Twitter Must Produce Occupy Wall Street Protestor’s Data
By Sarah Jeong – Edited by Michael Hoven
People of the State of New York v. Malcolm Harris, Docket No. 2011NY080152 (N.Y. Crim. Ct. June 30, 2012)
Decision and Order (hosted by the ACLU)
The Criminal Court of the City of New York denied Twitter’s motion to quash a subpoena, thereby allowing discovery of defendant Malcolm Harris’s tweets and other non-content information collected by Twitter.
On January 26, 2012, the New York County District Attorney subpoenaed Twitter to produce user information and tweets posted from September 15, 2011 to December 31, 2011 from the Twitter account @destructuremal, belonging to Occupy Wall Street protestor Malcolm Harris. Harris filed a motion to quash the subpoena, which was denied by the court on April 20, 2012. Twitter then filed its own motion to quash the April 20 order. After the court’s most recent reply on June 30, Twitter must surrender the data in question. The court described its decision as granting the motion in part and denying it in part, but it only modified its April 20 order to the extent that a search warrant was required for data less than 180 days old—that is, only for anything posted on December 31, a single day out of the three-and-a-half month period specified by the District Attorney.
Malcolm Harris was arrested on October 1, 2011 on the Brooklyn Bridge and charged with disorderly conduct. (Harris was not the only one; approximately 700 protestors were arrested that day after the police used “kettling” tactics.) The District Attorney’s office subpoenaed Twitter for data linked to Harris’s account, claiming that they needed the information to rebut what they anticipated would be Harris’s defense—that the police had led or escorted him onto the non-pedestrian part of the Bridge. When Harris moved to quash the subpoena, Judge Sciarrino ruled that Harris had no standing to contest the subpoena.
Twitter then filed its own motion to quash, claiming that users did have standing to quash the subpoena and that the court order was a violation of various federal and state laws. Twitter argued that users did have proprietary interests in their tweets, and therefore had standing to contest subpoenas. Furthermore, not allowing users to contest such subpoenas would place an undue burden on Twitter to intervene in such cases.
Judge Sciarinno was dismissive of Twitter’s reasoning, finding that the burden on third party providers was not a relevant consideration in whether they could be subpoenaed. He made the following analogy:
Consider the following: a man walks to his window, opens the window, and screams down to a young lady, “I’m sorry I hit you, please come back upstairs.” At trial, the People call a person who was walking across the street at the time this occurred. The prosecutor asks, “What did the defendant yell?” Clearly the answer is relevant and the witness could be compelled to testify. Well today, the street is an online, information superhighway, and the witnesses can be the third party providers like Twitter, Facebook, Instragram, Pinterest, or the next hot social media application.
Similarly, he found that his previous order did not violate the Fourth Amendment, because Harris had no legitimate expectation of privacy for his public tweets. The judge also decided that there was no violation of the Stored Communications Act or New York State law, because the subpoenaed information was necessary for the People to rebut Harris’s anticipated defense.
The court did not at any point address whether Harris had any reasonable expectation of privacy regarding non-tweet information like “the IP address he logged in from, direct messages, deleted messages, how long each login lasted, dates, time, and possible location information,” which Ars Technica points out the subpoena requested. Neither did the court address the puzzlingly broad sweep of time the subpoena specifies—after all, all of the events in question occurred in a period of a few hours on October 1.
Aden Fine of the ACLU expressed disappointment with the decision. Although he praised Twitter for intervening in the case, he pointed out that “[t]he unfortunate reality, however, is that Twitter and other Internet companies cannot challenge every one of these requests for information about one of their millions of users. That is why it is so important that individuals be allowed to go to court to protect their own rights, and that is why this court’s decision is so wrong.”
Sarah Jeong is a 2L at Harvard Law School.