Twitter Inc. must produce tweets and user information of an Occupy Wall Street protester, a judge has ruled, discounting objections from the social media website in a case of first impression.
“The Constitution gives you the right to post, but as numerous people have learned, there are still consequences for your public posts. What you give to the public belongs to the public. What you keep to yourself belongs only to you,” Criminal Court Judge Matthew Sciarrino Jr. (See Profile), sitting in Manhattan, wrote in People v. Harris, 2011NY080152.
Sciarrino on June 30 ordered the site to produce in chambers Malcolm Harris’ user information and tweets from a more than three-month period—information the Manhattan District Attorney’s Office is seeking for its prosecution of a disorderly conduct case charge against Harris.
Harris was one of some 700 Occupy Wall Street protesters arrested on Oct. 1, 2011, during a march across the Brooklyn Bridge.
The district attorney’s office subpoenaed Twitter in January seeking user information and tweets from Harris’ account, @destructuremal, between Sept. 15 and Dec. 31.
Prosecutors expect to use the material to counter an anticipated defense argument that police intentionally led marchers onto a non-pedestrian part of the bridge, where they were arrested. Harris knew the police instructions not to block traffic but still did so, prosecutors argued in support of the subpoena.
Sciarrino’s latest ruling follows an April 20 decision blocking Harris’ own attempts to quash the subpoena. There, the judge held Harris lacked standing, as Harris had no proprietary interest in his account’s user information (NYLJ, April 23).
Saying he “partially based” his April ruling on Twitter’s terms of service at the time, Sciarrino noted that on May 17 Twitter included a “newly added portion” of the terms stating, “You Retain Your Right to Any Content You Submit, Post or Display on or Through the Service.”
Twitter filed court papers on May 7 seeking to quash the subpoena.
Civil liberties groups also filed as amicus curiae in support of Harris, calling the April 20 decision contrary to case law and in violation of Harris’ First and Fourth amendment rights.
The amicus brief—filed by the American Civil Liberties Union, New York Civil Liberties Union, Electronic Frontier Foundation and Public Citizen—added that disclosure of an individual’s location when saying something, how long it takes to say something or what tools they choose to use for communication “are private, intimate details about individuals’ communications and communication habits. None of this information is the government’s business, and the D.A. cannot simply obtain it without first satisfying constitutional scrutiny.”
Sciarrino again rejected the constitutional claims.
“If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy. There is no proprietary interest in your tweets, which you have now gifted to the world,” the judge said, pointing out that Twitter agreed in 2010 to supply the Library of Congress with every tweet since the site’s start.
The judge emphasized that the public postings in question were different from private e-mails, direct messages, chats or other ways to have a private conversation via the Internet.
“Those private dialogues would require a warrant based on probable cause in order to access the relevant information,” he observed.
Sciarrino likened the relevance of the prosecution’s request to a case where a passerby overheard a man yell ‘I’m sorry I hit you, please come back upstairs.’”
At trial, that passerby could be compelled to testify what the man said.
“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,” said Sciarrino.
The judge also rejected Twitter’s argument that compliance with the subpoena would be “an undue burden.”
In court papers, the site complained it could be put in the “untenable position” of having to choose between uniform compliance with all subpoenas or constant attempts to quash subpoenas on behalf of users.
“In no other jurisdiction has Twitter faced this overwhelming burden in response to law enforcement subpoenas,” the site said in court papers.
But Sciarrino wrote, “That burden is placed on every third-party respondent to a subpoena and cannot be used to create standing for a defendant where none exists.”
Though ordering Twitter’s compliance for all information between Sept. 15 and Dec. 30, Sciarrino denied prosecutors’ request for Dec. 31 tweets. He said prosecutors would have to obtain a search warrant for those, noting the Stored Communications Act’s requirement on disclosure of contents in temporary “electronic storage” for less than 180 days from the date of his decision.
To prevent any “alleged non-impartiality,” Sciarrino said the request for a warrant should be made to another Criminal Court judge.
Sciarrino acknowledged the law on social media is “evolving.”
He observed that founding fathers such as Samuel Adams, Alexander Hamilton, Benjamin Franklin and Thomas Jefferson “would have loved to tweet their opinions as much as they loved to write for the newspapers of their day (sometimes under anonymous pseudonyms similar to today’s twitter user names).”
But, the judge added, “Those men, and countless soldiers in service to this nation, have risked their lives for our right to tweet or to post an article on Facebook; but that is not the same as arguing that those public tweets are protected.”
Chief Assistant District Attorney Daniel Alonso said in a statement, “We are pleased that the court has ruled for a second time that the Tweets at issue must be turned over. We look forward to Twitter’s complying and to moving forward with the trial.”
Jeffrey Vanacore and John Roche of Perkins Coie represented Twitter.
“We are disappointed in the judge’s decision and are considering our options. Twitter’s Terms of Service have long made it absolutely clear that its users ‘own’ their content. We continue to have a steadfast commitment to our users and their rights,” said a Twitter spokeswoman.
Aden Fine, a senior staff attorney at the ACLU, said “the most troubling aspect of this decision is the court again concluded individual Twitter users don’t have a right to go to court to protect their constitutional rights. That is a very troubling proposition… Regardless of who owns the tweets or the Twitter account information, individuals have a right to go to court to protect their constitutional rights when their speech activities are at issue.”
Fine said that to his knowledge this is “one of the first, if not the first time” in either a criminal or civil case at the state or federal level that an Internet company like Twitter “filed its own motion to quash a government request for information about an individual’s Internet activities.”
Harris was represented by Martin Stolar of Manhattan, who did not respond to a request for comment.
Assistant District Attorney Lee Langston represented the Manhattan District Attorney’s Office in the case.
@|Andrew Keshner can be contacted at email@example.com.