Judge Wraps Twitter|Subpoena in Flag

MANHATTAN (CN) - The Founding Fathers "risked their lives for our right to tweet," but did not envision constitutional protection for public tweets, a criminal court judge ruled Monday.

An attorney for the Occupy Wall Street member who faces the exposure of his Twitter account called the judge's reasoning "based in the last century."

Judge Matthew A. Sciarrino's order forces 22-year-old Malcolm Harris to turn over tweets he posted on his account, @destructuremal, between Sept. 15 and Dec. 31, 2011.

Prosecutor Lee Langston hopes to use those tweets against Harris and others who were corralled in the 700-person mass arrest on disorderly conduct charges on Oct. 1, 2011, as Occupy Wall Street protesters marched across the Brooklyn Bridge.

Police say they notified marchers that they would be arrested if they crossed the bridge; the protesters say police coaxed them out to suppress the movement.

Invoking the Framers, Sciarrino rejected efforts by Twitter and Harris to quash the subpoena.

"While the U.S. Constitution clearly did not take into consideration any tweets by our founding fathers, it is probably safe to assume that Samuel Adams, Benjamin Franklin, Alexander Hamilton and Thomas Jefferson would have loved to tweet their opinions as much as they loved to write for the newspapers of their day (sometimes under anonymous pseudonyms similar to today's twitter user names)," Sciarrino wrote.

"Those men, and countless soldiers in service to this nation, have risked their lives for our right to tweet or to post an article on Facebook; but that is not the same as arguing that those public tweets are protected. The Constitution gives you the right to post, but as numerous people have learned, there are still consequences for your public posts. What you give to the public belongs to the public. What you keep to yourself belongs only to you."

Attorney Martin Stolar, who represents Harris for the National Lawyers Guild, said that Sciarrino's argument belonged to different revolutionary times.

"We're in a different universe than the Framers of the 4th Amendment had in mind," Stolar told Courthouse News in a telephone interview. "You're not afraid of the king's troops going into your home to steal your private letters without a warrant."

Revolutions in electronic communication and storage have made physical break-ins less central to constitutional protections, Stolar said.

"A forward-thinking jurist would recognize that there is something different going on," the attorney said. "We can have the government searching and seizing without physical intrusion."

Stolar added: "The analogy is very nice and sounds good, but it really doesn't carry us into the 21st century."

Sciarrino hypothetically equated the physical and digital worlds in his order.

"Consider the following: a man walks to his window, opens the window, and screams down to a young lady, 'I'm sorry I hit you, please come back upstairs,'" Sciarrino wrote. "At trial, the People call a person who was walking across the street at the time this occurred. The prosecutor asks, 'What did the defendant yell?' Clearly the answer is relevant and the witness could be compelled to testify. Well, today, the street is an online, information superhighway, and the witnesses can be the third party providers like Twitter, Facebook, Instragram, Pinterest, or the next hot social media application."

Stolar said a better hypothetical situation to describe his client's position would be the government placing a "microphone outside your window for 3½ months" to accumulate information.

Stolar claims that the "accumulation" of months of tweets represents the type of government data-gathering that the Supreme Court rebuked in a decision against unwarranted GPS tracking.

Sciarrino has a complicated relationship with social media.

The judge reportedly was disciplined for "friending" on Facebook lawyers arguing before him, and told by Twitter that he misunderstands their company policy.

"Twitter's Terms of Service make absolutely clear that its users own their content," the social media company wrote in a motion to quash. "The Terms of Service expressly state: You retain your rights to any content you submit, post or display on or through the services."

Stolar said that Harris does not have the right to appeal the order until after trial, but he is considering filing a writ of mandamus.

Harris's trial has been set for Dec. 12.

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