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Twitter And Tweets: You Do Not Have A Proprietary Interest In The Material You Post To A Social Media Website


criminal appeals you do not have standing to challenge subpoenas issued to third parties

People v. Harris

36 Misc.3d 868 2012

Criminal Court, City of New York

Decided on: June 30, 2012

You Do Not Have Standing To Challenge Subpoenas Issued To Third Parties

Summary: Defendant was charged with disorderly conduct after allegedly marching on the roadway of the Brooklyn Bridge. The People sent a subpoena duces tecum to a third-party online social networking service provider, Twitter, seeking the Defendant’s account information and tweets for their relevance in the ongoing criminal investigation. Twitter informed the Defendant that his account had been subpoenaed and the Defendant stated his intention of filing a motion to quash the subpoena. Twitter argues that users have standing to quash the subpoena. The New York City Criminal Court held that the Defendant has no propriety interest in the user information on his Twitter account and lacked standing to quash the subpoena.

Defendant argues that his Fourth Amendment right to a reasonable expectation of privacy was violated. The New York City Criminal Court held that there can be no reasonable expectation of privacy in a tweet sent around the world. So long as the third party is in possession of the materials, the court may issue an order for the materials from the third party when the materials are relevant and evidentiary. The New York City Criminal Court affirmed in part and reversed in part.

See Also: Right To Public Trial Limited During Testimony Of Child Sex Abuse Victim

Issue: Whether Twitter users have standing to challenge subpoenas (disclosure requests) to third parties and whether the Defendant’s Fourth Amendment right to a reasonable expectation of privacy was violated.

Holding: The New York City Criminal Court held that a Defendant has no standing to challenge subpoenas to third parties as well as a reasonable expectation of privacy in information voluntarily disclosed to third parties. There can be no reasonable expectation of privacy in a tweet sent around the world. So long as the third party is in possession of the materials, the court may issue an order for the materials from the third party when the materials are relevant and evidentiary to an ongoing criminal investigation.

The New York City Criminal Court also held that the Defendant’s Fourth Amendment Right to an intrusion into his personal property and reasonable expectation of privacy was not violated. The Fourth Amendment protects a Defendant’s account only if the Government violated a subjective expectation of privacy that society recognizes as reasonable.

Facts: Defendant was charged with disorderly conduct after allegedly marching on the roadway of the Brooklyn Bridge. The People sent a subpoena duces tecum to a third-party online social networking service provider, Twitter, seeking the Defendant’s account information and tweets for their relevance in the ongoing criminal investigation. Twitter informed the Defendant that his account had been subpoenaed and the Defendant stated his intention of filing a motion to quash the subpoena. Twitter argues that users have standing to quash the subpoena. The New York City Criminal Court held that the Defendant has no propriety interest in the user information on his Twitter account and lacked standing to quash the subpoena.

Defendant argues that his Fourth Amendment right to a reasonable expectation of privacy was violated. The New York City Criminal Court held that there can be no reasonable expectation of privacy in a tweet sent around the world. So long as the third party is in possession of the materials, the court may issue an order for the materials from the third party when the materials are relevant and evidentiary. The New York City Criminal Court affirmed in part and reversed in part.

 

Legal Analysis: The New York City Criminal Court held that The Stored Communications Act (SCA) defines and makes distinctions between Electronic Communication Service (ECS) versus Remote Computer Services (RCS), and content information versus non-content information. ECS is defined as any service that provides the user thereof the ability to send or receive wire or electronic communication. RCS is defined as the provision to the public of computer storage or processing services by means of an electronic communication system.

Twitter is primarily an ECS. It also acts as a RCS. Twitter collects and stores both non-content information such as IP address, physical locations, browser type, subscriber information and content information such as tweets. Twitter argues that users have standing to quash the subpoena. The New York City Criminal Court held that a criminal Defendant did not have a standing to quash the subpoena issued to a third-party online social networking service because the Defendant has no propriety interest. The court’s decision was partially based on Twitter’s then terms of service agreement. Twitter changed its terms and policies to be read as follows: You Retain Your Right To Any Content You Submit, Post Of Display On Or Through The Service.

