Photo: bogieharmond/Flickr
A New York judge has ordered Twitter to divulge the tweets and account information allegedly connected to an Occupy protester.
The case, which the judge called one of “first impression,” concerns Malcolm Harris, who was among hundreds arrested Oct. 1 in an Occupy movement march along the Brooklyn Bridge.
Prosecutors sought tweets made to Harris’ account “to refute the defendant’s anticipated defense, that the police either led or escorted the defendant into stepping onto the roadway of the Brooklyn Bridge.”
While the outcome was expected, the case was being closely watched as the authorities increasingly monitor and move to access material posted on social networks. And the decision comes as Twitter reported that, for the first six months of the year, the United States sought information on Twitter user accounts 679 times, and Twitter produced some or all of the information 75 percent of the time.
Prosecutors sought Harris’ Twitter information using a 2703 order, which allows authorities to obtain data without a warrant.
Manhattan Criminal Court Judge Matthew A. Sciarrino Jr. said in a filing released Monday that Harris has no expectation of privacy in his public tweets:
If you post a tweet, just like if you scream it out the window, there is no reasonable
expectation of privacy. There is no proprietary interest in your tweets, which you have now gifted to the world. This is not the same as a private email, a private direct message, a private chat, or any of the other readily available ways to have a private conversation via the internet that now exist. Those private dialogues would require a warrant based on probable cause in order to access the relevant information.
The judge said he would read the tweets privately before allowing any into the case. In a bid to corroborate that the tweets were posted by Harris, the judge authorized Twitter to turn over the account information connected to the account of @destructuremal, including any information Twitter had about the owner of the account, including his e-mail address. The authorities believe that account belongs to Harris.
Manhattan prosecutors were elated with the decision.
“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.
It was the second time the judge had ruled on the Harris matter.
On April 20, Sciarrino denied Harris’ motion to quash the subpoena, saying he had no standing to fight the order because Harris had “no proprietary interests” in the account holder’s information or in the tweets. To back this assertion, the judge quoted from Twitter’s terms of service, which has subsequently been modified, stating that account holders granted Twitter “worldwide, non-exclusive” right to use use, copy, or display the content.
Since the defendant granted this license to Twitter by agreeing to the terms of service, this “demonstrates a lack of proprietary interests in his Tweets,” the judge wrote.
In response, Twitter stepped in and moved to quash the subpoena, (.pdf) which the judge denied:
While the U.S. Constitution clearly did not take into consideration any tweets by our founding fathers, it is probably safe to assume that Samuel Adams, Benjamin Franklin, Alexander Hamilton and Thomas Jefferson would have loved to tweet their opinions as much as they loved to write for the newspapers of their day (sometimes under anonymous pseudonyms similar to today’s twitter user names). Those men, and countless soldiers in service to this nation, have risked their lives for our right to tweet or to post an article on Facebook; but that is not the same as arguing that those public tweets are protected. The Constitution gives you the right to post, but as numerous people have learned, there are still consequences for your public posts. What you give to the public belongs to the
public. What you keep to yourself belongs only to you.
The American Civil Liberties Union blasted the outcome.
“The United States Supreme Court and courts around the country have repeatedly made clear that individuals whose constitutional rights are implicated by government requests for information to third parties have standing to challenge those third-party requests, and there’s no reason for the result to be different when Internet activities are at issue, regardless of whether individuals ‘own’ their Internet speech or whether the Internet companies ‘own’ it,” ACLU attorney Adam Fine said.
Twitter pointed out that prosecutors could have saved everyone the trouble of dealing with this in court if they had simply printed or downloaded the publicly available tweets themselves.
“To the extent the desired content is publicly available, the district attorney could presumably have an investigator print or download it without further burdening Twitter or the court,” Twitter wrote in its motion.
However, without the account information connected to the tweets, those messages might not be admissible in court.