Court Rules Criminal Defendant’s Twitter Records, Including Tweets, Subject to Production

People v. Harris, No. 2011NY080152 (N.Y. Crim. Ct. 2012)

In a highly anticipated ruling, New York Judge Matthew A. Sciarrino Jr. has entered an order requiring Twitter Inc. to respond to a subpoena from the District Attorney’s Office and to produce both “non-content” and “content” information associated with the alleged account of criminal defendant Malcolm Harris.  Twitter had moved to quash the subpoena after being ordered to comply following the court’s determination that Mr. Harris lacked standing to quash the subpoena himself.

(The court’s prior ruling regarding the defendant’s lack of standing and Twitter’s subsequent motion to quash were previously discussed on this blog here and here.)

In this opinion, the court addressed two primary issues: 1) Twitter users’ standing to challenge a third-party disclosure request and 2) whether compelled production of the records at issue (including Tweets) would violate any federal or state laws.

As to the first issue, the court held fast to its earlier determination that the defendant had no standing to challenge the subpoena himself and rejected Twitter’s arguments that such a conclusion placed an unreasonable burden upon it because it was therefore obligated to either respond to all subpoenas or to attempt to vindicate its users’ rights by moving to quash the subpoenas itself.  Specifically, the court explained that such a burden was placed on every third party respondent to a subpoena and could not be used to create standing for a defendant “where none exists” and later opined that “it does not take much to search and provide the data to the court.”  The court also noted that the Stored Communications Act specifically contemplated the service provider’s standing to challenge an order issued pursuant to it.  Next, the court revisited the question of defendant’s reasonable expectation of privacy and once again concluded there was none: “There can be no reasonable expectation of privacy in a tweet sent around the world.”  The court further analogized tweeting to shouting out the window in front of witnesses on the street—who could of course be compelled to testify about what was yelled—and reasoned that as to today’s “online, information superhighway,” third party providers like Twitter were like those witnesses.

The court also determined that the order compelling production did not violate federal or state law.  Addressing the assertion that such an order would violate the Fourth Amendment, the court distinguished the present case from recent cases involving a “physical intrusion” (e.g. secretly attaching a GPS system to a vehicle) and established that there was no expectation of privacy in information revealed to third parties.  “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.”  Regarding the Stored Communications Act, the court likewise determined that the requested disclosures were allowed, save the information related to December 31, 2011, which would require a warrant because it was less than 180 days old.  The court also concluded there was no violation of state law.

Concluding its opinion, the court acknowledged the evolving state of social medial and the surrounding law:

The world of social media is evolving, as is the law around it. Society struggle with
policies, whether they are between student and teacher (NYC Department of Education, NYC Department of Education Social Media Guidelines), or the right of a company to examine an applicant’s Facebook page as part of the interview process (Bill Chappell, State Approves Bill to Ban Employers From Seeking Facebook Login Info,  As the laws, rules and societal norms evolve and change with each new advance in technology, so too will the decisions of our courts. While the U.S. Constitution clearly did not take into consideration any tweets by our founding fathers, it is probably safe to assume that Samuel Adams, Benjamin Franklin, Alexander Hamilton 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).  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.  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.

Accordingly, Twitter was ordered to respond to the subpoena as issued, except as to the information from December 31, 2011, for which a warrant was required.  The information was to be produced for in camera inspection by the court, with relevant portions to be provided to the District Attorney.

A copy of the court’s order is available here.

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