We previously reported on the New York District Attorney’s attempts to obtain tweets by a criminal defendant in People of the State of New York v. Harris, Index No. 080152/2011 on May 23, 2012 and the corresponding challenges asserted by the individual user/defendant and Twitter itself on June 7, 2012. The Court first denied defendant’s motion to quash the subpoena served on the social networking site Twitter, ruling that the defendant, charged with disorderly conduct after allegedly marching onto the Brooklyn Bridge during an Occupy Wall Street protest, had no reasonable expectation of privacy in communications of this type and lacked standing to seek the protections of the Stored Communications Act. Seeing its user fail in his efforts to quash the subpoena, Twitter took the matter into its own hands, moving for the same relief as defendant and ultimately obtaining the same result. The more recent decision, which addressed Twitter’s challenges, raised considerable buzz in legal and social media circles as a case of first impression because it concerned (1) a criminal rather than a civil matter and (2) a motion by a social media site rather than an individual user.
Based upon Twitter’s challenges, which were enumerated in the June 7, 2012 post, the Court found as follows:
- First, the Court disagreed with Twitter’s claim that, if its users lacked standing to challenge subpoenas (as the Court ruled in the prior decision), Twitter would be unfairly burdened by the choice to “either provide user communications and account information in response to all subpoenas or vindicate its users’ rights by moving to quash these subpoenas itself.” The Court held that the subpoena for defendant’s user information did not constitute an undue burden because it would not take significant effort for Twitter to search for and provide the data at issue. In reaching its decision, the Court added that the burden Twitter alleged “is placed on every third-party respondent to a subpoena and cannot be used to create standing” where none exists.
- Second, the Court held that the subpoena did not violate the Fourth Amendment, which requires either (1) a physical intrusion onto defendant’s personal property or (2) a violation of a defendant’s reasonable expectation of privacy. The Court stated that “in this case there was no physical intrusion” and indicated that, just like “screaming out a window” to the street below, Tweeters are afforded no reasonable expectation of privacy because of the author or speaker’s “intention [to] broadcast to the world.” The Court explained that “today, the street is an online, information superhighway, and the witnesses can be third party providers like Twitter, Facebook, Instagram, Pinterest, or the next hot social media application.”
- Third, the Court noted that pursuant to the Stored Communications Act (18 U.S.C. § 2703(d)) (“SCA”) “[a] court order for disclosure under subsection (b) or (c) . . . may issue only if the government entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.” (Emphasis added). In this case, the People anticipated that defendant will raise “a defense allegedly contradicted by his publicly posted tweets around the time of the incident.” Consequently, the Court concluded that the information sought by the subpoena was clearly both relevant and material to the ongoing criminal investigation and thus did not violate the SCA.
- Lastly, in the Court’s opinion, the scope of the District Attorney’s subpoena was sufficiently circumscribed and in accord with New York State law.
In denying Twitter’s motion to quash the subpoena, the Court ordered the social media site to produce “subscriber information, logs maintained by the network server, etc. and the September 15, 2011 to December 30, 2011 tweets covered by the court order,” and added that other tweets were accessible only through a search warrant. This victory for the District Attorney will aid in the prosecution of offenders who use social media services to comment on their alleged criminal acts. The decision, however, also reflects that as “the laws, rules and societal norms evolve and change with each new advance in technology, so too will the decisions of our courts.”
Paul A. Saso is a Director on the Gibbons E-Discovery Task Force.