Twitter/Cyber/Stalking
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Twitter/Cyber/Stalking Sarah Cortes Review of recent cases involving Twitter, other social media and the use of technology, including cyberstalking and hacking cases NEU, CCIS Twitter/Cyber/Stalking Table of Contents Major Twitter/Cyber/Stalking Cases ................................................................................................ 3 Summary ....................................................................................................................................... 4 Federal Cyberstalking Laws.......................................................................................................................6 US. v. Cassidy ................................................................................................................................. 7 Overview .................................................................................................................................................8 Law Enforcement: Practical considerations in investigating cyberstalking .................................................. 10 Courts ................................................................................................................................................... 11 Definitions of cyberstalking........................................................................................................................... 11 “Only Words” ................................................................................................................................................. 12 Meritor: EEOC’s four factors ....................................................................................................................... 12 Averting the Eyes- for some? Strict Scrutiny- for others? ............................................................................ 13 Twitter is a modern public bulletin board?................................................................................................... 15 Tweets “religious” in nature ......................................................................................................................... 16 Cyberstalking law “serves no compelling interest” ...................................................................................... 17 “Freewheeling Authority” - Protected and Unprotected Speech ................................................................ 17 Civil Liberties Groups ............................................................................................................................. 18 Conclusion............................................................................................................................................. 18 US v Wikileaks............................................................................................................................... 19 Overview – Strange Bedfellows............................................................................................................... 19 Law Enforcement and the Courts ............................................................................................................ 21 Civil Liberties Groups – IP Addresses are not Telephone Numbers ............................................................ 21 Conclusion............................................................................................................................................. 23 US v @GuidoFawkes-Occupy Boston .............................................................................................. 24 Overview ............................................................................................................................................... 24 Law Enforcement ................................................................................................................................... 24 Civil Liberties Groups – “Because the Rights You Save May Be Your Own” ................................................. 25 Courts ................................................................................................................................................... 25 Conclusion............................................................................................................................................. 25 Conclusion .................................................................................................................................... 26 Appendices ................................................................................................................................... 27 Brief - US v. Cassidy ................................................................................................................................ 27 Brief- US v Mr. X - In Re Grand Jury Subpoena No. 11116275 (Michelle Bachmann) .................................... 28 Brief- Remsberg v Docusearch ................................................................................................................ 29 Brief – US v Wikileaks ............................................................................................................................. 31 Brief- House v Napolitano (Wikileaks)...................................................................................................... 34 Brief- US v Occupy Boston....................................................................................................................... 35 Bibliography ................................................................................................................................. 36 Other Major Twitter-related Cases................................................................................................. 38 2 Twitter/Cyber/Stalking Major Twitter/Cyber/Stalking Cases Case Social Media/ Technology Law Where US v Cassidy Twitter and internet blogs US Federal interstate stalking statute, 18 USC 2261A-2A 4th Amendment MD US v Mr. X (Michelle Bachmann) In Re Grand Jury Subpoena No. 11116275 Twitter Remsberg v Docusearch Internet blog 18 USC 875(c), cyberstalking 18 USC115, TREASON, SEDITION, AND SUBVERSIVE ACTIVITIES, 4th Amendment US Financial Services Modernization Act of 1999, Privacy Act of 1974, Consumer Protection Act, RSA chapter 358-A, 4th Amendment US ECPA-Stored Communications Act 18 USC 2701, 4th Amendment Iceland, German y, (Boston) Expose privacy US ECPA-Stored Communications Act 18 USC 2703, MGL 271-17B, 4th Amendment 1st, 4th Amendments Boston Expose privacy Expose privacy speech unprotected Boston Restrict Freedo m TBD US v Wikileaks1 Twitter US v @GuidoFawkes Occupy Boston2 Twitter House v Napolitano (Wikileaks)3 Laptop (Twitter & Blogs) Law Enforcement Expose privacy Courts Civil Liberties Groups Twitter Expose privacy, speech protected Protect privacy DC Expose privacy Expose privacy speech unprotected EFF, ACLU – Defendant Protect privacy, old and new technology are analogous None known NH Protect privacy Protect privacy against commercial exploitation Electronic Privacy Information Center ("EPIC") – Plaintiff NA Expose privacy speech unprotected EFF, Security Experts, Privacy Experts – Defendants Protect privacy Protect privacy Protect privacy Protect privacy, old and new technology not analogous ACLU- Defendant Protect privacy Protect privacy ACLU- Defendant Protect privacy Protect privacy Cover image: Wikileaks released this video, “Collateral Murder,” 4 depicting an apparent US Army attack on unarmed Reuters journalists in Iraq in 2007. The US had reportedly refused to release the video to Reuters or admit wrongdoing. In US v Wikileaks, the US government has sought the Twitter information for those it believes released this information. Anonymous maintains the US government is wrongfully concealing its own misdeeds. Some Americans expect law enforcement to investigate Twitter accounts of some, but not all, suspects under inveestigation. Connection to Boston, Wikileaks Connection to Boston, Wikileaks 3 Connection to Boston University 4 http://collateralmurder.com, US Army helicopter video, Iraq, 2007 1 2 3 Twitter/Cyber/Stalking Anonymous with Guy Fawkes masks at Scientology in Los Angeles5 Summary Monday, October 25, 2010: "city girls use Vaseline, country girls use lard, fat (A.Z.) don't use nothing,' she gets it twice as . . . " 6 Sunday, December 5, 2010: "To call an overweight whore "mother of palyul" insults whores & palyul. " 7 Sunday, December 5, 2010: "I do not believe (A.Z.) was a prostitute. I think that story is a made-up lie Prostitutes are professionals." 