People v. Harris

• Decision Date: 20 April 2012
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Malcolm HARRIS, Defendant.
• Court: New York Criminal Court

36 Misc.3d 613

945 N.Y.S.2d 505

2012 N.Y. Slip Op. 22109

The PEOPLE of the State of New York, Plaintiff,

v.Malcolm HARRIS, Defendant.

Criminal Court, City of New York,

New York County.

April 20, 2012.

Martin R. Stolar, New York, Attorney for Defendant–Movant.

Lee Langston, Assistant District Attorney, N.Y. County DA's Office, New York, for the People.

MATTHEW A. SCIARRINO JR., J.

The New York County District Attorney's Office seeks to obtain the No. Twitter records of @destructuremal using a # ¹subpoena. The defendant is alleged to have participated in a # OWS protest march on October 1, 2011. The defendant, Malcolm Harris, along with several hundred other protesters, were charged with Disorderly Conduct (P.L. § 240.20[5] ) after allegedly marching on to the roadway of the Brooklyn Bridge. The defendant moved to # quash that subpoena. That motion is # denied.

On January 26, 2012, the People sent a subpoena duces tecum to the online social networking service and microblogging service, Twitter, Inc. (“Twitter”). The subpoena seeks user information including email address, and Tweets posted for the period of September 15, 2011 to December 31, 2011, for the Twitter account @destructuremal, the Twitter account which is allegedly used by Malcolm Harris.

On January 30, 2012, after conferring with the District Attorney's office, Twitter informed the defendant that the Twitter account, @destructuremal, had been subpoenaed.² On January 31, 2012, the defendantnotified Twitter of his intention to file a motion to quash the subpoena. Twitter then took the position that it would not comply with the subpoena until this court rules on the motion.

The defendant moves to quash the subpoena in his own right or to intervene in the proceedings to quash the subpoena. The People oppose the motion to quash and the motion to intervene.

Discussion

Twitter is an online social networking service that is unique because it enables its users to post (“Tweet”), repost (“Retweet”), and read the Tweets of other users. Tweets can include photos, videos, and text-based posts of up to 140 characters.³ Users can monitor, or “follow” other users' Tweets, and can permit or forbid access to their own Tweets. Besides posting Tweets or reposting other users' Tweets, users may also use the more private method to send messages to a single user (“Direct Message”). Each user has a unique username. In order to sign up to be able to use Twitter's services, you must click on a button below a text box that displays Twitter's Terms of Service (“Terms”). ( See https:// twitter. com/ signup). By clicking on a button on the registration web page, you are agreeing to all of Twitter's Terms, including the Privacy Policy ( see https:// twitter. com/ privacy). The Privacy Policy informs users about the information that Twitter collects upon registration of an account and also whenever a user uses Twitter's services. Twitter collects many types of user information, including IP address, physical location, browser type, mobile carrier among other types. By design, Twitter has an open method of communication. It allows its users to quickly broadcast up-to-the-second information around the world. The Tweets can even become public information searchable by the use of many search engines. Twitter's Privacy Policy informs the users that, “[w]hat you say on Twitter may be viewed all around the world instantly.” ( See https:// twitter. com/ privacy). With over 140 million active users and the posting of approximately 340 million Tweets a day ( see http:// blog. twitter. com/), it is evident that Twitter has become a significant method of communication for millions of people across the world.

1. Defendant's Standing to Move to Quash the People's Subpoena

The first issue that must be addressed is whether the defendant has standing to quash the subpoena served upon Twitter.

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 seeking to obtain the defendant's user information and postings.⁴ 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 against the third-party bank. New York law precludes an individual's motion to quash a subpoena seeking the production of the individual's bank records directly from the third-party bank as the defendant lacks standing.⁵( People v. Doe, 96 A.D.2d 1018, 467 N.Y.S.2d 45 [1st Dept. 1983]; People v. DiRaffaele, 55 N.Y.2d 234, 448 N.Y.S.2d 448, 433 N.E.2d 513 [1982] ). In United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 [1976], the United States Supreme Court held that the bank records of a customer's accounts are “the business records of the banks,” and that the customer “can assert neither ownership nor possession” of those records. In New York, the Appellate Division held that, “[b]ank records, although they reflect transactions between the bank and its customers, belong to the bank. The customer has no proprietary or possessory interests in them. Hence, he cannot preclude their production.” ( People v. Doe at 1018, 467 N.Y.S.2d 45).

Here, the defendant has no proprietary interests in the @destructuremal account's user information and Tweets between September 15, 2011 and December 31, 2011. As briefly mentioned before, in order to use Twitter's services, the process of registering an account requires a user's agreement to Twitter's Terms. Under Twitter's Terms it states in part:

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).

( See https:// twitter. com/ tos).

In order to register the @destructuremal account, the defendant had to have agreed to those very same terms. 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.

This court finds that defendant's contention that he has privacy interests in his Tweets to be understandable, but without merit. Part of the Terms agreement reads: “The Content you submit, post, or display will be able to be viewed by other users of the Services and through third party services and websites.” The size of the potential viewing audience and the time it can take to reach that audience is also no secret, as the Terms go on to disclose:

What you say on Twitter may be viewed all around the world instantly ... [t]his license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same.

( See https:// twitter. com/ tos).

Another section within Twitter's Terms notifies its users of Twitter's Privacy Policy, which governs the collection and use of any information a user provides to Twitter. Most significantly, the Privacy Policy lays out what Twitter's services are designed to do. It is “primarily designed to help you share information with the world ...” because, “[m]ost of the information you provide ... is information you are asking [Twitter] to make public.” ( See http:// twitter. com/ privacy). This information consists of more than just a user's Tweets, it also includes: “the lists you create, the people you follow, the Tweets you mark as favorites or Retweet and many other bits of information.” ( See http:// twitter. com/ privacy).

As a result, public Tweets are even searchable by many search engines. ⁶ At the heart of Twitter are small and rapid bursts of information that can contain a whole lot more than a 140 character long Tweet.⁷ Users' Tweets are what makes Twitter an information network that has the ability to reach out to people in nearly every country in the world.

In Matter of Norkin v. Hoey, 181 A.D.2d 248, 253, 586 N.Y.S.2d 926 [1st Dept. 1992], the Appellate Division held that, “there have been manifestations of an underlying discomfort with the facial unfairness of depriving a bank customer of any recourse, including standing, for disclosure of financial information concerning the customer's personal bank accounts which are widely believed to be confidential.” Like bank records, user information and Tweets can contain sensitive personal information. With a click of the mouse or now with even the touch of a finger, Twitter users are able to transmit their personal thoughts, ideas, declarations, schemes, pictures, videos and location, for the public to view. The widely believed (though mistaken) notion that any disclosure of a user's information would first be requested from the user and require approval by the user is understandable, but wrong. While the Fourth Amendment provides protection for our physical homes, we do not have a physical “home” on the Internet. What an Internet user simply has is a network account consisting of a block of computer storage that is owned by a network service provider. As a user, we may think that storage space to be like a “virtual home,” and with that strong privacy protection similar to our physical homes. However, that “home” is a block of ones and zeroes stored somewhere on someone's computer. As a consequence, some of our most private information is sent to third parties and held far away on remote network servers. A Twitter user may think that the same “home” principle may be applied to their Twitter account. When in reality the user is sending information to the third party, Twitter. At the same time the user is also...