The NYPD sent a warrantless subpoena for a copwatcher's Twitter account
hellgatenyc.com
hellgatenyc.com
Same for eg. doctors... yes, hospital can get sued, but if you, a doctor, a person, fucked up, you personally can get sued, get into trouble, lose your licence etc.
Same for truck drivers... drive too fast, kill someone, drive drunk, play flappy bird while driving... you personally responsible. Pilots, ship captains too.
etc.
Why the hell are all the public workers exempt from that? Cops, government workers, inspectors, etc.... in the best case possible, taxpayers pay for the damages and that's it. Why?! Someone wanted this subpoeana, his job is to know if s/he can actually request it, s/he signed his/her name on the paper... and then.. nothing?
Except the courts have since interpreted QI in such a way that there’s a Catch-22 scenario. Plaintiff needs to establish violation of a clearly established constitutional precedent to have standing, but since QI was only introduced in the 1960s, there’s very little case law proving that precedence.
While I understand the initial thought behind QI, it does seem the bar to holding law enforcement accountable is way too high. Time to adjust the laws (which requires a functional Congress, which we don’t have).
This is the thing that frustrates me the most about the current state of USA politics. The inability to functionally govern and reach bi-partisan support for a lot of meaningful issues renders us helpless to improve bad systems. Meanwhile, corporations continue to dilute the value of their products and services or jack up the price beyond the rate of inflation and no real regulation seems possible.
Case in point: Patriot ACT. SOPA attempts. Asset Forfeiture.
In contrast, see the most unruly place in Europe: Switzerland. Politicians bicker about inane things like updating language spelling, which caused huge uproar in 2006 [0] . 10 years later, you had the Cow Horns debate [1] of 2018, and its own sort of epilogue with the firestorm around cowbells [2]
You also have a weak executive with rotating posts of only 1 year. [3] So, nothing gets done (by design). And when policians work out a small miracle via bipartisanship, they still must jump the hurdle of direct democracy and win over the population. Moreover, anything can be reversed with a very small minority [3,4] calling for a referendum, anytime.
Yet Switzerland its the longest living democracy in the world with insanely high levels of development and prosperity.
[0] https://www.swissinfo.ch/eng/culture/chaos-fears-loom-over-s... [1] https://www.swissinfo.ch/eng/life-aging/podcast_campaigning-... [2]https://www.iamexpat.ch/lifestyle/lifestyle-news/cowbell-noi... [3] https://www.thelocal.ch/20211129/a-foreigners-guide-to-under... [4] https://en.wikipedia.org/wiki/February_2014_Swiss_immigratio...
I'm not so sure about that. Swiss public like all westerners seem to turn off their brains and vote for any authoritarian bullshit as soon as someone utter the word "terrorism" in 100km radius around them [0][1]:
"Voters have endorsed a series of measures allowing police to crack down on militant extremists and apply preventive detention methods, giving Switzerland one of the strictest anti-terrorism legislations in Europe ."
"The Swiss government has proposed new legislation aimed at preventing extremist violence and forcing people deemed a threat, including children aged 12 upwards, to be registered with the authorities. House arrest could also be applied to suspects as a last resort in some cases. The idea is to target people who have not yet committed a crime but who are considered to be a risk."
"The experts are concerned that the draft law’s new definition of “terrorist activity” no longer requires the prospect of any crime at all. They fear it may target “legitimate activities of journalists, civil society and political activists”."
[0]: https://www.swissinfo.ch/eng/politics/controversial-anti-ter...
[1]: https://www.swissinfo.ch/eng/politics/un-experts-criticise-s...
edit: spelling
The usual pattern is authoritarians do something stupid, democracies do something stupid but also erratic, then time passes then the democracies reorganise to try something new and the dictatorship gets stuck in a rut. Eventually the democracy tries something that works to the amazement of all observers. The authoritarians are still pushing the same tired old plan of failure.
Democracy doesn't have any secret sauce for making good decisions. Large groups of people are actually notoriously stupid. But they are much more responsive to situations where the government's official plan is obviously not working and the evidence is rolling in.
Unfortunately, even Switzerland eventually as we know it will collapse, as all governments do. I do not suggest the Swiss system of government is perfect or even great, only that it is considerably more resilient to breaking vs its Euro peers, for precisely the same reason that US republicanism/Democracy has lasted: Both were forged in the embers of of wildly disparate groups of people to agree to join into a republic/federation.
As a happy accident of those concessions, a lot of powers normally held by the bipartisan ruling body, were stripped away, and therefore, you have 2 democracies thus far that are winning in the test of time.
Also, regarding a canton not allowing vote by X - not going to condone it, but it makes my point. Other countries ban the vote by felons, or by certain classes of people. Yet, they are still called democracies. The only difference is that the agreement to strip voting power is bipartisan in 1 case, and in switzerland it was a niche who approves of it. The fact that Switzerland allows that level of extreme disagreement is the reason why the democratic confederation will persist, for far longer than other neighboring democracies that are not willing to allow the fringes of its population to experiment with self rule, vs conform with the bipartisan viewpoint.
[1] https://en.wikipedia.org/wiki/Women%27s_suffrage_in_Switzerl...
Power is extremely decentralized, not just down to the Cantons, but the counties and then the cities/townships (translated to rough US equivalents) also have a huge degree of autonomy. For any law or political decision that affects a Swiss citizen, it is almost guaranteed that it can be overturned be plebiscite (or in local issues by just showing up at meetings).
The late adoption of Women's suffrage is just a consequence of this system, which is biased towards inaction by design. On the plus side they have not had ideological extremists run their country, or had political violence on the level of some of their neighbors (Italy, Germany, France).
