NYCLU, ACLU Contest Court Order Giving DA Access to Protester’s Twitter Account

In a legal brief filed today, the New York Civil Liberties Union and the American Civil Liberties Union argue that a court order requiring Twitter to provide the Manhattan District Attorney’s Office with a wealth of information about an Occupy Wall Street demonstrator’s use of the social networking site violates the individual’s constitutional rights to free speech and privacy.

“This case is important because law enforcement around the country is becoming increasingly aggressive in its attempts to obtain information about what people are doing and saying on the Internet,” said Aden Fine, senior staff attorney with the ACLU. “People rely on the Internet to express themselves and to live their lives, and the government shouldn’t be able to get this constitutionally protected information without a warrant and without complying with the First Amendment.”

The brief concerns People v. Harris, a New York City Criminal Court case that arises out of the district attorney office’s prosecution of Malcolm Harris, who was among hundreds of people arrested on disorderly conduct charges for marching onto the Brooklyn Bridge on Oct. 1, 2011. In January, the district attorney’s office subpoenaed Twitter for a broad swath of information about Harris, including the content of his tweets, his subscriber information, and the Internet Protocol (IP) addresses that correspond to each time he used Twitter over a three-and-a-half month period – information that would reveal Harris’s location whenever he was using Twitter.

Harris moved to quash the subpoena. In April, a judge ruled that Harris had no standing to challenge the Twitter subpoena. The judge also determined that the subpoena is lawful and ordered Twitter to comply with it. Harris subsequently filed a motion to reargue, and Twitter weighed in with a motion to quash the Court’s order.

The brief maintains that Harris has standing to challenge the subpoena because his First Amendment right to free speech is implicated—and that whether he has such standing or not is a separate question from the merits. Numerous decisions by the U.S. Supreme Court and other courts throughout the country have held that individuals whose constitutional rights are implicated by government requests for information to third parties can challenge those requests before the information is disclosed. The brief also maintains that the subpoena violates Harris’s First Amendment right to free speech and Fourth Amendment right to privacy, and his corresponding rights under the New York State Constitution.

“The information requested by the subpoena paints an intimate portrait of Mr. Harris’s speech activities and movements over a three-and-a-half month period,” NYCLU Staff Attorney Mariko Hirose said. “This type of government surveillance implicates constitutional concerns, as the New York Court of Appeals and five justices of the United States Supreme Court have recognized in cases that involve GPS surveillance.”

Organizations joining the ACLU and NYCLU on the brief are The Electronic Frontier Foundation and Public Citizen.