In a hashtag-heavy opinion, a New York judge “#denied” an Occupy Wall Street protester’s motion to quash a subpoena to Twitter for his account records.
Twitter informed the protester, Malcolm Harris, upon receiving the subpoena and, once he filed his motion to quash, said it would not comply with the subpoena until the motion was decided.
The judge focused on whether Harris – who was arrested during a protest in Brooklyn – had standing to quash a subpoena to a third party, either with or without being granted leave to intervene. He analogized to cases holding that an individual has no right to challenge a subpoena issued to a bank or telephone company for its records because such records belong to the company, not the customer. The court also quoted from Twitter’s terms of service which provide that
By 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).
While a license does not necessarily transfer ownership, the court held that Harris’s agreement to these terms in the course of registering for Twitter membership precluded him from challenging Twitter’s right to “distribute” his records to prosecutors pursuant to a subpoena. “The defendant’s inability to preclude Twitter’s use of his Tweets demonstrates a lack of proprietary interests in his Tweets.”
The widely believed (though mistaken) notion that any disclosure of a user’s information would first be requested from the user and require approval by the user is understandable, but wrong. While the Fourth Amendment provides protection for our physical homes, we do not have a physical “home” on the Internet. What an Internet user simply has is a network account consisting of a block of computer storage that is owned by a network service provider. As a user, we may think that storage space to be like a “virtual home,” and with that strong privacy protection similar to our physical homes. However, that “home” is a block of ones and zeroes stored somewhere on someone’s computer.
An attorney for Harris reportedly said that the Tweets were more analogous to GPS records than bank records. “People’s locations while on the street are generally public, like tweets are, but it’s the accumulation of all that information . . . that the courts have said a subpoena is necessary … I think that’s more analogous to tweets than the bank records are.” But the recent Supreme Court case regarding GPS devices dealt with police placing GPS devices on cars unbeknownst to the drivers – not drivers knowingly broadcasting their locations. Putting that aside, someone with a GPS device in their car or phone expects to be able to get driving directions or local recommendations – not for someone to piece together records to monitor their movements. Someone who tweets, on the other hand, expects to communicate the content of each of those Tweets to others.