Privacy SOS

Coming back for more: NYC DA after more info on @getsworse

Occupy Wall Street activist and writer Malcolm Harris (@getsworse) today received a second subpoena from Twitter.

The DA appears to want a bigger bite of his identity, including "all public Tweets posted for the period of 9/15/2011 – 10/31/2011 and 2/1/2012 – 2/15/2012" and his "subscriber information: name; address; records of session times and duration; length of service (including creation date); types of service utilized; telephone or instrument number or any other subscriber number or identity, including any temporarily assigned network address."

The second set of dates coincides with when Harris received the first subpoena. Shortly after, he changed his Twitter handle from @destructuremal to @getsworse. 

Dated January 26, 2012, the first subpoena asked Twitter to present to a criminal court on February 8, 2012 any email addresses associated with and all tweets from his account posted for the period between September 15, 2011 and December 31, 2011. Harris believes the subpoenas are related to the Brooklyn Bridge incident, during which the NYPD trapped and then arrested hundreds of people, including the activist himself:

[Harris] 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.

The initial subpoena did not stop Harris from tweeting or from engaging in his work. Indeed, he broadcasted the existence of the first subpoena soon after receiving it and openly mocked the DA's office. He told The Atlantic:

Maybe the Manhattan DA's office would be more forthcoming answering questions about the proper procedure for filing an out-of-state subpoena, because I sure as hell would like to hear what they have to say on that one. Last time I checked, you couldn't serve people via fax.

His contempt for their interest in his identity continues. "I think they're trying to figure out a way to get at these tweets, ineptly," he said. 

Unlike the stumbling opening salvo, which asked for his public tweets and email address, the second subpoena reads like it was written by someone who understands how Twitter collects data about its users.

It asks for information that could reveal not only Harris' identity, phone number and other personally identifiable information, including his location data, but also the identities of his friends and associates. That's because, disastrously, Twitter has a feature on its mobile platform that enables the company to download and retain a copy of your entire phone address book.

If the subpoenas are related to the Brooklyn Bridge case against Harris, what could prosecutors hope to learn by learning where he tweets, what kind of phone he uses, his phone number, where he lives, and who his friends are?

Until the prosecution presents their case in court, we don't know for sure. But it is difficult to believe that this extremely personal information could be relevant for a disorderly conduct prosecution. It smells like yet another fishing expedition.

Or maybe the DA and the NYPD are trying to make an example out of him. That is the take away some people have from our case here in Massachusetts, after prosecutors went after @p0isAn0n's account information subsequent to his release of publicly available information on Boston police officers.

We recently lost a challenge to that subpoena on the grounds that our client, the target, did not have standing in court because the subpoena was addressed to Twitter, not to @p0isAn0n. 

The use of investigatory subpoenas to obliterate online anonymity is a central problem that the courts are just beginning to work out — with enormous consequences for free speech in the 21st century. Stay tuned for more on this case, and on the developing saga of anonymity online and the courts. 

(Read more about the first subpoena for his records here and here.)

UPDATE: At 8:18 PM ET on the day he received the subpoena, Harris once again changed his Twitter handle, writing:

© 2021 ACLU of Massachusetts.