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Article posted Feb 22 2012, 6:10 AM Category: Big Brother/Orwellian Source: EFF.org Print

Government Pressures Twitter to Hand Over Keys to Occupy Wall Street Protester's Location Data Without a Warrant

By Hanni Fakhoury, Electronic Frontier Foundation

On October 1, 2011, over 700 Occupy Wall Street protesters were arrested on the Brooklyn Bridge. Most of the protesters, including Malcolm Harris, were charged with the mundane crime of disorderly conduct, a "violation" under New York law that has a maximum punishment of 15 days in jail or a $250 fine

And yet on the basis of a charge no more consequential than speeding ticket, the New York City District Attorney's office sent a poorly worded subpoena to Twitter requesting "any and all user information, including email address, as well as any and all tweets posted for the period of 9/15/2011-12/31/2011" regarding Mr. Harris' Twitter account, @destructuremal. Unsurprisingly, the government wanted to keep it quiet, but thankfully Twitter didn't listen. Instead, as it has consistently warned law enforcement, Twitter notified Mr. Harris, who through his lawyer, Martin Stolar of the National Lawyers Guild, has moved to challenge the subpoena in court.

The subpoena is astonishing not only for its poor grammar, but also for the breadth of information the government wants for a trivial crime that hardly requires it. The government's request that Twitter hand over Tweets is unlikely to succeed because consistent with the Stored Communications Act, Twitter releases "contents of communication" (effectively Tweets and private messages between Twitter users) only with a search warrant. In any event, Mr. Harris' account is "public", meaning the government could obtain Tweets simply by checking out Mr. Harris' Twitter feed. Plus, requesting Tweets only highlights the absurdity of the entire situation: why would the government need Tweets from both before and after the October 1 protest to prove he was obstructing traffic on the bridge? In any event, government fishing expeditions like this raise serious First Amendment concerns. Mr. Harris was very outspoken about his support of and involvement in the Occupy Wall Street movement. With this overbroad subpoena, the government would be able to learn about who Mr. Harris was communicating with for an extensive period of time not only through Tweets, but through direct messages. And with the government's request for all email addresses associated with @destructuremal, they could subpoena Mr. Harris' email provider to get even more information about who he communicated with. The First Amendment shouldn't be trampled with only an expansive subpoena in a case that barely registers as "criminal."

Given that much of Mr. Harris' Twitter information (like Tweets and followers) is already public, it's very likely that the government was really after something else: location data. By attempting to subpoena these records, the government can get around the Fourth Amendment's prohibition against warrantless searches by requesting information that includes IP addresses. Twitter keeps track of IP address information regarding every time a person logged into Twitter, as well as the IP address information related to a Twitter user's direct messages to other users, and the date and time information related to these log ins and direct messages. Armed with IP addresses, the government -- without a warrant -- can go to an ISP to determine who was assigned that particular IP address. And if that person connected on a mobile device -- which is where the majority of Twitter users access their accounts -- the ISP will hand over to the government the specific cell tower (and its corresponding geographic location) which that person used to access Twitter. This allows the government to piece together a map of where a person physically is when he opens Twitter on his smartphone, sends a direct message to a friend, or Tweets. And with that information, the government could get a record of Mr. Harris' movement over the three months it requested from Twitter. Its no surprise then that the government singled out Mr. Harris for this request: he currently has over 1,500 followers and 7,200 Tweets. 

Allowing the government to gets its hands on this data with nothing more than an administrative subpoena renders the Fourth Amendment meaningless. Only with the protection of a search warrant, and the heightened judicial supervision that comes along with it, can the voracious appetite of law enforcement be curbed. As we've consistently argued, the Fourth Amendment protects this information. But another way to impose privacy protection from the prying hands of law enforcement is through Congressional reform of the badly outdated Electronic Communications Privacy Act ("ECPA"). As part of the Digital Due Process coalition, EFF has been calling for Congress to update ECPA to conform with the realities of the 21st century. 

