Twitter Faces Fines for Resisting Subpoena of Protected Tweets

The judge who ordered Twitter to hand over the protected tweets of an “Occupy Wall Street” protester is threatening stiff fines if the company fails to comply — even before an appellate court rules on Twitter’s challenge to his original ruling.

Twitter had asked for a stay of New York State Supreme Court Judge Matthew A. Sciarrino Jr.’s order to comply with a subpoena for the records while it appealed, but that request was denied last week.  Now, Judge Sciarrino has ordered the San Francisco-based company to hand over the protected tweets of protester Malcolm Harris to the Manhattan District Attorney by Sept. 14 or else send him earnings statements from the past two quarters so he can determine a fine.

“I can’t put Twitter or the little blue bird in jail, so the only way to punish is monetarily,” Sciarrino said in his latest ruling.

When originally upholding the subpoena for several months of protected tweets from Harris’s “@destructuremal” account, Sciarrino had said, “If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy.”

Twitter’s appeal argued that Sciarrino’s ruling was based on a fundamental misunderstanding of the difference between “public tweets” and lesser-known “protected tweets,” which can only be seen by certain previously approved followers.  The company pointed out that  “…the government concedes it is unable to publicly access Defendant’s Tweets…The fact that the government needs Twitter’s assistance to get access to these communications coupled with the fact that the user is explicitly opposing this access, contradicts the notion that the user has no reasonable expectation of privacy in these Tweets.”

Twitter’s longstanding position is that users own their tweets, and the company cannot distribute them without the account-holder’s consent.

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