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Twitter Forced to Hand Over Occupy Wall Street Protester Info

Naomi Gilens,
ACLU Speech, Privacy and Technology Project
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September 14, 2012

This morning, faced with the threat of criminal and civil contempt, Twitter turned over information about Occupy Wall Street protester Malcolm Harris to a New York criminal court judge. This development follows Twitter’s months-long effort to challenge the Manhattan District Attorney Office’s subpoena for Harris’s information, which was issued as part of the D.A.’s disorderly conduct prosecution of Harris stemming from his participation at an Occupy event last fall.

The D.A.’s subpoena seeks the content of Harris’s tweets over a three-and-half month period, which are no longer publicly available, and among other things, his private, never-public IP addresses, which can be used to reveal his locations and movements over this time period. Twitter has admirably challenged the subpoena in an attempt to protect Harris’s free speech and privacy rights, and the case is now on appeal. On Tuesday, though, Criminal Court Judge Matthew Sciarrino, whose original order upholding the validity of the subpoena is the subject of the appeal, demanded that the company turn over the subpoenaed user information, or else face contempt of court. An attorney for Twitter asked the court today to reconsider its order requiring that the company turn over the information. She decried the “unfair Hobson’s choice” Twitter faced, in which it must either potentially lose its right to appeal or be held in contempt. At the end of the hearing, the judge denied Twitter’s request, and Twitter was forced to hand over the subpoenaed information.

That Twitter has now handed over the information does not mean the case is over, however. The court agreed to keep the information in a sealed envelope for now, pending further proceedings.

While Twitter’s loss is disappointing, the bottom line is that Twitter should never have even had to get involved in this case at all—and it wouldn’t have, if the court hadn’t ruled that Harris did not have standing to protect his own constitutional rights. The court wrongly ruled that Harris forfeited those rights by using a third-party Internet service (i.e., Twitter). As we explained in our friend-of-the-court brief supporting Twitter’s appeal, that ruling is contradicted by decisions from the U.S. Supreme Court and countless courts around the country, which make clear that individuals whose constitutional rights are implicated by government requests to third parties have standing to challenge those requests.

As my colleague ACLU staff attorney Aden Fine stated, this morning’s events show “exactly why individual Internet users like Malcolm Harris need to be given an opportunity to defend their constitutional rights in court when the government asks an Internet service to hand over information about a user’s activities.” Internet companies just don’t have the capacity—or the incentives—to go to bat against the government each time there is a challenge to one of their user’s rights.

Twitter currently has a hearing pending in appellate court. Malcolm Harris, for his part, has filed his own separate proceeding to challenge the court’s orders. Stay tuned to see whether they succeed in establishing that Internet users do in fact have standing to protect their own constitutional rights on the Internet.

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