It looks like judicial momentum may finally be on our side. In January of this year, the United States Supreme Court issued a landmark decision in United States v. Jones (PDF), ruling that law enforcement could not physically install a GPS device on private property without a search warrant. The majority opinion resolved the Fourth Amendment issue by looking exclusively at the physical installation of the GPS device. Importantly, however, in a concurring opinion, Justice Sotomayor warned that "physical intrusion is now unnecessary to many forms of surveillance." Collecting IP addresses of a prolific Tweeter, and matching it with other easily obtainable information from other service providers, demonstrates this problem. In writing that society is unlikely to accept extensive warrantless surveillance as "reasonable", Justice Sotomayor called into question "the appropriateness of entrusting to the Executive, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment's goal to curb arbitrary exercises of police power to and prevent 'a too permeating police surveillance.'" Similarly, Justice Alito's concurring opinion noted that with "dramatic technological change, the best solution to privacy concerns may be legislative." 

Hopefully with the public breathing down its neck, Congress can finally act to fix a antequated set of laws. Malcolm Harris, like Birgitta Jonsdottir before him, took a stand to protect our privacy rights. You can too by telling Congress that its time to update ECPA and tell law enforcement once and for all that in order to get a person's location data, it needs to come back with a warrant. 





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Comments 1 - 2 of 2 Add Comment Page 1 of 1
Rwolf

Posted: Feb 22 2012, 3:03 PM

Link
108198 Canada, Britain & U.S. Government want to Spy On Its Citizens’/ Electronic Communications?

The Canadian (Commons recent Bill C-30) would—give any Canadian police officer without a warrant—the power to request Internet service providers turn over customer information (see section 17 of C-30) cause the same loss of electronic privacy and civil liberties that British Government recently proposed—to spy on Brits’ electronic communications. Is it coincidence the British and Canadian proposals appear to mirror legislation U.S. Government said it wanted passed in 2011 to spy on U.S. Citizens?

Overlooked by mainstream media is that Britain and Canada signed with the U.S Government an array of (Asset Forfeiture Sharing Agreements) to share with Canadian and British Police/Governments assets seized from Brits, Canadians and Americans that resulted from e.g, evidence or information gleaned from electronic surveillance of Citizens’ communications, e.g., emails, faxes, Internet actively, phone records including GPS tracking.

Compare with U.S. Government’s proposal to electronically monitor, spy on Americans without a warrant—with Canada’s recent eavesdropping (Bill C-30) and British Government’s plan to spy on its Citizens’ electronic communications.

U.S. Government wants the power to (introduce as evidence) in criminal prosecutions and government civil trials, any phone call record, email or Internet activity. That would open the door for Police to take out of context any innocent—hastily written email, fax or phone call record to allege a crime or violation was committed to cause a person’s arrest, fines and or civil asset forfeiture of their property. There are more than 350 laws and violations that can subject property to government asset forfeiture. Government civil asset forfeiture requires only a civil preponderance of evidence for police to forfeit property, little more than hearsay.

If the U.S. Justice Department has its way, any information the FBI derives from circumventing the Fourth Amendment, i.e. (no warrant searches) of Web Server Records; a Citizen’s Internet Activity, personal emails; fax / phone calls may be used by the FBI for (fishing expeditions) to issue subpoenas in hopes of finding evidence or to prosecute Citizens for any alleged crime or violation. Consider that neither Congress nor the courts—determined what Bush II NSA electronic surveillance, perhaps illegal could be used by police or introduced into court by government to prosecute Americans criminally or civilly. If U.S. Justice Department is permitted (No-Warrant) surveillance of all electronic communications, it is problematic state and local law enforcement agencies and private government contractors will want access to prior Bush II NSA and other government illegally obtained electronic records not limited to—Americans’ Internet activity; private emails, faxes and phone calls to secure evidence to arrest Americans, assess fines and or civilly forfeit their homes, businesses and other assets under Title 18USC and other laws. Of obvious concern, what happens to fair justice in America if police become dependent on “Asset Forfeiture” to help pay their salaries and budget operating costs?

The “Civil Asset Forfeiture Reform Act of 2000” (effectively eliminated) the “five year statue of limitations” for Government Civil Asset Forfeiture: the statute now runs five years (from the date) police allege they “learned” an asset became subject to forfeiture. It is foreseeable should (no warrant) government electronic surveillance be approved; police will relentlessly sift through business and Citizen’s (government retained Internet data), emails and phone communications to discover possible crimes or civil violations. A corrupt despot U.S. Government can too easily use no-warrant—(seized emails, Internet data and phone call information) to blackmail Americans, corporations and others in the same manner Hitler utilized his police state passed laws to extort support for the Nazi fascist government, including getting parliament to pass Hitler’s 1933 Discriminatory Decrees that suspended the Constitutional Freedoms of German Citizens. A Nazi Government threat of “Property Seizure” Asset Forfeiture of an individual or corporation’s assets was usually sufficient to ensure Nazi support.

