Twitter To Appeals Court: Just Because Some Tweets Are Public Doesn't Mean Our Users Have No Privacy

Privacy

from the good-for-them dept

Earlier this year, we noted that Twitter was standing up for the rights of one of its users, Malcolm Harris, who had been charged with disorderly conduct during an Occupy Wall St. protest event. The government had sought info on Harris’ Twitter account using a 2703(d) order. Twitter told Harris about the request, and Harris sought to quash the order. The courts said that Harris had no standing, because he had no interest in his own tweets, based on a complete misreading of Twitter’s terms of service (which actually say the user retains ownership of the content).

Unfortunately, the NY court didn’t buy it, and told Twitter to hand over the info. It ignored many of the bigger questions, and basically just says that since Harris tweeted publicly, there is no issue here. But that ignores a few things: (1) not all of the info sought was just what he tweeted and (2) not all of the tweets are available publicly.

Harris has appealed, and it’s good to see that Twitter is also appealing, arguing that the court made some significant mistakes. The company basically reiterates its earlier argument that Harris has standing to quash the order, and also some reasonable privacy protection in some of the content sought.

Twitter respectfully submits that its users have standing on three separate and independent grounds to move to quash subpoenas directed to Twitter for their records. First, Twitter’s users have standing under New York law because Twitter’s Terms of Service have long established that users have a proprietary interest in their records. Twitter users own their Tweets and should have the right to fight invalid government requests. Second, Twitter’s users have standing under § 2704(b) of the federal SCA, which provides that a user who receives notice of a subpoena for their account records “may file a motion to quash such subpoena . . . in the appropriate . . . State court.” 18 U.S.C. § 2704(b). Finally, Twitter’s users have standing based on a long line of precedent establishing that individuals whose constitutional rights are implicated by a government subpoena to a third party can challenge the request. Accordingly, the Court should find that Twitter’s users have standing on any one, or all, of these bases.

Defendant’s Tweets are also protected by the Fourth Amendment to the U.S. Constitution and art. I, § 12 of the New York Constitution because the government admits that it cannot publicly access them, thus establishing that Defendant maintains a reasonable expectation of privacy in these communications.

Seems pretty simple and straightforward, though the courts haven’t bought this argument yet. Hopefully the appeals court is a bit more enlightened and/or informed.

Filed Under: malcolm harris, privacy, protests, standing
Companies: twitter