Twitter told to give up Occupy protester's tweets

July 3, 2012 - 10:49 AM
Occupy Tweet Subpoena

FILE - In this Oct. 1, 2011 file photo, police arrest protesters on New York's Brooklyn Bridge during march by Occupy Wall Street. A judge said in a ruling released Monday, July 2, 2012 that Twitter must give a court almost three months' worth of an Occupy Wall Street protester's tweets after prosecutors demand the messages to make a case for arrests. (AP Photo/Stephanie Keith, File)

NEW YORK (AP) — Twitter must give a court about three months' worth of an Occupy Wall Street protester's tweets, a judge said in a ruling released Monday after the company fought prosecutors' demand for the messages.

Manhattan Criminal Court Judge Matthew A. Sciarrino Jr. rebuffed one of Twitter Inc.'s central arguments, which concerned who has rights to contest law enforcement demands for content posted on its site. But the judge said the company was right on a separate point that could require prosecutors to take further steps if they want to see one particular day of Malcolm Harris' tweets and his user information.

Sciarrino also decided that he would review all the material he ordered turned over and would provide "relevant portions" to prosecutors.

The case began as one of hundreds of disorderly conduct prosecutions stemming from an Oct. 1 Occupy march on the Brooklyn Bridge, but it has evolved into a closely watched legal tussle over law enforcement agencies' access to material posted on social networks.

The Manhattan district attorney's office said Harris' messages could show whether he was aware of police orders he's charged with disregarding. Twitter, meanwhile, said the case could put it in the unwanted position of having to take on legal fights that users could otherwise conduct on their own.

The DA's office said it was pleased with the ruling, which came after the judge turned down Harris' own request earlier this year to block prosecutors from subpoenaing his tweets and user information from Sept. 15 to Dec. 31.

"We look forward to Twitter's complying and to moving forward with the trial," Chief Assistant District Attorney Daniel R. Alonso said in a statement.

Twitter called the ruling disappointing and said it was considering its next move.

"We continue to have a steadfast commitment to our users and their rights," the company said in a statement.

Harris' lawyer, Martin Stolar, said he was studying the ruling to determine how to respond.

Harris was among more than 700 people arrested in the Brooklyn Bridge march. Police said demonstrators ignored warnings to stay on a pedestrian path and went onto the roadway. Harris, an editor for an online culture magazine, and others say they thought they had police permission to go on the roadway.

He challenged the subpoena for his tweets, saying prosecutors' bid for user information, alongside the messages, breached privacy and free-association rights. The data could give prosecutors a picture of his followers, their interactions through replies and retweets, and his location at various points, Stolar said.

Prosecutors said the tweets might contradict Harris' claim that he thought protesters were allowed on the roadway. And they said he couldn't invoke privacy rights for messages he sent very publicly, though some stopped being visible when newer ones crowded them out.

Sciarrino ruled in April that Harris didn't have a proprietary interest in his tweets and so couldn't challenge the subpoena, which was issued to Twitter.

Then San Francisco-based Twitter went to court on Harris' behalf, saying he had every right to fight the subpoena. Its user agreements say that users 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.

The judge said the company's argument didn't overcome his view that privacy protections don't apply to Harris' tweets.

"If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy," wrote the social media-savvy Sciarrino, who laced his previous ruling with the hashtag marks used to mark key words in tweets.

Twitter prevailed on another argument: that some of the tweets shouldn't be turned over because a federal law requires a court-approved search warrant, not just a subpoena issued by prosecutors, for stored electronic communications that are less than 180 days old.

Sciarrino found that law did apply — but only to Harris' tweets and information for Dec. 31, since the rest were more than 180 days old by the Saturday of the ruling. It was released Monday.

Prosecutors' bid for the tweets had spurred concern among electronic privacy and civil liberties advocates, and some cheered Twitter's decision to take up the fight at a time when authorities increasingly seek to mine social networks for information.

Monday's ruling "continued to fail to grapple with one of the key issues underlying this case: do individuals give up their ability to go to court to try to protect their free speech and privacy rights when they use the Internet? ... The answer has to be no," said Aden Fine, a staff attorney with the American Civil Liberties Union, which had filed a friend-of-the-court brief backing Twitter's position.

Harris' case is set for trial in December.

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Follow Jennifer Peltz at http://twitter.com/jennpeltz