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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