Aristoteles divided forms of government benefiting their rulers into tyrannies, oligarchies, and democracies as follows: one, few, many. (Analogous to these three you have monarchy, aristocracy, and polity, which are to the benefit of all). Many here does not mean everyone, otherwise you would have to let children and non-citizens vote as well. However in a later chapter he does break things down further and, for instance, establishes a spectrum ranging from polity to democracy. However the most extreme form of democracy on that spectrum would be unrecognizable to you: Every free citizen is the government, only slaves aren't. There are no laws. If that sounds like nonsense to you, it is. He was mostly firing shots at athen's democracy and not really be fair at all.
Also do note that here democracy is the selfish variant of polity, and would thus is considered the "bad kind", inferior to even monarchy and aristocracy, but still preferable to oligarchy and tyranny.
> Switzerland its the longest living democracy in the world
And, a bunch of Internet randos arguing about it here: https://www.theguardian.com/notesandqueries/query/0,,-80426,...
As an outsider, highly advanced democracies appear to argue about very small things because most of the big things are done right. See also: Japan, Netherlands, Norway, Canada, Finland, etc.
You mean highly biased? Switzerland's direct democracy is the antithesis of what the WEF stands for.
The financing of WEF is mostly big corps which are in large part headquartered in Switzerland, and is financed by the Swiss government directly.
Swiss direct democracy is irrelevant to WEF.
https://www.swissinfo.ch/eng/politics/a-visit-to-appenzell-i...
I'm quite glad this is not the case, I don't want to be governed by the populist progressive votes in the coastal cities.
This is why the world is ending.
France conquered Switzerland after its revolution and the current Swiss state only goes back to 1848.
Don’t let partisans gaslight you over their desperate struggles for the ring of power
yes, the sides are different, there are ways they are the same
That's an easy genericism.
In fact this particular issue under discussion is quite asymmetric. It's routine for a republican congress to block legislation that would otherwise pass (c.f. current bills for border security and Ukraine aid, our now-quarterly government shutdown jamboree, etc...). The reverse really is not true. I can't think of a notable bipartisan bill in the last decade blocked by a democratically-controlled government organ. Can you?
It's perfectly valid to have complaints about both parties, but not to invent frustrations about how they are the same.
I don't see how you're expecting things to work differently. Would we expect Democrat-sponsored legislation to fail for reasons apart from Republican opposition?
> The reverse really is not true.
I doubt that is a true statement, but assuming it is then logically that would just mean that Republicans only propose legislation after they have talked to the Democrats and confirmed they are willing to vote it through. But that would suggest the Republicans are avoiding opportunities to kick up a fuss which doesn't sound like the US Congress we all know and love.
> c.f. current bills for border security
Unrelated note but it is amazing to me that the US has been an entity for a couple of centuries now and doesn't have legislation already in place to control the border.
There is a popular perception that:
- If Democrats are in the minority and want to block a Republican bill, they will attempt to drum up public pressure, advocate on the floor and with individual legislators, etc.
- If Republicans are in the minority and want to block a Democrat bill, they will by any means necessary. They'll use various edge cases of parliamentary procedure, attach/amend/manipulate bills to poison them, etc. 'Playing dirty'.
I have no idea if this is actually true, but it's a common idea I've heard from both sides. The Democrats see it as a sign of their moral superiority, and the Republicans see it as an demonstration of conviction.
> use various edge cases of parliamentary procedure, attach/amend/manipulate bills to poison them, etc. 'Playing dirty'.
This in particular is the part that seems a bit ridiculous. I'm sure they technically do all that, but if they have the numbers to do these things they also have the numbers to just vote bills down. It isn't 'playing dirty'. And these bills are generally rider-filled messes regardless.
Maybe the argument is that the Republicans are secretly plotting against their own voters and trying to conceal it, which is the sort of theory that people on the right wing already believe. It is the right wing. One of the core political tenants is that politicians are corrupt, incompetent and untrustworthy. The right wing politicians don't really need to pretend, their voters already know - many of them go in with a mandate to try and shut the whole government down to try and limit the damage the Congress does. The bulk of voters on the right seem to be well aware by now that professional politicians, as a class, hate them. That is why there is this whole Trumpian revolt underway.
Any bill that maintains the current administration's position of simply letting people go completely free during their asylum waiting period is useless. Sure, people with legit claims might show up, but crimminals, which are the problem, are not going to come back for the hearing.
Most Americans don't mind immigrants or immigration at all and not even the idea of illegal immigration is really a problem. It's just the people that commit crimes that are the problem, it's one of the reason we see recent immigrants be so strongly in favor of border security, because the people they specifically tried to get away from are showing up too.
Not only are people caught crossing the border illegally not detained, but apparently even when they commit additional crimes it's too much for some cities and states to even keep them in jail for those crimes.
Indeed, there's a disconnect. I can't see anywhere in modern discourse that would have led you to believe that. Can you maybe cite the relevant policymakers or thought leaders or whoever that you are sure hold that opinion? Because I guarantee they don't actually exist.
What you just typed is an echo chamber point. It's not what your political enemies think, at all. It's what your political allies[1] want you to think your political enemies think. It's nonsense.
[1] Specifically the content-makers running the partisan media you consume.
If I'm your child's teacher, and your child doesn't do his homework and gets and F, you are not able to say to me "show me where my kid said he wouldn't do his homework!" , as a defense.
I won't call it a strawman argument since the grandparent post did say "inability to functionally govern and reach bi-partisan support for a lot of meaningful issues renders us helpless to improve bad systems", I was not making a point about bills passing
my only, isolated point, is that it is valid to be frustrated by the ways in which the parties are the same.
you decided to talk about one way you believe they are different. its fine if that was a misunderstanding of my point, but if you're not aware of any unproductive way the parties are the same, then this discussion isn't for you.
You made that "isolated" point in a subthread about gridlock and the inability to pass meaningful legislation. And in that particular argument to which you replied, you were wrong: the parties are not "the same".
