NYPD Lied About National Security During An Attempt To Obtain A Journalist's Records From Twitter
from the IN-CASE-OF-REALLY-REALLY-WANTING-SOMETHING,-BREAK-GLASS dept
This is a lie. There's no way around it. I'm sure the NYPD will come up with some excuse for this, but it will probably take a lawsuit to obtain the underlying documents, if not the NYPD's internal justifications.
This all started with shooting in New York City. NY Post Police Bureau Chief Tina Moore obtained -- and tweeted -- graphic crime scene photos apparently leaked by an NYPD employee. Rather than limit itself to investigating the leak internally, the NYPD decided to drag the reporter into this.
The subpoena to turn over documents, provided to The Post by Twitter, directs the social media company to produce all device and contact information associated with the user handle @Tinamoorereport, as well as all the handle’s connection history between Oct. 9 and Oct. 14.
During that time, Moore obtained and tweeted a gory crime scene photos from a dice-game shooting in Brooklyn that left four dead and three injured. Those photos appear to be at the center of the NYPD subpoena.
This isn't just sort of wrong. This is very wrong. The state's shield law explicitly says this sort of thing isn't allowed.
New York’s Shield Law codifies the privilege, arising under the First Amendment, that protects professional journalists from compulsory disclosure of confidential sources contacted or materials obtained in the course of gathering information for public dissemination.
Under New York law a professional journalist is defined as one who is engaged in “….gathering, preparing, collecting, writing, editing, filming, taping or photographing of news intended for a newspaper, magazine, news agency, press association or wire service or other professional medium or agency which has as one of its regular functions the processing and researching of news intended for dissemination to the public…”
Maybe the NYPD thought it wasn't breaking the law because it sent the subpoena to Twitter, rather than to the journalist. Maybe the NYPD just didn't care. Either way, the state's law shields Moore from these demands for information. If the NYPD has a leak problem, it needs to handle it without threatening First Amendment-protected activities.
But it somehow gets worse. The NYPD cited two authorities in its subpoena [PDF]. The first is somewhat redundant: Section 14-137 of the New York City administrative code simply gives the NYPD the power to issue subpoenas. The second citation, however, makes no sense. And it's this citation that makes it a lie.
See also USA Patriot Act, P.L. 107-56, Section 211 codified at 47 USCS Section 551(c)(2)(D).
This isn't a terrorism case. This is a standard shooting case not tied to any suspected terrorist activity. But it appears the NYPD thought throwing that on the form would maybe allow it to gather all of the following with minimal protest from Twitter:
any/all detailed subscriber, profile, contact, billing and payment information; any/all associated email account(s)/ screen name(s)/ user name(s)/ domain name(s); any/all associated ISP/ESP provided or externally based storage account(s); any/all SERVER, CM, CPE, DHCP, GUID, FTP, IIS, Twitterpic address history and connection logs; any/all MAC or IP address history, length of service and connection logs related to this request for the account(s), subject(s), and any associated electronic device(s) using the following Twitter user name: @TinaMoorereport
It's a fishing expedition designed to give the NYPD additional entities to throw subpoenas at, presumably with the same nonsensical reference to the Patriot Act attached. It's unclear whether Twitter handed over this info. Whatever the case, it has actually made the pro-NYPD New York Post a bit less supportive of New York's Finest. An op-ed from the paper's editorial board says the NYPD should know better than to go after a journalist's sources… and it definitely shouldn't do this while pretending a normal shooting was somehow related to national security.
Unfortunately, the NY Post can't bring itself all the way around on the issue, which results in the incongruity of a city paper seeing actual abuse of a law it loves but still refusing to criticize the abused law.
We’ve been firm supporters of the Patriot Act from the start, even as its critics have warned that law enforcement would seek to abuse such extraordinary powers by applying it to cases that have nothing to do with national security.
Now the NYPD — or its lawyers — has just given those critics some powerful fodder, undermining a law that helps keep this terror-target city safe.
Yes, people who abuse easily-abusable laws are bad. But bad laws that lend themselves to abuse are bad too, whether or not anyone gets around to abusing them. That's the hard truth the Post will have to face at some point. But I guess the wholly-unjustified targeting of one of its reporters isn't the "road to Damascus" moment it's looking for.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: 1st amendment, abuse, leaks, nypd, patriot act, shield law, subpoena, tina moore
Companies: ny post
Reader Comments
Subscribe: RSS
View by: Time | Thread
Gotta disagree with Tim on this one
I think where some of the narrative gets lost is the fact that she posted "gory" crime scene photos.
