UPDATE – June 10. I heard from Michael Gottlieb of Boies Schiller Flexner. They are withdrawing the subpoena and replacing it with a more narrow one. Obviously, I am very glad to hear that, and thank Michael for contacting me to let me know that it was never their intention to have me or other non-parties caught up in this.
Original post:
I woke up this morning, showered, and fired up the laptop while I waited for the coffee to perc. My first clue that something was up was seeing that I had 28 notifications waiting for me on Twitter. That seemed high for overnight. I soon found the explanation: a tweet by @abtnatural:
This apparently genuine subpoena by @bsfllp demands Twitter produce “documents sufficient to identify the owner of” @popehat, @PogoWasRight, and every other account that ever tagged @wikileaks in a tweet between 1/1/15 and 6/1/18.https://t.co/cp7UhPmhFxhttps://t.co/m7VZEtBZRh pic.twitter.com/mCBZ3hKCDC
— Virgil (@abtnatural) June 9, 2018
This apparently genuine subpoena by @bsfllp demands Twitter produce “documents sufficient to identify the owner of” @popehat, @PogoWasRight, and every other account that ever tagged @wikileaks in a tweet between 1/1/15 and 6/1/18. https://t.co/cp7UhPmhFxhttps://t.co/m7VZEtBZRh pic.twitter.com/mCBZ3hKCDC
WTH???
For those who do not recognize some of those Twitter handles, back in October, 2017, @abtnatural (Virgil), @Popehat (former federal prosecutor Ken White) and I had all been informed by Twitter Legal that they had received legal process compelling them to produce our information. A grand jury in Texas had subpoenaed our details. Why had they subpoenaed mine, you wonder? It turns out that they subpoenaed my information simply because someone had tagged me in a tweet in a conversation that I was never in. The tweet was a smilie – nothing more than that, but because the tweeter was being prosecuted criminally and he tweeted to me, the grand jury wanted my details. Needless to say, I was not understanding of the grand jury’s demand for my details.
Eventually the subpoena for my details was withdrawn, although I remained fully prepared to fight it in court, if need be. Now my details were being subpoenaed again, it seems.
This time, it is a civil case, Rich vs. Butowsky, and no court had signed off on this subpoena.
Note that the subpoena, embedded below, does not name my Twitter account specifically in Paragraph 3, but my account would fall under “Secondary Accounts” as defined in Paragraph 4, where a secondary account is any account that communicated with any of the 20 named primary accounts. (Update: to be clearer, it seems that in March, 2017, I posed a question to Wikileaks on Twitter seeking clarification as to how they redacted files, which apparently makes me a “secondary account” under the language of the subpoena.)
To make matters even more offensive and absurd, the overly broad subpoena includes not just details as to who owns an account, but asks for the contents of the account, including tweets and private (direct) messages, and also metadata.
If Michael Gottlieb of Boies Schiller Flexner, attorneys for the plaintiff, wanted to provide a useful demonstration of over-the-top disregard for free speech and privacy, he just did it.
This subpoena deserves to be smacked down and lawyers who engage in such conduct should face the wrath of a privacy-conscious public.
I do not expect Twitter to ever provide my details to Mr. Gottlieb or his law firm in this matter. I have not even contacted my lawyers about this because it is so absurd.
Michael Gottlieb and I follow each other on Twitter. If we run into each other at a privacy law conference or privacy + security forum, I’d like to have a few words with him.
But no, this was not a good way to wake up this morning.
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