8 From 2008 to 2011, William Lawrence Cassidy allegedly “cyberstalked” Alyce Zeoli with over 8,000 tweets on Twitter and blogs9. Zeoli suffered, by universal stipulation, “severe emotional distress.” In US v Cassidy, police had identified the defendant by subpoenaing his Twitter records. The courts ruled Cassidy’s speech was protected by the First Amendment as religious speech, and that old bulletin board and new Twitter technology are essentially the same. Photo: Diamante, Vincent, (Creative Commons License) From Twitter account kpcwatch, quoted in US v Cassidy, https://www.eff.org/sites/default/files/filenode/cassidy-order-121511.pdf, Case 1:11-dm-00003-TCB -LO Document 85 Filed 11/10/11 Page 1 of 60 PageID# 1023, US District Court For The District Of Maryland, 2011, No. TWT 11-091 (D. Md. Dec. 15, 2011) US v. William Lawrence Cassidy, Defendant. Criminal Case No. RWT 11-091 US District Court For The District Of Maryland 2011 U.S. Dist. LEXIS 145056; 40 Media L. Rep. 1001 7 Ibid 8 Ibid 9 US v. Cassidy, see appendix Brief 5 6 4 Twitter/Cyber/Stalking On October 15, 1999, Liam Youens murdered Amy Boyer, a former classmate, then committed suicide.10 He foretold the murder in an internet blog, using technology to advertise his thoughts and intentions. His website connected his words and deeds, although the US never had a chance to decide whether his website speech was protected. This case established the connection in the public’s mind between stalking and the use of technology. The related case, Remsberg v Docusearch, established privacy protections for perceived victims. In a third case, US v Wikileaks, the US Justice Department subpoenaed the Twitter records, including IP addresses, of Birgitta Jonsdottir, a member of the Icelandic Parliament, in its investigation.11 In this case, the US takes the role of victim, as well as investigator and prosecutor. The court has so far denied First Amenment issues in this pending litigation, contrary to its stance in Cassidy. The ACLU and the EFF had opposed the Wikileaks subpoenas in amicus curiae briefs on the grounds, essentially, of political persecution, freedom of speech, and unjustified government secrecy. They also argued that old telephone and new Twitter technology are subtly but importantly different, contrary to their stance in Cassidy. As of January 20, 2012, this case is still pending in the appeals court. In a fourth case, US v @GuidoFawkes-Occupy Boston, law enforcement is both target and investigator, similar to US v Wikileaks. On March 2, 2012, in response to a subpoena from the Suffolk County DA for the state of Masssacusetts, in the US, Twitter handed over the records for the accounts @pOisAnON- Guido Fawkes, although not @OccupyBoston, #BostonPD or #dOxcak3.12 These were suspected of hacking the Boston Police website after the Police shut down Occupy Boston. According to the Boston Globe,13 these Twitter accounts were also suspected of links to the groups Anonymous and Wikileaks. Those who hacked the Boston Police website in the name of Occupy Boston or Wikileaks, reportedly also may have stolen names and credit card information at the same time. Although it is hard to know much about this case since the record is sealed, the court so far seems to have denied First Amenment arguments in this pending litigation, again contrary to its stance in Cassidy. The ACLU has opposed the @GuidoFawkes-Occupy Boston subpoenas in amicus curiae briefs, also on the grounds, essentially, of political persecution, freedom of speech, and unjustified 10 Remsberg v Docusearch, (see appendix Brief)- Helen Remsberg, Administratrix of the Estate of Amy Lynn Boyer v. Docusearch, No. 2002-255, Supreme Court Rule of New Hampshire, 149 N.H. 148; 816 A.2d 1001; 2003 N.H. LEXIS 17 11 In the Matter of the 2703(d) Order Relating to Twitter Accounts: Wikileaks, Rop_G; and BirgittaJ, US v. Wikileaks, APPELBAUM, GONGGRIJP, JONSDOTTIR, and TWITTER, Appeal: 11-5151 Document: 19, Date Filed: 01/20/2012, Page: 1 of 7. In the Matter of the 2703(d) Order Relating to Twitter Accounts: Wikileaks, Rop_G; and BirgittaJ Ellement, John R., Boston Globe, Twitter gives Boston police, prosecutors data in hacking probe, March 02, 2012 http://articles.boston.com/2012-03-02/metro/31112710_1_twitter-boston-police-law-enforcement 12 13 Ibid 5 Twitter/Cyber/Stalking government secrecy. They also argued that old telephone and new Twitter technology are subtly but importantly different, contrary to the civil libetarian stance in Cassidy. Federal Cyberstalking Laws Case - Convictions Law US v Michael F. Lutz, 2011 US Federal interstate stalking statute, 18 USC 2261A-2A Level felony Method internet Scope Includes harassment US v Joseph Campbell, 2011 18 USC 875(c), cyberstalking felony 47 U.S.C. 223 misdemeanor 18 U.S.C. 2425 child trafficking felony Limitations requirement that the stalker physically travel across state lines makes it largely inapplicable to cyberstalking cases Only actual threats Direct communication only Phone or internet Requires a showing of intent to entice or solicit a child for illicit sexual purposes. These four cases above illustrate evolving issues surrounding cyberstalking, hacking, and the use of Twitter and social media and other technology in legal cases. Some questions include, is new Twitter technology analagous to old “technology” like a public bulletin board? Is new Twitter metadata containing IP addresses similar to old telephone metadata, for purposes of a subpoena? Are sexually degrading and abusive tweets protected speech as religious in nature? Is theft of personal credit card information hacked from the internet by “Robin Hood” Twitterers, ostensibly affiliated with Occupy Boston and Wikileaks, political expression? In this analysis, we review recent cases involving Twitter, other social media and the use of technology, including cyberstalking and hacking cases. We argue that the court demonstrated, in Cassidy, its lack of understanding in two critical areas: technology and sexully degrading abuse of female targets. Furthermore, we point out how law enforcement and civil liberties groups take conflicting, shifting, and seemingly contradictory views on whether new Twitter technology is analagous or non-analogous to old technology like telephones and bulletin boards. The court’s lack of understanding of technology reveals the same weakness that may have caused its acceptance of a confused, tortured and superficial First Amendment defense: lack of personal experience. This weakness had plagued the courts and humankind since time immemorial. Those in power may shape laws to reflect their personal concerns and experience, which they sometimes imagine represents those of the poputlation as a whole. The democritization of technology reveals cracks in otherwise empwered judge’s abilities to grasp their limitations, such as 6 Twitter/Cyber/Stalking failure to understand new Twitter atechnology nd failure to understand sexual degradation of women. These cracks that allow judges and the community to ignore groups whose experiences differ from their own may outrage the community more, eventually, when they apply to a more eventually empowered group such as the Twitter-savvy. However, lack of familiarity with technology (and underrepresented people’s experiences), may likely negatively affect judicial rulings more and more as the pace of technology innovations quickens. Another theme of these cases is that when the court does not identify with the victim and sees the perpetrator as harmless, as in Cassidy, it may have less trouble protecting the “harasser” with the First Amendment. However, when the court views individuals engaging in clearly political speech yet identifies with the victim, the US government, it seems to have less trouble finding the speech unprotected, as we see in Wikileaks and other Twitter cases. Wikileaks released this video, “Collateral Murder, 14” depicting an apparent US Army attack on unarmed Reuters journalists in Iraq in 2007. The US had reportedly refused to release the video to Reuters or admit wrongdoing. In US v Wikileaks, the US government has sought the Twitter information for those it believes released this information. Anonymous maintains the US government is wrongfully concealing its own misdeeds. Some Americans expect law enforcement to investigate Twitter accounts of some, but not all, suspects under inveestigation. 14 http://collateralmurder.com, US Army helicopter video, Iraq, 2007 7 Twitter/Cyber/Stalking US. v. Cassidy "Yes . . . beauty. A silver hammer on a hard head is beautiful, particularly if it is administered before one's funeral pyre catches blaze. Otherwise, one's head swells and explodes. 15" Overview The New York Times reported, “Certainly Mr. Cassidy’s previous trespasses have not helped him. He has a record of assault, arson and domestic violence. According to the federal complaint, he was also convicted of carrying an unspecified “dangerous weapon” onto a plane in 1993. “ 16 Nevertheless, Judge Roger W. Titus found that because his target, Alyce Zeoli, held a leadership position in a Bhuddist organization, and was thereby a “public figure,” and because some of the over 8,000 sexually degrading and threatening Tweets referred to those aspects of her, that therefore, the communications were religious in nature and further, as affecting a public official, protected by the first Amendment. Three Findings Judge Titus dismissed the US’s indictment alleging Cassidy violated the federal interstate stalking statute, 18 U.S.C. §§ 2261A (2)(A). 17 He ruled against the US in the case of William Cassidy, finding that: 1) the 8,000 tweets were protected free speech because they were religious in nature. Further, 2) the state has no “compelling interest in protecting victims from emotional distress sustained through an interactive computer service.” 18 3) Twitter is essentially a modern town bulletin board, which targets can avoid by “averting [their] eyes.” 19 In concluding his decision, he dismissed the constitutionality of the Federal cyberstalking statute: “In this case, the Court concludes that the statute is unconstitutional as applied, and thus it is unnecessary to address the parties' arguments as to whether the emotional distress via an interactive computer service portion of 18 U.S.C. § 2261A(2)(A) is facially invalid. ” 20 From Twitter account kpcwatch, quoted in US v Cassidy Rulingmm Somini Sengupta, New York Times, Case of 8,000 Menacing Posts Tests Limits of Twitter Speech, August 26, 2011 http://www.nytimes.com/2011/08/27/technology/man-accused-of-stalking-via-twitter15 16 claims-free-speech.html Federal interstate stalking statute, 18 U.S.C. §§ 2261A (2)(A) http://www.law.cornell.edu/uscode/text/18/2261A 17 US v Cassidy Ibid 20 Ibid 18 19 8 Twitter/Cyber/Stalking A few clear tests could distinguish cyberstalkers like William Cassidy, from a person engaged in genuine debate on religious issues, as Judge Roger W. Titus bizarrely casts him: Ulterior motive (seeking an intimiate partner relationship): Cassidy’s history and status, documented in the record, seeking an intimate relationship with his target Alyce Zeoli, which she refused Ulterior motive (employment): His status as a disgruntled former employee, dismissed; and Trend: His lack of a history, apart from this episode, of any interest or publication, serious or otherwise, in religious issues or public figures These three tests alone provide salient criteria which distinguish recognized religious debators like Martin Luther, for example, from abusers like William Lawrence Cassidy. 