The shield law protects journalists, specifically as you cited, from correspondence, pictures, etc.
"...in the course of gathering information for public dissemination."
I think specific part is key. Under "normal" circumstances, would any paper post pictures of a shot up, bloody body???
And, at what point in the investigation did she receive these? Was it some cop that really shouldn't have taken those photos? i.e. Not a "CSI" tech??? Like, did he take them with his phone because he thought it would be a hoot?
Is that what the NYPD is trying to determine??
[ link to this | view in thread ]
Why aren't we surprised?
The NYPD has considered itself above the law for many years. This is just one more example. The really egregious actions are hidden so deep they will never surface.
[ link to this | view in thread ]
The NYPD should have investigated its own employees long, long before it ever went after a journalist. The NYPD also should have never gone after a journalist in the first place.
[ link to this | view in thread ]
Nah, the really egregious actions are carried out in broad daylight but never punished beyond a slap on the wrist (if that). Just ask the family of Eric Garner.
[ link to this | view in thread ]
The simple fact is, the police LIE!!! They will lie to get you to do what they want. In fact, the courts go along with this.
https://www.copleyroth.com/criminal-defense/why-can-police-lie-to-you-but-you-cant-lie-to-them/
htt ps://www.njmoorelaw.com/10-ways-police-can-lie-to-you
[ link to this | view in thread ]
I'm not following. Did the NYPD say it was terrorism? Is the quoted section of PATRIOT one that deals specifically with terrorism? Because people were warning, even before this law was passed, that non-terrorists would be affected by the law. Are you surprised?
[ link to this | view in thread ]
Re: Gotta disagree with Tim on this one
If the NY Post has the sense of taste that allows it to print gory photos, then they publicly display where their morality lays ($$$$$$). That sensationalism is not illegal, poor taste maybe, but not illegal.
The "normal" circumstances you mention is what investigative reporters do normally, and then they write the story and publish it along with graphics when available. Just as the source of the photo is immaterial, it does not matter who the photographer was (unless they are claiming copyright or seek credit) it still became a part of the record, which someone from NYPD released to the reporter.
All of what you are saying is that the NYPD should be investigating itself (which they have a very poor track record at) rather than someone outside the department.
Remember, when you point your finger at someone, there are three pointing back at you.
[ link to this | view in thread ]
Re:
People have been trying the "Maybe [I] thought [I] wasn't breaking the law" defense since police were invented. Someone, it never works for anyone outside the government.
[ link to this | view in thread ]
Re:
Isn't the Patriot Act federal law? Since when is the NYPD authorized to enforce federal law?
[ link to this | view in thread ]
Read it again
While it is wrong to classify this as a terrorism case in order to get a court order, I think you need to go back and read the NY shield law again. It only protects the journalist themself from being put in jail for refusing to reveal sources. The state IS allowed to investigate others for improperly leaking information. Twitter is not protected by the shield law.
[ link to this | view in thread ]
Re: Read it again
I think this is what my original point was in my comment. I think Koby stated it better than I.
[ link to this | view in thread ]
Re: Gotta disagree with Tim on this one
That is what makes it newsworthy. Persons walking around, not in the state of being shot up and bloody, are generally considered the normal circumstance.
Newsworthiness might easily be defined as deviation from "normal" circumstances. However, I do not recall any portion of your quoted law that distinguishes normal from abnormal circumstances, or limits the news gathering to what officials would like to see reported.
[ link to this | view in thread ]
The fact that the NYPD invoked the Patriot Act — a law passed in the aftermath of the September 11th attacks to make hunting terrorists and spying on Americans far easier than ever — implies the NYPD believes one of two things:
The case has some sort of ties to terrorism.
I’d bet money on #2 well before I’d do so for #1.
[ link to this | view in thread ]
The state should start with the NYPD, then.
[ link to this | view in thread ]
Re: Read it again
Twitter didn't leak the photos from the crime scene. They were a medium that was used to advertise the article in another medium known as a newspaper (with very loose definitions of newspaper). They don't need the shield law, only Section 230.
[ link to this | view in thread ]
Re: Read it again
Exactly. Here's the definition of professional journalist, from the NY shield law:
"(6) “Professional journalist” shall mean one who, for gain or livelihood, is engaged in gathering, preparing, collecting, writing, editing, filming, taping or photographing of news intended for a newspaper, magazine, news agency, press association or wire service or other professional medium or agency which has as one of its regular functions the processing and researching of news intended for dissemination to the public; such person shall be someone performing said function either as a regular employee or as one otherwise professionally affiliated for gain or livelihood with such medium of communication."