Good rule of thumb is when a bill is blocked by one party, go find out everything that's in it and what parts the blocking party objected to. I guarantee it won't be the stuff the bill is named after.
Wikipedia has a fun example:
> The Wyoming House of Representatives Committee of the Whole amended House Bill 0085, a proposal to study the state's emergency preparedness, in order to kill the bill. The amendment would have required the state to consider purchasing an aircraft carrier (even though Wyoming is a landlocked state), purchasing fighter jets, establishing a military, initiating a draft, and creating a currency.
> Although a prior court decision had held that it was unconstitutional to release a police dog on a suspect who was lying down, the court in Alexander Baxter’s case granted qualified immunity to the officers because, it held, the prior decision did not clearly establish the unconstitutionality of the officers’ decision to release a police dog on a person who was seated with his hands in the air.
> Because no prior court opinion had similar facts, the appeals court judges dismissed Jayzel’s excessive-force claim, even though they believed Aikala’s decision to tase a potential domestic violence victim went “far beyond the pale” and violated the Fourth Amendment.
> In Jessop v. City of Fresno, police officers stole $225,000 in cash and rare coins when executing a warrant. Prior cases had held that it was unconstitutional for officers to steal, but those cases were factually distinct — involving the theft of different types of property under different circumstances. According to the appeals court, the officers “ought to have recognized” that it was wrong to steal the coins and cash, but “they did not have clear notice that it violated the Fourth Amendment” because prior court decisions “did not put the constitutional question beyond debate.”
Everyone else just has to get insurance, why can't they? If you don't have a downside for something you do more of it. There's even a name for this, moral hazard. This isn't a new phenomenon, so why are these people treated as exceptions?
And worse, any precedent created is interpreted so narrowly as to be ridiculous. If a cop violates your rights on Tuesday, well you are SOL if they do it on Wednesday because there is no precedent for that.
> The evolution of qualified immunity began in 1871 when Congress adopted 42 U.S.C. § 1983, which makes government employees and officials personally liable for money damages if they violate a person’s federal constitutional rights. State and local police officers may be sued under § 1983. Until the 1960s, few § 1983 lawsuits were successfully brought. In 1967, the Supreme Court recognized qualified immunity as a defense to § 1983 claims. In 1982, the Supreme Court adopted the current test for the doctrine. Qualified immunity is generally available if the law a government official violated isn’t “clearly established.”
If qualified immunity applies, money damages aren’t available even if a constitutional violation has occurred. If qualified immunity doesn’t apply, while the government employee or official technically is responsible for money damages, the government entity virtually always pays. So qualified immunity protects states and local governments from having to pay money damages for actions not yet deemed unconstitutional by a court.
Source: https://www.ncsl.org/civil-and-criminal-justice/qualified-im...
They did so by saying that 42 U.S.C. § 1983 (which was passed by Grant to fight the KKK) which was meant to allow people to sue for civil rights violations clearly intends to provide an exception for police officers if they acted in good faith (whatever that means; given that good faith here means enforcing a racist law often with extreme violence). But there's absolutely nothing in the actual law, the text passed by Congress or in the intent of Congress, that supports this reading. You can read the Section 1983 yourself:
> Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
A "judicial officer" by the way is a member of the court / judicial branch, not a police officer.
Because there's no law, qualified immunity is a total mess. Different courts and judges apply it very differently. For some it's simply a blanket defense for essentially any acts.
Ironically, Scalia and Thomas have both written dissents on the other side from the liberal judges at times, pointing out that there is literally no basis in law for qualified immunity and the Court should just drop it entirely.
This isn't just a matter of adjusting the law to clarify the interpretation of Section 1983, although that would help. It also requires a long-term realignment of the Supreme Court who shouldn't be able to wholesale write laws this way. That's not me saying this, that's Scalia in Crawford-El v. Britton "[the Supreme Court] find[s] [itself] engaged...in the essentially legislative activity of crafting a sensible scheme of qualified immunities for the statute we have invented—rather than applying the common law embodied in the statute that Congress wrote".
What's ironic about that?
Now liberals want to water down or eliminate qualified immunity, but they've lost all power on the court. And the current conservative justices are far more extreme than Scalia or Thomas. They don't want to eliminate it. That's irony.
Isn't a partisan and political Supreme Court with no limits or oversight that just makes up anything that it wants according to the party wishes great? This is an early sign of a failing state.
We really need to urgently depoliticize the Supreme Court.
Canada has done a lot to make sure its Supreme Court, which is equally powerful, doesn't become political. The US should do the same.
Which liberals on the Supreme Court want to water down or eliminate qualified immunity?
Something else must be a blocker here.
https://fivethirtyeight.com/features/why-its-still-so-rare-f...
Burden of proof remains the same as for a state-appointed prosecutor. And judges still get similar leeway in sentencing.
I find it so sad, how much of the country was united on this for months, and how little has actually happened in response.
The solution seems too simple.
That makes me think that the underlying thing causing this issue to plague American society isn't what you suggest.
There are many more of course:
- Police can sabotage the re-elections of politicians that oppose them, by doing their job worse and increasing the rate of crime.
- Courts tend to favor the police, inventing such concepts as qualified immunity
- An unfortunately large percent of the country is happy for the police to trample people as long as it's the people they don't like
- And more, which the article gets into some of. I'm not a huge 538 fan but its pretty decent
Because the regime wants their agents to blindly obey orders they push down, or foster to happen at lower levels. If this could suddenly come back and cause actual consequences for some of the regime henchmen, it could be that they might consider not obeying.
by definition, the incentives that exists in a state is not to do what is best for the people its supposed to serve. The bigger and wider a state becomes, the more perverse incentives exists, and since a regime can create its own laws and regulations, it will do so to protect itself first and foremost
The immunity doesn't reach all public workers. Only politicians and law enforcers
Those countries include the US btw. The rules are basically the same for all of them, that they have to have not just made a mistake, but made an unreasonable mistake. It is often hard to lose a license this way as you need to balance just shit happening, things going wrong when you made the right (or a reasonable) choice vs when you made a gross mistake. And of course, the conditions are based on decisions made a priori, not post hoc. Because post hoc is a dangerous game to play given so much more clarity.
e.g. for Doctors: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2628513/
Of course, this doesn't say anything about cops or the state of affairs here in the US. What surprises me more is that despite what many think, there is quite a lot of distrust for the police.