9 Twitter/Cyber/Stalking Law Enforcement: Practical considerations in investigating cyberstalking Sunday, May 23, 2010: "(A.Z.)'s attendants say she shits the bed regularly and pisses it when she's drunk: at the moment of death such events are quite telling.21" Sometimes lost as a footnote in this case, while central in others, can be law enforcement’s role in carrying forward Cassidy through its subpoena of Cassidy’s Twitter accounts. Detective Joseph Murphy of the Cambridge police explains the challenges for law enforcement in seeking and obtaining subpoenas for social media identities. “These investigations can be incredibly time-consuming in terms of tying an individual to an internet identity. The public also is not aware that law enforcement must compensate internet service providers and website providers for researching and providing identities, when subpeonas are granted and assented to.22” The public can sometimes have difficulty appreciating that proving identity in a court of law is far more involved than the Google searches people do every day. “We receive some complaints that do not meet the criteria for cyberstalking or are not credible. After establishing that a complaint is credible, which can be time-consuming, we have to investigate and draw up a subpoena. The officer must provide a judge a compelling reason to violate an individual’s privacy. Subpoenas are not routinely granted, especially if they are overly broad.23” Long before the First Amendment issues arose, police had to grapple with these fundamental privacy issues sometimes taken for granted. To the target, Alyce Zeoli, police were the good guys. At the same time, to the Electronic Frontier Foundation (“EFF”), the police were the bad guys, seeking to unjustly invade citizens’ privacy. From Twitter account kpcwatch, quoted in US v Cassidy Ruling Murphy, Detective Joseph, Cambridge Police Digital Crime Unit, Interview, February 24, 2012. 23 Ibid 21 22 10 Twitter/Cyber/Stalking Courts Definitions of cyberstalking Sunday, May 23, 2010: "what do you expect from the unwanted daughter of a weekend prostitute? 24" Murphy explained some of the dilemmas facing police as they look ahead to prosecutors’ options. Cassidy could have been prosecuted with the approach that his tweets placed her in “reasonable fear of the death of, or serious bodily injury,” the classic approach since the 1996 statute was enacted. David Ira Salem, Lead Attorney, Office of the United States Attorney, Greenbelt, MD, prosecuted the case for the United States. He comments, “the judge, in places in his decision, notes further directions prosecutors could consider to understand where the facts in other cases might meet constitutional criteria under the newer provisions of the law.” 25 Footnote 11 in the decision (not footnote 11 of this research paper) hints at the dilemma law enforcement may have faced when trying to decide whether to characterize the tweets as threats or harassment, and the charge: “11 In its brief, the Government seems to shift its theory of the case from one based on emotional distress to one based on threats: ‘Defendant in this case engaged in a continual course of conduct intended to threaten and intimidate A.Z. and KPC…’ Although "true threats" to another's physical safety are not protected, Watts v. United States, 394 U.S. 705, 89 S. Ct. 1399, 22 L. Ed. 2d 664 (1969), the Government, did not seek an Indictment on the basis that Defendant intentionally used the Internet to put A.Z. in reasonable fear of death or serious bodily injury. The 1996 Federal Stalking statute was amended in 2006, as illustrated in bold in the decision: Whoever— (2) with the intent— (A) to kill, injure, harass, or place under surveillance with intent to kill, injure, harass, or intimidate, or cause substantial emotional distress to a person in another State or tribal jurisdiction or within the special maritime and territorial jurisdiction of the United States; or… uses the mail, any interactive computer service, or any facility of interstate or foreign commerce to engage in a course of conduct that causes substantial emotional distress to that person or places that person in reasonable fear of the death of, or serious bodily injury to, any of the persons described in clauses (i) through (iii) of subparagraph (B) shall be punished as provided in Section 2261(b). (emphasis added)26 The 2006 amendments were the items Titus found unconstitutional. 24 From Twitter account kpcwatch, quoted in US v Cassidy Ruling Salem, David Ira, Lead Attorney, For USA, Plaintiff, Office of the United States Attorney, Greenbelt, MD. Interview with author, March 16, 2012 25 26 US v. Cassidy, ibid, Pub. L. No. 109-162, Title I, § 114(a), 119 Stat. 2690, 2987 11 Twitter/Cyber/Stalking American laws fall into three categories: cyberstalking, cyberbullying and cyberharassment. The National Conference of State Legislatures list over 100 relevant laws in the 50 states and Guam, besides the federal statute.27 Massachusetts has its own stalking laws.28 “Only Words” Sunday, May 23, 2010: "(A.Z.) is like a waterfront whore: her price goes down as the night wears on. 29" Catharine MacKinnon, the legal scholar, writes that “unwelcome sex talk is an unwelcome sex act. “30 She has noted that since 1978, courts have not been fooled by dressing up sexually abusive epithets as speech: “With a fine sense of reality, courts have not taken chanting ‘cunt’ at a working woman as conveying the idea “you have a vagina,” or as expressing eroticism, but rather as pure abuse. Of course, these concepts apply to civil, not criminal prosecutions. 31 ” Nevertheless, this “fine sense of reality” is missing from Judge Titus’s ruling. MacKinnon sums up the US Supreme Court’s seemingly inconsistent approach to sexually denigrating epithets like the ones with which Cassidy flooded Alyce Zeoli on Twitter: “When threatening, severe, or pervasive enough, it works to exclude and segregate and denigrate and subordinate and dehumanize, violating human dignity and denying equality of opportunity. The First Amendment has not even come up…First Amendment issues have not often been raised against racial harassment claims, even one in which the court found that the law requires employers to “take prompt action to prevent bigots from expressing their opinions in a way that abuses or offends their co-workers…32 “ Meritor: EEOC’s four factors Tuesday, June 22, 2010: "want it to all be over soon sweetie?33 " Meritor Savings Bank v. Vinson34, 1986, marked the change in the high court’s approach to sex talk as a sexual act rather than protected speech. With it, the EEOC outlined four factors to consider when determining if behavior was “severe or pervasive misconduct:” 1) the level of offensiveness of the unwelcome acts or words; 2) the frequency or pervasiveness of the offensive encounters; 27 State Cyberstalking, Cyberharassment and Cyberbullying Laws http://www.ncsl.org/issuesresearch/telecom/cyberstalking-cyberharassment-and-cyberbullying-l.aspx#Laws 28 http://www.malegislature.gov/Laws/GeneralLaws/PartIII/TitleI/Chapter265/Section43 29 From Twitter account kpcwatch, quoted in US v Cassidy Ruling as “religious criticism” 30 MacKinnon, 31 32 Catherine, Only Words, Cambridge, Mass. : Harvard University Press, 1993, p. 46 Ibid Ibid From Twitter account kpcwatch, quoted in US v Cassidy Ruling Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) MERITOR SAVINGS BANK v. VINSON No. 84-1979 US SUPREME COURT 477 U.S. 57; 106 S. Ct. 2399; 91 L. Ed. 2d 49; 1986 U.S. LEXIS 108; 54 U.S.L.W. 4703; 40 Fair Empl. Prac. Cas. (BNA) 1822; 40 Empl. Prac. Dec. (CCH) P36,159 33 34 12 Twitter/Cyber/Stalking 3) the total length of time over which the encounters occurred; and 4) the context in which the harassing conduct occurred. These rules could well be applied to Cassidy, a case with similarities to Meritor. Mechelle Vinson, a Black woman, experienced a situation not unlike Alyce Zeoli’s in many ways. Vinson was “sexually abused verablly and raped for two and a half years by her Black male bank supervisor.35” The US Supreme Court held ‘for the first time that employees have “the right to work in an environment free from discriminatory intimidation, ridicule, and insult.36’” The decision did not separate the verbal from the physcal environment, saying control the behaviour but protect the speech.37 ” The implication for Cassidy would be that sexually degrading tweets are a sex act, rather than free speech, if you consider their level of offensiveness and unwelcomeness, frequency, pervasiveness, length of time, and context. For while there were no physical acts of which the twitter speech was strictly a part, this approach recasts them as nevertheless acts of sexual degradation. Averting the Eyes- for some? Strict Scrutiny- for others? Monday, December 20, 2010: "RT @religionnews: Former cult member murdered in Texas: http://bit .ly/h2P6S8#religion #cults" All three of Titus’s findings rest upon the concept of “averting the eyes.” Of the first finding, the tweets could be considered a form of sexual abuse against AZ because she is female, not because she is a religious leader. The doctrine of “averting the eyes” is best understood in the context of two US Supreme Court cases, US v Playboy, 1999, and US v Stevens, 2010, an animal cruelty case. They both extend the doctine that laws that single out content, or are “content-based,” must be held to the higher standard of “strict scrutiny.” In Playboy, the Supreme Court sided with Playboy against cable operators, on the grounds that individuals offended by sexually explicit content could “avert their eyes38.” In Stevens, the Supreme Court held that laws against intentionally creating, depicting or posessing depictions of animal cruelty “did not serve a compelling state interest,” based on Playboy. 