As the Occupy Wall Street protests fade from memory, a related discovery battle between Twitter and the New York County District Attorney rages on.

Earlier this year, we discussed the District Attorney’s efforts to subpoena user information and tweets of criminal defendant Malcolm Harris, an Occupy Wall Street protester charged with disorderly conduct for allegedly occupying the roadway of the Brooklyn Bridge.  In a setback for Twitter, the Criminal Court of the City of New York recently denied Twitter’s motion to quash the District Attorney’s subpoena; Twitter has announced its decision to appeal the court’s decision.  In this article, we take a look at the court’s decision rejecting Twitter’s motion, and discuss key issues to be addressed on appeal.

As noted, the dispute emerges from the District Attorney’s criminal prosecution of Harris.  Believing that Harris had tweeted information inconsistent with his anticipated defense, the District Attorney sought from Twitter the user information and tweets associated with the account @destructuremal—the Twitter account allegedly used by Harris.  Harris filed a motion to quash, and Twitter refused to comply with the subpoena pending the results of Harris’s motion.

The court found that Harris lacked standing to quash the third-party subpoena on Twitter, because Harris had neither a proprietary interest nor a privacy interest in the user information or tweets associated with the @destructuremal account.  The court observed that no search warrant was required to obtain Harris’s tweets, as no Fourth Amendment privacy rights are implicated when information is sought from a third party, such as Twitter.  Rather, in a criminal case, the Stored Communications Act (SCA) permits the government to subpoena subscriber and session information directly from a social media site.  The court ordered Twitter to comply with the subpoena.

Twitter then filed its own motion to quash the subpoena.  Twitter argued that, under its Terms of Service, Harris in fact retained his rights to any content that he submitted, posted or displayed on or through the Twitter service; and that denying Harris’s standing to oppose the subpoena placed an undue burden on Twitter.  In a decision handed down on June 30, 2012, the court disagreed.  The court noted that the general rule in New York is that “only the recipient of a subpoena in a criminal case has standing to quash it,” and reiterated that Harris had no Fourth Amendment privacy right in his tweets.  Twitter has objected to the court’s decision, and, as noted, will be filing an appeal; a review of the court’s decision highlights key issues to be addressed on appeal.

No Privacy Violation

Proving a violation of the Fourth Amendment requires a showing of either (1) a physical intrusion onto personal property or (2) a violation of a reasonable expectation of privacy.  The court found that, due to Harris’s publication of his tweets to third parties, neither showing could be made here.

No Physical Intrusion

With regard to physical intrusion, the court stated simply that there had been no physical intrusion into Harris’s Twitter account.  Unlike the contents of someone’s home or car, the contents of Harris’s Twitter account had been “purposely broadcast to the entire world [and] into a server 3,000 miles away.”

No Reasonable Expectation of Privacy

With regard to any expectation of privacy, the court likened posting a tweet to screaming out of an open window.  According to the court, “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 court distinguished a tweet, however, from a “private” Internet dialogue, such as one conducted via private email, private direct message, or private chat.  Accessing relevant information from such private Internet dialogues “would require a warrant based on probable cause.”  A tweet, however, is not like an email sent to a single party, and “[t]here can be no reasonable expectation of privacy in a tweet sent around the world.”

A Tweet Is a “Public Posting”

The court based its decision on its finding that a tweet is a “public posting.”  In the court’s view, “It is the act of tweeting or disseminating communications to the public that controls.”  The court supported its finding by citing Twitter’s Privacy Policy, which states that “[o]ur Services are primarily designed to help you share information with the world.  Most of the information you provide us is information you are asking us to make public.”  As further evidence of the public nature of a tweet, the court also cited Twitter’s 2010 agreement with the Library of Congress, under which every public tweet since Twitter’s inception is to be archived; several Internet sites through which deleted tweets remain accessible; and a National Geographic Channel project that has collected tweets and intends to broadcast them into space this August.

The court likened the third-party recipient of a tweet to a witness on the street who overhears something screamed out of an open window.  As the court put it, “today, the street is an online, information superhighway, and the witness can be the third-party providers like Twitter, Facebook, Instagram, Pinterest, or the next hot social media application.”  A tweet, like a scream out the window, has been made public, and “[t]here is no reasonable expectation of privacy for tweets that the user has made public.”

No Undue Burden on Twitter

Twitter argued that denying standing to Harris placed an undue burden on Twitter, who was thereby forced to either comply with, or move to quash, each such subpoena seeking information of a Twitter user that it receives.  The court flatly disagreed, noting that “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.”

No Undue Burden Under the Stored Communications Act

A court issuing an order under Section 2703(d) of the SCA, “on a motion made promptly by the service provider,” may quash or modify the order if it finds that the information or records sought are “unusually voluminous” or if compliance with the order “otherwise would cause an undue burden” on the service provider.  In this case, the order requires Twitter to provide all user information associated with the @destructuremal Twitter account, including all tweets posted from it between September 15, 2011, and December 31, 2011.  The court declined to find that this order placed an undue burden on Twitter under the SCA, stating instead that “it does not take much to search and provide the data to the court.”

Warrant Required for Tweets in Electronic Storage for Less Than 180 Days

The only data associated with the @destructuremal account that the court did not order Twitter to produce were those tweets sent out from the account on December 31, 2011.  This is because, under the SCA, the court may compel either an Electronic Communications Service (ECS) or a Remote Computing Service (RCS) to disclose non-content information, and may compel an RCS to disclose its contents; but the court may only compel an ECS to disclose content that has been in electronic storage for more than 180 days.  At the time that the June 30, 2012 order was issued, the court did not have the proper authority under the SCA to order disclosure of tweets made on December 31, 2011.  The court, accordingly, modified its previous order with respect to the ECS content that was less than 180 days old—removing that portion of the order that would have required Twitter to produce tweets placed from the @destructuremal account on December 31, 2011.

What Next?

The Criminal Court of the City of New York ordered Twitter to disclose all non-content information, as well as all content information from September 15, 2011, to December 30, 2011.  As noted, Twitter has announced its intention to appeal, rather than to comply with, the decision.  Twitter will not have to turn over the December 31, 2011 tweets unless the government obtains a search warrant.  Will Twitter have to turn over the other @destructuremal tweets?  We’ll keep you posted.