In past Socially Aware posts, we have discussed using subpoenas in civil litigation to obtain evidence from social media sites, including whether individuals have a privacy interest in this information and how the Stored Communications Act may limit the use of subpoenas in civil cases.  Until now, we have not discussed these issues in the context of a criminal case.  Does the prosecutor have to get a search warrant to obtain information about someone’s social media use?  Does the Stored Communications Act limit the government’s authority in this area?  A decision from the Criminal Court of the City of New York arising out the Occupy Wall Street movement, People of the State of New York v. Malcolm Harris, sheds some light on these questions. 

On October 1, 2011, protesters marched on the Brooklyn Bridge as part of an Occupy Wall Street demonstration.  Malcolm Harris, along with hundreds of other protesters, was charged with disorderly conduct for allegedly occupying the roadway of the Brooklyn Bridge.  The District Attorney expected Harris to claim as a defense that he stepped onto the roadway because the police led him there.  The District Attorney, however, asserted that Harris, while on the Bridge, may have tweeted statements inconsistent with his anticipated defense.

The District Attorney issued a third-party subpoena on Twitter, seeking user information and tweets associated with the account @destructuremal, allegedly used by Harris.  Harris notified Twitter that he would move to quash the subpoena, and Twitter took the position that it would not comply with the subpoena absent a ruling by the Court.  The District Attorney opposed the motion.

The Court found that Harris lacked standing to quash the third-party subpoena on Twitter.  The Court found that Harris had neither a proprietary interest nor a privacy interest in the user information and tweets associated with the account.  The Court denied Harris’s motion to quash, and ordered Twitter to comply with the subpoena.

No Proprietary Interest in Tweets

First off, according to the Court, Harris’s tweets were not his tweets.  When registering a Twitter account, the user must agree to Twitter’s Terms of Service, which includes a grant to Twitter of a “worldwide, non-exclusive, royalty-free license to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute” user content posted to Twitter.  The Court found that Twitter’s license to use Harris’s tweets meant that the tweets posted by Harris “were not his.”  In the Court’s view, Harris’s “inability to preclude Twitter’s use of his [t]weets demonstrates a lack of proprietary interest in his [t]weets.” 

No Privacy Interest in Tweets 

The Court went on to reject Harris’s contention that he had a privacy interest in his tweets.  Twitter’s Terms of Service also state that submitted content “will be able to be viewed by other users of the Service and through third party services and websites,” and Twitter’s Privacy Policy states that the Twitter’s service is “primarily designed to help you share information with the world.”  Twitter makes no assurances of privacy.  Rather, Twitter notifies its users that their tweets (at least on default settings) will be available for the world to see.  Thus, the Court found that tweets are “by definition public.”

No Search Warrant Required

The Court further held that Harris’s Fourth Amendment rights were not at issue, because the internet is not a physical “home.”  While service providers may refer to a user’s space on the site as a “virtual home,” the Court took the position that this “home” is no more that “a block of ones and zeros stored somewhere on someone’s computer.”  Thus, while Twitter users may think that the Fourth Amendment protections that apply in their physical homes will also apply to their Twitter accounts, “in reality, the user is sending information to the third party, Twitter.” 

No Stored Communications Act Protection

Finally, the Court held that, unlike in a civil case, the Stored Communications Act permits the government in a criminal case to subpoena subscriber and session information directly from the social media site.  The Court held that, unlike private litigants in civil litigation, prosecutors may obtain such information using any federal or state grand jury, trial or administrative subpoena by showing “specific and articulable facts showing that there are reasonable grounds to believe” that the tweets “are relevant and material to an ongoing criminal investigation.”   The Court held that the District Attorney clearly made this showing in the case.

In short, the Court has made it clear that users of social media who also find themselves charged with a criminal offense should have no expectation that potentially relevant information will be considered private or beyond the reach of a subpoena.

Reaction to Decision

The Court’s decision has been criticized by tech blogs and the American Civil Liberties Union, and, on May 7, 2012, Twitter filed a motion to quash the Court’s order, arguing that among other errors in the Court’s decision, under Twitter’s Terms of Service, Harris in fact retained his rights to any content that he submitted, posted or displayed on or through the Twitter service.  We will keep in eye on further developments in this case.