If You Tell 140 Million People Something, Is That Private?

“Hey! Do not listen to this! This is my own private thoughts and I don’t want you to hear me!”

The ongoing saga over the Twitter subpoenas in the Occupy New York criminal case just entered another round as Twitter appealed the previous court’s ruling regarding turning over Malcolm Harris’ tweets.  I’ve written about the story before (here and here) but this latest round of papers has some interesting arguments.

There are two main parts of Twitter appeal: one deals with the ability of Twitter or the user to respond to the subpoena, an issue I discussed earlier and not as interesting as the other; the second issue deals with the reasonable expectation of privacy in tweets.  If you want to read all of Twitter’s appeal, here’s the full document.  But I’ll be going over the most interesting part about expectations of privacy.

First, a quick primer.  Harris was arrested as part of the Occupy New York march that ended up obstructing traffic on a bridge.  He contends the police told him to go on the road, they say otherwise.  After his arrest, Harris made his Twitter account protected so only authorized people can read the tweets.  The government would like to look at his tweets to see if they shed light on the issue (“Cops say don’t go on the road but let’s do it anywhere #iwannagetarrested”).  Cue court battle.

Now, back to that reasonable expectation of privacy.  Twitter first argues that there is an expectation of privacy in this case because the government cannot access Harris’ tweets without assistance from Twitter.  In this case it is because Harris has now made his Twitter account protected (so only individuals he authorizes can see his tweets) but they say that this can also happen because the tweet could be deleted or no longer visible (only the last 3200 tweets are currently visible through Twitter).  Nowhere in the brief does Twitter address the fact that Harris’ accounts were public during the time period that the government has requested the tweets.

This brings up a rather fascinating aspect of social media.  We often hear about how risky it can be when people who use social media for minor communications suddenly discover that social media is recorded forever: that joke you made in context suddenly seems offensive out of context later, the comment you made in anger looks very bad the next day, the things you said after a night of drinking…well, you know how that goes.  But this is the opposite of that problem–it is not the permanence of the message but the fluid nature of the content.  We’ve seen instances of content changing over time as comments can be edited, etc., and now we face the issue of changing privacy settings on content.

Here, Harris’ tweets were initially public.  They were broadcast to over a hundred million accounts for anyone to see.  Later, they were protected so that only specific accounts could see them.

So, are those messages now private because of the current setting or are they public because that’s how they started?

I think the answer has to be that outside of factors beyond a person’s control, we must treat content according to the least restrictive method in which it was ever made available.  Meaning if the content is ever broadcast to the entire world, whether the first post or later, it’s game over for an expectation of privacy.  Trying to come up with any other rule immediately runs into the problem of how you treat copies of content that suddenly becomes more restrictive–retweets, shares, simple emails of the content to other people.  It’s the fundamental difficulty in trying to implement a universal right to be forgotten or the magical social media content eraser button suggested by the FTC this year.  If you post something publicly and I retweet it, then you protect that tweet what happens to my retweet?  (Ignore some technical answer like Twitter keeps them connected–imagine I manually typed it in with a hat tip to you.)

I think Twitter knows this as well but they’re trying every argument they can.  Twitter tries to compare this case to emails (since emails have some judicial precedent on being protected):

[I]f an email is entitled to Constitutional protection but an unavailable Tweet is not, what exactly is the dividing line that will allow citizens to understand when the Constitution protects their communications?

To me, the answer seems fairly clear–the dividing line is who you’re telling.  If you sent an email to three people you may have an expectation it will only go to those three people (a weak one at best since that Forward button works really, really well).  But if you sent an email to 150 million accounts I’m not sure what protection you think that communication should be given.

Twitter also has some arguments about why the tweets should be protected even if they are public but that’s more procedural and not as interesting to me today.  Maybe next week.

