Occupy Wall Street protester Matthew Harris was among hundreds of people who were arrested last October following a protest on the Brooklyn Bridge. Harris was charged with disorderly conduct for allegedly walking in the street, as opposed to the sidewalk.
Harris (and others) are contesting the charges. They argue that they only moved to the street at the direction of the police.
The Manhattan District Attorney believes otherwise -- and also apparently believes that Harris's former Twitter account, @destructuremal, will help the government to refute the claim that the police themselves were responsible for Harris' move to the roadway.
The DA's office subpoenaed Twitter for all of Harris' messages between Sept. 15 and Dec. 31. (The tweets themselves are no longer publicly available; Harris now uses the Twitter name @BigMeanInternet.) Twitter informed Harris of the subpoena, and he promptly filed a motion to quash it. Criminal Court Justice Matthew Sciarrino Jr. denied that motion last month on the ground that Harris lacks "standing" to oppose the subpoena, because Twitter "owns" the tweets.
Sciarrino says that Twitter's terms of service grant the company a license to distribute tweets -- which means that Twitter owns the material. "Every single time the defendant used Twitter’s services the defendant was granting a license for Twitter to use, display and distribute the defendant’s Tweets to anyone and for any purpose it may have. Twitter’s license to use the defendant’s Tweets means that the Tweets the defendant posted were not his," the judge wrote.
He went on to rule that the Twitter account might be relevant to the charges -- which is a relatively easy standard for the government to meet.
Twitter disagrees with the judge on all counts. Today, the microblogging company filed a motion seeking to quash the subpoena.
Twitter makes the point that its terms of service provide that users own the material they submit. Additionally, the microblogging company argues, the federal Stored Communications Act provides that users can challenge requests for their material.
Twitter also argues that federal law requires the government to obtain a warrant -- and not a subpoena -- in order to access users' communications. That distinction is important because warrants can't be issued simply for material that might be relevant. Instead, the government needs to show it has probable cause to believe it will find evidence of a crime.
Whether Twitter will prevail is an open question at this point. Nevertheless, the company is scoring some major points today from a variety of industy-watchers -- including the civil rights groups ACLU. "While the government is bound by the First Amendment, the First Amendment may not always prevent private companies from restricting our free speech rights," the ACLU says. "That is why it is so important to encourage those companies that we all increasingly rely on to do what they can to protect their customers’ free speech and privacy rights. ... Twitter did so here, and Twitter should be applauded for that."