Malcolm Harris is one of hundreds of protesters charged with disorderly conduct after the Occupy Wall Street protest march across the Brooklyn Bridge in October 2011. In the course of this investigation, on January 26, 2012, the New York County District Attorney issued a subpoena to Twitter to appear as a witness in Harris's trial in the Criminal Court of the City of New York, presenting "any and all information" regarding Harris's account @destructuremal from September 15 to December 31, 2011. Twitter notified Harris of the subpoena on January 30, 2012.

Harris reponded to this subpoena by filing a motion to quash on February 6, 2012. In this motion, Harris argued that the subpoena was overbroad and failed to comply with federal and state procedural requirements for electronic information requests.

On April 20, 2012, Manhattan Criminal Court Judge Matthew Sciarrino Jr. denied Harris's motion. Judge Sciarrino held that Harris lacked a proprietary interest in his tweets, so as in bank record cases where an individual lacks standing to challenge a subpoena issued against the third-party bank, Harris lacked standing to quash a subpoena issued to a third-party online social networking service seeking to obtain his postings. In addition, Judge Sciarrino found that were "reasonable grounds to believe the information sought was relevant and material to this investigation" under the Stored Communications Act.

On May 7, 2012, Twitter filed its own motion to quash Judge Sciarrino's order and the subpoena. In this motion, Twitter argued that the order would violate Twitter's terms of service provisions, which state that users retain rights to any content posted on the site, thereby holding a proprietary interest in their content. In addition, citing the Supreme Court's 2012 decision in United States v. Jones, Twitter argued that enforcing the subpoena would violate the Fourth Amendment, which only requires service providers to disclose user communications when presented with a valid search warrant. 

Twitter's motion to quash was denied by Judge Sciarrino on June 30, 2012. In addition to reasserting holdings from his April 20th order, Judge Sciarrino's held that there is no expectation of privacy when participating in a social media forum like Twitter, so no Fourth Amendment privacy interest would be implicated by the subpoena. Twitter intends to appeal this decision, having filed a notice of appeal on July 17, 2012.

Update:

On August 20, 2012, Harris filed a petition and memorandum under Article 78 of the CPLR to order Judge Sciarrino to reverse the order to reveal the information stored by Twitter. According to the case docket, Harris also seeks a temporary restraining order preventing the disclosure of the information, with a hearing date of September 21, 2012.

According to a subsequent pleading by Twitter, on August 20, 2012, the court asked Twitter to show cause as to why the court should not impose civil and criminal sanctions for contempt of court, in light of Twitter's lack of disclosure of the information at issue. That order had a response deadline of September 5, but on August 23 Twitter moved for a stay of all Criminal Court proceedings pending resolution of their appeal. The Appellate Term granted a temporary stay, but then vacated that stay in an order on September 7, 2012.

Meanwhile, on August 27, 2012, Twitter filed their appellate brief before the Appellate Term of the Supreme Court for New York County. The ACLU, NYCLU, EFF, and Public Citizen filed an amicus brief in support of Twitter.

On September 11, 2012, Twitter filed a memorandum in opposition to the order to show cause before the Criminal Court of the City of New York. Twitter argued that being forced to reveal the information before the appeal of the order would render the issue moot, and thus would prevent proper adjudication of the validity of the order.

According to Bloomberg, on a hearing on September 11, 2012, Judge Sciarrino rejected Twitter's arguments and ordered Twitter to comply or face substantial monetary fines.

According to the Washington Post and Village Voice, Twitter and Judge Sciarrino reached an agreement whereby Twitter turned over the contents requested on September 14, 2012 in a sealed envelope, and the Judge agreed not to open the contents until the hearing on Harris's Article 78 petition before the Appellate Term of the Supreme Court for New York County on September 21, 2012.

On September 27, 2012,  the Supreme Court for New York County's Appellate Term issued an order denying Harris's application to stay enforcement in his Article 78 proceeding. According to the New York Times, the subpoena was subsequently enforced, and Harris pleaded guilty to the charges.

Substantive Proceedings

The Art of Living Foundation is an international nonprofit organization that, according to its website, is "engaged in stress-management and service initiatives." Two former followers, Skywalker and Klim, published anonymous blogs (entitled "Leaving the Art of Living" and "Beyond the Art of Living") criticizing the Art of Living's practices and their leader, Sri Sri Ravi Shankar. In addition to their critiques, they also provide excerpts from the Art of Living's teaching manuals and other materials (normally provided to members in courses for a fee).

On August 14, 2010, Skywalker and Klim received a demand from Art of Living (from its headquarters in India) to take down this material. The branch of Art of Living in the United States (based in California) also filed a complaint on November 5, 2010, in the U.S. District Court for the Northern District of California. Art of Living alleged copyright infringement under federal law for the blogs' publication of portions of the "Breath Water Sound Manual." In addition, Art of Living alleged misappropriation of trade secrets, defamation, and trade libel under California law, based on the aforementioned publication and the Does' critical statements about the organization.