The ACLU, EFF, and a few other organizations are also joining the fight, filing their own amicus brief in support of Twitter.  They make a much bigger deal of a small point Twitter brought up–that people have a reasonable expectation of privacy in their location and movements over time.  In this they are trying to draw parallels to cases that require the government to obtain a warrant before trailing someone for an extended period of time.  While I understand that comparison, I think it fails.  A person’s public tweets are not just moving through the world, minding their own business.  Tweets are tapping on the shoulder of a hundred million people and telling them the line at Starbucks is really long today.

The fact that most people don’t care or don’t listen doesn’t change the intent.  When you tweet, you want to be heard.  If you walk to the subway stop you may or may not want to be seen.  You also don’t have a choice if you want to use the subway but you always have a choice not to tweet.  I think a stronger comparison could be made as to browsing activity–you could compare my browsing habits (when I do not interact with what I read/consume) to moving through the world.  I do think a warrant should be required for the government to look at my browsing history for a month, but not if I tweet every website I visit.

Given that this is a case of first impression and the press attention, I’m hoping we see some analysis from the appeals court in their decision rather than a quick one line opinion.  We’ll have to wait and see but it’s apparent this issue isn’t going away.



Filed under Laws, Privacy, Social Platforms, Twitter

51 responses to “If You Tell 140 Million People Something, Is That Private?

  1. Wow, haven’t even heard about this yet. Excellent commentary. Congrats on Freshly Pressed as well. I’m anxious to hear this result.

    I agree with you – if someone said something in a speech on television, then later requested that it be “private”, it wouldn’t matter. Think before you speak (or type to millions of people).

  2. Congrats on the FP 🙂 I think your reasoning is good. Hadn’t heard about this case before. 🙂

  3. I think that if someone make a comment with settings at public, then there is no expectation of privacy and therefore, even if you make the account private, that particular content is not protected by any privacy laws.

  4. 1. Congrats on getting Freshly Pressed.
    2. Great post. One hell of a read, by the way (I recently graduated with a PoliSci degree, and I’m thinking about law school next year :))

  5. Nice writeup! I have to admit I started reading this article skeptical of how you were going to defend the state’s right to pry open private conversations. But, I now agree: your argument has teeth. The original intent was to make it public and that cannot be neglected.
    This post reminded me of the Dharun Ravi case, and I am citing a hypothetical case using his example. What if he were initially bigoted and his tweets reflected that, and later on, wised up, decided to renege on his tweets coz he didn’t believe in them anymore? Could those still be held against him coz he was a bigot sometime? I am not ever sure if a person could turn from a bigot to a non-bigot, which is why I totally understand if you choose not to humor this silly question of mine 🙂

    Congrats on being freshly pressed!

    • Thanks and a great question. Sounds more like a scenario where someone could potentially change their mind. It wouldn’t change the intent of the original posts but could show a later change in opinion. What do you think?

      • Agreed. I think that the change in opinion should be given some credit, if not entirely exculpating the person.

      • I agree with you. It is the original intent that matters. If his intent was to tweet to millions of followers then the content of the tweet is public. If, however, his tweet was meant to be private, but became public because of mistaken settings, that is a different question. After all, how many times have you come on Facebook, assuming your previous privacy settings apply, add a photo or make a comment, only to find out that it is suddenly globally available through Google because of new policy changes in Facebook.
        However, I don’t think that applies here with Harris, since it is clear that his intent was to have public tweets and gain more followers.
        I think another important issue at stake here is to have people take responsibility for their actions. So many people have rushed onto Twitter, Facebook, Instagram and other services sharing every detail of their private lives, without thinking of the consequences. People need to learn to think before they share.

      • I agree. I didn’t talk about it at length but when I said outside of factors beyond a person’s control I meant glitches, settings gone awry, etc. what matters is the owners intent, not a bad line of code.

  6. I agree with you on every point.
    And I especially appreciated this analogy: “Tweets are tapping on the shoulder of a hundred million people and telling them the line at Starbucks is really long today.”
    That’s perfect!

