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WTF? (What the Fawkes?)

Kade Crockford,
Director, ACLU of Massachusetts Technology for Liberty Project
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December 29, 2011

Rosa Luxemburg famously said that those who do not move cannot feel their chains. This morning in Suffolk county court, the ACLU of Massachusetts and our client moved. And we felt our chains.

I had gone to court to listen to our legal team argue a case to protect the First Amendment rights of our client, Twitter user @p0isAn0n, aka Guido Fawkes. That user, who wishes to remain anonymous throughout the proceedings, was the target of a Suffolk County Assistant District Attorney’s administrative subpoena to Twitter, dated December 14, 2011. As we wrote last week, the subpoena asked Twitter to hand over @p0isAn0n’s subscriber information, including our client’s IP address, which can be used to help track down someone’s physical residence.

The subpoena stated that it was seeking the above and other information — some of it referencing Occupy Boston — as part of an ongoing criminal investigation. The government also asked Twitter to keep the existence of the subpoena secret. Thankfully, Twitter disregarded the request for secrecy and sent @p0isAn0n a copy of the subpoena, whereupon it was promptly uploaded to the internet for the world to see.

That’s when the ACLU got involved. We, along with our client, decided that we would together challenge the meant-to-be secret subpoena in open court, and seek its dismissal on the grounds that it infringed on our client’s First Amendment rights.

That brought us to the courtroom this morning. I had been eagerly awaiting the hearing for days, expecting to hear our lawyers deliver stirring defenses of those constitutional protections we hold most dear: freedom of speech, the right to anonymity, and the right to be protected from unwarranted government search and seizure of our private information. Unfortunately my hopes were dashed. Instead of witnessing the hashing out of justice, I got a first hand illustration of government secrecy gone wild.

It’s such a cliché to cite Kafka, but the cliché is warranted because he hit the nail on the head, illustrating how crazy-making is the official marriage of petty bureaucracy and government secrecy. We have seen this marriage dominate the highest levels of our government for the past ten years. Today I witnessed its local iteration.

We entered the courtroom. I sat in the front row, behind the bar. Presiding Judge Carol Ball called our cooperating attorney Peter Krupp’s name, and the Assistant District Attorney’s name. She did not call out the name of the case to begin the proceedings, as is custom.

The ADA approached the sidebar, the area adjacent to the judge’s perch, far enough away from us, the general public, that we couldn’t hear the content of the hushed conversation spoken there. Krupp objected immediately, before even approaching the bench; he wanted the case heard in open court. (The judge had already sealed the proceedings the day before, pending a hearing this morning.) Krupp’s objection was not granted. Our legal team therefore approached the sidebar, joining the judge and the prosecution.

Then we among the general public, including journalists from all the major media outfits in Boston, listened and heard nothing, as the prosecutors, our lawyers and the judge conversed secretly, in plain sight. I have no idea what they said. I still don’t know, because my colleagues, lawyers at the ACLU of Massachusetts, are prohibited by court order from telling me.

So all I know is what I saw. As Donald Rumsfeld said, there are known knowns, known unknowns and unknown unknowns. After the proceedings this morning, I’m left with little of the former, and a whole lot of the latter two.

The known knowns: the scrum of lawyers, defense and prosecution, addressed the judge. I saw the judge speak to the lawyers. Then I saw our attorneys return to their bench, closer to where I was sitting, out of earshot of the sidebar. But the ADA stayed with the judge. He spoke to her, with his back to the courtroom, for about ten minutes. Our attorneys didn’t get to hear what he said to her, didn’t have a chance to respond to whatever the government was saying about our client, about the case. It was frankly shocking.

After those ten minutes of secret government-judge conversation, our attorneys were invited back to the sidebar, whereupon the scrum of lawyers spoke with the judge for another ten or fifteen minutes. Then they dispersed. The judge uttered not one word to the open court. And that was it.

Stunned, I followed a group of reporters outside and listened as Attorney Krupp attempted to answer their questions. It was then I realized that the judge had impounded all the court records related to the case, and mandated complete secrecy governing the proceedings. The public wasn’t even to know whether our motion to quash had been approved or denied.

The press scrum was Kafkaesque to say the least.

‘Can you tell us what the judge decided?’


‘Did the judge grant your motion to quash the subpoena?’

‘I can’t say.’

That brings us to the known unknowns. Attorney Krupp was able to say that he wasn’t able to say anything about the case. He was able to disclose that the judge ordered the case sealed. And he was able to say that he would connect with our client and discuss options for appealing the judge’s ruling. He said nothing more.

Our courts exist to serve as checks against the executive and legislative branches of government. In this case, we went to court to challenge a Massachusetts law that allows for government access to our private data without warrants. The administrative subpoena statute allows police and prosecutors to ask telecommunications companies, internet companies and other possessors of our information to disclose data that reveals intimate secrets about our lives, all without a judge’s knowledge or consent. You might say that the administrative subpoena is the state cousin to the FBI’s national security letter, a federal warrantless investigative tool authorized under the much-despised USA Patriot Act.

Our challenge also sought to oppose the executive branch’s authority to use the administrative subpoena statute to conduct broad, warrantless investigations into activities protected by the First Amendment.

We brought our challenge to the courts, the last of the three branches of government, seeking to right these wrongs. What did we get? I don’t know. And my colleagues who do can’t say. Enter the unknown unknowns.

Even though we don’t have answers for our client or for the general public — answers to these most important questions about freedom of speech, the right to anonymity, the right to be left alone from unwarranted government intrusion into our lives — we did come away from today’s proceedings with a profound lesson:

Secrecy sucks.

Stay tuned for more on this case.

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