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Prosecutors May Get to Use Activist’s Tweets

(CN) - An Occupy Wall Street supporter lost his bid Monday to quash a subpoena for more than three months of posts on his Twitter account.

Malcolm Harris, a 22-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.

To prove that it warned protesters not to enter the bridge, the New York City Police Department released videos of an officer giving directions with a bullhorn. The protesters say, however, that the command did not carry across the 1,000-plus throng. The mass arrest is widely credited with sparking the sudden growth of Occupy Wall Street and similar movements across the country.

On Jan. 26, prosecutor Lee Langston subpoenaed Twitter to turn over posts that Harris published from his account, @destructuremal, between Sept. 15 and Dec. 31, 2011.

Harris' attorney with the National Lawyers Guild cried foul over the apparent effort "to chill the legitimate political expression of critics of government policies" in a motion to quash.

Manhattan Criminal Court Judge Matthew Sciarrino Jr. ruled Monday that Harris should have known he had no expectation for privacy for what he sent into the Twitterverse.

"While a Twitter account's user information and Tweets contain a considerable amount of information about the user, Twitter does not guarantee any of its users complete privacy," the ruling states. "Additionally, Twitter notifies its users that their Tweets, on default account settings, will be available for the whole world to see. Twitter also informs its users that any of their information that is posted will be Twitter's and it will use that information for any reason it may have. The @destructuremal account's Tweets were, by definition public. The defendant had knowledge that Twitter was to instantly distribute his Tweets to Twitter users and non-Twitter users, essentially anyone with Internet access. Indeed, that is the very nature and purpose of Twitter. Accordingly, this court finds that the defendant has no standing to move to quash the subpoena."

Harris' attorney Martin Stoler, with the National Lawyer's Guild, said he plans to seek reconsideration of the decision.

"I'm very disappointed with the way the judge deals with my client's privacy interests," Stoler said.

He added that the New York Court of Appeals recently upheld privacy rights based on the Supreme Court's landmark January 2012 rebuke of unwarranted GPS tracking.

The court ruled that the "accumulation" of the GPS data require a "heightened degree of protection" that any particular position does not afford on its own, Stolar said.

The defense intends to argue that the same should apply to Twitter.

Meanwhile, prosecutors claim that the Tweets will contradict Harris' intended defense at trial.

"The People claim the defendant's anticipated defense is contradicted by his public statements, which identifies the @destructuremal account as likely belonging to the defendant and indicates that while on the Brooklyn Bridge the defendant may have posted Tweets that were inconsistent with his anticipated trial defense," the ruling states.

A footnote links to two articles written by or about Harris.

The first, a Gawker article titled "I'm the Jerk Who Pranked Occupy Wall Street," describes how he spread the rumor that Radiohead would perform a secret concert at Zuccotti Park.

The second link connects to The New Inquiry where Harris published an essay about the Brooklyn Bridge arrests titled "A Bridge to Somewhere."

Stolar denies that the Tweets will contradict Harris' planned defense that the NYPD "apparently authorized" the march across the bridge.

Judge Sciarrino will review the Tweets in camera before handing them over to prosecutors.

"The relevant portions thereof will be provided to the office of the district attorney, who will provide copies to the defense counsel as part of discovery," the ruling states.

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