Twitter attorneys are warmed up and ready to spar over a New York judge’s decision on whether or not prosecutors have the right to subpoena the social media company for Malcolm Harris’ user account information. An Occupy Wall Street protester, Malcolm Harris was accused of disturbing the peace on October 1, 2011. Judge Matthew A Sciarrino, Jr. – a self-styled “social media expert” (who was disciplined in 2009 for trying to “friend” lawyers on Facebook) – ruled that neither the Twitter account holder nor the social media service could quash a subpoena issued by the DA’s office. Those in support of Harris argue that Sciarrino’s decision flies in the face of established United States’ legal traditions regarding anonymous free speech.
Facts of the Case
According to prosecutors, On October 1, 2011, Malcolm Harris – Twitter handle @destructuremal – violated the law by disrupting traffic on the Brooklyn Bridge. As a result, Harris is being brought up on charges. The District Attorney’s office believes Malcolm’s tweets – both public and deleted – are necessary to mount of a proper defense.
After receiving the subpoena on January 26, 2012, Twitter notified Mr. Harris on January 30, 2012 of the request. Harris informed Twitter representatives that he planned to file a motion to quash the subpoena; the social media network indicated they would not comply with the request until the court ruled on Harris’ motion.
Harris’ Attempt To Get The Subpoena Quashed Denied
In April of this year, Judge Matthew A. Sciarrino, Jr. ruled on Harris’ motion. While Sciarrino acquiesced that NY courts have yet to rule whether a criminal defendant can quash a subpoena served to a social network, he evoked a 1976 SCOTUS decision (United States v. Miller) which established that bank records are the property of a bank and that an account holder can’t assert ownership or possession over a bank’s records.
Sciarrino also cited the second circuit court decision in United States v. Lifshitz (2004) which concluded that “individuals do not have a reasonable expectation of privacy in Internet postings or e-mails that have reached their recipients.” To back-up this point, Sciarrino highlighted the fact that Twitter’s own Terms of Service read:
By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed)
As such, Sciarrino argued that by agreeing to the terms of service, users are aware that their words will be “quickly broadcast…around the world,” and therefore should have no expectation of twitter privacy if their account is set to public. He pounded home his point by saying:
Every single time the defendant used Twitter’s services the defendant was granting a license for Twitter to use, display and distribute the defendant’s Tweets to anyone and for any purpose it may have. Twitter’s license to use the defendant’s Tweets means that the Tweets the defendant posted were not his. The defendant’s inability to preclude Twitter’s use of his Tweets demonstrates a lack of proprietary interests in his Tweets.
Malcolm Harris also said that his tweets had nothing to do with the disorderly conduct charge, and therefore shouldn’t be needed by the prosecutors. The judge, however, averred that the DA needed the Twitter records in order to refute the defendants anticipated defense.
After Malcolm Harris failed to get the subpoena quashed, Twitter stepped up to the plate and took their turn at bat challenging the subpoena. Sciarrino denied Twitter’s motion to quash, as well. Twitter, however, announced they would file an appeal to the ruling.
So now we wait to see what comes next in this important test case for online privacy and social media. For as the American Civil Liberties Union pointed out, “What is surprising is that the court continued to fail to grapple with one of the key issues underlying this case: do individuals give up their ability to go to court to try to protect their free speech and privacy rights when they use the Internet? [T]he answer has to be no.”