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The Cops

​​The NYPD Sent a Warrantless Subpoena for a Copwatcher’s Social Media Account, but Won’t Defend It in Court

What does the NYPD want with the social media data from a police accountability account?

NYPD Headquarters at One Police Plaza (ajay_suresh / Flickr)

The NYPD sent a sweeping subpoena seeking information from the social media account of the president of a New York City police accountability organization in February, records reviewed by Hell Gate show, only to withdraw its subpoena when told they would need to justify the subpoena in court.

Michael Clancy, better known to friends on and off social media as Rabbi, received a notice last month from X, formerly known as Twitter, alerting him to the fact that the NYPD had sent X a subpoena requesting "all records consisting but not limited to all subscriber name(s), Email address(s), Phone number(s), account creation date, IP logs with timestamps (IP address of account logins and logouts), all logs of previous messages sent and received." The subpoena also requested "all videos sent and received, including but not limited to meta-data. exit data about the messages and videos” for the account.

The notification included a copy of the subpoena, which warned X not to tell Clancy of its existence. "You are not to disclose or notify any customer or third party of the existence of this subpoena or that records were provided pursuant to this subpoena," the document read.

But X, following its own corporate policy, told Clancy anyway, and suggested he might want to get some legal representation to fight the subpoena, recommending the American Civil Liberties Union. Clancy did just that, and Kathryn Sachs of the New York Civil Liberties Union took up his case. Last Wednesday, Sachs wrote to the NYPD to challenge the administrative subpoena, which the NYPD had sent on its own authority, without any warrant or judicial approval. If the NYPD did not withdraw the subpoena, Sachs told the NYPD, Clancy would go to court with a motion to quash it. Rather than go to court to explain to a judge why the subpoena was necessary, the NYPD wrote back the same afternoon to say that it was withdrawing the subpoena altogether.

The NYPD subpoena letter cited as its empowering authority Section 14-137 of the New York City Administrative Code, which gives the NYPD commissioner the power to issue subpoenas. But as Sachs argued in her letter to the NYPD, that doesn't mean the police department can issue warrantless subpoenas for anything they feel like. Sachs cited case law suggesting that the subpoena power is actually restricted to investigations involving current or former officers.

Under the federal Stored Communications Act, authorities who want to subpoena electronic records from a provider either need a court-issued warrant, or, if they're using an administrative subpoena, "prior notice from the governmental entity to the subscriber or customer."

"This kind of administrative subpoena is not overseen by any court, and is not meant to target people like our client," Sachs told Hell Gate. "If it's left unchecked, it would chill speech from potentially anyone that the NYPD decided to subpoena information about."

"We don't give that kind of power to police departments without judicial review," said Marty Stolar, a lawyer who has worked on similar cases in the past. "It's got to be a process that's connected to a court if you're going to apply it to the general population. Here, the NYPD is misusing the power of subpoena to compel the production of documents as if they had the right to demand that information from any citizen. And they don't have that right. We have never given it to them." 

A copy of the NYPD subpoena supplied by X.

The legal status of the NYPD's use of warrantless subpoenas for social media information isn't as clear as it might be, in part because when the NYPD's use of such subpoenas is challenged, it tends to withdraw the subpoenas rather than engage in a court process that might definitively establish the legality or illegality of its practice.

In 2020, the department sent a nearly identical subpoena to Twitter, seeking a broad swath of records for Tina Moore, a New York Post reporter covering the NYPD. When lawyers for the Post threatened to challenge the subpoena in court, the NYPD hastily withdrew it. The incident provoked significant backlash, with free speech advocates, the Post, and groups like the Media Law Resource Center decrying the chilling effect of the subpoena.

Clancy isn't working as a conventional journalist, but he is involved in the collection and dissemination of information about the NYPD. As president of the Brooklyn chapter of Copwatch Patrol Unit, Clancy receives tips about police conduct, and films police conduct himself. While the withdrawal of the subpoena makes it all but impossible to know what the NYPD's goal was in issuing it, he has his theories. Maybe the police are just trying to rattle him with a shot across the bow. Or maybe the NYPD is trying to find out whether NYPD officers themselves are feeding his organization information about misconduct. "That happens," Clancy told Hell Gate. "For a junior officer who sees misconduct by his superiors, if you take that to Internal Affairs, maybe your boss has a connection there and it winds up being you who gets in trouble. So some cops prefer to take it to Copwatch."

As a further wrinkle, the NYPD's subpoena letter to X was sent by Michael Yanni, a member of the office of the department's deputy commissioner for legal matters, but used the email address intelsubpoenas@nynjhidta.org, a domain affiliated with the New York and New Jersey High Intensity Drug Trafficking Area office, a regional and federal joint drug task force. Similarly, the letter from the NYPD notifying NYCLU of the withdrawal of the subpoena was sent from Mallory McGee, an attorney with the NYPD Legal Bureau, using another email attached to the drug task force.

Why are NYPD lawyers sending out subpoenas for a critic's private information without a warrant? Why are they using federal task force email domains to do it? Why did they withdraw the subpoena rather than defend its legitimacy in court? How many of these warrantless subpoenas have they sent out in the last year? We asked the NYPD these questions, but did not receive a response.

Clancy, for his part, said that he's undaunted, and that the NYPD has no business rummaging through his social media content and metadata. 

"Why would you use a shower curtain and close the bathroom door when you take a shower, if you have nothing to hide?" he asked. "Because it's none of your business, that's why. What the police might want to know and what they have a legal right to know are two different things."

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