In a motion filed in a criminal court in New York this week the social media company Twitter argued that it should not be forced to turn over messages from one of its users because the 'tweets' belong to the user, not to them. The New York district attorney sought the messages in relation to a case stemming from hundreds of arrests made on the Brooklyn Bridge last fall at the height of the Occupy protests in Manhattan.
Twitter stepped in legally after the user targeted by the DA's office, Malcolm Harris, was told he had no standing to fight the order himself, because a court judge deemed the messages belonged to the company and not him.
In a ten-page memorandum for the court, Twitter wrote that its terms of service "make absolutely clear that its users own their content", giving users the right to move to resist subpoenas 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.
The ACLU applauded the move. “This is a big deal,” wrote Senior Staff Attorney Aden Fine. “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. And while the individual Internet users can try to defend their rights in the rare circumstances in which they find out about the requests before their information is turned over, that may not be enough. Indeed, even though Twitter provided notice to the Twitter user in this particular case, and even though he was able to get an attorney to file a motion seeking to quash the subpoena, the court found that the Twitter user did not have legal “standing” to challenge the D.A.’s subpoena.”
"If Internet users cannot protect their own constitutional rights, the only hope is that Internet companies do so," he said.
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Harris was arrested in October and charged with disorderly conduct for his participation in an Occupy Wall Street march that ended with some 700 arrests after protesters walked onto the road section of the Brooklyn Bridge. New York prosecutors issued a subpoena to Twitter on 26 January, requesting three months worth of tweets from Harris's twitter account as well as "user information, including email address".
The New York Times has reported that prosecutors want to see three months of Harris's tweetsin the belief they may contradict his potential defence that police allowed protesters to walk in the road.
"The defendant may have used the account to make statements while on the bridge that were inconsistent with his anticipated trial defense," the Times quoted assistant district attorney Lee Langston as saying.
Harris is not the first Twitter user to be subpoenaed by a US prosecutor. In January 2011 an Icelandic MP's tweets were the subject of an order from the US justice department as part of an investigation into WikiLeaks.
Birgitta Jonsdottir lost her legal battle against in November when a judge ruled Twitter must release her details. In that case, as with Harris, Jonsdottir only heard of the subpoena request when Twitter challenged the court order.
Ben Lee, legal counsel for Twitter, said in a statement: "As we said in our brief, Twitter's terms of service make absolutely clear that its users own their content. Our filing with the court reaffirms our steadfast commitment to defending those rights for our users."
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Twitter has filed a motion in state court in New York seeking to quash a court order requiring it to turn over information about one of its users and his communications on Twitter. This particular case involves a Twitter user, Malcolm Harris, who is being prosecuted by the District Attorney’s Office in Manhattan for disorderly conduct in connection with the Occupy Wall Street protest that occurred on the Brooklyn Bridge last year.
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This is a big deal. 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. And while the individual Internet users can try to defend their rights in the rare circumstances in which they find out about the requests before their information is turned over, that may not be enough. Indeed, even though Twitter provided notice to the Twitter user in this particular case, and even though he was able to get an attorney to file a motion seeking to quash the subpoena, the court found that the Twitter user did not have legal “standing” to challenge the D.A.’s subpoena.
If Internet users cannot protect their own constitutional rights, the only hope is that Internet companies do so.
The Internet is an amazing way for people to communicate with anyone they want to, whenever they want to, on whatever subject they want to discuss—all (mostly) for free. It is, in some ways, the ultimate embodiment of the First Amendment. But one potential problem for free speech on the Internet is that, for almost all of us, we need to rely on Internet companies. And while the government is bound by the First Amendment, the First Amendment may not always prevent private companies from restricting our free speech rights.
That is why it is so important to encourage those companies that we all increasingly rely on to do what they can to protect their customers’ free speech and privacy rights. And that is why it is so important that the public—and other companies—know when a company actually stands up for its users’ rights.
Twitter did so here, and Twitter should be applauded for that. We hope that other companies will do the same thing. Our free speech rights may depend on it.
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Last January, the government, in an investigation of Malcolm Harris, asked Twitter to hand over all tweets posted to the account of @destructuremal between Sept. 15 and Dec. 31 last year, as well any information Twitter had about the owner of the account, including his e-mail address.
Harris was arrested last October for disorderly conduct during a protest that was conducted on the Brooklyn Bridge.
Prosecutors sought tweets made to the account “to refute the defendant’s anticipated defense, that the police either led or escorted the defendant onto stepping onto the roadway of the Brooklyn Bridge.” They sought the information using a 2703 order, which allows authorities to obtain data without a warrant under the Stored Communications Act, or SCA.
More powerful than a subpoena, but not as strong as a search warrant, a 2703(d) order is supposed to be issued when prosecutors provide a judge with “specific and articulable facts” that show the information they seek is relevant and material to a criminal investigation. The people targeted in the records demand, however, don’t have to themselves be suspected of criminal wrongdoing.
The Justice Department used the same type of order in December 2010 to demand information from Twitter about several people associated with the secret-spilling site WikiLeaks as part of a secret grand jury investigation. Twitter fought back in that case as well.
After Twitter received the demand for information about Harris’s account, the company notified Harris, who decided to fight it.
But on Apr. 20, Judge Matthew A. Sciarrino, Jr., denied Harris’s motion to quash the subpoena, saying that he had no standing to fight the order because he 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 agreement 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.
The judge also rejected Fourth Amendment protections Harris claimed, because the judge said that online content stored on a third-party server was not physical and therefore did not have the same privacy protections that applied, for example, to a home. Particularly when that data was published online where the public could see it.
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