ACLU fights Kafkaesque secret Occupy Boston Twitter subpoena

The ACLU of Massachusetts is representing an anonymous Twitter user who has been targetted by an Assistant DA who is trying to build a case related to Occupy Boston; the court and the ADA have sealed the proceedings, so no one -- not even some of the ACLU staff working on the case -- is allowed to know what is going on:

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 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.

WTF? (What the Fawkes?) (Thanks, Joy!)


  1. Well they obviously played the terrorism card, or told the Judge he could use a payphone to launch all of the nuclear missiles if word got out about what they are fishing for.
    It is so nice to see a judge standing up for the rights of the “accused”.  /s

  2. The part I love.  Polarized audiences (and actors) of News Theater will will happily agree with this decision simply because it is against the Occupy Movement. There won’t even be a moment worth critical thinking about what this means to the rule of law in the US.

  3. Cory, “targetted” is how Cristoforo would spell that. 

    About the subject, I’m disgusted and not surprised. 

  4. The best metric for the health of a society is the number of things it considers necessary to sometimes keep secret.

    Unfortunately, we live in an ailing society.

  5. If you google @poisanon you find a website announcing that operation “Robin Hood” is planning to use credit card fraud to reimburse the 99%; whoever the anon. guy is, he’s claiming to be in touch with people who probably belong in jail.
    We’ve got a right to free speech and all that, but if you openly declare that you intend to commit a serious crime (and whatever reason you might think justifies it), I expect the law to take an interest; they’d be pretty lax to go “Ok, you scoundrel, go right ahead”

    How far can you go in America, in terms of describing your plan to commit a crime, whilst still enjoying protection of free speech? When does free speech become plotting to a commit crime? 

    I think that if poisanon has posted videos to Youtube saying s/he plans to commit wire fraud, that’s “probable cause” right there. The cops get to search without a warrant, the judge is doing their job correctly and it’s fine. By this stage, the ALCU should be reminding  @poisanon about Miranda and the 5th amendment, not the first.

    1. Absolutely nothing you have described, should we take it as premise for our conversation, justifies the secrecy and violations of court procedure described in this case.

    2. oh, well in that case… he’s obviously a criminal so due process of law be damned.  I mean, you might as well lock this guy up without a trial, throw away the key, and just pretend like he never existed, sounds fair and all, cuz, you know, he posted something on YouTube.

    3. Right, but you get how like, the outrage here is based on how there is a secret trial, being conducted in secret, etc?  I don’t know how to explain that any better than that.  Secret trials are bad.  Whether or not you think his behavior is free speech or otherwise is beside the point.  Witch hunts, inquisitions, star chambers…any of those historical precedents ring a bell?

    4. How far can you go in America, in terms of describing your plan to commit a crime, whilst still enjoying protection of free speech? 

      Quick, let’s round up all the rappers! You can’t be too sure.

      When does free speech become plotting to a commit crime?

      You may be interested to learn that there is at least a couple hundred years of court cases that describe the line-crossing you’re thinking about. Wikipedia “Free Speech” for a starter, give it a try!

      I think that if poisanon has posted videos to Youtube saying s/he plans to commit wire fraud, that’s “probable cause” right there.

      I’m guessing you’re not a lawyer or any kind of law enforcement officer, but suffice it to say that probable cause is a little more nuanced than it was back in the hidage outside Kent.

    5. As they have demanded the user information on people who used hashtags, as well as some account names this is wholesale fishing.
      Someone who tweeted a message of support as they were being evicted and used a hashtag to join into the trend so the messages could eaily be found, may have nothing to add to any investigation. 
      But the ADA has demanded to know the details of EVERY twitter user who used the hashtags.
      So one might think maybe just maybe they do not understand the technology one little bit, or they think so little of peoples right to tweet a message of support to people without a District Attorney across the country or the globe being able to get all of their account details.

