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Twitter Must Hand Over Protester Malcolm Harris' Tweets', Judge Rules

Twitter Protester Malcolm Harris

JENNIFER PELTZ   07/02/12 04:18 PM ET  AP

NEW YORK — 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.

___

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

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NEW YORK — 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 ...
NEW YORK — 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 ...
Filed by Bianca Bosker  | 
 
 
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9 hours ago (10:53 PM)
For the record, the judge was wrong. It is not tantamount to yelling out a window where everyone nearby can hear. From Twitter's own Help, tweets appear:
"- Where it appears for the recipient: In the Home timeline of anyone who is following the sender.
- Places it will never appear: On anyone else's profile page, unless they retweeted the message."

Note the word "following" - one must seek out/subscribe someone to receive their tweets.
10 hours ago ( 9:33 PM)
Couldn't they just I don't know look him up on Twitter? Pardon me if I'm wrong I do not use the site.
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HUFFPOST SUPER USER
Sam Dempsey
19 hours ago ( 1:09 PM)
Unfortunately this is the exact sort of thing that Freedom of Speech was meant to protect against.
You could one day twitter how you feel the government is abusing it's power and the next day find yourself in court for an unrelated reason having to explain what you said. The end result is that people stop speaking openly about important things because someday it might be used against them by the government.
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SamEllison
I feel so clean!
20 hours ago (11:38 AM)
"Manhattan Criminal Court Judge Matthew A. Sciarrino Jr."
Is indebted to the NYPD for his ride to and from work everyday,
how else do you think he would rule?
A change in venue is way past due!
21 hours ago (11:13 AM)
U have 2 follow a user to get their tweets. they asked 2 listen to what u say. Ppl outside ur window have not done so
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pjohns
This political year---it, too, shall pass
21 hours ago (10:51 AM)
We'll get back to writing letters and sealing the envelope with wax if anything is important and private enough to warrant it. Electronic eavesdropping is really outrageous, isn't it? Or have we just become innured to lack of privacy?
21 hours ago (11:14 AM)
Based on the responses to my posts here, people truly have become inured to lack of privacy.
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JohnHopwood2
Happiness is a 9 letter word
23 hours ago ( 9:16 AM)
I bought a cash gift card for my daughter as a present and I had to give the lady my drivers license so she could take down my identification. She told me it was to stop terrorism. I don't have facebook and I tweet very rarely and I delete after. I try not to use emails either and the internet I clean all the cookies out and tracers every day.
20 hours ago (11:35 AM)
That's odd. I buy those at Publix and they do not ask.
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JohnHopwood2
Happiness is a 9 letter word
9 hours ago (11:04 PM)
Recently, because I bought them a year or two ago and they never asked me either. When I got a Amex Card last week I found out after I bought it that you have to activate it online by giving your social, Name address, age. It says they can use athe information whenever and for whatever they want and you have to waiver. I sold it to a friend for half price. I paid $100 and sold it for $50.
07:34 AM on 07/03/2012
Some commenters are claiming violations of privacy and free speech rights, but I see significant problems with both arguments: First, there is no expectation of privacy on Tweets. Unlike a phone call, email, or letter, Tweeting an open and public form of communication. When you post something on Twitter, anyone who happens by can see it; it's a medium that's used by many to openly and publicly "spread the word," and, in some cases, on which information has even been known to "go viral." Claiming an expectation of privacy on this medium is a bit disingenuous.

Also, freedom of speech is not being threatened in this case. He’s not being penalized for anything he’s said or for his public protest. He was allowed to protest, and he was free to use public means to plan and organize the protest—he simply wasn’t allowed to walk in the street. Since he defended himself by saying that he thought he was allowed to do so, he opened the door to looking at previous statements that could affirm or contradict that story. In short, yes, he was free to say whatever he'd like when he posted on Twitter, but if he left a public record of anything that he later tried to pretend he didn't know, he might have steered himself up a certain creek.
21 hours ago (11:17 AM)
Not true. Twitter user "A" has to "follow" user "B" to get their tweets. User "A" has specifically asked to listen to what "B" has to say. The people outside of your window have not done so.
15 hours ago ( 5:02 PM)
You're kidding, right? I can see the Tweets of all kinds of people whom I don't follow. Frankly, it makes me wonder why they're bothering to subpoena (unless they're worried he's deleted some). Also, just because I can see the Tweets of others without permission doesn't make them private….
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HUFFPOST SUPER USER
Sam Dempsey
19 hours ago ( 1:17 PM)
That is all irrelevant. It is not about privacy, it's about free speech. The First Amendment is meant to protect a behaviour not a source. If you allow the government to do things that motivate people to keep quiet in any forum then you have given up your First Amendment right to free speech. The whole idea is that the government can control what people say by making it dangerous to speak publicly. Free Speech is written into the First Amendment to specifically counter that possibility.
15 hours ago ( 5:15 PM)
So, by that reasoning, no one can use prior statements to refute current statements because it might make people wary of speaking? Dude, that’s not covered by free speech. In this case, it’s not dangerous for the guy to have spoken publicly—it’s dangerous if he has lied about what he knew. That prior statements are admissible in a court of law is extremely well—precedented. If that makes people wary about lying, then that’s probably a good thing….
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Neal Feldman
42
03:10 AM on 07/03/2012
A BS fishing expedition, entirely unconstitutional on at the very least first and fourth amendment grounds.

