MANHATTAN (CN) - The subpoena of an Occupy Wall Street activist's Twitter account means "your First and Fourth Amendment rights have vanished" in the age of cloud computing, a lawyer claims in an motion to reverse the ruling.
Malcolm Harris, a 23-year-old writer, was among the more than 700 people arrested for disorderly conduct on Oct. 1, 2011, as Occupy Wall Street protesters marched across the Brooklyn Bridge.
Police say they notified marchers about the risk of arrest, but the protesters say they were coaxed out to suppress the movement.
Manhattan Criminal Court Judge Matthew Sciarrino Jr. granted prosecutors' requests to plough through his Twitter account, @destructuremal, between Sept. 15 and Dec. 31.
Twitter recently turned over Harris' tweets to the District Attorney of New York.
One of Harris' lawyers, Emily Bass, urged the court to invalidate the ruling in a motion for a writ of mandamus, a heightened - and procedurally difficult - avenue of appeal.
Her 45-page motion argues that her client's subpoena has fateful repercussions in the age of cloud computing, an umbrella term describing the use of remote databases to store users' private information.
"Personal communications, daily schedules and travel itineraries that you once stored in a desk drawer or dedicated directory on a home computer are now stored for you by your ISP or social-networking site, somewhere in the cloud," the motion states. "The information is still yours. You still have control over it, but both technically and technologically someone else is now its custodian.
"The question this case poses to the court is: What, if anything, does the change in architecture and protocols of the Internet mean for the relationship between the individual and the state?
"Obviously, if the minutiae of your daily wanderings or transcripts of your communications were still updated to and stored on your laptop or cell phone, no one would doubt the answer. Everyone would agree that the First and Fourth Amendments and privacy laws still apply, as they always have, to protect that information. They would also agree that law enforcement would still have to go directly to you to obtain the information, either voluntarily or through compelled discovery in court.
"From Harris' perspective, not much has changed - only the address of your e-storage locker. Law enforcement is still seeking your information, still has to go to you for it, and still has to get your consent or obtain the information via discovery.
"From the [District Attorney of New York]'s perspective, the rise of e-storage has changed everything. The advent of cloud computing releases the DANY from any obligation to ask you for the information or obtain it from you through discovery. From its perspective, it can deal with the owner of the e-storage locker as though that person were the principal, rather than your agent. Since the owner of the storage locker does not have a proprietary interest or expectation of privacy in the stored information, however, that means there are no meaningful constitutional constraints on law enforcement, and your First and Fourth Amendment rights have vanished."
Spokespeople for the city did not immediately respond to a request for comment.
According to motion, city lawyers tried to toss the mandamus challenge on procedural grounds.
Bass attempts to convince the mandamus court of their standing to intervene in most of the remaining pages.
The court has not indicated when it will rule on the issue.
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