  7. Congratulations for being on Freshly Pressed, I also agreed your thoughts. Thanks for sharing such very insightful ideas.

  8. Broadcasting one’s thoughts is taking some interesting directions. This is an avenue that I think you’ve done a great job covering.

    I’m contempleting the “look at me” aspects of having your child hold a sign tattling on themselves by the side of the road. There is a connection there… a new attention whoring fad mixed with shame and bad judgement and the validation of every thought passing through one’s mind by putting it on display. I’m not sure where I’m going with this and I’m not sure where the trend is going, either. But thanks for this article!

  9. Genie

    The sad truth is that what goes on the internet – stays on the internet.

    I have seen people post stuff at various sites …from Facebook, Ning, WordPress, etc., the content had been erased long ago, however, some people take “screen shots”, to preserve content on the web, usually to harass someone and or win some net argument which was usually “a tempest in a teapot”, in the first place.

    Also, this is done to stalk people, another problem that the net has made much easier since people say to much on the net and post too many photos of themselves and also post where they live.

    The net has information one will not find on TV or in magazines and newspapers, so it’s got a terrific information highway – which of course must be used with wisdom and caution, however, the net has this down side of having the potential to ruin poeples’ lives by splattering information – true and many times not true about peoples’ lives. Lies are posted as truths about people who often do not even use the internt; an example is of a post I read the other day where the person spoke of their very elderly father who they said does not use the net in the most nasty way to accuse him of being lonely due to his “being stuck on mum dying 8 months ago, instead of going out there and finding someone new.” (after 50 years of marriage), this, not from a teenage punk but a person who posted that they are 47.

    Needless to say, I stopped following the person even though they are very talented at what they do, the added gossipy and nasty dialogue ruined the content for me.

  10. Pingback: If You Tell 140 Million People Something, Is That Private? « Grace's Tech Blog

  11. Privacy Access Canada

    Good work! I was excited to see a post about privacy in freshly pressed too!

  12. I found your post really engaging, congrats on being FP! I know its not fair to compare a criminal case to a job application, but they can be related. Like an employer wondering why your twitter (or FB) account is private or hidden. But what happens in a background search, where you need one done for a particular job. Do private accounts throw up red flags? Do you authorize them to look at your accounts when you get the background check? I think this has more far-reaching implications than just an arrest case.

    Also, somebody had to have known this person had the account in the first place. If they were concerned this person were a risk, why didn’t they screen capture his tweets? Breach of privacy?

    • Good questions. I think they probably had too many people to focus on just one but by then it was too late to look. Or they didn’t think it would be an issue. We shall see.

  13. Allan MacLeod


    Congrats on being Freshly Pressed. I think about this Tweet issue in particular as I would think about writing on a wall in a public place. Naturally, it’s out there for everybody to see, but if somebody erases that writing, it no longer exists unless somebody took a picture or otherwise recorded what was written.
    Similarly, while his Tweet was public, it is no longer public and unless the police can find a record of what he Tweeted (which shouldn’t be difficult), it should be considered private, protected communication. I don’t know if the courts will agree, but that’s how it seems to me anyway. Thanks for the insightful post!

    • Thanks! I see the point (Twitter agrees with you) but I’m not comfortable with retroactively changing the nature of the communication. It started public, and while he has the right to change his account he shouldn’t be able to deny his previous statements were public. User settings aren’t time machines. Although that would be really cool.

  14. deb

    This is fascinating. Thanks for posting. It’s easy to forget that social media like Twitter is still relatively uncharted territory, particularly with regard to free speech, privacy and, in some cases, personal boundaries. It will be interesting to see how this case plays out.

  15. SomewhereAmazing

    A case of trying to pull back the horse after its bolted.

    Its quite simple, if you don’t want it made public, don’t tweet it. To make it private after the event is like some trick a defence lawyer would try to pull to get someone who is blatantly guilty off the hook.

