Judge Matthew Sciarrino Jr. cited a “widely-believed” but “mistaken” notion about online privacy rights and said that search and seizure protections don’t apply because we “do not have a ‘physical’ home on the Internet.”
The ruling, which grows out of the Occupy Wall Street protests, reinforces a troubling legal trend that declares people have no privacy right in their online communications — even though they spend more and more of their time on services like Twitter and Facebook. Ironically, the judge acknowledged as much:
The reality of today’s world is that social media, whether it be Twitter, Facebook, Pinterest, Google+ or any other site, is the way people communicate..
The communications in this case were the tweets of Malcolm Harris, who was charged with disorderly conduct after marching on the roadway of the Brooklyn Bridge. Tweets, by their nature, are public communications, but a search of his Twitter account would also reveal more private information. As the court explained, “Twitter collects many types of user information, including IP address, physical location, browser type, mobile carrier among other types.”
In his ruling, Judge Sciarrino Jr. compared Twitter and email accounts to bank records. He cited a 1976 case in which a divided Supreme Court said a defendant had no right to stop searches of his bank statements because the records were the property of the bank.
In blunt language, the judge explained:
Here, the defendant has no proprietary interests in the @destructuremal account’s user information and Tweets … Twitter’s license to use the defendant’s Tweets means that the Tweets the defendant posted were not his.
Twitter itself has a history of aggressively standing up for the rights of its users by notifying them when law enforcement wants to search their accounts (other sites like Facebook routinely pass on user profiles without notifying them).
The notification process allows users an opportunity to challenge the searches in court and ensure they are not overly broad. Rulings like that of Judge Sciarrino Jr., however, undermine that ability by saying that users don’t have a right to get involved in the first place — even though it is their data at stake:
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. [..] 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.
The judge also used the ruling to show off his fluency with Twitter itself. Referring to the microblog’s convention of using hashtags as keywords, he noted that Harris’s motion to “#quash” the subpoena was “#denied.”
The judge’s social media prowess was also on display in 2009 when he was disciplined for friending lawyers on Facebook.
Here is the ruling itself: