Twitter Challenges Subpoena of Occupy User’s Account

Lindsey Kratochwill

In a symbolically big move for Internet freedom, Twitter has filed a motion against the New York District Attorney’s Office subpoena requesting information about one of its users, Malcolm Harris, who was arrested along with hundreds of others during an Occupy Wall Street protest that blocked the Brooklyn Bridge. The Los Angeles Times reports that this march has led to about 700 different legal cases.

In Harris’ case specifically, the New York district attorney filed a subpoena with Twitter to release tweets coming from Harris’ account between Sept. 15 and the end of 2011. By looking at Harris’ tweets in the weeks before and after the march, prosecutors are hoping to gain some insight as to whether he was aware that the police had ordered demonstrators not to march across the Brooklyn Bridge.

In a move that the American Civil Liberties Union commended, Twitter spoke out against the subpoena, filing a motion to the court to quash it. Originally, Harris’ lawyer attempted to block the DA’s requests for account information. But the court ruled that Harris did not have legal standing, with the reasoning that once published, content becomes the property of Twitter.

Twitter argues, however, that the judge misunderstood the way the site works. The court’s reasoning cited the rights to dissemination of content that users must agree to – you grant us a worldwide, non-exclusive, royalty-free license to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods.” But in terms of ownership, such reasoning is in stark contrast with what the social media site’s terms of service is based on. The sentence that comes right before the one that the court cited reads: You retain your rights to any content you submit, post or display on or through the services.”

Twitter claims that the decision violates not only its terms of service, but also the federal Stored Communications Act, which permits users to challenge demands for their account information and records. In the motion, Twitter claimed that the subpoena presents an undue burden, requiring the fulfillment of a request that goes against the Fourth Amendment (unlawful search and seizure), the SCA and the First Amendment–content that Twitter users create and submit to Twitter are clearly a form of electronic communication that, accordingly, implicates First Amendment protections.”

The cynical reasoning behind this motion could be that Twitter wants to avoid the possibility that it would be responsible for all 140 million of its active users, were they to come into legal question. But last January, Twitter responded to a court order (and gag order, which prohibited the company from making users aware of the request) which requested account information about those behind WikiLeaks. Successfully challenging the gag order essentially made the target WikiLeaks users aware of the situation, enabling them to properly defend themselves and try to quash the court order.

Our filing with the court reaffirms our steadfast commitment to defending those rights for our users,” said Twitter lawyer, Ben Lee in a statement about the Harris motion. 

Aden Fine, senior staff attorney with the ACLU, noted in a blog post on Tuesday that, given the complexity of First Amendment freedom and the Internet, the motion is indeed a big deal:” 

Law enforcement agencies — both the federal government and state and city entities — are becoming increasingly aggressive in their attempts to obtain information about what people are doing on the Internet. And while the individual Internet users can try to defend their rights in the rare circumstances in which they find out about the requests before their information is turned over, that may not be enough.

… If Internet users cannot protect their own constitutional rights, the only hope is that Internet companies do so.

Lindsey Kratochwill, an In These Times editorial intern, is student at Northwestern University’s Medill School of Journalism.
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