NEW YORK, Aug 21 (Reuters) - An Occupy Wall Street protester
is accusing a judge of overstepping his authority when he
ordered Twitter to hand over the protestor's tweets and account
information to prosecutors.
Malcolm Harris was arrested during a mass protest on the
Brooklyn Bridge in October 2011 and charged with disorderly
conduct. Criminal Court Judge Matthew Sciarrino has rebuffed
separate attempts by Harris and Twitter to quash a subpoena
served on the company by the Manhattan district attorney's
office seeking Harris' tweets for September to December.
On Monday, Harris, a Brooklyn-based writer, filed an Article
78 proceeding to enjoin Sciarrino's orders. He claims the
information sought by prosecutors is akin to surveillance
records because computer logs will show his location when he
connected to the site.
"In this case, anyone reviewing the information and material
Twitter has been ordered to turn over will know each time --
between September 15 and December 30, 2011 -- Harris logged into
his Twitter account, where he was when he logged in, how long he
remained there and both what he did and who he communicated with
while he was logged in," Harris' lawyers wrote in a memorandum
of law accompanying the petition.
Twitter has filed a separate notice of appeal, though it has
not yet submitted its formal brief.
Criminal defendants typically are required to wait until the
end of proceedings before filing appeals.
But Harris' lawyer, Martin Stolar of the National Lawyers
Guild, said Sciarrino's ruling threatened Harris' privacy and
required an immediate response.
"This is so far outside the realm of a legitimate ruling
that we are entitled to a pretrial appeal," Harris said in an
The Harris case is one of a handful in which law enforcement
authorities have sought to use social media to prosecute
Prosecutors from the Manhattan district attorney's office
have said in court papers that Harris' tweets could demonstrate
he knew police ordered protesters not to walk onto the bridge
roadway. Stolar and other lawyers for the arrested protesters
have said police appeared to lead the march onto the roadway
before suddenly arresting hundreds of them.
Sciarrino ruled in April that Harris did not have the
standing to challenge the subpoena, since Twitter owned his
tweets. In June, he rejected Twitter's argument that turning
over the tweets violated Harris' privacy and free speech rights,
saying the tweets were publicly posted without any expectation
Harris' Article 78 also seeks an order requiring Sciarrino
to recognize his standing to challenge the subpoena on free
speech grounds and on the Fourth Amendment's protection against
Harris' criminal case is pending.
The Manhattan district attorney's office declined to comment
on the proceeding.
The case is People v. Harris, Criminal Court of the City of
New York, No. 2011NY080152.
For the prosecution: Assistant District Attorney Lee
For Twitter: Karl Sleight of Harris Beach; John Roche of
For Harris: Martin Stolar of the National Lawyers Guild;
(Reporting by Joseph Ax)
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