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.