Privacy

by Mike Masnick


Filed Under:
appeal, due process, info, malcolm harris, new york, privacy

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Court To Twitter: No Time For Appeal, Hand Over Info Or You're In Contempt

from the ouch dept

We've been covering the legal fight concerning the government's desire to access Tweets and other information related to Malcolm Harris, an Occupy Wall Street protestor who was arrested. Twitter had jumped into the case to argue that users have standing to protect their own information, which the court denied. Twitter then said it would appeal, but it appears that NY State Supreme Court Judge Matthew A. Sciarrino Jr. doesn't care, claiming that its failure to hand over the info may put it in contempt of court:
The judge had asked Twitter to show why it wasn’t in contempt of court after refusing to produce information about Twitter posts by protester Malcolm Harris in response to a subpoena from Manhattan District Attorney Cyrus Vance Jr.

“I can’t put Twitter or the little blue bird in jail, so the only way to punish is monetarily,” Sciarrino said.
Twitter and Harris's lawyers point out that this seems to completely ignore Twitter's right to appeal the ruling. Sciarrino again doesn't seem to think this is an issue, insisting that his original ruling was "fair" and Twitter has had more than enough time to comply with the order. Harris' lawyer notes that this appears to be an attempt at railroading, preventing due process from happening:
“It’s pretty outrageous that the D.A.’s office wants to prohibit Twitter from exercising its right to appeal,” said Martin Stolar, a lawyer with the National Lawyers Guild who represents Harris, after the hearing.
Unfortunately, that seems to be how things work these days...

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  • identicon
    Anonymous Coward, 11 Sep 2012 @ 3:41pm

    Contempt: Civil versus criminal

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


    Wait a second.

    The purpose of civil contempt is not punishment. Rather, the civil contempt power is to coerce.

    If the judge is out to "punish", then it's criminal contempt—and there needs to be a trial.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Sep 2012 @ 4:27pm

      Re: Contempt: Civil versus criminal

      you do not get it, no matter the case, if you refuse to comply with a judges order, he can put you in jail, since he has no specific person in this case to punish, he can find the company at fault and levy a fine

      reply to this | link to this | view in chronology ]

      • identicon
        Bengie, 11 Sep 2012 @ 5:16pm

        Re: Re: Contempt: Civil versus criminal

        The point made is that if you can't put someone in jail, then it can't be a criminal charge.

        Our flawed legal system breaks when corps are involved because of we define a corp as a person with all the rights of a person, yet not all of the responsibility.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 11 Sep 2012 @ 5:26pm

        Re: Re: Contempt: Civil versus criminal

        Mine Workers v Bagwell (1994):

        Although the procedural contours of the two forms of contempt are well established, the distinguishing characteristics of civil versus criminal contempts are somewhat less clear. In the leading early case addressing this issue in the context of imprisonment, Gompers v. Bucks Stove & Range Co., the Court emphasized that whether a contempt is civil or criminal turns on the "character and purpose" of the sanction involved. Thus, a contempt sanction is considered civil if it "is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court." Ibid.

        As Gompers recognized, however, the stated purposes of a contempt sanction alone cannot be determinative. "[W]hen a court imposes fines and punishments on a contemnor, it is not only vindicating its legal authority to enter the initial court order, but it also is seeking to give effect to the law's purpose of modifying the contemnor's behavior to conform to the terms required in the order." Hicks. Most contempt sanctions, like most criminal punishments, to some extent punish a prior offense as well as coerce an offender's future obedience. The Hicks Court accordingly held that conclusions about the civil or criminal nature of a contempt sanction are properly drawn, not from "the subjective intent of a State's laws and its courts," but "from an examination of the character of the relief itself."


        (Footnotes and pincites omitted.)

        That case goes on to cite United States v. United Mine Workers of America (1947) for the proposition:

        This dichotomy between coercive and punitive imprisonment has been extended to the fine context. A contempt fine accordingly is considered civil and remedial if it either "coerce[s] the defendant into compliance with the court's order, [or] . . . compensate[s] the complainant for losses sustained."


        Certainly the judge may impose a fine to coerce Twitter's obedience. The judge may also impose a fine to compensate injured parties for Twitter's disobedience—as long as that compensatory fine is calibrated to the harm suffered by those injured parties and payable to them.

