Twitter fights subpoena in NYC Occupy arrest case

Associated Press

NEW YORK (AP) — Twitter is resisting an attempt by prosecutors to gain access to the message history of a writer and activist who was arrested during Occupy Wall Street protests last fall.

The San Francisco-based micro-blogging service filed court papers Monday asking a judge to quash a subpoena in which the Manhattan district attorney had ordered it to produce months-worth of old tweets, now deleted, that had been posted by Malcolm Harris, who was among 700 people arrested on the Brooklyn Bridge during a march on Oct. 1.

Among other things, prosecutors want to look at all of Harris's tweets in the weeks before and months after the march against financial inequality. Those tweets, prosecutors said, might show whether Harris, managing editor for The New Inquiry online magazine, was aware that police had ordered demonstrators not to march across the bridge.

Harris already tried to fight the subpoena on his own and lost on an eyebrow-raising technicality. A New York judge ruled that Harris didn't have legal standing to fight the subpoena because he didn't own the tweets, Twitter did.

Judge Matthew Sciarrino wrote in his April decision that once Harris posted his messages they became the property of Twitter and that any constitutional protection he had over their disclosure disappeared.

"While the Fourth Amendment provides protection for our physical homes, we do not have a physical 'home' on the Internet," Sciarrino wrote. He also reasoned that Twitter was free to redistribute its customers' tweets "to anyone, any way and for any reason it chooses."

Twitter's lawyers, in their court filing on Monday, said the judge misunderstood how the service works.

Twitter customers like Harris, they wrote, don't relinquish ownership of their messages or photos by posting them on the service. The company also argued that a federal law, the Stored Communications Act, expressly gave users of services like Twitter the right to challenge demands for their account records. Twitter's attorneys also wrote that recent court decisions require law enforcement officials to get search warrants in cases like this.

"As we said in our brief, Twitter's Terms of Service make absolutely clear that its users own their content," Twitter's legal counsel, Ben Lee, said in a statement. "Our filing with the court reaffirms our steadfast commitment to defending those rights for our users."

Harris' lawyer, Martin Stolar, said he and Harris were "delighted" that Twitter had chosen to get involved in fighting the records request.

A spokeswoman for the Manhattan district attorney declined to comment. In previous legal filings, prosecutors have argued that Harris had "no proprietary or privacy interest in tweets that he broadcast to every person with access to the Internet."

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