Mike Isaac

Recent Posts by Mike Isaac

Gone Fishin’: District Attorneys Overreach in Twitter Data Requests

Technology outpaces the law. And with every major tech sea change, the law scrambles to keep up.

That’s the point at which lawyers often reach for far more than they should.

Case in point: Twitter’s rise to ubiquity over the past six years. The company claims to be the medium for worldwide conversation (the “global town square” is Twitter’s preferred sound bite of choice of late). And politically, the act of group public protest is perhaps the perfect example of Twitter’s usefulness — disparate folks who wouldn’t otherwise know each other can communicate and congregate, organize and act. Take the Occupy movement, for example.

Arrests made in major protests like Occupy that are aided by Twitter use are exactly where district attorneys move in. Thus far, D.A.s in New York, Boston and San Francisco have brought subpoenas for Twitter user data in civil cases against Occupy protesters, asking for information such as private messages between users, tweets from “protected” accounts, all Twitter information from an extended period of time, and, in the case of the San Francisco D.A., even data from others in conversation with the targeted user.

To use a Bush-ism, this is strategery at its finest. There’s no firm precedent in the law for going after Twitter data, and the more information attorneys can get their hands on initially, the more those cases can help them do so in the future.

Think of the rise of the cellular phone and government requests for GPS data, email as the default form of correspondence, or cloud-stored data and the right to privacy users have around it. All have become a part of the mainstream at a rapid pace, and prosecutors have made sure to act early in requests for data.

But that sort of digging raises the potential for all sorts of privacy violations outside the narrow confines of the case at hand, causing many privacy advocates to condemn the practice.

“Twitter can function like a virtual diary,” American Civil Liberties Union staff attorney Linda Lye told me. “It’s where people can go to speak about any number of things, from their personal lives to the political realm. There’s no grounds for some of these sweeping requests.”

Much to the ACLU’s delight, not all of the requests are moving forward. The San Francisco District Attorney’s office agreed on Wednesday to drop its subpoena against two Occupy protesters, Lauren Smith and Robert Donohoe, after the EFF filed an amicus brief to quash the subpoena’s far-reaching requests.

Other cases aren’t dying as quickly. In the case of the State of New York vs. occupy protester Malcolm Harris, for instance, Twitter was forced to hand over information on user Harris after battling the New York D.A.’s office for the better part of a year. Twitter was forced to do the same in a Boston case last March, again involving an Occupy movement protester.

Part of this, again, is about setting precedent. But as Lye reminded me, it’s also a clear message to future protesters who may be thinking about organizing via social networking services like Twitter.

“If protesters know that the government might use an arrest as an opportunity to seize almost a year’s worth of communications, what is a protester to do? Stop protesting, or stop tweeting?” Lye wrote in her response to the S.F. D.A’s office on Wednesday. “The Constitution gives us a right to do both.”

I’ll be fair to the lawyers here, too. There are certainly perfectly good reasons for issuing subpoenas for users’ Twitter and social network information. Indeed, Twitter and Facebook see it that way as well. It is built into both companies’ terms of service; if there’s a “good faith belief” that sharing said data with lawmakers would help “detect, prevent and address fraud and other illegal activity…[or] prevent death or imminent bodily harm,” then it may be turned over to the authorities.

I’ll accept that. But the state asking for more than it needs to investigate can set alarming precedents for future cases. And if you’re at all invested in your First Amendment rights, it’s something to take seriously.

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