      Here is an example…  Dear Google we want the names/ips of everyone who searched the word poop for a 1 week period.  Oh and don’t tell anyone we want this information, its a secret.  They do not have to show any reason to want this information beyond they want it, they do not have to put it before a Judge… they just get to demand it and expect it to be handed over without any issues.

      You found a website with a matching name, do you think that provider got one of these secret subpeonas?  Would going after the place where the allege crime was being boasted about would be a better target than everyone on twitter who used a couple hashtags?  Do you think massive credit card fraud might just maybe might be outside of what one ADA should be pursuing?  Isn’t that a Federal Crime? 

        1. Never attribute to stupidity what one can assign to malice.

          We have “Legal Professionals” in this country who have used their position and authority to met out attacks on people who disagree with them.  A large scale stupid move like this could just be trying to build information on people who were at the Occupy site, trolling their lives looking for ways they can legally make it difficult for them to have a life any more.
          I’m not going to say every person at Occupy was a saint, but in the majority they were better behaved than the police were.  I do not see anyone investigating any of the police abuses that went on anywhere in the country in any real way.  (10 days of vacation lost for pepperspraying unarmed women, lying about committing the act, lying about the circumstances surrounding the event, lying that it was a single incident… and we wonder why people do not trust the nice policeman anymore.)

          The ADA in this case should be forced to explain how a hashtag will help the case, to get the details of hundreds (if not more) people who have done nothing more than tweet a message with a hashtag on it.  The rights of the innocent majority when they are seeking possibly a couple bad actors needs to be considered.

    6. How many times have you said you were going to “rob Fort Knox? Danegeld wants to throw everbody says something like that in prison. Have “Goldfinger” classified top secret for revealing state secrets while you’re at it.

    7. “Operation Robin Hood will take credit cards and donate to the 99% as well as various charities around the globe. The banks will be forced to reimburse the people there [sic] money back.”

      This is a clear statement of intent to carry out something which happens to be a criminal offense written by someone identifying himself as “Poisanon” from an organization which is well known to be  capable of exactly what is described. The statement ends by bragging that “Operation Robin Hood” has been “initiated.”

      Under these circumstances I guess I don’t see the problem with looking into whether or not he’s actually serious, any more than the Secret Service following up on a credible, specific threat on the life of the President.

    8. And this is what RICO, the drug wars and the war on terror have brought us to.  The sad part is, I can see the DA’s problem: he’s trying to build a conspiracy case without disclosing the extent of the investigation, in hopes of nabbing the real crooks that you describe.

      BUT: What happened to traditional undercover operations to gather evidence?  Or is the DA tacitly admitting that the Boston and state police forces in Massachusetts don’t have any competent investigators of computer crime? The courts really need to limit the use of secret subpoenae to cases where the police have no other recourse.

      The trouble is, all the factors I mentioned above have set a series of precedents that allows more secrecy than is necessary.

      1. Although, after reading the thread with seebobarctor and the link to below, I’m prepared to grant a greater degree of secrecy for a grand-jury proceeding.  That is not a change from traditional law. Once indictments are issued, it’s a whole new ballgame.

  6. “What are those dirty hippies even complaining about?”

    See, this would be what those dirty hippies are concerned about.  You know.  Actual Orwellian dystopia.  NBD.

    1. (sorry your other post got taken down, but I had a level-headed response to it, which I’ll paste below…)
      IANAL, so can you please educate me & the rest of us about why the grand jury/prosecution gets to converse freely with the judge, but the defendant/defense/accused gets no say?  Why does the defendant even need to be there if it’s not a two-way conversation?   Why is any of this done in open court *anyways* if it’s all going to be kept off the public record?To a non-law-person, it doesn’t seem routine.  It feels… unfair and wrong.  Please help me understand.  Thank you 

      1. I’m also sorry that my OP was taken down, as we’re going to be missing some context here.

        The short version is that Twitter leaked something which was released during a grand jury investigation. Grand jury investigations in MA, as everywhere, are the prosecutor’s show and are kept secret until such time as an indictment issues. The defense does not get to participate in any part of the pre-indictment proceedings, for a quite a number of good reasons which I’d be happy to explain further. What we’re seeing here is what happens when a third party (Twitter) throws a wrench in the usual course of business by releasing a cat which was supposed to be kept in the DA’s bag until such time as they were ready to formally seek charges.

