Friday, March 09, 2012

The Twitter Subpoena, the Machete and the Motion to Quash

On August 5, 2011, a federal grand jury in the District of Columbia issued a subpoena “to Twitter, Inc. on August 5, 2011, demanding that Twitter provide `any and all records pertaining to the identity of user name [redacted].’” In re Grand Jury Subpoena No. 11116275, 2012 WL 691599 (U.S. District Court for the District of Columbia 2012). For reasons we’ll get to, the opinion doesn’t identify the target of the subpoena, i.e., “the individual who utilizes the username [redacted] and the pseudonym [redacted] (hereinafter `Mr. X’).’ In re Grand Jury Subpoena, supra.

The target of the subpoena – Mr. X – moved to quash it, i.e,, have it declared invalid. In re Grand Jury Subpoena, supra. Before we get into his arguments as to why it should be quashed, I need to note why the grand jury was interested in his identity. According to the opinion, on “August 2, 2011 at 9:32 p.m.”, Mr. X posted the

message, or `tweet,’ that provoked the subpoena and is the subject of this motion. . . . [I]t no longer appears on the user's Twitter page. The tweet read: `I want to fuck Michele Bachman in the ass with a Vietnam era machete.’

In re Grand Jury Subpoena, supra. From the opinion, it’s clear that federal prosecutors were concerned that this was a threat to harm Bachmann, a member of Congress who was then a candidate for the Republican nomination for President.

“Upon receiving the subpoena, Twitter informed Mr. X of its existence and of Twitter's intent to comply unless [he] filed a prompt motion to quash.” In re Grand Jury Subpoena, supra. Mr. X then filed a motion to quash “pursuant to Rule 17(c) of the Federal Rules of Criminal Procedure.” In re Grand Jury Subpoena, supra. Under Rule 17(c), a judge can quash a subpoena “if compliance would be unreasonable or oppressive”.

The judge began the opinion in which he ruled on Mr. X’s motion by explaining that

The public, acting through the grand jury, `has a right to every man's evidence.’ U.S. v. Nixon, 418 U.S. 683 (1974). Although this right provides the grand jury with the . . . power to subpoena witnesses, this power is not absolute. . . . [A] grand jury may not compel testimony from an individual who holds a valid `constitutional . . . privilege,’ because compliance in such a scenario would be `unreasonable or oppressive’ for the purposes of Rule 17(c). . . . Mr. X has a right under the 1st Amendment to post on the Internet, and to do so anonymously. . . .

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.’ In re Grand Jury Investigation, 706 F.Supp.2d 11 (D.D.C.2009)

In re Grand Jury Subpoena, supra.

In opposing Mr. X’s motion to quash, the federal government said it

may be investigating the tweet as a violation of 18 U.S. Code § 875(c), which criminalizes the transmission `in interstate or foreign commerce’ of `any communication containing any threat to. . . injure the person of another. . . .’ The subpoena at issue identified a possible violation of 18 U.S. Code § 115, which criminalizes threats to `assault . . . a United States official . . . with intent to impede, intimidate, or interfere with such official . . . or with intent to retaliate against such official. . . .’

In re Grand Jury Subpoena, supra. The judge noted that the 1st Amendment “analysis is the same for either statute.” In re Grand Jury Subpoena, supra.

He explained that the “`compelling interest’ and `sufficient nexus’ requirements involve a straightforward inquiry into whether the information sought is truly necessary to the grand jury's investigation.” In re Grand Jury Subpoena, supra. He also noted that this

approach has the benefit of easy application in many cases. Here, however, Mr. X argues that the government lacks a real investigative need for his identity. The 1st Amendment limits the authority of the federal government to criminalize speech, and in this context would only allow prosecution of Mr. X if his tweet constituted a `true threat.’

In order for a threat to be `true,’ its speaker must mean `to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual. . . .’ Virginia v. Black, 538 U.S. 343 (2003). Mr. X argues that this is a purely objective test: Would a reasonable person view the statement as expressing a serious intent to cause harm? Since reasonable people viewing Mr. X's tweets do not know his identity, he posits that the grand jury need not know his identity to determine whether there exists probable cause to indict.

In re Grand Jury Subpoena, supra.

The judge found, though, that while an “objectivity requirement” may seem

prudent in some cases, an objective inquiry is uniquely problematic for anonymous threats -- particularly those made on the Internet. . . . The anonymity of a threatening communication introduces an element of ambiguity that renders an assessment of the threat's legitimacy difficult.