        But when a fine is calibrated instead to Twitter's ability to pay, and levied for the purpose of upholding the court's dignity, then the character of the contempt proceeding changes.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 11 Sep 2012 @ 11:55pm

        Re: Re: Contempt: Civil versus criminal

        see the first comment

        reply to this | link to this | view in chronology ]

    • icon
      TtfnJohn (profile), 12 Sep 2012 @ 12:30am

      Re: Contempt: Civil versus criminal

      Actually, he has someone to punish. Any accredited Twitter representative in the court up to and including their lawyer who is presumed to be taking instruction from them.

      Even then, the fine can only be a "small" one and with some conditions that make it impossible for the judge to keep fining Twitter and/or its representatives over and over again for the same thing.

      As has been noted Criminal Contempt requires a hearing. The fine I'm discussing is more in the way of the fine one might pay in any other civil matter like parking for two hours and 10 seconds in a two hour zone. You can appeal that, too, but in most cases you still pay the fine for parking.

      Most judges I know of in Canada, where I live would put a stay on the order they issued as the appeal went forward. Particularly if the grounds for the appeal was a serious point of law. I'm presuming that the judge issued the "produce the data" order because he interprets Twitter's refusal to do so as, in some way, hindering the collection of information useful in a prosecution which is, in and of itself a criminal act.

      Which leads us all out of the civil realm and into the criminal one again.

      Though that changes nothing in terms of Twitter's right to appeal the contempt ruling and the judge's original ruling.

      Incidentally none of this has to do with the judge being fair. He can pat himself on the back as much as he wants he's there to correctly interpret the law, make rulings based on that interpretation based on precedent, similar cases and so on down the line. Fair doesn't enter the picture.

      Nor does effectively denying Twitter its right to appeal. That, pardon my phrasing, is contemptible in and of itself.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Sep 2012 @ 3:45pm

    ffs

    They keep giving us reasons to hate them, and then scratch their heads, when the public protests

    reply to this | link to this | view in chronology ]

  • icon
    :Lobo Santo (profile), 11 Sep 2012 @ 3:50pm

    Mene, Mene, Tekel, Upharsin

    In 1962, John F. Kennedy famously said, "Those who make peaceful revolution impossible will make violent revolution inevitable."

    reply to this | link to this | view in chronology ]

  • identicon
    Michael, 11 Sep 2012 @ 4:23pm

    A question

    Maybe I'm missing something here but why do they want this particular guy's info so badly?

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 11 Sep 2012 @ 5:21pm

      Re: A question

      If I've got the facts straight, they are charging him with 'disorderly conduct', which is classed as a misdemeanor.

      Let that sink in for a minute, to really appreciate the priorities these power hungry criminals have. Those involved are willing to railroad the court case, and just completely trash the idea of justice, over a misdemeanor. This level of abuse of the court system wouldn't be acceptable for a felony, or ever really, but they seem to think it's perfectly fine to do so with a charge that insignificant.

      Of course the cynical part of me has to wonder if they're going after him so hard due to the fact that he and twitter didn't just cooperate from the get go; basically to make an example of him of what happens when you say 'no' to big brother.

      reply to this | link to this | view in chronology ]

      • identicon
        abc gum, 11 Sep 2012 @ 5:39pm

        Re: Re: A question

        "Let that sink in for a minute, to really appreciate the priorities these power hungry criminals have. Those involved are willing to railroad the court case, and just completely trash the idea of justice, over a misdemeanor. "

        And the banksters walk free.
        High court / low court

        reply to this | link to this | view in chronology ]

      • identicon
        Michael, 11 Sep 2012 @ 5:40pm

        Re: Re: A question

        That's incredible. Some higher-up probably has a grudge against him, otherwise there'd be no need to pursue this with such vigor.

        reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 11 Sep 2012 @ 5:06pm

    Correct me if I'm mistaken...

    ...but isn't the whole point of an appeal a way to try and get a second/third opinion, due to believing that the judge got it wrong?

