It may not actually be round five, but it's been a while since I updated Shareable readers on my prosecution for disorderly conduct in connection with Occupy Wall Street that has turned into a surprisingly important test case for online privacy. Last I wrote, the judge had yet to rule on my excellent volunteer legal team's motions for my intervention to stop the subpoena of my Twitter account by the Manhattan District Attorney's office. Since then, the judge ruled that I did not have the standing to challenge the subpoena, as the tweets were owned not by me, but by Twitter Inc. If they didn't decide to intervene to stop the request, then there was nothing I could do to stop it.

But then Twitter decided to get involved, filing their own motion to stop the subpoena on the grounds that I, and all other users, had the right to challenge third-party requests for our tweets and personal information. It was a surprise, not least of all to me. Twitter gave an unambiguous statement that Twitter users owned their content. Then the company took another unexpected step: they changed their privacy policy to clarify users' rights. I don't want to say it was necessarily my case that forced their hand but this was added to the "Information Sharing and Disclosure" section:

"Law and Harm: Notwithstanding anything to the contrary in this Policy, we may preserve or disclose your information if we believe that it is reasonably necessary to comply with a law, regulation or legal request; to protect the safety of any person; to address fraud, security or technical issues; or to protect Twitter's rights or property. However, nothing in this Privacy Policy is intended to limit any legal defenses or objections that you may have to a third party’s, including a government’s, request to disclose your information."

This looks like a direct counter to the judge's ruling that users surrender their right to a say over their own privacy when they agree to Twitter's terms. It's also the most far-reaching declaration of users' rights with regard to protecting their information from government search by any of the big social media companies.

Late last week, some civil liberties stalwarts filed an amicus brief with the court in favor of my claim. In the brief, attorneys from the American Civil Liberties Union, New York Civil Liberties Union, Electronic Frontiers Foundation, and Public Citizens, Inc. wrote a strong defence of Internet privacy and its importance:

"If individuals knew that the government could combine what they have been saying for the past three-and-a-half months with where they were when they said those things, what time of day they read certain websites or communicated with their friends, how long they read certain websites and took to write messages, and whether communications were made via a mobile phone, laptop, or personal computer (and therefore whether the individuals were more likely to say certain things from work, from their home, or from coffee shops), the certain result would be that individuals would be chilled from engaging in those communications as freely."
"individuals have long had the legal ability to challenge government requests to third parties that implicate constitutional rights. After all, the data the government wants pertains to Harris, not Twitter. And while we (and others) applauded Twitter for standing up for its user in this instance, many tech companies holding tons of data about their users won't, leading to potential constitutional violations that have no way to be challenged in court. It's crucial for users to be able to stand up for themselves, instead of hoping that other companies follow Twitter's lead."
Despite these notable developments, my trial (along with my fellow arrestees) is still scheduled for just a couple weeks from now. The stakes are relatively low (luckily) since disorderly conduct is the lowest-level violation on the books, and as far as I know Twitter hasn't handed over anything to the DA's office. Not that there's anything in there that's inconsistent with my anticipated defense as the prosecutor claims, but that's another story.
I don't quite know what happens from here (nothing too bad, don't worry mom), but if the case has furthered the cause of Internet privacy, then I'm glad I decided to pursue a defence rather than taking the proferred plea deal, even if the final ruling goes the other way. But mostly I'm thankful for my world-class legal team, all working for free in the interest of a user-friendly law. Standing in front of a judge it's hard to over-emphasize the value of a good attorney. I know that when my case is resolved, they'll still be there fighting the good fight on our behalf.



Malcolm is a writer based in the Bay Area and the Life/Art channel editor at Shareable. His work has been featured on Alternet,, The Los Angeles Free Press, and