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Twitter Subpoena Raises a Storm of Legal Questions

On Thursday, electronic privacy advocates argued that the subpoena to Twitter seeking the tweets of an Occupy Wall Street protester violates his rights to free speech and privacy. The filing from ACLU holds that Twitter is not the owner of the tweets of Malcolm Harris, but he, Harris is the only owner of his tweets.

This is in line with Twitter’s own representation that it runs a platform and does not own the content. Hence, argue the challengers, the subpoena to Twitter to hand over the tweets of Malcolm Harris is misdirected and the subpoena should have been served on Harris and not on Twitter. Malcolm Harris is one of the 700 protesters arrested during last October’s government crackdown at Brooklyn Bridge.

Prosecutors from the Manhattan District Attorney’s office maintained that the personal information of Harris on Twitter and all of his tweets between Sept 15 to Dec 31 are required verify his stand that the police either led or escorted protesters into the roadway. Earlier, the Manhattan Criminal Court Judge, Matthew Sciarrino Jr had ruled that Harris did not have the locus standi to challenge the subpoena.

Privacy and speech activists hold that if the judge upholding the district attorney’s subpoena undermines a basic tenet of Internet communication of this age – that the author, and not the company whose services are used, is responsible for the content.

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The brief submitted by ACLU on Thursday argues that Harris has the standing to bring a First Amendment challenge against the subpoena because it would reveal sensitive details about him and that the subpoena violates Harris’s Fourth Amendment right against warrantless search. With access to Twitter data, the government can “reconstruct their movements to conduct virtually 24 hours surveillance of them.”

The district attorney’s office submitted in its brief, “this claim is meritless because defendant has no reasonable expectation of privacy in information that he asked Twitter to publish to what is, after all, the world-wide web.”

Susan Freiwald, a professor of cyber law and information privacy at the University of San Francisco School of Law told Reuters, “Everything on the Internet is held by a third party …If you were to say that the third party rule retains force on the Internet, then we would have no privacy online.”

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