Who owns your tweets?

A judge's decision to uphold a subpoena for an Occupy arrestee's Twitter account raises serious privacy issues

Topics: Twitter, Occupy Wall Street, Occupy, Privacy,

Who owns your tweets?Malcolm Harris (inset) and Occupy Wall Street protesters on the Brooklyn Bridge. (Credit: Sam Margevicius/AP/Daryl Lang)

I tweet a lot. Sometimes I feel like I tweet more often than I have face-to-face conversations — and therein lie multiple issues that will not be addressed here (but perhaps one day, in therapy). However, in the course of constructing these 140-character-or-less nuggets of opinion, information or political agitation, never did I give much thought to whether these tweets were mine. It turns out they’re not, in the eyes of the law. For all the clamor about Twitter’s revolutionary potential in the Middle East, we have a reminder right here in New York of its revolutionary limitations.

On Monday, a Manhattan judge ruled that writer, Occupy Wall Street participant and prankster (and, for the purpose of full disclosure, my good friend) Malcolm Harris will not be able to block a subpoena on his Twitter account, including “any and all user information including email addresses” tied to it because, according to the judge, our tweets are not ours at all.

Harris, like me and more than 700 others, was arrested on the Brooklyn Bridge roadway last October in one of Occupy Wall Street’s most headline-grabbing days of action. He, like most of the bridge arrestees, was charged with disorderly conduct (a violation equivalent in legal terms to a traffic ticket) but, refusing to plea out, is taking the charge to trial. In January, the Manhattan D.A.’s office sent Twitter a subpoena. Twitter promptly informed Harris, who decided to fight the subpoena with his lawyer, Martin Stolar of the National Lawyers Guild.

In his decision Monday to deny the motion to quash the subpoena, Criminal Court judge Matthew Sciarrino Jr. revealed some potentially worrisome issues about how the law views our relationship with our tweets, which raise further questions about speech, privacy and self-representation. As Stolar explained to me, the judge decided that Harris has “no standing” to fight the subpoena in the first place — because his tweets (including direct messages, which are not publicly published) are not his, but belong to Twitter. The judge also rejected Stolar’s claim that Harris has a privacy interest in quashing the subpoena.

The question whether an individual has the standing to intervene on their own behalf to fight a subpoena served to a third party (in this case Twitter) is an interesting one. It should come as no shock that our tweets actually belong to the social media company; we agree to as much when we join Twitter and accept its terms of use. However, as Stolar points out, there’s long legal precedent for individuals intervening in subpoenas relating to, but not served to, them. For example, patients often intervene to quash subpoenas served to doctors regarding their medical records. Stolar plans to argue that Harris should have a standing in whether the government can (without a warrant) go through his accumulated, even in some parts deleted, Twitter history. Indeed, as the laywer also noted, the subpoena is both so broad and so vague that it’s hard to know how much access it would grant to Harris’ private messages and communications related to his Twitter account.

Which moves us on to the issue of privacy. It’s true that our Twitter behavior is in the public domain. But does this mean there’s no privacy interest when it comes to handing over the accumulated records of all our Twitter behavior to the authorities? Stolar offers this helpful but striking comparison: Say you have car — all your actions, driving around, parking, etc., are in public. However, the government would still need a warrant to track your car using a GPS to get an accumulated record of all your driving activity. Stolar argues that our accumulated Twitter activity should be equally considered in terms of privacy and what the authorities can or cannot demand access to.

“It’s very annoying that the judge said that no one has a privacy interest in their own communications here, their own speech,” said Stolar. I’d say it’s more than annoying — it’s downright worrisome. It should have long been obvious that Twitter is a powerful but limited tool for radical political organizing and agitating — the social media leviathan readily admits it will turn over information to legal authorities. (To its credit, Twitter has rejected gag orders in order to inform Wikileaks followers that the government had requested their Twitter information.) However, the fact that we as users are (legally) considered to have no standing or privacy interest when it comes to our own Twitter histories should serve as a chilling reminder that the nuggets of tweeted speech we send out — our very social media identities — are very distinct entities from our legal selves and the protections those selves are granted.

Of course, the lesson to take away is to tweet with caution. It’s also worth keeping in mind that, although throwing up some important insights, this court battle began over a charge for marching on a bridge. As Stolar puts it, “It’s prosecutorial overkill; using a sledgehammer to squash a gnat.” Harris agrees. He is (as he tends to be) disappointed in the state and surprised that a Harvard Law-trained ADA’s time is being used to pursue his minor charge. The precedent set, however, should give pause to those of us who live (perhaps too much of) our lives through Twitter.

Natasha Lennard

Natasha Lennard is an assistant news editor at Salon, covering non-electoral politics, general news and rabble-rousing. Follow her on Twitter @natashalennard, email nlennard@salon.com.

More Related Stories

Featured Slide Shows

  • Share on Twitter
  • Share on Facebook
  • 1 of 14
  • Close
  • Fullscreen
  • Thumbnails

    13 of "Girls'" most cringeworthy sex scenes

    Hannah and Adam, "Pilot"

    One of our first exposures to uncomfortable “Girls” sex comes early, in the pilot episode, when Hannah and Adam “get feisty” (a phrase Hannah hates) on the couch. The pair is about to go at it doggy-style when Adam nearly inserts his penis in “the wrong hole,” and after Hannah corrects him, she awkwardly explains her lack of desire to have anal sex in too many words. “Hey, let’s play the quiet game,” Adam says, thrusting. And so the romance begins.

