Why didn’t Twitter fight the NYPD’s subpoena?

Police said they have identified the Twitter user they believe is responsible for threatening to kill people at a Broadway show “just like in aurora” on Tuesday. Though they haven’t disclosed a name, Police Commissioner Raymond Kelly told media that the person does not live in New York City and they will be conducting an interview soon.

The story of the threatening tweets made a media splash in part because Twitter originally denied the NYPD’s request for information about the user account. The social media company reportedly did not consider the situation an emergency, and it took a court-ordered subpoena for it to comply.

Significantly, the subpoena did not come from the NYPD directly, even though the police have the power to issue one. Usually, say experts, the NYPD only issues its own subpoenas where the police have some assurance that the target will not fight. “I don’t believe they would do it where it’s going to be a litigated issue,” said Edward Saslaw, a senior attorney at the Queens County District Attorney’s office.

Instead, with potentially contentious issues at stake around privacy, the NYPD made the request to the New York County District Attorney.

Anthony Girese, counsel to the Bronx District Attorney, says that the DA then must exercise its subpoena power through a grand jury. There are grand juries sitting all the time in New York City, ready to determine whether a subpoena for evidence or testimony is justified. “It’s a pretty quick turnaround,” he said. “It really doesn’t require much.”

As with all subpoenas, Twitter could have attempted to quash the order by filing a motion with the court. Getting that the motion approved by a judge, however, is notoriously tough. “It was always difficult, and then Richard Nixon tried to do it and he lost. When the president of the United States can’t do it, that sets the bar pretty high,” said Saslaw.

Martha Rayner, a law professor at Fordham University, suspected that Twitter assessed its options and decided it couldn’t win. She also detected in Twitter’s actions a message to users concerned about the company’s intrusion into user privacy. “I think maybe they wanted to be in a position to feel they were compelled to turn over this information but wouldn’t have voluntarily done so,” she suggested.

Tuesday’s spat between the NYPD and Twitter is not the social media company’s first dust-up with the New York legal system. Twitter had filed papers on May 7 to quash a subpoena from the Manhattan District Attorney, which requested the tweets and user info of an Occupy Wall Street protester being charged with disorderly conduct.

Nevertheless, in July, a criminal court judge decided that Twitter must comply with that subpoena. “If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy. There is no proprietary interest in your tweets, which you have now gifted to the world,” said the judge.

A lawyer for Twitter announced on July 19 that the company would appeal the judge’s decision because it “doesn’t strike the right balance between the rights of users and the interests of law enforcement.” Ostensibly, the company believes that same criteria didn’t apply in this week’s legal wrangling with the NYPD.

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