Twitter is standing firm against a court order to turn over user data related to an Occupy Wall Street protester.
The social media giant filed an appeal on Monday asking for a New York appeals court to reconsider earlier rulings ordering the social network giant to give the government tweets and account information on two Twitter accounts believed to have been used by Malcolm Harris. That lower court ruling came even though the government did not obtain a warrant to get the data. The lower court had also denied Harris the right to challenge the government request for data on his own, which Twitter asked the appeals court to reconsider.
In its appeal (.pdf), Twitter wrote that Harris’s tweets are protected by the Fourth Amendment “because the government admits that it cannot publicly access them, thus establishing that Defendant maintains a reasonable expectation of privacy in his communications.” The Twitter accounts in question have been closed and are no longer publicly available.
But even if Harris’s tweets were publicly available, Twitter points out that the U.S. Supreme Court has ruled that “public information which would allow law enforcement to draw mere inferences about a citizen’s thoughts and associations are entitled to Constitutional protection, thus establishing that a citizen’s substantive communications are certainly entitled to the same protection.”
Harris was arrested for disorderly conduct last October while participating in an Occupy march at the Brooklyn Bridge.
Last January, the district attorney in Manhattan asked Twitter to hand over all tweets posted to the account of @destructuremal between Sept. 15 and Dec. 31 last year, as well as any information Twitter had about the owner of the account, such as a user name, e-mail address or IP addresses used to access the account to post the tweets. In March, the government served Twitter with a second order for records related to a different Twitter account, @getsworse, also believed to belong to Harris.
Prosecutors used a 2703 order to request Harris’s information, which allows them to obtain data without a warrant. More powerful than a subpoena, but not as strong as a search warrant, a 2703(d) order is supposed to be issued when prosecutors provide a judge with “specific and articulable facts” that show the information they seek is relevant and material to a criminal investigation. The people targeted in the records demand, however, don’t have to themselves be suspected of criminal wrongdoing.
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