The Occupy Wall Street Twitter Case: A Silver Lining

Posted by · September 17, 2012 11:00 am

For those of us who witnessed last week’s controversial ruling in the Occupy Wall Street Twitter Case (a.k.a. New York v. Harris) taking place in the New York State Supreme Court, it’s hard not to feel a sense of loss when it comes to our control of what we say and do online. As New York Judge Matthew Sciarrino forced Twitter to produce “any and all user information” about OWS protester Malcolm Harris against the microblogging site’s better judgment, it was surely accompanied by a seemingly devastating blow to our concepts of personal privacy and free speech.

“It’s a tough blow for Twitter, a company known for its hard-line stance on protecting the speech-related rights of its users,” opined Mike Isaac over at AllThingsD. “But it could have larger implications for the future of companies that hold sensitive user information and may be forced to hand over said information in the future.”

This is true, but only insofar as Judge Sciarrino’s word is law—which isn’t much, if at all, at this point. To be sure, as Isaac later points out, this is not the end of the case. In fact, it’s just the beginning.

Although Twitter was forced on Friday to produce a sealed envelope containing all of Harris’s user information, Judge Sciarrino—not to mention the DA prosecuting Harris—is not allowed to open that envelope and review its contents until Twitter’s appeal of the ruling is resolved.

In other words, nothing irreversible has actually happened yet. Furthermore, not only does this lower court’s decision hold no sway over the decisions of other courts hearing similar cases, but a closer review of how higher courts have ruled on this particular issue should also give even the most devout civil libertarian some solace.

The Question of Standing

Regardless of the “fundamentally unfair Hobson’s choice” that Twitter outside counsel Terryl Brown insists the social site was given, the truth is that such a predicament sets the stage to reinforce and reassert the legally recognized fact that those who post information on social sites still retain a proprietary interest in that information. That is, although that information has been posted on a third-party site, which involves the storage of said information on servers not belonging to that user, that user has not surrendered his or her rights to that content.

Twitter explicitly underscores this fact in its own terms of service, in which it states to new users, “You retain your rights to any Content you submit, post or display on or through the Services.”

This particular provision in Twitter’s terms of use has already held center stage in earlier rulings. Such was the case in Agence France Presse v. Morel, in which a New York district court upheld photojournalist Daniel Morel’s copyright interest in photos that he had posted on Twitter, rejecting AFP’s claims that uploading photos on Twitter equates to an “express license” for third parties to use those photos as they please.

However, this case alone only answers the question of standing, which simply determines whether Twitter users have the right to challenge court orders to surrender information stored and communicated on that site. And based on the outcome of Morel, it’s clear that Harris is privy to the same rights regarding his information, calling into question Judge Sciarrino’s decision to reject Harris’s challenge.

Looking beyond this case, Harris’s right to challenge the court order to surrender his sensitive user information becomes even clearer.

The Stored Communications Act (SCA), which governs the disclosure of information that is either stored or communicated electronically, provides a very specific procedure that law enforcement must follow in order to legally obtain the actual contents of user communications, in this case tweets.

“A subpoena or court order is only sufficient to compel the production of non-content records,” the appeal explains, referring to general information, such as the user’s name and address information. “In order to obtain the contents of communications, a governmental entity must obtain a search warrant.” That is, except when the information in question has been stored for more than 180 days. Under such circumstances, however, the SCA still makes explicit provision for users to challenge court orders for that information.

And if that wasn’t enough, there’s always the New York State and Federal constitutions, both of which have been determined to grant people like Malcolm Harris the right to challenge court orders to third parties (in this case, Twitter) when the information being sought falls within the purview of privacy and speech rights that those documents enshrine, which in this case is without question.

A Monumental Opportunity

Assuming the appellate court grants Harris legal standing to challenge the court order, one can arrive at the appropriate conclusion for this case with relatively little effort.

Citing both the Fourth Amendment of the U.S. Constitution and its corresponding article in the New York Constitution, the Twitter appeal makes clear protections that users can expect with regard to their online activity. These laws, the appeal notes, “protect not only against trespassory intrusions by the government, but also violations of a citizen’s reasonable expectation of privacy.”

Given that the information on Harris’s account (not publicly accessible) was not being sought after first obtaining a search warrant, it follows that this case should be treated according to the standard established for other stored, non-public communications such as email. This standard—established in U.S. v. Warshak, for those interested—deems unconstitutional the warrantless search and seizure of such stored communications once thought to be permitted under the SCA. This, then, leaves law enforcement with the choice to either obtain a warrant or respect that individual’s reasonable expectation of privacy.

In light of both Harris’s and Twitter’s vehement opposition to attempts to compel access to that information, it’s clear that Harris’s no-longer-public tweets should be afforded the same warrant requirement that would have clearly been at his disposal had the communication been in the form of emails instead of tweets.

With this situation in mind, we have before us an opportunity to see a historic decision be made in the interest of social media users everywhere. To be sure, a ruling in Harris’s favor could potentially establish a clear line that government—and those sites less concerned with user privacy than Twitter—may not cross without respecting the traditional checks that due process has historically provided to American citizens when it comes to other forms of communications.

In other words, this seeming defeat experienced last week shouldn’t be seen as a defeat at all, but rather as an opportunity to establish a long-awaited 21st century understanding of the Constitution’s protection of free speech and personal privacy.

For more on the Occupy Wall Street Twitter Case…