• by Wendy Davis , Staff Writer @wendyndavis, May 17, 2013

An appellate court in New York has dismissed Twitter's appeal of a ruling requiring it to turn over the records of Occupy Wall Street protester Malcolm Harris, who was arrested for disorderly conduct during a protest in 2011.

The court said this week that questions about the legality of the ruling were “academic,” because Twitter had already turned over the information. That's the type of ruling that makes advocates want to tear out their hair: The only reason Twitter complied with the subpoena was because the appellate court refused to stay a trial judge's order requiring the microblogging service to do so.

In other words, the court said Twitter had to disclose information, and then refused to hear Twitter's appeal because it did so.

The case dates to the fall of 2011, when Harris was accused of blocking traffic on the Brooklyn Bridge by walking in the area reserved for cars. The Manhattan District Attorney's office subpoenaed Harris's records from Twitter, in hopes of proving that his tweets would show he deliberately went into the street. At that point, Harris's tweets were no longer publicly available.

Harris challenged the subpoena, but Judge Matthew A. Sciarrino, Jr., ruled that Harris lacked “standing” because the subpoena didn't require him to turn over any information. The ruling meant that only Twitter could challenge the subpoena.

Twitter then filed its own challenge, arguing that prosecutors had no right to the information unless they obtained a search warrant. Sciarrino rejected Twitter's position and ruled that the prosecutor was entitled to obtain the data with just a subpoena.

Sciarrino ruled that federal Stored Communications Act only requires a subpoena -- and not a search warrant -- for data more than 180 days old. Despite that law, one federal appeals panel has said that the constitutional ban on unreasonable searches and seizures nonetheless requires law enforcement to obtain search warrants before accessing users' messages. In that case, the 6th Circuit Court of Appeals ruled that the police must obtain a search warrant before they're entitled to email messages.

That difference is crucial: To obtain a search warrant, prosecutors must show there's probable cause to believe the material sought will yield evidence of a crime. But subpoenas only require showing that information is relevant to an investigation.

There's an ongoing effort on Capitol Hill to revise the Stored Communications Act to require search warrants for all digital messages, regardless of how long they've been stored. In the meantime, the New York appellate court lost an opportunity to weigh in on the issue by punting.

As for Harris, he pleaded guilty to disorderly conduct after his tweets were turned over. They reportedly showed that he heard the police tell protesters to stay out of the street.