Yesterday the ACLU of Massachusetts and attorney Jeffrey Pyle of Prince Lobel Tye LLP filed a complaint in Suffolk Superior Court seeking access to court records that have been under seal for over five years. The secret court documents pertain to a law enforcement surveillance demand issued against an anonymous police critic’s Twitter account in December 2011, just days after the Boston Police Department dismantled and evicted the Occupy Boston encampment.
The surveillance demand at the heart of this long ordeal is called an administrative subpoena. Under a Massachusetts statute passed in 2008, prosecutors can demand call records, subscriber information, IP logs, and banking and credit card details without any judicial oversight or external accountability. All they need to do is promise the records are “relevant and material” to an ongoing investigation—a very low bar. The bar is so low, in fact, that prosecutors can use administrative subpoenas to obtain people’s private communications and financial records even when the target of the surveillance isn’t suspected of criminal activity.
Way back in December 2011, the Suffolk County District Attorney’s office issued one of these subpoenas on Twitter, demanding a wide variety of information about accounts that tweeted hashtags including #BostonPD. Despite the fact that the demand letter included a request that Twitter not notify the targets about the existence of the subpoena, Twitter followed its company policy and did so anyway. One person who received such a notification from Twitter contacted the ACLU of Massachusetts seeking representation.
ACLU lawyers tried to quash the subpoena on behalf of the anonymous Twitter user, but lost in court. Upon a request by the Assistant District Attorney for Suffolk County, the Court sealed the records in the case—including the ACLU’s brief.
Earlier this year, Boston journalist Shawn Musgrave visited the Suffolk Superior Court and asked for the case file in the Twitter subpoena case. Bafflingly, he was told no such file exists.
The lawsuit we filed yesterday seeks two things: first, that the Court locate the case file; and second, that the Court vacate the impoundment order and unseal the records in the case. The public has a right to know, once and for all, what the Suffolk County District Attorney’s Office thought was so important to keep secret all these years.
Stay tuned as this case develops, and for more information about the ACLU campaign to shine a light on the use of administrative subpoenas in Massachusetts.
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