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Criminal Defendant has No Standing to Quash Twitter Subpoena

Posted in CASE SUMMARIES

People v. Harris, —N.Y.S.2d—, 2012 WL 1381238 (N.Y. Crim. Ct. Apr. 20, 2012)

In this case, the court held that the defendant did not have standing to move to quash a subpoena seeking production of his Tweets and the user information associated with his Twitter account because the defendant “had no proprietary interests” in the information sought and because his claimed privacy interest was “understandable” but “without merit.”

The defendant was arrested and charged with disorderly conduct after marching onto the Brooklyn Bridge as a participant in the Occupy Wall Street protests.  In furtherance of its prosecution, the District Attorney’s Office sent a subpoena duces tecum to Twitter, Inc., seeking user information and Tweets from a particular time period for the Twitter account @destructuremal—the account allegedly used by the defendant.  The defendant sought to quash the subpoena.

The court’s analysis focused largely on the public nature of Twitter and its Terms of Service, which establish that users have no expectation of privacy and no proprietary interest in their Tweets—quite the opposite, in fact.  The court also analogized the information sought to bank records of a customer’s account, which have been held by the United States Supreme Court to be the business records of the bank, over which the customer can assert neither ownership nor possession.  New York courts have consistently held that "an individual has no right to challenge a subpoena issued against a third-party bank."

Turning to the court’s discussion of the Terms of Service, the court first concluded that the defendant had no proprietary interests in the at-issue information and specifically cited Twitter’s Terms of Service, which state that by submitting a post or displaying content, a user has granted Twitter “a worldwide, non-exclusive, royalty-free license to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).”  Thus, the court reasoned, "defendant’s inability to preclude Twitter’s use of his Tweets demonstrates a lack of proprietary interest" in them.

Turning next to the question of privacy, the court found that “defendant’s contention that he has privacy interests” were “understandable, but without merit.”  Again, the court relied on Twitter’s Terms of Service, which clearly inform users that their information will be viewable by others and which specifically state that “[w]hat you say on Twitter may be viewed all around the world instantly … [t]his license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same.”  Other sections, the court noted, inform users of the information collected by Twitter upon a user’s registration and use of the service.

Concluding its discussion, the court once again made the analogy to bank records, which, like Tweets (and related user information) can contain personal information, but concluded that the expectation that any disclosure of (Twitter-related) information would first be requested from, and require the approval of the user was “understandable, but wrong.”  The court explained:

While the Fourth Amendment provides protection for our physical homes, we do not have a physical “home” on the Internet.  What an Internet user simply has is a network account consisting of a block of computer storage that is owned by a network service provider.  As a user, we may think that storage space to be like a “virtual home,” and with that strong privacy protection similar to our physical homes.  However, that “home” is a block of ones and zeroes stored somewhere on someone’s computer.  As a consequence, some of our most private information is sent to third parties and held far away on remote network servers.  A Twitter user may think that the same “home” principle may be applied to their Twitter account. When in reality the user is sending information to the third party, Twitter.  At the same time the user is also granting a license for Twitter to distribute that information to anyone, any way and for any reason it chooses.  In United States v. Lifshitz, (369 F3d 173 [2d Cir2004] ), the Second Circuit held that individuals do not have a reasonable expectation of privacy in internet postings or e-mails that have reached their recipients.  “Users would logically lack a legitimate expectation of privacy in materials intended for publication or public posting” (Id. at 190 citing Guest v. Leis, 255 F3d 325, 333 [6 Cir2001] ).

While a Twitter account’s user information and Tweets contain a considerable amount of information about the user, Twitter does not guarantee any of its users complete privacy.  Additionally, Twitter notifies its users that their Tweets, on default account settings, will be available for the whole world to see.  Twitter also informs its users that any of their information that is posted will be Twitter’s and it will use that information for any reason it may have.  The @destructuremal account’s Tweets were, by definition public.  The defendant had knowledge that Twitter was to instantly distribute his Tweets to Twitter users and non-Twitter users, essentially anyone with Internet access.  Indeed, that is the very nature and purpose of Twitter.  Accordingly, this Court finds that the defendant has no standing to move to quash the subpoena

The court also denied the defendant’s motion to intervene and, upon analysis of the Stored Communications Act, concluded that the subpoena was proper (i.e., “‘legal,’ relevant, and not overbroad”).