UPDATED: Your Privacy Ends Where Your Tweet Begins

Twitter image via Inforrm’s Blog.

Oh, Twitter, you used to be cool. You used to be the rebel. You used to be the shining light among social media platforms that fought for privacy and First Amendment rights. Now you’re just part of the “1 Percent”. Well, you were never part of the “99 Percent”, but at least we thought you cared.

Joseph Ax of Thomson Reuters reports that Twitter has folded like a cheap lawn chair under threat of contempt and substantial fines by a New York criminal judge. Malcolm Harris was among 700 people arrested during a peaceful protest march in support of the Occupy Wall Street Movement. He was charged with one count of disorderly conduct for blocking traffic. The prosecutor served three subpoenas on Twitter for 3 1/2 months’ worth of information from Harris’ Twitter account. (Note: I am unable to verify whether any of Harris’ tweets related to what he ate for breakfast or whether he thinks One Direction is way better than Justin Bieber.)

The District Attorney sought two types of information: the contents of Harris’ electronic communications (i.e., “tweets”) and “location” information for the 3 1/2 month period.

After Twitter fought the subpoenas for several months, Judge Matthew Sciarrino, a.k.a. the “Facebook-addicted judge“, denied Twitter’s motion to quash the subpoena. Judge Sciarrino held that only Twitter had standing to move to quash subpoenas directed to Twitter for a user’s records. He further held that a user’s “tweets” were not protected by either the Fourth Amendment to the U.S.Constitution or art. I, § 12 of the New York Constitution. Finally, the New York judge held that the subpoenas at issue were “sufficiently circumscribed” under New York law. Essentially, the Court rejected Twitter’s challenges and upheld the subpoenas under the Stored Communications Act, 18 U.S.C. 2701 et seq.

Twitter appealed ( pdf link to the appellate brief) and made the following arguments:

Twitter respectfully submits that its users have standing on three separateand independent grounds to move to quash subpoenas directed to Twitter for their records. First, Twitter’s users have standing under New York law because Twitter’s Terms of Service have long established that users have a proprietary interest in their records. Twitter users own their Tweets and should have the right to fight invalid government requests. Second, Twitter’s users have standing under § 2704(b) of the federal SCA, which provides that a user who receives notice of a subpoena for their account records “may file a motion to quash such subpoena . . . in the appropriate . . . State court.” 18 U.S.C. § 2704(b). Finally, Twitter’s users have standing based on a long line of precedent establishing that individuals whose constitutional rights are implicated by a government subpoena to a third party can challenge the request. Accordingly, the Court should find that Twitter’s users have standing on any one, or all, of these bases.

Defendant’s Tweets are also protected by the Fourth Amendment to the U.S.Constitution and art. I, § 12 of the New York Constitution because the government admits that it cannot publicly access them, thus establishing that Defendant maintains a reasonable expectation of privacy in these communications. U.S. v.Warshak , 631 F.3d 266 (6th Cir. 2010).

Alternatively, even if Defendant’s Tweets are publicly available, the U.S. Supreme Court and the New York Court of Appeals have ruled that public information which would allow law enforcement to draw mere inferences about a citizen’s thoughts and associations are entitled to Constitutional protection, thus establishing that a citizen’s substantive communications are certainly entitled to the same protection. U.S. v. Jones, 132S.Ct. 945 (2012); People v. Weaver, 12 N.Y.3d 433 (2009).

Finally, the subpoenas are not “sufficiently circumscribed” under New York law for two reasons. First, the non-content records (e.g., name, address) demanded by the subpoenas are irrelevant because they merely establish that which no one disputes, i.e., that the Twitter accounts at issue belong to Defendant. Second, if Defendant’s Tweets are in fact publicly available as the trial court ruled, then the requested materials clearly are “otherwise procurable reasonably in advance of trial by the exercise of due diligence”, thus obviating the need for the government’s subpoenas to Twitter…”

Some persuasive arguments, to be sure, but something happened on the way to the courthouse, but as Joseph Ax further reports:

The company surrendered the micro-blogging posts to Manhattan Criminal Court Judge Matthew Sciarrino but they will remain under seal until another appeal by the protestor, Malcolm Harris, is argued next week.

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 implications are far-reaching. Beyond the dispelling of the myth of any expectation of privacy or protection of personal information, the U.S. government and law enforcement agencies now have Twitter to do their work for them. This is not particularly novel, as Google regularly complies with criminal subpoenas and court orders; most notably in the case of Wikileaks (see my previous post here).

While Malcolm Harris’ attorneys also filed a petition on August 17, 2012 to quash the subpoena pursuant to Article 78 of the New York CPLR (Harris v. Sciarrino et al. Petition), the chances are slim to none that it will succeed.

The moral of the story? Your privacy ends where your tweet begins.

UPDATE #1:

Tiffany Kary at Bloomberg earlier today refers to the ‘Hobson’s Choice’ faced by Twitter’s outside counsel:

‘Hobson’s Choice’

Stolar told Sciarrino today that a judge hearing a separate suit by Harris will decide on a request to stay his June 30 ruling at a Sept. 21 hearing. That lawsuit, in state Supreme Court , targets Sciarrino, saying his ruling is inappropriate. A ruling in Harris’s favor there may aid Twitter in its own appeal of Sciarrino’s ruling to the Appellate Term.

Sciarrino rejected a request today by Terryl L. Brown, a lawyer for Twitter, to stay his own June 30 order, and said he would instead keep the information sealed until the Sept. 21 ruling, therefore preserving the company’s rights.

Today’s order “is not considered to be a waiver of Twitter’s right to appeal,” Sciarrino said in court.

Brown had argued that Twitter “is being given an unfair Hobson’s choice” of waiving its right to appeal or be held in contempt of court. [emphasis added]

[A pdf copy of Terryl L. Brown's statement to the court is available via digitaltrends.com].

Oddly, Malcolm Harris’ attorney, Martin Stolar views Twitter’s decision as a fait accompli. According to Time-Techland:

“We are disappointed that Twitter is essentially giving up the fight,” Harris’ attorney Martin Stolar said after the court hearing.

The appeal is scheduled for September 21, 2012: People v. Malcolm Harris and Twitter, Inc., New York Appellate Term-Supreme-Civil, First Department (File No.: 570850-2012)