Pogo Is Still Right: Fight, Twitter, Fight (Update)

It may be that Michael Gottlieb figures he’ll cover all the bases, because why not? It’s not his job to worry about other people’s privacy, about sticking his nose into the wholly unrelated private business of people he neither knows nor gives a damn about. And as a fairly new lawyer at Boies Schiller, trying to make his bones in crisis management, leaving a little scorched earth behind is the least of his worries.

But for Pogo, not to mention Popehat, this is a step too far.

The gravamen of the action in the District of Columbia isn’t important or relevant. Nor are the parties. These things aren’t relevant because Pogo isn’t a party and isn’t alleged to have done anything whatsoever to give rise to the cause of action or harm. Pogo is just there. Ken White too. They were tagged in a twitter thread, which is sufficient to make them “secondary accounts” as far as Gottlieb’s subpoena goes.

To subpoena is easy. Just demand it and, poof, it’s in there. But this is a subpoena to Twitter, not to Pogo. It seeks Pogo’s identity. It demands all communications, including direct messages and documents, that relate to any of the “topics.” Topics?

The topics are, shall we say, rather broad. And what was Pogo’s involvement in this morass? Someone tagged Pogo into a thread.

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,

And by sheer misfortune of someone tagging someone else, unsolicited, unwarranted, maybe even unknown, deciding to tag Pogo’s twitter handle into a thread of interest in an entirely collateral matter, Pogo’s identity and private communications could be revealed.

This is where Twitter comes in. That Gottlieb doesn’t care about the collateral damage his overbroad subpoena will leave behind is one thing. So he wields a bludgeon because he’s not yet good enough to cut with a scalpel? This isn’t entirely surprising. He comes from the U.S. Attorneys office, where leaving dead bodies in their wake is the price of prosecution.

But the subpoena goes to Twitter, a non-party to the case. Twitter has the information sought, and has a choice to make: will it just give it up and save itself the time, money and aggravation of fighting a subpoena that does it no harm? Or will Twitter refuse to comply, send in its own lawyers to fight for the privacy of its users, whether as a gesture of good will for an internet platform or because it takes a principled stand against being used by nefarious lawyers to unjustifiably dox unrelated private parties and their communications?

Or Twitter could kick the can to Pogo, having its law-talking guys let Pogo know of the subpoena and, if objectionable, fight it on Pogo’s own behalf. For Ken @Popehat White, that would be less of a problem, Ken being a lawyer and former AUSA, and thus being able to speak for himself. It also helps that his identity is no secret, and Gottlieb could have just called Ken if he had a question. But that would require the ability to use a scalpel. Gottlieb may get there eventually.

But Pogo? Pogo’s no lawyer. Pogo’s not taking in millions from these efforts. And Pogo has done absolutely nothing to have its privacy put at risk. Yet, here Pogo is, a “secondary” account to be exposed because some guy wrote words on a piece of paper captioned “subpoena.”

This is on you, Twitter. Fight this crap. Protect your users’ privacy. Quash the subpoena with all your might because this is your platform and if you acquiesce to your users’ privacy being exposed upon nothing more than a scorched earth subpoena, you don’t deserve to have users. So fight, Twitter. Fight. For Pogo. For Popehat. For every user on Twitter. Fight.

Update: Pogo is informed that Michael Gottlieb will be withdrawing the subpoena and issuing a more narrow one. Respect to Gottlieb for recognizing and remedying this matter.

13 comments on “Pogo Is Still Right: Fight, Twitter, Fight (Update)

  1. Richard Kopf

    SHG,

    I know you say that the nature of the plaintiff’s complaint is not relevant to the point of your post. You are certainly correct. But I decided to read the partially redacted publicly available complaint anyway.

    There is a terribly sad irony here.

    The putatively innocent and very sympathetic appearing plaintiff seeks recompense from defendants for the collateral damage allegedly suffered by him partially and allegedly because of the defendants’ abuse of social media.

    The apparently overbroad subpoena has the potential to cause the putatively innocent and very sympathetic appearing Pogo to suffer similar collateral damage due to his well-intentioned use of social media.

    And the band plays on.

    All the best.

    RGK

    1. SHG Post author

      It’s that “but” that always kicks me where it hurts, Judge. I’m sure you understand why I chose not to go into the background of the underlying complaint and open that can of worms.

        1. Richard Kopf

          Ron,

          Hoisted by my own petard (and “petard” emphatically does not mean what SHG’s dirty mind thinks it means).

          All the best.

          RGK

  2. Hunting Guy

    Marshawn Lynch.

    The so-called right to privacy, as it were, is no longer a right inasmuch as it is now a privilege, to be enjoyed until it is torn away at a moment’s notice.

  3. Jordana ari

    I also under a pseudonym have tweeted/tagged Wikileaks in the past 2 years. And to be honest with you, I am really not that worried or concerned that it would even happen. There are A LOT of people who choose to go by pseudonyms for various reasons. If this actually happened, everyone would leave Twitter in a heartbeat.

    1. SHG Post author

      It “actually happens” all the time, and yet everyone is still there. But glad you’re not worried or concerned, whoever you are.

      1. Jordana ari

        At this point, I know this complaint is already a moot issue because it was dropped. And no I did not think it was an issue because the entire complaint is so ridiculous to have thousands, possibly millions of accounts. I mean, like why? WTH?

  4. Dissent Doe

    I know I thanked you elsewhere, Scott, but I did want to thank you publicly and on your own site for your support in calling attention to the issue. It really was, and is, much appreciated.

    Dissent aka “Pogo”

    1. SHG Post author

      I pondered how to refer to you in the post to maintain your privacy. I was very cautious. Maybe too cautious?

      In any event, happy to be a laboring oar on your ship.

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