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Summary:

In a candid ruling, a New York judge said a protester can’t stop prosecutors from searching his Twitter account because he doesn’t own the tweets in the first place.

Twitter Bird perched on gavel
photo: Shutterstock Composition: Bird via basel101658 / Gavel via Alexander A. Sobolev

In a candid ruling, a New York judge said a protester can’t stop prosecutors from searching his Twitter account because he doesn’t own the tweets in the first place.

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:

OWS Twitter Copy

  1. I’m wondering if the OWS protestor has in anyway copyright over his Tweets? Would he then be able to prevent others from using the Tweets without his permission?

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  2. I like how a state judge used hashtags to be cute. That’s not unprofessional. Of course not.

    The article is unclear. Are they trying to use his twitter account to track his physical locations at the time tweets were sent? Or they want to read is DM inbox?

    These are important questions of privacy. But it seems to me that using these kinds of rulings to search TWEETS is a waste of everyone’s time and money. Tweets are already public.

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    1. Good point, Derrick. The ruling didn’t state what exactly the prosecutors wanted — DM’s or location are a good guess.

      I agree that subpoenaing tweets are a waste of time/money. There is also a case that there shouldn’t be a privacy right in them as they are public to begin with. (but what about deleted tweets? which twitter probably keeps..)

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      1. tweets aren’t entirely public. I have my twitter account locked down and only allow people I actually know to follow me. Granted, it’s still going through a 3rd-party, so they are public-y, but I have control over who gets them.

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  3. This is a strange ruling. I can understand the lack of 4th Amendment protections against reading the tweets, but it seems the judge has overreached in saying the tweets are not owned by the defendant.

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  4. Doesn’t this mean there are no intellectual property rights online?

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    1. No, the defendant would still have copyright in his tweets.. He can assert it against you or me (but not against the judge or prosecutors)

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  5. I bet if someone went on twitter and started making “terroristic threats” the court wouldn’t be claiming that the person posting the tweets was not the owner. On the contrary…they would be INSISTING that that person MUST take ownership and responsibility for what they posted.

    So, the moral of the story here is that a person only owns their tweets when it is convenient for the government to take that position.

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  6. “The widely believed … notion” – isn’t that pretty much the definition of “reasonable expectation”?

    “While the Fourth Amendment provides protection for our physical homes, we do not have a physical “home” on the Internet. ” The judge needs to read the amendment – it says “The right of the people to be secure in their persons, houses, papers, and effects…” Physical homes is only one of those four.

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