Occupy Twitter

What happens when the Occupy Wall Street movement and Twitter meet in a courtroom? In a recent New York criminal case, the answer is that a motion to quash is denied. An Occupy participant was charged with disorderly conduct for marching on the roadway to the Brooklyn Bridge. The prosecutor anticipated that as part of his defense, the defendant would argue that police had led or escorted him to the roadway. Apparently believing that the defendant’s tweets might disprove that defense, the prosecutor issued a subpoena to Twitter. According to its terms of use, Twitter notifies users of the subpoena, but doesn’t do anything else. In this case, however, once the defendant filed a motion to quash, Twitter announced that it would await the court’s decision before releasing any material. The Occupier did not have a lot of luck. The court first determined that he lacked standing to proceed with the motion. The subpoena wasn’t issued to him, and the court found that he lacked any proprietary or privacy interest in the information. Again, Twitter’s terms, which claim a world wide, exclusive royalty free license to use the information, ended any claim of a proprietary interest. And Twitter’s notice to its users that “[w]hat you say on Twitter may be viewed around the world instantly” eliminated any viable privacy claim. But even though it found the Occupier lacked any proprietary or privacy interest in the tweets, the court applied the federal Stored Communication Act. That Act prohibits disclosure of stored electronic communications absent a good faith court order. Here, the court found that the prosecutor had a legitimate need for the tweets given the anticipated defense. So, the lesson is that Twitter is not exactly like Vegas – what happens there, apparently doesn’t necessarily stay there.