What someone needs to tell me is how most Americans have "very little" to no confidence in Congress and they keep getting elected. Its pretty universally agreed that no one wants a geriatric in the White House yet here we are. How we distrust all our institutions and yet continue to prop them up.
At this point I'm no longer mad at them. I mad at us. We are being enablers. Even down to local elections I hear so much uproar and low polling rates and yet watch these officials get reelected. I don't think it is foul play because I hear people talk about how they hold their nose while voting. City, county, state, or federal, it is all the same.
Clearly we've made our own bed, but we just don't want to lie in it. If you're going to half ass your job you can't complain about how shitty everything is. Before you go blaming others, take a long look in the mirror. I'm sure __you__ are better than that, just the way __you__ can't be manipulated by propaganda and how __you__ can't be tricked by scams. Clearly, we've been played. Clearly we're still being played. So stop blaming your neighbor or pointing to others until you look in the mirror. We all need to do it if we're going to get our shit together. Because we're all in this together, for better or worse.
But what I fear most is that because we'd rather stroke our egos to claim our own team is best we won't ever realize that it is this action that creates the radicals. It is my fear that we won't solve problems before they are problems. That we believe so much in "don't fix what ain't broke" that we won't ever perform basic maintenance. It is far more expensive to fix what is broken than to fix what isn't. My fear is we won't fix things until the streets run red. And that's my biggest fear, that we, the people, won't realize that the blood isn't just on the hands of the elites, but that it is on ours too. We are happy to play the mafia boss who has fully convinced himself and matter-of-factly asks "do you see blood on my hands?"
[0] https://news.gallup.com/poll/394283/confidence-institutions-...
In a typical police apprehension, there may be a second or less to draw your weapon and fire. Nobody would take the job if they had to be perfect or lose their freedom or life savings.
Speaking of life savings, most of the criminals they apprehend have nothing to lose. So maybe you're on to something. Let's hire police who are currently incarcerated and have no assets, family or wealth to lose. Then they can be subject to the draconian measures of your fantasy and worst case is they got a few months of freedom. Smart guy you are:)
X/Twitter notified the person, sent a copy of the the subpoena, suggested legal representation, provided recommendations, and defied the NYPD order of silence.
> The notification included a copy of the subpoena, which warned X not to tell Clancy of its existence. "You are not to disclose or notify any customer or third party of the existence of this subpoena or that records were provided pursuant to this subpoena," the document read.
> But X, following its own corporate policy, told Clancy anyway, and suggested he might want to get some legal representation to fight the subpoena, recommending the American Civil Liberties Union.
When the police dept wrote: "You are not to disclose or notify any customer..." is that a legal demand backed by law, or simply a request? I wish I knew more. I suspect it is a request, and that is why Twitter would ignore it. I am sure that Twitter has very conservative internal and external legal counsel to advise on these matters. Plus, there must be many, many of these requests from NYPD.
If it's not backed by a court order, it's a polite request.
But even when it's a court demand, companies have several different counter-measurements. For example, they can tell the court "we can't provide data because we don't have that data" (Signal does this), or "we do have that data, but extracting it is resource-intensive, so the court should pay up" (some of the "Twitter Files" were precisely about this), or straight up ignoring non-American court orders (this is or at least was Reddit's general policy).
While it’s certainly nice to have, we shouldn’t have an expectation that a private business to defend us from the corruption of the police. Like, that’s a much bigger problem that Twitter does or doesn’t do
It's not at all designed to protect the public; in the US the police don't even have a legal duty to protect the public. It's designed to enforce the law.
https://arstechnica.com/science/2023/12/cvs-rite-aid-walgree...
There should be consequences when large service providers fail to protect the rights of their customers. Walgreens/CVS are pretty close to a duopoly.
The police overreached here, and the only thing that protected the victim was, of all things, Twitter.
The police are supposed to be the good guys, but that obviously wasn't the case here. My comment was merely expressing surprise at the irony of the situation.
The NYPD may have pulled this request to avoid scrutiny, but they probably didn't pull all the similar requests that succeeded. The problem is that it's impossible to generate standing in the court if you can't know about their requests.
It seems like it would be in X/Meta/Alphabet's interest to get the question in front of a judge in order to require warranted subpoenas.
For the per se dispute, absolutely. That's what you went to court to get.
If your demand caused damages, that's a separate controversy that isn't cured by withdrawal.
Defendant: J/K!!!! lulz!!!!!
Judge: case dismissed! <bang>
It probably depends on how wealthy the defendant is (if an individual), or the size of the the org defendant represents. If you're a LEO type of org, then I'm honestly shocked the judge didn't just dismiss with prejudice from the off
The distinction is that blackmail and extortion are crimes. It's the act of sending them itself that is the crime, not the demand. If you withdraw it, it doesn't matter, because the crime already happened.
There's no criminal statute here. The NYPD asked for something. Someone challenged it as being "not something the NYPD is allowed to ask for". The NYPD said "never mind, you're right". That's the end of the story. If you want the law granting the NYPD the power to issue subpoenas to be withdrawn or modified, the solution is to elect representatives to do that for you. Courts are just the backstop for this process, and an imperfect one.
That said, if a law was passed to make "knowingly or recklessly false warrants" a crime, that might be one way to approach the issue.
https://caselaw.findlaw.com/court/us-dis-crt-e-d-nor-car-sou...
