Twitter goes to bat for Occupy Wall Street protester

Twitter has escalated the legal battle over an Occupy Wall Street protester's tweets, challenging a judge's ruling requiring him to hand over his tweets and account information to prosecutors.

The San Francisco-based social media company filed an appeal Monday in the Appellate Term, First Department, claiming Criminal Court Judge Matthew Sciarrino erred in twice denying a motion to quash two subpoenas the Manhattan district attorney's office seeking tweets from Malcolm Harris.

Harris was arrested along with hundreds of other demonstrators during a mass march across the Brooklyn Bridge in October 2011 and faces a disorderly conduct charge.

The case is a prominent example of the growing use of social media by law enforcement agencies in the pursuit of criminal prosecutions. In March, a judge ordered Twitter to hand over information about an account that police said was indirectly tied to the Occupy Boston movement.

Prosecutors have sought three months of Harris' tweets in an effort to show he knew police had barred protesters from walking on the bridge's roadway. Defense lawyers for Occupy demonstrators have claimed police officers appeared to lead the march onto the roadway before arresting them.

In rulings in April and June, Sciarrino rejected arguments from Harris and Twitter that handing over the tweets would violate Harris' privacy. In doing so, he agreed with the Manhattan district attorney's office that Harris could not have reasonably expected any privacy when posting publicly on the Internet.

Sciarrino also held that Harris could not challenge the subpoena himself, since his tweets belonged to the company, a decision that prompted the company to step in on Harris' behalf.

Twitter, which had previously said it would appeal the rulings, argued on Monday that Harris should be permitted to challenge any subpoena.

"Twitter users own their tweets and should have the right to fight invalid government requests," says the appeal.

The company also said the tweets, along with Harris' account information, would reveal the time and place where he posted the messages, essentially giving the government a history of his whereabouts for several months. That, Twitter claims, is akin to warrantless surveillance under the Fourth Amendment.

Harris' tweets are not available online, and in its appeal Twitter argued that Harris can assert his right to privacy over posts that are no longer public.

The American Civil Liberties Union and other advocacy groups have filed amicus briefs in the case in support of Twitter. ACLU lawyer Aden Fine said in a statement Monday that the organization would file another brief supporting Twitter's appeal, saying Sciarrino's rulings are "dangerous."

The appeal comes a week after Harris filed a civil action, claiming Sciarrino exceeded his authority and seeking a court order enjoining his rulings from taking effect.

Meanwhile, Sciarrino filed an order Aug. 20 requesting that Twitter's attorneys appear before him in September to explain why the company has not complied with the subpoena.

The district attorney's office declined to comment on the appeal.

The case is People v. Harris, Criminal Court of the City of New York, No. 2011NY080152.

For the prosecution: Assistant District Attorney Lee Langston.

For Twitter: Karl Sleight of Harris Beach; John Roche of Perkins Coie.

For Harris: Martin Stolar of the National Lawyers Guild; Emily Bass.

(Published by Reuters - August 27, 2012)