In a ruling punctuated with Twitter hashtag marks, a New York judge said on Monday that prosecutors don't have to get a warrant to subpoena tweets. The judge said prosecutors could seek users' tweets as well as information about the Twitter accounts.
According to The Huffington Post, Judge Matthew Sciarrino Jr. ruled that Occupy Wall Street protester Malcolm Harris cannot stop prosecutors from getting his tweets. The judge ruled that prosecutors could seek Harris's public tweets weeks before and after his arrest on October 1 on the Brooklyn Bridge. Prosecutors, according to the judge, can also seek user information surrounding the Twitter account he used.
Martin Stolar, the lawyer representing Harris who has been fighting a subpoena of his Twitter account, insisted the "judge mixed up metaphors in the ruling."
But the decision of Judge Matthew Sciarrino Jr. seems clear enough. The judge said there was no precedent in New York for an order to quash a subpoena to a "third-party online social networking service seeking to obtain the defendant’s user information and postings." According to the judge, "an analogy may be drawn to the bank record cases where courts have consistently held that an individual has no right to challenge a subpoena issued against the third-party bank."
The Atlantic Wire reports Sciarrino Jr. said: "There is, in fact, reasonable grounds to believe the information sought was relevant and material to this investigation."
Sciarrino, therefore, ruled that Harris could not quash the subpoena. The Atlantic Wire notes, however, that the judge did not necessarily rule that the tweets or other information would be admissible evidence.
According to Gothamist, the Judge used Twitter hashtags in the first paragraph of his ruling: "The defendant moved to #quash that subpoena. That motion is #denied."
Sciarrino's decision has raised alarm among electronic privacy advocates who say the timespan involved was too broad. According to critics, although the tweets were sent publicly, seeking access to accompanying user information violated Harris's privacy and free association rights. The Huffington Post reports Stolar said: "There's a whole universe of information out there that deals with the associations that Mr. Harris has. Here, there is a privacy interest in his communications with other people."
Prosecutors, however, insisted that Harris has no privacy interest in his tweets. They argued: "All of the tweets that we request are communications that the defendant put out there, into the world, and he has no privacy interest. The very purpose of Twitter is to spread this information to the entire world."
The Huffington Post notes the judge said he would review the material before the Manhattan District Attorney's office sees it due to Harris's privacy concerns.
Stolar told The Atlantic Wire that he would challenge the decision, saying Sciarrino "mixed his metaphors." The lawyer said: "There’s a whole other recent series of decisions from Supreme Court and New York State, about whether or not using a GPS device to track someone uses a warrant. People’s locations while on the street are generally public, like tweets are, but it’s the accumulation of all that information, like someone’s whereabouts, that the courts have said a subpoena is necessary... I think that's more analogous to tweets than the bank records are."
The case has attracted the attention of Electronic Frontier Foundation, a group that defends free speech and digital rights online. Former Manhattan civil court judge Emily Jane Goodman, has also taken interest in the case. Goodman, who was not involved in the case, said: "Tapping phones may be passe, but the dangers of more modern electronic `eavesdropping' are not."