949 N.Y.S.2d 590
N.Y. City Crim. Ct.2012Background
- Twitter seeks to quash a January 26, 2012 subpoena issued to Twitter by the NY County DA; the subpoena sought the defendant Harris's Twitter account information and tweets for Sept 15–Dec 31, 2011.
- Harris was charged with disorderly conduct for allegedly marching on the Brooklyn Bridge.
- Twitter was confronted with court orders to disclose user information and tweets; the April 20, 2012 order required production for in camera review.
- Twitter was served with the April 20, 2012 order and the January 26, 2012 subpoena; Twitter moved to quash and did not comply with the order.
- The court previously held Harris had no proprietary interest/standing to quash the subpoena; Twitter filed a later challenge to the April 20, 2012 order.
- The court ultimately granted the motion in part and denied in part, ordering disclosure of non-content and content information (Sept 15, 2011–Dec 30, 2011) with the Dec 31, 2011 tweets limited to a search warrant.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing of Twitter users to challenge third-party disclosures | Twitter argues users have standing under the Terms of Service to quash | Harris had no proprietary interest; standing to quash lies with user | Partly granted: Twitter has standing to challenge non-content information? (see nuance)? |
| Fourth Amendment/SCA coverage of public tweets and privacy expectations | Public posting has no reasonable expectation of privacy; SCA applies based on content vs non-content | No physical intrusion; tweets are publicly broadcast; privacy rights limited | No Fourth Amendment intrusion; tweets lack reasonable expectation of privacy; SCA governs non-content vs content with warrant for Dec 31, 2011 tweets. |
| Scope of court order and warrant requirements under SCA and NY law | Order covers non-content and some content; broader scope sufficient to aid investigation | Content in electronic storage over 180 days requires warrant; access to Dec 31, 2011 tweets needs warrant | Order upheld for non-content and older content; Dec 31, 2011 tweets require a search warrant. |
| Compliance and procedure regarding disclosure | Production to court for in camera review acceptable to protect privacy | Production to court is appropriate; ensure impartiality by seeking warrant from another judge | Order to disclose with in camera review to DA and defense; consider impartiality concerns in warrant issuance. |
Key Cases Cited
- United States v. Miller, 425 U.S. 435 (1976) (no expectation of privacy in information shared with third parties)
- Kyllo v. United States, 533 U.S. 27 (2001) (no privacy in information revealed to common surveillance; reasonable expectation context)
- United States v. Jones, 565 U.S. 945 (2012) (2012) (GPS tracking and physical intrusion analysis; separate from public postings)
- Warshak v. United States, 631 F.3d 266 (6th Cir. 2010) (email privacy; distinguishable from public tweets; stronger protection for private communications)
- In re Verizon Internet Servs., Inc., 257 F. Supp. 2d 244 (S.D.N.Y. 2003) (standards for third-party data disclosure; undue burden considerations)