Judge Rules DA Can Subpeona Defendent’s Tweets

Judge Matthew A. Sciarrino Jr.

Manhattan Criminal Court Judge Mathew A. Sciarrino Jr. ruled that the Manhattan District Attorney’s office may subpoena the “tweets” of an Occupy Wall Street protestor who was arrested for disorderly conduct on the Brooklyn Bridge last October.

Despite the protests of the defendent, Malcolm Harris, the judge decided that it was not unreasonable for prosecutors to have access to his public tweets beginning several weeks before, and for months after his arrest, as the judge explained in his ruling delivered on Friday,

“There are, in fact, reasonable grounds to believe the information sought was relevant and material to this investigation,”

Sciarrino wrote in his decision. The judge added that Harris has no legal standing to block a subpoena which is directed to Twitter Inc, and not to him.

In a coy reference to the world of Twitter Judge Sciarrino sprinkled into his decision the beloved hashtags which Twitter fans use to denote keywords. “Harris’ bid to quash the subpoena is denied” wrote Sciarrino, placing hashtags next to keywords “quash” and “denied.”

Sciarrino added that he would deal with the privacy issue by reviewing Harris’ tweets before handing them over to the Manhattan District Attorney’s office.

The decision has privacy advocates and at least one retired civil court judge alarmed. They join Harris’ lawyer in their dismay at the long time period of tweets that the DA is requesting, saying it is broad beyond reason. They added that, despite the fact that the tweets were sent publicly, the other user information which come along with the tweets violates Harris rights to privacy and free association. The twitter data can easily give prosecutors a view of Harris’ followers, their interactions via replies and “retweets” and also his location at various points in time, explained Harris’ lawyer Martin Stolar.

“There’s a whole universe of information out there that deals with the associations that Mr. Harris has,” Stolar said at a court hearing in March. “Here, there is a privacy interest in his communications with other people.”

Stolar is planning on challenging the judge’s ruling.

The dispute has come to the attention of the Electronic Frontier Foundation, a group which defends free speech and digital rights online. In addition, former Manhattan civil court judge Emily Jane Goodman wrote about the issue in The Nation last February.

“Tapping phones may be passe, but the dangers of more modern electronic ‘eavesdropping’ are not,”

wrote Goodman, who wasn’t involved in Harris’ case. She retired last February.

At last March’s hearing Manhattan DA Lee Langston said Harris lost he rights to privacy the moment he posted his tweets on Twitter.

“All of the tweets that we request are communications that the defendant put out there, into the world, and he has no privacy interest. The very purpose of Twitter is to spread this information to the entire world,” Langston said.



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