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Judge: Twitter must release account data of arrested user

Twitter must hand over information from user's account in Occupy Wall Street protest arrest case.

Elinor Mills Former Staff Writer
Elinor Mills covers Internet security and privacy. She joined CNET News in 2005 after working as a foreign correspondent for Reuters in Portugal and writing for The Industry Standard, the IDG News Service and the Associated Press.
Elinor Mills
3 min read

A judge has ordered Twitter to release three months of data from the account of a user being prosecuted for disorderly conduct related to an Occupy Wall Street protest on the Brooklyn Bridge last October.

The district attorney's office in New York City wants Twitter to turn over basic user information from Malcolm Harris' Twitter account (@destructuremal), and his tweets. Harris' motion to quash the subpoena to Twitter was denied by the criminal court of the city of New York on the grounds that Harris had no proprietary interest in the user information on his Twitter account. Twitter challenged the subpoena, saying users own their Twitter data under the site's terms of service.

This weekend, the criminal court of the city and county of New York disagreed and stood by the initial order.

"We are pleased that the court has ruled for a second time that the tweets at issue must be turned over," Chief Assistant District Attorney Daniel R. Alonso said in a statement. "We look forward to Twitter's complying and to moving forward with the trial."

When asked for comment, a Twitter spokeswoman provided this statement: "We are disappointed in the judge's decision and are considering our options. Twitter's Terms of Service have long made it absolutely clear that its users *own* their content. We continue to have a steadfast commitment to our users and their rights."

Civil rights groups ACLU, Electronic Frontier Foundation, and Public Citizen had argued in a friend-of-the-court brief that because Twitter knows the IP addresses of users, the court would be enabling prosecutors to bypass the need for a search warrant as typically required when seeking location information if a subpoena was granted. The subpoena seeking three months of Twitter data violated the Fourth Amendment of the U.S. Constitution, the EFF argued.

But in his opinion, Criminal Court Judge Matthew A. Sciarrino, Jr. wrote that Twitter users have no reasonable expectation of privacy because the tweets are public. Twitter must release all of the data for September 15 to December 30, 2011, but prosecutors will need a search warrant to get data from December 31, 2011, because it is within 180 days from the ruling, the judge said.

From the decision:

While the U.S. Constitution clearly did not take into consideration any tweets by our founding fathers, it is probably safe to assume that Samuel Adams, Benjamin Franklin, Alexander Hamilton and Thomas Jefferson would have loved to tweet their opinions as much as they loved to write for the newspapers of their day (sometimes under anonymous pseudonyms similar to today's twitter user names). Those men, and countless soldiers in service to this nation, have risked their lives for our right to tweet or to post an article on Facebook; but that is not the same as arguing that those public tweets are protected. The Constitution gives you the right to post, but as numerous people have learned, there are still consequences for your public posts. What you give to the public belongs to the public. What you keep to yourself belongs only to you.

Aden Fine, staff attorney with the ACLU Speech, Privacy and Technology Project, criticized the court decision, saying it suggests that individuals are giving up their ability to go to court to try to protect their free speech and privacy rights when they use the Internet. "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 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," she said in a statement.

Updated 12:47 p.m. PT with ACLU comment, 12:20 p.m. PT with Twitter comment and 10:43 a.m. PTwith background and details from ruling.