Free Future

New York Court Denies Twitter Motion to Quash Occupy Protester Subpoena

By Aden Fine, Senior Staff Attorney, ACLU Speech, Privacy and Technology Project at 2:07pm

A New York criminal court judge has issued a decision denying Twitter’s motion to quash a court order requiring it to produce information about one of its users pursuant to a subpoena that the District Attorney’s Office in Manhattan issued in connection with the prosecution of an Occupy Wall Street protester.

This decision is disappointing. But it’s not that surprising given that the court had already ruled on many of these issues when the user, Malcolm Harris, filed his own motion to quash. What is surprising, though, is that the court 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? 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.

As we wrote when we first found out about Twitter’s motion, Twitter should continue to be applauded for stepping in and challenging this particular subpoena. The unfortunate reality, however, is that Twitter and other Internet companies cannot challenge every one of these requests for information about one of their millions of users. That is why it is so important that individuals be allowed to go to court to protect their own rights, and that is why this court’s decision is so wrong.

We’re hopeful that the next court that takes a look at this case or another similar case will recognize that. Stay tuned . . .

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