    I’d have to say that even with private tweets to authorised followers, there is still the risk that the authorised follower will share the information via Facebook for instance or verbally elsewhere, something the original tweeter has no control over. For me, again, if you don’t want it made public, don’t tweet it.

    Congrats on the FP 🙂

  16. Very interesting article…perhaps someone in the comments has touched on this, but I actually just switched my twitter from private to public today, and there is a little “warning” or what have you, that says “tweets that were previously public may still be available” or something along those lines.

    I’m wondering if you RT something and the user later becomes private, does your RT disappear as well? I’d think not, since technically it’s a tweet ascribed to your account now?

    Surprised the gov doesn’t just slim one of this guy’s followers a couple thousand bucks to hand over their iphone for a few minutes.

  17. Message from one lawyer to another …. I hear what you are saying 🙂 Congratulations on being freshly pressed!

  18. While I agree with your arguments against calling this tweet private and I am in no way a student of the law. I do recall learning about Thomas Paine and his book “Common Sense” and how it helped shape the minds of the colonists for supporting a revolution.

    And maybe I’m mistaken, but I always connected his writings and the writings of others as the reason for including freedom of the press into the Bill of Rights.

    I guess my question is what makes the call for action against the government from Thomas Paine different from this guys tweet? Is it length? Lack of credentials? Is it the medium it was recorded on? Is it some mythical algorithm making one okay and the other not?

    And what if he claims he simply retweeted someone else without giving credit?

    If he tweeted about killing someone and the tweet was needed for proof, I’m okay with that. If tweeted about boss being an idiot and the tweet was used for grounds for termination…sorry Bub. But to prove who’s idea it was to stand in the street? Public or private, I don’t agree with the government having the right to use that against him.

    I find it appalling that we are spending thousands of tax dollars on what appears to be a case of “making an example” so others won’t protest against the wealthy. Talk about wasteful spending. Where is the common sense?

    • The question of relevance is up to the court to decide, of course. But it does appear to matter here. Harris’ main defense is that he is not guilty because he was merely listening to what a police officer told him to do (get off the sidewalk and onto the road, thereby blocking traffic). His tweets at the time could go directly to refute that statement–for example if he tweeted out to walk on the road no matter what the police said. The tweets may not have been an issue but for his stated defense, hard to tell.

      But on the flip side, Harris would be in the right requesting any documentation showing the police officer’s communications. Perhaps he has emails or texts or other communications talking about trying to trick the protesters into the road so they could be arrested. If the situation was reversed and the police officer had suddenly protected his Twitter account, what would you think then?

      Oh, and the wasting thousands of dollars shouldn’t be a concern. First, government attorneys make shockingly little money. Twitter is spending much more on their legal fees fighting this. If you mean more about the overall case than this issue, that’s another thing. But at least in this instance it is an interesting issue that will likely be important later.

      • It comes down to protecting the public from the government. And there is a reason there are more restrictions in what the government can do vs. a private employer about what someone says or writes. But I get what you are saying. I can’t help but think Thomas Paine would be in the same boat for what he wrote.

        Shockingly little money? Compared to other lawyers or the average middle class worker in America? What about the judges and court clerks and court costs…and twitter fighting this is driving those costs up.

        The guy wanted to be a martyr. Convicting him would be a sure fire way of reigniting the Occupy movement in my opinion.

      • If he wants to be a martyr, mission accomplished. I think the NYAG office would disagree about whether it is better to let him go or prosecute, but only time will tell.

        As for pay, I don’t have hard numbers but I’ve seen the NYC average salary is $75K for a district attorney. I believe it is the same average for public school teachers. Both will have undergrad degrees and many public school teachers will have advanced degrees as well but all the attorney generals will have law school degrees (which now cost in the six figures for all three years).

        BTW, I think those school teachers don’t make enough either, but just don’t be fooled into thinking that vast amounts of government money are being spent on this.

