Cops to G-20 Protesters: Use Twitter & Go to Jail.

Summary:  On September 24^th (the first day of the G-20 Summit in Pittsburgh) the Pennsylvania State Police served a search warrant on a protester (a self-styled anarchist) on the grounds that his use of Twitter to inform other protesters of the location of riot police was a crime.  A criminal complaint was later filed against him.  Subsequently, the FBI conducted a 16 hours search of his New York apartment and carted away a great deal of property.  According to news reports, the information was also available from news reporters, helicopter live-feeds and on the police website at the time.  On the other hand, the person was in a hotel room with an array of equipment, including a police scanner.  So, a serious crime or a chilling (and unconstitutional) effect on free press?  It turns out that, yes, use of communications devices in certain such situations can be a crime.  (Full disclosure:  The author is a lawyer but does not practice in criminal or First Amendment issues.)

The Details.

The details of the arrest are just now coming out (Tuesday, October 6^th) so by the time this blog is posted (or you read it), more details may emerge but this is some of what has been reported.  Eliot Madison and another man were in a hotel room outside of Pittsburgh on the first day of the G-20 Summit, listening to scanners and using PCs, maps and cellphones to alert protesters (who did not have a permit for their protest).  Evidently, the two men were telling the protesters where the police were.  According to the complaint, their crime was assisting the protesters failure to disperse.

A Brief Sidebar.

Note to all readers:  In a First Amendment case (well, in any case) you cannot let your analysis be biased by your inclinations towards or revulsions towards the people claiming that defense.  So, for example, let’s say you are a staunch conservative who hates anyone to the left of Tom DeLay.  Suppose this had been anti-abortionists protesting and Eliot had been giving them the same information?

The Implications.

Now this is interesting at all sorts of levels.  The government will have to show an intent to criminal activity—essentially some activity connecting the intent of the two groups (Madison and friend and the protesters).  One can imagine the complexity of this enterprise.  Did they know the recipients of their Twitter (and cellphone) messages were in fact committing a crime—and in all probability the particular crime of failing to disperse?  Suppose that you receive the tweet and you pass on the information to your girlfriend who is in Pittsburgh and you have no idea if she is with the protesters?  If the two guys were not aware that protesters were failing to disperse—in other words, were not aware of a crime being committed, then just what crime did they commit?  If they were giving the information so that protesters could avoid bodily harm, would that be a crime?  Moreover, if they were telling the protesters where the police were and giving them escape routes, then wouldn’t they have been assisting the protesters to obey the law?  And what about those who sent the tweets onward?  Are they co-conspirators?

Numerous analogies immediately come to mind, and with no surprise.  The news helicopters were providing live video feeds of the location of the riot police, as were reporters on the ground.  OK, so this is news reporting and therefore without criminal intent.  But what if one of the reporters said “Those protesters better get out of there or they are going to get in trouble.”  Is this the same as alerting passing motorists that a police car with radar is just around the next bend?  You’ve probably read a blog that raves about some new gadget.  It may well be that that the blogger has cut a deal with the manufacturer of that gadget—whether payment or simply receipt of one of the gadgets.  And yet, you as the reader had no idea of that connection.

It is true that speech can be criminal.  No court has ever said otherwise.  The new technology now presents more conundrums in drawing reasonable lines.  Watch this case wend its way through the courts.