It goes without saying that no normal person reads the terms of service of any website or ISP used on the internet.  (Yes, I know you do.  I said “normal.”)  Buried in the verbiage is their right to disclose your private information in response to a court order.  Nowhere does it require them to challenge the court order. 

It’s not that orders can’t be challenged, but that they have no reason to do so.  It’s not their private information at stake, but yours, mine, ours.  The closest they have to a horse in the race is any repercussions should they be lambasted for having been so weak as to ask the government agents if they would like cream in their coffee as they rifle through your life.

From the hearts and minds of corporate counsel, the incentive system is clear.  Why go through the expense, both in money and goodwill, of fighting the government over something that has no upside for the enterprise.  This is standard operating procedure in corporate legal to curry favor with the government when it costs nothing, and hopefully collect the interest when the day comes that the government is looking askance at them.  Regardless, there’s never a good reason to pick a fight with the government over someone else’s problem.

And why should they?

Because the path of least resistance, and greatest potential benefit in the future, is the same path that encourages the government to continue pursuing the course of using internet enterprises that collect our private data as an easy means of government surveillance. The telephone companies have long embraced the government as eavesdropping partners, and as tech develops, new friends are added to the fold.

As noted at the Legal Satyricon, when a subpoena shows up at the digital doorstep, it usually includes a gag order that precludes the recipient (the third party ISP, for example, that maintains the information sought) from disclosing the order to the target.  The target of the subpoena, thus, has no clue that there is a demand for private information and can’t take action to quash the subpoena.  The ISP, on the other hand, accepts the subpoena and, shrugging its shoulders, hands over the private information without hesitation.

But not Twitter.

To Twitter’s credit, the company didn’t just open up its database, find the information the feds were seeking (such as the IP and e-mail addresses used by the targets) and quietly continue on with building new features. Instead the company successfully challenged the gag order in court, and then told the targets their data was being requested, giving them time to try and quash the order themselves.

This is both curious (to put it mildly) and inspiring.  Well-established corporations, raking in huge profits and far better capable of standing up to the government, routinely cave as soon as the fellow at the door says, “I’m from the FBI.”  Twitter is still in the hand-to-mouth phase, yet made the decision to say “no”.  Why?

By standing up for its users, Twitter showed guts and principles. Much of it is likely attributable to Twitter’s general counsel Alexander Macgillivray. As security and privacy blogger Christopher Soghoian notes, Macgillivray was one of the first law students at Harvards’ Berkman internet law center and at in his previous job at Google “played a major role in getting the company to contribute takedown requests to chillingeffects.org.”

Macgillivray declined to comment to Wired.com through Twitter’s spokeswoman.

There isn’t a criminal law specialist at major law firm in this country who would have advised this fledgling behemoth to fight the government.  There isn’t a former associate fed into the corporate counsel system who would have stood tall.  Despite the inability to offer straight advice at almost any other juncture, on their they would universally agree:  Don’t piss off the government to save someone else’s butt.  Not one.  Well, maybe one.

Alexander Macgillivray must not have gotten the memo.  Instead of stepping onto the slippery slope of government obsequiousness and risk aversion,   What was he thinking?  Princeton and Harvard Law educated, with some Silicon Valley law firm time behind him before he jumped to Google, then Twitter, one might expect him to toe the line, know his place, advise his enterprise to not make waves.

Instead, he took a stand and protected the privacy of twitter users. 

For all the bravado of the brash internet folks who are the holders of every detail of our lives, that they are different,  digital nihilists who laugh at authority and scorn conformity, the equation changes when it’s their brand new Ferraris at risk. 

Twitter has yet to turn a profit, though, so it’s unclear how many Ferraris sit in their parking lot.  If for no other reason than this, Alexander Macgillivray’s decision to stand up to the government and say no on behalf of all those users who, inexplicably, believe that there is someone out there with the guts not to bend over whenever the government asks, I hope they have a parking lot filled with Ferraris.  I hope Macgillivray gets a red one.  If that’s what he wants.

Regardless of whether one finds Twitter’s services critical to the future of humanity or a fun way to kill a few minutes, this bold move speaks well of the heart and guts of those in control, and should embarrass the hell out of all those pseudo-cool digital executives who have traded in their flip-flops for wingtips.