35 MacKinnon, p. 48 36 Ibid, p. 48 Ibid, p. 48 37 “In Playboy Entertainment Group, the Supreme Court held that the Telecommunications Act's "signal bleed" provision, requiring cable operators either to scramble sexually explicit channels in full or limit programming on such channels to certain hours, amounted to a content-based restriction. 529 U.S. at 811-812. The provision "single[d] out particular programming content for regulation" as well as "particular programmers," applying by its terms only to channels "primarily dedicated to sexuallyoriented programming." 47 U.S.C. § 561(a) (1994 Supp. III.). Id. at 806. Because the provision focused only on the content of the speech and the direct impact that speech had on viewers, the provision was a content-based restriction.” US v Cassidy, Ibid 38 13 Twitter/Cyber/Stalking In US v. Stevens39, the Supreme Court affirmed the Third Circuit's decision holding that “a contentbased restriction of protected speech — i.e. a federal statute that criminalized the intentional creation, sale or possession of a depiction of animal cruelty — did not serve a compelling state interest on the basis that these types of content-based restrictions of protected speech are presumptively invalid. 130 S.Ct. 1577, 1584, 176 L. Ed. 2d 435 (2010). Because the Government's interest in criminalizing speech that inflicts emotional distress is not a compelling one, the statute does not survive strict scrutiny.” Judge Titus defines Twitter in terms familiar to him, which do not really apply to Twitter. He attempts to distinguish in a black and white manner whether Twitter is either a public bulletin board, on the one hand, or a communications method, on the other. He states: “Whether couched in terms of the Internet or Colonial bulletin boards, there is one consistent aspect of both eras. One does not have to walk over and look at another person's bulletin board; nor does one Blog or Twitter user have to see what is posted on another person's Blog or Twitter account. This is in sharp contrast to a telephone call, letter or e-mail specifically addressed to and directed at another person, and that difference, as will be seen, is fundamental to the First Amendment analysis in this case.” “The Supreme Court affirmed the Third Circuit's decision holding that a content-based restriction of protected speech — i.e. a federal statute that criminalized the intentional creation, sale or possession of a depiction of animal cruelty — did not serve a compelling state interest on the basis that these types of content-based restrictions of protected speech are presumptively invalid. 130 S.Ct. 1577, 1584, 176 L. Ed. 2d 435 (2010). Because the Government's interest in criminalizing speech that inflicts emotional distress is not a compelling one, the statute does not survive strict scrutiny.” US v Cassidy 39 14 Twitter/Cyber/Stalking Twitter is a modern public bulletin board? When in 1517 Martin Luther nailed his 95 theses to the church door in Wittenburg, Germany (possibly apocryphally, or circulated them in the town square), he embodied the concept of a “public bulletin board.” Twitter’s @function, which both names and directly communicates with a user at the same time, and the ease of making thousands of postings that then surround the target’s identity differentiate Twitter from the Wittenburg church door. It is unknown whether Judge Titus himself has a Twitter account. His familiarity in general with the internet seems doubtful. Comfort and familiarity with technology, as well as the fairly new concepts of stalking in general and cyberstalking in particular, play a role in court rulings. Acknowledging Lampley40, 1978, that finds against using the telephone to harass and threaten, he dismisses it: “That case is inapposite because A.Z. had the ability to not look at the Defendant's Blog or his postings on Twitter.” It is interesting to contrast this approach when thinking about the civil (i.e. non-criminal) case, Remsberg v. Docusearch. In this 1999 case, target Amy Boyer was murdered by Liam Youens, a relative stranger who had possibly met her briefly years before. Youens documented his intensive physical stalking in a website prior to the murder. He committed suicide at the time of the murder and so 40 “But see United States v. Lampley, 573 F.2d 783, 787 (3d Cir. 1978) (stating that with respect to a statute that prohibits the intentional use of a telephone to harass and threaten, the "Congress had a compelling interest in the protection of innocent individuals from fear, abuse, or annoyance at the hand of persons who employ the telephone not to communicate, but for other unjustifiable motives.) That case is inapposite because A.Z. had the ability to not look at the Defendant's Blog or his postings on Twitter.” 15 Twitter/Cyber/Stalking was never prosecuted. He obtained her home and work addresses from an information service that was later successfully prosecuted in the actual civil case. This case first linked the use of technology with stalking in the public’s awareness. Ostensibly about private investigator liability and privacy, Remsberg has set impactful precedents in those areas. Remsberg is fundamentally one of the more notorious stalker cases. Amy Boyer, by all accounts, was unaware of Youens’ internet blog documenting his stalking, and so suffered no emotional distress from it. Yet, if she were aware, could she have simply ignored it? Would she have actually received assistance, and would Youens have been held accountable? That is unclear. It is unclear whether the communications in the website would be ruled a clear enough “threat” for police or courts to take action under the rubric of serious, imminent, physical harm, or threats, two unprotected areas of speech. What if Amy Boyer had been a religious leader, public figure, or both, like Alyce Zeoli? Would Youens have been allowed to continue his stalking until her death? Possibly, it seems, if Judge Titus were presiding, on the somewhat specious grounds that Youens’ blog was like a public bulletin board from which she could avert her eyes. At least, Remsberg makes it clear that in 1999 many people not only successfully averted their eyes from public bulletin board-type postings about themselves, they were unaware of them, probably as Titus is unaware of Twitter today. The ease of posting, facilitating more frequent postings, compared with the barriers to constant daily postings on a town bulletin board, are a fundament difference of Twitter. Titus’s analogy serves to minimize the impact of Twitter on Alyce Zeoli, compared to a Colonial bulletin board. Tweets “religious” in nature Tuesday, November 30, 2010: "@(A.Z.) sure hope you weren't referring to me as a felon, bitch, because as I'm sure your lawyer has informed you that could cost U money 41." Judge Titus apparently “averted” his eyes from the thousands of tweets that were sexual, threatening and intimidating in nature, and the absence of any serious religious content or arguments. He states: “Mr. Cassidy's Tweets and Blog posts about A.Z. challenge her character and qualifications as a religious leader… And, while Mr. Cassidy's speech may have inflicted substantial emotional distress, the Government's indictment here is directed squarely at protected speech: anonymous, uncomfortable Internet speech addressing religious matters.” The tweets seem more accurately understood as a form of sexual abuse against AZ because she is female, not because she is a religious leader. Cassidy sought an intimate relationship with his target, which she refused, and she also fired him from his position in the chruch. These facts would fall under EEOC’s rule four, context, for determining the nature of the harassment. It would be more accurate to say Cassidy is engaged in stalking, and that his target happens to be a religious leader. It is her status as a woman that he targets. Her status as a religious leader and public figure seems incidental. 41 From Twitter account kpcwatch, quoted in US v Cassidy 16 Twitter/Cyber/Stalking An element missing from Titus’s logic is an acknowledgement that a public religious leader like Alyce Zeoli could EVER be a target of illegal harassment. The decision seems to indicate that if a target, usually but not always female, is a public figure or a religious leader or both, then harassment is motivated by those factors. Illegal harassment of a target who happens to also be a religious leader and public figure, it seems to say, and cannot possibly be caused by the desire for power and control over women that has been found to motivate cyberstalking and other forms of illegal harassment.42 Cyberstalking law “serves no compelling interest” Judge Titus denies “the Government…has a compelling interest in protecting victims from emotional distress sustained through an interactive computer service.” He cites the decision in Playboy Entertainment Group, 529 U.S. at 813, which “underscores the fact that the Government's interest is not a compelling one.” Rehashing the Twitter is just-a-town-bulletin board theory, he states, “A.Z. had the ability to protect her "own sensibilities simply by averting her eyes from the Defendant's Blog and not looking at, or blocking his Tweets.” 43 “Freewheeling Authority” - Protected and Unprotected Speech It is relevant to review just what Judge Titus views as compelling interests and exceptions to protected speech. He enumerates six categories in his decision, finding Cassidy’s tweets fall outside all of them. (a) obscenity (1957), (b) defamation (1952), (c) fraud (1976), (d) incitement (1969), (e) true threats (1969), and (f ) speech integral to criminal conduct (1949). He quotes US v. Stevens, that "depictions of animal cruelty" remain protected because there is no "freewheeling authority to declare new categories of speech outside the scope of the First Amendment." 44 Having first found that the speech is protected as religious speecch, Titus now also finds the obverse, that it is not unprotected: “Applying these standards, it is clear that the Government's Indictment is directed at protected speech that is not exempted from protection by any of the recognized areas just described.” 