On January 31, 2011, the Does filed a motion to dismiss the defamation and trade libel claims for failure to state a claim. They also filed a special motion to strike the defamation, trade libel, and trade secrets claims under California's anti-SLAPP statute. Art of Living filed both an opposition to the motion to dismiss and an opposition to the motion to strike on March 17, 2011, to which the Does replied (reply re: motion to dismiss; reply re: motion to strike) on April 6, 2011. After a hearing in May, on June 15, 2011, U.S. District Judge Koh dismissed the defamation and trade libel claims and denied (without prejudice) the motion to strike. Judge Koh found that the statements at issue were opinions rather than assertions of fact, resolving the defamation claim, and that Art of Living did not sufficiently allege harm or damages for the trade libel claim. Judge Koh also held that discovery on the trade secrets claim could not proceed until Art of Living identified the trade secrets with reasonable particularity.

On July 14, 2011, Art of Living proceeded to amend their complaint in accordance with the June 15th order, removing the dismissed claims from their complaint. Art of Living also provided further detail and content identification in regards to the remaining copyright infringement and trade secrets claims. The Does answered the amended complaint on July 28, 2011.

The Does then filed a second special motion to strike on September 12, 2011 (with the redacted version entering the docket on January 9, 2012), this time directed at the remaining trade secret claim. This motion was opposed by Art of Living on September 29, 2011. Additionally, on September 27, 2011, the Does filed a motion for summary judgment on the copyright infringement claims. Art of Living filed an opposition to this motion on October 11, 2011, which the Does replied to on October 24, 2011. 

In an order on May 1, 2012, Judge Koh granted summary judgment on the copyright infringement claim. Judge Koh found that Klim was entitled to summary judgment based on noninfringement, and that Art of Living did not provide enough support for its claim of authorship of the manual to pursue a copyright infringement claim against Skywalker because the copyright registration certificate was obtained after the litigation began). The district court also granted Klim's motion to strike the trade secrets misappropriation claim while denying the motion to strike in regards to Skywalker. While Skywalker conceded that there was at least some overlap between his blog postings and the materials Art of Living designated as trade secrets, Art of Living presented no evidence that Klim misappropriated any of these materials.

Anonymity in Art of Living v. Does

Throughout the proceedings described above, there was an ongoing issue with respect to the defendants' ability to proceed anonymously.

On November 9, 2010, Art of Living filed a motion for leave to take expedited discovery. Pursuant to an ex parte order by Magistrate Judge Beeler, on December 20, 2010, Art of Living subpoenaed Google and Wordpress to reveal the identities of bloggers Skywalker and Klim. Not long after being notified of this by Google, the Does filed a motion to quash the subpoena. In response, Art of Living filed an opposition on March 22, 2011, and the Does replied on April 28, 2011. On August 10, 2011, Magistrate Judge Lloyd denied the motion to quash in regards to Skywalker's claim while granting it for Klim, finding that the copyright claim was a sufficient basis for permitting identification of Skywalker.

In response, on August 24, 2011, Skywalker filed a motion for relief from the order of the Magistrate Judge regarding the motion to quash. On August 31, 2011, Public Citizen, joined by the Electronic Frontier Foundation and the ACLU, submitted an amicus brief. This brief urged the court to apply the balancing test adopted in Dendrite Int'l v. Does, despite the copyright claim being considered in the case. Art of Living's opposition to the motion for relief was filed on September 16, 2011, and Skywalker replied on September 30, 2011.

On November 9, 2011, Judge Koh granted the motion, finding that Skywalker's First Amendment right to anonymous speech outweighed Art of Living's need for discovery at this time. Judge Koh applied the Highfields Capital two-part test (which relied heavily on Dendrite) for determining whether to allow discovery seeking the identity of an anonymous defendant: "(1) The plaintiff must produce competent evidence supporting a finding of each fact that is essential to a given cause of action; and (2) if the plaintiff makes a sufficient evidentiary showing, the court must compare the magnitude of the harms that would be caused to the competing interests by a ruling in favor of the plaintiff and by a ruling in favor of the defendant."

In a case management conference and corresponding minute order on May 9, 2012, Judge Koh again denied all of Art of Living's motions to disclose Skywalker's identity. By also refusing to extend discovery a setting the trial date and length, these rulings potentially allowed Skywalker to defend at trial anonymously.

Related Case and Settlement

On June 8, 2012, Judge Koh granted Art of Living's motion to relate Art of Living Foundation v. Eng-An Chou (Docket no. 5:12-CV-02748-LHK) to this case. Chou involves Art of Living's claim that Eng-An Chou breached her contracts with Art of Living by disclosing some of the organization's confidential texts to Skywalker for posting on his blog.

The next week, the cases were referred to Judge Joseph C. Spero for a Magistrate Judge Settlement Conference. The conference was held on June 12, 2012 and a settlement was reportedly reached. As part of the settlement agreement, Skywalker and Klim published a joint statement informing readers of the settlement and would proceed to freeze their blogs on June 19, 2012. The joint statement noted that there are no restrictions on the Does to create new blogs, and that no identity had or would be disclosed in relation to this litigation and settlement. Art of Living also agreed to drop the lawsuit with prejudice (also dropping the separate suit against Chou) and to pay Skywalker and Klim's attorney's fees.