“While the Fourth Amendment provides protection for our physical homes, we do not have a physical “home” on the Internet.”
That’s the crux of a decision from New York Criminal Court judge Matthew Sciarrino Jr. Not only that, but when you tweet, you’re giving Twitter the right to distribute all of you information however they please.
For that reason, prosectors looking to access your tweets (even ones that you’ve deleted) for the purposes of building or bolstering a case against you can snatch them up with a subpoena – and you have no recourse.
On January 26th, the Manhattan District Attorney’s Office sent a subpoena to Twitter, asking for the user information and tweets (between September 15th and December 31st, 2011) of user @destructuremal, operated by one Malcolm Harris. Harris had been arrested in October 2011 as part of an Occupy Wall Street protest and charged with disorderly conduct.
A few days later, Twitter told Harris about the subpoena (as they always do except when ordered not to). Soon, Harris decided that he was going to attempt to quash that subpoena.
That motion has been #denied (that’s how it reads in the official document, no joke).
The judge acknowledged that there’s no real precedent for a defendant trying to quash a subpoena issued to a third-party social networking service (read, Twitter). Lacking that precedent, he instead likened the situation to subpoenas asking banks for users records, a practice which has been upheld many times. Customers have no legal grounds to quash subpoenas to banks, says Sciarrino.
He then calls upon Twitter’s Terms of Service to say that Harris had “no proprietary interests” in his tweets.
Here, the defendant has no proprietary interests in the @destructuremal account’s user information and Tweets between September 15, 2011 and December 31, 2011. As briefly mentioned before, in order to use Twitter’s services, the process of registering an account requires a user’s agreement to Twitter’s Terms. Under Twitter’s Terms it states in part:
By submitting, posting or displaying Content on or through the Services, you grant us a worldwide,
non-exclusive, royalty-free license to use, copy, reproduce, process, adapt, modify, publish, transmit, display
and distribute such Content in any and all media or distribution methods (now known or later developed).
In order to register the @destructuremal account, the defendant had to have agreed to those very same terms. Every single time the defendant used Twitter’s services the defendant was granting a license for Twitter to use, display and distribute the defendant’s Tweets to anyone and for any purpose it may have. Twitter’s license to use the defendant’s Tweets means that the Tweets the defendant posted were not his. The defendant’s inability to preclude Twitter’s use of his Tweets demonstrates a lack of proprietary interests in his Tweets.
I added that bold to highlight the main point being made here: his tweets aren’t his.
For their part, Twitter makes no secret that they will turn over your info to the authorities if it’s “reasonably necessary to comply with the law”:
We may preserve or disclose your information if we believe that it is reasonably necessary to comply with a law, regulation or legal request; to protect the safety of any person; to address fraud, security or technical issues; or to protect Twitter’s rights or property
Harris is tweeting about the decision (from a different account):
The tweets in question are no longer active on @destructuremal’s feed, obviously. The last tweet is from that account is from February 11th 2012.
So according to Sciarrino, you can’t stop prosecutors from obtaining your old, deleted tweets from Twitter. As The Atlantic Wire points out, the judge didn’t say anything about their upcoming admissibility in court, however.
Of course, this is just one ruling in one case, but it could set a precedent. Sure, everything you tweet is public to some extent, even if you tweak your privacy settings. To really expect a high level of privacy or protection is unrealistic. But should prosecutors be able to obtain your info and tweets without a warrant? Let us know what you think in the comments.
