Civil Rights Groups Back 'Occupy' Protester In Twitter Fight
Civil liberties groups are backing protester Malcolm Harris in his effort to stop the government from obtaining information connected with his former Twitter account -- including his tweets over a 10-week period and the IP addresses connected with them.
The groups say in a friend-of-the-court brief filed in New York this week that the government's request violates Harris's free speech rights as well as his privacy rights.
The dispute grew out of a protest last October in New York City. Harris was one of hundreds of Occupy Wall Street protesters arrested during a march on the Brooklyn Bridge. He was charged with disorderly conduct for allegedly walking in the street instead of the sidewalk. Harris denies doing anything wrong; he says that the police told him (and other protesters) to move to the street.
The Manhattan District Attorney subpoenaed Twitter records related to Harris's account from Sept. 15 through Dec. 31, in hopes that his tweets would refute the claim that the police made him move to the roadway. Harris sought to quash the subpoena.
Criminal Court Justice Matthew Sciarrino Jr. denied Harris' motion on the ground that he lacks "standing" to oppose the subpoena. Sciarrino reasoned that Twitter, not Harris, owns the material because the microblogging company's terms of service grant the company a license to distribute tweets.
Twitter then filed its own motion to quash the subpoena, arguing that its terms of service provide that users own the material they submit. Twitter also points out that the federal Stored Communications Act provides that users can challenge requests for their material.
Twitter also argues that federal law requires a warrant -- not just a subpoena -- in order to access users' communications. That distinction is important because judges aren't supposed to issue warrants unless the authorities show they have probable cause to believe it will find evidence of a crime. A subpoena only requires the authorities to show they will find relevant information.
The ACLU, New York Civil Liberties Union, Electronic Frontier Foundation and Public Citizen weighed in this week. They argue that Harris (and other users) have the right to challenge subpoenas for information held by third parties like Twitter.
"Because Twitter and similar entities do not have the incentives to challenge these government requests -- in large part because their own rights are not primarily at stake -- Internet users, the individuals whose constitutional rights are at stake, are precisely the people who should have standing to try to defend those rights in court," they argue.
The groups also criticize the government's subpoena as "particularly invasive," arguing that the prosecutor is seeking not just tweets, but IP addresses connected to them. "Knowing Harris’s location when he was expressing certain thoughts will provide meaning to some of his tweets," the argue. "For example, a message like 'I like the government here' ... would mean one thing if tweeted from Peoria and quite another if tweeted from Pyongyang."
The groups also argue that even though Harris's tweets were once publicly available, that doesn't mean that the government should be able to obtain them after they've been removed. "Technological advances have made possible government fishing expeditions into databases of information and communications that would have been impossible in the past," they say. "Although the government always could have attended a suspect’s public speeches in the course of its investigations, it has never before had the capacity to review, in retrospect, the content and location of every public speech made by a criminal defendant for a three-plus month period."