45 “ Under the First Amendment, ‘Congress shall make no law... abridging the freedom of speech.’ U.S. Consti.amend. I. From our nation's founding, there has been a tradition of protecting anonymous Adams, David, Why Do they Kill? Men Who Murder their Intimate Partners, Nashville: Vanderbilt University Press, 2007, p. 131 42 Ibid US v. Stevens, 130 S.Ct. 1577, 1586, 176 L. Ed. 2d 435 (2010), quoted in US v. Cassidy 45 US v Cassidy 43 44 17 Twitter/Cyber/Stalking speech, particularly anonymous political or religious speech…Moreover, the First Amendment protects speech even when the subject or manner of expression is uncomfortable and challenges conventional religious beliefs… Indeed, the Supreme Court has consistently classified emotionally distressing or outrageous speech as protected, especially where that speech touches on matters of political, religious or public concern. This is because "in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide 'adequate 'breathing space' to the freedoms protected by the First Amendment. " 46 Civil Liberties Groups In Cassidy, the ACLU and the EFF defended Cassidy. It is unclear whether they opposed the initial subpoena ordering the release of Twitter records. They frame Cassidy as a freedom of speech case, analagous to Wikileaks. Certainly EFF is techology-savvy, so its embrace of the Twitter-as-Colonialartifact-analagous argument is curious. EFF essentially argues in Cassidy that new technology, Twitter, is analogous to old technology, a Colonial bulleting board. In Wikileaks, EFF argues the opposite, that Twitter is subtly non-analogous to old technology (telephone) in that its metadata contains IP addresses. Conclusion Titus’s decision in Cassidy, while in a different context in many ways, nevertheless ignores almost 30 years of sexual harassment case law. More to the point, Titus erroneously analogizes Twitter technology to a colonial town bulletin board, mischaracterizes sexually abusive tweets as religious, and dismisses the protection from severe emotional distress as “not compelling,” along with depiction of cruelty to animals. Lack of experience and understanding of Twitter technology results in minimizing its impact, and lack of experience and understanding of sexual degradation minimizes its impact as well, we may conclude from Titus’s decision. 46 Ibid 18 Twitter/Cyber/Stalking Exmination of this Boston University video revealed US Army Private Bradley Manning attending a hackerspace opening party days before he allegedly released Collateral Murder and other material. The BU “BUILDS” logo is visible in the background. US v Wikileaks Overview – Strange Bedfellows Unlike in US v Cassidy, in US v. Wikileaks, Appelbaum, Gonggrijp, Jonsdottir, and Twitter, law enforcement, prosecutors and the courts are on the same side of the argument. Law enforcement found itself equally investigating Cassidy and the Wikileaks defendants. Likewise, civil liberties groups equally opposed Twitter subpoenas and criminal charges for both sets of defendants. The Electronic Frontier Foundation (EFF) and the ACLU both filed amicus curiae briefs on behalf of Cassidy, angering victims rights groups. And, EFF and ACLU are currently defending the Wikileaks defendants, angering law enforcement. Wikileaks supporters view the US government and US Army as the bad actors. Through this prism, shooting unarmed civilians and children from a helicopter while laughing at their victims’ attempts to crawl away falls into the category of William Cassidy’s allleged crimes. However, they reposition themselves as victims (of treason), and reframe Wikileaks in Cassidy’s defendant’s role. Surely the US government’s judicial arm’s strict scrutiny in Cassidy, and the court’s minimizing misunderstanding of technology, would be similarly reflected in Wikileaks. The court might, by that reasoning, find US treason laws unconstitutional, as a speech restriction that serves no “compelling interest.” 47 However, when another branch of the US government, the prosecutor, takes a similar stance to that in Cassidy, the US judicial branch diverges from Cassidy and views Wikileaks speech as unprotected. 47 US v. Cassidy 19 Twitter/Cyber/Stalking Applying the proposed Cassidy tests to Wikileaks, the result is that unlike Cassidy, Wikileaks defendants clearly pass those tests: Ulterior motive (seeking an intimiate partner relationship): Wikileaks defendants have none and pass this test Ulterior motive (employment): Wikileaks defendants have none and pass this test Trend (of concern about political issues): Wikileaks defendants have a trend and pass this test U.S. Army Private Bradley Manning, who provided Collateral Murder and other material to Wikileaks, did so immedaitely after visiting a hackerspace at Boston University in 2010.48 He was hosted by BU and MIT student David House, who, according to Democracy Now!, “co-founded the Bradley Manning Support Network after…Manning was arrested for allegedly releasing classified U.S. military documents to WikiLeaks. House refused to testify last month in Alexandria, Virginia, before a grand jury hearing on WikiLeaks and the disclosure of thousands of classified U.S. diplomatic cables.49” House, with the ACLU, in May 2011 filed a lawsuit against the US Homeland Security Department, who siezed his laptop at the border. Exmination of a Boston University video revealed US Army Private Bradley Manning attending a hackerspace opening party days before he allegedly released Collateral Murder and other material. The BU “BUILDS” logo is visible in the background. US v Wikileaks also involves subpoenas of Twitter account information, similar to Cassidy. Wikileaks raises the question, do governments conceal wrongdoing from their citizens? If a government illegally conceals its own wrongdoing, is its investigation of those who shed light on injustice, persecution? How does that differ from investigating William Cassidy? When Wikileaks released Collateral Murder,50 it seemed to reveal American wartime atrocities in Iraq the US government had attempted to keep secret. When the US government investigated those it believed were responsible, the hacker group Anonymous retaliated. By some accounts, members of Anonymous or those claiming links to Anonymous may have also committed their own “collateral” crimes. The Boston Globe reported on December 26, 2011 that “a hacking movement calling itself Anonymous said yesterday that it stole thousands of credit card numbers and other client information from a US security think tank…One hacker said the goal of the attack on Stratfor 48 Zetter, Kim , Boston Globe, 5/20/2011, Video Captures Bradley Manning With Hacker Pals at Time of First Leaks, http://www.wired.com/threatlevel/2011/05/bradley-manning-in-boston 49 Goodman, Amy, Democracy Now! July 11, 2011 Interview with David House: Exclusive: David House on Bradley Manning, Secret WikiLeaks Grand Jury, and U.S. Surveillance http://www.democracynow.org/2011/7/11/david_house_on_bradley_manning_secret 50 http://collateralmurder.com 20 Twitter/Cyber/Stalking Global Intelligence was to pilfer funds from individuals’ accounts to give away as Christmas donations, and some victims confirmed that unauthorized transactions were made using their credit cards. ” 51 Law Enforcement and the Courts Unlike in US v Cassidy, in US v. Wikileaks, law enforcement and the courts are on the same side of the argument. Law enforcement’s role is to investigate those who, it asserts, may have assisted the relase of classified information. When the motions were unsealed, however, they revealed that Ms. Jondottir, a member of the Icelandic Parliament, was charged with “providing assistance to Wikileaks in connection with the release of a video showing US soldiers shoointg civilians in Baghdad from a helicopter” 52 (the Collateral Murder video). Police and prosecution approach these defendants similarly to their approch in Cassidy, seeking to revel information related to the online identities and Twitter accounts. Investigators used the ECPA-Stored Communications Act, 18 USC 270353, to seek the Twitter records. Civil Liberties Groups – IP Addresses are not Telephone Numbers The Security and Privacy experts and EFF oppose law enforcement’s efforts to subpoena Twitter logs that include IP addresses, arguing that IP addresses are not analogous to telephone numbers, and reveal considerably more location-related information than telephone numbers. In this sense, EFF take an opposite stance than that in Cassidy. In Wikileaks, EFF points out subtle differences between new technology (Twitter metadata) and old technology (telephone records) that might otherwise escape the notice of a non-technology-savvy judiciary: the existence of IP address. In Cassidy, EFF seemed to deny the subtle or not-so-subtle differences between old and new technology. In their amicus curiae brief, security experts laid out the dangers of rouintinizing Twitter subpoenas: “Judge Buchanan rejected petitioners’ argument that they had a reasonable expectation of privacy regarding Twitter logs containing their IP addresses, [ruling]: “In an attempt to distinguish the reasoning of Smith v. Maryland and Bynum, petitioners contend that Twitter users do not directly, visibly, or knowingly convey their IP addresses to the website, and thus maintain a legitimate privacy interest. This is inaccurate. Before creating a Twitter account, readers are notified that IP addresses are Vinograd, Cassandra, Boston Globe, 12/26/2011, Hackers hit security firm and donate stolen funds http://articles.boston.com/2011-12-26/world/30556992_1_credit-card-anonymous-tweeted-clientlist 51 In the Matter of the 2703(d) Order Relating to Twitter Accounts: Wikileaks, Rop_G; and BirgittaJ, US v. Wikileaks, APPELBAUM, GONGGRIJP, JONSDOTTIR, and TWITTER, Appeal: 11-5151 Document: 19, Date Filed: 01/20/2012, Page: 1 of 7. In the Matter of the 2703(d) Order Relating to Twitter Accounts: