Twitter and Warrantless Data Disclosure

Image credit glennshootspeople via Flickr (CC BY-NC 2.0)

A year after the Occupy Wall Street movement began the disorderly conduct case of one of its protesters could dilute privacy rights online, as Twitter was forced to release a protester’s tweets to a court without a search warrant on Sept. 14.

Occupy Wall Street protester Malcom Harris faces a maximum $500 fine or 15 days in jail for his arrest as part of a march at the Brooklyn Bridge on October 2011, where approximately 700 other people were arrested. His “not guilty plea” made the case much more significant when the New York Criminal Court subpoenaed his tweets from September 15 to December 31, 2011.

An order from New York City Judge Matthew A. Sciarrino Jr., available here, ruled that Twitter posts were public. It is unclear whether this could be interpreted differently for social media information contained behind privacy settings, such as on Facebook.

“What you give to the public belongs to the public. What you keep to yourself belongs only to you,” Sciarrino wrote.

While Twitter appealed in July against the January subpoena to release Harris’ tweets without a search warrant, the company released the tweets on Sept. 14, after Sciarrino denied the appeal. Twitter owns user-generated content and was ordered to hand over the tweets or be held in contempt of court and face a potentially heavy fine.

Twitter may have conceded to prevent the disclosure to the court of its financial records from the past two quarters, which Sciarrino stated he needed to decide on a fine. The trial for Harris is slated for December.

Using those tweets prosecutors could read what Harris said and determine his location at various points, but they could also get information on his network of Twitter followers, such as their photos and interactions.

Along with inspiring caution about what people post online, this development could open the door for judges to grant third party subpoena requests for social media information without need for a search warrant from law enforcement.

Police involved with Harris’ arrest in 2011 said demonstrators ignored warnings to stay on a pedestrian path. Prosecutors claimed the tweets would indicate whether Harris was aware of police orders not to protest on the Brooklyn Bridge roadway.

Other groups came to Harris’ defense, including the ACLU, the Electronic Frontier Foundation (EFF). Public Citizen filed an amicus brief on behalf of Twitter, arguing that the request by law enforcement without a warrant violated Harris’ constitutional right to free speech as well as his right to a reasonable expectation of privacy.

Legal experts at EFF cited examples of other judges’ analyses of disclosing online data. In A January 2012 United States v. Jones case ruling that GPS surveillance is a “search” under the Fourth Amendment, Justice Sonya Sotomayor of the U.S. Supreme Court wrote she “would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.”

Warrantless surveillance of electronic communications by federal agencies has already dramatically increased the past few years, according to U.S. Department of Justice obtained by the ACLU through a Freedom of Information Act request. To preserve expectations of privacy Web companies should continue to fight for their users’ rights and “not to falter in the face of this setback,” stated EFF Staff Attorney Hanni Fakhoury.

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