This seems fine to me. It's a public tweet so the government could have easily captured a copy initially. Asking Twitter to produce the message with a court order seems better than the government having their own database of public tweets.
I see a few other problems.
The first is wasting so much money on prosecuting someone who was walking on the street instead of sidewalk. Yes, they blocked the Brooklyn Bridge. But there is the Manhattan Bridge, Queensboro Bridge, Midtown Tunnel, and many other alternate routes from Manhattan to Long Island. The net impact was probably nothing. The sidewalk on the Brooklyn Bridge is woefully inadequate for everything anyway so I don't really blame them for using the road. Better to block cars that can divert at 60mph than bikes that have to divert at 3mph :)
The second issue I see is with the prosecution proving that a chain of custody was maintained for the messages that Twitter produced. If any Twitter employee has write access to the data store, the messages and timestamps could easily have been altered. How can the prosecution prove, beyond a reasonable doubt, that this did not happen?
Finally, how can one prove a tweet conveyed actual intent rather than mere interest? I often tweet about things like, "I should go get 5000 of my closest friends to block the Brooklyn Bridge." If I did that on the day of the protest, that would look bad for me. But I might have been posturing rather than organizing, which is my right to do without interference from the government.
Anyway, this is all a huge waste. It seems like New York City is being pressured to keep working on this bullshit case when they should have just cleared the bridge, issued fines, and moved on. Or maybe, you know, provide adequate pedestrian capacity so people can peaceably assemble without having to block traffic!
(Incidentally, the exact lane that the protesters blocked is closed every night for construction...)
The subpoena wasn't just for the public contents of tweets; it was also for any and all user information for the account, including email address and an anything else twitter might have collected, including IP addresses, physical location, browser type, etc.
In addition, the court ruled (yet again) that the defendant had zero standing to challenge (or even know about) the subpoena since it was directed at Twitter not him. Which is kind of terrifying given the push to cloud storage for everything.
Most of this fruitless discussion seems to be between people who have just read the TPM article (or scanned to the pull-quote from the judge), and those who are more familiar with the case. Here's an ArsTechnica article that communicates the issues quite clearly: http://arstechnica.com/tech-policy/2012/07/ny-judge-compels-...
The subpoena is for all public and private information Twitter has for a period of three months and a half. The charge is for disorderly conduct at one point during this period. The EFF and Twitter are pointing out that the prosecutor is going on a fishing expedition. The “shouting from a window” analogy the judge made is irrelevant.
Whether the case should be prosecuted or not - let's leave that alone.
Chain of custody - fair point, but realize that's the case with every piece of evidence. It only becomes very important, as I understand it, once it is in the hands of the prosecution/law enforcement. Before that, it is what it is. Evidence tampering is illegal of course, and we like to think it's hard to prove digital stuff, without crypto sigs and all that, were not altered - but it's nothing new.
The defence would have to have some kind of evidence, even he-said-she-said (defendant says that's not what he wrote) in order to open that door - it's not a freebie. And perjury is a crime.
As to how one can prove what a tweet conveyed - that's what the trial and jury are for.
It is your right to speak. The actions of your words, however, can have consequences - if you started and organized a riot (like, you really did) then society has a vested interest in investigating that. If you did that, you need to be dealt with - it's wrong (no inference implied to the current case, just an example).
And the constitution doesn't say "freedom of speech" - it says something like "Congress shall make no law..(snip) or abridging the freedom of speech.... (and more)
It doesn't say they can't investigate your role in things, which may include your speech.
>> "I should go get 5000 of my closest friends to block the Brooklyn Bridge."
Anything you say can and will be held against you in a court of law.
It is disappointing that the Government will go to great length to arrest and prosecute hundreds of citizens exercising their constitutional rights. But, it does not have balls to go after any of the greedy wall street bankers who robbed the country.
It's your constitutional right to assemble. If you get a million people, for example, assembling, you cannot keep the same rules of traffic as usual. (It would be impossible (and the attempt dangerous) to try to keep a million people on the sidewalk.) [Edit: In other words, your constitutional right to turn out and assemble is independent of whether there will be enough space for you on the sidewalk.]
As for the Wall Street bankers, who do you want to prosecute for what?
Those that committed it, for fraud. It's an open-and-shut case if the power existed to prosecute it.