You can actually bill police departments for that. It's not as common when it comes to basic records, but it's not uncommon when it comes to wiretaps/trap and trace.
Takes me two seconds to throw out the junk mail in my mailbox. Sometimes I save it as firestarter.
How is a “warrantless subpoena” any different? (Maybe it is, actually asking here).
Also possible to separate the streams of input. Maybe can’t force it, but having a “warrants” stream that gets priority triage and another for “other” that works a lot slower because it’s mostly garbage. Can create a shit list for those that abuse the “warrants” stream.
I'm not, at least in the extent I've participated in subpoena response and had conversations with an employer's counsel in that connection.
If you're b2c and past a certain point of scale, it just becomes an overhead, a bit of a pain but no big deal. That's if you respond promptly and completely - any company that screws around with something credibly subpoena-shaped is taking a dangerous risk; that's a great way to draw the interest of courts ("contempt of"), and SDNY in particular is known for being quite proddy.
It’s not an “illegal” subpoena, police can try and ask whatever they want, but I’m assuming there’s no penalties for ignoring.
But I asked a question, maybe there are exceptions and you must respond anyway despite lack of warrant.
While there could be reasons considered valid to respond to an informal request (some urgent life/safety matter), the police can and do lie, but are less likely to do so to a judge.
Lived in a building once where management agreed to police installed warrantless spycams in some hallways and told management it was to investigate a car theft ring, but it was some guy (edit:) storing drugs and keeping to themself.
Sadly, I don’t think there’s any kind of post-review of urgent informal requests to assess validity/accuracy of the request with consequences.
Also, like the article explains, it is possibly illegal for them to send this warrantless subpoenas. Further, they are not simply "asking," as you describe - the text of the subpoena starts off "We command you," and ends with the explicit threat of legal action if twitter fails to comply.
Cooperation obtained under false pretences may be fraud.
Privacy laws exist, with exceptions for illegal behavior. It may well be illegal to give data to cops unless you have user permission or a warrant (IANAL).
It's not the cameras that GP is complaining about, it is the lack of warrant.
It's also odd that the PDF redacted the name of Michael Gerber, the Deputy Commissioner of Legal Matters, when the NYPD issued a press announcement naming him (https://www.publicnow.com/view/A505A75813F7F2F483905D075F4AD...) and tout him on their public website (https://www.nyc.gov/site/nypd/bureaus/administrative/legal.p...)
It seems that either Michael Gerber, the NYPD Deputy Commissioner of Legal Matters, is clueless about the law, which reflects poorly on his Harvard Law alma matter, or Michael Gerber, the NYPD Deputy Commissioner of Legal Matters, was illegally using threats and coercion and false subpoenas to investigate political opponents and chill free speech.
Either way, this does not reflect well on Michael Gerber, the NYPD Deputy Commissioner of Legal Matters, nor the Harvard Law school from which he allegedly graduated.
The most common run-in I have with them is standing at a crosswalk or sitting in an Uber and watching them put on the sirens and move everyone out of the way just so they don't have to sit in traffic. I'd estimate seeing this happen, oh, I don't know, about a thousand times while simultaneously I have never once seen them pull anyone over for any kind of traffic or moving violation.
The NYPD would legally fight to retain this power to the bitter end.
This is where groups like the ACLU come in.
Doing this on behalf of the client would be the absolute wrong thing to do. Any lawyer that would do that should be disbarred.
The ACLU would only have the opportunity if this kind of subpoena was used on the ACLU itself.
This is not true. Check out the American Bar Association Rules of Professional Conduct 1.2 (https://www.americanbar.org/groups/professional_responsibili...).
Broadly speaking, lawyers are bound to the client's wishes, and are expected to represent their client the best they can under those circumstances.
If a lawyer's client wants to sue the NYPD, even if the chances of winning are slim, they can represent that client (barring some niche scenarios).
This is how the ACLU typically works. They find someone with standing who cares enough to bother with following the lawsuit through and they represent that person.
The client isn't the only person with things to lose here, it's their sources who are at risk if he loses the case.
The client wouldn't pursue it for journalistic ethics reasons.
You said it would be grounds for disbarment.
I think it also presumes that attorneys fill a role that they do not.
The law, and attorney professional conduct, presumes that litigants are reasonable, rational people who are entitled to weigh their own pros and cons and arrive at a conclusion. Attorneys are there to provide context and information, but are not the decision maker. Note that the 6th Amendment guarantees a person the right to counsel, but specifically says the defendant has the right to know the charges, face their accuser, etc.
You can see this in the competency standards for trial from Dusky v US:
"It is not enough for the district judge to find that 'the defendant is oriented to time and place and has some recollection of events', but that the test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding -- and whether he has a rational as well as factual understanding of the proceedings against him."
Or Godinez v Moran:
"The standard adopted by the Ninth Circuit is whether a defendant who seeks to plead guilty or waive counsel has the capacity for "reasoned choice" among the alternative available to him."
Edit: Courts are also aware of and can accommodate sensitive sources. The ACLU could also drop the case at any point if discovery would require disclosing sensitive sources, same as NYPD have done.
This is a novel take. Were this me, I'd require my lawyer pursue the NYPD for the cost of the original legal fees. They would not refuse.
Sure, and I'd expect them to explain that to me. But to outright refuse--I would have a serious issue with that.
EDIT: Just asked. Friend, my counsel and partner at a Big Law firm. He'd absolutely do it.
"I can no longer represent you in this case."
As for your friend, I'm not even sure I care unless this lands squarely in his practice area. Once it gets to court NYPD's lawyers could just say some handwavey "homeland security" shit and your judge might just piss their robes and rule against you.
In civil matters it's always better to seek agreement outside of court.
Even if the client asks for that?
