Twitter To Appeals Court: Just Because Some Tweets Are Public Doesn't Mean Our Users Have No Privacy

from the good-for-them dept

Earlier this year, we noted that Twitter was standing up for the rights of one of its users, Malcolm Harris, who had been charged with disorderly conduct during an Occupy Wall St. protest event. The government had sought info on Harris' Twitter account using a 2703(d) order. Twitter told Harris about the request, and Harris sought to quash the order. The courts said that Harris had no standing, because he had no interest in his own tweets, based on a complete misreading of Twitter's terms of service (which actually say the user retains ownership of the content).

Unfortunately, the NY court didn't buy it, and told Twitter to hand over the info. It ignored many of the bigger questions, and basically just says that since Harris tweeted publicly, there is no issue here. But that ignores a few things: (1) not all of the info sought was just what he tweeted and (2) not all of the tweets are available publicly.

Harris has appealed, and it's good to see that Twitter is also appealing, arguing that the court made some significant mistakes. The company basically reiterates its earlier argument that Harris has standing to quash the order, and also some reasonable privacy protection in some of the content sought.
Twitter respectfully submits that its users have standing on three separate and independent grounds to move to quash subpoenas directed to Twitter for their records. First, Twitter’s users have standing under New York law because Twitter’s Terms of Service have long established that users have a proprietary interest in their records. Twitter users own their Tweets and should have the right to fight invalid government requests. Second, Twitter’s users have standing under § 2704(b) of the federal SCA, which provides that a user who receives notice of a subpoena for their account records “may file a motion to quash such subpoena . . . in the appropriate . . . State court.” 18 U.S.C. § 2704(b). Finally, Twitter’s users have standing based on a long line of precedent establishing that individuals whose constitutional rights are implicated by a government subpoena to a third party can challenge the request. Accordingly, the Court should find that Twitter’s users have standing on any one, or all, of these bases.

Defendant’s Tweets are also protected by the Fourth Amendment to the U.S. Constitution and art. I, § 12 of the New York Constitution because the government admits that it cannot publicly access them, thus establishing that Defendant maintains a reasonable expectation of privacy in these communications.
Seems pretty simple and straightforward, though the courts haven't bought this argument yet. Hopefully the appeals court is a bit more enlightened and/or informed.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    DH's Love Child (profile), Aug 28th, 2012 @ 4:13pm

    Sigh...

    The more I see what our government does "for my protection" the less I want to be protected.

     

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  2.  
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    Mason Wheeler, Aug 28th, 2012 @ 4:19pm

    Confusing wording

    not all of the info sought was just what he tweeted


    Not sure if I'm the only one, but I had to read this a couple times before I wrapped my head around it. I think a clearer way to state it would be "the prosecutors are seeking for more information than just Harris's tweets."

     

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  3.  
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    Anonymous Coward, Aug 28th, 2012 @ 5:03pm

    It's a bit of a losing argument here.

    Once you share something with more than one person over a public network, you really should not expect privacy. So that in itself is not an issue.

    The "extra" information is information that Twitter holds, not information that the user himself holds exclusively. Email address, IP used to connect, etc. I am not sure that the user should have a right to appeal here, as the information is available without contacting the user (it's not exclusively their domain, as they shared it with Twitter).

    It would be no different than police requesting the name and address of a given phone number or a given bank account. This type of information request would be filled under this procedure regularly.

    I would say the courts got it right, and Twitter is just trying to come off looking like they tried.

     

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  4.  
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    Anonymous Coward, Aug 28th, 2012 @ 5:10pm

    Re: Confusing wording

    uh, no. Your words are even more confusing. Seeking for more?

     

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  5.  
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    Anonymous Coward, Aug 28th, 2012 @ 5:12pm

    Re:

    maybe they should try "the google" or duckduckgo

     

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  6.  
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    Jeffrey Nonken (profile), Aug 28th, 2012 @ 5:37pm

    If everything on Twitter is a matter of public record, then why do they need a subpoena? They can just read it online.

     

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  7.  
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    Jeffrey Nonken (profile), Aug 28th, 2012 @ 5:52pm

    Re:

    "Once you share something with more than one person over a public network, you really should not expect privacy."

    So... once you've made one single public utterance, you should have no expectation of privacy WRT anything in your life from then on?