As a counter-point, New Hampshire has a Right to Revolution granted in its constitution. It has been used to successfully defend a protestor who cut down a power line at a nuclear plant, and was recently brought up in an OWS case. https://inzanetimes.wordpress.com/2012/02/20/lawyer-for-occu...
> It's an open-and-shut case if the power existed to prosecute it.
if that were true, why are their customers not suing them for fraud? seems like they'd win a lot of money pretty easily if it were an open and shut case.
There are a several videos on interwebs of police arresting people who were not blocking streets (other than the Brooklyn Bridge incident). Moreover, the court has ruled that the Brooklyn Bridge incident was police's fault and arrests were unreasonable.
As for the Wall Street bankers, who do you want to prosecute for what?
Executives of banks and mortgage companies engaged in fraudulent practices that led to the financial crisis. Instead of pressing criminal charges, they were rewarded by the Government.
> Executives of banks and mortgage companies engaged in fraudulent practices that led to the financial crisis.
At least some of these practices were "encouraged" if not mandated by govt regulators. Are you planning to punish them? If not, what's the justification for punishing the folks following their orders?
I don't understand the ruling. Sure, my tweet is public, but why does that mean that the government can demand my email address and other identifying user information?
I'm also confused as to what's even being demanded. If the tweets are public, doesn't the Manhattan DA already have them? And if they know who this person is (since they said his name, Malcom Harris), what identifying user information do they actually need?
Yeah, it sounds like an absolutely ridiculous ruling. The judge compares a tweet to shouting something out a window. Which is a perfectly good analogy. But then in his analogy, since you shouted it out the window of the Twitter Bar, now months later that establishment is required to turn over all its CCTV recordings and information on you to the DA
How is this "absolutely ridiculous"? The government is investigating someone they suspect committed a crime and issued a subpoena to get more information. It's how the system is supposed to work.
As the judge noted, there are different standards for the subpoena depending on whether there is a "reasonable expectation of privacy" in the information being subpoenaed, because the Stored Communications Act of 1986 adds certain extra requirements on when an ISP may release materials that fall under the latter category.
What was in dispute here wasn't that some information was subpoenaed following proper procedure, but that the judge held that the "proper procedure" in this case was the procedure for public information in which there isn't a "reasonable expectation of privacy", while Twitter was arguing that the subpoena was requiring them to disclose things that were not in fact public information.
Sure, but the idea that tweets have an expectation of privacy, reasonable or not, is absurd.
From a PR point of view, Twitter did the right thing. They executed their right to challenge the subpoena. Now they have to begrudgingly hand over the data. It makes it look like they'll fight for their users, even though there's clearly nothing they can do.
The top comment, by Tangaroa, points to 18 USC 2703 which covers this. A company can be compelled to give that information.
You really find it odd that the government can force company X to turn over your ip address, name, email and other such information?
The concern over growing fascism comes from warrantless government behavior. This, on the other hand, seems completely within the realm of government acting properly.
You're right. I stand corrected. I found the article confusing, but maybe it's just me. If the judge agreed that the subpoena is inadequate, why did he still order Twitter to disclose all public and private data from September 15, 2011 to December 30, 2011? I guess some of those protections are based on a date range?
Legal merits aside, that the judge would invoke the founding fathers as he assists in the corporate-governmental squashing of civil disobedience and dissent is pretty damn hypocritical/ignorant. 90% of the founding fathers would likely be strong supporters of, if not there on the front lines of Occupy Wall Street and similar protests if they were alive today. The US government in its present state stands directly (and proudly) against their most strongly held and stated values.
As crappy as this is - it seems to be legal and logical. You don't get to claim privacy on something you're broadcasting to the world, and neither does the company, considering they asked LoC to permanently archive a chunk.
As approximately half the comments in this thread are currently at pains to point out:
It is not surprising that something which is broadcast publicly is public.
It is very, very surprising that the public nature of anonymously-published material is in any way relevant to whether the private identity of the author should be disclosed.
Did you read the article? Twitter was arguing that the subpoena was incorrectly issued in the first place, not they are somehow above the law.
The subpoena was based on rules that assume that the twitter user's email address and direct messages (like public tweets) are already public. This is surprising since I think most Twitter users would agree that those things aren't expected to be public.
No. I'm pretty sure the subpoena was for _public_ tweets and personal identifiable information (ip address, email, ...).
I think you are confusing personal identifiable information with direct messages. The direct messages _do_ have an expectation of privacy around them, but that information was never requested.
