People v. Harris

• Decision Date: 30 June 2012
• Citation: 2012 N.Y. Slip Op. 22175,36 Misc.3d 868,949 N.Y.S.2d 590,40 Media L. Rep. 2038
• Parties: The PEOPLE of the State of New York v. Malcolm HARRIS, Defendant.
• Court: New York Criminal Court

36 Misc.3d 868

949 N.Y.S.2d 590

40 Media L. Rep. 2038

2012 N.Y. Slip Op. 22175

The PEOPLE of the State of New York

v.Malcolm HARRIS, Defendant.

Criminal Court, City of New York,

New York County.

June 30, 2012.

Cyrus R. Vance, Jr., District Attorney, by Lee Langston, Assistant District Attorney, New York County District Attorney's Office, New York, for the People.

Martin R. Stolar, New York, for defendant.

Aden J. Fine, New York, Amicus Curiae.

Marcia Hofmann, San Francisco, CA, for Amicus Curiae American Civil Liberties Union.

Paul Alan Levy, Public Citizen Litigation Group, Washington, D.C., for Amicus Curiae Electronic Frontier Foundation.

MATTHEW A. SCIARRINO JR., J.

Twitter, Inc. (“Twitter”) seeks to quash the January 26, 2012 subpoena issued by the New York County District Attorney's Office and upheld by this court's April 20, 2012 order. That order required Twitter to provide any and all user information, including email addresses, as well as any and all tweets posted for the period of September 15, 2011 to December 31, 2011, from the Twitter account @destructuremal, which was allegedly used by Malcolm Harris. This is a case of first impression, distinctive because it is a criminal case rather than a civil case, and the movant is the corporate entity (Twitter) and not an individual (Harris). It also deals with tweets that were publicly posted rather than an e-mail or text that would be directed to a single person or a select few.

On October 1, 2011, the Defendant, Malcolm Harris, was charged with Disorderly Conduct (Penal Law § 240.20[5] ) after allegedly marching on the roadway of the Brooklyn Bridge. On January 26, 2012, the People sent a subpoena duces tecum to Twitter seeking the defendant's account information and tweets for their relevance in the ongoing criminal investigation (CPL 610; Stored Communications Act [18 USC § 2703(c)(2) ] ). On January 30, 2012, Twitter, after conferring with the District Attorney's office, informed the defendant that the Twitter account @destructuremal had been subpoenaed. On January 31, 2012, the defendant notified 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 the court ruled on the defendant's motion to quash the subpoena and intervened.

On April 20, 2012, this court held that the defendant had no proprietary interest in the user information on his Twitter account, as he lacked standing to quash the subpoena ( SeeCPLR 1012[a], 1013; People v. Harris, 36 Misc.3d 613, 945 N.Y.S.2d 505 [Crim. Ct., N.Y. County 2012] ). This court ordered Twitter to provide certain information to the court for in camera review to safeguard the privacy rights of Mr. Harris.

On May 31, 2012 David Rosenblatt, a member of Twitter's Board of Directors, was personally served within New York County with a copy of this Court's April 20, 2012 order, a copy of the January 26, 2012 trial subpoena, and a copy of the March 8, 2012 trial subpoena. Twitter subsequently moved to quash the April 20, 2012 court order. To date, Twitter has not complied with this court's order.

Discussion:

Twitter is a public, real-time social and information network that enables people to share, communicate, and receive news. Users can create a Twitter profile that contains a profile image, background image, and status updates called tweets, which can be up to 140–characters in length on the website. ¹ Twitter provides its services to the public at large. Anyone can sign up to use Twitter's services as long as they agree to Twitter's terms. Twitter is a Delaware corporation with its principal place of business in California.

The Stored Communications Act (“SCA”) (18 USC § 2701 et seq.) defines and makes distinctions between Electronic Communication Service (“ECS”) versus Remote Computing Service (“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.” ( See18 USC § 2510[15] ). RCS is defined as “the provision to the public of computer storage or processing services by means of an electronic communications system.” ( see18 USC § 2711[2] ). The Wire Tap Act (18 USC § 2510[8] ) defines content information as “contents, when used with respect to any wire, oral or electronic communication, includes any information concerning the substance, purport, or meaning of that communication.” In contrast, logs of account usage, mailer header information (minus the subject line), list of outgoing e-mail addresses sent from an account, and basic subscriber information are all considered to be non-content information.²

While Twitter is primarily an ECS (as discussed in Harris, 945 N.Y.S.2d 505, at 6), it also acts as a RCS. It collects and stores both non-content information such as IP addresses, physical locations, browser type, subscriber information, etc. and content information such as tweets. The SCA grants greater privacy protections to content information because actual contents of messages naturally implicate greater privacy concerns than network generated information about those communications.³

1. Twitter Users and Standing to Challenge Third–Party Disclosure Request

Twitter argues that users have standing to quash the subpoena. The issue is whether Twitter users have standing to challenge third-party disclosure requests under the terms of service that existed during the dates in question. In Harris,( id. at 7) the New York City Criminal Court held that a criminal defendant did not have standing to quash a subpoena issued to a third-party online social networking service because the defendant has no proprietary interest. The court's decision was partially based on Twitter's then terms of service agreement. After the April 20, 2012 decision, Twitter changed its terms and policy effective May 17, 2012. The newly added portion states that: “You Retain Your Right To Any Content You Submit, Post Or Display On Or Through The Service.” ( See Twitter, Terms of Service, https:// twitter. com/ tos/ [accessed June 11, 2012] ).

Twitter argues that the court's decision to deny the defendant 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 its users' rights by moving to quash these subpoenas itself. However, that burden is placed on every third-party respondent to a subpoena ( see In re Verizon, 257 F.Supp.2d 244, 257–258 [2003];United States v. Kennedy, 81 F.Supp.2d 1103, 1110 [2000] ) and cannot be used to create standing for a defendant where none exists.

The Stored Communications 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. ( Emphasis added ).

In the defense motion they also reference a concurrence by J. Sotomayor who said that “it may be necessary for the court to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties” ( see 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.⁴ The court order is not unreasonably burdensome to Twitter, as it does not take much to search and provide the data to the court.⁵ 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 [Saratoga County Ct. 1980] ).

Consider the following: a man walks to his window, opens the window, and screams down to a young lady, “I'm sorry I hit you, please come back upstairs.” At trial, the People call a person who was walking across the street at the time this occurred. The prosecutor asks, “What did the defendant yell?” Clearly the answer is relevant and the witness could be compelled to testify. Well today, the street is an online, information superhighway, and the witnesses can be the third party providers like Twitter, Facebook, Instragram, Pinterest, or the next hot social media application.

2. The Court Order, Federal Law and New York State Law

The second issue is whether the court order was a violation of the Fourth Amendment, the Federal Stored Communications Act, or any other New York law.

The Fourth Amendment

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 a defendant's reasonable expectation of privacy. ( SeeUnited States v. Jones, 132 S.Ct. 945, 950 [2012];Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 [2001].) In Jones id. at 949, the U.S. Supreme Court held that the government's installation of a Global Positioning System (“GPS”) tracking device on a target's vehicle to obtain information was a physical intrusion on a constitutionally protected area. In People v. Weaver, 12 N.Y.3d 433, 882 N.Y.S.2d 357, 909 N.E.2d 1195 [2009] the New York Court of Appeals held that the placing of a GPS tracking device inside the bumper of the defendant'svehicle, by a state police investigator, was a physical intrusion. However, in this case there was no physical intrusion into the defendant's Twitter account. The defendant had purposely broadcast to the entire world into a server 3,000...