He'd be giving up his sources and even opening himself up to the risk of them investigating him and charging him with other crimes.
Any intelligent attorney would advise their client against it.
Once you go to court anything can happen and either way it's prohibitively expensive.
People in my own family have done nothing wrong and lost everything they owned fighting in civil court over smaller stakes than this. Going to civil court is the absolute last resort. Nobody wins but the attorneys.
Going to court is only worth it in criminal cases and insurance/liability cases.
/s used to work at one of the largest lawfirms in the US.
This is how they actually work.
Sure. The point is the ACLU doesn't wait to get sued itself. That would be stupid. It finds test cases and supports them with external resources.
So while the police may have broken the law, caused damages, etc, and whatever, other police aren't going to pursue it and neither will most district attorneys.
https://www.nytimes.com/2012/03/14/nyregion/whistle-blower-p...
That was a cop collecting evidence on fellow cops. It's obviously criminal. But the NYPD is sued all the time, and I haven't seen evidence of them systematically acting vindictively against either plaintiffs nor their attorneys.
Why is that relevant? Are you implying that this somehow justifies the gang behavior?
Explaining, not justifying. Gang-like organisations react more forcefully to perceived betrayal (one up from competition) than bog-standard adversarialism.
Not sure what you're getting at. I'm asking for evidence of someone suing the NYPD in the manner this journalist might be harassed in the manner a cop collecting evidence on other cops was.
That'd be a full time job. Over the last 15 years, NYC has been paying out a million dollars per WEEK for NYPD abuse of power lawsuits alone.
Why would a DA pursue it? Is there an allegation of a crime by the NYPD?
This looks like a civil matter. The NYPD is sued for--and pays out on--civil damages all the time.
> Clancy, for his part, said that he's undaunted, and that the NYPD has no business rummaging through his social media content and metadata.
> "Why would you use a shower curtain and close the bathroom door when you take a shower, if you have nothing to hide?" he asked. "Because it's none of your business, that's why. What the police might want to know and what they have a legal right to know are two different things."They all seem to treat it as a one-off event, when it doesn't seem to be. I can guess at the difficulties involved, but the question isn't raised and the issues aren't examined.
Also wtf kind of email is IntelSubpoenas@nynjhidta.org? I guess it probably means "New York New Jersey High Intensity Drug Trafficking Area" but why do they need their own domain? Why not just use an NYPD email?
Weird stuff.
https://lede-admin.hellgatenyc.com/wp-content/uploads/sites/...
They're dealing with the primary monetary fault line of organized crime and gangs.
And drug enforcement is their big cover for almost all abuses.
We need to decriminalize and end the drug war, if only just to stop the Mexican drug gangs.
To take it to a higher geopolitical level... China is likely undergo a demographic collapse soon and possibly one due to totalitarian government paralysis. The geopolitical significance of petroleum is vastly decreasing with EVs American bakken shale oil supply and alternative energy. That means the u.s probably will not be policing the oceans as much to enable free extended trade and logistics lines.
So we will be onshoring manufacturer, and likely a great deal of it in Mexico.
So we're going to need to solve the Mexican drug problem and our drug war in a constructive manner in the next decade
* https://www.nbcnewyork.com/news/local/nypd-stationed-oversea...
* https://archive.is/ZOYiw / https://www.nytimes.com/2018/08/21/nyregion/terrorism-nypd-i...
On the one hand, municipality to municipality (Antwerp to NYC) makes sense since both will have similar challenges in law enforcement activities.
On the other hand, this seems to be a channel that bypasses the Feds, who are ultimately the ones with the National Security purview, and most/all foreign threats to NYC will pass through the Feds jurisdiction (border control, customs, coast guard etc)
After 9/11, it seems fair for New York to want to take anti-terrorism into its own hands, even if that duplicates certain federal functions. (I'm not arguing it's effective. Just that it makes sense for the city to not entirely trust the Feds.)
Presumably to coördinate intelligence? (I'm guesing.)
If you don't trust the Feds, your options are to partner or duplicate that capability in house. Partnering seems the cheaper option.
Demonstrably, not the NYPD's.
> US does not allow foreign municipalities to install police departments on US soil
Sure. But those foreign countries allowed them. And again, nobody is granting the NYPD extraterritorial policing powers. They're there to collaborate on intelligence.
> Demonstrably, not the NYPD's.
Is it demonstrable? Allow me to skeptical until New York's Finest crack a case that the NSA, CIA, and FBI can't handle.
This looks like a cushy assignment for some people with union pull.
https://www.fbi.gov/investigate/terrorism/joint-terrorism-ta...
You want an actual relevant link? Here you go!
https://www.nytimes.com/2018/08/21/nyregion/terrorism-nypd-i...
>Other law enforcement and intelligence agencies, particularly the F.B.I. and C.I.A., have opposed the department’s overseas deployment. Mr. Kelly was criticized for sharing information about terror attacks in London in 2005 and Mumbai in 2008. Federal officials have also complained about the police “freelancing” their own terrorism investigations.
What are these "terrorism" investigations? Jewelry store robberies.
>But Chief Galati said the mission of the program had shifted over time, and these days his officers were investigating other crimes. “As it evolved from terrorism, we started to see more and more criminal cases coming up,” Chief Galati said. He cited an instance where some of the $800,000 worth of watches taken in a December 2017 gunpoint robbery from the A. Lange & Söhne boutique on Madison Avenue were tracked down to a pawnshop in Amman, Jordan. “The world is a small place,” Chief Galati said.
It's demonstrable that foreign intelligence is within the NYPD's purview given they're doing it. No claims were made about efficacy.
Also, I don't think the NYPD aims to crack cases the Feds can't. It's more about directing resources towards areas they believe the Fed's aren't monitoring effectively or won't commit the resources they believe it deserves. If something were picked up, the NYPD would loop in the Feds.
