Analysis

To gain a sense of the prevailing public opinion on Attorney General Tom Corbett’s use of a subpoena to attempt to learn the identities of people behind two Twitter accounts, there’s no need to turn to the editorial pages of newspapers across the state.

Instead, and perhaps more fittingly, an outcry of “abuse of power” and “attack on First Amendment” criticisms made their way into Twitter streams, a “Subpoena me, Tom” Facebook page, and the attorney general’s own Facebook wall.

The posts, tweets and comments invariably expressed concern that Corbett’s subpoenas, which were sent to Twitter in hopes of unmasking two users who have been critical of his Bonusgate investigation and prosecutions, was a violation of a constitutionally protected right to speak anonymously.

Throughout the legal community, however, the concerns were different.

Questions regarding Corbett’s motive still abounded, but it was his use of a grand jury for a purpose other than securing an indictment that proved even more chilling for some people. The American Civil Liberties Union of Pennsylvania further described as “completely inappropriate” a cover letter that accompanied the subpoena sent to Twitter.

In that letter, which was released last week, Teresa R. Cook, the investigating grand jury’s executive secretary, requested that Twitter not disclose the existence of the subpoena and that, if it planned to do so, that it first contact a deputy attorney general, so that person could consider seeking a court order that would prohibit Twitter from disclosing the existence of the subpoena.

“It’s more than chilling,” said Vic Walczak, the ACLU’s legal director. “If I’m not a constitutional lawyer, I’m not going to say ‘boo’ to anybody, even though I have a right to do so.”

Who Is That Masked Man?

News of the subpoenas broke two weeks ago, just days after Corbett won the Republican gubernatorial primary.

Twitter received a subpoena from the Office of the Attorney General, via fax, May 6. In it, Twitter was asked to provide identifying information for two users — bfbarbie and CasablancaPA — by May 14.

An accompanying cover letter informed Twitter that, though witnesses are permitted to disclose their grand jury testimony, doing so “could impede the on-going criminal investigation.”

“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 that 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).”

Both bfbarbie and CasablancaPA, who goes by the alias Signor Ferrari (the name of an iconic character in the film “Casablanca”), have long been critical of Corbett’s Bonusgate investigation and prosecutions.

The subpoenas originally struck onlookers as an attempt to intimidate those individuals, but the Attorney General’s Office later said it believed former Democratic House aide Brett Cott, a Bonusgate defendant who was convicted of theft, conspiracy and conflict of interest, was the person behind the CasablancaPA Twitter account and blog of a similar name — “Casablanca PA, Exposing the hypocrisy of Tom Corbett.”

His postings, prosecutors argued, showed a lack of remorse for his crimes and exemplified an “arrogant contemptuousness.”

Cott was sentenced to a maximum of five years in prison May 21 and the Attorney General’s Office withdrew the subpoena that day.

Kevin Harley, a spokesman for the Attorney General’s Office, said the subpoena was “lawful and appropriate,” as was the use of the investigative grand jury.

“This is an ongoing public corruption investigation utilizing the resources of a statewide investigating grand jury,” Harley said. “Such investigations collect information before charges are filed in part to determine whether charges are appropriate, during the pendency of charges, during trials and even after convictions. The grand jury’s jurisdiction extends to information such as facts relevant to the guilt or innocence of individuals, intimidation of witnesses, obstruction of justice and statements reflective of a convicted felon’s lack of remorse. The Investigative Grand Jury Act clearly permits investigation of an individual even after that person has been charged with a crime.”

Harley noted that the office’s belief that the subpoena was lawful was seconded by the grand jury’s supervising judge, Barry F. Feudale, who signed the subpoena.

Cott’s attorney, Bryan S. Walk of Hershey, said he did not understand how questions concerning Cott’s alleged anonymous Web postings could be relevant to sentencing considerations.

Jack Orie — an attorney with Orie & Zivic in Pittsburgh who represented state Supreme Court Justice Joan Orie Melvin in Melvin v. Doe, the seminal civil case on the issue — said there appeared to be a right to anonymity for the Twitter users.

There’s a difference, he said, between defaming someone by posting a claim as a statement of fact and criticizing someone by making known certain opinions.

In this case, the Twitter users were criticizing Corbett.

“What’s wrong with that?” Orie asked. “To me, I would think that would not be discoverable, because the rights of the defendant to express his opinion should outweigh any right of the prosecution.”

Indeed, Walczak said, the ACLU was prepared to file a motion to quash the subpoena and believed it would prevail because it didn’t believe prosecutors could show the information they were seeking was “really necessary.”

“What’s the compelling interest here?” Walczak asked.

A ‘Lack of Clarity’

The arguments on that motion, if it was filed, might have been the first in a Pennsylvania criminal court related to unmasking an anonymous online identity, several attorneys and legal scholars said.

