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The Government Says You Are Better Off Passing Out Flyers in a Ski Mask Than Tweeting Controversial Material

Kade Crockford,
Director, ACLU of Massachusetts Technology for Liberty Project
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February 9, 2012

Back in December, I posted a blog recounting a truly bizarre experience: sitting in on what I thought would be an open court hearing, and instead witnessing the closing off of the judicial process to the public. We had gone to court to argue our motion to quash a Suffolk county district attorney subpoena to Twitter, seeking information about our client, John Doe, and information related to Occupy Boston.

Yesterday there was another hearing, but this time I got to hear everything. The case was at the Supreme Judicial Court for Suffolk County, with Justice Francis X. Spina presiding. An Assistant District Attorney for Suffolk County argued for the Commonwealth; ACLU of Massachusetts staff attorney Laura Rótolo argued for the First Amendment and our client, John Doe. (I’m leaving out what exactly the hearing today revolved around, simply because the prior court’s judgment, as well as all of the briefs related to the case, remain sealed. I’m therefore not allowed to talk about it, still. Although since yesterday’s hearing was held in open court, and I’m allowed to tell you everything I heard there, you’ll likely get an accurate sense of where things stand with the case simply by reading the following.)

The case: what ground are you standing on?

The argument focused on the most basic of questions: does “@p0isAn0n” have the right to challenge the D.A.’s subpoena? Does he even get to go to court and say that the subpoena is unconstitutional?

Attorney Rótolo opened by arguing that yes, contrary to the state’s assertion, our client does indeed have standing to challenge the subpoena to Twitter for his records. There are First Amendment issues at stake in this case, Rótolo argued, because if our motion fails and Twitter is forced to comply with the subpoena, the state will learn of our client’s identity, thereby ridding him of the opportunity to speak anonymously. Once our client’s anonymity is lost, it is lost forever. Further, John Doe is the only person who can bring a motion to quash the subpoena before the court. Twitter has no interest in doing so and will not do so; faced with this reality, our client has no other options but to defend himself.

When First Amendment issues are at stake, the person whose personally identifiable information is sought via the administrative subpoena process must have a right to challenge it, otherwise we all lose our rights to anonymity online. We are in big trouble if we cannot criticize the government anonymously on the internet.

The court should take into account how our society has rapidly become an internet society; it is here, where you are reading this right now, where our voices are heard and where issues of the day are debated. As many erudite scholars and activists have demonstrated at length, anonymity is vital to speech. Without the cloak of anonymity, many of the most important critiques will be silenced because people rightly fear retribution by the government. Online speech is no different.

The Assistant District Attorney spoke next. She said some pretty astounding things, including that our client – and therefore, the rest of us – has no right to anonymous speech on Twitter. She said that the administrative subpoena in question is “very similar to a Grand Jury subpoena,” and that the Massachusetts state legislature authorized prosecutors to use it as an investigative tool. She argued that the process can remain opaque and can proceed without interference from the subject because, like the exemption under public records law preventing open access to materials that would reveal investigatory procedures, the administrative subpoena is an authorized investigatory tool and therefore above reproach or legal challenge.

Finally, she argued that because the subpoena did not ask for any content information, but only IP and other identifying information, our client has no right to use a First Amendment defense. It’s not what he said, but who he is, that they are after, she suggested.

Judge Spina reflected for a moment, and then restated our claim that the First Amendment “chill” here relates to the stripping of our client’s anonymity, which is unrelated to the content of his tweets. The ADA told him that our client gave up his right to anonymity online when he joined Twitter, leading the judge to ask our lawyers about Twitter’s Terms of Service agreement. Does signing up to use Twitter mean that people forfeit their rights to anonymity, if that’s what the policy says?

“No,” Rótolo told him.

Judge Spina: Does Twitter use then grant people the right to anonymously make threats?

Rótolo: “No. And in this case, our client is not responsible for making any threats whatsoever. The issue at stake here was the compiling of publicly available information from the internet, something anyone could have done, which is not illegal and does not constitute a threat.”

Furthermore, she argued, when there is a First Amendment issue at stake, as there is with the unmasking of our client in this case, the burden falls on the state to prove that they have compelling interest in his identity. Since he has not committed any crime, we present to the court that they do not have compelling interest that would justify stripping him of his First Amendment right to anonymous speech critical of the government, she said.

And that’s when things got really interesting.

The government attorney had some pretty shocking things to say about anonymous speech and our client’s rights. Among them: the “voluntary nature of the tweeting” is what “puts his IP address out there.” No one forced him to use Twitter, she argued, and therefore his personally identifiable information is fair game for the government to scoop up.

The judge countered, asking her how he might engage in anonymous speech in the 21st century if not online. Shockingly, she said, “he could have gone down to Dewey square and handed out flyers.” But he would not be anonymous if he did that, Judge Spina said. People will see him handing out those flyers. (Ed note: so will the literally tens of surveillance cameras pointed at the square.)

“He can wear a ski mask,” the D.A. said, prompting at least one snicker from the public. “When he contracts through Twitter” to speak publicly, “he gives up” his rights to anonymity, she said.

So there you have it. All you people who use the internet out there, know this: the government advises that if you want your speech to remain anonymous, you put on a mask and head down to the most politically surveilled region in your city to pass out controversial anti-government material that angers the police. But don’t say anything on Twitter, or the government can find you, and you won’t have the right to step into a courtroom and say, “that’s not right.”

Stay tuned for more on this case, coming as soon as we hear from Judge Spina. Let’s hope he realizes what most of us have long known: when we click a box next to Terms of Service agreements in order to be able to engage in the 21st century world of ideas, we aren’t consenting to giving away our Constitutional rights.

Let’s hope Judge Spina agrees.

Note: this issue is centrally related to the discussion around third party content holders, which Justice Sotomayor brought up in her concurring opinion in the recently decided Jones case on GPS tracking. Let’s hope the Supreme Court goes in the right direction with respect to third party content and Constitutional guarantees. Nothing less than free speech on the internet is at stake.

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