Friday, May 11, 2012

Property, Privacy and the Twitter Subpoena

On January 26, 2012, the New York County District Attorney’s Office sent “a subpoena duces tecum to . . .Twitter, Inc.”  People v. Harris, __ N.Y.S.2d __, 2012 WL 1381238 (New York City Criminal Court 2012).  The subpoena sought “user information including email address, and Tweets posted for the period of September 15, 2011 to December 31, 2011, for the Twitter account @destructuremal, . . . which is allegedly used by Malcolm Harris.”  People v. Harris, supra. 

According to this opinion, Harris “is alleged to have participated in a # OWS protest march on October 1, 2011”, as a result of which he, “along with several hundred other protesters, were charged with Disorderly Conduct ([New York Penal Law] § 240.20[5]) after allegedly marching on to the roadway of the Brooklyn Bridge.”  People v. Harris, supra.  On January 30, 2012,

after conferring with the District Attorney's office, Twitter informed [Harris] that the Twitter account, @destructuremal, had been subpoenaed.  On January 31, 2012, [he] 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 this court rules on the motion.

People v. Harris, supra. 

Harris then filed a motion “to quash the subpoena in his own right or to intervene in the proceedings to quash the subpoena.”  People v. Harris, supra.  The District Attorney’s office opposed both requests.  People v. Harris, supra.  In ruling on Harris’ motion, the Criminal Court judge addressed two issues:  whether Harris had standing to move to quash the subpoena and, if not, whether he should be allowed to intervene in proceedings to quash it.  People v. Harris, supra. 

As Wikipedia notes, in the law, In U.S. law, “standing” denotes “the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case.”  The judge in this case began his analysis of the issue by noting that while New York courts have not yet decided whether a defendant in a criminal “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”, this scenario can be analogized 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. . . .

In U.S. v. Miller, (425 U.S. 435[1976)], the U.S. Supreme Court held that the bank records of a customer's accounts are `the business records of the banks,’ and the customer `can assert neither ownership nor possession’ of [them]. In New York, the Appellate Division held that, `[b]ank records . . . belong to the bank. The customer has no proprietary or possessory interests in them [and] cannot preclude their production.’ (People v. Doe, 96 A.D.2d 1018 [1983]).

People v. Harris, supra. 

The judge then found that Harris had neither a proprietary nor a privacy interest in his Twitter account information. People v. Harris, supra.  As to the former, he noted that “[i]n order to register the @destructuremal account, Harris had to agree to Twitter’s Terms of Service, which provide, in part, that

`[b]y 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).’

People v. Harris, supra (citing

 The judge then explained that

[e]very single time [Harris] used Twitter's services [he] was granting a license for Twitter to use, display and distribute [his] Tweets to anyone and for any purpose it may have. Twitter's license to use [Harris’] Tweets means that the Tweets [he] posted were not his. [Harris’] inability to preclude Twitter's use of his Tweets demonstrates a lack of proprietary interests in his Tweets.

People v. Harris, supra. 

For similar reasons, he also found Harris did not have a privacy interest in his tweets.  People v. Harris, supra.  The judge noted that “[p]art of the [Twitter] Terms agreement” stated that “`[t]he 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.’” People v. Harris, supra.  He also noted that “Twitter’s Privacy Policy, which governs the collection and use of any information a user provides to Twitter”, says 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.’” People v. Harris, supra (citing 

The judge therefore held that because Harris “had knowledge that Twitter was to instantly distribute his Tweets to . . . essentially anyone with Internet access”, he had “no standing to move to quash the subpoena.”  People v. Harris, supra. 

He then took up Harris’ motion to intervene “in proceedings to quash” the subpoena issued by the District Attorney’s office.  People v. Harris, supra.  As Wikipedia explains, in the law,

intervention is a procedure to allow a nonparty, called intervenor (also spelled intervener) to join ongoing litigation, either as a matter of right or at the discretion of the court, without the permission of the original litigants. The basic rationale for intervention is that a judgment in a particular case may affect the rights of nonparties, who ideally should have the right to be heard.

Harris argued that he was entitled to intervene under either of two provisions of the New York Civil Practice Law and Rules [CPLR]: §§ 1012 and 1013.  People v. Harris, supra. 

