Non-Party Movant-Appellant. JR., District Attorney of New York County, and I represent Respondent in this

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1 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: FIRST DEPARTMENT THE PEOPLE OF THE STATE OF NEW YORK, -against- Respondent, New York County Criminal Court Docket No. 2011NY Calendar Date: Sept. 6, 2012 MALCOLM HARRIS, Defendant, TWITTER, INC., Non-Party Movant-Appellant. Martin J. Foncello, an attorney duly admitted to practice before the courts of this state, affirms that: 1. I am an Assistant District Attorney, of counsel to CYRUS R. VANCE, JR., District Attorney of New York County, and I represent Respondent in this action. I submit this affirmation in response and in opposition to the application of Non-Party Movant-Appellant Twitter, Inc. ( Twitter ) for a stay of all proceedings at the trial level pending review by this Court (Aff. in Support of Motion for Stay at 2). The factual allegations made are based on information and belief, the sources of which are my review of the records of the District Attorney s Office in connection with this matter and my communications with Assistant District Attorney Lee

2 Langston, the prosecutor responsible for prosecuting the criminal case against defendant Malcolm Harris. All factual allegations in Twitter s application are denied unless expressly admitted in this affirmation. BACKGROUND REGARDING TWITTER 2. As Twitter s website explains, Twitter is a real-time information network based in San Francisco, California. 1 It is powered by its over 140 million active users, 2 who hail from nearly every country in the world. At the heart of Twitter are small bursts of information called Tweets which the company permits its users to disseminate through the company s website and mobile site, and by a variety of third-party applications. A tweet may consist of a photograph, a video file, or a 140-character textual message Twitter accounts are public by default. 4 That is, unless the user has specifically changed his or her account settings to limit who can view the user s tweet, each of the user s messages are visible to anyone. A Public Tweet is open to be viewed not only by all Twitter users, but also by non-users who have found the 1 About Twitter, (last visited 8/31/2012). 2 Twitter for Business, (last visited (8/31/2012). 3 About Twitter, (last visited 8/31/2012); Guidelines for Law Enforcement, (last visited 8/31/2012). 4 Twitter Help Center: The Twitter Glossary, the-twitter-glossary (last visited 8/31/2012) (defining Protected/Private Accounts ). 2

3 message via Google and other internet search engines. 5 A Twitter user may send a private message to another user (i.e., a Direct Message or DM ) or may limit dissemination of the tweet to an approved group of users (i.e., protected tweet ) At issue are public tweets that defendant Harris posted from the period of September 15, 2011 to December 30, 2011, and related account and other information that would help establish the foundational requirement for admitting the publicly-posted messages at Harris s criminal trial. OFFENSE, ARREST, AND HARRIS S MOTION TO DISMISS 5. On October 1, 2011, Harris was among seven hundred individuals arrested on the roadway of the Brooklyn Bridge in conjunction with a march held there as part of the Occupy Wall Street protests. Harris was subsequently charged with Disorderly Conduct, a violation (Penal Law [5]). 6. On or about December 20, 2011, defendant Harris moved in Criminal Court, New York County for the dismissal of the charges in the interest of justice. In pertinent part, Harris suggested that the police engaged in misconduct by having 5 About Public and Protected Tweets, (last visited 8/31/2012); Twitter Help Center: Why is My Twitter Profile in Google Search?, (last visited 9/4/2012). 6 About Public and Protected Tweets, (last visited 8/31/2012); Twitter Help Center: The Twitter Glossary, (last visited 8/31/2012) (defining Direct Message ). 3

4 misled the protestors into an unwitting violation of law; to that end, Harris represented that the protesters were led and escorted on to the bridge by the police and had a reasonable belief that their conduct was authorized (Motion To Dismiss at 4). The Honorable Matthew A. Sciarrino, Jr. subsequently denied that motion. SUBPOENA AND HARRIS S MOTIONS TO QUASH 7. On January 26, 2012, the prosecutor sent a subpoena to Twitter seeking account information with respect to defendant Harris, who was thought to be the user at the Twitter The subpoena also sought the tweets that the user had posted for the period of September 15, 2011 to December 31, The tweets are thought to contain admissions that Harris s violation of New York Law was intentional and/or would undermine the potential trial defense which he previewed in his motion to dismiss. Pursuant to Twitter s Guidelines for Law Enforcement, the subpoena was sent by facsimile to the corporation s offices in San Francisco. The subpoena demanded that Twitter produce the requested information by February 8, Twitter subsequently advised defendant Harris of the People s subpoena. On January 31, 2012, Harris 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 matter was resolved. 4

