Twitter Goes to bat for Occupy

Twitter has asked a New York state judge to throw out a court order requiring it to turn over three months worth of messages posted by an Occupy Wall Street protester being prosecuted for disorderly conduct.

In a motion (PDF) filed on Monday in New York City Criminal Court, Twitter lawyers argued the city’s district attorney’s office is overstepping its authority in ordering the handing-over of tweets and other subscriber info of Malcolm Harris, whose handle on the microblogging site is @destructuremal. Prosecutors seeking the data failed to get a court warrant based on probable cause, making an order they obtained earlier a violation of federal law and the Constitution’s prohibition against unreasonable searches and seizures, the Twitter brief argued.

“If the order stands, Twitter will be put in the untenable position of either providing user communications and account information in response to all subpoenas or attempting to vindicate its users’ rights by moving to quash these subpoenas itself—even though Twitter will often know little or nothing about the underlying facts necessary to support their users’ argument that the subpoenas may be improper,” Twitter’s attorneys argued.

Rather than get a warrant based on probable cause, the New York City prosecutors cited the Stored Communications Act, which requires only that investigators show the requested information is relevant to an ongoing criminal investigation. After receiving the demand, Twitter provided notification to Harris, who challenged the demand on the grounds that the information prosecutors were seeking fell outside the limitations of the statute. Last month, New York Criminal Court Judge Matthew A. Sciarrino, Jr. denied Harris’s motion (PDF), arguing he had no legal standing to challenge the subpoena because he had no proprietary interest in the data investigators sought.

Twitter’s brief argued that Sciarrino’s order contradicts the terms of service provisions guaranteeing users “retain rights to any content [they] submit, post, or display” on the site.

“To hold otherwise imposes a new and overwhelming burden on Twitter to fight for its users’ rights, since the order deprives its users of the ability to fight for their own rights when faced with a subpoena from New York State.”

Monday’s brief also argued that Sciarrino’s order would force Twitter to violate federal law because the Constitution’s Fourth Amendment requires service providers to disclose user communications only when presented with a valid search warrant. As support, the attorneys cited a 2010 ruling from the Sixth Circuit Court of Appeals that said government prosecutors couldn’t rely on the Stored Communications Act to get the e-mail of a man they were investigating for fraud. They also said the statute doesn’t cover communications that are less than 180 days old. Prosecutors investigating Harris are seeking tweets sent from September 15 to December 31 of last year, meaning some of the requested information won’t be 180 days old until the end of June.

Read the rest at Ars Technica