Your Tweets May Be Held Against You in a Court of Law – #tweetsdiscoverable

In a recent case before the Criminal Court of the State of New York, the prosecution served a subpoena duces tecum on Twitter, Inc., seeking user information including the e-mail address and Tweets for a two-month period under the Twitter account, @destructuremal, which was believed to be that of the defendant Malcolm Harris. The People of the State of New York v. Harris, Index No. 080152/2011, (Crim. Ct. Apr. 20, 2012). Mr. Harris had been charged with disorderly conduct after allegedly marching on to the roadway of the Brooklyn Bridge during an Occupy Wall Street protest. The prosecution sought to refute Mr. Harris’s expected defense that the police led him into stepping on to the roadway of the Brooklyn Bridge, by examining his contradictory, contemporaneous Tweets.

Defendant moved to quash the subpoena in his own right or to intervene in the proceedings to quash the subpoena. In a case of first impression concerning whether a criminal defendant has standing to quash a subpoena issued to a third-party social networking website seeking to obtain the user’s information, the Court analogized these circumstances to cases involving subpoenas issued to banks and telephone companies, seeking a criminal defendant’s records. The Court found that, because a customer does not have a proprietary or possessory interest in his banking or telephone records, he similarly does not have such an interest in his Twitter account information, particularly where Twitter’s Terms of Service grant Twitter the right to transmit a user’s posts. Mr. Harris also sought to intervene because his interests were purportedly not adequately being represented by Twitter. The Court denied Mr. Harris’s application on this front as well because he would not be “bound by any of the principles of res judicata by any ruling in regards to the People’s subpoena.”

Finally, the Court also analyzed the State’s subpoena under the Stored Communications Act (18 U.S.C. §§ 2701-2711) (the “SCA”), which governs the privacy of stored Internet communications. The Court held that the subpoena both adhered to the procedural requirements for a subpoena under the SCA and that the State offered “specific and articulable facts showing that there are reasonable grounds to believe” that Mr. Harris’s Tweets “are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703[d].

Accordingly, the Court held that defendant’s motion to “#quash” the subpoena was “#denied” although the State consented to allowing in camera review of the documents.