Earlier today, Twitter gave in to a New York court subpoena requiring it to turn over more than three month’s worth of tweets posted by user Malcolm Harris, 23, who was arrested last September during an Occupy Wall Street Protest. The surrender of the tweets, which Harris deleted from his public profile, follows a months-long battled by Twitter to keep the information from landing in the hands of prosecutors.
The surrender of the tweets was the result of presiding New York State Supreme Court Judge Matthew Sciarrino’s threat to hold the company in contempt and impose a fine on Twitter if the tweets were not handed over by today. To assess the amount of the fine, Sciarrino demanded that Twitter disclose its earnings statements from the past two quarters — financial data that Twitter, as a privately-held company, does not want to be made public by the court.
The tweets will remain under seal at least until after the court hears Twitter’s appeal on the court order demanding the tweets, which will take place on September 21.
“So Twitter handed over a pile of my tweets that’ll stay sealed pending a hearing on the 21st. Bummer.”
— Malcolm Harris (@BigMeanInternet) September 14, 2012
Harris was one of more than 700 people arrested on October 1, 2011, for disorderly conduct after about 2,000 protesters blocked traffic on the Brooklyn Bridge roadway. Prosecutors believe Harris’s deleted tweets will prove that he knew he was disobeying police orders to not block the roadway.
What this means for you
Whether you plan to start protesting things or otherwise bring the attention of police, prosecutors, and courts into your life, Twitter’s involvement in the case against Harris should concern anyone who looks to the U.S. Constitution as the law of the land. At stake are the rights afforded by the Fourth Amendment’s protection against “unreasonable searches and seizures,” and the First Amendment protection of free speech, both of which are being tested by this case — a case that, on its surface, only concerns a misdemeanor crime punishable by a $250 fine or 15 days in jail.
Public vs. private
Were Harris’s tweets still publicly available, Twitter would not be involved in this case; the police could simply grab the tweets. However, because Harris deleted the tweets, all types of legal gray area has clouded the court’s proceedings.
Back in July, after Twitter attempted to quash the subpoena for Harris’s tweets, Judge Sciarrino ruled that any tweet posted publicly does not enjoy the same Fourth Amendment protections as private speech, even if the tweets had been deleted. Sciarrino’s interpretation is that Twitter, not Harris, own the tweets posted through the service. This, despite Twitter’s terms of service, which clearly state that, as a user, “You retain your rights to any Content you submit, post or display on or through the Services.”
“The Constitution gives you the right to post, but as numerous people have learned, there are still consequences for your public posts,” wrote Sciarrino in his July 2 ruling. “What you give to the public belongs to the public. What you keep to yourself belongs only to you.”
One of the laws behind Judge Sciarrino’s ruling is what’s known as the Fourth Amendment’s “third-party doctrine.” This controversial rule, established as part of the Electronic Communications Privacy Act of 1986 (ECPA), in part dictates that any online communication or records that exist on a third-party server (such as emails stored by Gmail, or tweets stored by Twitter) may be accessed by law enforcement without a warrant, as long as the data has been stored for 180 days or more. The understanding at the time the bill was written was that such communications or files had been “abandoned” by their owners, and as such, removed the owners’ expectations of privacy.
This portion of ECPA has been recognized as out-of-date, as the law was passed at a time when online communications were rare. As I wrote earlier today, a new bill has been introduced to the Senate Judiciary Committee that would strike the third-party doctrine from the books. Unfortunately for Twitter and Harris, that bill is not likely to pass soon enough (if at all) to have bearing on this case.
Moreover, the third-party doctrine was recently opposed by Supreme Court Justice Sotomayor, who wrote the following in an opinion issued in United States vs. Jones, which dealt with police using a GPS device to track a suspect’s car for an extended period of time:
…It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties…This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers.
Free speech caged
The Electronic Frontier Foundation (EFF), along with the ACLU, New York Civil Liberties Union (NYCLU), and Public Citizen filed an amicus brief (pdf) on behalf of Twitter for this case. In that brief, the groups argue that the inability for an individual (in this case, Harris) to quash a subpoena of this nature on First Amendment grounds wades into dangerous territory, as it threatens to disuade citizens from engaging in free speech through any form of digital communication.
“If people know that the government will be monitoring their speech and creating dossiers on their past, present, and future communications such that they will be held accountable for everything that they say, people will be less inclined to speak or read as freely,” reads the brief. “That is especially the case with respect to ‘casual,’ spontaneous speech, because individuals would likely refrain from publicly making such statements or flipping through random books or websites as often if they thought that the government might later obtain that information and hold it against them.”
Going to bat for users — no more?
Beyond the questions of constitutionality, the court’s decision to bully Twitter into handing over Harris’s deleted tweets may lead other online service providers to shy away from fighting for their users when the laws are as controversial or unclear as this one.
“The big implications [are] that the judge’s actions of putting Twitter in a tight spot (either disclose or face contempt) is likely to discourage companies from zealously standing up for user privacy,” said Hanni Fakhoury, staff attorney for the EFF, in an email with me earlier today. “By not waiting for the case to run through the appellate process, the judge almost seems to infer that Twitter’s protest is frivolous.”
“The court should have waited for the appeal to go through,” added Fakhoury. “Without further appellate guidance, and now with a court inferring companies will be punished for trying to sort the law out, I am skeptical whether other companies will take a stand the way Twitter did.”
As an Internet user whose work and communications exist mostly online, the types of actions taken by Judge Sciarrino frighten me — not because I have anything to hide, but there are clearly holes in our laws that allow our rapidly changing digital lives to be exploited. Am I — and the others who opposed this action — paranoid? Perhaps. The problem is, it will be too late if we find out we’re not.
I want to know what the rest of you think about this. Leave a comment below, or hit me up on Twitter: @andrewcouts. Just make sure to not say anything incriminating — it could be used against you in a court of law.
Update: This article has been updated with additional information about the Constitutional consequences of New York v. Harris.