Social media judge says tweets are for cops

In a closely-watched case tied to last year’s Occupy Wall Street protests, a New York judge ruled last week that tweets are no different from words shouted in the street and ordered Twitter to turn over a user’s account to prosecutors. The judge, who styles himself a social media expert, added that the Founding Fathers and “countless soldiers” risked their lives for the right to tweet or post on Facebook (s FB) but that “there are still consequences for your public posts.”
The case itself involves Malcolm Harris, one of hundreds charged with disrupting traffic after a protest on the Brooklyn Bridge last summer. To build the case, prosecutors asked Twitter to turn over Harris’s account, which contains not just a record of his public messages but could also contain more private information such as the location of his tweets, personal messages and deleted items.
The case attracted media attention after Harris applied to quash the subpoena directed at Twitter. In April, Judge Matthew Sciarrino Jr. ruled that Harris couldn’t sue in the first place because the tweets in question belonged to Twitter and not to him. Sciarrino Jr. also lambasted “widely-believed” but “mistaken” notions about online privacy and attempted to show off his fluency in social media by adopting Twitter’s hashtag convention to write that the motion to “#quash” was “#denied.”
Twitter responded to the April ruling by moving itself to quash the subpoena itself — an effort that came up short today. The company said in an email statement:

“We are disappointed in the judge’s decision and are considering our options. 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.”

Tweets: Do they belong to you, Twitter or the street?
The Harris ruling is larded with flamboyant rhetoric but also raises important questions about how privacy law should apply to social media. In ruling against Twitter and Harris, Sciarrino Jr. invoked a 1976 case in which the Supreme Court ruled that a bank didn’t violate user privacy when it turned over customer records because the records were the bank’s property. This raises the question of whether our Facebook and Twitter accounts are just like bank and phone records.
Strangely, Sciarrino Jr. said that Harris’ tweets were Twitter’s property but also found that social media companies were just like witnesses who overhear something shouted in the street:

Well today, the street is an online, information superhighway, and the witnesses can be the third party providers like Twitter, Facebook, Instragram, Pinterest, or the next hot social media application.

The judge holds himself out as an authority on social media by dropping company names and citing recent law journal articles on social media and the judiciary. He has also learned about it firsthand; in 2009, he was disciplined by court authorities and transferred from Staten Island to Manhattan after lawyers complained about him friending them on Facebook.
Sciarrino Jr.’s analysis of the Harris decision is interesting, and perhaps troubling, because it appears to offer no legal protection at all to social media accounts. On one hand, the judge concludes that users have no right to object to account searches (or even know about them) because the accounts are not their property. But at the same time, he characterizes Twitter and Facebook as passive witnesses whose role is to simply pass on information.
The Founding Fathers and the Right to Tweet
Sciarrino Jr. finishes with a flourish, noting 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 day (sometimes under anonymous pseudonyms similar to today’s twitter user names).”
This analogy is intriguing but also problematic.  As the judge points out, some founding fathers did write anonymously but they were able to keep their anonymity. Under the judge’s reasoning in the Twitter decision, the publisher who printed the Federalist Papers would be forced to identify the authors — and the authors would have no legal rights at all.
Sciarrino Jr.’s decision also fails to address the issue of how much information social media companies must turn over to authorities. The judge points to search engines like Politwoops and Tweleted (services that collect deleted tweets) in order to emphasize that our tweets are inherently public information available to all. But he does little to acknowledge that our Twitter and Facebook accounts contain not just public utterances, but also a wealth of more personal information that we don’t intend for others to see.
The decision, which was first reported by the New York Law Journal and can be read here, means that Twitter must turn over the bulk of Harris’s account to the court which will then determine which parts are relevant to the prosecution.
It’s not immediately clear if Twitter will appeal the decision. The American Civil Liberties Union, which filed a brief on behalf of Harris and Twitter, issued a statement today:
“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.”