OWS protester argues that First and Fourth Amendments apply to tweets

An Occupy Wall Street protester is challenging a court’s decision requiring his tweets to be handed over to New York prosecutors, arguing that his First and Fourth Amendment rights should apply to tweets like they would to information stored on a personal computer or phone.

Last month, New York City Criminal Court Judge Matthew Sciarrino Jr. ordered Twitter to release Occupy Wall Street protester Malcolm Harris’ tweets, which were subpoenaed by the District Attorney of New York. Emily Bass, Harris’ lawyer, challenged the ruling, arguing that a Twitter user — not an Internet service provider or social networking site — retains possession and control of the information transmitted electronically. Thus, law enforcement officials must seek the material directly from the user.

“If the minutiae of your daily wanderings or transcripts of your communications were still updated to and stored on your laptop or cell phone…everyone would agree that the First and Fourth Amendments and privacy laws still apply, as they always have, to protect that information,” according to Harris' memorandum in opposition to the government's request to dismiss Harris' challenge. “They would also agree that law enforcement would still have to go directly to you to obtain the information, either voluntarily or through compelled discovery in court.”

Twitter had filed a motion in May to quash the subpoena for the tweets, but Sciarrino denied the request and ordered the company to produce the information or face criminal and civil contempt charges. Twitter handed over the tweets despite its pending appeal. Harris' challenge is separate from that proceeding.

“This should affect not just Twitter users but essentially everybody on the Internet,” Bass said in an interview. “We hope the court in this region will declare the law correctly and say yes, those people who use Internet communications, whether it’s email, tweets or text messages, have First Amendment and privacy interests, and law enforcement can’t go directly to Internet service providers and bypass the user. The users have a right to be directly involved in that request and that legal challenge.”

Last October, Harris was arrested and charged with disorderly conduct after he, along with 700 other activists, allegedly marched on the Brooklyn Bridge, trickling onto the roadway. Prosecutors said they were 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 that he was unaware that walking there was prohibited.