Twitter Appeals Order Forcing It To Disclose Protester's Tweets

by Wendy Davis, Jul 19, 2012, 6:08 PM

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Twitter said today that it will ask a higher court to vacate an order requiring it to turn over information connected with Occupy Wall Street protester Malcolm Harris's former Twitter account -- including his tweets over a 10-week period and the IP addresses connected with them.

"We're appealing the Harris decision," tweeted Benjamin Lee, a lawyer for the microblogging service. "It doesn't strike the right balance between the rights of users and the interests of law enforcement."

The order itself, issued last month by New York Criminal Court Justice Matthew Sciarrino Jr., is open to criticism on numerous fronts.

In his decision, Sciarrino rejected arguments by Twitter -- as well as civil liberties groups -- that forcing Twitter to disclose the information would violate Harris's privacy and free speech rights. Instead, Sciarrino ruled that because Harris's tweets were public at one time, he can't now prevent law enforcement from accessing them.

"If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy," Sciarrino wrote. "This is not the same as a private email, a private direct message, a private chat, or any of the other readily available ways to have a private conversation via the internet that now exist."

That reasoning ignores the reality that Harris took subsequently steps to limit the tweets' visibility. Sciarrino's order also apparently ignores the fact that some of the information requested by the prosecution was never publicly available -- such as his IP address at the time of the tweets.

The dispute stems from a demonstration on the Brooklyn Bridge. Harris (along with hundreds of others) 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 the protesters to move to the street.

The Manhattan District Attorney hopes that Harris’ tweets will refute that claim. The prosecutor subpoenaed Twitter records related to Harris’ account from Sept. 15 through Dec. 31.

Harris moved to quash the subpoena. In a dubious bit of reasoning, Sciarrino initially denied that motion on the ground that Harris lacks "standing" to oppose the subpoena.

Sciarrino concluded that Twitter, not Harris, owns the material because the microblogging company's terms of service grant the company a license to distribute tweets. Therefore, only Twitter could move to quash the subpoena, according to Sciarrino.

Twitter did so, arguing that the prosecutor needed a search warrant to access the material, not just a subpoena. Judges generally won't sign search warrants unless law enforcement officials show they have probable cause to believe they will find evidence of a crime. A subpoena only requires the authorities to show they will find relevant information.

Twitter also said that users should be able to fight for privacy themselves. Otherwise, people's privacy depends on the willingness of companies like itself to get involved in these types of legal disputes.

Sciarrino rejected all of Twitter's arguments. While the ruling disappointed civil liberties groups, it also set the stage for an appellate court to clarify when law enforcement officials can obtain material held by social media companies.

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