Government May Subpoena Tweets and User Info

Tweets along with the tweeter’s email address and other user information may be subpoenaed by the government under the Stored Communications Act, a New York criminal court judge found.

The New York District Attorney’s Office issued a subpoena to Twitter in connection with a disorderly conduct charge against defendant, an Occupy Wall Street protester who was arrested on the Brooklyn Bridge.  The subpoena requested all tweets and associated information, including the user’s IP address, email address, and physical address.  In April 2012, the court ruled that the protester had no proprietary interest in the user information in his Twitter account and lacked standing to quash the subpoena.  When served with the subpoena, Twitter then filed its own motion to quash, arguing that the subpoena imposed an undue burden on Twitter, was a violation of the Fourth Amendment, and violated the Stored Communications Act (SCA).

The court found no Fourth Amendment violation because there was no physical intrusion into the protester’s account and there was no subjective expectation of privacy relating to the tweets.  “There can be no reasonable expectation of privacy in a tweet sent around the world,” the opinion states.  The court likened the tweets to a person shouting out a window in public for all to hear.  “If you post a tweet, just like if you scream it out the window, there is no expectation of privacy.  There is no proprietary interest in your tweets, which you have now gifted to the world,” the court wrote.

As to the undue burden, the court noted that there always is a burden when a third party is subpoenaed as to whether it will respond to the subpoena or attempt to vindicate the rights of the party whose information is being sought.

The court found that the SCA allows the government to obtain a court order if it can articulate facts showing a reasonable ground for the subpoena.  Citing the SCA, the court noted that it permits a court order for other information “relevant” to an ongoing criminal investigation.  Therefore, the subpoena for the tweets and IP addresses, emails, and other information was proper.

The court observed that [i]n dealing with social media issues, judges are asked to make decisions based on statutes that can never keep up with technology.”

“While the U.S. Constitution clearly did not take into consideration any tweets by our founding fathers, it is probably safe to assume that Samuel Adams, Benjamin Franklin, Alexander Hamilton and Thomas Jefferson would have loved to tweet their opinions as much as they loved to write for the newspapers of their day (sometimes under anonymous pseudonyms similar to today’s twitter user names).  Those men, and countless soldiers in service to this nation, have risked their lives for our right to tweet or to post an article on Facebook; but that is not the same as arguing that those public tweets are protected.  The constitution gives you the right to post, but as numerous people have learned, there are still consequences for your public posts.  What you give to the public belongs to the public.  What you keep to yourself belongs only to you,” the opinion observed.

People of the State of New York v. Malcolm Harris, 2012 NY Slip Op 22175, issued June 30, 2012