Short Take: @Popehat Who?

When I first saw the request sent to Twitter for disclosure of information, it made no sense. It made no sense from the perspective of why they wanted the information at all. It made no sense that they were going after Twitter for it. Mike Masnick at Techdirt tried to make sense of it.

 Back in May, the Justice Department — apparently lacking anything better to do with its time — sent a subpoena to Twitter, demanding a whole bunch of information on a five Twitter users, including a few names that regular Techdirt readers may be familiar with:

If you can’t see that, it’s a subpoena asking for information on the following five Twitter users: @dawg8u (“Mike Honcho”), @abtnatural (“Virgil”), @Popehat (Ken White), @associatesmind (Keith Lee) and @PogoWasRight (Dissent Doe). I’m pretty sure we’ve talked about three of those five in previous Techdirt posts. Either way, they’re folks who are quite active in legal/privacy issues on Twitter.

While I don’t know all the people behind the twitter handles listed, I know some of them. What they have to do with anything is a complete mystery, but let’s assume the agents conducting the investigation into Justin Shafer’s use of an emoji on twitter are complete social-media idiots and have no clue how it works.

So why go after twitter? Ken White is about as out there as anyone could be. A former AUSA, an attorney, his office phone number is readily available. Did the agent who came up with this brilliant idea fall into that ten minute window of people who know nothing about social media but also don’t know how telephones work?

Keith Lee is also an attorney. Keith is just as easily found as Ken. If you’ve got a question for Keith, give him a shout. It’s not as if he won’t answer the phone.

The backstory to the government’s use of extraordinary, if ridiculous, methods to gain information that is prominent and readily available was beyond my pay grade. It wasn’t my thing to follow the excruciating details that Mike provides to explain what was happening down the rabbit hole. Rather, the fact that this was the approach the government took, the AUSA who signed off on the subpoena despite there being no reason in the world to do so beyond proving that he either paid no attention whatsoever to what he was doing or he’s a blithering idiot, is what shocked me.

The people targeted by the subpoena, despite having nothing in particular to hide since they have nothing to do with anything relating to the government’s prosecution of anyone, still aren’t taking this lightly.

Twitter is apparently fighting back against this subpoena. And even though it was issued back in May, a few days ago, the company alerted the individuals that the DOJ was demanding info on. Dissent Doe has already stated publicly a plan to move to quash the subpoena as well, and I wouldn’t be surprised to see the others named take similar steps.

For Dissent Doe, this is a serious matter of principle, and that’s reason enough to go to war over this inanity. But if this scenario couldn’t get any more ridiculous, Ken writes of his initial urge to get on the phone and call up the AUSA.

Third, when I read the subpoena yesterday, I was suddenly gripped with exactly the sort of impulses that I urge clients to resist: the overpowering urge to do something and talk to someone to straighten it all out. I was tempted to email the AUSA and introduce myself, and to argue that it’s ridiculous that he subpoenaed my identity, and ask what the hell he wants. That, of course, would be extremely stupid, even though I’ve done nothing wrong — perhaps especially because I’ve done nothing wrong. Fortunately, just as I plead with clients to resist this urge to reach out to the government, I resisted it myself. But I must admit it is powerful.

Just to reduce this to basics, here’s the guy who is the target of a subpoena to twitter, whose identity is open and notorious, writing about the subpoena and the urge to deal with it, while twitter refuses to comply, will fight the subpoena, and the government will go to war for the purpose of learning Ken White’s identity.

I used to think the assistant United States Attorneys, the federal agents, were the brightest of their ilk. That may still be the case, even though this situation is so utterly idiotic as to make one wonder how they can get out of bed without hurting themselves.

11 comments on “Short Take: @Popehat Who?

  1. B. McLeod

    Puzzling. I have found that sometimes, AUSAs run amok and cause subpoenas to be issued without obtaining the supervisory approvals required by their own internal standards. Generally, it is the newer, less-astute “respect-my-authoritay” types who fall into that, and they fail to even consider what they will do if a target dares to challenge the subpoena. If that is what happened here, the pushback will surface the problem in a hurry.

  2. albeed

    I am only an engineer, but if you defend yourself and whatever “rights” you imagine you have long enough, somewhere an “obstruction of justice’ charge will inevitably surface through abuse of the English language.

    1. SHG Post author

      That doesn’t happen when you move to quash a subpoena in court, unless, of course, the govt believes you lied.

    2. B. McLeod

      I haven’t seen a statistical breakdown on causes for subpoena challenges, but every issue I have had with them related to defects that could have led to civil claims for turning over the information pursuant to a potentially invalid subpoena. I suspect this has become a common concern, as I have noticed in recent years that many banks have begun sticking boilerplate in their account agreements that says the account holder authorizes them to comply with any purported process, from any jurisdiction and however received, and they have no obligation to contest it.

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  4. syme

    Err, I’ve read some things that Popehat has posted over the years, including about the Prenda Law soap opera. I might have commented on his words.

    Does this mean I should be worried the AUSA will be after me soon? Should I be checking Aeroflot schedules?

    1. B. McLeod

      It’s representing a disinterested third party with potentially interesting records that gets you in the lottery for this stuff. I’m pretty sure there’s no mental screening for AUSAs. The freakiest one I ever encountered was lobbing subpoenas around the country from a district in Oklahoma. He was not terribly sophisticated, but seemed unusually excitable. I should look him up one of these days to see if he’s been disbarred yet.

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