Twitter turns over Occupy tweets to court: Why this matters

occupy twitter protests against new api rules bird cage large

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.

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.

Reuters was first to report this story. Twitter declined our request to comment on the case beyond remarks made to the court (pdf) by attorney Terryl Brown, Twitter’s outside counsel.

Occupy Wall Street

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.”

Constitution

Third-party doctrine

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.”

Your thoughts?

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.

Images via Daryl Lang & jcjgphotography/Shutterstock

The views expressed here are solely those of the author and do not reflect the beliefs of Digital Trends.

Computing

Nvidia’s new GPUs look amazing, but that doesn’t mean you should buy one

Nvidia's GeForce 2080 is a powerful graphics card that supports ray tracing to deliver real-time cinematic renderings of shadows, light, and reflection in games, but unless you were already planning on upgrading, you'll probably want to…
Movies & TV

'Prime'-time TV: Here are the best shows on Amazon Prime right now

There's more to Amazon Prime than free two-day shipping, including access to a number of phenomenal shows at no extra cost. To make the sifting easier, here are our favorite shows currently streaming on Amazon Prime.
Movies & TV

Stay inside this fall with the best shows on Hulu, including 'Castle Rock'

It's often overwhelming to navigate Hulu's robust library of TV shows. To help, we've put together a list of the best shows on Hulu, whether you're into frenetic cartoons, intelligent dramas, or anything in between.
Movies & TV

The best shows on Netflix, from 'The Haunting of Hill House’ to ‘The Good Place’

Looking for a new show to binge? Lucky for you, we've curated a list of the best shows on Netflix, whether you're a fan of outlandish anime, dramatic period pieces, or shows that leave you questioning what lies beyond.
Movies & TV

Peter Dinklage gets cryptic about two 'Game of Thrones' characters' fates

With the eighth and final season looming, Game of Thrones fever has officially become a pandemic. Our list of all the relevant news and rumors will help make the wait more bearable -- if you don't mind spoilers.
Wearables

New Wear OS smartwatches have arrived! Here’s why you shouldn’t buy them

The likes of Skagen and Diesel have unveiled new Wear OS smartwatches at IFA 2018. You shouldn't buy them, because they're utilizing an old processor. Qualcomm is expected to announce a new wearable processor next month.
Movies & TV

Bored with Netflix? As it goes global, the selection is about to explode

Netflix is going global. And even if you never leave step foot outside America, you should be excited. More subscribers abroad means more original, diverse content, and plenty to watch when House of Cards gets stale.
Home Theater

8K is the next big thing in TVs. Get over it

8K is the next big thing in TV. At least, that’s how LG, Samsung, Sony, and Sharp would have it. At IFA 2018, Samsung announced it would begin shipping its gorgeous Q900R series series 8K TVs this year. LG arrived with a glorious 88-inch…
Features

Opinion: Apple needs to modernize its antiquated annual app update routine

While Google updates its core Android apps frequently through the Play Store, Apple saves up core app updates for its annual iOS unveiling. Perhaps it’s time that Apple took a new approach.
Photography

Canon and Nikon’s new mirrorless cameras impress. Should Sony start worrying?

Canon’s EOS R and Nikon’s Z mirrorless systems are coming out of the gate strong, incorporating features that took Sony years to implement and refine. But Sony still has a lead, and may have it for some time.
Mobile

XS Max? XR? Apple’s new iPhone names are a confusing mess

Apple's new iPhone range has the most baffling set of names we've seen in a while, and it's not good news. The phones may be great, but the confusing names shift away from the one brand name everyone knows.
Apple

OPINION: Apple’s new iPhones show off its best tech, and also its greed

We’re just as enamored by the new iPhones as the next person, but with fast charging an extra cost and the removal of the headphone dongle it feels like Apple is gouging us on accessories.
Smart Home

The Google Home Hub doesn’t have a camera. Here’s why that’s a good thing

Bucking the smart display trend, Google's new $149 Home Hub smart display surprisingly doesn't have a camera. We think a camera-less Google smart speaker with a screen is a good thing, and here's why.
Mobile

It’s the phone equivalent of a Bentley. So why does the Pixel 3 look like a VW?

Google has got 100-percent of the Pixel 3's specification and technology right, so we're annoyed that it only got 50-percent of the design right. In a year of fabulous-looking phones, this is a problem.