CPLR § 1012, which governs intervention of right, states that “upon timely motion” a person “shall be permitted” to intervene in an action when (i) a statute confers an absolute right to do so, (ii) the “representation of the person's interest by the parties is or may be inadequate and the person is or may be bound by the judgment” or (iii) the action “involves the disposition or distribution of, or the title or a claim for damages for injury to, property and the person may be affected adversely by the judgment.” 

CPLR § 1013, which governs permissive intervention, states that “upon timely motion” a person “may be permitted to intervene” when a state statute confers a right to intervene in the discretion of the court, or when the person's claim or defense and the main action have a common question of law or fact.

Harris argued, first, that he was entitled to intervene of right under the second option given in CPLR 1012 because “his interest is not protected because of Twitter's inaction and [he] would be bound by any judgment allowing the subpoenaed information to be delivered to the District Attorney.”  People v. Harris, supra.  The District Attorney’s office argued that § 1012 did not “do not apply to this case, as [Harris] will not be bound by the enforcement of the subpoena on a third party.”  People v. Harris, supra.

The judge agreed with the District Attorney’s office:

The Court finds [Harris] does not have intervention as of right. CPLR § 1012(a) states, `Upon timely motion, any person shall be permitted to intervene in any action . . . (2) when the representation of the person's interest by the parties is or may be inadequate and the person is or may be bound by the judgment. . . .’  In Vantage Petroleum, Bay Isle Oil Co. v. Board of Assessment Review of Town of Babylon, (61 N.Y.2d 695 [1984]), the [New York] Court of Appeals specifically ruled that an applicant for intervention is `bound’ by a judgment in an action, only when a judgment would be res judicata as against the applicant.

While [Harris’] interests may not be adequately represented because of Twitter's inaction, it is clear that [he] will not be bound by any of the principles of res judicata by any ruling in regards to the People's subpoena. [Harris] cannot be bound by the ruling granting the production of information that the People's subpoena seeks, because he is not a party and not in privity with any party in the underlying action. . . . There is no `judgment’ per se as well, the People have not submitted a plenary action seeking a final judgment. . . . This ruling is only to enforce the People's subpoena served upon Twitter.

People v. Harris, supra.

As noted above, Harris also claimed he qualified for permissive intervention under CPLR § 1013.  People v. Harris, supra.  More precisely, he argued that

common questions of law and fact as to the legality of the subpoena, what the subpoena seeks for production, and the proper use of and procedure to obtain the records sought, are present by [Harris’] claims in his motion to quash and the lack of a motion to quash by Twitter.

People v. Harris, supra.  The District Attorney’s office argued, in opposition, that “the action seeking the enforcement of the subpoena on Twitter does not share any common question of law or fact with [Harris’] disorderly conduct charge.”  People v. Harris, supra. 

Once again, the judge agreed with the District Attorney’s office. People v. Harris, supra.  He noted, first, that under CPLR § 1013 a judge can let non-party to intervene in a case when a statute gives the judge the discretion to do so or when “`the person's claim or defense and the main action have a common question of law or fact.’”  People v. Harris, supra.  And he noted that CPLR § 1013 also says that “`[i]n exercising its discretion, the court shall consider whether the intervention will unduly delay the determination of the action or prejudice the substantial rights of any party.’” People v. Harris, supra. 

The judge then ruled in favor of the District Attorney’s office:

The court will not exercise its discretion to permit the defendant to intervene pursuant to CPLR § 1013. [Harris’] arguments lacks any authority to justify the notion that he has a right to challenge the subpoena because the information sought may adversely affect him. `. . . . [s]uch a broad and liberal rule would frustrate the very purpose of any investigation for such investigations always adversely affect someone and would not be necessary if they didn't.” (Matter of Selesnick, 115 Misc.2d 993, 995 [New York Supreme Court, Westchester County 1982] ).

People v. Harris, supra. 

He therefore ordered “that Twitter comply with the January 26, 2012 subpoena that was previously served on their offices within twenty days of receipt of this order”, which is dated April 20, 2102.  People v. Harris, supra. 

The judge also entered another order, which relates to a comment he included earlier in this opinion, when he denied Harris’ motion to intervene.  People v. Harris, supra.  He ended that portion of the opinion with the observation that “it should be noted that during oral arguments [on Harris’ motions] the People consented to allow the materials to be produced to the court for in camera inspection.”  People v. Harris, supra.  The judge therefore also ordered

that the materials be provided to this court for in camera inspection. The relevant portions thereof will be provided to the office of the District Attorney, who will provide copies to the defense counsel as part of discovery. . . .

People v. Harris, supra.   

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