5 9. On February 6, 2012, defendant Harris filed a motion for an order quashing the subpoena served upon Twitter. Harris contended that the subpoena failed to comply with the federal Stored Communications Act (18 U.S.C ), and state law regarding the issuance of subpoenas and securing the attendance of out-of-state witnesses (CPL and CPL ) (Harris s Motion to Quash at 8-25) On February 22, 2012, the prosecutor filed a response to defendant Harris s motion to quash, arguing, among other things, that Harris lacked standing to challenge the subpoena directed to a third-party and that the subpoena complied with the relevant state and federal laws (People s Response at 14-40). In addition, the prosecutor noted that Twitter had been served by the method encouraged by the company s own guidelines (People s Response at 38). 11. Apparently recognizing that he lacked standing to challenge the subpoena, but that Twitter had such standing, on February 26, 2012, defendant Harris filed a motion for an order permitting him to intervene in proceedings. Although at this point Twitter had not filed a motion to quash, Harris requested that his motion be permitted to stand as if he were an intervening party to the litigation 7 In addition to the statutory claims, defendant Harris generally complained that the subpoena violated his First and Fourth Amendment rights; Harris cited no legal authorities in support thereof and stated that he would brief the matter only if requested to do so by the court (Defendant s Motion to Quash at 26-27). 5

6 (Aff. in Support of Defendant s Motion to Intervene). On March 7, 2012, the People opposed Harris s application. 12. By written decision and order dated April 20, 2012, Judge Sciarrino denied the criminal defendant s motions, holding that Harris lacked standing to challenge the subpoena directly (Decision at 3-6), and that intervention was inappropriate (Decision at 6-8). Believing that the effect of his decision and order would be to so order compliance with the People s subpoena, Judge Sciarrino noted that it was nonetheless his responsibility to ensure that the subpoena was legal, relevant, and not overbroad (Decision at 8 n.8). In that respect, the judge evaluated the subpoena and found that it was compliant with CPL and the Stored Communications Act (Decision at 8-11). The court ordered that Twitter comply with the January 26th subpoena within twenty days of receipt of the order (Decision at 11) On or about April 28, 2012, defendant Harris moved to reargue the denial of his motions to quash and intervene. By decision and order dated May 4, 2012, Judge Sciarrino reaffirmed the April 20th decision and order. The court again 8 At some point after the January 26th subpoena was served, the prosecutor learned that defendant had changed his Twitter username Concerned that this development would frustrate compliance with the subpoena, the prosecutor sent a subpoena to Twitter on March 8, 2012, seeking both subscriber information and all public tweets that defendant had posted under the new username for the periods of September 15, 2011 to December 31, 2011, and February 1, 2012 to February 15, The prosecutor s concern was unfounded, however, as Twitter attributes tweets to the user s account, irrespective of the particular handle the user adopts (Twitter s Appellate Brief at 8 n.2). Accordingly, the March 8th subpoena was not addressed in the court s decision and compliance with that particular request is not now at issue. 6

7 ordered that Twitter produce the records within twenty days of receipt of the April 20th order. TWITTER S MOTION TO QUASH 14. On May 7, 2012, Twitter moved to quash the April 20th order, by which the court had called upon Twitter to produce the information requested in the January 26th subpoena (Twitter s Motion to Quash at 1). Twitter contended that all its users (including Harris) have standing to move to quash subpoenas directed at Twitter (Twitter s Motion to Quash at 3-5). In addition, Twitter contended that the People were constitutionally required to obtain a search warrant to obtain Harris s communications and that the order thus violated the Fourth Amendment (Twitter s Motion to Quash at 5-6). Further, Twitter contended that the subpoena violated the federal Stored Communications Act and that service upon the foreign corporation was defective (Twitter s Motion to Quash at 7-9). 15. Upon receipt of Twitter s motion, Judge Sciarrino set a return date for the People s response, and ruled that no stay of this Court s April 20, 2012 decision is granted or authorized (Decision and Order, dated May 7, 2012). 16. On May 23, 2012, Twitter filed a motion for an order staying enforcement of the April 20th order, and thus production of the information initially requested by the January 26th subpoena, until the Court issues a ruling on 7

8 Twitter s Motion to Quash and Twitter and [Harris] have exhausted their rights to appeal should the motion be denied (Twitter s Notice of Motion to Stay Enforcement). On May 24, 2012, Judge Sciarrino denied that application (J. Sciarrino s , dated 5/24/2012). 17. 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 the April 20th order as well as the prior subpoenas. This served to extinguish Twitter s complaints regarding the method by which the corporation was previously served On June 30, 2012, Judge Sciarrino denied Twitter s motion in part and granted it in part. Rejecting Twitter s argument to the contrary, the court adhered to its April 20, 2012 ruling that the criminal defendant had no standing to move to quash the subpoena (Decision at 3-5). It then held that the April 20th court order did not violate the Fourth Amendment, for the order did not authorize physical intrusion onto anyone s property and defendant Harris had no reasonable expectation of privacy in tweets which he had intentionally published to millions of people via the services of a third party, i.e., Twitter (Decision at 5-7). The order also passed muster under the Stored Communications Act, a ruling which Twitter has not sought to appeal before this Court, with one minor exception: the court modified the order by 9 On June 11, 2012, Twitter filed a motion to quash the May 30th subpoena as well as the prior subpoenas and orders served upon the company. The motion incorporated by reference all the arguments in the initial motion to quash with the exception of the claim that service was defective. 8

