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Inside Privacy Updates on Developments in Global Privacy & Data Security from Covington & Burling LLP

Twitter to Appeal NY Ruling that It Must Hand over Occupy Protestor’s Tweets

Posted in Litigation, Social Media

Twitter has announced that it will appeal a New York state judge’s ruling that the company must hand over an Occupy Wall Street protestor’s tweets to the Manhattan district attorney.  The defendant was charged with disorderly conduct for his participation in a protest march in October 1, 2011.  Following that incident, the district attorney subpoenaed Twitter for the defendant’s tweets over several months in the fall of 2011.  The defendant unsuccessfully challenged the subpoena in trial court, and Twitter is taking up the appeal.    

The trial court judge found that the Fourth Amendment did not apply to the government’s subpoena.  The defendant had no privacy interests in his tweets, the judge held, because of the public nature of the Twitter platform.  Pointing out that the “very nature and purpose of Twitter” is to share messages with a broad online audience, the judge concluded that the “defendant’s contention that he has privacy interests in his Tweets . . . [is] without merit.”

The judge also held that the Stored Communications Act applied to the subpoena, and that the government’s request satisfied the SCA’s requirements:

In order to obtain the court order found in § 2703(d), the People must offer “specific and articulable facts showing that there are reasonable grounds to believe” that the Tweets “are relevant and material to an ongoing criminal investigation.”(18 USC § 2703[d]).  This court finds that the factual showing has been made.  In the response to the defendant’s motion, the People state that the information sought by the subpoena is needed to refute the defendant’s anticipated defense, that the police either led or escorted the defendant into stepping onto the roadway of the Brooklyn Bridge. 

In announcing the company’s decision to appeal the ruling, Twitter counsel Benjamin Lee explained that the trial court result “doesn’t strike the right balance between the rights of users and the interests of law enforcement.”

The trial court’s order in People v. Harris is available here.