Under U.S. federal civil forfeiture laws, a person or business need not be charged with a crime for government to forfeit their property. Most U.S. Citizens, property and business owners that defend their assets against Government Civil Asset Forfeiture claim an “innocent owner defense.” This defense can become a criminal prosecution trap for both guilty and innocent property owners. Any fresh denial of guilt made to government when questioned about committing a crime “even when you did not do the crime” may (involuntarily waive) a defendant’s right to assert in their defense—the “Criminal Statute of Limitations” past for prosecution; any fresh denial of guilt even 30 years after a crime was committed may allow Government prosecutors to use old and new evidence, including information discovered during a Civil Asset Forfeiture Proceeding to launch a criminal prosecution. For that reason many innocent Americans, property and business owners are reluctant to defend their property and businesses against Government Civil Asset Forfeiture.

Re: waiving Criminal Statute of Limitations: see USC18, Sec.1001, James Brogan V. United States. N0.96-1579. U.S. See paragraph (6) at:
http://www.law.cornell.edu/supct/html/96-1579.ZC1.html
Rwolf

Posted: Feb 22 2012, 3:16 PM

Link
108198 NEXT: The Arrests

Most Americans haven’t awaken to the fact they are subject to an array of recently passed Fascist Laws including The National Defense Authorization Act and perhaps soon—the Enemy Expatriation Act that U.S. Government can unleash against the public. Congress gave U.S. Government the power to arrest and indefinitely detain Americans without probable cause or bringing charges: Detained U.S. Citizens now have no right to an attorney or trial or right to learn the charges against them—if any. If that isn’t Fascism what is?

It is foreseeable U.S. activists in the future that occupy government and other property (and) violate State or Federal laws will be charged by U.S. Government for conspiring or provoking violence; supporting hostilities; International and or Domestic Terrorism and may be incarcerated in Indefinite Detention or prosecuted under United States Code 18 Sec. 2331 (appear intended (i)“to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion…” Any Violent-Occupation or Protest even if caused by agent provocateurs, potentially can play into the hands of individuals, law enforcement and corporations that may want America turned into a Police State. : Almost any criminal or physical act can be used by U.S. Government or Police to charge a person or group with advocating, supporting or committing terrorism. Considering these laws—only idiots or provocateurs would advocate violence or destruction of property.

U.S. terrorist laws are broad and vague and can be used by Government or Police against anyone, which makes it easy to set up or frame anyone for being involved in or connected to terrorism—perhaps for no other reason a Citizen or group dared challenge or question government policy.

Where U.S. Government appears headed with the Patriot Act, The National Authorization Act of 2012 and introduced “Enemy Expatriation Act” that would let Government Strip U.S. Citizenship without evidence or a conviction—is getting Congress to grant U.S. Government (The Executive Branch) the Power to arbitrarily arrest, charge, indefinitely Detain Americans that participate in 1st Amendment activities (on the premise) that certain 1st Amendment Activities were intended or used to support or provoke hostilities, combatants, Belligerents; terrorism and or threaten National Security.

18 U.S.C. § 2331 : US Code - Section 2331: Definitions of Terrorism
As used in this chapter -
(1) the term "international terrorism" means activities that -
(A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State;
(B) appear to be intended -
(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by
intimidation or coercion; or
(iii) to affect the conduct of a government by mass
destruction, assassination, or kidnapping; and
(C) occur primarily outside the territorial jurisdiction of
the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum;
(2) the term "national of the United States" has the meaning given such term in section 101(a)(22) of the Immigration and Nationality Act;
(3) the term "person" means any individual or entity capable of holding a legal or beneficial interest in property;
(4) the term "act of war" means any act occurring in the course
of -
(A) declared war;
(B) armed conflict, whether or not war has been declared,
between two or more nations; or
(C) armed conflict between military forces of any origin; and
(5) the term "domestic terrorism" means activities that -
(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;
(B) appear to be intended -
(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by
intimidation or coercion; or
(iii) to affect the conduct of a government by mass
destruction, assassination, or kidnapping; and
(C) occur primarily within the territorial jurisdiction of
the United States.


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