A subpoena that has everyone a-Twitter

“Take the bridge! Take the bridge!” shouted Occupy Wall Street activists as they descended onto the Brooklyn Bridge one afternoon in early October.

AP Photo by Stephanie Keith

Police arrest protesters on New York’s Brooklyn Bridge during a march by Occupy Wall Street activists on Oct. 1. A judge ruled that Twitter must give a court almost three months’ worth of an Occupy Wall Street protester’s tweets after prosecutors demanded the messages to make a case for his arrest.

As their organizers had promised police, the thousands of New York protesters stuck to the sidewalks during their march from the movement’s base at Zuccotti Park. But when they approached the bridge’s narrowed walkway, many trickled onto the Brooklyn-bound road, where they were promptly arrested.

One of 700 activists apprehended in plastic handcuffs in the middle of the bridge’s roadway, Malcolm Harris participated in the day’s protest not only by chanting with the crowds, but also by tweeting, under the username
@destructuremal.

In the aftermath, the New York County District Attorney’s Office charged Harris with disorderly conduct and issued a subpoena on April 20 for his tweets — not to the defendant in the trial, but rather to Twitter, the micro-blogging Internet company based in San Francisco.

“The prosecutors are seeking to nail a mouse with a sledgehammer,” said Martin R. Stolar, Harris’ attorney from the National Lawyers Guild, an organization of progressive lawyers.

In a voluntary move praised by online advocacy groups, Twitter opted to challenge the order, notifying Harris of its existence and submitting a motion to quash the subpoena.

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

But on June 30, the New York City Criminal Court in Manhattan mostly ruled against Twitter, finding that “there can be no reasonable expectation of privacy in a tweet sent around the world” and ordering the social media service to release Harris’ tweets and user information related to his arrest. An exception was made for only one day’s worth of his Twitter activity because that content is less than 180 days old and therefore must be obtained under a search warrant, in accordance with the federal Stored Communications Act. Twitter filed a notice of appeal challenging the ruling on July 17.

One of several hundred criminal cases stemming from the Oct.1 protest, which included charges no more consequential than those for a speeding ticket, Harris’ trial — and his tweets — might seem insignificant. But his case, New York v. Harris, which concerns the government’s control over what online users say in the digital space, could affect individual journalists, news media organizations and any person or group intending to use the Internet as a tool to enrich their speech and press freedoms, according to civil liberties groups.

Even Judge Matthew A. Sciarrino, Jr., who ordered the disclosure of Harris’ tweets while presiding over his criminal trial, agreed.

“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),” he wrote in his ruling.

Growing government surveillance

Criminal investigations into user activity through online service providers — which includes social media accounts, search engines and news media websites — are on the rise, said Aden Fine, a senior staff attorney with the American Civil Liberties Union’s Speech, Privacy and Technology Project. And compared to civil lawsuits dealing with libel, copyright and other Internet-related legal issues, such criminal cases may pose even more of a threat to free speech.

“This is not just limited to the federal government, it’s happening on local and state levels and law enforcement officers are becoming increasingly aggressive in sending out these requests,” Fine said. In the face of government-issued subpoenas, search warrants and court orders, “it’s a lot harder for Internet companies to stand up to law enforcement than when they get a request from a private litigant.”

Along with the New York Civil Liberties Union, the Electronic Frontier Foundation (EFF) and the Public Citizen Litigation Group, Fine filed a friends-of-the-court brief to help keep Harris’ Twitter activity private.

“This is a case of first impression, distinctive because it is a criminal case rather than a civil case, and the movant is the corporate entity (Twitter) and not an individual (Harris),” Judge Sciarrino wrote in his June 30 ruling. “It also deals with tweets that were publicly posted rather than an e-mail or text that would be directed to a single person or a select few.”

Whereas such government requests for so-called online public communications are becoming more commonplace, it is much rarer for an Internet company such as Twitter to stand up for its users in such cases. In criminal contexts, “it takes a little more backbone,” said Paul Alan Levy, an attorney with Public Citizen who contributed to the ACLU brief.

Besides standing up for Harris’ rights to free speech and privacy, Twitter also supported its users after receiving a court order requesting information about certain accounts linked to Wikileaks, a website that leaks often classified information from different countries. And in May of this year, the EFF gave Twitter three-and-a-half out of four stars in its 2012 report rating online service providers’ privacy and transparency practices (see sidebar).

