Candidate for Pennsylvania Governor Subpoenas Twitter

Pennsylvania Attorney General Tom Corbett Subpoenas Identity of His Critics, for a Criminal Probe
(by Eugene Volokh, Lawkipedia, May 19, 2010)

TechCrunch reports on this subpoena issued to Twitter, seeking the identity of two twitterers that had apparently been critical of Corbett.

The striking thing is that this is a subpoena to provide evidence in a criminal investigation. If it had been a subpoena related to a civil libel lawsuit, then either Twitter or the anonymous poster could try to quash the subpoena, and then the court would have to decide whether the plaintiff had, at least, a legally sufficient libel case (i.e., the statements were factual allegations and not opinions, and there was some reason to think the factual allegations were false). If the plaintiff did have such a case, then the plaintiff would indeed be able to discover the identity of the defendant, so he could know whom to sue, and so he could get further factual information relevant to the case (such as what the defendant knew about whether the statements were true or false). That’s the emerging rule in many states (though there are important variations in detail). There are no Pennsylvania appellate cases on the subject, but I expect that Pennsylvania courts will follow this rule, as several Pennsylvania trial courts in fact have.

But this is a grand jury subpoena, so presumably the theory is that the subpoenas are relevant to some criminal investigation. My sense is that one should be able to quash such a subpoena as well, if there is no legally sufficient basis for the investigation, or for the conclusion that the information would be relevant to the investigation. Yet that requires us to know what is being investigated. It can’t be an investigation of libel, since Pennsylvania doesn’t have a criminal libel statute. In principle, since some tweets from the relevant twitterers might be read as accusing Corbett of criminal misconduct, the twitterers’ identities might be relevant so they could be asked for further evidence of such misconduct. But I have no reason to think that Corbett is indeed being so investigated.

So this looks like an interesting case; I hope Twitter does move to quash the subpoena, so we can get some better sense of whether the subpoena indeed has a legal basis. And if you have any further information you can share about the underlying investigation, please let me know. Thanks Steve Piercy for the pointer.

Subpoena seeks IDs for two Twitter accounts
(By Paula Reed Ward, Pittsburgh Post-Gazette, May 20, 2010)

The Pennsylvania attorney general issued a subpoena to Twitter earlier this month seeking the identities of two account holders who have repeatedly posted negative comments about Tom Corbett and his Bonusgate investigation.

The subpoena seeks the subscriber information for two Twitter accounts, bfbarbie and CasablancaPA. The subpoena, was issued by the attorney general's statewide investigating grand jury on May 6 and was posted Tuesday on the website casablancapa.blogspot.com.

The subpoena does not specify what crime is being investigated or who the possible defendant might be.

Though the subpoena asked that the records be produced at 8:30 a.m. on Friday, May 14, Twitter has not yet turned them over.

Timothy Yip, legal counsel for the social networking site, said the company protects user information and discloses it only in limited circumstances.

When permissible, Twitter will alert a user that a request has been made for their information and that the company might have to comply, he said.

"This policy is designed for maximum transparency and gives users an opportunity to object," Mr. Yip said.

Signor Ferrari, an alias used by one of three people who post to the CasablancaPA blog, said the group received notice of the subpoena from Twitter on Tuesday night.

"Our initial reaction was to publicize it," Ferrari said."This is not about protecting the identities of these particular bloggers. This is about the constitutionally protected right of Americans to criticize public officials anonymously."

The people who post at CasablancaPA are unsure what's being investigated. No one from bfbarbie could be reached for comment.

Kevin Harley, a spokesman for the attorney general's office, said because of secrecy requirements, he could not comment on the grand jury investigation.

"I can tell you it has nothing to do with criticizing an elected official," he said. "It has nothing to do with that."

But Ferrari wasn't as sure.

"He comments on the grand jury when it's convenient for him and retreats behind the cloak of secrecy when it's not."

Witold Walczak, the legal director for the American Civil Liberties Union of Pennsylvania, will assist in representing CasablancaPA in fighting the subpoena.

"The subpoena to Twitter for identifying information for people who have been critical of the attorney general raises grave concerns about the grand jury process to retaliate against political criticism and opponents -- a most serious First Amendment violation," Mr. Walczak said.

Generally, the next step in the process would be to file a motion to quash the subpoena and allow a judge to determine if the justification for seeking the information can overcome the witnesses' First Amendment interests, he said.

