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 https://twitter.com/tos).
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 http://twitter.com/privacy).
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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