Calling the bluff: Twitter’s response to a subpoena’s Threat Level blog recently featured Twitter in what I believe to be a very positive light. Rather than just quietly fold when faced with a subpoena for information about people of interest in regard to Wikileaks and a corresponding gag order forbidding Twitter from informing the subjects about the subpoena, Twitter decided to call the bluff–or even raise, depending on how you look at it. From the article:

The court order came with a gag order that prevented Twitter from telling anyone, especially the target of the order, about the order’s existence.

To Twitter’s credit, the company didn’t just open up its database, find the information the feds were seeking (such as the IP and e-mail addresses used by the targets) and quietly continue on with building new features. Instead the company successfully challenged the gag order in court, and then told the targets that their data was being requested, giving them time to try and quash the order themselves.

Twitter and other companies, notably Google, have a policy of notifying a user before responding to a subpoena, or a similar request for records. That gives the user a fair chance to go to court and try and quash the subpoena. That’s a great policy. But it has one fatal flaw. If the records request comes with a gag order, the company can’t notify anyone. And it’s quite routine for law enforcement to staple a gag order to a records request.

That’s what makes Twitter’s move so important. It briefly carried the torch for its users during that crucial period when, because of the gag order, its users couldn’t carry it themselves. The company’s action in asking for the gag order to be overturned sets a new precedent that we can only hope that other companies begin to follow.

It is refreshing to see a company stand up and defend the rights of its users the way Twitter did here. I’m quite disgusted from a civil liberties standpoint that it’s now routine for law enforcement to attach a gag order to a subpoena. Someone needed to do something about it.

I concur with the author’s hope that other companies follow Twitter’s lead. Specifically, Facebook and Yahoo (who currently owns Flickr and Delicious) would do well to adopt the challenge of gag orders attached to subpoenas as a matter of company policy. For that matter, anyone responsible for an online service involving the data of others, even as a hobbyist effort, would do well to challenge a gag order attached to such a subpoena, especially one from a law enforcement agency, or perhaps even defy it outright (riskier, and only for the especially brave).

At the poker table, players who routinely bluff with nothing eventually have to show down a losing hand. Usually, they don’t bluff for a while after that. This is surprisingly similar to what happens in real life, certainly more similar than most cops and prosecuting attorneys would have you believe. Because the concept of a citizenry that knows their legal rights and asserts them is anathema to them, and a direct threat to how many of them do their jobs.