Court in OWS Twitter Case Gets it Wrong Again

Hanni Fakhoury
EFF

Despite Twitter’s (and our) best efforts, it has been ordered to disclose to the government all of the information it has on an Occupy Wall Street protester.

We’ve been following the case of Malcolm Harris‘ — arrested in connection with the OWS Brooklyn Bridge protest in October 2011 — very closely. Charged with disorderly conduct, New York City prosecutors sent a broad subpoena to Twitter, seeking to obtain any and all information it had on Harris — tweets, subscriber information, email addresses. From the very beginning, we suspected that the government was really after location information. And sure enough, after Harris challenged the subpoena, the NYC prosecutors admitted they wanted the information to show he was on the bridge at the time of his arrest.

In April, the court denied Harris’ motion to quash, writing an opinion filled with troubling legal conclusions, finding Harris had no legal standing to challenge the subpoena since he didn’t own his tweets, and allowing the government to access content and location data without a search warrant. Thankfully, Twitter stepped up to challenge the subpoena since the court ruled Harris couldn’t do it himself, and together with the ACLU and Public Knowledge, we filed an amicus brief in support of Twitter’s motion to quash.

Unfortunately, last week the court issued another decision, this time denying Twitter’s motion to quash for much the same reason that it denied Harris’ motion to quash: the belief that there is no expectation of privacy — and thus no 4th Amendment privacy interest — in information turned over to companies or broadcast over the Internet. While we’re not surprised the judge didn’t change his mind, we’re still disappointed to see the court failing to appreciate the privacy concerns at stake. We think the court is behind the times on this important issue.

We’ve repeatedly (and are continuing to) challenge this idea and have seen some courts slowly begin to recognize that the 4th Amendment’s right to privacy applies to information, like emails and cell site location information, turned over to third parties. Earlier this year, Supreme Court Justice Sotomayor noted in her concurring opinion in United States v. Jones that the elimination of privacy rights in information turned over to third parties is “ill-suited” for the digital age we live in today.

While we may have lost this round of the fight, we’re positive that this will not be the end of this issue both in Harris’ case, and in similar cases throughout the country. As this case and issue work their way up through the appellate courts, EFF will be continuing the fight to keep this sensitive personal information out of the prying hands of the government unless they obtain a search warrant.

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