A reasonable recipient of such a threat simply may not know whether she ought to take it seriously. Although the recipient of a threat may always have some doubt about the likelihood of the threatened act materializing -- such as when the recipient is ignorant of basic details regarding the identified speaker—the recipient of a truly anonymous threat will rarely be able to assess its validity.

In re Grand Jury Subpoena, supra.

He also, though, found that even if objectivity were relevant, the grand jury would

still need to investigate both the objective effect of the supposed threat, and Mr. X's subjective intent to threaten at the time of posting, as the government would need to prove both. Accordingly, the grand jury would still be entitled to make an independent inquiry into Mr. X's subjective intent.

And the Court can easily see how information about Mr. X's identity could be relevant to a grand jury -- indeed, such information might prove dispositive of the probable cause question. The grand jury ought to know if Mr. X has a history of making threats to political candidates in other forums, or has stalked or engaged in other sinister behavior toward Ms. Bachmann, or happens to actually own a Vietnam-era machete. The government and the grand jury surely must know the identity of an individual making a threat in order to ascertain whether he intended the threat to be `true.’

In re Grand Jury Subpoena, supra.

So he held that the government had satisfied the “compelling interest” and “sufficient nexus” requirements. In re Grand Jury Subpoena, supra. But the judge also noted that he “has grave doubts about the likelihood of a grand jury returning an indictment in this case” because a true threat requires a 1serious expression of an intent to commit an act of unlawful violence’” and “[t]here appears to be nothing serious whatsoever about Mr. X's Twitter page”. In re Grand Jury Subpoena, supra. At the same time, he explained that the government must take seriously

all threats against a major presidential candidate such as Ms. Bachmann, unless and until it is satisfied there is no likelihood that the threat was legitimate. Part of taking a threat seriously may include attempting to convince a grand jury to return an indictment. And if a grand jury does return an indictment, it then becomes the role of the courts to decide the sufficiency of the indictment, see., e.g., United States v. Alkhabaz, 104 F.3d 1492 (6th Cir.1997). . . .

In re Grand Jury Subpoena, supra.

In arguing that the subpoena should be quashed, Mr. X claimed his use of the

term `I want to,’ as opposed to `I'm going to’ or `I plan to,’ renders the tweet a mere expression of desire as opposed to a threat. But expressions of desire can still place a recipient `in fear of bodily harm or death,’ Virginia v. Black, supra. If Mr. X were standing next to Ms. Bachmann with a Vietnam-era machete in hand, and had spoken instead of tweeted the message, Ms. Bachmann would take cold comfort in those first few words.

Wanting to do something is often, though not always, a predicate to actually doing something. . . . Use of the phrase `I want to’ may signify an inchoate wish, or may indicate a goal toward which an individual is actively working. Mr. X's use of the word `want’ instead of `plan’ cannot be dispositive.

In re Grand Jury Subpoena, supra.

Mr. X also said the judge should consider “the context of his tweets as a whole, and the ludicrous nature of the tweet at issue” in deciding whether to enforce the subpoena. In re Grand Jury Subpoena, supra. The judge did so, and found that Mr. X’s statement

is indeed a grammatical threat. What Mr. X is describing is the forcible insertion of an extremely sharp, real-world weapon into Ms. Bachmann's rectum, which, if performed, would undoubtedly cause serious bodily injury -- and likely death.

On its face, the statement expresses a threat of violence. And while the statement appears within a larger group of preposterous tweets, this does not automatically render the threat toothless. . . . Mr. X has tweeted a prima facie threat, and the government is entitled to determine whether it is a true threat.

In re Grand Jury Subpoena, supra. (Mr. X also argued that his tweet “was as absurd” as if he’d written “`I want to give Michele Bachmann a kick in the ass that will send her . . . to Mars’” or “`I want to put Michele Bachmann in a time machine and send her back to the middle ages where she belongs’”. In re Grand Jury Subpoena, supra. The judge found that these analogies were inapposite because “they exist outside the realm of physical possibility.” In re Grand Jury Subpoena, supra.)

Finally, the judge said he was

aware that this conclusion may seem to produce absurd results. Under this line of reasoning, the government could presumably subpoena any Web site any time any anonymous user made any post containing a mere scintilla of violence. The government could require Twitter to divulge the identity of a teenager who tweets, `My parents are so mean! I want to toss them in a ditch.’

Anonymity on the Internet would be sufficiently compromised to warrant this Court's concern. But we are nowhere near that slippery slope. Here, an individual has made a statement that threatens an established candidate for the presidential nomination of one of our two major political parties, and the government has a strong public interest in investigating that threat, however outlandish.

In re Grand Jury Subpoena, supra. He therefore denied Mr. X’s motion to quash. In re Grand Jury Subpoena, supra.

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