Prosecutors have subpoenaed the Twitter records of Jeff Rae, an arrested Occupy Wall Street protester, and four others, seeking account information and tweets sent around the time the protests heated up last fall. Rae was arrested during a mass protest on the Brooklyn Bridge in October. The subpoena seeks all of Rae’s tweets from Sept. 15 — two days before the Occupy movement began in downtown Manhattan — through Oct. 31, along with account and contact information for Rae.
Based on the subpoenas filed in another protestor’s case, prosecutors appear to be looking for evidence that would prove the defendant’s state of mind at the time of the alleged crime. The protestors were primarily arrested on misdemeanor changes such as blocking traffic, disorderly conduct or defying police orders. Many of the protestors have argued that they did not realize they were defying police orders but prosecutors are trying to show that the defiance was knowing and deliberate.
Rae plans to fight the subpoena, stating “I was a little bit blown away,” Rae said. “It’s interesting that in places like Egypt our leaders applaud people for using Twitter and social media for their movements. Here, I’m being subpoenaed for using social media.” He said his lawyer would file a motion to quash.
A special Manhattan criminal court has been set up to handle Occupy cases. Many have been resolved through a type of conditional dismissal that wipes the charges away if the defendant stays out of trouble for six months, but hundreds of protesters have chosen to move ahead with trials.
I think it’s pretty much a sure bet that prosecutors will gain access to these twitter accounts. Assuming they have probable cause, it should be no different that obtaining a defendant’s phone records or bank account information. In fact, I would think one would have even less of an expectation of privacy in one’s tweets than in one’s phone or banking records. The purpose of twitter is to shout out your thoughts to the world and connect with other like-minded people, wherever they may be. Except for private messages (which the prosecutors say they are not seeking), anyone and everyone can see what you are tweeting. Consequently, the privacy expectation is practically non-existent in the sent tweets. The account information is a closer question but courts have recently held that this information is also available to prosecutors because the defendant loses his expectation of privacy in the information once it is shared with a third party, i.e., Twitter. So prosecutors will undoubtedly get the account information as well.
Check out this article on Law360 where my law partner Kathryn Walker and I were quoted on this issue yesterday. We both feel that the information is likely discoverable by prosecutors. What do you think?