“Twitter’s been one of the more proactive of the online service providers in standing up for its users’ rights to protect themselves against adverse actions, whether it be by the government or private parties,” Levy said.

Who owns a tweet?

But before Twitter argued against the subpoena, Harris — the protester whose tweets the New York County District Attorney’s Office seek — unsuccessfully attempted to challenge the order himself.

“This is legal equivalent of busting a party with loud noise and demanding my phone records for 3.5 months to see if I helped plan it,” Harris tweeted from another account, @BigMeanInternet, in January.

In court, Harris, senior editor at The New Inquiry, an online literary journal, claimed he had a “proprietary interest” in his @destructuremal tweets, since he posted them online through Twitter. But the trial court instead found that it was the social media website — and not its user — that owned them. The court therefore ruled that Harris did not have standing to intervene in the subpoena.

“New York courts have yet to specifically address whether a criminal defendant has standing to quash a subpoena issued to a third-party online social networking service seeking to obtain the defendant’s user information and postings,” Sciarrino wrote in his April 20 ruling denying Harris the opportunity to intervene in the motion. “Nonetheless, an analogy may be drawn to the bank record cases where courts have consistently held that an individual has no right to challenge a subpoena issued against the third-party bank.”

Disagreeing with the judge’s ruling, Fine said he took issue with the likening of an online service provider to a bank. In the past, the U.S. Supreme Court has ruled that individuals do not have a reasonable right to privacy with information they turn over to third parties. But Fine noted that distinct from those decisions, which were restricted in scope to Fourth Amendment procedures, “this case limits First Amendment rights as well,” since tweets, unlike bank records, deal directly with free speech.

Even so, the trial court found that public tweets — even if later deleted, as some of Harris’ were — are also public comments, which means their author does not enjoy the same constitutional protections as an individual who engages in private speech.

“If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy. There is no proprietary interest in your tweets, which you gifted to the world,” Sciarrino wrote, finding narrow distinctions between different types of online communications and their associated privacy rights. “This is not the same as a private e-mail, a private direct message, a private chat, or any of the other readily available ways to have a private conversation via the Internet that now exist.”

In ruling that Harris had no standing to challenge the subpoena, the court indicated that new media companies such as Twitter can now find themselves in an undesirable position, possibly having to fight legal battles on behalf of their users.

Noting that the decision could also affect news media websites that similarly post readers’ forum comments, Levy said, “Hardened by their experience of defending sources, newspapers have been pretty good at defending their online users.”

But Fine said that not even websites — news-related or otherwise — as dedicated to users’ privacy as Twitter can be expected to take on the burden of defending each of their millions of users in similar cases where the online speech in question is considered public and therefore the property of the third-party service provider.

“The other big important aspect to the Malcolm Harris case, which is why Twitter got involved, is that the judge ruled that Twitter’s own users don’t have the right to submit their own motion to quash and that’s very problematic,” Fine said. “Users should be able to go to court to protect their constitutional rights.”

Less than one month after the April 20 decision that denied Harris standing to challenge the subpoena, Twitter updated its terms of service, emphasizing that users retain their rights to content they submit, post or display.

Secret subpoenas

Not only did the court deny Harris the right to challenge the initial subpoena, but it also allowed prosecutors to withhold its very existence from the defendant. Harris only learned of the Twitter subpoena through the company itself, which decided to notify him on its own volition, defying the District Attorney’s Office’s request for confidentiality.

Assistant District Attorney Lee Langston included an additional provision to in the subpoena, warning: “Twitter is directed not to disclose the existence of this subpoena to any party. Such disclosure would impede the investigation from being conducted and interfere with the enforcement of law.”

In accordance with its privacy policy, which says the company will inform users of government requests for their account information prior to disclosure, Twitter ignored the confidentiality admonition and notified Harris anyway. There was no backlash from prosecutors and Levy, the attorney from Public Citizen, a consumer advocacy organization, said Langston likely had no legal standing to make such a request.

