Can the state compel Twitter to produce a criminal defendant’s once (but no longer) public Twitter postings and Twitter log-in information (routinely collected and known only to Twitter) to bolster its case against a defendant? If so, does that defendant have any right to oppose those efforts? Manhattan Supreme Court Judge Matthew Sciarrino, Jr., in a series of court rulings in the prosecution of Occupy Wall Street protester Malcolm Harris, says Twitter must surrender the tweets and Harris must sit on his once busy hands. Mr. Harris was arrested and charged with disorderly conduct in connection with Occupy Wall Street protests that temporarily blocked the Brooklyn Bridge in October 2011. Mr. Harris claims that the “protesters were led…onto the bridge by police and had a reasonable belief that their conduct was authorized.” Hunting for a contradiction, prosecutors requested a subpoena compelling Twitter to provide all of Mr. Harris’ “tweets” between September 15 and December 30, 2012–even seeking the IP addresses, locations, and dates from which Mr. Harris logged in to Twitter. Such information had never been publicly available.
Judge Sciarrino then denied Mr. Harris’ motion to quash the subpoena, and Twitter’s later similar motion to quash, ruling that Mr. Harris had no proprietary interest in his Twitter account information, and therefore had no legal standing to weigh in on the matter, and ruling that because Mr. Harris had revealed the information to third parties (the public in the case of his postings, and Twitter, in the case of his log in data), he had no reasonable expectation of privacy in any of that information. Joining the fight, the ACLU argued that Mr. Harris should be able to formally oppose the subpoena because it implicates his free speech and privacy rights under the First and Fourth Amendments. It argued that the subpoena calling for the production of detailed information about Mr. Harris’ whereabouts over a three-month period, would have a “chilling effect” on his and countless others’ Internet communications, and that he did have a reasonable expectation of privacy in the log-in data because giving that data to Twitter was not truly “voluntary” in any meaningful way. Not persuaded, Judge Sciarrino ordered Twitter to produce the records. Safe to say most people will be surprised to learn that they have no procedural right to challenge a government subpoena calling for information about their words, their whereabouts and their activities. // Michael Racette