At best she's an aspiring journalist.
[ link to this | view in thread ]
But did you read it?
This has absolutely nothing to do with terrorism and anyone who says otherwise is full of it. Not everything in the PATRIOT Act is exclusively for use on terrorists.
47 USC 551(c):
[ link to this | view in thread ]
Re: Gotta disagree with Tim on this one
Yeah, I think I remember the part of the First Amendment where it says " Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; unless the press prints something that's gory, that's gross."
[ link to this | view in thread ]
Re:
Three: The NYPD hasn't thought about terrorism at all, but found a law that's convenient in this situation. Why pass up a chance at a power-grab?
[ link to this | view in thread ]
Re: Gotta disagree with Tim on this one
Due to you falling for the Fallacy Fallacy, your arguement feel like a strong deflection away from the core criticizms made by the article.
See, having gone through the citation stack, I agree the terrorism citation is weak. You noted a fallacious (and hyperbolic) arguement. But the authority cited in no way applies, and so the core criticizm that the law doesn't apply is still valid.
In the end they are trying to cite 18 USC chapter 121, to access stored communications via Title I of the Telecommunicaitons Act. Under §2703(b)(B)(i), they can access that information via an administrative subpeona if a separate Federal or State law allows for it. So they cite USA Patriot Act, P.L. 107-56, Section 211 codified at 47 USCS Section 551(c)(2)(D). The Issue is 47USCS Section 551 is discussing cable providers and subscribers. Twitter is not a cable provider under the cited authority and is not subject to subpoena under this authority.
[ link to this | view in thread ]
Re: Re: Gotta disagree with Tim on this one
Ah fuck. My browser signed me out. Associate any hate or praise for this with me.
[ link to this | view in thread ]
And that classification (or lack thereof) should give the NYPD an asbolute right to demand her records and personal info from Twitter…why, exactly? She didn’t leak the photos to herself. Neither did Twitter. If the NYPD wants to go after whoever leaked the photos, it should start by looking at the NYPD. Unless the NYPD can prove she knowingly committed a legitimate crime by publishing the photos, it shouldn’t have the right to investigate her for doing her job.
[ link to this | view in thread ]
It's no surprise that NYPD strands for Needing Your Personal Data
[ link to this | view in thread ]
Re: But did you read it?
That has what to do with the article? I don't see Twitter falling under the category of 'cable operator', nor the Twitter user being considered a 'cable subscriber of video programming', such that none of what you quoted would seem to apply.
[ link to this | view in thread ]
Re: But did you read it?
"a cable operator "
Does Twitter fall under that description? If so, that seems a rather vague and useless identifier as it's so broad. If not, then it doesn't seem that anything you quoted applies to them.
[ link to this | view in thread ]
Re: Gotta disagree with Tim on this one
So because it is not "normal", the correct response by NYPD was to invoke the Patriot Act?
[ link to this | view in thread ]
Re:
“Just remember. It’s not a lie . . . if you believe it.” - George Costanza, New Yorker
[ link to this | view in thread ]
Re:
Technically speaking, the NYPD could be considered a terrorist organization.
[ link to this | view in thread ]
Re: Why aren't we surprised?
They are not above the law since that implies some level of morality.
Instead it should be stated as outside the law with a moral level below that of a slime mold.
[ link to this | view in thread ]
Re: Gotta disagree with Tim on this one
"I think specific part is key. Under "normal" circumstances, would any paper post pictures of a shot up, bloody body???"
I'm suddenly reminded of an old, old pulitzer-prize-winning photo of a naked little malnourished child running, in tears, from a napalmed village. Also of multiple instances of when worse ended up on the frontpage of major publications.
Since when is a shot-up body NOT something which is relatively normal frontpage material?
[ link to this | view in thread ]
Re: Re:
"Isn't the Patriot Act federal law? Since when is the NYPD authorized to enforce federal law?"
I don't recall exactly but I have a dim memory of ONE of the very nasty things about the Patriot Act being that although it was a federal bill on paper it could be invoked by almost anyone within law enforcement or military office.
I look forward to being corrected on this since the idea of every US beat cop finding out they can invoke actual antiterrorist law every time they decide to shoot someone over Being Brown In Public is even more frightening than the current situation...
[ link to this | view in thread ]