Mike Masnick at Techdirt reported it first: the United States Attorney's Office for the Northern District of Texas issued a federal grand jury subpoena to Twitter, seeking the identifying information for five Twitter accounts, including @popehat.
I'm 98.5% confident that this related to the federal prosecution of one Justin Shafer, who is charged with using computers to harass an FBI agent and his family. You can read about Shafer's background in Mike's post. You can read the complaint against him here.
Twitter sent me the subpoena. I searched twitter for interactions with the other accounts named in the subpoena — @dawg8u, @abtnatural, @associatesmind, and @PogoWasRight, and saw interaction on only two issues — the Shafer prosecution and the prosecution of John Rivello, accused of giving Kurt Eichenwald a seizure by sending a graphic file. I pulled up the dockets from PACER and noted that the AUSA who signed the subpoena is the same AUSA on the Shafer case, and there you go. As far as I can tell, the Assistant U.S. Attorney prosecuting Shafer subpoenaed Twitter to get this group of users' identities because, in a thread about the Rivello case, Shafer tweeted a smiley face at us in response to someone mentioning the same agent Shafer is accused of stalking.
I don't know whether the U.S. Attorney's Office's theory is that we're confederates, or who know about Shafer's activities, or that we're his sock puppets, or what.
I have three comments about this.
First, it's an odd use of resources to send a grand jury subpoena to discover my identity, when it's so public.
Second, though I'm public and thus don't care about my identity being revealed, some of the other Twitter users subject to the subpoena are not. I understand at least one of them may challenge the subpoena. That's good. The Department of Justice has no rational need to pierce the anonymity of the other Twitter users. This is part of a pattern of the Department of Justice seeking to uncover anonymous internet users for no good reason, as we saw when the Department of Justice subpoenaed Reason Magazine to discover the identities of some commenters who made rude (but absolutely not true-threat) comments about a judge. It's disturbing that the government would seek to strip Twitter users of anonymity just because a defendant sent them a smiley face unsolicited.
Third, when I read the subpoena yesterday, I was suddenly gripped with exactly the sort of impulses that I urge clients to resist: the overpowering urge to do something and talk to someone to straighten it all out. I was tempted to email the AUSA and introduce myself, and to argue that it's ridiculous that he subpoenaed my identity, and ask what the hell he wants. That, of course, would be extremely stupid, even though I've done nothing wrong — perhaps especially because I've done nothing wrong. Fortunately, just as I plead with clients to resist this urge to reach out to the government, I resisted it myself. But I must admit it is powerful.
Last 5 posts by Ken White
- Now Posting At Substack - August 27th, 2020
- The Fourth of July [rerun] - July 4th, 2020
- All The President's Lawyers: No Bill Thrill? - September 19th, 2019
- Over At Crime Story, A Post About the College Bribery Scandal - September 13th, 2019
- All The President's Lawyers: - September 11th, 2019

Aww, c'mon, you know perfectly well why he subpoenaed it, even though it's public knowledge — i.e., to get it in an admissible form. "Public knowledge" is unauthenticated hearsay.
Wouldn't you also urge your clients to resist the impulse to blog about these things?
Ditto to Mike:
"Wouldn't you also urge your clients to resist the impulse to blog about these things?"
It's cute how human we all are Ken!
😀
You're not submit an epic quash motion mentioning taint and ponies? :(
I was hoping for a resurrection of Prenda. There seems to be no need for me to thaw popcorn.
Please tell me that all of your information on file with twitter is something along the lines of "email address= [email protected]." Maybe not for today, and maybe not for tomorrow, but soon, we all know the government will inevitably get its hands on the information….all of our information, I suppose. I only say that because I am pretty sure that if we held a referendum on whether twitter should have to give all of its information to Trump, it might actually pass.
'Please tell me that all of your information on file with twitter is something along the lines of "email address= [email protected]." ' – Matt Miller
I shouldn't admit this, as it's potentially something they'll notice and block someday.
But my Twitter handle points to a "mailinator.com" e-mail address, i.e. not a real e-mail address; but a temporary fake one for verification.
I bet Twitter blocks me for this someday…
Probably right after they get editing in tweets.
So now we know that all it takes to get you blogging again is a specious federal grand jury subpoena.
So all this is because an FBI Special Agent can't stand mean things being said about him?
@Mike B:
As a lawyer, you'd think Ken would know better than to create a perverse incentive like that.
