News, Developments and Practical Advice on eDiscovery in the trenches of Litigation

Discovery Advocate

Home | Discovery Advocate

<em>This blog post is a joint submission with BakerHostetler’s <a href="http://www.DataPrivacyMonitor.com">Data Privacy Monitor</a> blog. </em>

Authored by: <a href="http://www.bakerlaw.com/FernandoABohorquez">Fernando Bohorquez</a>

Last Friday, Twitter’s battle with the Manhattan District Attorney over a subpoena for an Occupy Wall Street protester’s tweets came to an anti-climactic end as the New York appeals court dismissed Twitter’s appeal of a Manhattan Criminal Court’s order to produce the tweets as “<a href="http://www.dataprivacymonitor.com/2013-NY-Misc-2039.pdf">academic</a>.” Twitter’s appeal raised important issues of first impression to the social media community and the non-decision decision appears to have been a lost opportunity to bring some clarity to questions concerning the government’s subpoena power.

A little bit of background first. In early 2012, the Manhattan District Attorney served a subpoena on Twitter for Malcolm Harris’ Twitter account information and tweets. Harris - one of the hundreds of Occupy Wall Street protesters – was charged with disorderly conduct by the Manhattan DA for “occupying” the Brooklyn Bridge. The DA served Twitter with a subpoena under the Stored Communications Act for Harris’ Twitter records in connection with the investigation. Consistent with Twitter’s internal policies, Twitter notified Harris of the subpoena and Harris tried to quash it. In an <a href="http://www.dmlp.org/sites/citmedialaw.org/files/2012-04-20-Order%20Denying%20Harris's%20motion%20to%20quash.pdf">April 20, 2012 order</a>, the Manhattan Criminal Court judge held that Harris had no standing to challenge the subpoena.

Twitter then entered the fray and moved to quash the DA’s subpoena and its motion was similarly denied by the Manhattan Criminal Court in a <a href="http://www.dmlp.org/sites/citmedialaw.org/files/2012-07-02-Order%20Denying%20Twitter's%20Motion%20to%20Quash.pdf">June 30, 2012 decision</a>. The court reiterated its prior holding that only Twitter - not Harris - had standing to challenge the subpoena and that neither the Fourth Amendment of the U. S. Constitution nor the New York Constitution’s analogue provision required a search warrant. Twitter appealed the decision but in the interim had to produce the records to avoid paying stiff contempt sanctions as its stay of the order was denied.

As we quickly - and arguably irreversibly – move towards a world where we share more and more of our lives on social media, it is growing increasingly important to understand how social media companies respond to government requests for our information and what recourse these companies and their customers may have when faced with such requests. Indeed, in <em>U.S v. Jones</em> – the recent Supreme Court case holding that a GPS tracking device required a warrant under the Fourth Amendment – Justice Sotomayor acknowledged the shifting societal norms and rapidly changing technologies noting in her concurrence that “it may be necessary … to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”

Twitter is no stranger to government subpoenas and in its brief history has developed a robust reputation for protecting customer information from government requests for information. According to the <a href="https://www.eff.org/who-has-your-back-2013">Electronic Frontier Foundation</a>, Twitter scored a six out of six in a ranking of how strongly companies protect customer data. A handful of other social media giants and big tech companies got five out of six, including Dropbox, Google and Linkedin, but only Twitter garnered a perfect score.

Twitter’s refusal to provide Harris’ information to the DA was perhaps the most high profile example of the company’s pro-customer stance. But more importantly, the case was primed to raise at least two important legal questions on appeal:

(1) Whether Twitter users like Harris have standing under the Stored Communications Act (SCA) and the U.S. Constitution to move to quash government subpoenas for their Twitter records; and

(2) Whether the DA’s subpoena for Harris’ non-publicly available tweets violated the Fourth Amendment, i.e., whether Harris had a reasonable expectation of privacy requiring a search warrant from the government as opposed to a civil subpoena under the SCA (for a quick related refresher, SCA discovery basics were <a href="http://www.discoveryadvocate.com/2012/10/25/is-social-media-discoverable-stick-to-the-basics-part-iii-other-limitations-on-discovery/">previously discussed here</a>).

On May 17, 2013, the NY appellate court decided to pass on answering these questions as moot because Twitter had already produced Harris’ records. Facing contempt sanctions for failure to comply with the Manhattan Criminal Court Order, Twitter not only appealed the Criminal Court’s decision, but also sought to stay the proceedings while the appeal was pending. The Appellate court, however, <a href="http://www.dmlp.org/sites/dmlp.org/files/2012-09-27-Article%2078%20Order.pdf">denied the stay application on September 27, 2012</a>. Twitter produced the materials last fall to avoid paying substantial monetary fines.

To be sure, the Appellate court’s decision was somewhat preordained and even predicted by Twitter itself. In its opposition to show cause before the Criminal Court as to why it should not be fined for contempt for not producing the records, Twitter argued that being forced to produce Harris’ tweets before resolution on appeal would render the issues moot and prevent a full and fair adjudication of the Criminal Court’s order. Unfortunately for social media companies and their customers looking for clarity and guidance on the scope of the government’s subpoena power, that is exactly what happened.

To get both sides of the argument, we recommend that you read the Criminal Court’s June 30, 2012 Order available <a href="http://www.dmlp.org/sites/citmedialaw.org/files/2012-07-02-Order%20Denying%20Twitter's%20Motion%20to%20Quash.pdf">here</a> and Twitter’s appellate brief of that decision <a href="http://www.dmlp.org/sites/citmedialaw.org/files/2012-08-27-Twitter%20Appeallate%20Brief.pdf">here</a>.

Twitter v. Manhattan DA Fight Unfortunately Ends with a Whimper