Correction (Feb. 24, 2020): This story has been updated to correct the date of the NYPD subpoena.
On Feb. 13, the New York Post reported that the New York Police Department had issued a subpoena to Twitter for data from the account of the Post’s police bureau chief, Tina Moore. The subpoena, dated Dec. 9, 2019, asked Twitter not to reveal its existence for 90 days and commanded the social media company to comply by Jan. 10.
Twitter notified the Post in early February and confirmed that it had not complied with the request. When Post lawyers contacted the NYPD, it withdrew the demand.
A police official confirmed the subpoena was part of an effort to tamp down on unauthorized disclosures to the press. “We are conducting an investigation of a person who leaked crime scene photos,” the spokesperson said. During the period covered by the subpoena — Oct. 9-14, 2019 — Moore reportedly tweeted crime scene photos from a triple-murder in Brooklyn.
The subpoena raises obvious sensitivities in terms of law enforcement subpoenaing a journalist’s records to identify confidential sources. Were this a federal case, for instance, the subpoena would almost certainly have required attorney general approval. (The Justice Department abides by a set of internal guidelines that require notice to an affected member of the news media and attorney general approval for most investigative steps involving the press, among other protections.)
But the subpoena itself is bizarre for another reason: As has been widely reported, the legal authority cited by the NYPD includes both city law and a hyper-obscure provision of the USA Patriot Act, the federal law passed in the wake of 9/11 and the 2001 anthrax attacks.
Mysteriously relying on an obscure Patriot Act amendment
Much of the coverage has focused on the use of an “anti-terrorism” law in a subpoena to a journalist. Calling the Patriot Act an anti-terrorism law is understandable shorthand, but the reality is much more complicated. And unpacking those complications serves to highlight how many of the concerns raised around the nearly 20-year-old Patriot Act remain vital today.
First, it’s crucial to understand that the Patriot Act is not just — or even primarily — an anti-terrorism law, and the provision specifically cited by the NYPD is not an anti-terrorism provision. Rather, the Patriot Act was a grab-bag of expanded law enforcement authorities, many of which had been sought before by the Justice Department and rejected by Congress.
For instance, Section 213 of the Patriot Act expanded the ability of law enforcement to execute secret “sneak and peek” search warrants without prior notice to the target in all criminal cases, not just terrorism investigations.
The Patriot Act also gave additional powers to immigration officials and the Secret Service. And it expanded the FBI’s ability to use “national security letters,” administrative subpoenas that are issued without prior court review, to seize telecommunications and financial records in national security investigations. Though these investigations include international terrorism probes, they are not limited to terrorism.
In all, the Patriot Act created or amended many dozens of federal statutes across the U.S. code. The only senator to vote against the Patriot Act, Sen. Russell Feingold (D-Wisc.), noted the breadth of the Patriot Act in his floor statement against the bill: “We must grant law enforcement the tools that it needs to stop this terrible threat. But we must give them only those extraordinary tools that they need and that relate specifically to the task at hand.”
Second, the New York Post subpoena inexplicably cites perhaps the most obscure Patriot Act provision out there: Section 211. It’s so obscure that when you search the statute in Westlaw, you get a grand total of zero court cases, a few treatise entries, and only one law review piece that deals with the provision in any detail.
That note was written by none other than the author of this analysis when he was in law school 14 years ago. It has, ahem, not been cited once.
The NYPD’s mention of the provision in its subpoena is perplexing. Without getting too much in the weeds, the provision resolved a legal ambiguity that arose when cable providers started offering broadband internet service.
In the early 1980s, Congress established relatively strong privacy protections for information about cable subscribers and required notice to the subscriber before law enforcement could access those records. Many were concerned at the time about the sensitivity of cable viewing records.
However, when cable providers started offering internet services, they did not know whether the cable privacy law applied to law enforcement requests, requiring notice, or whether the more permissive Electronic Communications Privacy Act, or ECPA, governed. ECPA, by contrast to cable privacy law, permits law enforcement to compel the production of personally identifiable information without prior notice.
The Patriot Act resolved that ambiguity in favor of ECPA. Section 211 says that a cable provider may disclose personally identifiable information to the government without notice if it would be available from an internet provider under ECPA, though heightened protections for viewing records still apply.
What’s key here is that Twitter is not a cable provider. In this context, the NYPD should have been able to just use a subpoena to get the relevant information from Twitter as an electronic communications provider, and if it wanted to cite some legal authority, it could have cited ECPA.
So why cite the Patriot Act?
There are two possible answers, both troubling.
One, the NYPD may have cut and pasted text from a subpoena to a cable provider and included this citation to the Patriot Act by mistake. Given the sensitivities of using subpoenas to hunt confidential journalistic sources, any lack of rigor in the process is of concern.
Law enforcement should be using the correct laws when conducting any investigation but should be paying extra attention when investigations implicate press freedoms.
Again, were this a federal case, the Justice Department follows “news media guidelines” that require attorney general approval before the Department can issue third-party subpoenas for news media records related to newsgathering activities. The only exceptions are for subpoenas where the news entity has consented, for information unrelated to newsgathering, and where the subpoena was issued because the reporter may have committed, been the victim of, or witnessed a crime or other event (but where such status is not based on, or within the scope of, newsgathering activities). None of those exceptions apply here.
Two, the citation could have been deliberate, which would be even more worrisome. The Patriot Act is a complex, multifaceted law, and it has taken on a second life in the popular consciousness as a bogeyman representing expanded government power broadly post-9/11.
Still, despite references in Academy Award-winning films like “The Departed,” the vast majority of the public has very little knowledge of what the Patriot Act does or is (though one has to imagine that Twitter wouldn’t be fooled, making this all the more perplexing). If the NYPD deliberately included a frivolous citation to the Patriot Act in a subpoena hoping it would intimidate a respondent into complying, that would be the most disturbing element of this whole mysterious story.
NYPD officials did not respond to a request for comment.
Does this violate the New York shield law?
Some have suggested that the subpoena at issue would have been quashed if challenged under New York’s strong reporter “shield” law.
While it is true that New York law provides broad protections for first-party journalist records, the law is unsettled with respect to third-party metadata that could be used to identify confidential sources. The records here, particularly IP addresses, could likely be cross-referenced to metadata from the suspected leakers, and could conceivably be used to identify a person’s physical location.
Had the NYPD sought to enforce the subpoena and the Post moved to quash, the case could have presented courts with that unanswered question. Although it is certainly true that the logic behind New York’s relatively strong shield law should protect metadata even when held by third parties (which, in many ways, could be more revelatory than records held by the reporter), the question has never been answered.
Yet another extraordinary local leak hunt
It’s hard not to think about the Bryan Carmody case in San Francisco when reading about the Moore subpoena. This is yet another police department leak hunt. It’s yet another case where city officials admitted the move was probably mistaken.
Both cases have their extraordinary details. In Carmody’s case, law enforcement used a sledgehammer to attempt to execute a forced entry search warrant. In Moore’s case, the NYPD cited an obscure provision in the Patriot Act, either mistakenly or, worse, deliberately in an effort to intimidate a recipient into complying without asking too many questions.
In both cases, the investigation ultimately cratered — in Carmody, he successfully quashed the search warrants and here, when challenged by the Post, the NYPD withdrew the subpoena. Perhaps it’s true that all’s well that ends well, but everyone is continuing to take stark note of the initial overreach.
The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.
Photo by Dave Hosford