Prosecutors don’t have to get a warrant to subpoena your tweets, even if you delete them, because they’re public information owned by a third party, a New York judge ruled on Monday. But the lawyer for the Occupy Wall Street protester trying to block a subpoena says the judge mixed up his metaphors in the ruling. Malcolm Harris, who’s been fighting a subpoena of his Twitter account, faces as many as 15 days in jail for disorderly conduct after his arrest on the Brooklyn Bridge last November.
In his decision Monday, Judge Matthew Sciarrino Jr. wrote that there was no precedent in New York for an order to quash a subpoena to a “third-party online social networking service seeking to obtain the defendant’s user information and postings.” But he wrote that “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.” Sciarrino ruled that Harris couldn’t quash the subpoena, but he didn’t necessarily rule that the tweets or other information would be admissible as evidence.
But Martin Stolar, the attorney representing Harris, told The Atlantic Wire on Monday that he would move to re-argue the decision, saying Sciarrino had mixed up his metaphors. “There’s a whole other recent series of decisions from Supreme Court and New York State, about whether or not using a GPS device to track someone uses a warrant. People’s locations while on the street are generally public, like tweets are, but it’s the accumulation of all that information, like someone’s whereabouts, that the courts have said a subpoena is necessary … I think that’s more analogous to tweets than the bank records are.” What would be funny is if Twitter decided to fax over the info, just as the New York District Attorney’s office faxed its original subpoena.