You May Occupy Your Twitter Account, But Do You Own It?
If recent developments in New York Criminal Court are any indication, your social media, email and SMS texts are just as vulnerable to exposure as everyone has been saying they are. Such a trend is bad news for bloggers, tweeters and texters, but may be good news if you are a litigant trying to gain access to social media data to support your case.
In this case - People v. Harris, No. 2011NY080152, 2012 N.Y. Misc. LEXIS 1871 (Crim. Ct. N.Y. Apr. 20, 2012) [enhanced version available to lexis.com subscribers] - Tweet giant Twitter Inc. coughed up a bundle of 140-character posts from Occupy Wall Street protestor Malcolm Harris, giving up its objections in the face of a contempt of court finding and fines. Occupy protesters claim that police shepherded them onto the Brooklyn Bridge. The crowd of protesters blocked traffic on the bridge. The police then arrested them for, well, blocking traffic. Apparently the Manhattan District Attorney's Office said the Tweets would establish whether Harris was aware of the police orders he was charged with disregarding.
Twitter had said the case could put it in the position of having to take on legal fights that users could otherwise conduct on their own.
So the case comes down to ownership. Do the tweets belong to Twitter or the Tweeter? Twitter and the protesting Harris argued that the author of the posts had the right to fight the subpoena. But Manhattan Criminal Court Judge Matthew Sciarrino said Twitter owns the Tweets, just like a bank owns account records. Twitter's license to use Harris's Tweets means that "the Tweets the defendant posted were not his," the court said, finding Harris did not have a proprietary interest in the Tweets. An appellate court refused to stay Judge Sciarrino's holding.
Experts say this raises the already raised question of whether social media users, like those who use Twitter, have the right to go to court to oppose police demands of their Tweets.
Attorney blogger Bradley S. Shear says that "While I applaud Twitter fighting for the digital privacy rights of its users, I believe that continuing to fight a subpoena for content that was once public is a losing battle. However, I believe that Twitter along with other social media companies should continue fighting for the personal privacy rights of its users."
Naomi Gilens with the American Civil Liberties Union's Speech, Privacy & Technology Project, wrote that the dispute is not over just because Twitter handed over the Tweets.
"The court agreed to keep the information in a sealed envelope for now, pending further proceedings. While Twitter's loss is disappointing, the bottom line is that Twitter should never have even had to get involved in this case at all-and it wouldn't have, if the court hadn't ruled that Harris did not have standing to protect his own constitutional rights," Gilens wrote. "The court wrongly ruled that Harris forfeited those rights by using a third-party Internet service (i.e., Twitter). As we explained in our friend-of-the-court brief supporting Twitter's appeal, that ruling is contradicted by decisions from the U.S. Supreme Court and countless courts around the country, which make clear that individuals whose constitutional rights are implicated by government requests to third parties have standing to challenge those requests."
The E-Discovery Brief will continue to monitor this and other cases about access to social media information in the discovery process.
- Do not assume the author of social media posts has control over them.
- If you want access to social media, you may find judges will give it to you.
- Do not block traffic on the Brooklyn Bridge.
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