Privacy advocates this week said they are dismayed, but not surprised about a New York Criminal Court judge's decision ordering Twitter to hand over all the data it has on an Occupy Wall Street protester being investigated for disorderly conduct.
In an 11-page ruling, Judge Matthew Sciarrino denied Twitter's motion to quash a subpoena from New York City prosecutors seeking the deleted tweets, email addresses, IP address and other information of Twitter user Malcolm Harris, who was arrested last year in connection with the New York OWS protests.
The ruling marked the second time the same court has rejected arguments that the data being sought by prosecutors is constitutionally protected and can only be obtained via a search warrant. Harris had earlier sought to quash the subpoena.
The court rejected Harris' claims because the data sought by prosecutors belonged to Twitter, not him. The court asserted that Harris therefore had no standing to challenge the subpoena.
In filing its motion to quash the subpoena, Twitter contended that under its terms of service, the data belonged to Harris.
Twitter argued that taking away Harris' ability to challenge the subpoena unfairly puts the onus on Twitter to legally defend its users rights.
Twitter and Harris both contended the data being sought was protected under Fourth Amendment prohibition of unreasonable search and seizure. Thus, Twitter maintained that prosecutors needed to obtain a search warrant before they could ask for the data to be handed over.
In dismissing the arguments, Judge Sciarrino held that the Fourth Amendment didn't apply in this case because there would be no physical intrusion into Harris' Twitter account.
"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 tweets, which you have now gifted to the world," he wrote.
Tweeting is very different from a private mail, private chat or other forms of private online communications, Sciarrino wrote.
"Those private dialogues would require a warrant based on probable cause in order to access the relevant information. " The same is not true of public tweets, he noted.
The ruling elicited predictable groans from privacy rights groups. "We think the judge missed the point on the privacy analysis," said Marc Rotenberg, executive director of the Electronic Privacy Information Center (EPIC).
"It's one thing for the police to overhear a person shout an incriminating statement. We agree there would be no expectation of privacy" in those situations, Rotenberg said. "But when the police go to a communications service provider and demand that the company turn over records of a customer, that is a very different scenario."
In an amicus brief filed with the court, EPIC and other groups, including the Electronic Frontier Foundation and the American Civil Liberties Union, noted that prosecutors were not asking just for the content of Harris' tweets -- the subpoena also sought the date, time, and IP address Harris used each time he logged into his Twitter account over a three-month period.
The privacy groups contended that seeking such information without a warrant is a violation of Harris' First and Fourth Amendment rights.
The judge's decision to order Twitter to hand over the information is a dissappointment, said EFF staff attorney Hanni Fakhoury in a blog postWednesday.
"While we're not surprised the judge didn't change his mind, we're still disappointed to see the court failing to appreciate the privacy concerns at stake." Fakhoury said. "We think the court is behind the times on this important issue."
Chris Hoofnagle, director of information privacy programs at the Berkeley Center for Law & Technology, said that courts, in general, have been unwilling to burden criminal procedure with First Amendment speech issues.
"I did not find the outcome surprising," Hoofnagle said. "Criminal investigation routinely involves records that are revealing of speech and associational activity. "
Behnam Dayanim, an attorney with Axinn Veltrop & Harkrider's litigation and regulatory group said that the verdict came as no surprise to him for different reasons.
"To me, the proposition that just because a tweet might be considered property of Twitter it is therefore protected under the First Amendment and Fourth Amendment, is a stretch," Dayanim said. "Just because something is property of your doesn't mean that the government isn't entitled to obtain it through a court ordered subpoena," he said.