No. If an animal control officer starts delivering mail, that doesn’t mean mail delivery is now part of the Department of Fish and Game.
There is a terms for this: a bureaucratic overreach, wasteful government spending, a distraction.
What do you think a city cop can even do in a foreign country? What resource does the NYPD even have?? Who is going to say, “I can’t talk the local cops, or the local intelligence agency, nor can I tell the Americans directly, but maybe i can tell some foreign country’s local cop! But I can’t just tell them directly. If only this foreign country’s local police had an office here!”
An NYPD cop has less training and less resources than someone working for a federal intelligence agency. That’s just the truth. It’s a post-9/11 grift founded by former police commissioner, convicted felon, and embezzler, Bernie Kerik.
That’s what it is. It’s obvious, and it was obvious almost 23 years ago. Come on! The NYPD Israeli office isn’t even in the Israeli capital. It’s in a beach resort!
https://en.m.wikipedia.org/wiki/Pegasus_Project_(investigati...
You see things like this and wonder how that money escapes scrutiny when everything else is debated endlessly.
https://www.cbp.gov/travel/preclearance
> Today, CBP has more than 600 officers and agriculture specialists stationed at 15 Preclearance locations in 6 countries: Dublin and Shannon in Ireland; Aruba; Bermuda; Abu Dhabi in the United Arab Emirates; Nassau in the Bahamas; and Calgary, Toronto, Edmonton, Halifax, Montreal, Ottawa, Vancouver, Victoria, and Winnipeg in Canada.
The French Border Police are quite different in attitude to the UK Border Force.
(in the US, even if transiting to another country you are required to clear US customs.)
To my knowledge, the NYPD doesn't patrol outside its borders. The international offices are for coördinating intelligence.
All the rest is just bullshit and security theater (Which NYC is exceedingly good at.)
Notify the Feds.
(Though I guess we can shoot down planes now? [1])
[1] https://nationalpost.com/news/nypd-able-to-shoot-down-planes...
This is more than total military expenditure of Romania.[1]
A $115 million of this 5.3 billion was used to settle lawsuits last year.[2]
[0] https://council.nyc.gov/budget/wp-content/uploads/sites/54/2...
[1] https://en.wikipedia.org/wiki/List_of_countries_with_highest...
[2] https://www.nytimes.com/2024/02/29/nyregion/nypd-police-misc...
[1]: https://comptroller.nyc.gov/newsroom/nypd-overspending-on-ov...
It has a more complicated remit than most countries' militaries. (For example, the NYPD functions as the UN's ersatz security force.)
Their budget is roughly equivalent to 2020 Ukraine's.
Get rid of the UN and the NYPD can be smaller.
And it's not just the UN. New York is a second diplomatic capital. So you're also replicating D.C.'s consular security force. This is before we get to it being a financial and cultural centre, to say nothing of the largest city in America and a precedented target of international terrorism.
> budget is roughly equivalent to 2020 Ukraine's
New York City's economy is double the size of Ukraine's pre-war economy [1][2]. Were it a country, it would sit between Turkey and Indonesia, eclipsing even the economy of Saudi Arabia [3].
[1] https://en.wikipedia.org/wiki/Economy_of_New_York_City#Gross...
[2] https://en.wikipedia.org/wiki/Economy_of_Ukraine#Main_econom...
[3] https://en.wikipedia.org/wiki/List_of_countries_by_GDP_(nomi...
Chicago and LA are roughly #60 on the list of the world's militaries.
And I'm contextualising it. Given its population and economy, the NYPD should have the resources of similarly-sized nation-states.
> we're the third highest in percent of GDP spent on cops
America is definitely over-policed. I'm not sure New York is.
I just can't say I agree with this statement. NYC itself being part of an even bigger nation-state should mean that a number of the responsibilities that fall under the purview of your example similarly sized nation-states militaries/establishments are likewise handled by NYC's parent state, allowing for efficiencies that free up resources better spent on other programs. On its face the duplication of effort on several levels seems wasteful.
E: So my thesis is that I agree that NYC should have the resources of similarly-sized nation-states, however they could be better apportioned.
By $ it seems almost certainly; by capability perhaps not.
I never cited either figure? I'm comparing the sizes of GDPs.
[0] Yeah yeah, "one country two systems", whatever, it's still a relevant comparison.
I wonder whether the media is going to write hysterical propaganda pieces about this, like they did with chinese 'international offices'.
With the media, it's always accuse others of what you are doing.
The NYPD's international offices do not have policing powers. They can't arrest people. They can't search or seize suspects. They're there with the full knowledge and coöperation of their hosts.
The Chinese police departments were exercising police powers on foreign soil without the host countries' permission. Night and day.
I grew up speaking French, English and a variant of German and have trouble not reading the double-o as a long vowel. After that autocorrect picked up on it and it doesn't bother me enough to change it.
https://www.pbs.org/newshour/politics/what-are-chinas-allege...
Its not hysteria at all.
no, there is a lot of law and history to make those laws.. that specifically and in great detail, separate the roles, responsibilities, oversight, legal powers and funding, for obvious reasons.
why is that? is it like australia, where everyone is just deep down a narc?
Police make money and provide services for profitable corporations.
Taxes cost profitable corporations money, except when they're really annoying to deal with, in which case they give money to a small group of corporations.
So taxes are designed to be as irritating and painful as possible, and are continually attacked, whereas police are defended.
Because the same group of people that hate the tax office and a working healthcare system also have a deep pathological fear of the underclasses rising up. And the only thing that will protect them from this is a gang of uniformed thugs.
That group also holds ~half the political power in the country.
At least in New York, support for the police diminishes with income. Manhattan is the anti-police borough. The richest neighbourhoods within it elect the most anti-police politicians (with few exceptions).