Wikileaks, Rop_G; and BirgittaJ Exhibit B, Case 1:11-dm-00003-TCB Document 32-2 Filed 02/14/11 Page 1 of 5 52 53 18 USC § 2703 - REQUIRED DISCLOSURE OF CUSTOMER COMMUNICATIONS OR RECORDS http://www.law.cornell.edu/uscode/text/18/2703 21 Twitter/Cyber/Stalking among the kinds of "Log Data" that Twitter collects, transfers and manipulates. See Warshak, 2010 (recognizing that internet service providers’ notice of intent to monitor subscribers' emails diminishes expectation of privacy). Thus, because petitioners voluntarily conveyed their IP addresses to Twitter as a condition of use, they have no legitimate Fourth Amendment privacy interest. “ 54 A footnote below that paragraph added: “At the hearing, petitioners suggested that they did not read or understand Twitter's Privacy Policy, such that any conveyance of IP addresses to Twitter was involuntary. This is unpersuasive. Internet users are bound by the terms of click-through agreements made online. A.V. ex rel. Vanderhye v. iParadigms, LLC, 544 F.Supp.2d 473,480 (E.D. Va. 2008) (finding a valid "clickwrap" contract where users clicked "I Agree" to acknowledge their acceptance of the terms), aff'd A.V. ex rel v. iParadigms, LLC, F.3d 630, 645 n.8 (4th Cir. 2009). By clicking on "create my account", petitioners consented to Twitter's terms of use in a binding "clickwrap" agreement to turn over to Twitter their IP addresses and more. “ 55 54 In the Matter of the 2703(d) Order Relating to Twitter Accounts: Wikileaks, Rop_G; and BirgittaJ, US v. Wikileaks, APPELBAUM, GONGGRIJP, JONSDOTTIR, and TWITTER, Appeal: 11-5151 Document: 19, Date Filed: 01/20/2012, Page: 1 of 7. In the Matter of the 2703(d) Order Relating to Twitter Accounts: Wikileaks, Rop_G; and BirgittaJ In re § 2703(d) Order; 10GJ3793., 2011 WL 900120, at 13 (E.D. Va. Mar. 11, 2011) 55 Wikileaks, Amicus Curiae Brief, Security Experts 22 Twitter/Cyber/Stalking The order summarized that “[b]efore creating a Twitter account, readers are notified that IP addresses are among the kinds of 'Log Data' that Twitter collects, transfers and manipulates.” Conclusion Regarding freedom of speech, when investigating itself and prosecuting those critical of itself, the US government, through its judicial arm, applies a “compelling interest” standard to Wikileaks that it denies Alyce Zeoli in Cassidy. Regarding technology, civil liberty defender EFF takes an opposite view to Cassidy, where it argues that old bulletin board and new Twitter technology are analogous. In Wikileaks it argues new technology, Twitter, is non-analogous to old technology (telephone records.) Further, In Cassidy, civil liberties groups argued that Twitter is not a communications technology like that covered by CALEA. In Wikileaks, the US treats Twitter as if it is a communications technology, like the telephone. It is true that the nature of the information Twitter logs about users, like IP address, may differ substantially from that provided by other communications technology. Law enforcement, in this case, argues the opposite: that old and new technology are essentially similar for subpoena purposes. The economic wording of court decision leaves its judicial view unclear, while overruling protection of Twitter records. 23 Twitter/Cyber/Stalking US v @GuidoFawkes-Occupy Boston Overview Occupy Boston intersected Wikileaks when Anonymous hacked the Boston Police Department website in 2011.56 Anonymous stated it performed this hack in retaliation for police tactics towards Occupy protestors. Shortly thereafter, Suffolk County DA Daniel Goldberger issued a subpoena for Twitter accounts ostensibly linked to Occupy Boston and Wikileaks. It is unknown whether subpoena targets are under investigation for potential criminal activity such as hacking to obtain or use credit card information, for example. Possibly, in the course of engaging in or claiming to engage in political activity or protected First Amedment speech related to the Occupy Boston movement, protesetrs committed crimes. Police have stated the targets are linked “only tangentially” 57 to the political movement. Law Enforcement In US v @GuidoFawkes - Occupy Boston, the police were both the targets (victims) and the investigators. The cybercrime is unknown as the records are sealed, but may have included hacking their website and possible crminal activity related to credit card fraud. The cyberinvestigation centered once again on subpoenas of Twitter accounts. According to the subpoena, Sgt. Det. Joseph Dahlbeck of the Boston Police used the ECPA-Stored Communications Act, 18 USC 2703, to seek the Twitter records, the same statute that was used in Wikileaks. Finocchiaro, Peter, Huffington Post, 2/3/2012, Anonymous Hacks Boston Police Department Website Over December Occupy Eviction 56 http://www.huffingtonpost.com/2012/02/03/anonymous-boston-police-occupy-wall-street_n_1252718.html 57 Ibid 24 Twitter/Cyber/Stalking However, additionally, he used the Massachusetts law, MGL 271-17B, 58 which encompasses “Crimes against Public Policy.” 59 Harkening back to Katz60, 17B falls under “Places for registering bets or dealing in pools,” right after “Telephones – use for gaming purposes.” It is, “Use of electronic communications in ongoing criminal investigations – subpoena of records.” Civil Liberties Groups – “Because the Rights You Save May Be Your Own” The ACLU has defended @GuidoFawkes, opposing the secrecy of the charges and subpoenas and arguing the privacy issues. Courts On February 27, 2012, Superior Court Judge Frances McIntyre ruled in large part against the ACLU, Twitter and @GuidoFawkes. 61 He ordered62 that all information associated with this account be handed over to ADA Benjamin Goldberger and the Boston Police investigator, Sgt. Det. Joseph Dahlbeck, by email to benjamin.goldberger@state.ma.us and DahlbeckJ.bpd@cityofboston.gov . Conclusion This case has similarities to Cassidy in the sense that the defendant may be suspected of criminal activity committed at the same time as, or ostensibly in addition to, protected free speech. Since the file is sealed, it is difficult to know the exact nature of the charges. But it is clear that the court is generally siding with law enforcement and the prosecution on first amndment and technology issues, and against civil liberties groups on those issues. 58 Use of Electronic Communications records in ongoing criminal investigations, http://www.malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter271/Section17B 59 Ibid v. Katz, 389 U.S. 347 88 S. Ct. 507; 19 L. Ed. 2d 576; 1967 U.S. LEXIS 2 60 US 61 ACLU website, Sunlight is a disinfectant--and this law stinks http://www.aclum.org/on_liberty_3.2.12 Order, 2-27-2012, no case name or number known to be assigned, case is sealed http://aclum.org/sites/all/files/legal/twitter_subpoena/suffolk_order_to_twitter_20120223.pdf 62 25 Twitter/Cyber/Stalking Conclusion These four recent cases involve the use of Twitter to commit alleged crimes. They have drawn differing responses from law enforcement and the courts in regards to Twitter subpoenas. And, civil liberties groups have chosen each of these cases to defend their perception of social justice and represent their views of technology. It seems likely, considering the rapid rate of change of technology and the glacial rate of change of judges, that uninformed, inexperienced technology decisions will unfortunately continue to plague us for many years. Civil liberties groups like EFF who seek to educate the judiciary do so, it seems selectively, and with limited success. Lack of judicial experience and understanding of sexual degradation of women may similarly plague judicial opinions until victims find a way to similarly educate them. 26 Twitter/Cyber/Stalking Appendices Brief - US v. Cassidy 1. Case ID: US v. William Lawrence Cassidy https://www.eff.org/sites/default/files/filenode/cassidy-order-121511.pdf, Case 1:11-dm-00003-TCB -LO Document 85 Filed 11/10/11 Page 1 of 60 PageID# 1023, US District Court For The District Of Maryland, 2011, No. TWT 11-091 (D. Md. Dec. 15, 2011) US v. William Lawrence Cassidy, Defendant. Criminal Case No. RWT 11-091 US District Court For The District Of Maryland 2011 U.S. Dist. LEXIS 145056; 40 Media L. Rep. 1001 2. Facts: William Cassidy was charged with committing the crime of cyberstalking by violation of federal interstate stalking statute, 18 U.S.C. §§ 2261A (2)(A) through the use of Twitter and blogs. He sent over 8,000 tweets regarding a former object of his romantic affection who had spurned him, who happened to be a Bhuddist monk leader. 3. Procedural History: US District Court For The District Of Maryland, Indictment dismissed 4. Issue: Was the content of the speech protected by the First Amendment? 5. Holding: Yes, it was protected 6. Rule: Under the First Amendment "Congress shall make no law... abridging the freedom of speech." 7. Reasoning: “…the Government's Indictment here is directed squarely at protected speech: anonymous, uncomfortable Internet speech addressing religious matters.” The judge concluded that the tweets were speech addressing religious matters 8. Conclusion/Judgment/Order of the Court: Criminal indictment dismissed 27 Twitter/Cyber/Stalking Brief- US v Mr. X - In Re Grand Jury Subpoena No. 11116275 (Michelle Bachmann) 1. Case ID: Us v Mr. X - In Re Grand Jury Subpoena No. 11116275 (Michelle Bachmann), NO. 11116275,Misc. No. 11-527 (RCL), UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, 2011 U.S. Dist. LEXIS 153989, February 23, 2012, Filed 2. Facts: This matter arises out of Mr. X's professed desire to engage in sadomasochistic activities with Congresswoman and presidential candidate Michele Bachmann. Mr. X posts to Twitter. The government is investigating Mr. X for having made a prima facie threat of violence addressed to a major presidential candidate. The government has a compelling interest in pursuing that investigation, and Mr. X's identity must be known for the grand jury to make an informed probable cause determination. 