10 January 2011

NYT article on "secret subpoenas" misses the issue entirely

This article in the New York Times is, frankly speaking, terrible (emphases are mine):
THE news that federal prosecutors have demanded that the microblogging site Twitter provide the account details of people connected to the WikiLeaks case, including its founder, Julian Assange, isn’t noteworthy because the government’s request was unusual or intrusive. It is noteworthy because it became public.
For the Twitter request, the government obtained a secret subpoena from a federal court. Twitter challenged the secrecy, not the subpoena itself, and won the right to inform the people whose records the government was seeking. WikiLeaks says it suspects that other large sites like Google and Facebook have received similar requests and simply went along with the government.
This kind of order is far more common than one may think, and in the case of terrorism and espionage investigations the government can issue them without a court order. The government says more than 50,000 of these requests, known as national security letters, are sent each year, but they come with gag orders that prevent those contacted from revealing what the agency has been seeking or even the existence of the gag orders.
Let me rephrase the relevant parts into an explanation:
The government issued or obtained a secret subpoena (without a court order), known as a national security letter, to compel Twitter to provide the details of people connected to the Wikileaks case.
Uh, no. Not even close.

First, as both Christopher Soghoian and I have noted, it is not a subpoena, but a court order, and it makes a difference.

Second, as you can see below, the order is authorized by Title 18, United States Code, Section 2703(d).  National Security Letters are authorized by Title 18, U.S.C., Section 2709.  The difference is huge.  The Twitter court order (see below) is authorized by 2703(d) and signed by a federal magistrate.  Section 2709 National Security Letters are administrative subpoenas by the FBI and not signed by a magistrate or judge.

Third, there are distinct words in the order below:
...the Court finds that the applicant has offered specific and articulable facts showing that there are reasonable grounds to believe that the records or other information sought are relevant and material to an ongoing criminal investigation.
This is not just legal mumbo jumbo.  These words are carefully selected because they represent the legal standard required to issue a court order.  In fact, the "specific and articulable facts" standard of 2703(d) derives from the Supreme Court's decision in Terry v. Ohio, 392 U.S. 1.  A subpoena, even under 2703(d), would require a lower legal standard called reasonableness.

The entire article is based on the misunderstood claim that the Twitter court order is a National Security Letter administrative subpoena.  I am neither a lawyer, nor a journalist, but it doesn't take a genius to figure out that the New York Times misses the issue entirely.

Twitter 2703d Court Order
Post a Comment