Social media can play a vital role in protest and it appears the NYC prosecutors office would like that to end. For the second time, they have subpoenaed Twitter records of a protester involved in Occupy Wall Street (OWS) activities. The first went to activist Malcolm Harris back in February of this year (you can read his account on Reuters) and the latest subpoena went to Jeff Rae. Both have been notified by Twitter and will fight the requests.
And the point of the government’s fishing expedition for data related to minor crimes such as disorderly conduct? It obviously undermines free-speech protections in the First Amendment, but more directly, aims at the Fourth Amendment which prohibits warrantless searches. In discussing the initial subpoena against Harris, the Electronic Frontier Foundation notes:
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. It’s no surprise then that the government singled out Mr. Harris for this request: he currently has over 1,500 followers and 7,200 Tweets.
So you don’t need to go through the trouble of getting a court order to track someone electronically. Now you can just do it after the fact but getting hold of their Twitter feed and the IP address information, essentially gutting the Fourth Amendment against abuse of police power. There’s been some progress on the legal front here – the Supreme Court ruled in January in United States v. Jones that for law enforcement to install a GPS device on private property, it requires a search warrant. Nonetheless, the Court also noted that the rapid technological developments of our era may require that Congress step in with legislation. And given the dysfunctional environment of Washington these days, that doesn’t seem very promising.
Amazing how quickly things can change. Back in 2009, the State Department was praising Iranian students for using Twitter and pushed the country to not cut-off Internet access. But more recently, a number of subpoenas have been issued by local law enforcement in the States for Twitter data, including the Boston Police who subpoenaed two accounts but two hashtags (not quite sure how they were to defend themselves in court).
Malcolm Harris summed up the danger here:
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” Harris wrote for Reuters. “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
The subpoena for Jeff Rae’s account has been posted on Scrib if you want to see it. Scary stuff and yes, protesters may think twice. Win-wins for law enforcement are never good when it comes to social protest – unless, of course, one would prefer a police state.