3. Procedural History: The government is investigating Mr. X for having made a prima facie threat of violence addressed to a major presidential candidate. The government has a compelling interest in pursuing that investigation, and Mr. X's identity must be known for the grand jury to make an informed probable cause determination. 4. Issues: “Mr. X has a right under the First Amendment to post on the Internet, and to do so anonymously. See McIntyre v. Ohio Elections Commission, 514 U.S. 334, 357, 115 S. Ct. 1511, 131 L. Ed. 2d 426 (1995) ("Anonymity is a shield from the tyranny of the majority."); Reno v. ACLU, 521 U.S. 844, 870, 117 S. Ct. 2329, 138 L. Ed. 2d 874 [*6] (applying the First Amendment fully to the Internet); see also Sinclair v. TubeSockTedD, 596 F. Supp. 2d 128, 131 (D.D.C. 2009). Accordingly, the grand jury may not subpoena Twitter to gain information regarding Mr. X's identity unless the government can show "a compelling interest in the sought-after material" and "a sufficient nexus between the subject matter of the investigation and the information they seek." 5. Holdings: Mr. X’s tweets must be taken as “true threats” 6. Rule: compelling interest, true threats, 7. Reasoning: Mr. X’s tweets must be read literally. The US government has a “compelling interest” in investigating threats against a presidential candidate. 8. Conclusion/Judgment/Order of the Court: It is therefore hereby ORDERED that Mr. X's Motion to Intervene is GRANTED; and it is further ORDERED that Mr. X's Motion to Quash is DENIED. 9. Law: Investigators used the ECPA-Stored Communications Act 18 USC 2703 to seek the Twitter records, 18 U.S.C. § 875(c), cyberstalking, which criminalizes the transmission "in interstate or foreign commerce" of "any communication containing any threat to kidnap any person or any threat to injure the person of another . . . ." The subpoena at issue identified a possible violation of 18 U.S.C. § 115, 4th Amendment 28 Twitter/Cyber/Stalking Brief- Remsberg v Docusearch 1. Case ID: Helen Remsberg, Administratrix of the Estate of Amy Lynn Boyer v. Docusearch, No. 2002-255, Supreme Court Rule of New Hampshire, 149 N.H. 148; 816 A.2d 1001; 2003 N.H. LEXIS 17 2. Facts: Liam Youens murdered Amy Boyer on October 15, 1999 after stalking her for years. He then committed suicide. Boyer’s heirs sued Docusearch, a private investigative agency, for providing information leading to her murder. 3. Procedural History: Supreme Court of New Hampshire. EPIC filed an amicus curiae brief on behlf of Remsburg. 4. Issues: (1) Did the broker who sold information to a client pertaining to a person have a cognizable legal duty to that person with respect to the sale of the information? (2) If the broker obtained the person's social security number (SSN) from a credit reporting agency as a part of a credit header without the person's knowledge or permission and sold the number to a client, then did the person have a cause of action for intrusion upon her seclusion against the broker for damages caused by the sale of the information? (3) If the broker, by a pretextual telephone call, obtained the person's work address and sold the address to a client, was there a cause of action for intrusion? (4) Did the person have a commercial appropriation cause of action for damages caused by the sale of the SSN or work address? (5) If the broker obtained the person's work address by a pretextual telephone call and sold the information, then was the broker liable under N.H. Rev. Stat. Ann. § 358-A to that person for damages caused by the sale of the information. Was a duty owed to persons foreseeably endangered by conduct that created an unreasonable risk of criminal misconduct? 5. Holdings: “A duty was owed to persons foreseeably endangered by conduct that created an unreasonable risk of criminal misconduct.” 1 – General responsibility to person who info was sold- Yes 2 - Selling SSN from credit reporting agency is a cause for action- Yes 3 - Pretexting is a cause for action for intrusion – No 4 - Commercial appropriation cause of action for damages from sale of SSN – No 5- Pretexting creates liability for damages – Yes 6. Rule: 7. Reasoning: 1- “The threats posed by stalking and identity theft lead us to conclude that the risk of criminal misconduct is sufficiently foreseeable so that an investigator has a duty to exercise reasonable care in disclosing a third person's personal information to a client. And we so hold. This is especially true when, as in this case, the investigator does not know the client or the client's purpose in seeking the information.” 2- A SSN is something secret, secluded or private 29 Twitter/Cyber/Stalking 3- Is a work address is something secret, secluded or private 4- The benefit derived from the sale in no way relates to the social or commercial standing of the person whose information is sold 5 - the investigator's [***22] pretextual phone call occurred in the conduct of trade or commerce within the State 8. Conclusion/Judgment/Order of the Court: “The supreme court answered the questions and remanded the case.” 30 Twitter/Cyber/Stalking Brief – US v Wikileaks 1. Case ID: US v. Wikileaks, Appelbaum, Gonggrijp, Jonsdottir, and Twitter, Appeal: US Court Of Appeals for the Fourth Circuit US District Court, on Appeal from the US District Court For The Eastern District Of Virginia 11-5151 Document: 19, Date Filed: 01/20/2012, Page: 1 of 7. In the Matter of the 2703(d) Order Relating to Twitter Accounts: Wikileaks, Rop_G; and BirgittaJ https://www.eff.org/node/58368 IN RE APPLICATION OF THE UNITED STATES OF AMERICA FOR AN ORDER PURSUANT TO 18 U.S.C. § 2703(d) Misc. No. 1:11-DM-3,No. 10-GJ-3793,No. 1:11-EC-3 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA, ALEXANDRIA DIVISION 2012 U.S. Dist. LEXIS 1059 January 4, 2012, Decided, January 4, 2012, Filed 2. PRIOR HISTORY: In re Application of the United States, 2011 U.S. Dist. LEXIS 130171 (E.D. Va., Nov. 10, 2011) [As of publication date, the case is still in very preliminary pre-trial stages. These documents should be discoverable in the trial papers of this case.] https://www.eff.org/cases/government-demands-twitter-records 2. Facts: The facts are unknown as the court records are sealed by request of the government. Basically, the U.S. Department of Justice asserts it needs the Twitter records of numerous individuals in connection with its attempts to prosecute the Wikileaks case. One of the individuals whose Twitter recors it seeks is Birgitta Jonsdottir, a member of the Icelandic Parliament. Attempts to unseal the records have been the source of over 30 motions since 2011. The Electronic Frontier Foundation (EFF)’s website states that it “and the ACLU represent, in response to the efforts by the to seek information and records about her online activities as part of the investigation into Wikileaks.” 3. Procedural History: Before the US Court Of Appeals for the Fourth Circuit US District Court, on Appeal from the US District Court For The Eastern District Of Virginia. The EFF and the ACLU filed two motions in federal court on January 26 2011: A request to unseal the still-secret court records of the government's attempts to collect private records from Twitter Inc. as well as other companies who may have received demands for information from the government. A motion seeking to overturn the court Order issued on December 14, 2010, requiring Twitter to hand over private records about some of its users including Jonsdottir, Gonggrijp, and Appelbaum. 4. Issues: 31 Twitter/Cyber/Stalking a. Did the district court erroneously continue to seal judicial orders requiring the disclosure of information about Movants’ Internet communications where the Magistrate and the government previously conceded that unsealing an order to Twitter was in the best interest of the government’s investigation and where the government failed to establish that disclosing any other judicial orders or related motions, redacted if necessary, would cause any harm to its investigation sufficient to overcome the significant public interest in access to these judicial orders and motions b. Did the district court err in holding that there need not be a public docket sheet identifying the name and date of any judicial orders to companies other than Twitter and any related court filings? 5. Holding: Awaited 6. Rule: Awaited 7. Reasoning: Awaited 8. Conclusion/Judgment/Order of the Court: Awaited 9. Law: Investigators used the ECPA-Stored Communications Act 18 USC 2703 to seek the Twitter records 32 Twitter/Cyber/Stalking 33 Twitter/Cyber/Stalking Brief- House v Napolitano (Wikileaks) 1. Case ID: DAVID HOUSE v JANET NAPOLITANO, UNITED STATES DISTRICT COURT FOR DISTRICT OF MASSACHUSETTS Case 1:11-cv-10852-DJC Document 22 Filed 12/06/11 Page 1 of 2, https://www.aclu.org/files/assets/house_surreply.pdf 2. Facts: David House, a Computer Science undergraduate at Boston University, hosted an event at Bosto University to open the BU-ILDS “hackerspace” for computer science concentrators and colleagues. US Army Private Bradley Manning attended the event and was videotaped there. Three days later, he released “Collateral Murder” and the Wikileaks material. After Manning’s arrest. David House started the Bradley Mannig Support Fund. When David House re-entered the US after a brief trip in 2011, Homeland Security searched him and confiscated his laptop. Represnted by the ACLU, he sued for the return of his laptop, and the vilation of his first and fourth amendment rights. 3. Procedural History: House sued in May 2011, case is ongoing. 4. Issues: First Amendment, government secrecy, Fourth Amenment, protected politicacl speech. 