Twitter Subpoena Challenged by Protester

I wrote the following article for my Investigative Reporting class. Our assignment was to write a story about a court case using public records. I chose this case, in part, because it has to do with social media and how it is being used in trials. I will be writing follow up pieces on this case as it unfolds.

Feb. 15 (New York) -- The New York District Attorney’s subpoena of Twitter in the case of Malcolm Harris is too far reaching says the National Lawyers Guild, who issued a motion to quash the subpoena on February 6, 2012.

Martin Stolar, Harris’s attorney through the National Lawyers Guild, wrote in the motion that the subpoena “is overbroad, issued for an improper purpose, and constitutes an abuse of court process.”

The subpoena seeks the content of Harris’s account from two weeks prior to the October 1 incident when he was arrested until two months after the incident, despite the fact that Harris is only charged in relation to the one event.

It is unclear to what ends the District Attorney is planning to use the information.

But Martin Stolar, Harris’s attorney, wrote in the motion that the range of information sought by the District Attorney suggests that they are using the subpoena as a way of investigating Harris instead of providing evidence to uphold the charge.  He adds that without “notion of a broader conspiracy charge” the subpoena is overbroad and should be quashed on that alone.

“This is legal equivalent of busting a party with loud noise and demanding my phone records for 3.5 months to see if I helped plan it,” wrote Harris on Twitter.

The motion to quash also notes that the subpoena violates the Electronic Communications Privacy Act, as well as the defendant’s First and Fourth Amendments.

Harris, a 23 year old writer for The New Inquiry website, was arrested with about 600 other Occupy Wall Street protesters while they blocked the Brooklyn Bridge. According to the complaint, Harris “obstructed vehicular traffic and created a public disturbance/inconvenience” and is being charged with disorderly conduct.

Earlier in September, Harris had also made headlines when he tweeted that Radiohead would be holding a concert at Zuccotti Park. That information was false and he later wrote that he did this to attract crowds to the site of the Occupy Wall Street camp.

The subpoena would cover these tweets concerning Radiohead.

District Attorney Cyrus R. Vance, filed the subpoena on January 30, 2012, seeking "user information, including email address," along with tweets from September to December from Harris’s Twitter account “@destructuremal.”

Harris advised his attorney of the subpoena that same day after he had received a notice from Twitter Inc. saying that hey had received a faxed version of the document from the New York County District Attorney that morning.

Although Harris could not be contacted for comment, he wrote this on his Twitter account:

"When you get an email from Twitter Legal, you assume it's a phishing scam, trying to get your password," he wrote. "It turned out that it is a phishing scam, but it's from the prosecutors."

Twitter would not comment on the situation, but according to their privacy policy, it may preserve or disclose information necessary to comply with a legal request.

They have not responded, however, as Stolar advised the San Francisco based company that he would be filing paperwork to repress the subpoena and their legal department said it would delay processing the request, according to the motion to quash.

Now that the motion to quash has been filed, the District Attorney has until February 21 to file papers in opposition, Stolar says.

Joan Vollero, a spokeswoman for the District Attorney’s office, would not comment on the situation except to say that the next court appearance would be February 29.

While Twitter has only been subpoenaed on one other Occupy Wall Street case in Boston, Harris is just one of the thousands of Occupy Wall Street-related defendants whose cases are still being filtered through the courts. In New York, a special courtroom was set up to deal with more than 1,800 cases, most of them misdemeanor charges.