SALON

Thursday, Apr 26, 2012 5:20 PM UTC

Who owns your tweets?

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

By

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 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 Natasha Lennard.

Next Article

Related Stories

More Related Stories

Featured Slide Shows

The week in 10 pics

close X
  • Share on Twitter
  • Share on Facebook
  • Thumbnails
  • Fullscreen
  • 1 of 11
  • This photo. President Barack Obama has a laugh during the unveiling of the George W. Bush Presidential Center in Dallas, Tx., Thursday. Former first lady Barbara Bush, who candidly admitted this week we've had enough Bushes in the White House, is unamused.
    Reuters/Jason Reed

  • Rescue workers converge Wednesday in Savar, Bangladesh, where the collapse of a garment building killed more than 300. Factory owners had ignored police orders to vacate the work site the day before.
    AP/A.M. Ahad

  • Police gather Wednesday at the Massachusetts Institute of Technology to honor campus officer Sean Collier, who was allegedly killed in a shootout with the Boston Marathon bombing suspects last week.
    AP/Elise Amendola

  • Police tape closes the site of a car bomb that targeted the French embassy in Libya Tuesday. The explosion wounded two French guards and caused extensive damage to Tripoli's upscale al-Andalus neighborhood.
    AP/Abdul Majeed Forjani

  • Protestors rage outside the residence of Indian Prime Minister Manmohan Singh Sunday following the rape of a 5-year-old girl in New Delhi. The girl was allegedly kidnapped and tortured before being abandoned in a locked room for two days.
    AP/Manish Swarup

  • Clarksville, Mo., residents sit in a life boat Monday after a Mississippi River flooding, the 13th worst on record.
    AP/Jeff Roberson

  • Workers pause Wednesday for a memorial service at the site of the West, Tx., fertilizer plant explosion, which killed 14 people and left a crater more than 90 feet wide.
    AP/The San Antonio Express-News, Tom Reel

  • Aerial footage of the devastation following a 7.0 magnitude earthquake in China's Sichuan province last Saturday. At least 180 people were killed and as many as 11,000 injured in the quake.
    AP/Liu Yinghua

  • On Wednesday, Hazmat-suited federal authorities search a martial arts studio in Tupelo, Miss., once operated by Everett Dutschke, the newest lead in the increasingly twisty ricin case. Last week, President Barack Obama, Sen. Roger Wicker, R.-Miss., and a Mississippi judge were each sent letters laced with the deadly poison.
    AP/Rogelio V. Solis

  • The lighting of Freedom Hall at the George W. Bush Presidential Center Thursday is celebrated with (what else but) red, white and blue fireworks.
    AP/David J. Phillip

  • Recent Slide Shows

  • Share on Twitter
  • Share on Facebook
  • Thumbnails
  • Fullscreen
  • 1 of 11

Related Videos

Comments

 21 Comments

Comment Preview

Your name will appear as username

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

follow salon

Most Read

Popular on Reddit

links from salon.com

From Around the Web

Presented by Scribol
listener_new_rect The Listener: "The Shelter Cycle": Raised in a cult

Recommendations