Be careful what you tweet

twitter - What are you doing?The status of Twitter and social media publication as constitutionally protected speech may not be entirely clear at this early stage of digital media history.

Recent law and customs enforcement actions, however, make it clear that, for them at least, pretty much any cause is probable cause for using Twitter content to take action.

Two weeks ago two British tourists were met at Los Angeles International Airport and promptly deported for tweeting jokes taken from TV sitcom “Family Guy” about digging up Marilyn Monroe’s body. Last week Malcolm Harris, an Occupy Wall Street activist, was informed by fax that Manhattan District Attorney Cy Vance had subpoenaed his Twitter account looking for “any and all user information, including email address, as well as any and all tweets posted for the period of September 15 through December 31,2011.

What makes Harris so dangerous? He was arrested back in the fall for “disorderly conduct” at a protest—technically a violation, not even a misdemeanor, much less a criminal act. He pleaded not guilty.

Harris had been arrested on the Brooklyn Bridge along with hundreds of other Occupy Wall Street protesters in October of 2011. He was charged with disorderly conduct, which he says "is not even a misdemeanor; it's a violation." Instead of accepting a deal from prosecutors, as some protesters have, he pleaded not guilty. Being arrested for protesting is nothing new. Having your Twitter account subpoenaed so that the DA can make a case, on the other hand, heads into waters that are only just being charted.

Vollero did say that the subpoena does not mean a representative from Twitter has to show up in court or testify on February 8, the date on the subpoena. "They could," she said, "but they don't have to." (Can they Skype in, we wonder?)

Harris said he and his lawyer, Martin Stolar of the National Lawyers Guild, believe the subpoena is "an overreach of police power" and are preparing to file a motion to quash it. "There've been no conspiracy charges filed against me or anyone," he said. "They're using the subpoena for improper purposes." He said Twitter has agreed to hold off on sending any of his account information pending the resolution of the motion. Reuters noted in its report that "Harris is not sure what tweets could be fodder for prosecutors; Twitter's interface does not allow him to review all of his old tweets."

This is not the first subpoena of a Twitter account by the Manhattan DA, Vollero confirms, though Harris's seems to be the first related to the Brooklyn Bridge arrests to be made public. (The proliferation of such subpoenas related to Occupy Wall Street is being documented on Scribd under the title "OpSubpoena This.")

The Manhattan DA's office refused comment on their protocol for serving subpoenas. It's unclear whether Twitter agreed to receive the subpoena that way, but, on the bright side, at least their fax machine is getting some exercise!

Harris is due back in court on February 29. In the meantime, he's still tweeting.

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