Paul Mills <plm36@columbia.edu> Twitter receipt of legal process - Jeffrey Rae New York Criminal Court Docket No.

2011SN121777 March 13, 2012 5:36:06 PM EDT twitter-legal@twitter.com Juan Abreu <abreuJ@dany.nyc.gov> plm36@columbia.edu 1 Attachment, 246 KB 3/13/12 BY EMAIL Twitter Legal twitter-legal@twitter.com cc: New York County Assistant District Attorney Juan Abreu Re: Twitter receipt of legal process - Jeffrey Rae New York Criminal Court Docket No. 2011SN121777 Dear Twitter Legal: I am the attorney who represents the subject of the materials sought by the attached subpoena, Mr. Jeffrey Rae, in the relevant criminal proceeding. The subpoena does not comply with the law and must be disregarded by you. Please take notice that we object to the release of the requested materials. We assert on Mr. Rae's behalf his right to privacy and do not consent to the release of the requested materials. We intend shortly to file a motion to quash the subpoena. We assert that the subpoena does not comply with California or New York law governing such subpoenas issued from out of state against a California witness such as Twitter. New York law specifies that the subpoena in a criminal case "must be made in the manner provided by the civil practice law and rules for the service of subpoenas in civil cases." New York Criminal Procedure Law 610.40 [ http://codes.lp.findlaw.com/nycode/CPL/THREE/R/610/610.40 ] . California's Interstate and International Depositions and Discovery Act and California Code of Civil Procedure Section 1985 govern the service of this New York subpoena on you in California. CCP 2029.100-CCP 2029.900 [ http://codes.lp.findlaw.com/cacode/CCP/3/4/4/12/1/s2029.100 ]. California Code of Civil Procedure Section 1985 [ http://law.onecle.com/california/civil-procedure/1985.html ] requires as follows: 1. Under California law, an affidavit is (1) required to accompany the subpoena when it is served; (2) the affidavit is required to show "good cause" for the requested production; (3) the affidavit is required to specify "the exact matters or things desired to be produced"; (4) the affidavit is required to state "in full detail the materiality thereof to the issues involved in the case"; (5) the affidavit is required to state that you have possession or control of the specified "exact matters or things desired to be produced". CCP Section 1985 (b). 2. A subpoena such as this, which seeks the records of a consumer, has additional requirements under California law, CCP Section 1985.3. A consumer is defined as "any individual ... which ... has used the services of, the witness". Section 1985.3 (a) (2). California law requires the personal service on Mr. Rae of the required subpoena affidavit, described above. CCP Section 1985.3 (b) (1). Furthermore, this personal service must take place at least 10 days prior to the requested production date. 1985.3 (b) (2). It must be accompanied by a written authorization from Mr. Rae or me (his attorney) for release of the subpoenaed records. 1985.3 (c) (2). Furthermore, the copy of the subpoena and affidavit served on Mr. Rae must include a special "Notice to Consumer" with specific detailed information and advisements to Mr. Rae. 1985.3 (3). As you know, not one of these requirements of California law has been fulfilled in this case. Even if a California court were to decide that California's provisions concerning criminal actions applied, despite New York statute providing for the application of civil procedures to criminal subpoenas, nevertheless, under California criminal procedure law, witness testimony can only be compelled after an out-of-state judge has issued a certificate under seal, and a hearing has taken place before a local California court. California Penal Code section 1334.2. [ http://codes.lp.findlaw.com/cacode/PEN/3/2/10/3a/s1334.2 ] As you know, no such certificate under seal has been issued by a New York court, and there has been no hearing before a local California court. To the extent that these records constitute "utility records" (defined as including, but not limited to, "subscriber information, telephone or pager number information, toll call records, call detail records, ... for service in the custody of companies engaged in the business of providing telephone, ... or other like services"), California's Penal Code would require that a peace officer file an application with a California court which "shall specify with particularity the records to be produced, which shall be only those of the individual or individuals who are the subject of the criminal investigation". Cal.Pen.Code Section 1326.1 [ http://law.onecle.com/california/penal/1326.1.html ] .

As you know, no such application has been filed by any law enforcement officer with any California court. In addition, the subpoena is in violation of New York as well as California law, because it is overly-broad and seeks irrelevant materials and privileged materials. New York CPLR section 3101(a) (material sought must be material and necessary); and 3101 (b) (barring discovery of privileged materials). [ http://codes.lp.findlaw.com/nycode/CVP/31/3101 ] . To the extent that the subpoena seeks the identities of anonymous followers of Mr. Rae, it violates his and their First Amendment rights, including the right to maintain anonymity. We assert that the foreseeable effect of your compliance to the subpoena would be to chill First Amendment activity using a Twitter account, or using any other online internet communications service. The subpoena has not been issued or signed by any judge and does not have the force of a court-ordered subpoena endorsed by a judge. Even if it had been endorsed by a New York judge, we assert that you are not within the jurisdiction of that court or its order unless a California court so decides. Accordingly, for the above-stated reasons and each of them, we submit that there is no legal basis for your providing the requested materials, and that doing so would be a violation of my client's privacy, and the privacy of his follower subscribers, as well as a violation of their other state, federal, and constitutional rights as described above. We respectfully request that you suspend action on this subpoena at least until you receive an order from a California court exempting New York County District Attorney Cyrus Vance from the applicable provisions of California, New York, federal, and constitutional law. We look forward hopefully to notice from you that you have agreed not to comply with this subpoena. Please feel free to contact this office to discuss this matter further. Thank you for your cooperation in this matter. Paul L. Mills Please reply to: plm36@columbia.edu Office: (646) 637-3693

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