Judge Rules That Protester Can’t Oppose Twitter Subpoena
A criminal court judge in Manhattan ruled on Friday that a writer from Brooklyn did not have the standing to oppose a subpoena delivered by prosecutors to Twitter seeking three months of old messages.
The writer, Malcolm Harris, was one of about 700 people arrested in October while walking on the roadway of the Brooklyn Bridge during an Occupy Wall Street march. He was charged with disorderly conduct, a violation. In January, the Manhattan district attorney’s office asked for messages that Mr. Harris had posted between Sept. 15, 2011 – two days before the Occupy protests began – and the end of last year.
Mr. Harris’s lawyer, Martin R. Stolar, filed a motion to quash the subpoena, saying it had not been delivered properly, was overbroad and was issued for an improper purpose.
On Friday, Judge Matthew A. Sciarrino Jr. rejected Mr. Stolar’s argument, writing that Mr. Harris lacked the standing to oppose the subpoena because Twitter’s policies required that he agree to grant the company a “worldwide, non-exclusive royalty-free” right to distribute messages, which are publicly viewable. He labeled “understandable, but without merit” the defendant’s contention that he had a privacy interest in his tweets.
“New York courts have yet to specifically address whether a criminal defendant has standing to quash a subpoena issued to a third-party online social networking service,” the judge wrote, adding: “Nonetheless an analogy may be drawn to the bank record cases where courts have consistently held that an individual has no right to challenge a subpoena issued to a third-party bank.”
Mr. Stolar said that he disagreed with the judge’s reasoning and expected to make a motion to re-argue the case based on a United States Supreme Court ruling in January stating that the use by the police of Global Positioning Systems without a warrant is unconstitutional.
“One’s public location is public, they say, except where accumulated via a GPS device,” Mr. Stolar wrote in an e-mail. “The same analogy could be applied to tweets – they are public except where they are accumulated (on Twitter’s storage devices) and this is more analogous to the situation than the bank records analogy the court has used.”
In papers filed with the court, prosecutors said that they were seeking only messages that Mr. Harris had made public, not private messages sent directly to other Twitter users. Prosecutors wrote that they believed Mr. Harris’s defense would center upon the assertion that he believed he was being permitted by the police to walk on the roadway, but added that they thought old Twitter messages might show otherwise.
“The defendant may have used the account to make statements while on the bridge that were inconsistent with his anticipated trial defense,” wrote Assistant District Attorney Lee Langston.
Mr. Harris wrote a detailed account of his experiences on the bridge and in police custody, titled “A Bridge to Somewhere” that appeared in The New Inquiry.
Mr. Harris has also been a prolific tweeter, sometimes using his destructuremal account to scoff at the subpoena that prosecutors sent to Twitter. At one point in a document filed with the court, prosecutors acknowledged that Mr. Harris’s propensity to post on Twitter had fueled their decision to use a subpoena, as numerous newer messages replaced older ones that had once been visible to the public.
“Because of the heavy volume of defendant’s tweets,” they wrote, “a Twitter search no longer reveals them for the entire time periods in question.”