In the continuing saga of law enforcement or government agencies like DHS using social media for monitoring purposes, the police and prosecutors do not need a warrant to subpoena your tweets. That even includes your deleted public tweets, but I saw no reference to what would happen if your tweets are "protected." New York Matthew Sciarrino Jr. ruled [PDF], "Twitter's license to use the defendant's Tweets means that the Tweets the defendant posted were not his."
Perhaps the judge thought he was being clever when he used hashtags on "quash" and "denied."
Malcolm Harris was arrested in October for disorderly conduct, along with more than 700 other protesters during a mass Occupy Wall Street protest on the Brooklyn Bridge. At the time, the Gothamist reported that the cops were accused of trapping Wall Street protesters in order to make the massive arrests. Criminal Court Judge Matthew Sciarrino Jr. is "overseeing a special courtroom dedicated to handling nearly 2,000 Occupy-related cases," reported Reuters. The judge "ruled that Malcolm Harris did not have standing to challenge the third-party subpoena. Prosecutors from the Manhattan District Attorney's Office served the subpoena on Twitter in January, requesting Harris' user information and more than three months' worth of tweets."
The judge wrote that New York courts have not yet set a precedent to "quash a subpoena issued to a third-party online social networking service seeking to obtain the defendant's user information and postings." He drew an analogy comparing the sensitive information contained in tweets and user information to bank record "cases where courts have consistently held that an individual has no right to challenge a subpoena issued against the third-party bank."
Judge Sciarrino pointed at a Second Circuit decision that users have no reasonable expectation of privacy for anything posted online or sent via email. He wrote:
The widely believed (though mistaken) notion that any disclosure of a user's information would first be requested from the user and require approval by the user is understandable, but wrong. While the Fourth Amendment provides protection for our physical homes, we do not have a physical "home" on the Internet. What an Internet user simply has is a network account consisting of a block of computer storage that is owned by a network service provider. As a user, we may think that storage space to be like a "virtual home," and with that strong privacy protection similar to our physical homes. However, that "home" is a block of ones and zeroes stored somewhere on someone's computer. As a consequence, some of our most private information is sent to third parties and held far away on remote network servers. A Twitter user may think that the same "home" principle may be applied to their Twitter account. When in reality the user is sending information to the third party, Twitter. At the same time the user is also granting a license for Twitter to distribute that information to anyone, any way and for any reason it chooses.
The attorney representing Harris told The Atlantic Wire that he will move to re-argue the decision and that the judge "had mixed up his metaphors." Attorney Martin Stolar said, "There's a whole other recent series of decisions from Supreme Court and New York State, about whether or not using a GPS device to track someone uses a warrant. People's locations while on the street are generally public, like tweets are, but it's the accumulation of all that information, like someone's whereabouts, that the courts have said a subpoena is necessary ... I think that's more analogous to tweets than the bank records are."
The government previously issued an Occupy Boston Twitter hashtag subpoena and then claimed you have no right to anonymous speech on Twitter. It's a trap? Between the Stored Communication Act, a part of Electronic Communications Privacy Act, and social media monitoring, it seems that not only anonymous free speech, but exercising free speech on social media at all is increasingly more dangerous in the United States.
Just keep in mind: what you tweet can, and probably will, be used against you in a court of law.
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Ms. Smith (not her real name) is a freelance writer and programmer with a special and somewhat personal interest in IT privacy and security issues. Smith has a diverse background in information technology, programming, web development, IT consulting, and information security. She focuses on the unique challenges of maintaining privacy and security, both for individuals and enterprises. She has worked as a journalist and has also penned many technical papers and guides covering various technologies. Smith is herself a self-described privacy and security freak.
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