        Otherwise, the proceeding was not necessarily “open court,” as everything to do with it was properly sealed by the court ahead of the hearing.  The defense was there only because the cat was already out of the bag and they were trying to quash the subpoena that the defendant wasn’t supposed to know about. I could continue with a point-by-point refutation of the ACLU blog post, but I’ve already gone on long enough.

        I *completely* understand the misgivings expressed by Cory and others in the comments, but buy me a drink sometime if you want some actual Kafka-worthy material out of Massachusetts courts.

      1. I honestly don’t understand what was “rude” about my previous comment.  Are you referring to the part where I expressed my (sincere) love for BoingBoing but questioned its qualifications to accurately report legal issues? Was that not fair comment?

        As I mentioned, I am a dues-paying ACLU member and criminal defense attorney, and honestly believe that I am fully qualified to critique this post. Which I did. Quite politely. I actually put kind of a lot of work into that analysis. Is there any way to uncensor it?

        1. Dude. At least read the article before responding, ok? I just re-read it, just to be sure. The article described a judge at her bench, it described open court, it mentioned public. None of those things have anything to do with a grand jury, which is in complete secrecy and does NOT involve the presence of a judge.

          Having said that, it is not *that* unusual to have proceedings sealed and/or gagged, although it certainly raises eyebrows in this particular case…

          1. I am sorry if my tone was inappropriate in any way. I think BB is right to keep some attention on this story, but I would have appreciated a little more context beyond what amounted to an endorsement of a post which contains quite a number of factual and legal inaccuracies. I have been very concerned about Occupy and its supporters coming off as a bunch of idiots, and this kind of thing doesn’t help. That’s all I was getting at. I don’t really feel like re-writing the entire post, so I’ll just leave things there I guess.

        2. Thanks for that link. I suppose I should word things differently sometimes…. :)

          It still seems a bit draconian to seal any and everything at this stage of the proceedings though, no?

          1. No problem… this stuff is really confusing and technical, which was the main point of my original comment in which I took four paragraphs to carefully [REDACTED].

            But I just want to emphasize again that we’re still at the investigation phase, and it is absolutely appropriate to keep things under wraps and out of sight until charges are actually filed. I say this both as a fairly extreme civil libertarian (and, once again, dues-paying ACLU member) and a pragmatist who likes to see deserving rapists and murderers properly convicted after receiving the benefits of a full and public trial and appeal. Once a properly-obtained indictment issues, unseal everything and let the sunshine in.

            The only difference between this case and any other pending grand jury investigation is that Twitter has leaked something which they were specifically asked not to.  I actually have mixed feelings (almost exactly in the middle) about their conduct in these cases which I don’t think we have space to get into here.

            I should also note that this is the first time in my six years of daily BB readership in which I’ve been motivated enough to register, let alone comment on anything. It’s been educational so far.

  7. There should be a record of the conversation between the judge and the ADA.  Unless the stenographer or the recording system was intentionally cut off, the record of the exact words between the judge and the ADA should be available.  Anyone can request a copy of that record.  If the court refuses to provide it then the court must provide a reason for not making the record public.  If the court simply says there is no record, then a complaint should be filed with the Judicial Conduct Committee or its equivalent in Massachusetts.  I’m a retired judge from NH and I once had a litigant complain who saw me talking with an attorney as the litigant entered the courtroom.  I don’t blame the litigant for being concerned and I certainly took care never to do that again. In my case, to address the litigant’s concerns, the court simply provided  him with a transcript of my conversation with the attorney. 

