An Occupy protestor’s tweets are the center of a legal maelstrom, sparking controversy over privacy on Twitter.
Tweets as Evidence
Police arrested Malcolm Harris for disorderly conduct when he blocked traffic on the Brooklyn Bridge during the protests. This week, New York City Criminal Court Judge Matthew Sciarrino upheld a court order for the information and told Twitter to hand over access to Harris’ account, since the prosecution believes his tweets confirm he knew his actions were illegal. Harris maintains the police directed him to the bridge.
Sciarrino said Twitter needed to give up Harris’ account information because people using Twitter to communicate have no reasonable expectation for privacy. He compared tweeting to shouting out a window and dismissed the idea that accessing Harris’ Twitter account violated the 4th Amendment.
Even though Harris made his account private and removed some potentially inflammatory tweets, Sciarrino noted websites like Politiwoops purposely capture tweets politicians and other figures try to hide. Those websites screen capture tweets as they happen from political figures and other Twitter celebrities, so they can highlight when these people try to delete or change tweets. Since Harris is not a Twitter celebrity, however, his tweets did not appear on this kind of website, so the court needs his account information to see them.
Also, Sciarrino highlighted a website called “Tweleted” in his argument, which used to help people recover their deleted tweets. However, it has been down since 2009, suggesting the judge did not do his homework very thoroughly while crafting his statement — Twitter fixed the bug that allowed people to access the deleted tweets.
Hiding Behind Twitter’s Terms of Service?
In light of Twitter’s recent transparency report, which shows the U.S. leading the charge for information requests, this particular incident takes on an emblematic quality, since it is a criminal case with decidedly political undertones.
Twitter complies with 75 percent of U.S. requests for information, but in this instance it is trying to fight for Harris, and a Twitter spokesperson said the company is weighing its options.
Sciarrino’s reasoning is off: if Harris had left his tweets up for the world to see, then certainly there would be little recourse if the police got hold of them. But he displayed savvy about how Twitter works by protecting his tweets, which suggests Harris believed he could hide the tweets based on Twitter’s terms of service.
Since Harris displayed knowledge of Twitter that suggested he knew how to obfuscate controversial postings. After all, no one needs a subpoena to hear something openly yelled. At the same time, deleted Twitter messages figured heavily into the highly publicized trial of Dharun Ravi, so the idea of courts admitting tweets removed from the public view is certainly not unique to Harris’ case.
Potentially Crossing the Fine Line
But even if Sciarrino’s statement about tweets becomes a standard for handling Twitter cases, it is troublesome to see members of the U.S. justice system trying to pry Twitter open for evidence. The micro-blogging site served as a potent organizing tool for revolutionaries in the Middle East despite attempts from regimes in places like Syria and Egypt to squash their communication, and the U.S. supported these protestors’ actions.
If a U.S. judge diminishes freedom of communication on Twitter by saying that nothing is private, even direct tweets between two protected accounts, it sets a terrible global example. It is especially troubling since the U.S. is also ramping up its demands on Google, illustrating that government officials and agencies want more access to personal information from the Internet.
Sciarrino acknowledges Twitter’s role as a platform for exercising free political speech in the conclusion to his decision, and notes that the Founding Fathers would have defended the right to speak freely using the website. He draws the distinction between public and private, noting, “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.”
The problem with his decision lies in that the tweets in question are no longer publicly available, and were composed for a select network of people. They are not public statements akin to material published in a newspaper or on an open blog. They are only available once Twitter cedes access rights to government officials, which speaks to the ambiguous nature of online privacy.
Everything on the Internet leaves a data trail, so perhaps Harris was naïve to think he could keep his tweets from the authorities. At the same time, people do enjoy an assumed privacy while using personal e-mail accounts, and even direct Facebook messages. If Harris assumed his tweets could be protected or expunged from the site’s public element, and that his account was his own property — which, according to Twitter’s terms of service, is correct — he assumed a degree of privacy very different from Sciarrino’s conception of Twitter.