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On October 1, 2011, over 700 people were arrested for disorderly conduct during the Occupy Wall Street march across the Brooklyn Bridge. Malcolm Harris, a 22 year-old writer, was one of those arrested. The trespassers had been forewarned, by the police, that they would be arrested should they proceed with the march.
Manhattan Criminal Court Judge, Matthew Sciarrino, Jr., who, word has it, was disciplined for “friending” on Facebook, attorneys arguing before him, back in 2009, has said that Twitter users have no expectation of privacy:
“While a Twitter account’s user information and Tweets contain a considerable amount of information about the user, Twitter does not guarantee any of its users complete privacy.”
“Additionally, Twitter notifies its users that their Tweets, on default account settings, will be available for the whole world to see. Twitter also informs its users that any of their information that is posted will be Twitter’s and it will use that information for any reason it may have. The @destructuremal account’s Tweets were, by definition public. The defendant had knowledge that Twitter was to instantly distribute his Tweets to Twitter users and non-Twitter users, essentially anyone with Internet access. Indeed, that is the very nature and purpose of Twitter. Accordingly, this court finds that the defendant has no standing to move to quash the subpoena.”
Twitter begged to differ and told the judge that his ruling was against their company policy: “Twitter’s Terms of Service make absolutely clear that its users own their content,” the motion asserts. “The Terms of Service expressly state: You retain your rights to any content you submit, post or display on or through the services.” Additionally, the motion said: “To hold otherwise imposes a new and overwhelming burden on Twitter to fight for its users’ rights, since the order deprives its users of the ability to fight for their own rights when faced with a subpoena from New York State.”
The Electronic Frontier Foundation (EFF) describes the case as one that “is worse the deeper you dig into it.” EFF is uncomfortable with the action “because our Fourth Amendment privacy rights should not be surrendered simply because we use online service providers that store information remotely.”
EFF cites these points in their reasoning, in favor of Harris:
- The court threw away one of the most important procedural protections enshrined in our constitution — the Fourth Amendment’s search warrant requirement — by lowering the standard for government access to both the contents of communication, and information about a person’s location.
- … the court allowed the government to get the contents of communication — in this case, Harris’ tweets — with a mere subpoena. But consistent with the Fourth Amendment, Congress made clear that the contents of communication can only be accessed by law enforcement with a search warrant. The Stored Communications Act (SCA) details how the government can obtain certain types of information from electronic storage providers. And while there has been debate about the legal standard that applies for obtaining non-content records like cell phone location information — we think a search warrant is required, and the government does not — the SCA is absolutely clear that a search warrant is required for content that is less than 180 days old. For that reason, when we first wrote about this case we predicted that the government’s request for tweets was unlikely to succeed because consistent with the SCA, Twitter’s law enforcement guidelines required a search warrant in order to access this information.
- Unfortunately, the Court was led astray by the government, who argued (PDF) that the SCA didn’t even apply because the tweets were public, although the text of the SCA doesn’t distinguish between public and non-public content. (The government’s argument makes us wonder, if the tweets were public, then why did the government need a subpoena anyway?) As a result, the court allowed the government to access content — the tweets — without a search warrant, even though some of the content was less than 180 days old.
- Allowing government access to the content of communication without the judicial oversight that comes with a search warrant also presents real First Amendment problems too.
- The judge also allowed the government to get access to location information without a search warrant. Twitter keeps a record of a user’s IP address when he logs in to post a tweet. Since the majority of Twitter users access the site through mobile phones, these IP addresses are keys that help unlock a person’s location. As the order states, the government wants the information
- While the NYC prosecutors may be interested in Harris’ movement on the day of his arrest, the subpoena requested three months of information from Twitter, far more than the 28 days at issue the Supreme Court found violated the Fourth Amendment. And by figuring out where Harris was for three months, the government can learn much about him and the Occupy movement. A search warrant ensures that location information can be an effective law enforcement tool in cases where there is probable cause to believe evidence of a crime will be found, but strikes a balance with a person’s right to privacy, and ensures that this information won’t be misused for politically motivated witch hunts based on trivial criminal charges.
- The court’s acceptance of the government’s arguments for disclosure has resulted in a broad opinion that has far reaching consequences to free speech and privacy.
The judge could reverse his decision and grant Twitter’s motion to quash the subpoena. In the event that he does not, the New York appeals court may follow the direction of the Sixth Circuit in regard to contents of communications, and the Supreme Court with respect to location information, and rule in favor of the protection of Twitter users’ public and private information.