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People v. Harris

Criminal Court of the City of New York, New York County

June 30, 2012

The People of the State of New York
Malcolm Harris, Defendant

The Defendant's Attorney: Martin R. Stolar

The People: Cyrus R. Vance, Jr. District Attorney Lee Langston Assistant District Attorney

Amicus Curiae From: Aden J. Fine

Attorney for Amicus Curiae American Civil Liberties Union Marcia Hofmann

Attorneys for Amicus Curiae Electronic Frontier Foundation Paul Alan Levy

Matthew A. Sciarrino Jr., J.

Twitter, Inc. ("Twitter") seeks to quash the January 26, 2012 subpoena issued by the New York County District Attorney's Office and upheld by this court's April 20, 2012 order. That order required Twitter to provide any and all user information, including email addresses, as well as any and all tweets posted for the period of September 15, 2011 to December 31, 2011, from the Twitter account @destructuremal, which was allegedly used by Malcolm Harris. This is a case of first impression, distinctive because it is a criminal case rather than a civil case, and the movant is the corporate entity (Twitter) and not an individual (Harris). It also deals with tweets that were publicly posted rather than an e-mail or text that would be directed to a single person or a select few.

On October 1, 2011, the Defendant, Malcolm Harris, was charged with Disorderly Conduct (Penal Law §240.20 [5]) after allegedly marching on the roadway of the Brooklyn Bridge. On January 26, 2012, the People sent a subpoena duces tecum to Twitter seeking the defendant's account information and tweets for their relevance in the ongoing criminal investigation (CPL 610; Stored Communications Act [18 USC §2703(c)(2)]). On January 30, 2012, Twitter, after conferring with the District Attorney's office, informed the defendant that the Twitter account @destructuremal had been subpoenaed. On January 31, 2012, the defendant notified Twitter of his intention to file a motion to quash the subpoena. Twitter then took the position that it would not comply with the subpoena until the court ruled on the defendant's motion to quash the subpoena and intervened.

On April 20, 2012, this court held that the defendant had no proprietary interest in the user information on his Twitter account, as he lacked standing to quash the subpoena (See CPLR 1012 [a], 1013; People v Harris, __N.Y.S.2d__, 2012 NY Slip Op 22109 [Crim Ct, NY County 2012]). This court ordered Twitter to provide certain information to the court for in camera review to safeguard the privacy rights of Mr. Harris.

On May 31, 2012 David Rosenblatt, a member of Twitter's Board of Directors, was personally served within New York County with a copy of this Court's April 20, 2012 order, a copy of the January 26, 2012 trial subpoena, and a copy of the March 8, 2012 trial subpoena. Twitter subsequently moved to quash the April 20, 2012 court order. To date, Twitter has not complied with this court's order.


Twitter is a public, real-time social and information network that enables people to share, communicate, and receive news. Users can create a Twitter profile that contains a profile image, background image, and status updates called tweets, which can be up to 140-characters in length on the website. [1] Twitter provides its services to the public at large. Anyone can sign up to use Twitter's services as long as they agree to Twitter's terms. Twitter is a Delaware corporation with its principal place of business in California.

The Stored Communications Act ("SCA") (18 USC §2701 et seq.) defines and makes distinctions between Electronic Communication Service ("ECS") versus Remote Computing Service ("RCS"), and content information versus non-content information. ECS is defined as "any service that provides the user thereof the ability to send or receive wire or electronic communication." (See 18 USC §2510[15]). RCS is defined as "the provision to the public of computer storage or processing services by means of an electronic communications system."(see 18 USC § 2711[2]). The Wire Tap Act (18 USC §2510[8]) defines content information as "contents, when used with respect to any wire, oral or electronic communication, includes any information concerning the substance, purport, or meaning of that communication." In contrast, logs of account usage, mailer header information (minus the subject line), list of outgoing e-mail addresses sent from an account, and basic subscriber information are all considered to be non-content information. [2]

While Twitter is primarily an ECS (as discussed in Harris, __N.Y.S.2d__ , at 6), it also acts as a RCS. It collects and stores both non-content information such as IP addresses, physical locations, browser type, subscriber information, etc. and content information such as tweets. The SCA grants greater privacy protections to content information because actual contents of messages naturally ...

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