Twitter rolled over in court today, turning over a fat sheaf of records subpoenaed by prosecutors in the case of Malcolm Harris, one of the people arrested last fall in a protest on the Brooklyn Bridge.
Those records include tweets that were once public but had since ceased to be so, either because they were deleted or because they had passed beyond the publicly visible horizon of the twitter history. The records also include information that was never public, including geolocation data.
Prosecutors want to comb through these records to bolster their prosecution of Harris for a disorderly conduct violation charge stemming from the march on the bridge.
What makes the case significant is that prosecutors argued — and Judge Matthew Sciarrino agreed — that Harris didn’t have any standing to challenge the subpoena for his own tweets. “The Tweets the defendant posted were not his,” Sciarrino ruled in April. They belonged to Twitter.
To Twitter’s credit, it has argued all along that users tweets belong to users, and it initially refused to comply with the subpoena. But facing contempt of court charges, the company buckled today.
Tarryl Brown, a lawyer representing Twitter in the case, brought a sealed first-class envelope containing the records into New York criminal court this morning. Brown renewed Twitter’s objections to turning over the records, and argued that since this is a case of first impression, essentially without precedent, and since Twitter has already appealed Sciarrino’s ruling, the court should stay its decision to compel the production of documents until the appeals court has ruled on the issue in November.
Short of that, Brown asked the judge to keep the envelope sealed until the appeals ruling.
Sciarrino denied Twitter’s request for a stay, but agreed to keep the records sealed until September 21, when Justice Carol Huff will be considering another appeal of sorts: an Article 78 writ by Harris arguing that Sciarrino’s decision exceeded his jurisdiction.
Harris’s lawyer Martin Stolar called Sciarrino’s agreement to keep the records sealed pending the Article 78 hearing a victory. Stolar praised Twitter’s initial refusal to turn over the records, but said he and his client were disappointed by the company’s reversal.
“If they’re turning over his records, it looks like they’re giving up his case,” Stolar said.
Asked what the subpoenaed Twitter records contain, Harris, a writer and editor at The New Inquiry, answered “For three and a half months? A lot of nonsense.”
So what does the prosecution want with these records?
“I’m not exactly sure what they’re looking for,” Harris said. “They’re not sure what they’re looking for.”
However the case is ultimately decided, it is likely to have significant implications for freedom of speech in an era when many forms of digital expression are stored on the servers of third parties.
“The old rules deciding what’s a proper search, what’a a proper subpoena, essentially don’t apply any more,” Stolar said. “The Fourth Amendment, which prohibits illegal search and seizure, is silent on grabbing someone’s electronic records.”
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