Written by Hanni Fakhoury
Twitter's ongoing battle to demand that law enforcement request sensitive user information with a search warrant rather than a subpoena has taken a strange and dangerous turn. An ill-advised order from the judge presiding over the case means that either Twitter must disclose data without a warrant, or risk a potentially expensive contempt of court citation.
Malcolm Harris is charged in a New York City criminal court with the trivial crime of disorderly conduct (maximum punishment, $250 fine or 15 days in jail)in connection with an Occupy Wall Street protest on the Brooklyn Bridge in October 2011. Prosecutors sent a subpoena to Twitter seeking three months worth of information it had on Harris, including contacts, tweets, and IP address information Twitter stores when a person logs into the service, and which can be used to link a user to a specific location. Harris challenged the subpoena, but New York City Judge Matthew Sciarrino Jr. ruled that Harris had no standing to contest the subpoena because he didn't own his data, Twitter did. Thankfully, Twitter stepped up and challenged the subpoena itself, and together with the ACLU and Public Citizen, we supported Twitter with an amicus brief. Judge Sciarrino, however, denied Twitter's motion to quash, and instead ordered it to turn over the information to the government. Twitter continued standing up for user privacy and appealed the order to the New York appellate court, and we continued to support them with another amicus brief.
Unfortunately, Judge Sciarrino has now tried to stop Twitter's challenge to his order disclosing the information. First, he denied Twitter's request to delay disclosure until the case found its way through the appellate process. Then he threatened to hold Twitter in contempt of court if it didn't turn over the data to the government by Friday, September 14. And to put further pressure on Twitter, it ordered it to disclose its earnings statements for the last two quarters, in order to determine an appropriate fine. Of course, if Twitter were to disclose Harris' information to the DA, the privacy damage would be done. The government would likely argue that this moots the appeal, and use that as a basis to prevent the appeals court from ruling on the important legal issues.
Putting Twitter between a rock (turn the data over without a warrant) and a hard place (be held in contempt of court and face a potentially expensive fine) before the complicated legal issues at stake have been resolved by the appeals court is a miscarriage of justice. If Judge Sciarrino is worried that Twitter is making a mountain out of a molehill by continuing to press its challenge to the subpoena, the same has to be asked of the prosecutors who are using a misdemeanor disorderly conduct arrest that occurred more than a year ago as a pretense to obtain a wealth of information. The attempt to obtain this information from Twitter is to prove a point not even really contested: whether Harris was on the bridge during the protest.
This case was shaping up to be a constitutional showdown on a contested and unclear area of the law. Judges much higher up the judicial chain have been wrestling with the complicated issues brought about by the explosion of information turned over to third parties. In her concurring opinion in United States v. Jones, Justice Sotomayor of the U.S. Supreme Court wrote that she "would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection." If a Supreme Court justice is thinking about the issues here, why would a state trial court force Twitter into a position where it has to abandon its court case seeking clarity or risk a massive fine in deciding to pursue its appeal? Some have already questioned whether Judge Sciarrino is the right judge to pass on this landmark case.
No matter what Twitter does, it will lose. At a time when companies need to feel empowered to stand up for user privacy, Judge Sciarrino's actions have made it difficult for Twitter to do that. We urge companies not to falter in the face of this setback, and continue to fight for the users. One bad decision should not set back the fight for a future where the government is required to use due process before looking into the personal lives of ordinary Americans.
Hanni Fakhoury is a Staff Attorney with the Electronic Frontier Foundation focusing on the intersection of technology and criminal law. Prior to joining EFF, he worked as a federal public defender in San Diego, where he tried numerous jury and bench trials, and argued multiple times before the Ninth Circuit Court of Appeals, winning a published reversal in U.S. v. Sandoval-Gonzalez, 642 F.3d 717 (9th Cir. 2011).