On April 20, Manhattan Criminal Court Judge Sciarrino issued an Order upholding prosecutors’ ability to seek the account information and public tweets of an Occupy Wall Street protestor, Malcolm Harris, which Harris posted both before and after his arrest last fall for disorderly conduct on the Brooklyn Bridge.
Harris was one of about 700 protestors arrested last October for walking in the roadway on the Brooklyn Bridge, despite police warnings not to do so. In January, the Manhattan DA’s office sent a subpoena to Twitter asking for “any and all user information” related to Harris’ account from September 15 to December 31, 2011.
Harris then filed a Motion to Quash arguing, among other things, that the subpoena did not comply with the Electronic Communications Privacy Act (“ECPA”) because it could be interpreted as asking for all private messages between Harris and others, as well as e-mail addresses and phone numbers used by Mr. Harris, web pages he had visited and information about his physical location at various times, information which he argued would require either a warrant or a court order to obtain under ECPA. He also argued that the subpoena sought information about an overbroad period of time, interfered with his privacy and free association rights, and would be used by prosecutors for investigatory purposes beyond just investigating the disorderly conduct violation.
In contrast, prosecutors argued that the Twitter information requested was directly relevant to the violation given that the protestors were aware of police orders not to walk on the roadways, and that the information contained in the Tweets would prove such advance knowledge. They also emphasized that there should be no limit on their ability to obtain publicly sent messages, even ones that were no longer visible because new ones crowded them out.
Judge Sciarrino agreed with the prosecutors. He first held that Harris did not have standing to challenge a subpoena directed at Twitter, not him, noting that the situation was analogous to subpoenaing bank records, which under NY law are considered third-party information for which account owners cannot stop a bank from divulging pursuant to a court order. Judge Sciarrino also pointed to Harris’ acceptance of Twitter’s broad license in its Terms of Use, which essentially provides that all postings made are owned by Twitter, not by the poster, and gives Twitter the right to use and disclose such posts in any way it chooses.
As to the ECPA claims, Judge Sciarrino concluded that the subpoena complied with ECPA’s requirements for obtaining basic subscriber information, and that his Order now provides the appropriate level of process to compel Twitter to disclose the contents of the Tweets, given that the prosecutors have already shown “specific and articulable facts showing that there are reasonable grounds to believe” that the Tweets “are relevant and material to an ongoing criminal investigation.” However, given Mr. Harris’ privacy concerns, Judge Sciarrino noted that he would review the requested material before the Manhattan District Attorney’s Office sees it.
