foundation and American Civil Liberties Union have all lent their assistance in the legal efforts.

When students used Twitter to coordinate protests in Iran in 2009, The U.S. State Department applauded and intervened to keep the service online, but local prosecutors in cooperation with the police have tried to access user records to build cases against Anonymous members and Occupy activists. As far as I or the ACLU know, mine is the first Twitter subpoena related specifically to offline Occupy activities, and though I’m surprised to be singled out, I’m not surprised that officials at different levels can’t make up their minds about Twitter.

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.

And so, my first reaction upon reading that email was right, it was a scam.

PHOTO: A police officer leans over to talk to a protester after hundreds were arrested during an Occupy Wall Street march on the Brooklyn Bridge in New York October 1, 2011. REUTERS/Jessica Rinaldi


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Interesting story, and it’s great to hear a subjective viewpoint from someone directly involved.

The reality is that the law can get whatever data they want. Twitter is a company whose aim is to profit (nevermind that they are not currently profitable). Thus, whatever their internal politics may be, they have to comply with certain rules. They are not inherently a platform for activists. The fact that their service became a popular tool for protesters around the world is a side-effect of its simplicity and availability. But it’s not really the right tool for the job.

What is needed is a truly anonymous, realtime, encrypted messaging platform that is as easy to use as Twitter. Maybe Anonymous or their contemporaries are developing it, or already using it. The problem is that it can be exploited by the “bad guys” just as easily. Such a service could be used to mobilize a terror cell, or detonate a remote explosive device. We would have to accept that tradeoff in order to have truly free speech and untraceable online communication. Would it be worth it?

Posted by Nullcorp | Report as abusive

This clown is comparing himself to the student protesters in the middle east? Give me a break. If he was just “spreading information”, what does he have to hide? Just as with cell phone calls and email, if the government gets a judge to agree, they can get it.

Posted by mutt3003 | Report as abusive

“When students used Twitter to coordinate protests in Iran in 2009, The U.S. State Department applauded and intervened to keep the service online.”

if you can prove it in the court it might help you!

Posted by rahul_singh | Report as abusive

He’s not a clown. The OWS protestors were legitimately protesting the hijacking of this country by the 1 percent. He is also arguing a constitutional principal that seems to be beyond mutt3003 — the right to privacy and freedom from unusual search and seizure by the US government. The issue is not whether we have something to hide or not; it is whether or not the government has the right to intrude like this, and whether we should allow the government’s intrusion to have a chilling effect on free speech.

Posted by mmiller459 | Report as abusive

@mutt3003 So what else besides information can be conveyed on Twitter? The issue isn’t that people use Twitter to communicate, the issue is what is being communicated. As the writer pointed out, the US government was happy to see Twitter used in Arab Spring so that the protesters could coordinate their peaceful activities against political regimes that the US government opposed. However, the US government apparently feels threatened by the peaceful activities of Occupy Wall St. and is using their power in order to intimidate. The US people have traditionally prided themselves in the belief that this could not happen in the US because they are better than that. Guess not …

Posted by Frump | Report as abusive

mutt – what ever you may think of any protester, there is a basic right to free speech in this country. There USED to be an expectation of privacy also; the continued and expanded spying on US citizens (remember W’s phone tapping without warrants!?!) should concern us ALL. There is more and more domestic surveillance of US citizens that have done nothing criminal – personally, it scares the h*ll out me! I do not want to live in a police state, yet the so-called Patriot Act is still in force and warrant-less surveillance is still being carried out. And please, spare me the “if you have nothing to hide you shouldn’t mind” garbage! I have nothing to hide, but that does NOT mean that I will allow my home or possessions to be searched without a warrant and reasonable cause — that should also go for my electronic communications as well. Big Brother is watching more than ever and not all of us believe that is the way the United States of America should operate! I love my country, but that does not mean I agree with everything my government is doing – too much of which is supposedly to keep me “safe”. Which of course begs the question, “safe from whom”?

Posted by MidwestVoice | Report as abusive

Our history of protesting is wonderful and brave.
Which of them was anonymous; Patrick Henry, Martin Luther, Martin Luther King.
The faint of heart need not apply.

Posted by Currmudgeon | Report as abusive