By Gina F. Rubel
Special to the Legal
Earlier this week, the social media giant based in San Francisco, Calif., filed a motion requesting that a judge quash a subpoena sent from the Manhattan district attorney to produce old tweets, now deleted, that were written by the managing editor of The New Inquiry online magazine, Malcolm Harris. Harris, an Occupy Wall Street protester, writer and so-called “prankster,” was arrested along with 700 others on the Brooklyn Bridge on Oct. 1, 2011.
The prosecution wants to examine Harris’s tweets from the months and weeks leading up to the protest in order to see if Harris was “aware that police had ordered demonstrators not to march across the bridge.”
Twitter stepped in after Harris tried to block the subpoena on his own. The court found that Harris lacked standing to challenge the subpoena and his request was denied on the technicality that Harris did not own his tweets, but Twitter did.
Twitter’s lawyers argued that users “don’t relinquish ownership of their messages or photos by posting them on the service.” They also cited the Stored Communications Act, which allow users to challenge demands for their account records, and Twitter’s Terms of Service, which expressly state that users own their content on the service.
Prosecutors have argued that Harris has “no proprietary or privacy interest in tweets that he broadcasts to every person with access to the internet.” It will be interesting to see the outcome of this, as Harris and his attorney are overjoyed that Twitter and its legal counsel have decided to weigh in and fight to protect the rights of its users.
The discovery of social media content is one of the hottest topics in litigation and e-discovery these days. The process can be daunting and extremely time-consuming, but what is uncovered can often make or break a case. I assume the attorneys in this case are also looking for any public tweets related to or mentioning Harris’s Twitter handle, @destructuremal, during the dates in question. One thing is for sure— if you see something on a social media site such as Twitter and you think it will be questioned later, take a screen shot or print it for future reference.
Gina F. Rubel is the owner of Furia Rubel Communications, a strategic marketing and public relations agency with a niche in legal marketing. A former trial attorney, she is the author of Everyday Public Relations for Lawyers. Rubel and her agency have won many awards for legal communications, PR, media relations, website and graphic design, strategic planning, corporate philanthropy and leadership. She maintains a blog, is a contributor to National Law Review, The Legal Intelligencer Blog, AVVO Lawyernomics and The Huffington Post. You can find her on LinkedIn or follow her on Twitter. For more information, go to www.FuriaRubel.com.