@ Mike
Re: "Wouldn't you also urge your clients to resist the impulse to blog about these things?"
It's cute how human we all are Ken!
There might be a reasonable distinction between what one would advise a client to do and what one can do oneself on one's own behalf. If my chess coach told me that I shouldn't dare to play a Budapest Gambit against player X, that wouldn't mean that the coach him- or herself shouldn't play it against player X.
That's not to say Ken should be blogging about this, but I would generally defer to his judgment.
Should you send up a Popehat Signal for yourself?
So I am new to this story, and I want to make sure I got this right…
Dude notifies companies/authorities of unsecured data which prompted a company that had unsecured patient data to call the FBI on the Dude. FBI decides to raid the Dude, where they find the data the companies left out in the open, and data supplied to him by a criminal (data that the Dude had allegedly forwarded to the FBI prior to the raid). Based on the data the FBI found on his computer (and apparently not from their own inbox) they raid him a second time on the theory he is in cahoots with the criminal. Dude gets pissed, finds the agent leading the raids/investigations and messages him and his wife things like "can I have the videos of my children back?" which prompts a third FBI raid. Dude smiles at Ken, and the FBI thinks Ken is a cahooter?
How much does this nonsense cost the tax payer, and how often does crap like this happen??
In this case, I think the proper signal is a raised middle finger. YMMV
And, here I was hoping you'd blog about the demise of famed Twitterer lawyer "Actual Flatticus." But even that didn't get you!
For anyone too lazy to read the entire Techdirt article:
"As an aside, look closely at that criminal complaint against Shafer. I have no idea why but it appears that the FBI/DOJ is so clueless that rather than submitting the final complaint, they actually submitted the copy showing the "comments" on the Word doc they were using to prepare the complaint — which shows two comments that both suggest the FBI is well aware that this complaint is weak sauce and probably doesn't meet the standard under the law… but this story is crazy enough without spending too much time on that."
… which really says it all about how much of a farce the whole underlying thing is.
> Twitter sent me the subpoena.
"Isn't that special…"
I don't think Twitter is a valid method of delivering a subpoena. Even if they sent you a letter via USPS.
After going off on an interesting journey through the web, I find the Federal law concerning delivery to be even more restrictive than my state law.
#youarefucked
Skippy the wonder Agent & the soon to be tossed in the volcano AUSA are posterchildren for how dysfunctional "justice" is in this country.
Settling petty scores & harassing people who dare question the questionable actions by using more questionable actions.
Being a loving caring person, I made an emoji Popehat Signal for use in cases just like this.
Your invitation to the Star Chamber is in the mail.
RE: TRX
Ken wasn't the target of the subpoena, so Twitter did not serve it to him. Twitter sent Ken a copy of the subpoena so that Ken would know it exists so he could contest it if he wanted to do so.
edit: Nice to see a new post from you, Ken!
Some at Techdirt calling themselves "John Smith" is very, very glad about the subpoena issued against Ken, and (as far as I can tell) thinks it will unravel some sort of conspiracy. Anyone know what this person is going on about?
I guess parking a woodchipper in front of the Fan Belt Inspector's office would be over the top.
You can crack this damn case wide open, cochise!
I enjoyed your blog before you were thrown in the hoosegow for smile crimes.
Perhaps, but he's not blogging about anything he did or didn't do. He's blogging about the subpoena itself, which is safer territory. And he's not talking with a federal agent by blogging, so if he's accidentally wrong about something they can't claim he's obstructing the investigation and charge him for it.
And frankly this is something he might be blogging about even if he wasn't one of the people whose information was sought – if the government can shut up anyone they like simply by mentioning them in a subpoena, that's a bad thing.
I'm not sure what possessed Shafer to contact the agent's wife. That's going to justifiably piss a whole bunch of authoritarians off, and there's not going to be any sympathy anywhere up the chain. It's being as much of a bully as anything the agent did… except even worse. A reasonable observer could attribute the agent's actions as just plain ignorant, but Shafer's actions were undeniably intentional. And, think about who the judges and AUSAs and agents normally deal with… at least Shafer is pretty obviously not a threat, just a colossal dumbass.
Luckily, in my view, the feds have doubled down on their… ignorance… by trying to rope in others in what clearly looks like an act designed to intimidate Shafer. It's a re-retaliation. That was a misstep.
