Protesters see Tweets used against them

When Jeff Rae was arrested last October with hundreds of other Occupy Wall Street protesters during a march on the Brooklyn Bridge, he decided to fight the charges, believing he had been entrapped.

On Monday, Mr. Rae changed his mind and accepted a plea agreement with Manhattan prosecutors. Why? The district attorney's office had subpoenaed his Twitter account, raising the stakes in what he had thought would be a speedy case he could win, he said.

"You're fighting the king," said the 31-year-old Washington resident, who had written "I will tweet until I'm cuffed ;)" on Twitter during the Oct. 1 march. "It seemed like a lot of the power was in their hands."

As they prosecute hundreds of Occupy protesters on lower-level charges such as disorderly conduct, Manhattan prosecutors have turned one of the movement's principal organizing tools—social media such as Twitter—against the defendants.

In short Twitter messages, protesters coordinate activities and warn others of law-enforcement efforts. In doing so, prosecutors believe some have revealed an intent to break the law.

"The lesson is, if you're speaking publicly and leaving a record as to who you are, that's information the government can legally access," said Orin Kerr, a professor of law at George Washington University who specializes in electronic evidence and Internet law.

Tweets could address a key problem for prosecutors as the cases move through court: establishing the actions and intentions of specific people who were arrested in huge groups.

According to the district attorney's office, 1,936 Occupy protest-related cases have come through the court system. More than 850 defendants have taken the route of Mr. Rae, accepting the offer to have the charge expunged after six months of staying out of trouble.

But 257 cases have been dismissed for lack of evidence.

Defense attorneys said subpoenas have been issued for at least four protesters' Twitter accounts.

In the prosecution of another protester named Malcolm Harris arrested on the Brooklyn Bridge, Assistant District Attorney Lee Langston outlined why a tweet would be helpful. Mr. Langston wrote in a court filing that Mr. Harris tweets "made clear…that he was well aware of the police instructions that day, and acted with the intent of obstructing traffic on the bridge."

Protesters have said the subpoenas are heavy-handed. Mr. Harris's attorney, Martin Stolar, is trying to stop Twitter from releasing the information. A motion to quash the subpoena will be heard in court on Friday.

"It is an attempt by the DA's office to use a sledgehammer to squash a gnat," said Mr. Stolar, who is representing other Occupy protesters. "It's a little overkill."

A spokeswoman for District Attorney Cyrus Vance Jr. declined to comment.

Twitter declined to comment on the cases. A spokesman pointed to the company's published policy, which says it doesn't release users' private information "except as lawfully required by appropriate legal process such as subpoena, court order, or other valid legal process." The policy says Twitter informs users of law enforcement requests for information.

The subpoenas may be legal, but protesters have criticized them as an attack on free speech and a waste of resources.

"The NYPD and Manhattan DA's office are on a fishing expedition for any incriminating evidence, which they have yet to find," said Justin Wedes, 25, who works on Occupy's social media team. "The result is a chilling effect on our free speech rights and the waste of taxpayer money to peruse individual's public and private communications."

Mr. Kerr said protesters who take their cases to trial should expect tweets and public statements to be used against them. "It's the government's burden to prove their case," he said.

Mr. Rae maintains he did nothing wrong on the Brooklyn Bridge. He said the subpoena simply raised issues of privacy for him and friends who used Twitter to communicate with him. "It's kind of a win in the sense that it's gone," he said of his case. "I'm still going to be active with Occupy Wall Street."

(Published by WSJ - March 22, 2012)

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