A subpoena in the TXTmob case could mean IMs, mobile text messages and even Twitter messages can be used in court.
Be careful of how and what you tweet on Twitter. It may come back to haunt you in a court of law.
In the wake of the arrest of hundreds of people in July 2004 during the Republican National Convention assembly in New York, the city's attorneys are prying for access to text messages used to chronicle the event, and possibly the crimes, in snippets.
The New York City Law Department on Feb. 4 subpoenaed Tad Hirsch, a doctoral candidate at the Massachusetts Institute of Technology, who wrote the code for the TXTmob text messaging service.
New York attorneys ordered Hirsch to provide records of the content of the messages exchanged on TXTmob during the convention, as well as the identification of people who sent and received messages, the time the messages were sent for the duration of the event, and a list of people who used the service during the event.
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The law department did not respond to eWEEK's request for comment. Hirsch, who developed TXTmob along with other artists and activists that operate under the moniker of the Institute for Applied Autonomy, confirmed the subpoena in a post on the TXTmob Web site
"I want to reassure all past and present TXTmob users that I take their privacy seriously, and that I am taking what actions I can to protect their civil liberties," Hirsch wrote.
Text Messages Just as Prone as E-mail
But what actions can Hirsch take? Attorney David B. Rankin, who Hirsch hired to defend him, said the city's subpoena is too broad and wrote that seeking information about TXTmob users who have nothing to do with lawsuits against the city would violate their First Amendment and privacy rights, according to a March 30 New York Times story
, director of the clinical program in cyberlaw at the Berkman Center for Internet & Society at Harvard Law School, told eWEEK that text messages are just as prone as e-mail to being subpoenaed by lawyers who believe they contain evidence to support their cases.
Malone, who as a former attorney with the U.S. Department of Justice, used e-mail to help the DOJ win the antitrust case versus Microsoft, is a fan of using e-mail as evidence in court.
He said the Federal Rules of Civil Procedure render electronic communications-from both defendants named in a lawsuit and third parties who may have information pertaining to the case-admissible in court.
However, Malone said it seems like the city is asking for all of the text messages sent by every user during the protest, which could involve people who had nothing to do with it, or who were involved with the protest but had nothing to do with the lawsuit.
Malone said that Rankin's claim that the city's subpoena may be too broad could hold up in court, with a judge deciding that the attorneys will have to narrow their subpoena scope to specific individuals present at the assembly that day. This would protect the First Amendment rights to privacy of people not named in the lawsuits.
"If the subpoena said, 'Here are the 48 named plaintiffs in these lawsuits. For those 48 plaintiffs, give us their text messages during the course of the protest,' that would probably be approved by the court. This raises a lot of privacy concerns that you don't get if you're just trying to get the things from the people involved in the lawsuit," Malone said.