Now, a reasonable judge or AUSA, while recognizing what Shafer did as reprehensible, might see that the agent is not doing anything to deescalate, and they can probably be convinced that the whole thing should be dropped and that Shafer should be placated at least by sending him his data and devices back unharmed. It's not going to feel nice, but based on the TD article, it's the right thing to do here.
If the feds continue to pursue at this point, they're going to fail in an increasingly public way, and no-one in the Dallas office is going to like that. No-one likes to be painted a laughingstock. The decision to go hard after the whistleblower is indefensible. It smells a bit of "someone at the FTP company knew they were on the hook/financially liable as to the open data, also knew someone at the FBI, and walked right into the Streisand Effect by enlisting the FBI friend to strong arm the whistleblower in a completely ridiculous attempt to block further disclosure." Anyway, it's just as feasible that the FBI simply overreacted out of plain ignorance. It's happened before.
Glad to get a post out of you, Ken.
I think it's important that you file something with the court in opposition to this nonsense, but it should be written only in emoji's.
Great to have you back at the blogging game regardless of circumstances
A single emoji, if possible.
Would the Popehat Signal work for Popehat, or would that lead to unending recursions?
Good Luck Popehat, whoever you may be.
No gag order?
Preet Bharara is not impressed with the quality of the NDTX U.S. Attorney's Office.
Oh, and as for the guy who asked who John Smith is, I'd bet it's waste of skin and welfare queen Gordon Roy Parker.
;-D
@Jig, Do you really think mentioning the name of the agent’s wife on Twitter is a WORSE form of bullying than conducting multiple armed raids on a man’s home; charging said man with patently frivolous federal felonies (carrying prison time); and then dragging four innocent bystanders into the fray for the offense of receiving an unsolicited smiley face? All, mind you, under color of law.
Jesus wept, Dude, I don’t know what to say.
I'm willing to bet that this has nothing to do with the investigation into the cyberstalking and doxxing charges against Shafer (as ridiculous as that case is) and a lot more to do with the much larger investigation into the crimes of The Dark Overlord (TDO) and Shafer's connection to that case. I speak with Justin at the Kaufman County Detention Facility where he's being held quite often. He told me a few weeks ago that the AUSA prosecuting his case has told his lawyer they don't believe he's just a co-conspirator of the The Dark Overlord, but the mastermind of the group itself. Pogowasright works with Shafer in reporting many of the breaches Shafer, and others, have exposed. Pogowasright also reports extensively on TDO's exploits and has had contact with them according to the databreaches.net website. So I don't think it was the smiley face alone that triggered this, it was the inclusion of Pogo and the smiley. Shafer has a tendency to use smileys a lot. His so-called 'threatening' messages to the FBI agent's wife which caused all that severe emotional duress to the family were each appended with a smiley face. I wouldn't be surprised to learn that the agents investigating the case think the emoji's are some sort of secret code. I honestly think the FBI is so absolutely desperate to find something, anything, leading them to TDO that they're flailing around throwing wet grand jury subpoenas at the walls and seeing what sticks. That doesn't change the fact that they don't seem to grasp how Twitter works and just how much of an overreach this request is. Shafer told me on Monday that he is being offered a reverse proffer this coming Friday the 27th and apparently his lawyers can't make it. He doesn't want to go in alone. I'm not even sure if he's forced to do so or not. I sure hope he can keep his cool.
Just in case this smiley :) isn't enough to implicate you in whatever my activities are, I'm going to add a 1980s BBS-style rose to prove beyond any possible doubt that we're joined at the hip.
—-{—{@
@Ming
No, I don't think what you mention is worse, but that's not the act of Shafer's I was pointing to in my post, and, regardless, that's not really the point.
As I noted, the fed being a fed could just be ignorant and following some ignoramus protocol. Everything Shafer did was intentional. So, while what the fed did may have worse effects, the state of mind behind Shafer's acts is probably, objectively, worse. And that matters. It certainly matters in a court room.
Aside from that, would you ever think it's ok to contact the wife of a federal agent and ask her to pass a message to the agent regarding an active investigation that involves you? Or would you tend to think such communication could reasonably be viewed as a threat and that it was perhaps a better idea to contact the local press and proceed that way… or really, in ANY other way? Talk about Jesus weeping, I have no idea what you're advocating here.
@JIG
Spoken like someone who's never had their homes raided at gunpoint three times.
Why don't I just tweet you a frowny face to cancel out the smiley face so the U.S. government is freed up to throw its resources at Equifax for a while?
