May 31, 2012 | By Hanni Fakhoury

EFF Joins Twitter in Standing Up For User

We took a stand for Twitter users Wednesday, and in an amicus brief (PDF) urged a New York City judge to reconsider his decision authorizing a broad subpoena to Twitter that seriously threatens the First Amendment and privacy rights of everyone on the Internet. 

We started writing about the case of Malcolm Harris in February, when the New York City District Attorney's Office sent a subpoena (PDF) to Twitter, requesting information about Harris, one of the 700 protesters arrested on the Brooklyn Bridge in October 2011 in connection with an Occupy Wall Street protest. The prosecutors requested Twitter turn over reams of information it had on Harris, including the content of tweets, IP addresses from where he accessed Twitter, and any email addresses it had on file.

We believe the government is after Harris' location, and the fact that he was a prolific tweeter with almost 1,500 followers and 7,200 tweets -- and an outspoken Occupy Wall Street sympathizer -- would give the government a tremendous amount of insight into the Occupy movement's activities and membership. The fact that the subpoena came out of a criminal investigation for disorderly conduct, a trivial crime with a maximum punishment of a $250 fine or 15 days in jail, made it seem all the more like a politically motivated witch hunt. And the government confirmed that it was indeed trying to use the information from Twitter to figure out Harris' location on the day in question, but inexplicably requested three months of data from Twitter.

The judge's opinion (PDF) authorizing the subpoena was worse than we could have imagined. The court ruled Harris didn't have legal standing to challenge the subpeona because the information -- including all of his tweets -- belonged to Twitter. It allowed the government to get the content of communication -- tweets -- with simply a subpoena, and not a search warrant as required by the Fourth Amendment and the Stored Communications Act. It gave the keys to location information, IP addresses that could be used to determine where a person is when he logs into Twitter, without a search warrant.

Thankfully, Twitter stepped in since the court ruled Harris couldn't, and moved to quash the subpoena (PDF). And now we're stepping in too, teaming up with the ACLU, the New York Civil Liberties Union (NYCLU), and Public Citizen in an amicus brief in support of Harris and Twitter's challenge to the subpoena.

As we say in our brief, individuals have long had the legal ability to challenge government requests to third parties that implicate constitutional rights. After all, the data the government wants pertains to Harris, not Twitter. And while we (and others) applauded Twitter for standing up for its user in this instance, many tech companies holding tons of data about their users won't, leading to potential constitutional violations that have no way to be challenged in court. Its crucial for users to be able to stand up for themselves, instead of hoping that other companies follow Twitter's lead.

We also argue that the subpoena violates the First and Fourth Amendments. In order to protect free speech, the First Amendment demands that the government demonstrate an “overriding and compelling” need for the information and a substantial nexus between the information and a government investigation. The trivial charges and weak excuse, combined with the breadth of the subpoena demonstrate the government has failed to meet this high standard.

With respect to the Fourth Amendment, content and location require a search warrant. In the last few years, thanks to some of the work we've done (and are still doing), courts have begun to recognize that the Fourth Amendment applies even when information is disclosed to a third party for a limited purpose, like when email is sent through a server in order to be delivered to its recipient, or a cell phone company keeps track of your location in order to complete your phone call. And with U.S. Supreme Court Justice Sotomayor's concurring opinion in United States v. Jones -- which ruled that the Fourth Amendment applies to the installation of a GPS tracking device on a car -- commenting it was time to reconsider the idea that disclosing some information for a limited purpose to a third party eliminates any privacy rights in that information, we're hopeful the judicial tide has turned on this issue.

We're also hopeful the judge will reconsider his decision after hearing from us and Twitter. Search warrants are an integral part of balancing law enforcement's voracious appetite with the right to privacy guaranteed in the Constitution. Broad subpoenas in trumped up loitering cases shouldn't undermine this important bulwark against the overzealous government.


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