A lawyer for Twitter argued yesterday before the Appellate Term, First Department, that his client and other electronic communications services will suffer grave consequences if their users don’t have standing to challenge law enforcement requests for personal information. “We have finite resources, as do (others). This is not just limited to Twitter,” Twitter’s lawyer, John Roche of Perkins Coie, told the panel.
Twitter is appealing Manhattan Criminal Court Judge Matthew Sciarrino Jr.’s (See Profile) April holding that defendant Malcolm Harris lacked standing to challenge a subpoena by the Manhattan district attorney seeking his account information. Harris was arrested during an Occupy Wall Street march across the Brooklyn Bridge last year. The D.A. subpoenaed Harris’ Twitter information, including more than three months of his tweets, to counter Harris’ anticipated defense that police led him and other protesters onto the road where they were arrested. In September, Twitter reluctantly turned over the documents to Sciarrino, who gave the relevant information to prosecutors.
Twitter is arguing that if its appeal is extinguished, it will be put in the position of either providing user communications and account information in response to all future subpoenas, or expending resources litigating on behalf of its users. The company argues its users should have standing to move to quash subpoenas for their own records.
But Justice Richard Lowe yesterday questioned if many subpoenas would be issued and suggested that the need of prosecutors for the information may be greater than “the burden that is going to be placed on entities such as Twitter or Facebook.” In arguing Twitter’s appeal is moot because it ultimately complied with the subpoenas, Assistant District Attorney Martin Foncello said Harris is likely to press the standing issue in an appeal of his own.