    1. It’s my understanding that most sidebars are off the record unless one of the attorneys requests that the court reporter takes it down. This would still be private if the judge has sealed the case though…

      1. Yeah, maybe it depends on the jurisdiction you’re in.  But the whole point of a public trial in criminal cases is to protect everyone involved from the dangers of secrecy. There should be a record in this sort of a case. 

  8. If the Guido Fawkes in question is the same one who writes a column in British newspapers, then he’s a British citizen, although that means he’ll be extradited by the US government under terrorism laws and an outrageous one-sided extradition agreement signed by Princess Blair’s croney government.

  9. While I think your govt has the right to try to subpoena, I wonder why your govnerment refuses to follow the rule of law and continues to subvert it.

    Secrecy in terms of rule of law is corruption, the lack of bureacratic and judicial transparency is an affront to the rule of law because the people themselves are no longer equal in a symbolic sense. Furthermore, you and I cannot use this procedure either.

  10. you start out loving your country .. and through the actions of that country, you end up despising it .. nothing to do with you or me .. it is the government, and all that it represents.


  11. in reply to seebobarctor as the reply button is missing from his post as Discus is retarded…

    |The only difference between this case and any other pending grand jury investigation is that Twitter has leaked something which they were specifically asked not to.|

    Sorry, but I’m confused here… how exactly did Twitter leak something that they had been asked not to? Twitter is merely the channel here… Twitter is a platform which enables account holders to make posts… Twitter itself DOES NOT MAKE THOSE POSTS…

    1. I should have been more clear about that. Twitter leaked the actual administrative subpoena request to @Poisanon:disqus  himself, which you can read here:

      They really, really aren’t supposed to do that (see top of p.2).  But they do it pretty much every time they get one of these, as a matter of principle. It’s a commendable principle, in theory, but it could also get people killed and/or significantly impede the administration of justice. (Not in this case, obviously, but generally.)

      1. so basically, Twitter were tapped for information on the account holder, but were requested NOT to tell the account holder that his info was being requested…

        the plot thickens… how on earth are you supposed to defend yourself in the first place if you don’t know you’re being attacked… this is almost like the RIAA doing John Doe requests on ISPs for account holder information…

        Just hope your link hasn’t laid Boing Boing open to contempt…

        1. Let’s keep in mind the difference between investigation and indictment. Poisanon has nothing to defend himself against at this stage, as no charge has been filed. Thousands of these kinds of requests are filed across the country every week.

          Given that he represents a cause that many here support (as do I, while operating within the law), it may be hard to put this whole issue in the context of a run-of-the-mill criminal investigation. But imagine if a Twitter account were the only good lead that the police had on (just to name the first scenario that comes to mind) a Twitter user who had anonymously tweeted specific details  bragging about a rape that only the perpetrator could know. Wouldn’t you expect law enforcement to want to quietly move to grab his IP and other account info ASAP in a way that wouldn’t let him know that they knew? They can’t very well indict a Twitter account, and there are very good reasons for not trying to contact him directly first.

          Oh, and I only knew about this link because BB posted it on the main page within the last two weeks.

        2. “how on earth are you supposed to defend yourself in the first place if you don’t know you’re being attacked…”

          They’re not supposed to defend themselves yet, since there are no charges to answer yet. If they are innocent they have nothing to fear. (: sinister smirk :) If you boast you’re planning to commit a series of crimes, that you’ve already started and you’ve been successful, it’s not unreasonable for the law to follow it up. I don’t remember Kafkla making those boasts when I read the book.

          Point is, at a later date a charge could be brought, and at that stage, the defendant does have ample opportunity to mount a defence to explain their actions, and they probably even get to find out the charges against them before the trial, unlike Kafkla.

          The prosecutors should be allowed to catch them in the act, and the court should be allowed to decide if the act is criminal. Twitter may have derailed the whole process by leaking the subpoena; perhaps @poisanon has now destroyed evidence?

