Suppose you were involved in a legal protest, and allegedly and pushed the permitted envelope just far enough to get yourself arrested on the usual "nuisance" charges. Do you think that a District Attorney should be allowed to subpoena all data in your Twitter account going back 15 days before the day of your arrest? And also for the next 30 days after?
Because the NYC DA's office does.
Jeff Rae was arrested on October 1, 2011 as part of a police sweep against protestors that were allegedly blocking traffic and otherwise disturbing the peace. Jeff was charged with the following counts:
- prohibited use of a roadway
- blocking traffic
- failure to obey order
As part of their attempt at building a case against Jeff, the District Attorney's office has issued Twitter a subpoena for the following information and messages from Jeff's account:
- All public Tweets posted for the period 9/15/2011-10/31/2011
- The following subscriber information: name; address; records of session times and durations; length of service (including creation date); type of service utilized; telephone or instrument number or any other subscriber number or identity; including any temporarily assigned network address
In short, the DA wants to see everything Jeff posted on Twitter. And also to know exactly who
he tweeted to, or received a Twitter message from - and what they said.
And it wants this information for the 15 days leading up to his arrest. And the thirty days following.
Now all of this data is supposedly needed to prosecute him for three misdemeanor
charges, all of which Jeff maintains stemmed from an incident that was wildly exaggerated by police who were looking for an excuse to clear an area of people engaged in lawful and peaceful protest activities..
There's a good article about this incident (with links to a copy of the subpoena) over at ReadWriteWeb. Link to it here
Another protester, Malcolm Harris received a similar subpoena earlier this year following his arrest at the Occupy Wall Street rally. ReadWriteWeb has a quote from, and a link to, Malcolm's blog over at Reuters
that I think clearly shows what the underlying objective is behind these subpoenas:
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.
It's a page from the old Mayor Daley/Chicago style of realpolitik
which says: What you don't have the constitutional authority to forbid, or the legal authority to stop, can always be harassed out of existence by official vilification campaigns and some judicious abuse of legal process.
It's a sorry way to do things. And not in keeping with what the United States is supposed to be about.
As Harris remarked later in his blog post:
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.
Food for thought.