Judge Orders Twitter to Produce Protester's Tweets

Twitter must produce the tweets from Occupy Wall Street protester Malcolm Harris by Friday or face a fine, a New York judge ruled Tuesday.

"You have until Friday to cure any potential contempt," Manhattan Criminal Court Judge Matthew A. Sciarrino Jr. told Terryl Brown, the lawyer representing Twitter, adding, "I can't put Twitter or the little blue bird in jail, so the only way to punish is monetarily."

Digital rights defenders Electronic Frontier Foundation (EFF) describes the background of the case:

This case began early in 2012, when the New York City District Attorney's Office requested information about Malcolm Harris, one of the 700 protesters arrested on the Brooklyn Bridge in October 2011 in connection with an Occupy Wall Street protest. The prosecutors requested Twitter turn over reams of information, including the content Harris's of tweets, IP addresses from where he accessed Twitter, and any email addresses it had on file.

Harris contested the subpoena, but the court ruled Harris didn't have legal standing to challenge it because the information--including all of his tweets --belonged to Twitter. It allowed the government to get the content of communication--tweets--with simply a subpoena, and not a search warrant as required by the Fourth Amendment and the Stored Communications Act. It gave the keys to location information--IP addresses that could be used to determine where a person is when he logs into Twitter--without a search warrant. Twitter also moved to quash the subpoena. As we say in our brief, individuals have long had the legal ability to challenge government requests to third parties that implicate constitutional rights.

Unfortunately, on June 30, 2012, the judge denied Twitter's challenge to the subpoena.

Twitter asked for a stay to block the order while it filed an appeal, Bloomberg reports, but that decision was denied on Sept. 7.

The ACLU's Aden Fine previously wrote that the subpoena for Harris' information is a violation of users' privacy:

Under the First and Fourth Amendments, we have the right to speak freely on the Internet, safe in the knowledge that the government cannot obtain information about our communications or our private information unless law enforcement first satisfies First Amendment scrutiny and obtains a warrant showing probable cause. The DA didn't do that here. Instead, it has tried to avoid these constitutional hurdles by issuing a mere subpoena for Harris's Twitter information.

The courts shouldn't permit this. The information demanded by the DA includes not only the contents of Harris's tweets, but his private subscriber information - including the IP addresses he used to access Twitter over three-plus months, which can reveal his physical location throughout that entire period. The government also asked for the date, time, and duration of each of his Twitter sessions. By denying Twitter's and Harris's challenge, the court held that the government can access this wealth of sensitive personal information without satisfying basic constitutional protections. That isn't right.

Just as disturbing, the court affirmed its earlier ruling that people like Harris can't even go to court to protect their own constitutional rights when it comes to the Internet because, according to the court, we give up our constitutional rights whenever we provide information to a third-party Internet service like Twitter.