Twitter Caves and Hands Over Protester’s Tweets to Avoid Fines
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Facing large fines as well as a future full of similar headaches, today Twitter caved to prosecutors’ demands for user Malcolm Harris’s tweets in his criminal trial for trespassing during an Occupy Wall Street demonstration last October. Twitter turned over tweets Harris had posted during the demonstration under the account @destructuremal but then subsequently deleted.
Prosecutors in the Manhattan DA’s office first tried to subpoena Harris for his tweets, which they plan to use to counter his argument that police led protesters onto the Brooklyn Bridge, where they were arrested for trespassing. But Manhattan Supreme Court Judge Matthew Sciarrino Jr. said Harris didn’t own his tweets – Twitter did. Prosecutors issued a new subpoena against Twitter, and the judge ordered the social media company to comply.
Twitter, which initially said it was going to fight the good fight on behalf of Harris, is still challenging the court’s order in an appeal, which is scheduled to be heard in November. And which of course will likely be moot – or irrelevant – now that it’s turning over the tweets, an unfair situation not lost on Terryl Brown, outside counsel for Twitter, who complained to the court about Twitter’s difficult position in court this morning.
“Twitter is being given a fundamentally unfair Hobson’s choice that is contrary to the core of our justice system of being compelled to either waive its right to appeal so that novel legal issues may be adjudicated on the merits, or being held in criminal and/or civil contempt,” said Brown in a statement provided to Lawyers.com by a Twitter spokesperson, who declined to comment further on the case. Brown asked the court for a stay.
Hit the Bird Where It Hurts
Judge Sciarrino had promised to hit Twitter where it hurt if the company did not comply with the subpoena by September 14. “I can’t put Twitter or the little blue bird in jail, so the only way to punish is monetarily,” the Wall Street Journal quotes Sciarrino as having said in court on Tuesday. The judge reportedly added that if Twitter didn’t hand over Harris’s tweets, “he would base the amount of the fine on the company’s earnings statements for the past two quarters.”
That couldn’t have been good news for Twitter, which is reportedly expecting to make $1 billion (with a “b”) off its ads alone next year. The company is expected to post total revenues of $269 million in 2012, according to one report, and $540 million by 2013.
With that kind of income to work with, you can bet Sciarrino could have cooked up a pretty good fine.
Harris for his part is still challenging the subpoena any way he can: his lawyer Martin Stolar has asked an appeals court for a stay of the proceedings, according to Reuters, and has also filed a special type of appeal challenging Judge Sciarrino’s authority in ordering the tweets to be handed over.
Judge Sciarrino reportedly denied Twitter’s request for a stay but said he will keep the records sealed until September 21, when Harris’s appeal will be considered by a higher court.