May 8, 2012 at 4:27 PM ET
Twitter filed a motion Tuesday requesting that New York statecourt to overturn an order requiring that the social network provide user information to prosecutors. The user was an Occupy Wall Street protester who was arrested last Oct. 1 in New York City.
Twitter's legal filing accuses prosecutors of asking the company to violate the Fourth Amendment, the Uniform Act and its own Terms of Service. It's a move the American Civil Liberties Union heralds as astrike against the "increasingly aggressive attempts" by federal andstate law enforcement officials "to obtain information about what people are doing on the Internet."
Inlate April, a judge ruled against defendant Malcolm Harris, whose attorney attemptedto quash a subpoena requesting his Twitter activity. Harris, along with hundredsof others, was arrested and charged with disorderlyconduct during a protest march on the Brooklyn Bridge.
Harris, who isprotesting the charge along with many others, contends that police officersdirected the crowd to march on the roadway, then arrested the marchers forobstructing traffic. Manhattan prosecutors contend that the Twitter recordswill show that Harris knew about the police order not to walk on the roadways,but did so anyway.
"Defense attorneys have said subpoenas have been issued forat least four protesters’ Twitter accounts," the Wall Street Journal notedin April, after the court ruled in favor of the Twitter subpoena. Prosecutorsrequested the records because protesters "use Twitter to coordinate activitiesand warn others of law-enforcement efforts. In doing so, prosecutors believesome have revealed intent to break the law."
When reached by msnbc.com, Twitter provided a statement from legal counsel Ben Lee:
As we said in our brief, "Twitter's Terms of Service make absolutely clear that its users own their content." Our filing with the court reaffirms our steadfast commitment to defending those rights for our users.
The Twitter brief mentioned in fact calls out three reasons why the subpoena "imposes an undue burden" by asking the company to violate its own Terms of Service, as well as several federal laws.
"First, the Order surprisingly holds that’ Mr. Harris has no right to challenge the District Attorney’s subpoena for his own communications and account information on Twitter. The motion notes that this finding is is contradictory to Twitter's Terms of Service, which "unequivocally state that its users 'retain [their] rights to any Content[they] submit, post or display on or through' Twitter, and which "expressly permits users to challenge demands for their account records."
Further, Twitter notes that the court requested user information without a warrant -- a violation of the Fourth Amendment, a requirement that "applies even when the government seeks information about allegedly public activities."
Then there's the whole thing about a New York court requesting information from a company located in California, the motion states. Thanks to the Uniform Act to Secure the Attendance of Witnesses from Without a State (Uniform Act, for short), California-based Twitter isn't required to hand over documentation to a New York court without a subpoena issued in its home state. "Because neither the Subpoena nor the Order comply with the Uniform Act, Twitter cannot be required to produce any documents in response to either," the motion points out.
Twitter's choice to "stand up for one of its users" isa "big deal" ACLU attorney Aden Fine writes in a blog post announcingthe motion:
While the individual Internet users can try to defendtheir rights in the rare circumstances in which they find out about therequests before their information is turned over, that may not be enough. Indeed,even though Twitter provided notice to the Twitter user in this particularcase, and even though he was able to get an attorney to file a motion seekingto quash the subpoena, the court foundthat the Twitter user did not have legal “standing” to challenge the D.A.’ssubpoena.
If Internet users cannot protect their own constitutionalrights, the only hope is that Internet companies do so.
Twitter's motion comes in the wake of what civillibertarians are calling the U.S. government's move towards a "SurveillanceState" in the United States.
Earlier this week, CNET's Declan McCullagh reported thatthe FBI is courting social networks, VoIP and Web email providers to buildbackdoors in their services that allow for government surveillance.
Last month,the House passed the CyberIntelligence Sharing and Protection Act (CISPA), a bipartisan bill that allows the feds andprivate corporations (such as Facebook, AT&T, etc.) to shareInternet without a warrant or other judicial oversight.As CISPA awaits a vote by the Senate, Twitter's legal expression of noncompliance is being viewed as at least a small win for our increasingly fading Internet privacy.