    13 of "Girls'" most cringeworthy sex scenes

    Marnie and Elijah, "It's About Time"

    In an act of “betrayal” that messes up each of their relationships with Hannah, Marnie and Elijah open Season 2 with some more couch sex, which is almost unbearable to watch. Elijah, who is trying to explore the “hetero side” of his bisexuality, can’t maintain his erection, and the entire affair ends in very uncomfortable silence.

    13 of "Girls'" most cringeworthy sex scenes

    Marnie and Charlie, "Vagina Panic"

    Poor Charlie. While he and Marnie have their fair share of uncomfortable sex over the course of their relationship, one of the saddest moments (aside from Marnie breaking up with him during intercourse) is when Marnie encourages him to penetrate her from behind so she doesn’t have to look at him. “This feels so good,” Charlie says. “We have to go slow.” Poor sucker.

    13 of "Girls'" most cringeworthy sex scenes

    Shoshanna and camp friend Matt, "Hannah's Diary"

    We’d be remiss not to mention Shoshanna’s effort to lose her virginity to an old camp friend, who tells her how “weird” it is that he “loves to eat pussy” moments before she admits she’s never “done it” before. At least it paves the way for the uncomfortable sex we later get to watch her have with Ray?

    13 of "Girls'" most cringeworthy sex scenes

    Hannah and Adam, "Hard Being Easy"

    On the heels of trying (unsuccessfully) to determine the status of her early relationship with Adam, Hannah walks by her future boyfriend’s bedroom to find him masturbating alone, in one of the strangest scenes of the first season. As Adam jerks off and refuses to let Hannah participate beyond telling him how much she likes watching, we see some serious (and odd) character development ... which ends with Hannah taking a hundred-dollar bill from Adam’s wallet, for cab fare and pizza (as well as her services).

    13 of "Girls'" most cringeworthy sex scenes

    Marnie and Booth Jonathan, "Bad Friend"

    Oh, Booth Jonathan -- the little man who “knows how to do things.” After he turns Marnie on enough to make her masturbate in the bathroom at the gallery where she works, Booth finally seals the deal in a mortifying and nearly painful to watch sex scene that tells us pretty much everything we need to know about how much Marnie is willing to fake it.

    13 of "Girls'" most cringeworthy sex scenes

    Tad and Loreen, "The Return"

    The only sex scene in the series not to feature one of the main characters, Hannah’s parents’ showertime anniversary celebration is easily one of the most cringe-worthy moments of the show’s first season. Even Hannah’s mother, Loreen, observes how embarrassing the situation is, which ends with her husband, Tad, slipping out of the shower and falling naked and unconscious on the bathroom floor.

    13 of "Girls'" most cringeworthy sex scenes

    Hannah and the pharmacist, "The Return"

    Tad and Loreen aren’t the only ones to get some during Hannah’s first season trip home to Michigan. The show’s protagonist finds herself in bed with a former high school classmate, who doesn’t exactly enjoy it when Hannah puts one of her fingers near his anus. “I’m tight like a baby, right?” Hannah asks at one point. Time to press pause.

    13 of "Girls'" most cringeworthy sex scenes

    Hannah and Adam, "Role-Play"

    While it’s not quite a full-on, all-out sex scene, Hannah and Adam’s attempt at role play in Season 3 is certainly an intimate encounter to behold (or not). Hannah dons a blond wig and gets a little too into her role, giving a melodramatic performance that ends with a passerby punching Adam in the face. So there’s that.

    13 of "Girls'" most cringeworthy sex scenes

    Shoshanna and Ray, "Together"

    As Shoshanna and Ray near the end of their relationship, we can see their sexual chemistry getting worse and worse. It’s no more evident than when Ray is penetrating a clothed and visibly horrified Shoshanna from behind, who ends the encounter by asking if her partner will just “get out of me.”

    13 of "Girls'" most cringeworthy sex scenes

    Hannah and Frank, "Video Games"

    Hannah, Jessa’s 19-year-old stepbrother, a graveyard and too much chatting. Need we say more about how uncomfortable this sex is to watch?

    13 of "Girls'" most cringeworthy sex scenes

    Marnie and Desi, "Iowa"

    Who gets her butt motorboated? Is this a real thing? Aside from the questionable logistics and reality of Marnie and Desi’s analingus scene, there’s also the awkward moment when Marnie confuses her partner’s declaration of love for licking her butthole with love for her. Oh, Marnie.

    13 of "Girls'" most cringeworthy sex scenes

    Hannah and Adam, "Vagina Panic"

    There is too much in this scene to dissect: fantasies of an 11-year-old girl with a Cabbage Patch lunchbox, excessive references to that little girl as a “slut” and Adam ripping off a condom to ejaculate on Hannah’s chest. No wonder it ends with Hannah saying she almost came.

  • Recent Slide Shows



Comment Preview

Your name will appear as username ( settings | log out )

You may use these HTML tags and attributes: <a href=""> <b> <em> <strong> <i> <blockquote>