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A New York City Law Department subpoena to an MIT graduate student over text messages has raised questions about how the First Amendment protects online speech, and whether the government is allowed to ask service providers for messages they store.

On a winter day in February, Edward A. Hirsch G was in the Rotch Library writing a thesis chapter about his TXTmob system, which he had developed to help protesters communicate during the 2004 Republican National Convention. As he began a paragraph about how his system theoretically protected people’s privacy, he learned that New York City had just put his theory to the test.

“If you just use a commercial provider,” he said, “you end up with an archive of messages that could be provided to the cops if they wanted, and that might not be great. So I’m writing that sentence in academese when my phone rings …”

Hirsch was asked for text messages sent by his TXTmob service during the Republican National Convention in a broad subpoena issued by the New York City Law Department and dated Feb. 4, 2008. The subpoena was issued in response to hundreds of lawsuits filed by arrested protestors against the city and is available online at http://tech.mit.edu/V128/N18/hirsch/.

Hirsch is contesting the subpoena with the help of two attorneys who are representing him pro bono: Matt Zimmerman, a staff attorney with the Electronic Frontier Foundation, and David B. Rankin, a New York attorney.

Zimmerman said that the case raised issues of the “right of individuals to be able to speak anonymously online or using new technologies.”

Hirsch said he feels a responsibility to people using service to protect their privacy — a stance he contrasted with that taken by major telephone companies, which have in recent years shared customer information with the government.

Hirsch’s case combines “online technology” and “text messaging in kind of a unique way that we haven’t dealt with before,” Zimmerman said.

Both the First Amendment and a 1986 federal law support Hirsch’s decision not to hand over the messages, Zimmerman said.

Zimmerman said he hoped the city would drop the subpoena, but they might instead go to court to force disclosure by moving to compel.

A community organizing tool

The TXTmob service, initially designed to support street protests during the 2004 Democratic National Convention and Republican National Convention, had “something like 320 groups and 7000 users” during the conventions, Hirsch said.

It was designed to help activists spread information among themselves and to journalists, legal observers, and medical help by sending text messages to many cell phones at once.

TXTmob sends messages via SMTP gateways — sending e-mail to special addresses that major cell phone providers then forward to people’s cell phones.

Hirsch said he assumed that police were subscribed to some of these groups, a fact confirmed last year in declassified New York City Police Department intelligence documents.

Do the old messages still exist?

An issue which affects the subpoena’s effectiveness is whether three-year-old messages from summer 2004 are still stored in the system. Hirsch and his attorney Zimmerman both declined to comment on whether any messages were still stored in the system. Hirsch said that upon receiving the subpoena, he made a backup of the txtmob.com server — which is in the Media Lab — as it existed at the time of the subpoena.

The table in the database which stores old messages “is purged sporadically,” Hirsch said. Database cleaning “is run occasionally,” he said, but “stuff is generally kept around.”

Once a user deletes himself, Hirsch said, his information is no longer stored in the system. But the system does associate existing users’ names with phone numbers, so that messages can be sent. Some usernames in the system are e-mail addresses or names clearly identifiable as a person’s name.

“I’ve been advised by my lawyers not to discuss the subpoena,” said Hirsch.

Lawyer claims First Amendment protects users

“People with individual rights are the same, regardless of what technological form they’re using,” Zimmerman said.

To protect people’s First Amendment free speech rights, courts should require New York City to show why the requested messages will help litigate their case, and the request should be very specific, Zimmerman said. He said that the subpoena against Hirsch was too broad.

Zimmerman said the TXTmob messages have nothing to do with the cases against New York City. The hundreds of cases generally include claims of false arrest, which requires showing whether the arresting officer had probable cause to arrest the citizen, Zimmerman said.

Probable cause depends on the arresting officer’s state of mind, which Zimmerman said should not involve text messages sent to arrested protestors.

Asked about messages that officers might have received, Zimmerman said that the subpoena did not only request such messages, but broadly encompassed messages to protesters.

The subpoena is “focused on people who were engaged in lawful protests,” he said. “Protesters should not feel chilled.”

Case could set precedent

Zimmerman said that he has handled three or four similar subpoena cases in the past two years. He said that courts generally “respond positively” and “frequently articulate a standard in the jurisdiction.” A motion to compel would be heard in the Massachusetts District Court, where the subpoena was delivered, Zimmerman said. He said he was unaware of any existing standard explaining when subpoenas should be able to force the disclosure of anonymous people’s names and messages.

If a clarifying opinion were issued in the Massachusetts District Court, it “could provide ammunition for future” cases about Internet speech, Zimmerman said.

Even if the First Amendment permitted the release of the information to the government, it would still be illegal under the 1986 Stored Communication Act, part of the 1986 Electronic Communications Privacy Act, Zimmerman said. That act restricted when people may share other people’s electronic information which their system is storing, for instance e-mail.

The Stored Communications Act “prevents government entities from using subpoenas like this,” Zimmerman said.

“I intend to comply with whatever the court tells me to do,” Hirsch said.

Hirsch works for community empowerment

Hirsch has been a community organizer since the last 1980s, he said. But his entry into the technical field is new. His other research includes a project to help connect Chinese-speaking Boston residents with translators to help them talk to English speakers; and a project called Dialup Radio, designed to let people host radio shows by telephone in Zimbabwe, where he said the government strictly controls radio broadcasts.

Hirsch’s PhD thesis at the Media Lab, which he expects to complete this summer, describes how to design “communication systems for protests and community empowerment,” he said. There is “only one legal radio station” in Zimbabwe, he said, “and the government owns it.”

TXTmob has evolved since 2004

In the time since the 2004 convention, many other uses of the TXTmob system have emerged. The public “NYC booty call” group offers “NSA [no strings attached] NYC booty.” The “SWATnurse” group offers “Instant RN [Registered Nurse] TXT Job Notification.” The “EBBANDFLOWUPDATES” group offers “Revolutionary hip hop straight to your phone!”

“There was a text confessional thing going on for a while,” Hirsch said. The anonymous messages seemed “sincere, which was kind of wonderful.”

But Hirsch said he didn’t know whether people have used his system recently, for instance to coordinate the Olympic torch protests in San Francisco. The group appears to have about 13,078 users, based on a list available to logged-in users at http://www.txtmob.com/invite.php.

He said he hasn’t followed TXTmob usage very closely in the years since he invented the system. He said he’s hoping that someone else will take the system over after he completes a significant redesign in the next few months.

Although Hirsch developed the service anonymously and attributed it to a group called the Institute for Applied Autonomy, he said after the subpoena there was no point in preserving his anonymity. The IAA publishes works anonymously, but “basically I wrote it all,” he said.

Hirsch now finds himself protecting others’ privacy, which Zimmerman said was a novelty of the Internet age. “You, as a speaker, can’t just rely on your own ability to fight off legal attempts to get at your identity” when your speech happened online, he said.

Informed that txtmob.com was offline yesterday afternoon, Hirsch expressed surprise. Someone must have kicked the power cord, he said. (It was back online a few hours later.)