If you tweet something, you can't consider it private speech even if you later delete it, a New York judge ruled on Monday, denying for the second time a motion to quash a subpoena against an Occupy Wall Street protester arrested last October. Twitter itself had filed the motion in response to a subpoena delivered first in January and then again on May 30, asking for the content and user information of the twitter account belonging to Malcolm Harris. Harris was one of the 732 arrested on the Brooklyn Bridge, and faces up to 15 days in jail for disorderly conduct.
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But this case has become much more about what happens when you subpoena a Twitter account in a criminal case than what happens to Harris. Sciarrino is one of the first judges making decisions on this kind of thing, and his rulings will likely be cited as precedent down the road. In April he ruled that the subpoena on Harris was justified because it sought information owned by a third party. On Monday, he wrote that Harris's Twitter user information and the content of his tweets could be subpoenaed because they were brought into the world publicly. Per the ruling:
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 have now gifted to the world. This is not the same as a private email, a private direct message, a private chat, or any of the other readily available ways to have a private conversation via the internetthat now exist. Those private dialogues would require a warrant based on probable cause in order to access the relevant information.
In the end, the judge ruled that Twitter would have to turn over the information sought by prosecutors, including the content of Harris' tweets and his user data, from Sept. 15, 2011 to Dec. 30, 2011, but that it would need a search warrant to see information posted after that because the Stored Communications Act requires them for communications less than 180 days old.
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The decision is a victory for the district attorney's office. Chief Assistant District Attorney Daniel R. Alonso said in a statement: "We are pleased that the court has ruled for a second time that the Tweets at issue must be turned over. We look forward to Twitter’s complying and to moving forward with the trial."
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But obviously the lawyers siding with Harris and Twitter are less than pleased.
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"I’m unhappy and I’m a bit confused with the judge’s handling of the second subpoena, which they issued by serving it on a member of the board of directors of Twitter here in New York a couple of months ago, which would render all of the tweets that they’re seeking subject to the 180 day limitation. The judge doesn’t deal with that," Harris' lawyer Martin Stolar said.
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"The court didn’t address the main points raised in our amicus brief, which is how the fourth amendment applies to non-public information like IP addresses," said Mariko Hirose, a lawyer with the ACLU, which has argued on Harris' behalf in the case. "That information is significant because IP addresses can reveal location and movement." Sciarrino's decision largely focused on the fourth-amendment issues related to the content of Harris' tweets, rather than Harris' user information, which he simply wrote was "covered by the court order."
A spokesperson for Twitter didn't immediately respond to an email seeking comment on the decision, so we don't yet know if the company will challenge it. We'll update as soon as we know.
Update (2:46 p.m. EDT): Strike that last paragraph. A Twitter spokeswoman writes via email: "We are disappointed in the judge's decision and are considering our options. Twitter's Terms of Service have long made it absolutely clear that its users *own* their content. We continue to have a steadfast commitment to our users and their rights."