This judge should be disbarred for judicial incompetence and Twitter and Harris should appeal this ludicrous ruling.
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JewishPhysician
fraternity, trust, discourse
02:53 AM on 07/03/2012
Twitter should absolutely be able to be subpoenaed in all courts of law. Its a proprietary service and anyone who uses Twitter does so knowing that the world will see what they have added to the future. I am not sure that if you delete a message that it could be subpoenaed and perhaps if you have content you are concerned is troublesome, you might be able to just delete that tweet. But in truth, once they have your words, they are always fair game.
03:35 AM on 07/03/2012
your comments here could be held against you. I'd rather be free. What is the government doing investigating a wall street protester instead of wall street? The protester didn't do anything but ask for justice.

We have lost our way and our way of life. Name one way in which you are free.
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HUFFPOST SUPER USER
JewishPhysician
fraternity, trust, discourse
04:00 AM on 07/03/2012
I am free to design a new hope for tomorrow and I am free to live an American Life in America. I am sure noone will hurt me I hope if I display Old Glory for the Fourth.
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HUFFPOST SUPER USER
Erik Rieder
The Devil knows my name
02:52 AM on 07/03/2012
Always the end of the world with you conspiracy theorists.
03:36 AM on 07/03/2012
Lee harvey oswald killed kennedy. Repeat it until you believe it.
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farmilyman
everything is illusion
02:22 AM on 07/03/2012
Wow, this is scary. The first amendment is now under attack.
03:11 AM on 07/03/2012
And this is a new development,how,exactly,family? The entire Bill Of Rights has been under attack since 9/11. The tragedy of 9/11 is that OUR OWN GOVERNMENT became a far greater threat to our freedoms then Al Quida EVER was...............
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JohnHopwood2
Happiness is a 9 letter word
23 hours ago ( 9:06 AM)
So true. After 9/1I I remember them taking polls and most (stupid americans said they didn't mind their freedoms being taken away and that is what the government did. Now a decade later our freedoms have dwindled to nothing. All I can do now is buy a gun real easy. No use to me since I abhor gun ownership.
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JohnHopwood2
Happiness is a 9 letter word
23 hours ago ( 9:18 AM)
Bush said the constitution is just a piece of paper.
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Neal Feldman
42
03:12 AM on 07/03/2012
First and fourth at the very least.
HUFFPOST SUPER USER
Anne Mccormick
02:19 AM on 07/03/2012
the reality is that once something is tweeted it becomes public domain. that's why people should be really careful what they tweet.
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Neal Feldman
42
03:15 AM on 07/03/2012
Actually can you produce legal precedent citation of this? Twitter is a 'common carrier' and as such their records are no more public than phone company voicemails or ISP emails.

The prosecution has to have probable cause to reasonably believe that there is pertinent information... not just that they think there might be, and such a wide window is constitutionally indefensible.
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JohnHopwood2
Happiness is a 9 letter word
23 hours ago ( 9:07 AM)
You should delete your tweets after they have been read. I don't know if they keep backup. They probably do but I don't know.
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HUFFPOST SUPER USER
sallybutt45
To thine own self be true.
02:11 AM on 07/03/2012
" Liberty and justice for some..........I hope people are happy with what we have become, in this country, being spied on by our own government. We are allowing government and the private spy agencies like Sratfor to literally know every single aspects of our lives. How many people feel really safe? What is next? Thought police?
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HUFFPOST SUPER USER
JewishPhysician
fraternity, trust, discourse
02:54 AM on 07/03/2012
Its not spying when you published it and sent it to humanity
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HUFFPOST SUPER USER
Neal Feldman
42
03:17 AM on 07/03/2012
Actually it is.

I am astounded that someone claiming Jewish heritage would so readily embrace the policies and tactics of the Third Reich.
21 hours ago (11:21 AM)
He did not "send it to humanity, despite that it may "feel" that way when you tweet. He sent it out to a specific list of followers who were there because they sought out the user to listen to. People outside your window have not made that choice.
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HUFFPOST SUPER USER
Neal Feldman
42
03:18 AM on 07/03/2012
"Those willing to give up essential liberty for a feeling of security will have neither liberty nor security" - Benjamin Franklin
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JewishPhysician
fraternity, trust, discourse
04:01 AM on 07/03/2012
Ben Franklin woudl be on twitter 24/7
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Jeff Bunting
02:02 AM on 07/03/2012
This is all the democrats fault!