The City of New York sent a subpoena to Twitter in February demanding it release all of Occupy Wall Street protestor Malcolm Harris’ tweets between September 15 and December 31 2011, as well as his email address and any other user information associated with his account.
Well, after a lot of back and forth, it appears Mr. Harris’ information will be released.
Yes, if you’re active online, now is a good time to start worrying.
As you likely know by now, Mr. Harris was arrested on October 1 while marching over the Brooklyn Bridge as part of the Occupy Wall Street protest.
Prosecutors sought to subpoena more than three months worth of Harris’ tweets so they could use them to challenge Harris’ “anticipated defense” that police officers led protesters onto the bridge before arresting them.
Police have said that the demonstrators were arrested for blocking traffic on the bridge.
Harris tried to prevent prosecutors from obtaining his tweets, but his request was denied by a judge who compared Harris to a bank account holder who by law cannot challenge a subpoena of his records served on his bank.
“Twitter’s license to use the defendant’s Tweets means that the Tweets the defendant posted were not his,” the judge wrote in a decision.
Twitter then challenged the Court’s subpoena saying that Twitter’s Terms of Service make absolutely clear that its users own their content . . . but ownership appears to be irrelevant here. And what about free speech? Well, that seems to be irrelevant too. It’s pretty scary. Here’s why (from the ACLU):
. . . 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? As we explained in our friend-of-the-court brief last month, the answer has to be no. 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 (such as Twitter) 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.
The information being requested in this particular subpoena would provide the government with a wealth of knowledge about the user’s communications and geographic locations for a three-and-a-half month period. The request covers all of the user’s tweets (no longer available on Twitter), as well as his subscriber information, which includes his personal email address, the IP addresses he used to access Twitter—that can be correlated with the user’s geographic locations over time—and the date, time, and duration of each of his Twitter sessions, linked to the content of his tweets. The government shouldn’t be able to get this sensitive and constitutionally protected information without a warrant and without first satisfying First Amendment scrutiny. Because the D.A. didn’t do that here, it shouldn’t be permitted to obtain this information about Mr. Harris’s Twitter activities.