DPS Twitter Subpoenas

 Posted on July 31, 2013 in Uncategorized

The San Antonio Express reports that Jason McMurray, a Texas Department of Public Safety Agent ((Is there really such a thing?)) out of Tyler sent an administrative subpoena to Twitter in San Francisco for records of two Twitter accounts, @deniseromano and @prisonforbush, including the IP addresses used from July 17 to July 19, 2013:

Twitter sent one of the account holders (and presumably both of them) an email notifying them (despite the subpoena's direction that it not do so) of the subpoena and giving them an opportunity to oppose it:

One of our core values is to defend and respect the user's voice....We are notifying you of this legal process in order to allow you to decide whether or not you will oppose the production of the requested information, either by filing a motion with the court where the legal process was issued or contacting the requesting party directly.Please be advised that Twitter is required to respond to this request by August 2, 2013....

If "defending the user's voice" is important to Twitter, it will look for legal reasons not to provide DPS with the information that DPS needs to connect the users with the speech ("terroristic threat" ((A terroristic threat requires a threat to commit violence; the two accounts' posturing ("Should we execute Perry by lethal injection or stoning?" "Think he'd like to be like jesus crucify him.") hardly seems a threat.))) that DPS is investigating. And if Twitter looks for reasons to ignore the subpoena, it will find them.

The administrative subpoena process is created by Section 21 of Article 18.21 of the Texas Code of Criminal Procedure:

Subpoena authoritySec. 15. The director of the department or the director's designee may issue an administrative subpoena to a communications common carrier or an electronic communications service to compel the production of the carrier's or service's business records that:(1) disclose information about:(A) the carrier's or service's customers; or(B) users of the services offered by the carrier or service;and(2) are material to a criminal investigation.

Section 18.21 doesn't create an enforcement method for DPS administrative subpoenas; neither, as far as I can tell, does any other law. There is no penalty for ignoring a DPS administrative subpoena. ((Contrast DPS administrative subpoenas with child-support agency administrative subpoenas, violation of which carries a potential $500 penalty.))

Given that the subpoena-that-is-not was not issued by a court, there is no "court where the legal process was issued" in which Twitter or the Twitter users can challenge the process. There is no opportunity for anyone to be heard on the matter.

Just like the "direction" not to disclose the existence of the subpoena (which Twitter chose to ignore), the subpoena itself is a meaningless command. With no penalty (the poena in subpoena) attached, a DPS administrative subpoena is more a polite request. Even if Twitter were a Texas company, served in Texas, it could-it appears-ignore the subpoena with impunity.

If a DPS administrative subpoena did have teeth, it would be of no effect in San Francisco. An administrative subpoena doesn't give any Texas court personal jurisdiction over Twitter.

Texas has a procedure-the Uniform Act to Secure Attendance of Witnesses from Without State ((Texas Code of Criminal Procedure Article 24.28))-for summoning witnesses from out of state. The process puts the imprimatur of both a Texas court and an out-of-state court (here, for example, a California court) on the summons, and allows the witness an opportunity to respond, before a witness can be compelled to travel to Texas to testify.

While the administrative subpoena doesn't pretend to summon Twitter's custodian of records to court in Texas, the Uniform Act is the only legal mechanism by which (without California or federal law enforcement doing its dirty work for it) they can force Twitter to produce its records in Texas.

If Twitter forces the Department of Public Safety to jump through the legal hoops required to compel Twitter to answer, the Twitter users will have a court in Texas in which to challenge he production. Otherwise, they will have to file suit to seek equitable (injunctive) or extraordinary (writ of prohibition) relief.

They can do so, if they can afford it, ((I hope that EFF or ACLU will get a team on it.)) but the cleaner, simpler, cheaper route that would be more true to Twitter's stated core value would be for Twitter to just ignore the subpoena until DPS does what Texas law requires.