Photo: Steve Kovach, Business Insider
In what’s being called a case of first impression, a judge in Manhattan ruled on July 2 that Twitter must turn over some of the deleted Tweets of a user who was arrested in October 2011 during an Occupy Wall Street demonstration.Prosecutors believe that Malcolm Harris was tweeting about an issue he is trying to use in his defence and that his tweets may contradict that defence – that the police, not the protestors, led the parade onto the roadway of the Brooklyn Bridge. He is being prosecuted by the Manhattan DA’s office for trespassing.
When prosecutors in the case issued a subpoena to Twitter for Harris’s tweets, Harris first opposed the attempt. But the judge easily dismissed Harris’s challenge to the subpoena, saying he had no standing to complain because at that time, Twitter’s policies indicated that the social media channel, not users, owned all tweets and enjoyed the rights to distribute them. Since then, Twitter has changed its terms of service to more clearly indicate that users own their tweets.
But then Twitter itself stepped up to the plate and opposed the subpoena, surprising many industry watchers by taking sides. The judge didn’t budge – except to limit what the state could get from Twitter without a warrant; he ruled that content less than 180 days old required one. But for the state’s purposes in the trial, it’s getting what it wants: Harris’s tweets from September 15 to December 30, 2011, including ones that he deleted.
In his ruling, Judge Matthew A. Sciarrino Jr. said, “If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy.” In fact, Twitter’s own terms warn: “What you say on Twitter may be viewed all around the world instantly. You are what you Tweet!”
And while the ruling did not surprise social media lawyers, it does raise some red flags concerning how the courts will interpret social media users’ rights to freedom of speech and privacy as well as freedom from unreasonable searches and seizures in the future. The ACLU, in particular, is up in arms, having filed an amicus curiae (or “friend of the court”) brief in the case that says Harris’s First and Fourth Amendment rights are violated by the state’s subpoena of Twitter.
The ACLU is concerned that the request is too broad – Twitter’s production of the tweets will reveal not only their content but also Harris’s IP addresses, leading to concerns that the government will use such tactics to track people’s whereabouts. In fact, according to Twitter’s latest Transparency Report, in 2012 so far, information on user accounts has been requested in the U.S. 849 times (“typically in connection with criminal investigations or cases”), and Twitter has complied 75 per cent of the time.
Social Media Lawyers Say Ruling Not Surprising
“I agree with the judge’s determination that public tweets are akin to yelling loudly in a public place,” says attorney Nicole Black, vice president at MyCaseInc.com.
“The court’s analogy is particularly applicable to Twitter, as opposed to other social networks, since tweets from unprotected accounts, which make up the vast majority of Twitter accounts, can be read and accessed by anyone who chooses to view them,” Black says.
David Bell, a partner with Haynes and Boone, LLP in Dallas and chair of the firm’s social media practice, agrees, adding that a more difficult case might involve a situation in which the user limits his posts to a few dozen friends or followers. “There,” says Bell, “the social media poster should have a much more reasonable expectation of privacy.” In that situation a tweet would be more like a private email, he adds.
Delete = Deleted?
But what about the issue of the tweets not being publicly available anymore, since Harris deleted them? Doesn’t that raise Fourth Amendment issues about evidence left in “plain view” of the police, which would not require a warrant, versus evidence that they need probable cause to seek?
“Unprotected tweets are public messages relayed to anyone with Internet access who cares to view them,” Black says. “And even if a user deletes them, the tweets are archived at the Library of Congress and at websites which exist solely to serve as a database of all public tweets.”
Bell agrees that Fourth Amendment issues in Harris’s case are not strong: “Deleting tweets from the sender’s account does not remove them from the public,” he notes. “The tweets have already entered the public realm for the world’s viewing. Twitter has simply been asked by the state – and the court confirmed that the request was sensible (for older tweets) – to hand-deliver the tweets in question to make the District Attorney’s job easier in organising its case.”
But, Bell adds, that’s not to say that future cases will be as open and shut. “The courts have not yet fully sorted out the interplay between the plain view doctrine and electronic evidence, including tweets and other social media posts,” he says.
Black says that another issue that needs to be worked out is the application or update of the Stored Communications Act (SCA), which Twitter initially tried to use to block the subpoena. “The Electronic Communications Privacy Act, which the SCA is a part of, is in dire need of revision and does little to protect the rights of users of online services,” she points out. Unnecessarily complicated and out of date, the current law provides for confusing legal mechanisms that apply to the government’s attempts to access data. The 180-day-old cut-off, for instance, could be called an arbitrary result, and judges generally do not abide arbitrary application of laws when it comes to the Bill of Rights.
What’s a Tweeter to Do?
If anything, the case reveals the uncertainty that surrounds the intersection of our rights and obligations on the Internet. Black says that’s a recipe for caution: “Users must assume that anything posted using free social media sites is arguably fair game when it comes to law enforcement access and, to be on the safe side, should presume that online providers who provide services for free will likely throw you under the bus rather than engage in costly efforts to dispute what appears to be a legitimate legal request for your data,” she says. “In other words, social media user beware.”
Bell suggests that social media users who are concerned about protecting their posts and tweets from law enforcement should limit their audiences, “adjusting their privacy settings so that only small, defined groups can review their feeds.” In addition, he says, “Twitter followers also should keep in mind that the feeds and tweets they review could be easily discoverable, just as a computer user’s Internet history could be.”
And the state? “Law enforcement should be comforted by this opinion,” he says. “This decision could encourage or embolden government offices to more frequently and more quickly approach Twitter with search requests when building a case.”
If you’ve tweeted when you shouldn’t have and there’s a court case being built against you, don’t delete! Contact a social media or Internet lawyer in your area, and in the future, remember Judge Sciarrino’s advice: “What you give to the public belongs to the public. What you keep to yourself belongs only to you.”
Learn more about Internet law and your rights on Lawyers.com.
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