Twitter Evidence Allowed in ‘Occupy’ Trial
By Tamer El-Ghobashy
Police and protesters squared off on the Brooklyn Bridge on Oct. 1, 2011. Manhattan prosecutors have subpoenaed Twitter accounts in connection to the march.
An Occupy Wall Street protester’s bid to quash a subpoena of his Twitter activity has failed, with a judge ruling that the popular micro-blogging service can hand over his information to Manhattan prosecutors.
The protester, Malcolm Harris, was arrested along with hundreds of others during an Oct. 1 march on the Brooklyn Bridge. He and others contend that police directed them to move onto the bridge’s roadway during a peaceful march, and then made mass arrests for obstructing traffic.
Prosecutors argue that protesters were aware of police orders not to walk on the roadways and believe a review of messages posted on Twitter will help prove it. Many protesters, like Harris, have chosen to take their cases to trial; most were charged with disorderly conduct, a violation akin to a traffic ticket that doesn’t rise to the level of a crime.
Defense attorneys have said subpoenas have been issued for at least four protesters’ Twitter accounts. It is unclear if any other people have sought to stop the subpoenas.
As the Journal reported last month, the use of data from social-media services could play a key role in protest-related trials:
In short Twitter messages, protesters coordinate activities and warn others of law-enforcement efforts. In doing so, prosecutors believe some have revealed an intent to break the law.
“The lesson is, if you’re speaking publicly and leaving a record as to who you are, that’s information the government can legally access,” said Orin Kerr, a professor of law at George Washington University who specializes in electronic evidence and Internet law.
Tweets could address a key problem for prosecutors as the cases move through court: establishing the actions and intentions of specific people who were arrested in huge groups.
In Harris’s case, prosecutors subpoenaed his Twitter account in January, seeking his personal information and the messages he posted between Sept. 15 and Dec. 31, 2011. In keeping with its published policies, Twitter informed Harris of the subpoena. His attorney responded by moving to quash the subpoena on privacy grounds.
Criminal Court Justice Matthew Sciarrino Jr., in his decision denying the motion on Friday, wrote that the “defendant’s contention that he has privacy interests in his Tweets to be understandable, but without merit.”
The judge said the situation was analogous to subpoenaing bank records, which under New York law are considered third-party information. In other words, individuals don’t own their bank accounts and therefore can’t stop a bank from turning over the records under court order.
Harris told the Wall Street Journal in an email that he was “disappointed” with the ruling but he is “sure justice will win out.”
His attorney, Martin Stolar, said he disagreed with the judge’s reasoning and intends to make a motion to re-argue the matter based on recent court decisions on GPS monitoring. He said the prosecutor’s interest in Harris’s Twitter account includes the time and location data, making his data from Twitter similar to GPS surveillance, which requires a warrant.