The Police Don’t Need a Warrant to Subpoena Your Tweets, Judge Rules


Twitter messages, obviously, are public. That’s the point of social media: to share, to broadcast. But one of the reasons people continue to tweet — and to post incriminating photographs of their youthful kegstands on Facebook — is the illusion that they have some measure of control over what they’re putting out there. They can take it down, if they choose to, or rest secure in the knowledge that when they’ve posted enough new tweets the old ones will recede beyond the event horizon of Tweets Lost To The Ages.

Of course, all that is an illusion. As Judge Matthew Sciarrino ruled yesterday, your tweets aren’t actually your tweets. Sciarrino was ruling on motions in the case of Malcolm Harris, the managing editor of The New Inquiry, charged in connection with last September’s Occupy Wall Street march on the Brooklyn Bridge. You might also remember Harris as the guy behind last fall’s Radiohead concert hoax.

The twitter feed in question, @destructuremal, currently only displays tweets going back to February, but it’s a fair guess that somewhere deep in Twitter’s servers, older deleted tweets are preserved. Prosecutors claim that if they can get at those tweets, it will disprove Harris’s contention that he only entered the roadway of the Brooklyn Bridge because he was under the impression that police were allowing it.

But as Sciarrino ruled, the end-user agreement Harris signed when he joined Twitter means he doesn’t have any say in the matter:”Twitter’s license to use the defendant’s Tweets means that the Tweets the defendant posted were not his.”

The widely believed (though mistaken) notion that any disclosure of a user’s information would first be requested from the user and require approval by the user is understandable, but wrong. While the Fourth Amendment provides protection for our physical homes, we do not have a physical “home” on the Internet. What an Internet user simply has is a network account consisting of a block of computer storage that is owned by a network service provider. As a user, we may think that storage space to be like a “virtual home,” and with that strong privacy protection similar to our physical homes. However, that “home” is a block of ones and zeroes stored somewhere on someone’s computer. As a consequence, some of our most private information is sent to third parties and held far away on remote network servers. A Twitter user may think that the same “home” principle may be applied to their Twitter account. When in reality the user is sending information to the third party, Twitter.

Like your dad who just read an article about Twitter, Sciarrino couldn’t help lacing his decision with gratuitous hashtag jokes: “The defendant moved to #quash that subpoena. That motion is #denied.” Lots of yuks.

There’s a wrinkle in all of this: from his personal twitter account, Harris wrote yesterday that he hasn’t operated the @desructuremal account in some time. Does that make a difference?

Yesterday’s ruling doesn’t address the question, but it does reinforce an important lesson for life in the digital age: don’t ever tweet, post, email, or otherwise write or record anything you wouldn’t feel comfortable with your local police and criminal prosecutors sifting through as they search for something to incriminate you.

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