A Manhattan judge today ruled against Twitter, arguing that it had to turn over a protester’s tweets to prosecutors, without the account user’s consent and without a warrant.
When we last checked in on the case of Malcolm Harris, a writer at The New Inquiry and one of 700 people arrested on the Brooklyn Bridge as part of an Occupy Wall Street protest last October, things were already looking bleak for Harris and anyone else who wants to maintain control over their social media postings.
Some quick background: The Manhattan District Attorney says it believes that tweets from an account Harris was using at the time (he’s since handed it off to others) would contradict the defense he and others arrested on the bridge that day were using — namely, that they didn’t know they weren’t allowed in the roadway.
So the DA sent a subpoena to Twitter asking for his tweets and telling Twitter to keep it secret. “Twitter is directed not to disclose the existence of this subpoena to any party,” read a note at the bottom of the subpoena. “Such disclosure would impede the investigation being conducted and interfere with the enforcement of law.”
But Twitter challenged the legality of the gag order, and promptly told Harris about the subpoena, leading him to challenge it in court. The question before Judge Matthew Sciarrino then became: did Harris have standing to challenge the subpoena? The District Attorney wasn’t asking him for the tweets, it was asking Twitter.
In May, Sciarrino ruled that Harris had no say in the question because the tweets weren’t his, they were Twitter’s.
At this point, Twitter itself got involved, submitting a motion to quash the judge’s order, arguing that as far as the social networking giant is concerned, Harris does control his tweets and should have standing to challenge any subpoenas.
For one thing, Twitter’s lawyers argued, Twitter’s terms of service are pretty explicit about users retaining legal control over their tweets. Especially this passage:
“You retain your rights to any Content you submit, post or display on or through the Services.”
But even more fundamental than that, according to Twitter’s motion, were Harris’s constitutional rights. It’s Harris’s privacy at stake here, and turning over his tweets without requiring so much as a warrant violates his Fourth Amendment protections.
Twitter’s move impressed civil libertarians and digital rights activists.
“Most of these government requests take place in secret, but it’s clear these cases are taking place every day across the country,” said, Aden Fine, a lawyer with the American Civil Liberties Union who filed an amicus brief in the case, along with the Electronic Frontier Foundation and Public Citizen. “What’s significant about this case is that this is one of the first times that an internet company like Twitter has filed its own motion trying to defeat one of these requests.”
Significant, maybe, but so far ineffective. Today Sciarrino ruled on Twitter’s motion. While he found that the requested tweets from December 31, being less than 180 days old, would require a warrant, the rest of the subpoenaed tweets should be turned over without a warrant.
“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.”
Arguments of privacy and Constitutional protection don’t apply to statements you make public, Sciarrino concluded:
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.”
Chief Assistant District Attorney Daniel R. Alonso said in a statement today that the DA’s office is satisfied with the ruling. “We are pleased that the court has ruled for a second time that the Tweets at issue must be turned over. We look forward to Twitter’s complying and to moving forward with the trial.”
Twitter was less pleased. “We are disappointed in the judge’s decision and are considering our options,” said Carolyn Penner, a company spokeswoman. “Twitter’s Terms of Service have long made it absolutely clear that its users *own* their content. We continue to have a steadfast commitment to our users and their rights.”
Martin Stolar, Harris’s lawyer, said the ruling puts his client in a difficult position. While Twitter can appeal the ruling, Harris can’t until his case has been decided, unless Stolar files a writ of mandamus, a legal appeal to a higher court that Stolar said he is considering, though he conceded it is “rarely done and rarely successful.”
“The thing that really troubles me,” Stolar said, “is that the judge links his Fourth Amendment privacy arguments on the physical invasion of someone’s space. That’s very last century. We’re now living in an age when physical intrusions are no longer the hallmark of whether someone’s privacy has been invaded.”
Aden Fine of the American Civil Liberties Union said he was also disappointed, but not surprised, given how Sciarrino has already ruled in the case.
“What is significant about today’s decision is that the court continued to fail to recognize that individuals like Mr. Harris have the right to go to court to protect their constitutional rights,” Fine said. “I hope this decision will open up the public debate about whether, if the judge is correct legally, that needs to be corrected through legislation. People use the internet to communicate nowadays, and it can’t be that using the internet means you give up all control over that communication.”
Harris’s case is scheduled to go to trial in December.