He added that Harris’ criminal case recalls a court order that Twitter received last year. It sought the user information of Birgitta Jonsdottir, an Icelandic parliamentarian and chairwoman of the International Modern Media Institute, a free press advocacy group, along with two other individuals during the U.S. government’s investigation into Wikileaks.

Twitter supported its users in that case, notifying them of the order and challenging it in court.

“Twitter has been particularly strong in defending its ability and its right to notify the real stakeholders, the real people who have an interest in perhaps defending their rights,” Levy said.

But in March 2011, a federal magistrate judge in Virginia ruled that the government can collect the private records of the Wikileaks users, forcing Twitter to turn over related documents. According to its website, Wikileaks aims to disclose important information to the public while protecting the whistleblowers who aid its cause.

Perhaps more alarming than the government’s ability to access tweets and user information is the secrecy surrounding the court documents that sanction such powers of surveillance, said Fine, who is also one of the attorneys representing Jonsdottir. In the Wikileaks case, the U.S. District Court in Alexandria, Va., not only ruled that the tweets and related data must be turned over to the government, but also sealed many of the court documents that were likely instrumental in forming its decision. The ACLU and the EFF are currently appealing the court sealing on behalf of the implicated Twitter users.

“Public access to judicial records and judicial dockets is a core right enshrined both in the common law and the First Amendment,” the organizations wrote in a Jan. 20 motion to the U.S. Court of Appeals (4th Cir.) in Richmond, Va. “The presumption of access is at its apex with respect to judicial orders and motions, the sealed documents at issue here.”

Warranting an online search

Regarding the Occupy criminal case, Stolar, Harris’ attorney, said the broad scope of the New York prosecutors’ initial subpoena concerns him.

The order to Twitter sought any and all user information and tweets posted over a three-month period, from Sept. 15 to Dec. 31, 2011 — a time frame which notably began two days before Occupy’s very first Manhattan protest. Although Harris tweeted from a public account, the subpoena also requested contextual data collected by Twitter, such as the Internet Protocol addresses corresponding to each post, which could reveal his location at the time the messages were sent.

The New York County District Attorney’s Office said it was interested in Harris’ Twitter activity because it might show the protestor was aware he was not supposed to walk on the bridge’s roadway, disproving his anticipated defense.

Comparing the duties of social media sites like Twitter to individuals who witness street crimes, the criminal court judge allowed much of the subpoena to stand. “Today the street is an online, information superhighway, and the witness can be the third party providers like Twitter, Facebook, Instagram, Pinterest, or the next hot social media application,” Sciarrino wrote.

Stolar said that the court failed to acknowledge that Twitter can collect an accrual of public statements, unlike passersby who might witness an isolated incident.

“The difference here is that there’s an accumulation of speech and the only place that collects this accumulation is Twitter,” he said. “If Twitter is collecting that speech for the purposes of the government, that chills free speech.”

Fearing that his client’s privacy rights were violated as well, Stolar cited parallels between the Twitter subpoena and a U.S. Supreme Court ruling from this year, which found in United States v. Jones that attaching a GPS device to a vehicle to track its movements constitutes a search under the Fourth Amendment. He said that in Harris’ case, in which the tweets were similarly collected over time, the prosecutors’ subpoena — which is different than a search warrant — should be found unconstitutional.

In his June 30 trial court ruling, Sciarrino applied the Stored Communications Act, a federal law that addresses the disclosure of stored electronic communications by third-party websites, after finding no government intrusion under the Fourth Amendment. Under the act, he held that content less than 180 days old — namely, Harris’ Dec. 31 tweets — can only be obtained through a search warrant.

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

Although Twitter lost the legal battle this June, the company recently pledged to continue its fight for Harris’ rights, which it believes are violated by the subpoena’s targeting of his social media account.

Sciarrino acknowledged the difficulty in making decisions involving speech and privacy rights in the backdrop of a changing media landscape, while implying that he believed the benefit of technology — despite its added responsibilities — could bolster individuals’ ability to exercise their civil liberties.

“[W]hile the law regarding social media is clearly still developing, it can neither be said that this court does not understand or appreciate the place that social media has in our society nor that it does not appreciate the importance of this ruling and future rulings of courts that may agree or disagree with this decision,” he wrote in June. “In recent years, social media has become one of the most prominent methods of exercising free speech, particularly in countries that do not have very many freedoms at all.”