Facing contempt, Twitter finally hands over subpoenaed tweets and account information of OWS protestor

“So Twitter handed over a pile of my tweets that'll stay sealed pending a hearing on the 21st. Bummer.” So reads a recent tweet by Malcolm Harris, aka @bigmeaninternet (formerly @destructuremal).

On October 1, 2011, Harris was arrested and charged with disorderly conduct along with 700 other protestors after participating in an Occupy Wall Street march across the Brooklyn Bridge.

In January, Manhattan District Attorney Cyrus R. Vance, Jr. without a search warrant, issued a broad-sweeping subpoena to Twitter, requesting “[a]ny and all user information, including e-mail address, as well as any and all tweets posted for the period of 9/15/2011-12/31/2011” for the account @destructuremal. The theory was that the content of the now-deleted tweets would contradict Harris’s anticipated defense. The D.A.’s office also “directed” Twitter not to inform Harris of the subpoena. Following it’s own policy, Twitter informed him anyway.

Harris filed a motion to quash. The D.A. argued that Harris had no standing to challenge a subpoena issued to Twitter. The court agreed. Just for kicks, the court also decided to go ahead and rule that the underlying subpoena was valid, issuing a sua sponte order requiring Twitter to provide the requested information within twenty days. Harris moved to reargue and Twitter filed it’s own motion to quash, supported by an amicus brief submitted the ACLU, EFF, and Public Citizen. The motion was denied, and eventually Twitter, facing a contempt order, handed over the goods to the D.A., on condition that they remained sealed until after a writ of mandamus hearing.

Why all the fuss over a disorderly conduct charge? Well, the standing issue is particularly huge. Twitter ostensibly wants to protect the property and privacy rights of its user. In its own terms of service, Twitter assures the world’s tweeters and followers that “[y]ou retain your rights to any Content you submit, post or display on or through the Services.” This would seemingly vest the user with property rights. This makes sense. While Twitter wants its users shielded from unwanted and unconstitutional government intrusion, it does not want to fight each battle itself. But if users don’t have standing, it will have to.

The court apparently did not buy the assertion that the terms of service created a proprietary interest in the content. Otherwise, it would have granted standing. The court also rejected the argument that Harris’s Fourth and First Amendment rights were being violated. Tweets are public. Therefore they do not require a warrant, nor do they vest any privacy rights. Or so claimed the court.

At this point, we all know that social network posts are different from email or other private communications. “Reasonable expectation of privacy” doesn’t really apply, depending on your settings. But this case seemed the perfect vehicle for Twitter to argue their case because of the breadth of the subpoena’s request. The D.A. didn’t just want the relevant tweets. He wanted “[a]ny and all user information. This includes an email address, direct messages (DM, the Twitter equivalent of email). the IP addresses from which Harris logged in, and the duration of each login. This is coming dangerously close to surveillance without a warrant.

If you tweet publicly, you don’t expect it to remain private. The whole point is that it’s a public forum. But sometimes you log in and don’t tweet. Maybe you send a DM. Or you just sit there, killing time, refreshing and reading tweets. If the government wants to find out when, where, and for how long I have these mindless procrastination sessions, I’d like to be able to at least have a say in the matter.