Raising the stakes in the government’s battle with Occupy Wall Street, Manhattan District Attorney Cy Vance has subpoenaed the Twitter account of an Occupy supporter who was one of the approximately 700 protesters arrested while crossing the Brooklyn Bridge on October 1, 2011. Malcolm Harris was charged with disorderly conduct, a violation that is not a crime per se, but is the lowest level offense in the New York State Penal Law.
Harris, a 23-year-old writer, has been alerted by Twitter’s San Francisco offices that they have received a subpoena from the New York prosecutor, seeking “any and all user information including e-mail address, as well as any and all tweets for the period 9/15/11-12/31/11” for his account.
According to a complaint signed by Police Officer Thomas Manning, Harris, “with intent to cause public inconvenience, annoyance and alarm and recklessly creating a risk thereof, obstructed vehicular and pedestrian traffic.” While Manning did not observe any of this himself, he was informed by a Sgt. Brian Byrnes that Harris was “standing in a group of approximately six-hundred individuals in the traffic lane of the above-listed location…[and] obstructed vehicular traffic and created a public disturbance/inconvenience in that it prevented all vehicles from being able to use the roadway.”
To prove the disorderly conduct charge against Harris requires the prosecution to establish only the allegations in the complaint—that is, that at the time and place of the arrest, he was present in the roadway and intentionally interfered with traffic. They would not need the contents of months of Tweets, including any private direct messages, and Harris’s e-mail address (which would then enable them to subpoena Harris’s e-mail service provider) to meet their burden of proof.
According to Aden Fine, senior staff attorney at the ACLU, the federal Electronic Communications Privacy Act requires that a government agency seeking access to a subscriber’s account must give notice to the subscriber, and when seeking content is probably required to obtain a warrant. This failure to comply with federal law, Stolar argues, makes the subpoena defective. He cites numerous other improprieties, such as the DA’s office’s simply faxing the document signed by Lee Langston, an assistant to the District Attorney, along with a cover letter signed by a clerk. But no judge’s name or signature appears anywhere, and the DA was required to give Harris notice and probably to have secured a warrant. Stolar also attacks the subpoena as “overly broad,” seeking content and records for three and a half months, for personal as well as public tweets, and because it does not specify what information the prosecutor is looking for. Finally, a trial subpoena is not meant as a tool of investigation, though this subpoena clearly ordered Twitter not to interfere with the investigation.