Even When Twitter Loses, They Win

The first rule of Twitter Fight Club is You do not talk about Twitter Fight Club. The second rule of Twitter Fight Club is that you use the appropriate hashtag when talking about Twitter Fight Club.

I admire the heck out of Twitter’s commitment to their user base.  They know their audience and they consistently take actions that their user base can get behind.  So even if those actions don’t end up being successful, at the very least they’ll increase their users’ trust and sometimes they can even score some other victories.  Such as when they were forced to allow certain governments to censor tweets, Twitter announced they would honor requests to take down tweets but then publish all the details to the Chilling Effects project.  Twitter knew they weren’t going to be able to change all those governments’ laws regarding censorship (yet) so they did the next best thing–gave in on one level while fighting for their users by publishing all the information about the take down request.

Another recent example of Twitter taking up a losing fight for the sake of their users is the recent battle to turn over tweets and account information for an Occupy protester now facing criminal prosecution.  I first mentioned this case in a quick update back in May, but the court ruling just came out last week.  Here the headlines all read that Twitter has been forced to turn over the tweets, which if that’s all you cared about, seems like Twitter lost.  But they didn’t.

First, it’s worth noting what this case was about.  Malcolm Harris was one of about 700 protesters who were arrested on the Brooklyn Bridge in October, 2011, when protestors left the walkway of the bridge and entered the traffic lanes, tying up traffic.  Prosecutors expect Harris to make the argument that on the day of the protest the NYPD instructed protesters to get off of the walkway and walk in the traffic lanes, thereby making the argument that Harris was following directions and cannot be found guilty of disorderly conduct (the charge against him).  Instead, prosecutors claim that Harris and others knew the police told them to stay out of the roadway and that the tweets Harris sent out would indicate as much.

Prosecutors then subpoenaed Twitter for the tweets and account information to help build their case.  Harris tried to quash the subpoena but the judge held that Harris didn’t have standing in the matter because Twitter’s terms gave them the right to distribute the tweets, effectively making the tweets third party documents that properly belong to Twitter.  The judge also likened the case to when banks are subpoenaed for financial documents in criminal cases–it has long been held that individuals do not have the right to intervene in those subpoenas since the banks own those records.  So when Harris’ motion was thrown out, Twitter took up the charge by making the same arguments that Harris had made with the additional twist of trying to argue that individuals should have the right to intervene since they still own their tweets.

Like I said, a good move because even if Twitter loses at least they get to say they tried.  And that’s exactly what happened, except that Twitter did win a little bit.

Yes, Twitter was ordered to turn over the tweets for the account at question.  But even with that order the judge actually admitted that Twitter was right–that the tweets at question were governed by the Stored Communications Act and therefore required a warrant rather than a subpoena.  This is actually a big victory for Twitter even if it ended up not helping them.  A warrant typically requires judicial review, so it’s a higher standard to pass (imagine trying to convince a judge why you need some tweets for a criminal case).  A subpoena, for cases like these, is just a form you fill out and send away.  So the ruling does set the higher standard for requesting tweets and may help limit the requests that Twitter gets in the future.

Unfortunately, the Stored Communications Act only covers information less than 180 days old.  When Twitter filed their papers, that included all the tweets at issue (since the prosecution asked for tweets covering a specific date range).  But by the time the ruling was issued, all but one of the days at issue was beyond the 180 day cut-off.  So, an empty victory.

The other, perhaps small victory here, is that the judge did say the tweets and account information would be turned over to him and he would determine what would be passed on to the prosecution.  He did not rule that Twitter should just turn everything over directly to the prosecution.  At least that makes it a bit more focused and not a fishing expedition for the prosecution to find embarrassing or other tweets that Harris didn’t want getting out.

The judge also held there can be no expectation of privacy for public tweets.  That’s a huge statement although it makes perfect sense.  It first came up in the context of the third party subpoena issue–Harris could have defeated the third party subpoena by showing he had a privacy interest in the tweets.  But the judge, Sciarrino, one of the rare judges who understands social media, correctly pointed out that there can’t be an expectation of privacy for unprotected tweets that could have been seen by Twitter users and non-Twitter users alike.  As he says, “essentially anyone with Internet access” could view the tweets.  Hard to assert an expectation of privacy in a situation like that.

Further complicating this case, Harris later changed his account to a protected status so that only people he allowed access could view his tweets.  Social media is funny that way–it enables conversations but it’s a shifting conversation because many platforms allow history to be rewritten.  Comments can be edited (that’s been true on Google+ since inception and Facebook recently introduced it).  Comments can also be deleted.  Accounts that were public can suddenly become private.  It creates a shifting landscape so the conversation you see today may not actually be the conversation that took place last week.  Although not explicitly addressed, the judge in this case suggests that the change in account status doesn’t matter–the tweets were initially made to the public and that’s what counts.

So, sure, perhaps Twitter lost the battles they wanted to win (trying to get the judge to let individuals fight this battle in the future, turning over the information) but they won one crucial victory in getting the judge to admit the Stored Communications Act applied.  And they scored an even more crucial victory in showing that they’ll stand up for their users.   That’s always a good fight to take on since even when you lose, you win.


1 Comment

Filed under Laws, Privacy, Social Platforms, Twitter

One response to “Even When Twitter Loses, They Win

  1. Pingback: If You Tell 140 Million People Something, Is That Private? | SoMeLaw Thoughts

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