Joseph E. Gallo]
The Criminal Court of the City of New York recently addressed whether Twitter, Inc. (Twitter) users have standing to challenge a third-party disclosure request of Twitter content, and whether a court order subpoenaing Twitter for user information violated any federal or New York State law.
Twitter sought to quash a subpoena issued by the New York County District Attorney’s Office in connection with a criminal case against a defendant, Malcolm Harris, who was charged with disorderly conduct. Prosecutors expected the information sought would provide evidence that contradicts Harris’s expected defense, and includes both content data in the form of tweets and account information.
The court held that Twitter users do not have standing to challenge a third-party disclosure request. Twitter argued that a decision to deny defendant standing would place an undue burden on Twitter by forcing it to choose between either providing user communications or account information in response to all subpoenas or moving to quash each subpoena themselves. The court found this unpersuasive, noting that every third party respondent to a subpoena has this burden. The court also noted that because tweets are made available to the public and online, the defendant has no proprietary interest in the information. Thus, the court held that tweets are not analogous to e-mails for purposes of a subpoena.
Additionally, the court held that subpoenaing Twitter did not violate any federal or state law, provided certain content was obtained only after the issuance of a search warrant. First, the court examined the application of the Fourth Amendment to a court order subpoenaing Twitter information. Noting that the defendant had purposely broadcast his Twitter information to the public, the court found no physical intrusion into the defendant’s protected area. Further, the court held that there was no subjective expectation of privacy that society recognizes as reasonable in Twitter information. Because the Fourth Amendment does not protect information revealed by third parties, publicly posted content on the internet is not subject to a reasonable expectation of privacy.
Second, the court examined the application of the Stored Communications Act (SCA). Recognizing that a court order for disclosure shall only be issued if the information sought is relevant and material to an ongoing criminal investigation, the court found that the electronic communication sought was valid. The district attorney sought both content information and non-content information in connection with the case. The SCA allows the subpoena of non-content information, but requires that any content information in “temporary electronic storage” for 180 days or less must be obtained with a search warrant. The court held that all non-content information, and any content information outside the 180 day window were covered by the court order, but any content information within the window would not be granted until a search warrant was obtained.
Finally the court examined whether under New York state law there was any reason to deny the court order, and found none. Accordingly, the court ordered Twitter to disclose information relevant to this case.
People v. Harris, No. 2011 NY 080152 (N.Y. Crim. Ct. June 30, 2012).