Twitter lost a landmark court case on Monday after a New York judge ruled against the company’s attempt to avoid handing over information of one of its users, an “Occupy Wall Street” protester, to the Manhattan District Attorney.
“We are disappointed in the judge’s decision and are considering our options,” a Twitter spokesperson told TPM in a statement.
Twitter argued it shouldn’t have to comply with a subpoena from the Manhattan District Attorney to deliver user and “Occupy” protester Malcolm Harris’s information — including Harris’ email address and tweets — because doing so would place an undue burden on it and would force it to violate other U.S. privacy law, including the Stored Communications Act.
But New York County Criminal Court Judge Matthew A. Sciarrino disagreed with this rationale, overturning Twitter’s motion to quash the subpoena by explaining that that there was no expectation that tweets were private, in comparison with other electronic communications, including email, private chats and even private Twitter Direct Messages. As Sciarrino wrote in the ruling:
“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.”
The judge also turned Twitter’s own policies and businesses decisions against the company as rationale for upholding the subpoena, pointing out that Twitter in 2010 signed an agreement to allow the Library of Congress to keep an archive of all public tweets ever made on the service, using the information sharing as an example that Twitter itself didn’t consider the content private.
Further, the judge noted that Twitter altered its own terms of service in May 2012, well after the subpoena had been issued, to clarify that users own their own tweets and content posted on the website.
Finally, the jude acknowledged that the Founding Fathers would have loved Twitter and social media, but even they would not been protected from a subpoena of this nature:
“…it is probably safe to assume that Samuel Adams, Benjamin Franklin, Alexander Hamilton and Thomas Jefferson would have loved to tweet their opinions as much as they loved to write for the newspapers of their (sometimes under anonymous pseudonyms similar to today’s twitter user names). Those men, and countless soldiers in service to this nation, have risked their lives for our right to tweet or to post an article on Facebook; but that is not the same as arguing that those public tweets are protected.”
Under the new outcome, Twitter is ordered to hand over Harris’s information immediately. However, the judge did agree with Twitter on one thing: That a warrant is required to access information older than 180 days old. Still, that means that the tweets that the Manhattan DA originally asked for are fair game.
The decision also upholds “third party doctrine,” the legal precedent that government and law enforcement agencies may ask third parties for user information without every alerting those users.
Twitter’s spokesperson disagreed with the judge’s decision, writing: “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.”
The Twitter user who’s information was at stake, Malcolm Harris, a writer and online satirist, was first subpoenaed after being among the 700 people arrested on the Brooklyn Bridge during an “Occupy Wall Street” protest in October 2011.
Like many of the protesters picked up by New York Police during the clash, Harris was charged with disorderly conduct and released.
But unlike most, the Manhattan DA wasn’t done with him, yet. The DA filed a subpoena on January 26 demanding that Twitter provide “[a]ny and all user information, including email address,” as all of Harris’s tweets from September 15, 2011 through December 30, 2011, which Harris made under the username “destructuremal.”
Under the same username, Harris was also the one responsible for starting the false rumor that Radiohead would play at the protesters’ encampment in Zucotti Park.
Tweeting from his new account, “BigMeanInternet,” on Monday, Harris reacted to the judge’s ruling, tweeting a response to a question from a Big Government journalist: “I ain’t done nuffin and the DA is a punk.”
The ACLU, which filed a brief on behalf of Twitter’s motion to quash the subpoena, was also dismayed with the ruling. As ACLU attorney Adam Fine said in a statement: “What is surprising is that the court continued to fail to grapple with one of the key issues underlying this case: do individuals give up their ability to go to court to try to protect their free speech and privacy rights when they use the Internet? As we explained in our brief, the answer has to be no.”
Twitter has previously consistently attempted to fight government and law enforcement requests for user information. A few minutes after the ruling in Harris’ case came down Monday, Twitter released its first-ever transparency report, revealing the number of requests for user information and content takedowns it received over the past year. The vast majority came from the U.S., where Twitter is proportionally most popular, according to third-party tracking firms. Twitter complied with 75 percent of requests for user information in the United States, according to its own report.