Back in January 2012, the New York County District Attorney’s office sent Twitter a subpoena seeking e-mail addresses, tweets and other subscriber information of the account @destructuremal.  The account belongs to an individual who allegedly participated in the Occupy Wall Street protest march on the Brooklyn Bridge on October 1, 2011. The individual, Malcolm Harris, was charged with disorderly conduct.  Harris initially moved to quash the subpoena, but the motion was denied for lack of standing on April 20, 2012.  The New York Criminal Court found that Harris does not have proprietary or possessory interests in the information since Twitter’s terms of service grant Twitter a license to, among other things, use, display and distribute Harris’s information, and that he is therefore not entitled to challenge the subpoena.  In other words, it found that Mr. Harris does not own his tweets.

In response, on May 7, 2012, Twitter filed a motion to quash the order denying Harris’s motion.  The motion challenges the ruling on standing, pointing out that Twitter’s terms of use make plain that users “retain [their] rights to any Content [they] submit, post or display on or through Twitter.”  Twitter notes that the content implicates First Amendment protections as well as protections under the Stored Communications Act, an act regarding the disclosure of electronic records on which the court’s order relies in part.

To further support its assertion that users retain rights in their submissions, Twitter cites to a 2011 decision in New York federal court involving pictures posted on its TwitPic site in the immediate wake of the 2010 earthquake in Haiti.  There, media companies had argued that Twitter’s license to use posted content meant that any user could re-distribute that content.  The court ruled that the license did not preclude a photographer from bringing a copyright infringement action against the companies that copied and distributed the photos.

The court’s April 20th order had also found that Harris had no expectation of privacy in the tweets and information it provided to a third-party.  The prosecutors had argued that the Stored Communications Act (SCA) allowed them to subpoena Twitter without a search warrant.  Twitter disagrees and argues that, without a search warrant, the subpoena compels Twitter to violate Mr. Harris’s Fourth Amendment rights.  Twitter also makes other arguments regarding the requirements of the SCA.

Twitter’s position is ultimately that it is being placed it in the burdensome position of having to provide user information in response to all subpoenas, or else “attempt[] to vindicate its users’ rights” by challenging each subpoena.  As a third-party, it argues, it would often do so without the benefit of knowledge relevant to that challenge.

The case is:  The People of the State of New York v. Malcolm Harris, Docket No. 2011NY080152, in the Criminal Court of the City of New York, County of New York.