    "The "extra" information is information that Twitter holds, not information that the user himself holds exclusively. Email address, IP used to connect, etc. I am not sure that the user should have a right to appeal here, as the information is available without contacting the user (it's not exclusively their domain, as they shared it with Twitter)."

    Once again you seem to be stating that sharing personal information with anybody under any circumstances opens up all your personal information to everybody under all circumstances.

    "I would say the courts got it right, and Twitter is just trying to come off looking like they tried."

    I would say you're a troll. But I'm too nice to say anything like that, so I won't.

     

    reply to this | link to this | view in thread ]

  8.  
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    Anonymous Coward, Aug 28th, 2012 @ 6:00pm

    Re: Re:

    It is pretty common law here, that if you stand in public and yell your views, even if only 2 people here them, that they are in fact public. Unless you very specifically use your account in a manner that has no public tweets (everything by private message) you are talking in public.

    Generally anyone can "follow" you and get your public tweets. They are not private. Twitter isn't a private chat room, it's the equivalent of using a megaphone in a crowded room to talk to someone 100 feet away.

    "Once again you seem to be stating that sharing personal information with anybody under any circumstances opens up all your personal information to everybody under all circumstances."

    Twitter does not collect any information of a truly personal nature, just information related to who "owns" the account - essentially the verification email address. There is no name, address, phone number type requirements here.

    "I would say you're a troll."

    I would say you are wasting my time. Clearly you don't want to think about it, your best line of defense is "you're a troll". How nice.

    "But I'm too nice to say anything like that, so I won't."

    You already did, so you aren't nice. You are just a jackass.

     

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  9.  
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    Anonymous Coward, Aug 28th, 2012 @ 6:45pm

    nothing you put on the internet is private

     

    reply to this | link to this | view in thread ]

  10.  
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    Anonymous Coward, Aug 28th, 2012 @ 6:47pm

    nothing you put on the internet is private

     

    reply to this | link to this | view in thread ]

  11.  
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    Anonymous Coward, Aug 29th, 2012 @ 1:18am

    'Hopefully the appeals court is a bit more enlightened and/or informed.'

    i wouldn't bank on it.
    a)the government wants the info, regardless of what it is and in more than the majority of cases wont stop til it gets it
    b)challenging a NY judge? bad enough anywhere else but NY? recipe for disaster here.

     

    reply to this | link to this | view in thread ]

  12.  
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    Anonymous Coward, Aug 29th, 2012 @ 8:54am

    Re:

    And yet they never make the arguement that...

    ...Nothing you say on landline phones is private
    ....Nothing you write in snail mail is private
    .....No sex acts you preform are private

    But but the internet is different because it runs on magical girl power!

     

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  13.  
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    Dirkmaster (profile), Aug 29th, 2012 @ 9:03am

    Re: Re: Re:

    So, a question for you sir.

    If I direct message someone, is that public? You cannot find it via Google or by following either party involved. Should that be considered public, just because I used the Internet and Twitter?

     

    reply to this | link to this | view in thread ]

  14.  
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    known coward, Aug 30th, 2012 @ 5:30am

    Re: Re:

    no because all are protected communications in private, email should be treated like snail mail and landlines require a court order as well.

    A tweet is a public pronouncement. If you say "kill my landlord" in a tweet it is the same as saying it on a street corner.

    that said, the court does have it right in the sense that the defendent does have an interest in his tweets, and therefore standing to attempt to quash the subpeona.

    As i said above i think the attempt should be rejected, but to say he does not have standing to sue is silly.

     

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  15.  
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    what the eff, Aug 30th, 2012 @ 12:01pm

    Re:

    if i put up a video on youtube that i only want my friends to see its private... or if only I want to see it then it is also private... if anyone else can see it then its a violation of at least 1 law right?

     

    reply to this | link to this | view in thread ]

  16.  
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    Anonymous Coward, Sep 11th, 2012 @ 4:29pm

    lol, if you put something on the "internet" it isnt private

     

    reply to this | link to this | view in thread ]

  17.  
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    Anonymous Coward, Sep 11th, 2012 @ 4:31pm

    Re: Re:

    you cant claim privacy to things you publicly put out

     

    reply to this | link to this | view in thread ]


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