Court: Tweets Are “Gifted To The World”; Must Be Produced In OWS Case

On June 30, the NYC Criminal Court rejected Twitter’s attempt to quash a subpoena seeking “any and all user information, including email addresses, as well as any and all tweets posted for the period of September 15, 2011 to December 31, 2011” from a Twitter account maintained by defendant Malcolm Harris (whose tweets, apparently, bolstered the People’s case against him).  You can read the decision here. The decision ultimately turned on a parsing of the Stored Communications Act (18 U.S.C. 2701 et seq.) and on the differences between an “Electronic Communication Service” and a “Remote Computing Service” and between “content information” and “non-content information”.

However, its most interesting aspect was its application of well-settled law (particularly in the search and seizure context) to facts involving rapidly-evolving social media technology.

First, the court found that Twitter was required to comply with the subpoena, notwithstanding its argument that Twitter users had standing to challenge it:

Publication to third parties is the issue. Tweets are not e-mails sent to a single party. At best, the defense may argue that this is more akin to an e-mail that is sent to a party and carbon copied to hundreds of others. There can be no reasonable expectation of privacy in a tweet sent around the world. The court order is not unreasonably burdensome to Twitter, as it does not take much to search and provide the data to the court. So long as the third party is in possession of the materials, the court may issue an order for the materials from the third party when the materials are relevant and evidentiary[.] … Consider the following: a man walks to his window, opens the window, and screams down to a young lady, “I’m sorry I hit you, please come back upstairs.” At trial, the People call a person who was walking across the street at the time this occurred. The prosecutor asks, “What did the defendant yell?” Clearly the answer is relevant and the witness could be compelled to testify. Well today, the street is an online, information superhighway, and the witnesses can be the third party providers like Twitter, Facebook, Instragram, Pinterest, or the next hot social media application.

Second, the court found that the subpoena did not run afoul of the Fourth Amendment and was otherwise lawful:

[I]n this case there was no physical intrusion into the defendant’s Twitter account. The defendant had purposely broadcast to the entire world into a server 3,000 miles away. Therefore, the defendant’s account is protected by the Fourth Amendment only if “the government violated a subjective expectation of privacy that society recognizes as reasonable.” … The Supreme Court has repeatedly held that the Fourth Amendment does not protect information revealed by third parties. … Several courts have applied this rationale and held that internet users do not retain a reasonable expectation of privacy. …

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. This is not the same as a private email, a private direct message, a private chat, or any of the other readily available ways to have a private conversation via the internet that now exist. Those private dialogues would require a warrant based on probable cause in order to access the relevant information. Interestingly, in 2010, Twitter signed an agreement with the Library of Congress providing that every public tweet from Twitter’s inception and beyond would be archived by the Library of Congress. …

In dealing with social media issues, judges are asked to make decisions based on statutes that can never keep up with technology. … The world of social media is evolving, as is the law around it. Society struggle[s] with policies, whether they are between student and teacher …, or the right of a company to examine an applicant’s Facebook page as part of the interview process[.] … As the laws, rules and societal norms evolve and change with each new advance in technology, so too will the decisions of our courts. While the U.S. Constitution clearly did not take into consideration any tweets by our founding fathers, it is probably safe to assume that Samuel Adams, Benjamin Franklin, Alexander Hamilton and Thomas Jefferson would have loved to tweet their opinions as much as they loved to write for the newspapers of their day (sometimes under anonymous pseudonyms similar to today’s twitter user names). Those men, and countless soldiers in service to this nation, have risked their lives for our right to tweet or to post an article on Facebook; but that is not the same as arguing that those public tweets are protected. The Constitution gives you the right to post, but as numerous people have learned, there are still consequences for your public posts. What you give to the public belongs to the public. What you keep to yourself belongs only to you.

Can you imagine?

@bfranklin:  “hey @tjefferson – nice work with the #constitution.  quite electrifying!  like my kite.  gotta go – early to sleep and all that.”

@tjefferson:  “@bfranklin – LOL.  say – I was thinking of including a reference to Twitter in the #FirstAmendment – what do you think?”

If only.

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