Trial By Twitter Over Occupy Wall Street Tweets Could Set Privacy Precedent

In a potential landmark case, Twitter was ordered by Manhattan Criminal Court Judge Matthew A. Sciarrino 73 days ago to turn over three month's of tweets from Malcolm Harris. Accounts under contention are related to two of Harris's profiles on the microblogging site: @destructuremal and @getsworse.

Holding to its TOS and rights of privacy, Twitter tried to appeal the order and quash the subpoenas, but Judge Sciarrino ruled against these pleas in writing: “If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy.” It appears that the DA's office did not issue a warrant but relied solely on the judge's subpoena in this case.

Then San Francisco-based Twitter went to court on Harris' behalf, declaring he had every right to fight the subpoena. Its user agreements say that its members own content they post and can challenge demands for their records, and it would be "a new and overwhelming burden" for Twitter to have to champion such causes for them, the company argued in a court filing.

Twitter stands to be in contempt of this ruling on the 75th day following the June 30th order date, which would be Friday, October 14, 2012.

According to a Huffington Post report today, the Manhattan DA's office is seeking the information to combat Harris' defense that police led the march onto the Brooklyn Bridge roadway before turning around and arresting people for disorderly conduct and impeding vehicular traffic. Lawyers for others among the hundreds arrested October 30, 2011 on the bridge have agreed with that statement.

Prosecutors say the tweets, which are no longer available online, may demonstrate that Harris knew police had told protesters to indeed not walk on the roadway. Harris is still fighting a disorderly conduct charge from the big march on the Brooklyn Bridge last year and his motion to quash the subpoena has failed.

Protest groups including the American Civil Liberties Union are weighing in on the case supporting Harris and Twitter's stance. The ACLU declares the case is in violation of Fourth Amendment rights. "This is a big deal," ACLU lawyer Aden Fine said in a blog post. "Law enforcement agencies -- both the federal government and state and city entities -- are becoming increasingly aggressive in their attempts to obtain information about what people are doing on the Internet."

Last fall, a federal court ruled that Twitter had to reveal the private data of three WikiLeaks supporters. The court didn't seek a warrant to obtain the data in that case either, but apparently the case hinged more on the larger issues related to WikiLeaks' threat to national security. Twitter stood behind its users in that case, too, and even though it eventually lost, it cemented itself as an advocate for free speech and privacy online. Now, if only the city and federal governments would do the same.

So will Twitter be fined handsomely or will this case work its way up to the Supreme Court? Judge Sciarrino's last words on the case were slightly more  than 140 characters, so he couldn't have tweeted it - but at this based on its import, privacy rights for the Twittersphere don't look too rosy, making it very possible that this case could set precedence for others to come. Your thoughts readers?

Sep 13, 2012
by Anonymous

Privacy and Free Speech Rights

True - there is no expectation of privacy on Twitter.

What I am less clear about is whether Twitter bears the responsibility for providing tweet histories to courts. This depends on precedent. If Newspapers have historically been held in contempt for not providing copies of want ads (for example) then Twitter can likely be held in contempt for not providing Tweets. However, if there is case law for newspapers successfully defending themselves and not providing this type of information, then Twitter may be standing on solid ground.

There is the parallel issue of prosecutors trying to offload their cost onto public/private businesses. If these tweets can be retrieved in any other way, then it should be up to the prosecutor.

And lastly -- would the judge have taken the same position if it were the defense who demanded the tweets...

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