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The Associated Press April 23, 2012, 6:51PM ET

Judge: DA can subpoena NY Occupy protester tweets

An Occupy Wall Street protester can't stop prosecutors from getting his tweets, a judge has ruled in a clash over the bounds of privacy in an age of living publicly on social networks.

In a ruling punctuated with Twitter users' beloved hashtag marks, the judge said prosecutors weren't overreaching by seeking Malcolm Harris' public tweets for weeks before and months after his Oct. 1 disorderly conduct arrest on the Brooklyn Bridge, as well as the user information surrounding the Twitter account he used at the time.

"There is, in fact, reasonable grounds to believe the information sought was relevant and material to this investigation," Manhattan Criminal Court Judge Matthew A. Sciarrino Jr. wrote in a decision Friday. He also found that Harris doesn't have legal standing to challenge a subpoena directed to Twitter Inc., not him.

Harris' bid to quash the subpoena "is denied," the judge wrote, underscoring "quash" and "denied" with hashtags, which Twitter aficionados use to mark key words.

Sciarrino added, however, that he would review the material before the Manhattan District Attorney's Office sees it, in light of Harris' privacy concerns.

Prosecutors' bid for the tweets raised alarms among electronic privacy advocates, as well as a now-retired civil court judge who wasn't involved in the case.

They and Harris' lawyer said the timespan was unreasonably broad, and although the tweets were sent publicly, seeking the accompanying user information violated Harris' privacy and free association rights. The data could give prosecutors a picture of his followers, their interactions through replies and retweets, and his location at various points, said his lawyer, Martin Stolar.

"There's a whole universe of information out there that deals with the associations that Mr. Harris has," Stolar said at a court hearing in March.

"Here, there is a privacy interest in his communications with other people," he said.

Stolar said Monday that he strongly disagreed with the judge's ruling and intended to challenge it.

Prosecutors said it was fair game to go after publicly sent messages -- some of which are no longer visible because newer ones crowded them out -- and they might contradict Harris' contention that he thought protesters had police permission to march in the bridge roadway. He was among more than 700 people arrested there. Police said they ignored warnings to stay on a pedestrian path; many demonstrators said they didn't hear the warnings or thought officers were leading them onto the road.

"All of the tweets that we request are communications that the defendant put out there, into the world, and he has no privacy interest," Manhattan Assistant District Attorney Lee Langston said at the March hearing.

"The very purpose of Twitter is to spread this information to the entire world," Langston said.

San Francisco-based Twitter Inc. declined to comment on the judge's decision but noted that it makes a policy of notifying users about law enforcement and government requests for their information, unless the microblogging service is legally barred from doing so. The DA's office had no immediate comment.

The dispute over the subpoena has received attention from the Electronic Frontier Foundation, which defends free speech and digital rights online, and from former Manhattan civil court judge Emily Jane Goodman, who wrote about the matter in The Nation in February.

"Tapping phones may be passe, but the dangers of more modern electronic `eavesdropping' are not," wrote Goodman, who wasn't involved in Harris' case. She retired at the end of February.

The charge against Harris is a violation, not a crime. Maintaining his innocence, he is heading toward trial in June.

Authorities in Manhattan and elsewhere increasingly avail themselves of social networking sites to build cases, and some others arrested at Occupy demonstrations in Manhattan have also said their tweets have been subpoenaed. The issue also has arisen in Boston, where the American Civil Liberties Union of Massachusetts tried to block a prosecutor's subpoena sent to Twitter for information on a user linked to Occupy Boston. A judge has ordered the information to be turned over.


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