  19. Well, no matter what, we can get in trouble for our tweets. Remember the girl from Greece who got kicked out of the Olympics? . Feel free to come to my blog and leave a link to your blog in comments on any of my posts. http://www.bradstanton.com My post for today is really gross, about vampires, but only true stuff, I think.

  20. Your ideas are insightful, but I think we have all sailed beyond any expectation of privacy online, anywhere, at any time.

  21. kgburt

    I do not support censorship nor government control of communication methods via the internet but do believe precident should be set here. Since the information he tweeted was made available to the public and was so at the time of the records request, how can he then claim privacy?

    It is possible I am incorrect, but look at it a different way. The police officer tells him to do something and he responds, while all occuring in front of a thousand witnesses. The court would then summon the witnesses to testify as to what they heard as well as the officer and the gentleman in question. To follow with what occured, the gentleman would plead the fifth. (this is the same as choosing to make your once public statements private, yes?)

    Though, the gentleman has the right to plead the fifth, he cannot tell the witnesses that it is now private and they would be unable to discuss what they heard … why not summon the records of every twitter user that is connected to this gentleman or to the event?

    I believe in the rights of this country, and I have served my country, but I find it difficult to allow individuals to quickly hide behind their guaranteed freedoms for protection when they have knowingly done wrong. If he tweeted that the police officer told him to “go into the road”, he would not have made his account private. It is that simple.

    • Great points. And I don’t think Harris has a viable Fifth Amendment claim either–he is the one who opened the door by claiming that the police told him to leave the sidewalk. The Twitter records are intended to dispute exactly that. The Fifth Amendment doesn’t let you say something and then ignore all questions attempting to refute your assertion.

  22. Pingback: If You Tell 140 Million People Something, Is That Private? | The Value of a Mind

  23. Interesting concept;I agree with you on this one. What about flash mobs? We applaud the originator for his or her creativity, that is, of course, till someone gets hurt. Can the originator be held liable, or must we now add legal disclaimers? Great post, interesting thoughts, and congratulations!

  24. Nothing on the internet is private anymore. I recently removed all info and photos from my Facebook page, even though its already set to the highest privacy and all my albums were ‘friend specific’ viewers only. Nothing is private. I was able to search my name and had private photos from my private page come up. Not very private is it?

    Tweets are different. When your page is public, anyone can follow your tweets. You don’t have to approve them or even know who they are. Retweeting, sharing, “press”-ing. Nothing stays in one place. The internet is called “the web” for a reason. Everything is connected and you have no reasonable expectation of privacy on specific items posted publicly. Reason #1 that I don’t have a Twitter account.

    Has anyone thought about those 3200 posts it takes to remove the first one? What if this appeal from Twitter is just a rouse? What if they instructed the defendant to “tweet his add off” while holding up the supeona? They admit to only holding 3200, my sister tweets that in a week… At which point, regardless of her account settings, her original posts would be gone.

    • Good points. I doubt Twitter told Harris anything like that since that would make a stronger case against Twitter. Plus the 3200 is what is available to the public–meaning if you want more you *must* go through Twitter the company. They don’t want to be involved so they certainly wouldn’t have done anything that would require their involvement later.

    • Yeah, I agree with what you said :)..

  25. It has been said that anything you post on the Internet is public, forever. Yes, you may delete that tweet the next morning, or that drunk picture of yourself you uploaded to Facebook because it seemed funny before you sobered up, or whatever people upload and then regret making public.

    The next morning it may have been viewed by 150 million people, and they may have downloaded the text, tweet, picture or movie to their harddisks and re-uploaded it in 117 other places. You can never really delete anything from the ‘net. So no, you can’t “un-publicize” anything you have publicized. Anything he tweeted before making his account “private” was in effect said in public and may be evidence.

  26. Pingback: Word Press Bloggers Quotes of the Week | poemattic

  27. I think the tweet itself can be immune, where freedom of expression can be very widely interpreted. Despite of that, I agree with your argument.

  28. Pingback: How To Tell One Billion People A Secret | SoMeLaw Thoughts

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