The lack of precedent, however, does not extend to the state’s civil courts.

Though the issue has not reached the appellate court level in Pennsylvania, trial court judges have addressed the issue on several occasions, attorneys and scholars said. Most notable is the Melvin case, which was brought in the Allegheny County Common Pleas Court in 1999.

In that case, Orie Melvin, then a member of the Superior Court, filed suit against a group of anonymous critics who wrote on an AOL Web site that she violated the judicial code of ethics. One critic had written that Orie Melvin lobbied former Gov. Tom Ridge to appoint a certain lawyer to a vacancy on the Allegheny County Court of Common Pleas.

Judge R. Stanton Wettick Jr. ruled that anonymous online identities could be discoverable, but that a plaintiff first needed to prove that the information is “material, relevant and necessary”; cannot be obtained by other means; and is “crucial” to the plaintiff’s case.

That burden, Wettick wrote, aimed to create a balance between the anonymous defendant’s rights and the rights of the plaintiff.

Courts across the country have adopted a balancing act similar to Wettick’s, said Ronald D. Barber, a media and First Amendment law attorney at Strassburger McKenna Gutnick & Gefsky in Pittsburgh.

Barber, who represented the anonymous defendants in Melvin, said Wettick’s ruling is distinct because it was grounded in Pennsylvania’s discovery rules.

Some states, Barber said, have reached decisions using constitutional issues, but Wettick has declined to go that far.

In fact, he has a similar case before him now, Barber said, and he’s again applied the burden rule he developed in Melvin.

Sam Bayard, the assistant director of the Citizen Media Law Project at Harvard Law School’s Berkman Center for Internet & Society, said the different rulings established by different state courts are usually in agreement that the person seeking the identifying information must meet a certain burden of proving they have sufficient underlying legal claims.

Though that guiding rule hasn’t been expressly approved for use in criminal courts, Bayard said the principle carried some weight and was worth consideration.

Marcia Hofmann, a senior staff attorney at the Electronic Frontier Foundation in San Francisco, said the First Amendment right to speak anonymously has been established for “a long time” and is at its highest point when “someone is criticizing the conduct of a public official.”

And though the rules developed in cases like Melvin don’t apply to criminal cases, Hofmann said her organization and several others, including the ACLU, would make the argument that there should be a carry-over.

Bayard said there’s a “lack of clarity” on the issue in the criminal forum — something he finds surprising.

Bayard said he suspected subpoenas similar to the one sent by Corbett’s office were “happening a lot,” but that those requests get handled informally.

That would happen, Bayard said, because some Internet hosts are “pretty deferential” to law enforcement as opposed to civil litigants and may turn over the subpoenaed information without notifying the user.

“With civil litigants, they’ll e-mail the subscriber saying, ‘Look, we got this subpoena. We’re going to turn it over if we don’t hear from you,’” Bayard said. “My sense is maybe in the criminal context this isn’t happening as much. The police may say, ‘You’ll undermine the investigation.’”

That, said Bayard, made Twitter’s decision to notify bfbarbie and CasablancaPA of the subpoenas laudable in the eyes of many.

It gave the users a chance to fight the subpoena and maintain anonymity — a right held dear by many Internet users.

“I fully recognize anonymity can be abused and people can engage in a lot of reprehensible conduct, but I think as a general legal process, or a due process-type situation, if a civil party or a law enforcement agency wants to strip anonymity, they should at least be required to make a showing that it’s worthwhile,” Bayard said. “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.”

Gone Fishing?

Those hoops, though, are “short-circuited” when a grand jury is used for a purpose other than determining whether to indict someone, Hofmann said.

And that has some people concerned.

Barber said the prevalence of grand juries for purposes other than indictments is an “unknowable unknown.”

“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,” Barber said. “It’s very disturbing to me to see a government official at this high a level doing what was done here.”

Bayard said federal courts would consider it “improper” for a prosecutor to use a grand jury to subpoena information regarding a sentencing.

“Usually, the grand jury is about an indictment,” Bayard said. “[The attorney general's office] seems to be using the wrong process.”

To Walczak, it was clear that gathering information for a sentencing hearing was not within the scope of a grand jury’s abilities.

What was most troubling to Walczak, though, was the fact that deputy attorneys general the ACLU talked with during the Twitter affair had a reaction of, “We do this all the time. What’s the problem?”

“That sets off alarm bells,” he said.

“I think the use of the grand jury and the letter pretty much directing secrecy are serious concerns, because they appear to be a pattern or at least appear to be a regular practice,” Walczak said. “From a purely civil liberties perspective, what’s most distressing is the zeal to gather evidence to lengthen the defendant’s potential sentence. They were willing to go on a fishing expedition that could have violated the political critic’s right to speak anonymous. It’s the insensitivity in the zeal to not even get a prosecution, to not even to get a conviction. That is just alarming here.” •