How Twitter's Epic Fight to Protect One Guy's Data Crashed Into Money

Twitter really gave it the old college try with the Malcolm Harris case. The Occupy protester was arrested on the Brooklyn Bridge last fall, along with about 700 other kids trying to stand up to the banks. Like those hundred or so other protesters, Harris was illegally walking on the roadway after cops told them not to, and Manhattan Criminal Court Judge Matthew Sciarrino thinks that there’s proof that Harris knew he was disobeying the fuzz in the young man’s Twitter stream. But Twitter doesn’t just serve up bundles of tweets to judges whenever they ask for it. That’s Google or Facebook territory. At least, they used to not do.

So Twitter handed over a pile of my tweets that’ll stay sealed pending a hearing on the 21st. Bummer. — Malcolm Harris (@BigMeanInternet) September 14, 2012

After months of legal wrangling, Twitter finally agreed to surrender Harris’s tweets after the court threatened to hold the company in contempt and even — gasp! — fine them. “It is my understanding that Twitter will comply, barring a stay,” Martin Stolar, Harris’ lawyer, told the Chicago Tribune. This near conclusive development comes after Harris appealed the judge’s subpoena for his old tweets, and Twitter refused to cooperate when the judge turned down the appeal. The prosecution, meanwhile, couldn’t find the damning tweets in Harris’s stream since the kid tweets so much. It’s a matter of illegal search and seizure, the two parties argued, citing that January Supreme Court decision that police use of GPS without a warrant is unconstitutional.

“One's public location is public, they say, except where accumulated via a GPS device,” Martin Stolar, Harris’s lawyer, explained in an email to The New York Times. "The same analogy could be applied to tweets – they are public except where they are accumulated (on Twitter's storage devices) and this is more analogous to the situation than the bank records analogy the court has used." Stolar is referring to the judge’s example of bank records, which can be legally subpoenaed without a warrant.

It’s worth pointing out that the judge didn’t just want Harris’s tweets. He wanted information about people that clicked the tweets as well as the relevant IP addresses that could be used to link users to specific locations. It’s not clear exactly what Twitter handed over yet; “I just saw a big pile of paper,” Harris tweeted today. The Electronic Frontier Foundation calls the whole affair a “miscarriage of justice” and points out that Twitter ultimately didn’t have a choice about whether it handed over the data or not. Along those lines, judicial precedents suggest that Sciarrino is on the wrong side of the law here. Supreme Court Justice Sonya Sotomayor wrote in her concurring opinion in United States v. Jones 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.”

There’s a chance that this important case could’ve bubbled all the way up to the top. That is, if Twitter didn’t give up its epic fight, one that had already cost it months of legal wrangling. The crucial why ultimately appears less to do with its lawful duty than with cold hard cash. To determine the fine the company would have faced, said the judge, would require handing over two quarters' worth of earnings statements. That’s a tall order for a company with no clear business model, one for whom secrecy of its financial data, at some point, trumps that of its users.