          Am I out on a limb here – Does the boingboing readership believe that it’s actually OK to have people carrying out fraud, e.g. hacking into banks and draining customer accounts, if they claim they’ll use the proceeds to benefit the poor?

          a) How are we going to audit poisanon?
          – Can they pay themselves a wage out of their takings?
          – buy equipment?
          – Take a cut?

          b) If they anonymously ‘donate’ stolen funds to a charity, who is liable when the theft is reported?
          – is it the charity and / or the bank?

          Is it even possible for poisanon to donate stolen funds in this way, or does the charity end up having to return the money to the person who was robbed? Does the charity in fact pay in terms of time of their staff and insurance premiums to cover when Visa / Mastercard reclaim money they think they had received?

          What @poisanon is proposing to do is indistinguishable from plain straight forward crime and it makes a mockery of legitimate charity work, IMHO.

          Free speech is there to be used constructively. Is the best we can manage : We think that one group of people stole from others, so we’re going to steal off another group of people, to try to set it right?

          Back to the thread:

          subpoena = “under penalty”. I am interested to know what penalty could now be extracted from Twitter for flouting the courts instructions, if indeed the subpoena was upheld rather than quashed. It’ll be interesting to see how it plays out.

          1. So please explain to us slow minded people how you assumed this State case is about credit card fraud that would be the jurisdiction of a Federal Level investigation?
            Given the additional hashtag was used in releasing information on Boston PD members from a “private website”, it seems more likely they are trying to use some antihacking law to get this person, and anyone else who might have seen the documents or kept the genie out of the bottle by retweeting it.
            Or maybe this is one of them Grand Standing Lawyer types like a buncha AG’s threatening to rain hellfire on Craigslist when Craigslist is not in violation of the law, and these AG’s were exceeding the scope of their office running this media witch hunt trying to get a better office by sacrificing Craigslist on the altar of public opinion and did more harm to efforts to stop sex trafficking by forcing it to deeper portions of the net.

            But thats ok Anon will show up with more info from a darknet exposing more CP loving scum, and be promptly ignored by investigators who can’t figure out a net within a net.

  12. Obviously nobody is threatened by the occupy movement.

    Nothing says “you hippies are no threat” quite like suspension of due process.

  13. “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.”

    The ALCU’s point, that requesting the IP address could infringe free speech, is vacuous. The request doesn’t infringe on their client’s first amendment rights.

    If there was a DCMA take down notice?

     – Yes, that could be interfering with free expression.
    – something would be removed from public view

    If there is a request to find out who said what?

    – No, that is not interfering with free expression
    – Nothing has altered publicly.

    If @poisanon carried out the crimes he boasted about and he gets jail time, I will fully support his 1st amendment right to tweet from #DeerIsland

  14. I don’t understand…

    So now you can be prosecuted and locked up (or worse) for protesting?

    Could someone seriously explain how this works? I thought we had a right in this country to protest, assemble and petition the government?

    Seriously, I’m confused…

  15. I have no idea what proper procedure should have been here, and it *does* seem very suspicious to a layman like me.

    But if this was a grand jury proceeding, and the defendant and defense were only present because Twitter leaked something, then it seems less strange. If a grnad jury doesn’t indict, then it’s good for everyone that the proceedings stay secret; even the grand jury members are never permitted to speak about what went on. If there is no case, then there’s no need to besmirch the defendent, and if there is, then everything would be released anyway.

    1. “Suffolk County Assistant District Attorney’s administrative subpoena”. A grand Jury works differently than that. IANAL and clearly, neither are you,

      but thanks for the warning that you might be muddying the waters and talking out your ass.

      1. I am a lawyer, and AnthonyC is right.   The Globe story linked to elsewhere quoted a court spokesperson who made it very clear that this subpoena was issued in connection with a grand jury investigation. 
        Right or wrong, administrative subpoenas are a very common tool both before and during the pendency of grand jury investigations–at least here in MA, where admin subpoenas were beefed up substantially in 2008. I can’t really speak to how they do things in other places, but this case is happening in my backyard and I have to emphasize yet again that there is nothing particularly unusual or suspect about the way things have played out so far.

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