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NY judge rules public tweets are public

Stacked3This week's Daily Record column is entitled "NY judge rules public tweets are public."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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Much has been written about People v. Malcolm Harris, a criminal case pending against an Occupy Wall Street protester charged with disorderly conduct based upon allegations that he disrupted traffic on the Brooklyn Bridge while protesting.

In part, the reason for much of the attention is that it turns out Mr. Harris had a Twitter account, to which it is alleged that he posted about the protests as he was protesting. And, not surprisingly, the prosecution is very interested in gleaning information from his social media postings about his whereabouts and activity around the time of his arrest.

Accordingly, a few months ago, the prosecution served a subpoena on Twitter, seeking access to information related to Harris’ Twitter account. Harris’ then moved to quash the subpoena, but his motion was denied on the grounds that Twitter owned the data and thus Harris lacked standing to challenge the subpoena.

Following that decision, Twitter then moved to quash the subpoena and on June 30, New York City Court Judge Matthew A. Sciarrino Jr. issued ruled on Twitter’s motion to quash in People v. Harris, 2012 NY Slip Op 22175.

As explained in the decision, the order that Twitter sought to quash “required Twitter to provide any and all user information, including email addresses, as well as any and all tweets posted for the period of September 15, 2011 to December 31, 2011… It … deals with tweets that were publicly posted rather than an email or text that would be directed to a single person or a select few.”

So, contrary to the assertions of some who have commented on this ruling, from the language of the decision, it appears that direct messages, which are private messages sent between two individuals and are thus akin to emails or texts, were not sought by the prosecution. The only data sought by the prosecution was Harris’ public tweets and his user information.

In reaching its determination, the court wisely considered offline analogies for the online situation at issue. Specifically, the court likened a public tweet to yelling loudly in a public place: “Consider the following: a man walks to his window, opens the window, and screams down to a young lady, ‘I’m sorry I hit you, please come back upstairs.’ At trial, the people call a person who was walking across the street at the time this occurred. The prosecutor asks, ‘What did the defendant yell?’

“Clearly the answer is relevant and the witness could be compelled to testify. Well today, the street is an online, information superhighway, and the witnesses can be the third party providers like Twitter, Facebook, Instragram, Pinterest, or the next hot social media application.”

I think the court’s analogy is particularly applicable to Twitter, as opposed to other social networks, since tweets from unprotected accounts, which make up the vast majority of Twitter accounts, can be read and accessed by anyone who chooses to view them. This is true regardless of whether a Twitter user follows or is followed by the person viewing the tweets. In other words, unprotected tweets are public messages relayed to anyone with Internet access who cares to view them.

As such, the court concluded, correctly so, in my opinion, that there is no reasonable expectation of privacy in public tweets: “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. 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 … Those private dialogues would require a warrant based on probable cause in order to access the relevant information.”

After holding that public tweets are public, the court held that pursuant to the operation Stored Communications Act (“SCA”) (18 USC §2701 et seq.), all content requested pursuant to the subpoena that was more than 180 days old would be turned over to the prosecution, but any data less than 180 days old would require a warrant.

I think this issue was correctly decided by the court. Don’t get me wrong — I have grave concerns about unfettered governmental access to confidential electronic data stored with third parties and believe that that the SCA is in dire need of revision in order to keep up with the times.

But, unlike much of the private information stored with third-party providers, public tweets are just that: they’re public. And Twitter users who have agreed to Twitter’s terms of use and claim otherwise are deluding only themselves.

Nicole Black is a Rochester, New York attorney and the Vice President of Business Development and Community Relations at MyCase, an intuitive cloud-based law practice management platform for the modern law firm. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at nblack@nicoleblackesq.com.