Twitter Schools Judge in Social Media

MANHATTAN (CN) - A criminal judge who was disciplined for Facebook "friending" lawyers in his court should not have allowed law enforcement to subpoena the Twitter activity of an Occupy Wall Street activist, the social media site says in a motion to quash.

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. Police say they notified marchers that bridge trespassers would be arrested, but the protesters say they were coaxed out to suppress the movement.

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

Langston says the Tweets show that protesters knew their march across the bridge was unauthorized, but Harris' lawyers blasted the move as a fishing expedition and invasion of their client's privacy rights.

The matter fell before Manhattan Criminal Court Judge Matthew Sciarrino Jr., who was reportedly disciplined in 2009 for Facebook "friending" lawyers arguing before him.

Sciarrino ordered Harris to cough up the Tweets last week in a decision strewn with haphazard hashtags, the favored punctuation technique of Twitter users.

"The New York County District Attorney's Office seeks to obtain the #Twitter records of @destructuremal using a #subpoena," Sciarrino wrote, linking to a footnote saying that the # symbol "is used to mark keywords or topics in a Tweet."

"The defendant moved to #quash that subpoena," he wrote. "That motion is #denied."

The judge added that Twitter users should have no expectation of privacy.

"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."

Twitter told the judge that his analysis flies in the face of company policy.

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

Although the judge ruled that Harris did not have standing to protect his Tweets, Twitter countered that courts must grant this ability.

"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," the motion states.

The American Civil Liberties Union hailed Twitter's full-throated defense of its user.

"This is a big deal," the ACLU's senior staff attorney Aden Fine wrote in a blog post. "Law enforcement agencies - both the federal government and state and city entities - are becoming increasingly aggressive in their attempts to obtain information about what people are doing on the Internet."

The memo was submitted to the court on Monday.

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