It is unclear what the timetable for that will be.

Ferrari would not comment on who runs the CasablancaPA blog or if they have any relationship to any of the Bonusgate defendants.

However, in a sentencing memorandum filed against former legislative aide Brett Cott in Dauphin County Common Pleas Court on Wednesday, Senior Deputy Attorney Generals Frank Fina and Patrick Blessington attributed the blog to Mr. Cott.

"Defendant has extensively and anonymously utilized a blog titled 'Casablanca PA: Exposing the hypocrisy of Tom Corbett' to defect blame and deny responsibility for his criminal conduct and to attack and malign the investigative and prosecutorial process, which resulted in his conviction," they wrote.

In an e-mail, Mr. Cott declined to comment.

"Tom Corbett is completely and without a doubt using the grand jury process in a way that is completely and without question, inappropriate," said Bryan S. Walk, Mr. Cott's attorney. "There is nothing to uncover that could be remotely connected to any criminal investigation. The timing of the subpoena smacks of attempts to intimidate him and enhance his sentence."

He would not comment on whether his client is associated with CasablancaPA.

A jury last month found Mr. Cott guilty of theft of service, conflict of interest and conspiracy to commit conflict of interest.

The prosecutors are seeking a sentence of 18 to 44 months -- much higher than the standard -- for Mr. Cott who was found guilty of three felonies in the Bonusgate corruption scandal. They cited a history of "dishonorable and deceptive behavior," and called Mr. Cott "a remorseless, defiant repeat offender who is apparently incapable of contrition."

He will be the first of three co-defendants to be sentenced in the case, which centers around the use of $1.8 million in public funds to provide bonuses to state employees who worked on campaigns.

ACLU helping guard Twitter posters' IDs in Pa.
(By MARK SCOLFORO, Associated Press, May 20, 2010)

HARRISBURG, Pa. " The American Civil Liberties Union is helping two people fight a subpoena seeking their identities after they posted anonymous criticism on Twitter of a Pennsylvania attorney general who's running for governor.

ACLU attorney Vic Walczak (WAL'-chak) said Thursday he will ask a judge to quash the subpoena if an agreement with Attorney General Tom Corbett's office can't be worked out.

Walczak says using courts to unmask political critics is unconstitutional retaliation.

Corbett is the Republican gubernatorial nominee.

A grand jury subpoena issued to Twitter Inc. on May 6 seeks information about users "bfbarbie" and "CasablancaPA." Both have criticized a political corruption investigation by Corbett's office.

A Twitter attorney says the company discloses user information only in "limited circumstances."

AG's Office Withdraws Twitter Subpoena
( Chris Cekot, abc27 News, May 21, 2010)

State prosecutors have withdrawn a subpoena ordering the social networking service Twitter to reveal the names of two bloggers critical of Attorney General Tom Corbett and his investigation into public corruption in the state Legislature.

The subpoena, which threatened Twitter's custodian of records with arrest for noncompliance, was withdrawn after former House Democratic staffer Brett Cott received a sentence Friday of 21 months to five years in state prison on felony theft, conflict of interest and conspiracy charges.

The state attorney general's office says it was trying to get information that would have shown Cott had no remorse for his crimes.

"The reasons for the subpoena were legal reasons that are allowed by law and had nothing to do with blogs or tweets that were critical of people. We have no interest in that whatsoever," Senior Deputy Attorney General Marc Costanzo said.

Witold Walczak, legal director for the American Civil Liberties Union of Pennsylvania, said he is happy that prosecutors dropped the subpoena, but maintains Corbett's office abused its power.

"It is now clear that the Pennsylvania Office of Attorney General neither followed lawful process nor had sufficient cause to seek the identities of the Twitter users," Walczak said.

Prosecutors maintain they had the right to investigate. If certain writings were linked to Cott, it may have had to a stiffer sentence.

"Whether or not someone's remorse is relevant or not, the courts and case law have said it is a relevant issue at time of sentencing," Costanzo said.

What is relevant here, according to the ACLU, is the First Amendment.

"We also hope that the people of Pennsylvania will now have learned that criticizing one's government officials is a valued constitutional right, that the right can be pursued anonymously," Walczak said.

Dauphin County President Judge Richard Lewis said he did not consider the subpoena when deciding Cott's sentence.

Twitter did not answer the subpoena and never released the names of the account holders.