* Messages under seal, request for stay set for next week
* Protester arrested on Brooklyn Bridge in October 2011
* Occupy movement set to mark anniversary on Monday
By Joseph Ax
NEW YORK, Sept 14 Twitter handed tweets from an
Occupy Wall Street protester to a New York criminal judge on
Friday after months of fighting a subpoena from prosecutors in a
closely watched case pitting privacy and free speech advocates
against law enforcement.
The company surrendered the micro-blogging posts - an
inch-high stack of paper inside a mailing envelope - to
Manhattan Criminal Court Judge Matthew Sciarrino. They will
remain under seal while a request for a stay by the protester,
Malcolm Harris, is heard next week in a higher court.
Harris, 23, was one of hundreds arrested during a mass
protest on the Brooklyn Bridge in October 2011. The Manhattan
district attorney's office wants the tweets, which are no longer
available online, to try to undermine Harris' argument that
police appeared to lead protesters onto the bridge's roadway
only to arrest them for obstructing traffic.
Twitter and Harris had challenged the subpoena but Sciarrino
rejected their arguments in June. Twitter has filed an appeal,
which is scheduled to be heard in November.
The case involves a thorny legal question that has rarely,
if ever, been tackled by courts: whether Twitter users have the
right to go to court to fight requests from law enforcement for
Twitter and Harris argued that Harris, as the author of the
tweets in question, should have legal standing to combat the
subpoena. Twitter's terms of service make clear that users have
a proprietary interest in their records, according to the
Sciarrino, however, has said only Twitter can legally
challenge a law enforcement request for tweets, since it is the
company, not the user, that owns the content in question. He
compared it to a subpoena of bank records, which courts have
found cannot be challenged by the account holder.
CONCERN FROM PRIVACY ADVOCATES
The case has drawn interest from privacy advocates,
including the Electronic Frontier Foundation (EFF) and the
American Civil Liberties Union (ACLU), which have filed an
amicus brief in support of Twitter's appeal.
They are concerned the ruling could set a precedent putting
the onus on social media companies to try to protect their users
from criminal prosecution.
"It's what I would call a canary-in-a-coal-mine case," said
Marcia Hofmann, a lawyer with the EFF. "I am concerned that
companies will look at this case and say it's not a good idea to
push back against governments we think are overreaching. That's
Twitter had faced a Friday deadline to comply with the
subpoena or face contempt and a heavy fine.
Aden Fine, an attorney with the ACLU, said Friday's outcome
demonstrates the importance of ensuring that users, not
companies, have the right to oppose subpoenas for their content.
"Twitter should be applauded for standing up for its users,
but the unfortunate reality is that only the individual users
have sufficient incentives to defend their constitutional
rights," he said in an email.
While Sciarrino refused Twitter's request to wait until
after its appeal is heard, he urged the appeals court not to
deem the matter moot just because the tweets have been handed
"I strongly encourage the appellate court ... to decide the
case on the merits, as I too agree that this is a more important
issue than maybe the trial itself," Sciarrino said.
Harris' lawyer, Martin Stolar, said he was disappointed that
Twitter had handed over the messages but vowed to continue to
challenge the subpoena.
"We're not giving up the fight here," he said following the
court session, as Harris stood by his side.
The district attorney's office declined to comment on
Friday's court hearing.
The surrender of Harris' tweets comes as the Occupy movement
prepares to mark its one-year anniversary next week.
Activists in the movement, which last fall sparked a
national conversation about economic inequality and coined the
catch phrase "We are the 99 percent," aim to surround the New
York Stock Exchange and stage a sit-in on Monday.