They want cops. But they vote for restrictions. It’s a bit paradoxical, but one would repeatedly see e.g. the Upper East Side request more officers and overwhelmingly support legal restrictions, independent oversight and transferring cops’ workloads to social workers.
The issue is that the subpoena told Twitter/X not to inform the accountholder that their information was going to be given to the NYPD, nor inform the accountholder of the subpoena's existence. While that's enforceable with a warrant, it is not enforceable with a subpoena.
This shows how NYPD is attempting to compel companies to provide them with personal information of users, and keep it secret from the users, all without needing a judge's approval or warrant. That is not the proper channel to do this, and they know they have no legal leg to stand on which is why they aren't going to try to fight it's legitimacy in court.
When presented with an administrative subpoena not backed by a warrant you may be able to deny the subpoena without being guilty of such crimes.
However it does look like this is different from the normal subpoena process. This doesn't seem to be part of discovery - there is no action. The referenced "Section 14-137 of the New York City Administrative Code" seems to basically grant the NYPD commissioner powers a judge usually has. So there is something to worry about.
Having been the victim of these on many occasions, I can also see the original article seems to have things slightly twisted. The SCA gives the power to any governmental body to subpoena metadata from providers under an administrative subpoena without notice to the user. 18 U.S. Code § 2703(c)(2) I think.
It's the content of records that starts to get into constitutional areas such as 4th Amend. requirements.
The third-party doctrine muddies this under current law.
I don't understand why Rabbi Copwatch would be involved in fighting the subpoena.
Rabbi Copwatch should sue NYPD for infringing his civil rights by spying on him.
He has nothing to defend against. Under current law, if he doesn't want NYPD siezing papers and effects about him from Twitter, that is not his papers and effects, he needs to stop giving copies of data about himself to Twitter. I don't like that law, but I think that's where the law sits today.
This action puts Mallory at risk of getting disbarred. Submitting illegal subpoena's under the color of authority is fraudulent and a disbarrable offense.
Multiple people at the NYPD broke the law and should face criminal action.
And there's only been a straw donor scheme with multiple guilty pleas, a fundraiser with $150,000 in unexplained gifts, and illegally accepted donations from Turkish citizens resulting in FBI seizure of electronic devices. [2] This all feels like it's gonna get a Clarence Thomas response.
[1] https://nypost.com/2022/01/07/mayor-eric-adams-hires-ex-nypd...
[2] https://www.politico.com/news/2023/11/13/investigations-eric...
There are ways to hold lawyers accountable that sadly don't exist for cops.
This is similar to a shareholder action for a public company that is being run poorly (however you define that), but where the board is also complicit. No choice except to vote for new board members. If you want, and care enough, and can get enough others to care enough also.
If a politician, who is technically the boss, starts to clean house of the unified and armed tribe supposedly meant to work for the people of the city, the tribe will usually make quality of life for everyone go down, if not just from the myriad legal challenges, but also from work slowdowns and stoppage.
So then the question is will voters stand by the politician while crime goes up and unsolved for the 10+ years it takes to rebuild a more accountable police force (which isn’t a guarantee either).
Speaking of crimes, I've murdered this analogy
Hey, wait... this sounds a lot like a gang. How did the rebel nation get so "cucked"?
Many people get this kind of dopamine hit from saying that something is going to happen (similar to the one from telling people you're going to do something). "Twitter is going to fail in 2 weeks" / "Trump will be impeached next month" / "Hunter Biden is going to be jailed". It's traumschadenfreude.
Wishcasting is a kind of interesting, yes, but I think truth seeking is more interesting.
> But X, following its own corporate policy, told Clancy anyway, and suggested he might want to get some legal representation to fight the subpoena, recommending the American Civil Liberties Union.
That's actually the first decent thing I've heard about x since the rename. Good job!
(I assume there won't be any penalties for this action given that it was warrantless in the first place.)
> As my lawyer put it: “Sounds like you could have a first amendment right to quash the subpoena”. Cool, let’s go.
> Surprisingly, it worked! I think it cost around $7,000 but the subpoena was quashed
> [While] Google was nice enough to let me know there was a subpoena for my account data but guess what? Nobody else even bothered to tell me. And by nobody else I mean: Paypal, eBay, 3 domain registrars, merch makers, VPN providers, and every other online service I had used with that email in the last five years. They had all been subpoenaed and happily handed it over without even letting me know and it works that way even to this day.
If one company stands up and says "no" and then discloses to the subject, it both raises the risk of exposure on other government entities considering the same and increases the likelihood of another company opposing it next time.
Both are wins to build upon.
Why?
It obviously works better if more people do this. But the single notice is still working to some degree.
For OP, Twitter might have been the holy grail and they’re now cool, but maybe not if there’s $x others that have already rolled over.
This is totally different from "it only works if all of the platforms you use do this." That's a collective action problem. One which does not present itself in this case, where marginal actions produce marginal benefits.
What you're now saying is the marginal actions (and thus benefits) may be bounded. Which, sure. But that also doesn't change if all the platforms "do this," but boundedly.
Congress needs to let the patriot act lapse. We’re not in an emergency anymore, despite the rhetoric -it’s been over 20 years!
https://en.wikipedia.org/wiki/Patriot_Act#Reauthorizations (scroll to the bottom of the section)
Now, that's not to say some things are not necessary. We need to surveil foreign terrorists and also kerb money laundering, etc. but it should all be above board using legitimate warrants and not secret subpoenas.
[1]: https://nyc.streetsblog.org/2022/08/29/cop-left-creepy-voice...
[2]: https://gothamist.com/news/nypd-officer-poses-as-311-operato...
[1] https://en.wikipedia.org/wiki/Adrian_Schoolcraft
[2] https://en.wikipedia.org/wiki/Frank_Serpico
[3] https://www.newyorker.com/magazine/2019/10/07/what-if-your-a...