9 requiring the People to obtain a search warrant for any tweets posted on December 31, 2011 (Decision at 7-8). Finally, the court concluded that the scope of the April 20th order was consistent with New York s law governing subpoenas duces tecum, and the People had properly served Twitter s agent in New York with the order (Decision at 9). THE PRESENT ATTACKS ON THE JUDGE S PRE-TRIAL ORDERS 19. Twitter has not produced the records requested initially in the January 26th subpoena. Nor was it granted a stay before this Court s interim stay of August 24, 2012, as discussed below (see 25). Pending resolution of this motion, Twitter is therefore in non-compliance with the Criminal Court s orders of April 20th and June 30th. Defendant Harris and Twitter have continued their two-front attack on the judge s orders, thus risking further delay in the trial of Harris s case, which is currently scheduled for December 12, For his part, on August 17, 2012, the criminal defendant filed a petition in Supreme Court, New York County, for a judgment under Article 78 of the CPLR. Harris seeks an order enjoining Judge Sciarrino from enforcing the subpoenas at issue, as well as his decisions denying Harris s and Twitter s motions to quash, and from affording the District Attorney any of the information sought by the subpoenas. Alternatively, Harris seeks an order compelling Judge Sciarrino to 9

10 recognize his standing to challenge the subpoenas and to rule on the merits of his motion to quash (Harris s Notice of Article 78 Petition). 21. On July 17, 2012, Twitter filed a Notice of Appeal from the court s June 30th decision and order. In the corporation s appellate brief, dated August 27, 2012, it contends that the judge erroneously concluded that defendant Harris lacked standing to move to quash, and mistakenly found that the order for Harris s Twitter records comported with state and federal law. 22. Defendant Harris has filed a motion in this Court seeking permission to intervene in Twitter s appeal (Harris s Motion to Intervene, dated 8/31/2012; calendared for 9/13/2012). In addition, various advocacy groups have moved for permission to file briefs as amici curiae in support of Twitter (Notice of Motion for Leave to File Amici Curiae Brief, dated 9/27/2012; calendared for 9/12/2012). 23. At various times in the course of this litigation, the advocacy groups seeking amicus curiae status, as well as Harris himself, have mischaracterized what information the People are seeking through compulsory process. As stated above (see 4), the People seek only two things here: (1) subscriber information linking the Twitter account at issue to the criminal defendant, and (2) public tweets for the relevant time period, that is, only those messages that Harris broadcast to the world. This is clear from the the Criminal Court s June 30, 2012 order. 10

11 CONTEMPT PROCEEDINGS & STAY APPLICATION 24. In light of Twitter s continued failure to produce any of the documents, even after the court s June 30th order, Judge Sciarrino ordered Twitter to appear in Criminal Court on September 11, 2012 to show cause why it should not be adjudicated in contempt of court (Order to Show Cause, dated 8/20/2012). 25. Only after service of the Order to Show Cause, by papers dated August 24, 2012, did Twitter file the instant motion in this Court seeking a stay of all proceedings at the trial level pending resolution of its appeal from the Criminal Court s June 30th decision and order (Aff. in Support of Motion at 2). On August 24, 2012, this Court granted an ex parte application for an interim stay of enforcement of the June 30th order and of the contempt hearing pending determination of this stay motion (Interim Stay Order). 26. For the reasons set forth in detail in the accompanying memorandum of law, Twitter s application to stay the trial court proceedings pending the determination of its appeal should be denied. WHEREFORE, it is respectfully requested that Twitter s stay application be denied. Dated: New York, New York September 6, 2012 Martin J. Foncello Assistant District Attorney 11

12 cc: Terryl L. Brown, Esq. Harris Beach PLLC 100 Wall Street New York, New York (212) John K. Roche, Esq. Perkins Coie LLP th Street, N.W. Suite 600 Washington, D.C (202)

13 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: FIRST DEPARTMENT THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- MALCOLM HARRIS, Defendant, TWITTER, INC., Non-Party Movant-Appellant. AFFIRMATION IN OPPOSITION TO TWITTER S APPLICATION FOR A STAY PENDING APPEAL Docket No. 2011NY Cal. Date: September 6, 2012 CYRUS R. VANCE, JR. District Attorney New York County One Hogan Place New York, New York (212) Martin J. Foncello Assistant District Attorney Of Counsel