Twitter argues that the court’s decision to deny the Defendant’s standing places an undue burden on Twitter. It forces Twitter to choose between either providing user communications and account information in response to all subpoenas or attempting to vindicate the users’ rights by moving to quash these subpoenas itself. However, that burden is placed on every third-party respondent to a subpoena, In re Verizon 257 F.Supp.2d 244, 257-258 2003, and cannot be used to create standing for a Defendant where none exist.

     The Stored Communication Act, 18 USC § 2703(d) states: a court issuing an order pursuant to this section, on a motion made promptly by the service provider, may quash or modify such order, if the information or records requested are unusually voluminous in nature or compliance with such order otherwise would cause an undue burden on such provider. The New York City Criminal Court also reference a concurrence by J Sotomayor who said that it may be necessary for the court to reconsider the premise than an individual has no reasonable expectation of privacy in information voluntarily disclosed to all third parties, United States v. Jones 565 U.S 132 S.Ct.945, 957, 2012.  

Publication to third parties is the issue. Tweets are not e-mails sent to a single party. At best the defense may argue that this is more akin to an e-mail that is sent to a party and carbon copied to hundreds of others. There can be no reasonable expectation of privacy in a tweet sent around the world.  The court is not unreasonably burdensome to Twitter, as it does not take much to search and provide the data to the court. So long as the third party is in possession of the materials, the court may issue an order for the materials from the third party when the materials are relevant and evidentiary, 18 USC § 2703(d); People v. Carassavas, 103 MISC.2d 562, 426 N.Y.S.2d 437 1980.

     Defendant next argues that his Fourth Amendment right was violated. To establish a violation of the Fourth Amendment, the Defendant must show either 1) a physical intrusion onto Defendant’s personal property; or 2) a violation of Defendant’s reasonable expectation of privacy. In this case, there was no physical intrusion into the Defendant’s Twitter account. The Defendant has purposely broadcast to the entire world into a server 3,000 miles away. Therefore, the Defendant’s account was protected by the Fourth Amendment only if the Government violated a subjective expectation of privacy that society recognizes as reasonable.

The Supreme Court has repeatedly held that the Fourth Amendment does not protect information revealed by third parties, United States v. Miller, 425 U.S. 435, 443, 96 S.Ct 1619, 48 L.Ed.2d 71 1976.  Several courts have applied this rationale and held that Internet users do not retain a reasonable expectation of privacy. The New York City Criminal Court held if you post a tweet, just like if you scream out the window, there is no reasonable expectation or privacy. There is no propriety interest in your tweets, which you have now gifted to the world. This is not the same as a private email, a private direct message, a private chat, or any of the other ready available ways to have a private conversation. Those private dialogues would require a warrant based on probable cause in order to access the relevant information.

     The Stored Communication Act’s requirements for a court order states that: A court order for disclosure under subsection (b) or (c) shall be issued only if the Government entity offers specific and articulate facts showing that there are reasonable grounds to believe that the contents of a wire of electronic communication, or the records or other information sought, are relevant and materials to an ongoing criminal investigations. The SCA protects only private communications and allows disclosure of electronic communication when it’s not overboard.

In general, courts have no limitations on the types of information to be disclosed 18 USC § 2703(d). The SCA mandates different standards that the Government must satisfy to compel a provider to disclose various types of information, 18 USC § 2703.

The scope of a subpoena duces tecum is sufficiently circumscribed when: 1) the materials are relevant and evidentiary; 2) the request is specific; 3) the materials are not otherwise procurable reasonably in advance of trial by the exercise of due diligence; 4) the party cannot properly prepare for trial without such a production and inspection in advance of trial and the failure to obtain such an inspection may tend unreasonably to delay the trial; and 5) the application is made in good faith and is not intended as a general “fishing expedition.”  The Constitution gives you the right to post, but as numerous people have learned, there are still consequences for your public posts. Accordingly, the New York City Criminal Court has denied in part and affirmed in part and ordered Twitter to disclose all non-content information and content information from Defendant to be provided for in camera inspection.

 


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