Cromulent Bloviator, I see your rose and raise you a look of disapproval:
ಠ_ಠ
TWO WOODCHIPPERS
45 METRIC TONS OF METH
19 FEET OF BALING WIRE
AND ONE CLOWN
@Matthew Cline
Yeah, unicode and emojis totally ruined the whole thing. It used to be a personal expression, now it is just a sign people can wave. It is like the difference between singing a song, or carrying a boom box.
Sad, so sad, the way even something sacred like ASCII art is debased by modern society. Darn whippersnappers!
It almost makes you want to flip a table!
@Jig: I’ll simplify it for you. You have to choose one, which would you prefer: (1) Some dipshit messages your wife on Facebook or (2) The Feds conduct multiple armed raids of your house, seize your belongings, and charge you with felonies, carrying prison time?
Ignore it. They can't issue a subpeona over Twitter. You could argue that it wasn't an official means for a government related body to contact you regarding legal matters.
Jig says October 24, 2017 at 8:20 pm:
These agents are expert on every subject imaginable, based on their "training and experience". Read any warrant application.
No problem. They'll just indict anybody who laughs.
Now and forevermore to be referred to as Ken "if that is even your real name" White.
Are we certain this wasn't caused by a complaint from a disgruntled pony?
@Ming: At least we can agree that Shafer is a dipshit.
@Anonymouse: Or, spoken like someone who's never going to provide easy cause for the feds to raid their home at gunpoint the second two times.
There are better and much more effective ways to escalate a response to abuse of power, and they're obvious and just as inexpensive. Shafer is lucky that the Feds have gone so bonkers as to try to drag Ken into this. If, instead, they had simply stopped just short of issuing that subpoena…
I may be a cynic, but at least I'm not so cynical as to be able to contemplate multiple armed raids as being somehow unintentional, or otherwise devoid of moral agency.
You could object on the ground that the only way you know your identity is that your mother told you, and that's hearsay.
Your home is only your castle if your door is too thick for them to penetrate.
Volcano island highly recommended.
Well Ken, I don't think you're going anywhere, but don't worry, even if I'm wrong, you know the difference between the maximum term in the statute and the term prescribed in the sentencing guidelines. I just wanted to comment about what would happen to your blog during your brief stay at the minimum security facility, and offer my services as Guest Editor. Ken, I can make you cool again and skyrocket your readership. I'll give it to you in just three words…
Grateful Dead autoplays
There, I know your heart's beating faster just reading that. I'll also make you a bundle of cash by introducing a line of PH merch, including coffee mugs, T-shirts and athletic cups. The content would look pretty much the same except for the occasional vicious anti-Trump screed and Lakers coverage, and of course you could have your lawyer forward me your blogposts. If you want to be heard on the outside while you're in the inside, shoot me an email.
About messaging the agent's wife, I wouldn't say that it's about the morality, immorality or justifiability* of it, I'd just say it was dumb. Like… what were you hoping to achieve with that, bubba? Helping your case – yeah… not so much? Personal vengeance/catharsis – just calling him a fascist shitlicker would have probably made you feel way better and gotten you into less trouble. Hoping there'd be a personal epiphany of "now I see why I was wrong" – yeah… wasn't going to happen. So, seriously, why?
* (it was wrong and regardless of what the agent did, two wrongs don't make a right when it comes to tracking down the family of people you don't like – unless you're reporting an online troll to his or her mom.)
I urge Ken to push back against this subpoena and contest it, as it is clear over-reach. To make it more absurd, do it under your own name.
You should counter-sue under RICO.
We live in a strange world. Some of my hate mail says, "We've found you now!". I find this so confusing. I have a web page which I maintain, so people can find me and my published work. There is a wee wikipedia entry about me. Do they want a cookie? I refuse to engage to find out, but I do wonder about the underlying thought processes.
Jean Camp says October 30, 2017 at 7:27 pm:
That's what makes AUSA such a great job these days. They've made having no discernible thought processes a job requirement.
And they get to send real subpoenas instead of ordinary hate mail.
BTW — excellent and informative web page. Extra informative for leading with a useful tip about credit reports.
Just FYI, and update, the defendant was released today. Judge appears sympathetic-ish.
https://www.databreaches.net/security-researcher-released-had-been-jailed-8-months-while-awaiting-trial-on-charges-of-cyberstalking-an-fbi-agent/