Judge Says Twitter Records Subject To Subpoena By Prosecutors
An Occupy Wall Street protester has lost his bid to quash a subpoena seeking his Twitter records from last fall when he was arrested during a mass protest on the Brooklyn Bridge. Thus, opening the door for future court cases across the country involving privacy and or ownership of Twitter Accounts and "Tweets."
NY Criminal Court Judge Matthew Sciarrino Jr., who is overseeing a special courtroom dedicated to handling nearly 2,000 Occupy-related cases, ruled that Malcolm Harris did not have standing to challenge the third-party subpoena. Prosecutors from the Manhattan District Attorney's Office served the subpoena on Twitter in January, requesting Harris' user information and more than three months' worth of tweets. In a ruling punctuated with Twitter users' beloved hashtag marks, the judge said prosecutors weren't overreaching by seeking Malcolm Harris' public tweets for weeks before and months after his Oct. 1 disorderly conduct arrest on the Brooklyn Bridge, as well as the user information surrounding the Twitter account he used at the time.
"There is, in fact, reasonable grounds to believe the information sought was relevant and material to this investigation," Manhattan Criminal Court Judge Matthew A. Sciarrino Jr. wrote in a decision last Friday. He also found that Harris doesn't have legal standing to challenge a subpoena directed to Twitter Inc., not him. The judge compared Harris to a bank account holder who by law cannot challenge a subpoena of his records served on his bank. "Twitter's license to use the defendant's Tweets means that the Tweets the defendant posted were not his."
Harris' bid to quash the subpoena "is denied," the judge wrote, underscoring "quash" and "denied" with hashtags, which Twitter aficionados use to mark key words. Sciarrino added, however, that he would review the material before the Manhattan District Attorney's Office sees it, in light of Harris' privacy concerns. Even though Harris lacked standing, Sciarrino said prosecutors had met the low legal threshold required to issue a subpoena. In particular, he said prosecutors had shown that the tweets could have relevance to the case against Harris, by calling into question his "anticipated defense" that police officers led protesters onto the bridge before arresting them in October.
Martin Stolar of the National Lawyers Guild, who is representing Harris and filed the motion to quash, said he was planning to file a motion to re-argue. "I think the judge is incorrect in his understanding of the law," he said. The NLG and Harris' lawyer said the time span was unreasonably broad, and although the tweets were sent publicly, seeking the accompanying user information violated Harris' privacy and free association rights. "There's a whole universe of information out there that deals with the associations that Mr. Harris has," Stolar said at a court hearing in March.
Prosecutors said it was fair game to go after publicly sent messages, some of which are no longer visible because newer ones crowded them out and they might contradict Harris' contention that he thought protesters had police permission to march in the bridge roadway. He was among more than 700 people arrested there. In the instant case, Police are alleging Malcolm Harris ignored warnings to stay on a pedestrian path; many demonstrators said they didn't hear the warnings or thought officers were leading them onto the road. "All of the tweets that we request are communications that the defendant put out there, into the world, and he has no privacy interest," Manhattan Assistant District Attorney Lee Langston said at the March hearing. "The very purpose of Twitter is to spread this information to the entire world," Langston said.
The dispute over the subpoena has also received attention from the Electronic Frontier Foundation, which defends free speech and digital rights online, and from former Manhattan civil court judge Emily Jane Goodman, who wrote about the matter in The Nation in February. "Tapping phones may be passe, but the dangers of more modern electronic 'eavesdropping' are not."
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