Intellectual Property Law

Text messaging, and other instant, always-on communications technology, is proving to be a boon to  political organization and activism. But a story in today's New York Times shows how protest participants using these services may be leaving an unwitting digital trail.

New online tools provide more information on everyone involved in political activities both online and off
Photo: Jon Snyder.

The Times reports that lawyers for the city of New York have subpoenaed an MIT student who created TXTmob, a text-messaging service that was used to organize political protests outside the Republican National Convention in New York City in 2004.

The lawyers are representing the city in civil lawsuits filed against it by people who were arrested during the protests. The city wants the records of all the messages that were exchanged through the service, as well as information about who sent them.

Tad Hirsch, TXTMob's creator, said in the Times article that some of the information doesn't exist anymore, and that he has a right to keep the information private.

David Taylor, a veteran political protest organizer and founder of Radical Designs in San Francisco, says that the news of the subpoena may drive some organizers to build special applications that make such records difficult, if not impossible, to access as protesters plan their activities around this summer's Democratic and Republican national conventions.

Would-be protesters have already set up several preliminary organizational web sites to plan and report on their events at the conventions.

"The most important thing to remember for people who are providing technology services to activists is not to store personal information about whoever's accessing those services because over-broad government requests can put people at risk just for participating in political activities," Taylor says.

Taylor recently used Twitter and text-messaging to manage city-wide anti-war protests in San Francisco.  He says that activists need to weigh the pros and cons of what they're trying to achieve before deciding  whether to create their own  special applications, or to rely on commercial services.

"I don't necessarily know that it's in a company's interests to fight overbroad requests for information from the government," he says. "Who owns and controls the data is something that activists need to consider."

Taylor fears that government subpoenas in other contexts, such as national security and criminal investigations, might be used to gratuitously build lists and dossiers of protesters for surveillance purposes. 

"While these commercial services are really great, we don't know what their relationship is with the government, and that does raise concerns about privacy and security."

Activist-created platforms aren't always as reliable as commercial services, he says, but they've been used in the past to enhance the privacy of the activism community. Hosting and electronic mailing-list provider Riseup.net, for example, offers  a service that deliberately doesn't retain users' potentially-identifying internet-protocol addresses.

Anti-war activists migrated from Yahoo's listervs to Riseup.net's platform after Yahoo shut down their listservs after the initial invasion of Iraq, he notes.

In this case, the New York City lawyers are unlikely to have their subpoena request granted, says Jim Dempsey, a vice president of public policy at the Center for Democracy & Technology.

"In civil cases, the law seems to prohibit the disclosure of stored communications in response to a civil discovery subpoena because the Electronic Communications Privacy Act of 1986 prohibits disclosure of stored messages of any kind," he argues.  "The subpoena  clearly is not enforceable."

But he adds that the case is a reminder that federal privacy law is in dire need of an update to reflect the new era of  massive stored  communications and web services.

"The notion that any litigant can get any information about any  person is an 18th century rule that now can now encompass terabytes of   information, and I think it also has an impact on service providers who don't want to become one-stop shops for every litigant in the country," he says.

The convergence of trends is particularly troubling in the civil context, he says because now virtually anyone can fall under the definition of a "communications service."

"It's so easy for anyone to develop an application and run  it on a server, and suddenly, they're offering a 'communications service' to the public," he says. "Those people need to follow the lead of this guy here, and be more aggressive to resisting these kinds of subpoenas."