This originally ran October 12th, 2009 at HuffPo.
The FBI arrested Elliot Madison in Pittsburgh on September 24th during the G-20 protests. Madison was part of The Tin Can Project, an anarchist group using Twitter and SMS text message technology to disseminate information. He was charged with hindering apprehension or prosecution, criminal use of a communication facility and possession of instruments of crime.
His house was later raided for sixteen hours. Agents took so much unrelated material in their search, a federal judge agreed to Madison’s motion to review the material for relevance before the FBI can examine it. Together with the nature of the charges, that overly-broad search is a strong indicator that the FBI has absolutely nothing on Elliot Madison.
The Bureau says they’ve captured a master criminal for “directing” protesters, but all they’ve really got is one anarchist with a cell phone and a Twitter account. They might as well have arrested Madison standing in the street with a bullhorn and carted him off to jail for a $50 fine and a slap on the wrist.
Indeed, the comparison is an apt one: Madison’s mobile phone was the bullhorn. By the FBI’s standard, tens of millions of Americans are potentially in “possession of the instruments of crime.”
The FBI hasn’t even asked Twitter to pull the account; every last message Madison sent out during the G-20 meeting is still available for viewing and re-tweeting. It is unusual to see crime evidence left on 24-7 public display. That’s because Madison’s tweets are not criminal evidence.
Madison was arrested for tweeting messages that had been tweeted or text-messaged to him. Functionally, that’s not any different than clicking “forward” in your email account. Nor was Madison tweeting only to protesters — the open architecture of Twitter means the entire world could read his tweets.
In fact, when the New York Times reported on Madison’s story October 5th, the reporter had obviously read Madison’s “criminal” communications, and referred to the police reading them as well:
After Mr. Madison’s arrest, other Tin Can participants continued to send messages, now archived on Twitter’s Web site. Many of those messages tracked police movements. One read: “SWAT teams rolling down 5th Ave.” Another read: “Report received that police are ‘nabbing’ anyone that looks like a protester / Black Bloc. Stay alert watch your friends!”
But even as protesters were watching the police, it appeared that the police were monitoring the protesters’ communications.
The criminal complaint accuses Madison of “directing others, specifically protesters of the G-20 summit, in order to avoid apprehension after a lawful order to disperse.” But that is certainly not what Madison was doing; anarchists do not take “direction,” and if we and the New York Times and the Pittsburgh Police Department can read Madison’s tweets (and re-tweet them!) then there’s no criminal “conspiracy” going on.
Indeed, far from “directing others…to avoid apprehension after a lawful order to disperse,” it’s just as easy to argue that Madison was helping to disperse the crowd. Indeed, his lawyer made this very point in an interview with Democracy Now:
Twitter essentially is neutral here. The police could have logged onto Twitter and seen whatever was being posted, in the same way that individuals can log onto the police radio bands and emergency service responders, all of which is up on the Internet. If Elliot is receiving from the Internet notice that an order to disperse has been issued at a particular location and passes that public information on to other members of the public, that’s protected speech. It is inconceivable that that could be a crime. But that’s what he’s charged with.
His point about police scanners is an important one. When police speak into a non-encrypted radio net, they have no right to an expectation of privacy. That’s been an established legal standard since the FCC was born.
Re-tweeting is hardly “criminal use of a communication facility;” it’s built into the architecture of the website. Madison was using Twitter exactly as it was designed and intended to be used, and not to any new or novel purpose. Indeed, Twitter users are encouraged to form groups, and Madison’s was not the only new group that week:
(T)he Tin Can Communications Collective was one Twitter feed. I have found that there were at least twenty-four Twitter feeds going on, everywhere from the police to the G-20 to Ron Paul supporters. Everybody had their own Twitter feeds going on.
The FBI has no probable cause and no case. Ten thousand people are going to do the exact same thing during future globalization protests, and the Bureau will have gained absolutely nothing. But by joining a sad category of nations — China, Iran, and Moldova have all arrested protesters for using Twitter — America can certainly lose something.