    If all it takes to block an appeal is the judge saying 'No, I'm pretty sure I got the ruling right', then the whole appeal process would be completely negated, as I'm betting you'd be pretty hard pressed to find a judge that would admit upfront that they screwed up their ruling.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Sep 2012 @ 5:11pm

    Holiday spirit

    The perfect way to celebrate National Police State Day; ignoring a service provider's legal rights in order to punish them for not arbitrarily turning private data over to the government.
    Bravo, Judge Sciarrino!

    reply to this | link to this | view in chronology ]

    • identicon
      William Chambers, 11 Sep 2012 @ 10:56pm

      Re: Holiday spirit

      Your 'joke' is neither amusing, not witty. It is instead highly disrespectful of the lives lost on 9/11.

      reply to this | link to this | view in chronology ]

      • icon
        Rikuo (profile), 11 Sep 2012 @ 11:36pm

        Re: Re: Holiday spirit

        Uh...what? The guy up above never mentioned 9/11 or even came close to it.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 12 Sep 2012 @ 12:11am

        Re: Re: Holiday spirit

        high flyin' bird, low hangin' fruit. Which are you willie?

        reply to this | link to this | view in chronology ]

      • identicon
        abc gum, 12 Sep 2012 @ 4:55am

        Re: Re: Holiday spirit

        "Your 'joke' is neither amusing, not witty. It is instead highly disrespectful of the lives lost on 9/11."

        It is no joke, it is beyond sad and horrific that the current police state has sprung up from the ashes of catastrophe. And this disrespect trope I've been hearing is complete rubbish, disrespect has been towards those who remain.

        reply to this | link to this | view in chronology ]

        • icon
          Niall (profile), 12 Sep 2012 @ 8:23am

          Re: Re: Re: Holiday spirit

          Kind of on a par with the idiots who passed useless, draconian legislation on the back of this tragedy, all the while calling anyone who didn't agree 100% "un-American" and "not patriotic".

          reply to this | link to this | view in chronology ]

  • icon
    Thomas (profile), 11 Sep 2012 @ 5:18pm

    The government

    has decided that anyone who dares to protest against the sacred Gods of Wall Street and the banks has to be a terrorist and should be tossed into prison for long terms and anyone who gets in the way is also a terrorist.

    The constitutional right to assemble peacefully doesn't fly with today's government and will continue this way regardless of who wins the election in November.Oops, I mean who buys the election.

    reply to this | link to this | view in chronology ]

  • identicon
    arcan, 11 Sep 2012 @ 5:32pm

    i almost think twitter should just shut itself down for several days to protest this and give everyone a phone number to call to complain. and maybe the judges email address. it would be fun.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Sep 2012 @ 5:43pm

    National Lawyers Guild

    People should look up this outfit.

    The Judge can hold Twitter in contempt, and Twitter has the right of appeal.

    reply to this | link to this | view in chronology ]

  • identicon
    abc gum, 11 Sep 2012 @ 5:48pm

    Corporations are people my friend.

    If this judge issues a subpoena for Twitter to appear and testify, does the entire corporation have to appear in court? If they are found in contempt, are all twitter employees tossed into jail?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Sep 2012 @ 6:25pm

    Actually, it seems that the court has this one right.

    The information should be turned over directly, as per the court order - and also APPEALED. If the appeal works, the information is removed from who it was given to, and any legal action as a result against third parties goes out the window.

    Twitter does not lose it's right to appeal when the information is turned over. If anything, it's more risky for those receiving the information, because if the appeal is won, their case against third parties will always be easy to question and defeat.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Sep 2012 @ 8:44pm

      Re:

      Yes, because you can just wave a magic wand and vanish someone's private info after it is forcibly revealed to a third party.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Sep 2012 @ 2:34am

      Re:

      "You cannot unsee what you have seen"

      1. Dictator sues to get info on dissident and judge agrees
      2. Twitter appeals and hands over the info as you cleverly suggest
      3. Dictator does all the bad things he wants with the info
      4. Twitter wins appeal
      5. Dictator unsees the information and undoes all bad things, raising the occasional victim back from the dead

      reply to this | link to this | view in chronology ]

      • identicon
        abc gum, 12 Sep 2012 @ 4:59am

        Re: Re:

        "5. Dictator unsees the information and undoes all bad things, raising the occasional victim back from the dead"

        This is definitely possible when you have the Romney time machine at your disposal.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Sep 2012 @ 7:16pm

    “It’s pretty outrageous that the D.A.’s office wants to prohibit Twitter from exercising its right to appeal,” said Martin Stolar, a lawyer with the National Lawyers Guild who represents Harris, after the hearing.


