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Lawyer: NY protester to plead guilty in case that spurred fight over privacy on social media.

posted Dec 6, 2012, 5:16 AM by Pete Weinman

By Associated Press, Published: December 5. 

NEW YORK — An Occupy Wall Street protester plans to plead guilty in a disorderly conduct case that turned into a clash over law enforcement’s access to postings on social media, his lawyer said Wednesday.

Malcolm Harris intends to enter the plea Friday, admitting to the only charge against him, disorderly conduct, attorney Martin R. Stolar said. He said a judge was expected to sentence Harris to time served, the hours he was held after his October 2011 arrest.

A call to the judge’s chambers wasn’t immediately returned. The Manhattan district attorney’s office hasn’t made any plea deal with Harris, spokeswoman Joan Vollero said.

The case became a cause celebre among social media users and electronic-privacy advocates after prosecutors subpoenaed about three months’ worth of Harris’ tweets. Harris, Twitter Inc. and some civil liberties and privacy groups unsuccessfully challenged the demand.

Stolar said that despite the plea, Harris will be able to keep pursuing a legal claim that the subpoenas invaded his privacy, his main focus in the case.

“He’s much more concerned about the larger issue” than about having a disorderly conduct record, Stolar said.

Disorderly conduct is a violation, not a crime; it carries a maximum penalty of 15 days in jail. Prosecutors still could ask for jail time or community service in Harris’ case.

Harris, a writer and editor in his 20s, was among more than 700 people arrested during a march on the Brooklyn Bridge in the early days of the Occupy movement. Police said demonstrators ignored warnings to stay on a pedestrian path; Harris and others said they thought they had police permission to be on the road.

Had the case gone to trial, it might have aired the tweets, which were initially posted publicly but had become inaccessible as newer ones crowded them out. Twitter was ordered to turn over the messages and ultimately did in September, facing the possibility of being held in contempt of court if it had refused.

Prosecutors have said the tweets could cast doubt on Harris’ claim that he wasn’t aware of the police orders he was charged with disregarding. Harris has said he’s unsure what the postings contain, but it was probably “a lot of nonsense.”

Prosecutors said Harris couldn’t reasonably make privacy claims about a service he used to share his thoughts with the entire online world. Harris said that by seeking not only his messages but the accompanying user information, prosecutors were violating his privacy and free association rights, among other arguments.

After Harris lost an early round, Twitter stepped into the fight on his behalf.

“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,” the San Francisco-based company said in an August appeals filing.

The appeals court has yet to rule.

Twitter declined to comment on the case Wednesday.

The American Civil Liberties Union, the Electronic Frontier Foundation and Public Citizen joined the fight, filing court papers to support Harris’ and Twitter’s arguments, which the groups saw as a bellwether for social media companies contesting such demands for information. ACLU attorney Aden Fine said the case “demonstrates why the law needs to keep up with technology.”

“If individuals can’t speak freely on the Internet without worrying that the government will be able easily to get their private information, the freedom of speech protected by the First Amendment suffers,” Fine said in an emailed statement.

Harris also sued the district attorney’s office and Manhattan Criminal Court Judge Matthew Sciarrino, seeking to block the subpoena. A civil court judge denied the request last month.

Despite Harris’ guilty plea, he will be able to continue appealing the criminal court rulings concerning the legality of the subpoena, Stolar said. People who plead guilty sometimes retain certain appeal rights.

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Follow Jennifer Peltz at http://twitter.com/jennpeltz

Copyright 2012 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed

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