08 July 2012


A decision in the US highlights questions about evidence, copyright and privacy in relation to Twitter.

The case is People of the State of New York v. Harris, 11-80152, New York Criminal Court (Manhattan).

Judge Matthew A. Sciarrino Jr of the Criminal Court of the City of New York (ie state rather than federal jurisdiction) has ordered that three months of tweets by Occupy Wall Street protestor Malcolm Harris (with the hashtag destructuremal, somewhat less exciting that fleurs du mal) be provided to Manhattan prosecutors. Twitter was also requested to identify any IP addresses associated with the tweets and the email address on Harris’ profile.

Harris had opposed a subpoena seeking access to his tweets in relation to charges of disorderly conduct after arrests on the Brooklyn Bridge. Sciarrino  rejected the argument that access would violate Harris' rights to privacy. The Court held that Harris had wanted the whole world to see his tweets, irrespective of subsequent efforts to delete them. Access to private communications - such as a one to one SMS - was different and would require the traditional search warrant.
There can be no reasonable expectation of privacy in a tweet sent around the world. If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy. There is no proprietary interest in your tweet, which you have now gifted to the world. This is not the same as a private email, a private direct message, a private chat, or any of the other readily available ways to have a private conversation via the internet that now exist
In April Sciarrino held that Harris lacked the standing to oppose the subpoena because under Twitter’s terms & conditions he had granted the company the “worldwide, nonexclusive, royalty-free” right to distribute his messages, which were all publicly available. In the latest decision the Court rejected Twitter's attempt to quash the subpoena [PDF].

Sciarrino commented that
The Constitution gives you the right to post, but as numerous people have learned, there are still consequences for your public posts. What you give to the public belongs to the public. What you keep to yourself belongs only to you.
He went on to note that Harris should have known that online services can retrieve deleted tweets -
Even when a user deletes his or her tweets there are search engines available such as "Untweetable," "Tweleted" and "Politwoops" that hold users accountable for everything they had publicly tweeted and later deleted.
Harris acknowledged that his Twitter account was public and that he wanted his tweets to be widely read but indicated that he was fighting the disclosure on principle.

Twitter responded that -
We are disappointed in the judge's decision and are considering our options. Twitter's Terms of Service have long made it absolutely clear that its users ‘own’ their content. We continue to have a steadfast commitment to our users and their rights.
They would say that, wouldn't they. The no doubt heartfelt commitment is somewhat at odds with announcement by the Library of Congress in 2010 that it had an agreement with Twitter to archive all tweets on that service -
How Tweet It Is!: Library Acquires Entire Twitter Archive
Have you ever sent out a “tweet” on the popular Twitter social media service? Congratulations: Your 140 characters or less will now be housed in the Library of Congress. That’s right. Every public tweet, ever, since Twitter’s inception in March 2006, will be archived digitally at the Library of Congress. That’s a LOT of tweets, by the way: Twitter processes more than 50 million tweets every day, with the total numbering in the billions.
The use of 'own' in the Twitter statement becomes meaningful.

We will see some some interesting debates about responsibility for the preservation of information on social network services and Twitter once litigation is underway or is imminent.

Twitter's Transparency Report is online.