Use of grand jury questioned by legal community
State Attorney General and Republican gubernatorial candidate Tom Corbett’s subpoena of the social networking organization Twitter, in an attempt to identify anonymous posters, has drawn criticism from the legal community.
The grand jury subpoena, seeking the identity of the users ‘CasabalancaPA’ and ‘bfbarbie,’ were eventually withdrawn by Mr. Corbett and his staff, but not before they caused an outcry about possible violations of free speech and the right to anonymous criticism of public officials.
It appears the subpoena of Twitter also contained a cover letter asking Twitter not to disclose the action and, if it planned to do so, to contact a deputy attorney general, so the state could seek a court order to prohibit Twitter from revealing the organization had been subpoenaed.
That information was revealed in an article in The Legal Intelligencer, a Philadelphia-based publication for the legal community.
According to The Intelligencer, the subpoena of Twitter via fax on May 6, contained the following:
“Should you decide that you wish to disclose the existence of this subpoena and its contents to anyone, including the account holder, it is requested that you contact the deputy attorney general named on your subpoena and so advise him or her before any disclosure so he or she can determine whether or not to seek a court order from the supervising judge prohibiting disclosures under section 4549(d) of the Investigating Grand Jury Act, 42 Pa. C.S. 4549 (d).”
A Corbett spokesman called the subpoena and use of the Grand Jury investigating the legislative “Bonusgate” scandal “lawful and appropriate.”
Vic Walczak, legal director for the American Civil Liberties Union (ACLU), told The Intelligencer his organization had been preparing a motion to quash the Corbett motion because the ACLU felt state prosecutors could not show the Twitter information was “really necessary.”
“What’s the compelling interest?” Walczak said.
It is thought Mr. Corbett wanted the identities because he believed the user ‘CasablancaPA’ to be Brett Cott, a state House staffer convicted in one the Bonusgate trials. The prosecutors hoped to show a lack of remorse on the part of Mr. Cott, who was sentenced to up to five years in prison on May 21 for using taxpayer resources for political purposes.
The Twitter subpoena was withdrawn the same day Mr. Cott was sentenced.
Marc Hoffman, a senior staff attorney at the San Francisco-based Electronic Frontier Foundation, told The Intelligencer anonymous freedom of speech has been legally established for “a long time” and is at its highest point when “someone is criticizing the work of a public official.”
“I hope somebody is going to look into whether this is a legitimate use of law enforcement authority. It’s good to keep the government jumping through hoops, at least reasonable hoops,” Sam Bayard, assistant director of the Citizen Media Law Project at Harvard Law School told The Intelligencer.
The Grand Jury process is “short circuited” when used for purposes other than determining if someone should be indicted, Mr. Hoffman told the paper.
“If people are going to secret grand juries and issuing subpoenas to small-time message board operators who are caving in, I don’t know how we’d know that,” the paper quoted Pittsburgh attorney Ronald D. Barber as saying. Mr. Barber specializes in First Amendment law.
“It’s very disturbing to me to see a government official at this high a level doing what was done here,” Mr. Barber said.
The same grand jury also issued a 59-page report last week resembling a public policy paper and calling for significant reforms in the operation of the General Assembly.