Mike Isaac

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Twitter’s Legal Blow in Occupy Case Will Make a Lot of Companies Nervous

After nearly a year of fighting the good fight, Twitter was dealt another setback in its ongoing battle with a New York State court on Friday, handing over information on one of its users who was allegedly involved in Occupy Wall Street protests last October.

It’s a tough blow for Twitter, a company known for its hard-line stance on protecting the speech-related rights of its users. But it could have larger implications for the future of companies that hold sensitive user information and may be forced to hand over said information in the future.

“Many companies are watching this case closely, seeing how it plays out,” said Marcia Hoffman, senior staff attorney for the Electronic Frontier Foundation, in an interview. “Because they may find themselves in the same spot.”

It began with the state of New York vs. Malcolm Harris, a senior editor at the online publication the New Inquiry, who was arrested during an incident on the Brooklyn Bridge in conjunction with last year’s OWS protests. The state requested that Twitter hand over “any and all user information” on Harris, who used the microblogging service in conjunction with his protesting activities last year.

The state subpoenaed Twitter directly for Harris’s information, claiming that Harris lacked sufficient standing to challenge the request for his information on his own behalf. That put the onus on Twitter to hand over the information.

In a nutshell, that’s not practical for Twitter in the long run. Going to court every single time a government agency requests a user’s information would be arduous, costly and time-consuming, requiring the company to put much more resources and manpower into its legal department (or hire pricey outside counsel).

Now extrapolate that scenario out to the myriad companies online that collect user information, including users’ email address, IP address, location information and other sensitive data. If required by a court in subsequent similar cases to hand over that data, any number of companies could end up in the same awkward situation that Twitter found itself in.

“Twitter should continue to be applauded for standing up for its users, but companies like Twitter shouldn’t be forced to do that,” said Aden Fine, senior staff attorney for the American Civil Liberties Union, in an interview. “When the government request implicates an individual’s constitutional rights, they should be able to stand up for themselves.”

In the end, the New York DA and the judge used a legal maneuver to put pressure on Twitter, threatening to hold the company in contempt of court and levy steep fines if it didn’t hand over the data. What’s more, in order to figure out the amount of the fines, Judge Matthew A. Sciarrino requested Twitter hand over its financial earnings information over the past two quarters. And making public its highly sensitive financial data is something absolutely no private company, especially one as closely scrutinized as the massively popular Twitter, wants to do.

But beyond that, “the reason why almost all third-party companies won’t be held in contempt is that they just don’t have sufficient incentive to,” Fine said. Paying exorbitant fines to protect one of the untold millions of users who are registered for a service just doesn’t make sense.

Twitter has vehemently protested the court’s demands, right up until the moment the company handed over the information to Judge Sciarrino. Twitter outside counsel Terryl L. Brown denounced the decision: “As a pure matter of law, today Twitter is being given a fundamentally unfair Hobson’s choice that is contrary to the core of our justice system.”

Twitter declined a request for comment.

Companies that have been watching the case with concern can take some hope from the fact that the Supreme Court, as well as a number of lower courts, have ruled that individuals do indeed have standing to challenge requests for information themselves, according to Fine.

“This decision, if upheld on appeal, should not be seen as precedent,” Fine said. “It should be seen as an anomaly.”

Meanwhile, the envelope holding the user data for Harris that Twitter turned over will remain sealed in Judge Sciarrino’s hands until Twitter’s separate appeal of the judge’s decision. That also means that the district attorney won’t be able to review Harris’s information until an appellate court rules whether Judge Sciarrino acted in accordance with the law.

For now, the private sector will continue to watch and await the appellate court’s decision, hoping that Twitter’s unfortunate position won’t trickle down to affect others in the future.

“The battle is not over,” Fine said.

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I think the NSA has a job to do and we need the NSA. But as (physicist) Robert Oppenheimer said, “When you see something that is technically sweet, you go ahead and do it and argue about what to do about it only after you’ve had your technical success. That is the way it was with the atomic bomb.”

— Phil Zimmerman, PGP inventor and Silent Circle co-founder, in an interview with Om Malik