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.
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
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.