December 6, 2012

Judge Finds No Constitutional Violation in Producing Tweets

Twitter must produce tweets and user information of an Occupy Wall Street protester, a judge has ruled, discounting objections from the social media website in a case of first impression.

"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", Criminal Court Judge Matthew Sciarrino Jr., sitting in Manhattan, wrote in People v. Harris, 2011NY080152.

Sciarrino on June 30 ordered the site to produce in chambers Malcolm Harris' user information and tweets from over a more than three-month period—information the Manhattan District Attorney's Office is seeking for its prosecution of a disorderly conduct charged against Harris.

Harris was one of some 700 Occupy Wall Street protesters arrested during an October march across the Brooklyn Bridge.

The district attorney's office subpoenaed Twitter in January seeking user information and tweets from Harris' account between Sept. 15 and Dec. 31.

Prosecutors expect to use the material to counter an anticipated defense argument that police intentionally led marchers onto a non-pedestrian part of the bridge, where they were arrested. Harris knew the police instructions not to block traffic but still did so, prosecutors argued in support of the subpoena.

Sciarrino's latest ruling follows his April 20 decision blocking Harris' own attempts to quash the subpoena. There, the judge held Harris lacked standing, as Harris had no proprietary interest in his account's user information (NYLJ, April 23).

Twitter then filed court papers in May, seeking to quash the subpoena.

Civil liberties groups also filed an amicus curiae in support of Harris, calling the April 20 decision contrary to case law and in violation of Harris' First and Fourth amendment rights. Sciarrino again rejected the constitutional claims.

"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 judge said.

He emphasized that the public postings in question were different from private e-mails, direct messages, chats or other ways to have a private conversation via the Internet.

"Those private dialogues would require a warrant based on probable cause in order to access the relevant information," he observed.

Sciarrino rejected Twitter's arguments that compliance with the subpoena would be "an undue burden," obligating the site to choose between uniform compliance with all subpoenas or constant attempts to quash subpoenas on behalf of users.

"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," Sciarrino wrote.

Though ordering Twitter's compliance for all information between Sept. 15 and Dec. 30, Sciarrino denied their request for Dec. 31 tweets. He said prosecutors would have to obtain a search warrant for those tweets, noting the Stored Communications Act's requirement on disclosure of contents in temporary "electronic storage" for less than 180 days from the date of his decision.

Sciarrino acknowledged the law on social media is "evolving."

He observed that founding fathers like Samuel Adams, Alexander Hamilton, Benjamin Franklin 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)."

But, the judge added, "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."

Chief Assistant District Attorney Daniel Alonso said in a statement, "We are pleased that the court has ruled for a second time that the Tweets at issue must be turned over. We look forward to Twitter's complying and to moving forward with the trial."

New York Law Journal
July 3, 2012
By: Andrew Keshner

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