On Oct. 1, 2011 more than 700 people were arrested and charged with disorderly conduct during an Occupy Wall Street march. One of those arrested was Malcom Harris, who used the popular social media platform, Twitter, to share information about the events of that day, according to this article in The Christian Science Monitor.
In early July, a New York judge ruled that Twitter must turn over Harris’s tweets in compliance with a request from the Manhattan District Attorney, who claims that the tweets will reveal the truth of what happened that day. Harris’s past tweets could be used to aid police in the investigation of Occupy protestors and help determine if, and what, crimes were committed that day.
In addition, the judge ruled that Twitter must turn over Harris’s tweets during a longer duration of time (from Sept. 15 to Dec. 31). The messages in question have since been deleted and Harris no longer uses that account.
Twitter was obviously not happy with the ruling. They issued a statement, stating: “Twitter’s Terms of Service have long made it absolutely clear that its users ‘own’ their content. We continue to have a steadfast commitment to our users and their rights.”
This case and similar cases around the country will have important implications for law enforcement, prosecutors and defendants. Technology has once again outpaced the law. I suspect that the Manhattan District Attorney’s office chose to go after Twitter in this case because of the minor nature of the charge. Everyone in the system needs to know what electronic material will be legally discoverable and what material will not be. If the DA had not prevailed (or if it loses on appeal) no great harm will come about. Losing evidence in a disorderly conduct case is preferable to losing it in a homicide or serious conspiracy case.
Many in law enforcement were caught flatfooted earlier this year when the U.S. Supreme Court ruled that evidence obtained from a government-installed GPS would be suppressed because agents did not obtain a warrant prior to installing the device. By going forward on this case, the District Attorney is learning what social media transactions the courts will force companies to turn over and allow to be introduced as evidence. It would be an overstatement to say the prosecutors “don’t care” about the decision, but I suspect the more important issue for them is learning what they can and cannot expect to use as evidence.