Social media is a pivotal platform for free speech protected by the First and Fourth Amendments.
As Americans, we should be free to express ourselves online without fearing that our personal information and communications will end up in government hands – unless law enforcement obtains a probable cause warrant. But in several recent court cases, the government attempted to sidestep the warrant procedure by using subpoenas – which require a far lower standard – to force social media sites like Twitter to turn over private user data.
In these cases, prosecutors and law enforcement agencies sought a wide range of information about political activists from their social networks – from old tweets (related to the charges or not), to private direct messages, to subscriber information (including IP addresses, which can reveal your location). Sometimes these practices are kept secret, making it impossible for Americans to defend their rights in court.
Government surveillance of what we say – whether or not we say it in public – can have a chilling effect on speech. The ACLU regularly takes up legal battles to defend our speech and privacy online; here are a few recent cases from around the country involving Twitter:
In early 2012, New York City prosecutors subpoenaed Twitter for a wide range of information on Occupy Wall Street protestor Malcolm Harris. They demanded – without a warrant – a wealth of Harris’ personal information in connection with a disorderly conduct charge after he was arrested during a march on the Brooklyn Bridge. A New York court ruled that Harris had no legal standing to protect his own constitutional rights because prosecutors had not subpoenaed him, but Twitter, which is a “third party.”
Twitter filed its own motion to quash the subpoena, and then an appeal after the subpoena was upheld. In spite of its impressive efforts, the company was ultimately forced to turn over Harris’ private information. He eventually pleaded guilty to disorderly conduct, but the appeal is still pending.
Twitter should never have had to get involved in this case all. As we argued in our amicus brief, the Supreme Court has made it clear that when government requests to third parties implicate the constitutional rights of individuals, those individuals have a right to dispute those requests in court. Those are the rules offline, and they should apply to internet activity too. Even Twitter doesn’t have the resources to go to court every time law enforcement demands a user’s private information – and other companies may not even want to. Users must be able to protect their own rights.
The ACLU, the ACLU of Northern California, and the Electronic Frontier Foundation successfully fought a pair of overly broad subpoenas seeking information on two political protestors in San Francisco, Lauren Smith and Robert Donohoe. Both were charged with rioting and unlawful assembly during a Columbus Day demonstration in 2012. They had been active on Twitter but disabled their accounts after the protest.
The San Francisco District Attorney’s Office not only subpoenaed subscriber information from the disabled accounts, but also the content of their tweets, photos, and private direct messages over a period of 10 months, regardless of the information’s relevance to the charges. They even demanded all tweets from other accounts mentioning Smith and Donohoe, and lists of whom they followed and who followed them – thereby seeking to collect information about an unknown number of Twitter users who had no connection whatsoever to the charges.
The ACLU and EFF argued that the broad subpoenas were “fishing expeditions,” designed to expose the defendants’ personal thoughts and interests to government prosecutors without the judicial oversight of a warrant process. After we filed our brief, the DA agreed to withdraw the subpoenas. We hope that decision will serve as a reminder for other prosecutors around the country that we have both a right to protest and a right to speak freely on the Internet.
The Massachusetts administrative subpoena law was amended in 2008 to give state and county prosecutors virtually unfettered discretion to obtain personal information about internet users without probable cause that the person has committed a crime – and without even giving the person a chance to challenge the subpoena.
In December 2011, the Suffolk County District Attorney’s Office issued an administrative subpoena to Twitter seeking personally identifying information for "the account or accounts associated with" the names "Guido Fawkes," "@p0ison0N," "@OccupyBoston," or the Twitter hashtags "#d0xcak3" and "#BostonPD." The requested information included all available subscriber information and IP address logs for certain dates.
The subpoena to Twitter stated that it was seeking information 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. Requesting information on hashtags and Twitter handles is overbroad and could affect thousands of people who are not in any way associated with the investigated crime.
The ACLU and the ACLU of Massachusetts asked a judge to dismiss the subpoena on the grounds that it infringed upon the First Amendment rights of the anonymous user, @p0ison0N. Instead of hearing the case in open court, the judge impounded all court records related to the case, and mandated complete secrecy governing the proceedings. After nine weeks of secret court proceedings, the Suffolk County Superior Court ordered Twitter to comply with the administrative subpoena.
In connection with its Wikileaks investigation, the federal government obtained a federal court order requiring Twitter to turn over the private account information of Birgitta Jonsdottir, a member of the Icelandic parliament. The ACLU and the EFF unsuccessfully tried to overturn the order, and also to unseal other court records related to the government’s attempts to secretly collect private information from internet companies.
In May 2011, a federal magistrate judge partially granted an ACLU/EFF request that all court records related to the Twitter order be listed on the public docket. But the court did not agree to public listing for documents related to any other orders that may have been issued to other companies besides Twitter. The released files suggest that there are other secret court orders – but without public docketing we cannot know to whom they were issued or whether they were challenged.
Public docketing might seem like a technical detail, but without it, we cannot monitor the government’s attempts to gather private information. A docket lists all of a court’s proceedings – it shows the documents filed by parties and the orders issued by the court. Even if the content of those documents remains secret, public docketing gives the public notice of what the government is doing. But secret dockets and court orders make it impossible to know if the government is gathering our information or if our Constitutional rights are being violated, much less to challenge those violations in court.
The ACLU and EFF appealed the ruling to the district court, asking for public docketing of all documents related to the investigation, and for Ms. Jonsdottir’s Twitter account information to remain private. The district court ruled that Twitter had to hand over to the government the private information, which Twitter did – and the court refused to publicly list the secret court orders the government may have obtained to collect information from other companies. The ACLU and EFF appealed the ruling on the public docketing issue to the U.S. Court of Appeals for the Fourth District, which denied the appeal.