#Criminal_Misconduct: NY Court Holds That Your Tweets Can Be Used Against You

By Elspeth Crawford

It’s so easy to Tweet. All you have to do is find something worth sharing, perhaps an interesting article or a thought about the last place you ate lunch or a picture of your new cat, find a way to express the information in less than 140 characters and hit ‘Tweet’. And then it’s out there, swimming among thousands of other Tweets for anyone on the World Wide Web to see.

And according to the New York City Criminal Court, it can be used against you in a court of law.

The case at issue, People v. Harris, involves a protester named Malcolm Harris who was involved with the Occupy Wall Street Movement last year. In October of 2011, he and several of his 99-percenter brethren were arrested for disorderly conduct as they attempted to cross the Brooklyn Street Bridge in contradiction of a police order. Now, prosecutors want to subpoena three months worth of Harris’ Tweets in the hopes of divining why he attempted to cross that bridge. Both Harris and the legal team at Twitter have tried to stop the subpoena. In striking them down, Judge Matthew A. Sciarrino, Jr. has pushed the law surrounding the legal status of Tweets in some interesting new directions.

To start, Judge Sciarrino held in an April 20 ruling that Harris, who had filed a motion to quash the subpoena requesting his Tweets, did not have standing to make such a request, which is to say that he wasn’t legally allowed to ask that the subpoena be stopped. To back this up, Sciarrino quoted extensively from Twitter’s own Terms of Service, which provide that by posting a Tweet the tweeter grants to Twitter “a worldwide, non-exclusive, royalty-free license to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).” Judge Sciarrino read this and other provisions to mean that “…Tweets the defendant posted were not his.” Instead, the Tweets effectively belong to Twitter to do with them as they wish.

In this case, Twitter did not wish to hand the Tweets over to the court. In its own motion to quash the subpoena, Twitter argued that Harris’ Tweets were protected by the Fourth Amendment, which secures the right of the people to be free from “unreasonable searches and seizures.” Sciarrino rejected this argument, saying that the Amendment does not cover Tweets due to their incredibly public nature. He analogized Tweeting to a man yelling something out his window above a crowded street, reasoning that if a passerby were later called to testify as to what the man said, they could do so because the man made it public information by screaming it to anyone who happened to be in earshot. Tweets are public statements, and according to Sciarrino there can be no reasonable expectation of privacy in posting one. If the government wants to get their hands on a Tweet for purposes of a trial, they can.

And honestly, a much of this isn’t particularly shocking. Twitter is an inescapably public forum. Tweeting something means you want it to at least be read by your followers and, more likely, by anyone else who happens to be interested in the topic. Every Tweet is published for all round the world to see, so to turn around after posting one and claim that no one’s allowed to look at it seems to run counter to common sense. Sciarrino also goes out of his way to distinguish Tweets, which are public, from private messages and e-mail, which are private and deserving of higher levels of protection. Also, the ruling is pretty well versed on the subject of Twitter and includes some good descriptions of what the service is and what it does, which goes against the conventional wisdom that all judges are technophobes who would prefer to write their rulings with ink and quill if it weren't for those meddlesome young people.

Even if some of the decisions here get overturned on appeal, it’s frankly nice to have some clarification on issues which up to this point have remained mainly in the realm of speculation. More and more lawyers are claiming to be “social media specialists” but because the law in that area is so unformed it’s often not clear just what that means. Rulings like this at least provide some clarity. Do you think Tweets should be protected by the Fourth Amendment? Can people expect to maintain control over information they post to the public at large? Let us know in the comments.

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