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What will Twitter do in the case of the subpoenaed tweets?

Prosecutors want records of tweets from Malcolm Harris, who was at a disruptive Occupy protest, and a New York judge says Twitter must turn them over. The case may help define the line between privacy rights and prosecutorial authority in the online realm. 

By Ron SchererStaff writer, Kevin LoriaContributor / July 3, 2012

In this October 2011 photo, police arrest protesters on New York's Brooklyn Bridge during march by Occupy Wall Street. A judge said in a ruling released Monday that Twitter must give a court almost three months' worth of an Occupy Wall Street protester's tweets after prosecutors demand the messages to make a case for arrests.

Stephanie Keith/AP/File

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New York

Prolific tweeter Malcom Harris was close enough to the front of the crowd that surged onto the Brooklyn Bridge during Occupy Wall Street's march on Oct. 1, 2011, that he was one of the more than 700 people whom the police encircled, arrested, and charged with disorderly conduct.

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Reports about what happened that day are conflicting: Some say organizers deliberately led protesters onto the roadway to block traffic, while others say police officers led marchers to believe they could walk the vehicular route. The Manhattan District Attorney’s office claims that Mr. Harris’s Twitter messages from that day – now deleted from an account he no longer operates – will reveal the truth, so he has issued a subpoena to force the social media giant to show prosecutors what Mr. Harris had written.

On Monday, a state judge in New York ruled that Twitter must comply with the D.A.’s subpoena. Moreover, Harris's tweets over a longer period of time must also be turned over as part of New York’s investigation into any criminal activity that took place in the march across the Brooklyn Bridge, he decided.

The decision is part of a broader trend of judicial decisions allowing prosecutors greater access to people's communications on social media websites, such as Twitter, Facebook, or Instagram. Authorities say they need to view the posts to search for criminal conduct and to ascertain the authenticity of the messages. The social media companies argue that the posts belong to the individuals, under their terms of service. If that were the case, defense lawyers say, the individuals should be allowed to quash such a subpoena as a violation of the Fourth Amendment, which guarantees a reasonable expectation of privacy or would, at least, require authorities to obtain a search warrant.

“This case is indicative of a proactive attitude by the prosecutor in obtaining and using public social media statements by defendants,” says James Keneally, a partner in the white-collar practice at Kelley Drye & Warren LLP, a law firm in New York. “That is why this was of importance to the District Attorney’s office.”

In his ruling, Judge Matthew Sciarrino Jr. compared the tweets with an individual passing by who hears someone yell out a window, “I’m sorry I hit you, please come back upstairs.” At a trial, he says, the district attorney could call the person walking across the street at the time to testify about what he or she heard.

“Clearly the answer is relevant and the witness could be compelled to testify,” wrote the judge. “Well today, the street is an online, information superhighway, and the witnesses can be the third party providers like Twitter, Instagram, Pinterest, or the next hot social media application.”

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