Free Minds & Free Markets

DOJ Demands Info on Popehat and Others Tagged in Smiley Emoji Tweet

The feds are now going after social-media users for being tagged by Twitter accounts they don't like.

Leander Baerenz Westend61/NewscomLeander Baerenz Westend61/Newscom

The Department of Justice (DOJ) is demanding extensive information on five Twitter users for the sin of being tagged in a post containing a single smiley-face emoji.

Techdirt reported today on the legal saga, which ensnared five Twitter accounts, including First Amendment lawyer and Reason contributing editor Ken White, also known as "Popehat."

The other users included laywer and author Keith Lee (@associatesmind), privacy activist "Dissent Doe" (@PogoWasRight), "Mike Honcho" (@dawg8u) and "Virgil" (@abtnatural). All are "folks who are quite active in legal/privacy issues on Twitter," according to Techdirt's Mike Masnick.

The subpoena, initially sent in May, asked Twitter for all names, physical addresses, and email addresses associated with each account. It also wanted:

  • Records of session times and durations, and the temporarily assigned network addresses (such as Internet Protocol ("IP") addresses) associated with those sessions;
  • Length of service (including start date) and types of service utilized;
  • Telephone or instrument numbers (including MAC addresses, Electronic Serial Numbers ("ESN"), Mobile Electronic Identity Numbers ("MEIN"), Mobile Equipment Identifier ("MEID"), Mobile Identification Numbers ("MIN"), Subscriber Identity Modules ("SIM"), Mobile Subscriber Integrated Services Digital Network Numbers ("MSISDND"), International Mobile Subscriber Identifier ("IMSI"), or International Mobile Equipment Identities ("IMEI"));
  • Other subscriber numbers or identities, or associated accounts (including the registration Internet Protocol ("IP") address);
  • Means and source of payment for such service (including any credit card or bank account number) and billing records.

The tweets that launched this extensive data demand? Here they are:




The last tweet, containing a single smiley, is where the trouble started. Justin Shafer is a security researcher who has helped take down flawed or fraudulent encryption services. But after his work helped the Federal Trade Commission settle a claim against one deceptive encryption provider, the FBI raided Shafer's house and seized all of his electronics.

In his research, Shafer had "come across an FTP server operated by another dental software company, Patterson Dental, which makes 'Eaglesoft,' a dental practice management software product," explains Techdirt.

Shafer had discovered an openly available anonymous FTP server with patient data. Shafer did the right thing as a security researcher, and alerted Patterson. However, rather than thanking Shafer for discovering the server they had left with patient data exposed, Patterson Dental argued that Shafer had violated the [Computer Fraud and Abuse Act] in accessing the open anonymous FTP server. Hence the FBI raid.

Not surprisingly, Shafer was none too pleased with the FBI's decision to raid his home and take all of his electronics. In particular, it appears he was especially annoyed with FBI Special Agent Nathan Hopp (who he initially believed was actually Nathan "Hawk.")

Fast forward to March of this year, to an entirely different story: the FBI arresting John Rivello for "assaulting" journalist Kurt Eichenwald with a tweet....Lots of people, including us, posted the criminal complaint, that was put together by one Nathan Hopp, a special agent at the FBI.

On March 20, White—a former U.S. assistant attorney—tweeted about the Rivello case, prompting "Virgil" to share the Rivello complaint, Lee to ask where he had obtained it, and "Mike Honcho" to comment that Hopp must be "the least busy FBI agent of all time." A day later, Shafer sent several tweets containing (publicly available) information about Hopp, prompting the FBI to start putting together a cyber-stalking complaint against Shafer.

When Shafer replied to the string of Rivello tweets with a smiley-face emoji, it caught all five tagged users in the FBI's crusade against Shafer. Somehow an unprompted, single-character tweet from Shafer was enough for the FBI to find everyone else in the thread suspicious and demand their data.

This week, Twitter alerted the five users in question about the subpoeana. Dissent Doe says Twitter is fighting back against the government's request.

On Tuesday afternoon, White commented on the case. "I don't know whether the U.S. Attorney's Office's theory is that we're confederates...or that we're his sock puppets, or what," he wrote, noting that "it's an odd use of resources to send a grand jury subpoena to discover my identity, when it's so public," and that the government "has no rational need to piece 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," White continued, "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." (Read more about Reason's subpoeana saga here.)

This summer, the Justice Department issued a "sweeping demand for information about an anti-Trump website, a dragnet that civil libertarians had criticized as an assault on freedom of speech and freedom of association that was apt to intimidate the president's opponents," as Reason's Jacob Sullum put it. DOJ has also been seeking ample info from social networks related to its probe into possible Russian election meddling. Twitter has been pushing back against that request too.

Photo Credit: Leander Baerenz Westend61/Newscom

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  • Crusty Juggler||

    I didn't understand a word.

  • BestUsedCarSales||

    FBI is crusading against guy A. Guy A tweets a response to guys B,C,D,E. Now Guys B,C,D,E are being investigated by the FBI as they considered their interactions probable cause.

