Malcolm Harris was one of 700 people arrested during a peaceful protest march in support of the Occupy Wall Street Movement. He was charged with one count of disorderly conduct for having blocked traffic. Allegedly in preparation for trial, the prosecutor served three subpoenas on Twitter Inc. for 3 1/2 months of information from Harris' social networking account. The D.A. sought two types of information: the contents of Petitioner's electronic communications (e.g., "tweets") and "location" information for the 3 1/2 month period.
Petitioner moved to quash the subpoenas as violative of the First and Fourth Amendments, the New York Constitution, the Criminal Procedure Law and common law. After the Court held that Petitioner lacked standing to object to the subpoenas because they had been served on Twitter, Twitter moved to quash. The Court then rejected Twitter's challenges and upheld the subpoenas under the Stored Communications Act, 18 U.S.C. 2701 et seq.
On August 20, 2012, Malcolm Harris commenced an Article 78 proceeding to overturn the Court's rulings. Twitter took a direct appeal yesterday.
I recommend reading all of the papers in these two related proceedings.
This is the Memorandum of Law filed in support of the Occupy Wall Street protester's Article 78 Petition. It raises and addresses significant constitutional, intellectual property privacy, statutory and common law issues.
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