Logical only if you follow the analogy of screaming out of a window. It's a smart analogy because superficially it seems identical.
The tweeters in Tahrir square however would have got killed had they screamed out of a window. Twitter gave them a public forum and anonimity. A completely novel concept, and one that deserves a more careful ruling than this brash analogy.
It's the same simpleton internet to real world translation the MPA/RIAA use to equate "file sharing" to physical theft. It's an easy analogy to pull the wool over the eyes of less technically inclined individuals.
>The judge also turned Twitter’s own policies and businesses decisions against the company as rationale for upholding the subpoena, pointing out that Twitter in 2010 signed an agreement to allow the Library of Congress to keep an archive of all public tweets ever made on the service, using the information sharing as an example that Twitter itself didn’t consider the content private.
Does this mean the government sued twitter to get information they could have simply looked up at the library?
The judge is missing that no one is entitled to put an administrative burden on twitter, especially for information they can get off the internet anyway... Archive.org much?
Got a citation for that last sentence? While I agree it's a valid counter to a subpoena, if you have evidence and a judge issues a subpoena ordering you to hand it over.. it's pretty clear cut if everything is done by the book.
Why not go to the LoC? Because the judge can just order twitter to produce it, which one would expect is probably easier.
LoC may be far from having a way to do this easily.
Twitter won. They've stood up for their users in court and got a lot of public support for doing so. The verdict is disappointing but doesn't really affect that.
The users involved, and others down the line, are the ones who effectively lost this case.
So what if I post a message on Facebook and share it only with my immediate friends. Does that also classify as public? What if I share it with only one person?
If a subpoena can identify that there is reasonable belief that those messages, specifically, exist (as opposed to broad fishing expiditions) then none of them are safe.
Private email can be subpoenad under the right conditions.
Why does the hive disagree? If law was objective, we could replace judges and juries with software. In the end, the law is not drafted, or applied by any objective or empirical framework.
Are you claiming that every question with an objective answer can be encoded in an algorithm guaranteed to terminate? If so, would you care to provide the algorithm used to determine if a particular question has an answer that can be arrived at using such an algorithm? :-D
You're conflating two separate concepts. Concepts like damages decided by a judge reflect an objective fact (eg loss of business) that is in no way measurable, and concepts like "beyond reasonable doubt" reflect facts that are measurable but subjective. Where measurable techniques have become available to law - DNA profiling, for example - they're taken up very quickly.
I'm completely ignoring the other functions of courts, like legislative oversight, that obviously can't be performed by an algorithm.
> Concepts like damages decided by a judge reflect an objective fact (eg loss of business) that is in no way measurable
Right, but we could right a formula to get close enough.
Compensation = (official estimate or bid to repair damages) * ( 1.3 for hardship)
These variables could be punched into a program and a consistent result would come out.
> and concepts like "beyond reasonable doubt" reflect facts that are measurable but subjective
That doesn't make any sense to me. Facts are not supposed to be subjective. Especially considering the use of "reasonable doubt" is subjective, for example, officers claiming PC based on drug odors.
> I'm completely ignoring the other functions of courts, like legislative oversight, that obviously can't be performed by an algorithm.
Why can't an algorithm do "legislative oversight"?
Update ---
> Where measurable techniques have become available to law - DNA profiling, for example - they're taken up very quickly.
DNA has been used to set people free that were locked away based on opinions. Why should ANYONE have the "discretion" to lock away a human being? I think that kind of trust comes from years of brainwashing and episodes of CSI (or the million other variants).
If you post on social networks or micro blogs your posting information into the public domain. You are therefore responsible for what you say and this can be used for/against you. I see no difference between a twitter, a spoken recording or a written statement.
Either way it is nice to see twitter did fight this to some extent
A big win for the Internet is not having to cough up who you are. This proves that e government will hunt you down if you say something they don't like and will violate privacy policies along the way to get it. This could mean anonymous Internet is over.
Pretend it's a real riot-starter you don't like and think about it.
The internet changes nothing. It's not a free ticket to anonymity, any more than putting up posters in the middle of the night was. You run the risk of getting caught.
Privacy policies are between you and a company, not law.
The danger is in widespread digital fishing expeditions by prosecutors - we can't have "turn over everything so-and-so said ever on your service". We need specifics, like everything else... thats' the danger.