  • Crusty Juggler||

    BUCS > ENB imo.

  • BestUsedCarSales||

    Everyone else keeps saying that the commentators are better writers than the staff, I was just the first to put up and prove it.

  • Fist of Etiquette||


  • Diane Reynolds (Paul.)||

    Actually we do. I got 1/2 way through the post and felt like I was reading the account of Jr. High kids who were all unfriending each other on snapchat or something.

  • Citizen X - #6||

    There is no junior high Snapchat kid more petty than the federal government, it is known.

  • Psion||



  • Charles Easterly||

    Regarding I didn't understand a word.


    Everyone else keeps saying that the commentators are better writers than the staff.... and similar impressions,

    here is a look at the reading level of ENB's article.

    There is also this: Her use of passive sentences was a mere 3%, which is far superior to most of us who write - myself included.

  • Charles Easterly||

    Upon checking I notice that my link requires an extra click. Here is what it leads to for those of you who do not want to try the link I provided:

    Flesch Reading Ease score: 36.3 (text scale)
    Flesch Reading Ease scored [this] text: difficult to read.

    Gunning Fog: 15 (text scale)
    Gunning Fog scored [this] text: hard to read.

    Flesch-Kincaid Grade Level: 13.9
    Grade level: College.

    The Coleman-Liau Index: 13
    Grade level: college

    The SMOG Index: 12.5
    Grade level: college

    Automated Readability Index: 14.5
    Grade level: College graduate

    Linsear Write Formula : 16.1
    Grade level: College Graduate and above.

  • Crusty Juggler||

    The grammar received a passing grade.

  • BestUsedCarSales||

    Nah, no ways she's as good a writer as I be.

  • Eidde||


    How's that?

  • BestUsedCarSales||

    Should have italicized liked and no period at the end. Come see me after class.

  • Eidde||

    This isn't going to end up as a Van Halen video, is it?

  • Citizen X - #6||


  • Crusty Juggler||

  • Hugh Akston||

    FFS dude, when you're 'shipping two people, the proper format is "person1"x"person2".

    It's like you don't even fanboi.

  • BestUsedCarSales||

    Everyone knows the otc of Reason is Kennedy and Matt anyway.

  • Fist of Etiquette||


  • Uncle Jay||

    an IRS audit.

  • Memory Hole||

    FBI is very likely persecuting guy A...

  • BestUsedCarSales||

    "it's an odd use of resources to send a grand jury subpoena to discover my identity, when it's so public," and that the government "has no rational need to piece the anonymity of the other Twitter users."

    It's kind of the precise usage of government resources I would expect.

  • Citizen X - #6||

    Damn, it is such a relief to know that all the crime is over. That's why the FBI is wasting its time on this bullshit, right?

  • BestUsedCarSales||

    Please, I know you're exaggerating your ignorance for the sake of humor. I know the kids call that "sarccasm" these days. But it seems a bridge too far to act like you believe that the FBI's goal is to fight crime.

  • Citizen X - #6||

    Don't sarc-shame me, shitlord, it has been a day.

  • BestUsedCarSales||

    Sarcasm is the only Free Speech I defend, and I will defend it to the death.

  • BestUsedCarSales||

    All subsets, both ironic and detached.

  • Johnny B||

    It is becoming apparent that the FBI's own job description, at least with Comey and Mueller, is to save the Democrats and indict Republicans. But this sideshow is complete BS. And generally speaking, I think people who mess with Popehat end up regretting it.

  • Fist of Etiquette||

    Would you rather the FBI be distributing child pornography on the internet? Sicko.

  • SQRLSY One||

    Hey! The FBI is the very BEST at distributing child pornography on the internet!!!

    WHERE do you expect the children to get their porn, if it wasn't for the FBI?!?!?

  • BestUsedCarSales||

    Huh, I never realized Child Porn was Porn for Children.

  • Elias Fakaname||

    When this Shafer guy was investigat8ng the dental case, he clearly got too close to findling out where they have the fillings stashed, and the naughty dentists must have some pretty strong pull with the FBI. It's similar to this situation.......

  • Crusty Juggler||

    ^ Anti-dentite bastard.

  • Elias Fakaname||

    You're just trying to block my investigation into the fillings.

  • Principal Spittle||

    If a dentist came at me with a file I'd do more than report him to the FBI.

  • Diane Reynolds (Paul.)||

    You know who else received a subpoena for stuff on their website?

  • Citizen X - #6||


  • Eidde||

    Wait, I know you're not supposed to say "Hitler," but Hitler has to be one of the correct answers for the game to work.

    /annoying person

  • Ska||

    Man in the High Castle universe P89401476 Hitler?

  • SIV||

    Twitter is fighting back against the government's request.

    Unlike a certain Billionaire-backed cosmotarian website I won't mention

  • Hugh Akston||

    Elvis, his prized orpington?

  • Citizen X - #6||

    Not after Elvis ran off with a fucking hen, that bitch.

  • Diane Reynolds (Paul.)||


  • Fist of Etiquette||

    Glibertarians dot com?

