By Kim Zetter
Twitter is standing firm against a court order to turn over user data related to an Occupy Wall Street protestor.
The social media giant filed an appeal on Monday asking for a New York appeals court to reconsider earlier rulings ordering the social network giant to give the government Tweets and account information on two Twitter accounts believed to have been used by Malcolm Harris. That lower court ruling came even though the government did not obtain a warrant to get the data. The lower court had also denied Harris the right to challenge the government request for data on his own, which Twitter asked the appeals court to reconsider.
In its appeal (.pdf), Twitter wrote that Harris’s tweets are protected by the Fourth Amendment “because the government admits that it cannot publicly access them, thus establishing that Defendant maintains a reasonable expectation of privacy in his communications.” The Twitter accounts in question have been closed and are no longer publicly available.
But even if Harris’s tweets were publicly available, Twitter points out that the U.S. Supreme Court has ruled that “public information which would allow law enforcement to draw mere inferences about a citizen’s thoughts and associations are entitled to Constitutional protection, thus establishing that a citizen’s substantive communications are certainly entitled to the same protection.”
Harris was arrested for disorderly conduct last October while participating in an Occupy march at the Brooklyn Bridge.
Last January, the district attorney in Manhattan asked Twitter to hand over all tweets posted to the account of @destructuremal between Sept. 15 and Dec. 31 last year, as well any information Twitter had about the owner of the account, such as a user name, e-mail address or IP addresses used to access the account to post the tweets. In March, the government served Twitter with a second order for records related to a different Twitter account, @getsworse, also believed to belong to Harris.
Prosecutors used a 2703 order to request Harris’s information, which allows them to obtain data without a warrant. More powerful than a subpoena, but not as strong as a search warrant, a 2703(d) order is supposed to be issued when prosecutors provide a judge with “specific and articulable facts” that show the information they seek is relevant and material to a criminal investigation. The people targeted in the records demand, however, don’t have to themselves be suspected of criminal wrongdoing.
Authorities said they wanted Harris’s tweets “to refute the defendant’s anticipated defense, that the police either led or escorted the defendant into stepping onto the roadway of the Brooklyn Bridge.”
Twitter had moved to quash the government’s 2703 orders, but in July, Manhattan Criminal Court Judge Matthew A. Sciarrino Jr ordered Twitter to release the tweets and account information, ruling that Harris had no expectation of privacy in tweets that were published.
“If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy,” Sciarrino wrote in his decision. “There is no proprietary interest in your tweets, which you have now gifted to the world.”
Authorities did not ask Twitter to hand over Harris’s private direct messages.
“Those private dialogues,” Sciarrino noted, “would require a warrant based on probable cause in order to access the relevant information.”
Twitter filed the original motion to quash after the judge ruled that Harris himself didn’t have standing to quash the 2703 orders on his own. In its appeal filed this week, Twitter asked the court to reverse this decision as well, stating that Twitter users have a “proprietary interest” in their records, under the company’s Terms of Service, the company wrote in its appeal.
“Twitter users own their Tweets and should have the right to fight invalid government requests,” Twitter argued. The company said that Twitter users also have standing under New York state and federal laws, as well as case law, to challenge a government subpoena that implicates their constitutional rights.
The American Civil Liberties Union plans to file an amicus brief backing Twitter later on Monday.
Regarding Twitter’s appeal, ACLU attorney Aden Fine said in a statement, “Under the First and Fourth Amendments, we have the right to speak freely on the Internet, safe in the knowledge that the government can’t get information about our speech without a warrant and without satisfying First Amendment scrutiny. We’re hopeful that Twitter’s appeal will overturn the criminal court’s dangerous decision, and reaffirm that we retain our constitutional rights to speech and privacy online, as well as offline.”
Earlier this year, Twitter reported authorities had sought information on Twitter user accounts 679 times during the first half of this year. Twitter revealed that it complied with the requests 75 percent of the time by releasing all or some of the information being sought.