Earlier this week, Twitter appealed a New York state judge’s ruling that required the company to produce an Occupy Wall Street protestor’s tweets, email address, and certain subscriber information. The trial court judge had reasoned that the public nature of Twitter meant that the defendant lacked privacy interests in his tweets and that the government’s request satisfied the requirements of the Stored Communications Act. Moreover, the trial court held that the protester lacked standing to challenge the subpoena. For more detail about the trial court’s ruling, see Inside Privacy’s previous coverage.
Twitter’s appeal consists of six primary arguments that fall within two key issues. First, Twitter makes several arguments regarding why the protestor has standing under New York law and the SCA to challenge the subpoena issued to Twitter. According to Twitter, New York law grants the protester standing because he has a proprietary interest in his tweets, as established in Twitter’s Terms of Service. And the SCA provides standing under 18 U.S.C. § 2704(b), which allows a user who receives notice of a subpoena for account records to “file a motion to quash such subpoena . . . in the appropriate . . . state court.”
Second, Twitter argues that the protester’s tweets are protected by the Fourth Amendment to the U.S. Constitution and Article I, § 12 of the New York Constitution. Because the government cannot publicly access the tweets, Twitter claims, the protester maintains a reasonable expectation of privacy in them. (The government acknowledged that the tweets are no longer visible on the Twitter platform. It is unclear whether the tweets were deleted or are no longer visible for some other reason, such as that only the 3,200 most recent tweets remain visible.) Moreover, according to Twitter, even if the tweets are publicly available, case law suggests that public information that allows law enforcement to draw mere inferences about a citizen’s thoughts and associations is entitled to Constitutional protection.
The appellate brief is available here.