5. Holdings: none yet 6. Rule: First and Fourth Amenments 7. Reasoning: none yet 8. Conclusion/Judgment/Order of the Court: none yet 34 Twitter/Cyber/Stalking Brief- US v Occupy Boston 2. Case ID: US v @GuidoFawkes - None known to be assigned, records are sealed. Ongoing active investigation by Boston Police Department. DA Suffolk County of theCommonwealth of Massachusetts, Administrative Subpoena, Commonwealth of MA vs. Twitter aka Trust & Safety, 12/14/2011, seeking “all available subscriber information” for Twitter accounts or hashtags @pOisAnON, Guido Fawkes, @OccupyBoston, #BostonPD or #dOxcak3 http://www.scribd.com/doc/76393350/Subpoena-on-p0isAn0n-OccupyBoston-BostonPD-d0xcak3 2. Facts: Unknown, as record is sealed. Boston Police had arrested members of Occupy Boston while they camped in Boston on public property in 2011. The ACLU defended Twitter account holders, seeking to unseal the records and oppose the subpoena. 3. Procedural History: Suffolk County DA sought disclosure of Twitter information through this administrative subpoena. 4. Issues: First Amendment, government secrecy 5. Holdings: none yet 6. Rule: n/a 7. Reasoning: n/a 8. Conclusion/Judgment/Order of the Court: Motion to unseal granted as to subpoenas which had already been disclosed to the public, and denied with respect to the rest of the case. Motion to deny subpoena granted as to Twitter accounts or hashtags @OccupyBoston, #BostonPD or #dOxcak3 and granted for @pOisAnON and Guido Fawkes 9. Law: Investigators used the ECPA-Stored Communications Act 18 USC 2703 to seek the Twitter records 35 Twitter/Cyber/Stalking Bibliography Interviews Murphy, Detective Joseph, Cambridge Police Digital Crime Unit, Interview, February 24, 2012. Salem, David Ira, Lead Attorney, For USA, Plaintiff, Office of the United States Attorney, Greenbelt, MD. Interview with author, March 16, 2012 Graphics Collateral Murder, screenshots from video, http://collateralmurder.com, US Army helicopter black box recording, Iraq, 2007 Diamante, Vincent (Creative Commons License), Photo: Anonymous with Guy Fawkes masks at Scientology in Los Angeles Books and Articles Adams, David, Why Do they Kill? Men Who Murder their Intimate Partners, Nashville: Vanderbilt University Press, 2007 Ellement, John R., Boston Globe, Twitter gives Boston police, prosecutors data in hacking probe, March 02, 2012 http://articles.boston.com/2012-03-02/metro/31112710_1_twitter-boston-police-lawenforcement Finocchiaro, Peter, Huffington Post, 2/3/2012, Anonymous Hacks Boston Police Department Website Over December Occupy Eviction http://www.huffingtonpost.com/2012/02/03/anonymous-boston-police-occupy-wallstreet_n_1252718.html Goodman, Amy, Democracy Now! July 11, 2011 Interview with David House: Exclusive: David House on Bradley Manning, Secret WikiLeaks Grand Jury, and U.S. Surveillance http://www.democracynow.org/2011/7/11/david_house_on_bradley_manning_secret MacKinnon, Catherine, Only Words, Cambridge, MA: Harvard University Press, 1993 Sengupta, Somini , New York Times, Case of 8,000 Menacing Posts Tests Limits of Twitter Speech, August 26, 2011 http://www.nytimes.com/2011/08/27/technology/man-accused-of-stalking-via-twitterclaims-free-speech.html Vinograd, Cassandra, Boston Globe, 12/26/2011, Hackers hit security firm and donate stolen funds http://articles.boston.com/2011-12-26/world/30556992_1_credit-card-anonymous-tweeted-client-list Zetter, Kim , Boston Globe, 5/20/2011, Video Captures Bradley Manning With Hacker Pals at Time of First Leaks, http://www.wired.com/threatlevel/2011/05/bradley-manning-in-boston Samarth, Avinash, ACLU Blog, 12/20/2011, ACLU in Court Today: Government Can't Use Border Checks to Avoid the Bill of Rights 36 Twitter/Cyber/Stalking http://www.aclu.org/blog/free-speech/aclu-court-today-government-cant-use-border-checks-avoidbill-rights Laws State Cyberstalking, Cyberharassment and Cyberbullying Laws http://www.ncsl.org/issuesresearch/telecom/cyberstalking-cyberharassment-and-cyberbullying-l.aspx#Laws Massachusetts General Laws http://www.malegislature.gov/Laws/GeneralLaws/PartIII/TitleI/Chapter265/Section43 Federal interstate stalking statute, 18 U.S.C. §§ 2261A (2)(A) http://www.law.cornell.edu/uscode/text/18/2261A Cases US v. William Lawrence Cassidy https://www.eff.org/sites/default/files/filenode/cassidy-order-121511.pdf, Case 1:11-dm-00003-TCB -LO Document 85 Filed 11/10/11 Page 1 of 60 PageID# 1023, US District Court For The District Of Maryland, 2011, No. TWT 11-091 (D. Md. Dec. 15, 2011) US v. William Lawrence Cassidy, Defendant. Criminal Case No. RWT 11-091 US District Court For The District Of Maryland 2011 U.S. Dist. LEXIS 145056; 40 Media L. Rep. 1001 In the Matter of the 2703(d) Order Relating to Twitter Accounts: Wikileaks, Rop_G; and BirgittaJ, US v. Wikileaks, APPELBAUM, GONGGRIJP, JONSDOTTIR, and TWITTER, Appeal: 11-5151 Document: 19, Date Filed: 01/20/2012, Page: 1 of 7. In the Matter of the 2703(d) Order Relating to Twitter Accounts: Wikileaks, Rop_G; and BirgittaJ Helen Remsberg, Administratrix of the Estate of Amy Lynn Boyer v. Docusearch, No. 2002-255, Supreme Court Rule of New Hampshire, 149 N.H. 148; 816 A.2d 1001; 2003 N.H. LEXIS 17 US v @GuidoFawkes – No real case name known to be assigned, records are sealed. Ongoing active investigation by Boston Police Department. DA Suffolk County of theCommonwealth of massachusetts, Administrative Subpoena, Commonwealth of MA vs. Twitter aka Trust & Safety, 12/14/2011, seeking “all available subscriber information” for Twitter accounts or hashtags @pOisAnON, Guido Fawkes, @OccupyBoston, #BostonPD or #dOxcak3 http://www.scribd.com/doc/76393350/Subpoena-on-p0isAn0n-OccupyBoston-BostonPD-d0xcak3 37 Twitter/Cyber/Stalking Other Major Twitter-related Cases Case Law US v Collins (Wikileaks) Social Media/ Technology Twitter and internet blogs Cooper v Twitter Patent infringement US Financial Services Modernization Act of 1999, Privacy Act of 1974, Consumer Protection Act, RSA chapter 358-A, 4th Amendment US ECPA-Stored Communications Act 18 USC 2701, 4th Amendment Ron Paul v John Doe Twitter 18 U.S.C 1030 4th Amendment Law Enforcement Expose privacy Courts Protect privacy Protect privacy against commercial exploitation Electronic Privacy Information Center ("EPIC") – Plaintiff Expose privacy speech unprotected EFF, Security Experts, Privacy Experts – Defendants Expose privacy Expose privacy, speech protected Civil Liberties Groups EFF, ACLU – Defendant Protect privacy Twitter Protect privacy NA Protect privacy Protect privacy Protect privacy As of March 15, 2012, Twitter appears in 132 cases in Lexis Nexis, including 97 cases at the District Court level and none at the US Supreme Court level. It is hard to find a case prior to 2010. In the majority of these cases, Twitter is mentioned only tangentially. Here are three in which Twitter plays a larger role or is the subject or a central issue: 1) UNITED STATES OF AMERICA, Plaintiff, v. DENNIS COLLINS et al - UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION-The 14 defendants in this case were indicted on July 13, 2011 on 15 counts of conspiracy to cause damage to a protected computer and aiding and abetting causing intentional damage to a protected computer, in violation [*3] of 18 U.S.C. § 1030. The indictment alleges that in retribution for PayPal, Inc.'s termination of WikiLeaks.org's donation account, the defendants and other members of a group calling itself Anonymous coordinated and executed distributed denial of service (DDoS) attacks against PayPal's computer servers using the "Low Orbit Ion Cannon" open source computer application the group makes available for free download on the internet. According to the indictment, in late November 2010, WikiLeaks released a large amount of classified United States State Department cables on its website. Citing violations of the PayPal terms of service, and in response to WikiLeaks' release of the classified cables, PayPal suspended WikiLeaks' accounts so that WikiLeaks could no longer receive donations. On September 1, 2011, the defendants made their initial appearance in this court and were arraigned. Each defendant consented to pretrial release under a number of conditions, including conditions that each defendant (1) not participate in or accessing Internet Relay Chats ("IRCs"); (2) not use or access Twitter; (3) designate the computer or computers that would be used while on release; (4) not delete any [*4] internet history; and (5) make available any designated computer for inspection by Pretrial Services. 1 2) COOPER NOTIFICATION, INC., Plaintiff, v. TWITTER, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE, patent infringement action, February 17, 2012, Decided 38 Twitter/Cyber/Stalking 3) RON PAUL 2012 PRESIDENTIAL CAMPAIGN COMMITTEE, INC., Plaintiff, v. JOHN DOES, 110, Defendants, UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, January 25, 2012, Decided. (1) false designation of origin, (2) false advertising, and (3) common law libel and defamation. Dkt. No. 1. Five days later, Plaintiff filed an ex parte application seeking to take expedited discovery from YouTube and Twitter so that it could learn the identities of the Doe defendants. Dkt. No. 5. Epilogue US vs. Mr. X (Michelle Bachmann) - IN RE GRAND JURY SUBPOENA NO. 11116275, NO. 11116275,Misc. No. 11-527 (RCL), UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, 2011 U.S. Dist. LEXIS 153989, Decided, February 23, 2012, Filed - This matter arises out of Mr. X's professed desire to engage in sadomasochistic activities with Congresswoman and presidential candidate Michele Bachmann. Mr. X posts to [Twitter], a social networking Web site that restricts users to messages of 140 or fewer characters. The grand jury issued its subpoena to Twitter on August 5, 2011, demanding that Twitter provide "any and all records pertaining to the identity of user name [redacted]." Mr. X posted the message, or "tweet," that provoked the subpoena and is the subject of this motion on August 2, 2011, at 9:32 pm; it no longer appears on the user's Twitter page. The tweet read: "I want to f[xxx] Michelle Bachman in the a[xx] with a Vietnam era machete." 39 Twitter/Cyber/Stalking Commonwealth v. Purdy footnote 4 Commonwealth v. Williams footnote 4 Criminal harassment- prosecuted in district court- misdemeanor- 2.5 year fine requires threats made to place person in imminent fear of death or bodily injury Stalking 40
