Twitter Provides Court with Tweets of Wall St. Protester
Twitter has given up its fight against a court order requiring it to turn over tweets of Wall St Protester Malcolm Harris. It provided the tweets to the court today.
Harris was one of hundreds arrested during a mass protest on the Brooklyn Bridge in October 2011. The Manhattan district attorney's office wants the tweets, which are no longer available online, to try to undermine Harris' argument that police officers appeared to lead protesters on to the bridge's roadway only to arrest them for obstructing traffic.
The Harris case was unusual because Twitter joined the case as a third party, seeking to prevent the disclosure. On June 30, the Court ordered Twitter to comply.
That order required Twitter to provide 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 the Twitter account destructuremal, which was allegedly used by Malcolm Harris. This is a case of first impression, distinctive because it is a criminal case rather than a civil case, and the movant is the corporate entity (Twitter) and not an individual (Harris). It also deals with tweets that were publicly posted rather than an e-mail or text that would be directed to a single person or a select few.
The Harris court ruled Twitter users have no standing to challenge the subpoena because they voluntarily published their tweets to the world. The June 30 opinion is here.
Production of the records is governed by the Stored Communications Act (18 USC §2703 [d]) which states:
A court issuing an order pursuant to this section, on a motion made promptly by the service provider, may quash or modify such order, if the information or records requested are unusually voluminous in nature or compliance with such order otherwise would cause an undue burden on such provider.
The Harris court said:
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 (18 USC §2703[d].
Nor does the user have a Fourth Amendment challenge.
To establish a violation of the Fourth Amendment, the defendant must show either (1) a physical intrusion onto defendant's personal property; or (2) a violation of a defendant's reasonable expectation of privacy.
...The Supreme Court has repeatedly held that the Fourth Amendment does not protect information revealed by third parties.
Bottom line, according to the Harris Court:
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.
Our Services are primarily designed to help you share information with the world. Most of the information you provide us is information you are asking us to make public. This includes not only the messages you Tweet and the metadata provided with Tweets, such as when you Tweeted, but also the lists you create, the people you follow, the Tweets you mark as favorites or Retweet, and many other bits of information that result from your use of the Services.
When the state first served Twitter with the subpoena in April, it informed Harris, who said he intended to challenge it. But the Court ruled that Harris had no standing to challenge production of his tweets and related information -- even as to deleted tweets that may be available through third party search engines.
The defendant's Fourth Amendment rights were not violated because there was no physical intrusion of the defendant's tweets and the defendant has no reasonable expectation of privacy in the information he intentionally broadcast to the world.
In other words:
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.
The Judge in the Harris Case refused to change his order and Twitter, faced with a contempt deadline today, turned them over.
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