#OccupyTwitter? Tweets Held Subject to Subpoena - Fordham Intellectual Property, Media & Entertainment Law Journal
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#OccupyTwitter? Tweets Held Subject to Subpoena

#OccupyTwitter? Tweets Held Subject to Subpoena

In an interesting turn in the ever-growing realm of e-discovery, a Manhattan Criminal Court Judge Matthew A. Sciarrino, Jr., held that Twitter, Inc., must turn over tweets subpoenaed by prosecutors in a case against an Occupy Wall Street protestor.

The case centers around Malcolm Harris, an OWS disciple who prosecutors charged with disorderly conduct while “occupying” the Brooklyn Bridge last fall, and the tweets he posted that allegedly prove that Harris and 700 other protestors knew they were not allowed to protest on the bridge.

After Judge Sciarrino denied Harris’s motion to quash a subpoena seeking three months’ worth of Harris’s tweets, which prosecutors served on Twitter, not Harris. The judge ruled that Harris lacked standing to challenge the subpoena because Harris does not “own” the data, Twitter does. Twitter then stepped in the case to attempt to save the day—and the validity of its “terms of service,” which states that users own their content posted on Twitter.

Twitter argued that upholding the subpoena would place “an undue burden” on the multi-million dollar company by “forc[ing] Twitter to choose between either providing user communications and account information in response to all subpoenas or attempting to vindicate its users’ rights by moving to quash these subpoenas itself.” The court was not impressed with this argument, finding that is the exact same burden “placed on every third-party respondent to a subpoena.”

Likening tweeting to screaming out of a window–Judge Sciarrino reasoned, “There is no reasonable expectation of privacy for tweets that the user has made public,” and noted that, “Even when a user deletes his or her tweets there are search engines available such as “Untweetable,” “Tweleted” and “Politwoops” that hold users accountable for everything they had publicly tweeted and later deleted.”

However, Twitter did win their argument that Harris’s tweets on or after December 31, 2011, are subject to the federal Stored Communications Act requirement that a search warrant is required to obtain “electronic communications” less than 180 days old. (See 18 § U.S.C. 2703(a)).

Turning the data over to prosecutors could give prosecutors a look at data not within the scope of the subpoenas, such as other users’ replies to Harris’ tweets and information about who follows the defendant’s Twitter feed, @destructuremal. Many civil liberties and electronic privacy advocates, including Twitter, are calling the ruling disappointing.

Perhaps to quell those concerns, Judge Sciarrino ruled that he would review the subpoenaed material first, then turn over the “relevant portions” to prosecutors, rather than putting all the of the data in the prosecutors hands without any filter.

I remember my mother used to tell me to never say anything I wouldn’t want my grandmother to hear. Her adage could not be truer in light of Judge Sciarrino’s ruling… only now it’s not just grandma, but the government, too, who must be considered before hitting send.

(Photo composite by P.C.)

Anne Reilly

Anne Reilly is a 3L at Fordham Law School and an associate editor of the Fordham IPLJ. Prior to attending law school, she toured with Riverdance, as a member of the Irish dance troupe, and received her B.A. in Art History at Columbia University. Anne hopes to pursue a career in litigation with a focus on intellectual property and art law.