Occupy protesters in New York are attempting to quash the
Manhattan District Attorney's subpoenas of their tweets and
Twitter account information. The protesters were arrested for
obstructing the Brooklyn Bridge during a protest in October. The
District Attorney wants to use the tweets to show that the
protesters knew their actions were not sanctioned by the police.
The D.A. is also attempting to obtain account information in order
to connect anonymous Twitter accounts to their real owners. The
protesters' motions argue that the subpoenas violate their
privacy rights and their right to speak anonymously.
Craig Cardon of Sheppard Mullin was quoted by Law 360 on this
issue as saying that it is more of an urban myth than an actual
privacy right that the anonymity of the internet provides
unfettered privacy protection to users. While the First Amendment
provides protection for anonymous speech the Tweets at issue here
were not anonymous. The users Tweeted publicly under their own
names, removing any expectation of privacy in the Tweet content.
But even had the Tweets been anonymous or private, a court would
engage in the traditional balancing test used in cases where an
individuals' privacy rights must be weighed against a
prosecutor's need for information for a criminal investigation.
Nevertheless, subpoenas of internet service providers to reveal
anonymous posters have readily been allowed for over a decade.
The district attorney's decision to refrain from requesting
private direct messages that can not be publicly viewed or searched
for and his explanation that the requested information would be
used to disprove beyond a reasonable doubt that the protesters'
defense that they believed their obstruction of the Brooklyn Bridge
was authorized by the police should help mitigate any privacy
concerns. The argument that allowing these subpoenas would allow
investigators in the future to request direct messages and other
information will not likely get a lot of traction in this case. As
Law360 quoted Cardon, "Judges do not want
to hear about a parade of horribles; they are focused on what's
falling on us today."
While the issue makes for good headlines, it is likely a tempest
in a tea pot and simply a harbinger of challenges to come in the
future. The law is fairly clear that subpoenas of the nature
involved here (seeking public Tweet content and corresponding time
log information for evidentiary purposes) are permitted where as
here the prosecution has a well articulated need.
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