  • John||

    You only have the right to subpoena something if there is probable cause to believe what is being subpoenaed will produce relevant evidence to the case. There is no reasonable basis for believing this. The problem here is not the rules. The rules are fine. The problem is that DOJ never abides by the rules and is never held accountable. No DOJ attorney is ever disciplined much less disbarred or in any way sanctioned no matter how outrageous and abusive their conduct.

  • Memory Hole||

    Do you think State Bar Associations should take a leading role in sanctioning government lawyers who seem so far beyond the reach of justice for these outrageous abuses?

  • John||

    No. The state bar associations are a joke. They rarely enforce the rules at all much less against the government.

  • Consigliere of the Dark Ones||

    We are very pleased with the actions of the state bar associations.

  • Qsl||

    This would however come under the purview of the GAO. I have no idea of their remedies, but agencies get really antsy when they are under review.

    Perhaps someone could contact their congressman and drop them a line?

  • Hugh Akston||

    If I were the sort of commenter who was inclined to say such things, I might remark that FBI Special Agent Nathan Hopp is an overly sensitive crybully who abuses the power of his office to pursue personal vendettas against people who criticize him. I might also suggest that Congress would do well to reduce the FBI's operating budget by exactly the amount of FBI Special Agent Nathan Hopp's compensation package, because obviously the agency has too much money to waste on frivolous bullshit. And by frivolous bullshit, of course, I would hypothetically mean the continued employment of FBI Special Agent Nathan Hopp.

    But of course I'm not that sort of commenter, and I would never criticize the brave federal agents who protect our nation from dangerous social media emojis.

  • Charles Easterly||

    Nicely done Hugh.

    It is likely evident to rational - or at least reasonable - individuals that I am complimenting you on your ability to imitate the thoughts and writings of a hypothetical commentator.

  • Consigliere of the Dark Ones||

    FBI Very Special Agent Nathan Hopp has been working very hard to earn a Very Special Place in Hell.

  • John||

    Remember, the same FBI that is totally unable to stop terrorist attacks no matter how obvious the terrorist makes their intent had the time to go after this guy. The FBI has long since ceased to serve any useful purpose. The entire organization needs to be scuttled.

  • Crusty Juggler||

    I hate that guy's color combination.

  • Diane Reynolds (Paul.)||


  • Hugh Akston||

    Well you won't have to deal with it for long since he's falling to his death.

  • Uncle Jay||

    DOJ Demands Info on Popehat and Others Tagged in Smiley Emoji Tweet
    The feds are now going after social-media users for being tagged by Twitter accounts they don't like.

    Those evil emojis should be investigated.
    That's how Hitler and Stalin got into power.

  • Brandybuck||

    I know Patterson Dental. Never did any software for them though. But I HAVE written for software for some companies that couldn't be bothered to set up any secure servers, so data is accessed over plain old anonymous FTP. I explained the problem to them, they didn't care.

  • Diane Reynolds (Paul.)||

    It's so easy to set up an SFTP server.

  • Morbo||

    Would't that count as a HIPAA violation? Just curious.

  • Bryan Chandler||

    People with "A series of tubes" level of understanding of tech have subpoena powers.


  • croaker||

    Woodchippers for everyone!

  • Hank Phillips||

    It's not April Fool's day, but the whole thing seems too Remarque-ably unreal, too reachingly fantastic to credit. All the happier to have never had anything to do with the Twit thingie, and fond hope that both flavors of looter snowflake go the way of the Calico Cat and Gingham Dog.

  • JamesF||

    His initial treatment for responsible discovery and disclosure is reprehensible. The FBI also should return his "tools of trade" to him promptly once they've processed it for evidence.

    Speaking of evidence, I'd like to see this evidence that the hacker guy selling the stolen records for bitcoins shared accounts with the security researcher. It's difficult for me to believe that he would turn around and sell records that were stolen from the same FTP drop he reported, but given his unsettling behavior towards the wife, I wouldn't put it past him to say "screw it, guess I'll go black hat then, if white hats get treated this way". He may be a talented security researcher, but he's not somebody I necessarily want as a friend to the libertarian movement.

    At the end of the day though, it beggars belief that all these e-celebrities are criminal associates of his, and for the FBI to maintain that the mere act of being tweeted at is sufficient for a subpoena shows what little respect the FBI has for our right to be free from search and seizure.

    It bears repeating, try not to send unsolicited messages to an agent's wife about your case! There exists more proper recourse than that! It must have been terrifying for her, and although I absolutely don't think it escalated into the criminal realm, it shouldn't have been done. FBI needs to clean up their act too though, there's good reason a lot of us here have such great contempt for them.

  • Mark22||

    New justice department under Trump... same as the old Justice Department under Obama.

  • Longtobefree||

    Still confused. Was it the smiley itself, or the reference to a defunct right wing comic strip that caused all the fuss?

  • UnrepentantCurmudgeon||

    This kerfuffle is the best argument I've seen yet for the end of social media as we know it

  • μ Aggressor||

    Did shafer ever get indicted for that bullshit computer abuse charge where the fbi raided his house?


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