Earlier this year the Twitter account of Malcolm Harris was subpoenaed following Mr. Harris’ arrest for disorderly conduct in connection with the Occupy Wall Street movement. The prosecution hopes that Mr. Harris’ tweets will contradict his anticipated defense that the police either led or escorted him into the roadway of the Brooklyn Bridge in violation of law. Mr. Harris filed an opposition to the subpoena, citing, among other grounds, the fact that the subpoena was served on Twitter’s San Francisco office via fax.
In his decision in favor of the prosecution, Judge Matthew Sciarrino, Jr. held that “New York courts have yet to specifically address whether a criminal defendant has standing to quash a subpoena issued to a third-party online social networking service seeking to obtain the defendant’s user information and postings . . . . Nonetheless, an analogy may be drawn to the bank record cases where courts have consistently held that an individual has no right to challenge a subpoena issued against the third-party bank.” Judge Sciarrino, Jr. added that “Twitter’s license to use the defendant’s tweets means that the tweets the defendant posted were not his.”
Judge Sciarrino, Jr.’s holding essentially establishes that a Twitter user has no standing to quash a subpoena issued to the company for the disclosure of a user’s tweets. Ironically, in 2009 Judge Sciarrino, Jr. himself was entangled in a social media controversy after becoming Facebook friends with lawyers appearing before him.