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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. 

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That’s not how Twitter sees it. In a statement, the company, based in San Francisco, said it is disappointed in Judge Sciarrino's decision and is considering its options. “Twitter’s Terms of Service have long made it absolutely clear that its users 'own' their content. We continue to have a steadfast commitment to our users and their rights,” the statement read.

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Twitter had filed a motion to quash the subpoena after the court rejected Harris’s motion to do the same, saying that Harris “had no proprietary interest in the user information on his Twitter account.” The American Civil Liberties Union filed an amicus brief supporting the position that Twitter should not release Harris’s user data. They argued that for the court to say that Harris had no right to challenge the subpoena relating to his own words on Twitter was a violation of his First and Fourth Amendment rights.

Further, the ACLU argued that the broad range of user data requested – all of Harris's account information from Sept. 15 to Dec. 31 – went beyond the dates relevant to the case and included information that was never public in the first place. This includes Direct Messages, which are private communications between individuals, and Harris’s Internet Protocol address, which would reveal whenever and wherever Harris used Twitter over those 3-1/2 months.

Lawyers not involved in the case say one reasons the district attorney is pursuing the case is the need to establish what is termed “chain of custody” on the evidence. For example, the D.A. might have been able to get Harris’s tweets from a website that stores deleted messages.

“From a prosecutor's point of view, you want evidence that is authentic and real,” says Sara Shanahan, a partner in the litigation department of Sherin & Lodge LLP, a Boston law firm. “It’s better to do it with a valid subpoena versus someone running an undelete program.”

Prosecutors also may have been trying to set legal precedent for future cases, says Mr. Keneally. “They are saying, 'in cases where we believe social media information is relevant, we will use our subpoena power.' ”

The tweets from the account Harris allegedly was using Oct. 1 have long been wiped from the Web. However, two days afterward the protest march, he wrote about it for an online magazine where he is a senior editor. He tells the story then as if he were both an observer and a participant: “There’s been a lot of questions as to what exactly happened at this point; whether the police read warnings or not, whether the police enticed protesters onto the bridge with candy or not, etc. Here’s what I saw from the front lines,” he wrote.

“One of the more senior officers tries to read a warning over his megaphone, telling us to walk on the pedestrian bridge to avoid arrest, but he’s drowned out by chants of 'Take the bridge!' ” Harris continues: “The march marshals who told the police the route in advance give up trying to wave people back onto the approved path."

Harris was then arrested, along with about 700 others. Most of the cases have already been dismissed.

The disorderly conduct charge that Harris faces is a violation under New York law, which is considered an offense but not a crime and carries a maximum penalty of 15 days in jail.

In response to the news from Monday, Harris says in an e-mail that “My legal team is looking at my options. I'm not an attorney or a judge, but I've read about an extensive appeals system.”

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