You may recall a recent post on this blog entitled: Subpoena Twitter Accounts – New York Court Says “Yes!”. In that lengthy post, I described the procedural history of People v. Harris, Case No. 2011NY080152, 2012 WL 1381238 (N.Y Crim Ct. Apr. 20, 2012), in which the court denied the defendant’s attempt to quash a subpoena on grounds that: (1) defendant did not have standing for the motion to quash because criminal defendants (in New York at least) do not have standing to quash a subpoena issued to a third party (the court analogized to prior rulings regarding subpoenas to banks); and (2) the defendant didn’t have the right to “intervene” in the action between the government and Twitter in order to challenge the subpoena. With that in mind, here are the more interesting aspects of the decision.
Well, ultimately, the trial court refused to quash the subpoena and ordered Twitter to turn over the relevant tweets. Twitter and the defendant appealed but, despite pending appeals, on Friday Twitter handed over an Occupy Wall Street protestor’s tweets to a New York criminal court judge. This comes after months of attempts by the social networking company to fight the subpoena from prosecutors by claiming that that micro-blog posts were private conversations. So it appears that the dispute over the subpoena has now ended. In case you don’t recall all of the issues at play, re-read my prior post. Here are a few of the highlights.
In case you don’t recall the case, New York had subpoenaed particular tweets of an individual who had participated in the Occupy Wall Street protests. The government subpoenaed all tweets from 9/15/11 to 12/31/11 and the associated email address for the @destructuremal account. Twitter informed @destructuremal, who vowed to fight the subpoena and Twitter told the government it would not comply until @destructuremal’s challenge had been resolved.
The trial court, relying heavily on Twitter’s Terms of Service (“TOS”), recognized that “checking the box” was sufficient to invoke the terms:
The court disregarded the “reasonable expectation of privacy” argument.” This court finds that defendant’s contention that he has privacy interests in his Tweets to be understandable, but without merit. Part of the Terms agreement reads: “The Content you submit, post, or display will be able to be viewed by other users of the Services and through third party services and websites. The size of the potential viewing audience and the time it can take to reach that audience is also no secret, as the Terms go on to disclose: What you say on Twitter may be viewed all around the world instantly … [t]his license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same.”
The Take-Away: Twitter has seemingly conceded the arguments that the defendant had no proprietary interest in his Tweets and that, based on Twitter’s TOS, “the Tweets the defendant posted were not his.” By dismissing its appeals, Twitter also seemingly recognized that the defendant had no reasonable expectation of privacy in his Tweets.
There you have it. If you were waiting to subpoena Twitter while this appeal got sorted out, your wait is over. Maybe Twitter was looking for better facts for its appeal or maybe Twitter has recognized that it is unlikely to prevail in objecting to subpoenas.