An Occupy Wall Street protester and prosecutors are tussling over his tweets, a clash that's raising legal issues of privacy in an age of living online.
The contest has sounded alarms among electronic privacy advocates, who see ominous overreaching in the Manhattan prosecutor's efforts to subpoena tweets sent by a demonstrator facing a disorderly conduct charge. The protester's lawyer is trying to block the subpoena, calling it an infringement on constitutional rights and "an unwarranted invasion of privacy."
But the Manhattan district attorney's office says it's fair game to go after messages protester Malcolm Harris sent publicly for weeks before and months after his arrest. The messages might contradict Harris' defense that he thought protesters had police permission to march in the street on the Brooklyn Bridge on Oct. 1, prosecutors said in a court filing Wednesday.
"He has no proprietary or privacy interest in tweets that he broadcast to every person with access to the Internet," Assistant District Attorney Lee Langston wrote.
A judge has yet to rule on the dispute, which is underscoring authorities' growing interest in mining social media during investigations. The DA's office won't say whether it is pursuing tweets from other Occupy protesters who've been arrested.
Harris, 23, managing editor for The New Inquiry online magazine, was among more than 700 people arrested on the bridge after authorities said the protesters blocked traffic. Police said the demonstrators disregarded orders not to leave a pedestrian path. Like others, Harris says many demonstrators didn't hear the police warnings and thought officers were letting them onto the road.
The charge against Harris is a violation, not a crime. Maintaining his innocence, he is heading toward trial after turning down a deal to get the case dismissed by staying out of trouble for six months.
In online pieces, Harris has mentioned that he tweeted during the march and his arrest. He also tweeted when Twitter notified him of the Jan. 26 subpoena for "any and all user information, including email address, as well as any and all tweets posted" from Sept. 15 to Dec. 31 on what Harris acknowledged was his account at the time. He has since changed Twitter handles and taken down his old tweets.
The subpoena also directed Twitter not to tell anyone about the subpoena, saying disclosure "would impede the investigation being conducted."
But San Francisco-based Twitter Inc. told prosecutors a few days later that its policy is to tell users about information requests, unless a law or court order prevents doing so. Prosecutors then said they weren't seeking to keep the subpoena confidential, according to emails attached to the DA's filing Wednesday.
Twitter declined to comment Thursday on any specific subpoena but pointed to the policy.
Prosecutors say they want the subscriber information that connects the account to Harris, plus his public tweets, not the private, one-on-one Twitter communications known as direct messages.
Langston wrote that the tweets are expected to show that Harris "was well aware of the police instructions ... (and) prove beyond a reasonable doubt that the defense he has advanced thus far is false."
Langston pointed to an Oct. 3 New Inquiry essay in which Harris described an officer with a megaphone warning protesters to stay on the walkway to avoid arrest, with chants of "take the bridge!" drowning out the admonition. The piece also says police then walked away from the crowd as the marchers started down the road — a gesture that many saw as allowing them to proceed, says Harris' lawyer, Martin Stolar.
"That's not inconsistent with the defense," Stolar said Thursday.
Prosecutors say they need the full 3½ months of tweets to capture any messages that might "indicate that this was a planned act" or that made admissions afterward.
To Harris and his advocates, prosecutors are fishing for information in the social media sea.
The timespan is unreasonably broad, the initial demand for secrecy was heavy-handed, and the subpoena violates Harris' privacy and free association rights as well as his constitutional protection against unreasonable searches, Stolar said in court filings earlier this month. While the tweets might have been publicly available when sent, they're not now, he noted Thursday.
The dispute over the subpoena has gotten attention from the Electronic Frontier Foundation, which defends free speech and digital rights online, and from publications including The Nation, in which a Manhattan civil court judge who's not involved in the case wrote about the case earlier this month.
"Tapping phones may be passÉ, but the dangers of more modern electronic 'eavesdropping' are not," wrote New York Supreme Court Justice Emily Jane Goodman, who has written about legal issues in various venues. She's retiring from the bench next month.
Authorities in Manhattan and elsewhere increasingly avail themselves of social networking sites to build cases. Besides seeking out defendants' public postings on social sites, prosecutors often get emails, phone records and other private electronic information.
And subpoenas for tweets have spurred legal clashes in other cases. Last year, the American Civil Liberties Union of Massachusetts tried to block a prosecutor's subpoena sent to Twitter for information on a user linked to Occupy Boston. A judge ruled under seal; the ACLU has sought to get the ruling released.