    Isn't this the judge's call? The DA pushes for his advantage, the defense their's and the judge rules. Why is the DA the villain in an adversarial system?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Sep 2012 @ 2:35am

      Re:

      Ethics.

      reply to this | link to this | view in chronology ]

    • identicon
      abc gum, 12 Sep 2012 @ 5:01am

      Re:

      "Why is the DA the villain in an adversarial system?"

      In this case, because they are going after the wrong people.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 12 Sep 2012 @ 5:57am

        Re: Re:

        Sounds to me the DA is going after someone charged with a crime and is looking to see if he conspired with others. Seems like that's something well within the scope of prosecutorial discretion. You shithouse anarchists really ought to learn a bit more about the laws you plan on violating.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 12 Sep 2012 @ 6:29am

          Re: Re: Re:

          you're so cute when you lose control

          reply to this | link to this | view in chronology ]

        • icon
          The eejit (profile), 12 Sep 2012 @ 7:18am

          Re: Re: Re:

          The funny thing is, that the judge is refusing to allow an appeal. You know who else was refused an appeal initially?

          The "inhabitants" of Guantanamo Bay. And somehow, I don't think that Twitter is a terrorist organisation in under 140 characters.

          reply to this | link to this | view in chronology ]

        • identicon
          abc gum, 12 Sep 2012 @ 4:47pm

          Re: Re: Re:

          "You shithouse anarchists really ought to learn a bit more about the laws you plan on violating."

          Today I learned that pointing out prosecutorial bias is tantamount to anarchy. Oh ... and that I was planning something illegal, AC must be a precog eh ?

          reply to this | link to this | view in chronology ]

  • icon
    art guerrilla (profile), 11 Sep 2012 @ 7:48pm

    execute now !

    trial later...

    ...and liberty and justice for 1(%)

    art guerrilla
    aka ann archy
    eof

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Sep 2012 @ 8:35pm

    Was the judge's ruling more than 180 characters?

    I don't think the judge was denying their right to appeal per se, but insisting they turn over the info WHILE they are appealing.

    Of course, if they were to win on appeal, you can't exactly take back the information you were wrogly forced to hand over in the first place.

    And what if, as a result of illegally turning in that info, harm had come to the defendant? Or he was put in jail as a result of it?

    Naturally he'd be released if he won on appeal, but what's done is done.

    I hope the EFF gets involved with this one. I'm tired of judges viewing electronic communication as less protected than what has been written on paper.

    reply to this | link to this | view in chronology ]

  • identicon
    Digger, 11 Sep 2012 @ 9:38pm

    As if millions of dollars suddenly cried out in anguish...

    Someone should put the Judge's finances under a microscope. I sense a disturbance in the ledger sheet.

    Strictly my opinion of course, but that's the fun thing about opinions, the judge can f'ing sit and spin on em for all I care. Protected speech!

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Sep 2012 @ 3:38am

      Re: As if millions of dollars suddenly cried out in anguish...

      Yeah, because clearly any judge that rules against your belief system is on the take.

      reply to this | link to this | view in chronology ]

      • identicon
        abc gum, 12 Sep 2012 @ 5:04am

        Re: Re: As if millions of dollars suddenly cried out in anguish...

        Yeah, because clearly anyone who tweets against your belief system is a terrorist.

        ftfy

        reply to this | link to this | view in chronology ]

        • identicon
          Digger, 12 Sep 2012 @ 11:49am

          Re: Re: Re: As if millions of dollars suddenly cried out in anguish...

          In this case, the judge is acting the part of a constitutional terrorist. Ordering things that are against the constitution and laws of the nation for political reasons.

          reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 11 Sep 2012 @ 10:19pm

    "The judge had asked Twitter to show why it wasn’t in contempt of court"

    Twitter needs to ask the judge why they shouldn't have contempt for the court. When a judge is contemptible, contempt is an appropriate response.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Sep 2012 @ 3:40am

    How can you american people not be thinking about revolution?
    You are having more and more of your rights taken away, i can foresee in a close future some law will come out that makes rallys, protests and that sort illegal... then you will be really screwed

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 12 Sep 2012 @ 4:19am

    If anything, it's already a huge win for Twitter in PR point of view. They'll fight for their users for some extent instead of rolling and opening their legs wide.

    reply to this | link to this | view in chronology ]


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