The internet is not a thing - it's a bunch of cooperating entities running networks all over the world, and a bunch more people running services on top of that.
The courts have ALWAYS been able to subpoena information during investigations. Why should digital information be different?
Franzen (the linked article) discusses the justification for surrendering the user's public tweets but not the user's private information. Judge Sciarrino's decision distinguishes between these tweets and the user's "non-content" private information, finding that "The law governing compelled disclosure also covers the above mentioned non-content records." This law is 18 USC 2730[c][1][B], which is fairly straightforward.
In short, this is no big deal. The information was legally subpoenaed in connection with a criminal investigation. I think this is only on the front page because it has the words "Twitter", "Occupy", and "Forced" in the title.
The ruling may be correct under the law, but that doesn't make it a good thing.
The Judge is a douchebag for referencing Samuel Adams, Benjamin Franklin, Alexander Hamilton and Thomas Jefferson in his ruling. Franklin, Hamilton and Adams wrote pamphlets anonymously with the precise expectation that the content be public while the writer stay anonymous. Obviously I concede that an ink on paper pamphlet is not the same as a tweet.
Rulings like this will only push reputable critical speech of the US government further into less civil minded groups like Anonymous.
Must TOR, I2P and IRC be the domain of our modern day pamphleteers? The sad truth is, probably. The First Amendment hasn't truly protected free speech since the Alien and Sedition Acts of 1798. See http://en.wikipedia.org/wiki/First_Amendment_to_the_United_S...
I guess those who prefer critical thought and freedom over security had better brush up on loathsome l33t speak.
I get what you're saying... that this isn't some shady National Security Letter deal. This is "how it's supposed to work" with a judge signing off on a subpoena.
But I think you are missing why this is of interest to many people: What criminal charges are being investigated here? The article makes it sound like "disorderly conduct" but surely that can't be right. I guess it's unfair to make assumptions since we obviously don't have all the facts, but based on the public information about this case there is certainly at least the appearance that it is based on trumped up, retaliatory charges.
I don't think the government has the duty of disclosing that information to the public (or even the suspect) until it charges him. It'd be pretty silly if they did.
They need to convince someone, say a judge, to issue the subpoena/warrant.
The prosecutors have to convince a grand jury to issue an indictment. That's what the initial investigation is about.
They may not have the duty to disclose, however, the warrant/subpoena has to be specific, and what IS scary is the idea that those served can be put under a gag order not to talk about it. For big RICO cases it made sense, but for smaller ones that's an abuse.
> In short, this is no big deal. The information was legally subpoenaed in connection with a criminal investigation. I think this is only on the front page because it has the words "Twitter", "Occupy", and "Forced" in the title.
I agree. No doubt there are hundreds of similar subpoena's for the same set of information from Twitter users; in this case it happened to be a user connected to a movement that is garnering media attention.
PS: Note that I am not condoning the actual case itself; whilst I can't say their actions are ideal (likely to just annoy the public they need the support of), this case is an extreme overreaction.
I see a few other problems.
The first is wasting so much money on prosecuting someone who was walking on the street instead of sidewalk. Yes, they blocked the Brooklyn Bridge. But there is the Manhattan Bridge, Queensboro Bridge, Midtown Tunnel, and many other alternate routes from Manhattan to Long Island. The net impact was probably nothing. The sidewalk on the Brooklyn Bridge is woefully inadequate for everything anyway so I don't really blame them for using the road. Better to block cars that can divert at 60mph than bikes that have to divert at 3mph :)
The second issue I see is with the prosecution proving that a chain of custody was maintained for the messages that Twitter produced. If any Twitter employee has write access to the data store, the messages and timestamps could easily have been altered. How can the prosecution prove, beyond a reasonable doubt, that this did not happen?
Finally, how can one prove a tweet conveyed actual intent rather than mere interest? I often tweet about things like, "I should go get 5000 of my closest friends to block the Brooklyn Bridge." If I did that on the day of the protest, that would look bad for me. But I might have been posturing rather than organizing, which is my right to do without interference from the government.
Anyway, this is all a huge waste. It seems like New York City is being pressured to keep working on this bullshit case when they should have just cleared the bridge, issued fines, and moved on. Or maybe, you know, provide adequate pedestrian capacity so people can peaceably assemble without having to block traffic!
(Incidentally, the exact lane that the protesters blocked is closed every night for construction...)