Occupy protester to face trial in case related to Twitter subpoena

guardian.co.uk | Dec 7th 2012

An Occupy Wall Street protester who has been fighting with prosecutors to keep some of his tweets private looks likely to face trail next week after a judge withdrew his offer of a plea deal.

When he appeared in court on Friday, Malcolm Harris had expected to be sentenced to time served for disorderly conduct during a demonstration on the Brooklyn bridge in October 2011.

Instead, he was told that the case will go to trial on 12 December as planned. It follows the refusal by the judge to rule over a motion concerning whether his tweets could be used in the event of a trial.

The move raises the prospect that a series of tweets by Harris could become public. Prosecutors want to use them as evidence, but Harris's lawyer fears may be used to prosecute others.

Harris, 23, was one of hundreds arrested in the mass march across the Brooklyn bridge at the height of the Occupy Wall Street protests last year. His case has received heightened media attention due the questions raised about who owns the rights to messages posted on Twitter.

Prosecutors say tweets posted by Harris show that the defendant was aware that he was breaking police orders relating to the protest. The New York district attorney's office issued a subpoena to Twitter in January, calling on the firm to hand over "any and all user information, including email address, as well as any and all tweets posted" between 15 September and 31 October 2011.

Harris initially attempted to block the move, but was told that he had no proprietary interest to his own messages. Twitter also fought the subpoena, noting that its own terms and conditions explicitly state that users "retain their right to any content they submit, post or display on or through".

But New York judge Matthew Sciarrino rejected the company's arguments, and ordered Twitter to hand over the messages to the court. Twitter eventually complied with the demand, although the tweets have so far remained sealed.

In attempting to plead guilty Friday, Harris's legal team were hoping to settle the criminal charge while keeping alive an appeal over the legality of the DA's subpoena. But Sciarrino refused to rule on a motion relating to whether the tweets could be used as evidence in a trial, saying that it was the preserve of the trial judge alone to decide.

As such, the case looks likely to go to trial on 12 December. Prosecutors in the case are seeking a sentence of 10 days community service. Responding to the development, Harris tweeted: "Woah, that was not what was supposed to happen."

"Show trial it is," he added in a subsequent message.

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