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Who Owns Your Tweets?

Twitter Stands Beside OWS Defendant

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Who Owns Your Tweets?

Although Judge Sciarrino ruled against the defendant in this case, Twitter has picked up the banner of online privacy.

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Alright, this one is a no-brainer, right? Logic says if you wrote it on your phone or computer, and sent it to the folks subscribed to your Twitter, then you own the information you sent. According to Matthew Sciarrino, a New York Judge, this is not the case. In this instance, personal privacy again comes under attack, and Twitter rises to meet the challenge.

Multiple Misunderstandings

All this comes to light in the battle lines of martial law versus the Occupy Wall Street movement. Law enforcement has taken liberties with personal communications before. A prime example occurred on August 11th of 2011, when BART officers turned off all cell service to quell a protest over the death of Oscar Grant. (Grant became a highly-controversial case when footage of his shooting by BART officer Johannes Mehserle went viral on YouTube, but the officer was later found not guilty.) This effectively violated the rights to freedom of speech and assembly, without legal grounds to do so.

Turning off cell service and raiding your Twitter history are a little different. In the first instance, police can make a judgment call, and apologize for it later. They get what they want immediately, and that is all they are concerned about. However prosecuting alleged Occupiers means meeting legal requirements in front of a judge. Fortunately for the police in this case, Judge Sciarrino was either confused about the law surrounding electronic data privacy, how Twitter functions, or possibly both.

Sciarrino's decision came in a case against Malcolm Harris. Prosecutors wanted to gain access to his history on Twitter to prove he knew police had ordered protesters not to march across the Brooklyn Bridge. Sciarrino issued a subpoena for the information, Harris objected, and the Judge overruled him, saying he did not own his tweets, Twitter did.

Twitter Takes the Stand

Twitter, however, also objected to the demand for information. Their legal counsel filed a brief with the court pointing out that their Terms of Service makes it "absolutely clear" that content is owned by their users. That's really a legal self-defense move, if you think about it. If Twitter is the "owner" of the information, they could suddenly become defendants as well, and may have had no clue what was sent over their servers. If you owned the company, you would have gotten a lawyer involved on your behalf, too.

It's easy to give Sciarrino a degree of latitude on this point, though. Maybe he's just not technically savvy. Maybe he's never used Twitter. He certainly wouldn't be the only one. Your Guide does a great deal of his work online, and has never subscribed to a tweet, much less logged into the website. (No, sorry gang, I don't have a Twitter account.) Concerning the protection against unlawful search and seizure, Sciarrino said "While the Fourth Amendment provides protection for our physical homes, we do not have a physical 'home' on the Internet…" This mindset will be reason for concern if Sciarrino presides over future cases of digital privacy.

Sciarrino was obviously aware of a section of the United States Code called the Stored Communications Act, which addresses this question directly. The Stored Communications Act plainly states that the person in question does have the legal right to object to a warrant of this precise nature. In this instance, "plainly" means "in those exact words…"

subscriber or customer may file a motion to quash such subpoena or vacate such court order [18 USC 2704 (a)(5)(b)]

The reason we know Sciarrino was aware of the Stored Communications Act is the fact that the prosecution actually used other sections of the act to make their case. Harris must not have been aware of his right to object to the order under the subpoena, however, since the judge ruled that he did not have the right to do so.

The lesson to take away from this is that the courts will not enforce your rights if you don't know precisely how to insist on them. Perhaps Harris would have been wiser to bring a lawyer of his own to the table – articles indicate that he represented himself at the hearings.

Judge Sciarrino's decision may be viewed in full at the New York Law Journal website. (Registration is required.)

Although your Guide is well-versed on many laws concerning privacy and identity theft, he is not an attorney. This article is opinion only, and is not intended to be used as legal advice. If you have legal concerns, consult an attorney.

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