Rosa Luxemburg famously said that those who do not
move cannot feel their chains. This
morning in Suffolk county court, the ACLU of Massachusetts and our client
moved. And we felt our chains.
I had gone to court to listen to our legal team argue
a case to protect the First Amendment rights of our client, Twitter user @p0isAn0n, aka Guido Fawkes. That
user, who wishes to remain anonymous throughout the proceedings, was the target
of a Suffolk County Assistant District Attorney’s administrative subpoena to
Twitter, dated December 14, 2011. As
we wrote last week, the subpoena asked Twitter to hand over @p0isAn0n’s
subscriber information, including our client’s IP address, which can be used to
help track down someone’s physical residence.
The subpoena stated that it was seeking the above and
other information — some of it referencing Occupy Boston — as part of an
ongoing criminal investigation. The government also asked Twitter to keep the
existence of the subpoena secret. Thankfully, Twitter disregarded the request
for secrecy and sent @p0isAn0n a copy of the subpoena, whereupon it was
promptly uploaded to the internet for the world to see.
That’s when the ACLU got involved. We, along with our
client, decided that we would together challenge the meant-to-be secret
subpoena in open court, and seek its dismissal on the grounds that it infringed
on our client’s First Amendment rights.
That brought us to the courtroom this morning. I had
been eagerly awaiting the hearing for days, expecting to hear our lawyers
deliver stirring defenses of those constitutional protections we hold most
dear: freedom of speech, the right to anonymity, and the right to be protected
from unwarranted government search and seizure of our private information.
Unfortunately my hopes were dashed. Instead of witnessing the hashing out of
justice, I got a first hand illustration of government secrecy gone wild.
It’s such a cliché to cite Kafka, but the cliché is
warranted because he hit the nail on the head, illustrating how crazy-making is
the official marriage of petty bureaucracy and government secrecy. We
have seen this marriage dominate the highest levels of our government for the
past ten years. Today I witnessed its local iteration.
We entered the courtroom. I sat in the front row,
behind the bar. Presiding Judge Carol Ball called our cooperating attorney
Peter Krupp’s name, and the Assistant District Attorney’s name. She did not
call out the name of the case to begin the proceedings, as is custom.
The ADA approached the sidebar, the area adjacent to
the judge’s perch, far enough away from us, the general public, that we
couldn’t hear the content of the hushed conversation spoken there. Krupp
objected immediately, before even approaching the bench; he wanted the case
heard in open court. (The judge had already sealed the proceedings the day
before, pending a hearing this morning.) Krupp’s objection was not granted. Our
legal team therefore approached the sidebar, joining the judge and the
prosecution.
Then we among the general public, including
journalists from all the major media outfits in Boston, listened and heard
nothing, as the prosecutors, our lawyers and the judge conversed secretly, in
plain sight. I have no idea what they said. I still don’t know, because my
colleagues, lawyers at the ACLU of Massachusetts, are prohibited by court order
from telling me.
So all I know is what I saw. As Donald Rumsfeld said,
there are known knowns, known unknowns and unknown unknowns. After the proceedings
this morning, I’m left with little of the former, and a whole lot of the latter
two.
The known knowns: the scrum of lawyers, defense and
prosecution, addressed the judge. I saw the judge speak to the lawyers. Then I
saw our attorneys return to their bench, closer to where I was sitting, out of
earshot of the sidebar. But the ADA stayed with the judge. He spoke to her,
with his back to the courtroom, for about ten minutes. Our attorneys didn’t get
to hear what he said to her, didn’t have a chance to respond to whatever the
government was saying about our client, about the case. It was frankly
shocking.
After those ten minutes of secret government-judge
conversation, our attorneys were invited back to the sidebar, whereupon the
scrum of lawyers spoke with the judge for another ten or fifteen minutes. Then
they dispersed. The judge uttered not one word to the open court. And that was
it.
Stunned, I followed a group of reporters outside and
listened as Attorney Krupp attempted to answer their questions. It was then I
realized that the judge had impounded all the court records related to the
case, and mandated complete secrecy governing the proceedings. The public
wasn’t even to know whether our motion to quash had been approved or denied.
The press scrum was Kafkaesque to say the least.
‘Can you tell us what the judge decided?’
‘No.’
‘Did the judge grant your motion to quash the
subpoena?’
‘I can’t say.’
That brings us to the known unknowns. Attorney Krupp
was able to say that he wasn’t able to say anything about the case. He was able
to disclose that the judge ordered the case sealed. And he was able to say that
he would connect with our client and discuss options for appealing the judge’s
ruling. He said nothing more.
Our courts exist to serve as checks against the
executive and legislative branches of government. In this case, we went to
court to challenge a Massachusetts law that allows for government access to our
private data without warrants. The administrative subpoena statute
allows police and prosecutors to ask telecommunications companies, internet
companies and other possessors of our information to disclose data that reveals
intimate secrets about our lives, all without a judge’s knowledge or consent.
You might say that the administrative subpoena is the state cousin to the FBI’s
national security letter, a federal warrantless investigative tool
authorized under the much-despised USA Patriot Act.
Our challenge also sought to oppose the executive
branch’s authority to use the administrative subpoena statute to conduct broad,
warrantless investigations into activities protected by the First Amendment.
We brought our challenge to the courts, the last of
the three branches of government, seeking to right these wrongs. What did we
get? I don’t know. And my colleagues who do can’t say. Enter the unknown
unknowns.
Even though we don’t have answers for our client or
for the general public — answers to these most important questions about
freedom of speech, the right to anonymity, the right to be left alone from
unwarranted government intrusion into our lives — we did come away from today’s
proceedings with a profound lesson:
Secrecy sucks.
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