Summary:

Twitter is fighting a major privacy case that will help determine who has rights in social media. Unfortunately, the case is before a judge who has been disciplined for misusing Facebook. His track record suggests that he is the very last person who should be deciding these issues.

Twitter Bird perched on gavel
photo: Shutterstock Composition: Bird via basel101658 / Gavel via Alexander A. Sobolev

A New York judge made unusual threats against Twitter this week, raising the stakes in a closely-watched court case over online privacy. The threats are all the more remarkable given the judge’s own troubled past with Facebook and social media.

For anyone who missed it, Judge Matthew Sciarrino Jr. told Twitter this week that he would hold it in contempt of court unless it turned over the account of an Occupy Wall Street protestor by this Friday. Bloomberg reports he said:

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

Sciarrino is also demanding the company hand over its earning statements so that he can assess a possible fine. Twitter has already responded, asking Sciarrino to refrain from the “drastic” remedy while an appeals court addresses the privacy issues.

What’s going on here? To appreciate the significance, it’s important to know a few things about the case and Sciarrino himself.

First, the judge. In 2009, Sciarrino made a national fool of himself after news reports explained how the judge had been disciplined for “Facebook addiction”. The reports cited a series of “incidents”, including Sciarrino’s habit of updating his Facebook status from the bench. The judge also reportedly snapped a photo of his crowded courtroom and posted it on the social network.

Even more serious were Sciarrino’s attempts to “friend” the lawyers who appeared in his court — a highly unprofessional move that placed the lawyers in an awkward ethical and legal position. A Staten Island news site also reported that the judge had a MySpace page on which he posted a campaign poster for his “friend,” a Republican candidate for state office.

These antics, in other words, reveal that Sciarrino is the very last person who should be deciding a cutting edge social media case with big implications for speech and privacy. Which brings us back to the Twitter case.

In April, Sciarrino declared that an Occupy Wall Street protestor could not challenge a police subpoena of his Twitter account because he did not own the tweets in the first place. The ruling included flippant remarks to show off his show social media prowess, including a finding that that motion to “#quash” was “#denied.”

When Twitter then stepped in on behalf of its user, Sciarrino brushed off the affair by saying the protestor had no constitutional protections in the Twitter account. This ruling also contained extravagant rhetoric in which he said Twitter was like shouting from the street and that “the street is an online, information superhighway.”

The rulings appear to contain a number of blatant factual and legal errors that Twitter is now appealing to a higher court. Sciarrino, however, is doubling down on his bluster with the contempt threats. There threats are not only an abuse of power (they harm Twitter’s basic right to appeal) but also appear to be a juvenile attempt to grab headlines (why on earth does he need Twitter’s earning statements?). And, as Twitter notes, the contempt threats are completely unnecessary since the protestor’s trial is not till December and the appeal will likely be heard in November.

“The decision interferes with the right to appeal and the parties’ ability to fully protect the important First Amendment and Fourth Amendment rights implicated by the subpoena,” said attorney Mariko Hirose of the New York Civil Liberties Union in an email statement.

In other circumstances, the antics of Judge Facebook might be funny — but not when the case in question is crucial to defining privacy rights in the age of social media. Twitter, its users and the American public deserve better than this. Sciarrino is in well over his head and the time has come for him to back off and let the appeals court made a decision.

You can read the latest filings here (h/t New York Law Journal) :

Twitter Re Contempt

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