Porter Anderson | @Porter_Anderson
From September 17, 2012
Part of my series of columns on publishing and the digital dynamic, appearing at the invitation of Jane Friedman at JaneFriedman.com
Update: Stories at DigitalTrends by Andrew Couts, and at The Hill by Brendan Sasso and Jennifer Martinez, point to potential near-term legislative action that could impact future attempts by authorities to gain access to social-media records without a warrant, as has occurred in the case of Twitter and the Occupy Wall Street protestor Malcolm Harris.
See Couts in two writes:
- New bill prevents police from snooping your emails, chats, cloud files, without a warrant
- Twitter turns over Occupy tweets to court: Why this matters
And see Sasso and Martinez in:
As Sasso and Martinez write:
Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) introduced legislation on Thursday that would require police to obtain a warrant before seizing emails or other forms of digital communication.
And from Couts’ writes:
If approved by the Senate Judiciary Committee in a markup scheduled for next Thursday (September 20), the proposed amendment will be attached to House Bill H.R. 2471, which passed the House late last year. H.R. 2471 seeks to update the Video Privacy Protection Act of 1988(VPPA), a bill that was also authored by Leahy.
Although under-reported at this point — and rather curiously so in connection with the “Twitter-Occupy” case that’s the subject of this Extra Ether — this committee effort could move to the full Senate after Thursday’s markup with the potential to directly affect future instances like the Malcolm Harris case discussed here, presumably across a wide range of social media.
The bill would require law enforcement to obtain a probable-cause warrant before accessing all non-public Internet communications, including email, chat logs, and files stored in the cloud.
If we all use Twitter as a distribution service for our ideas/thoughts (as public as it may be), does that mean we relinquish all rights to that content just because we’ve stated it publicly?
Here is our original post:
Twitter handed over tweets from an Occupy Wall Street protester to a New York criminal judge on Friday after months of fighting a subpoena from prosecutors.
The company surrendered the micro-blogging posts to Manhattan Criminal Court Judge Matthew Sciarrino but they will remain under seal until another appeal by the protestor, Malcolm Harris, is argued next week.
That’s about as far as you can go in this story without some sort of emotional current beginning to swirl around the ankles of your consideration.
Are we standing on good, solid ground here? Or is something — as the Occupy Wall Street (OWS) protestor Malcolm Harris maintains — being eroded?
Harris is a senior editor with the non-profit non-partisan The New Inquiry, which characterizes itself as “a space for discussion that aspires to enrich cultural and public life.”
Writes NetworkWorld freelancer “Ms. Smith” in Punch to user privacy as Twitter surrenders Occupy protester’s tweets:
Although Harris is only charged with disorderly conduct in connection with an October 2011 Occupy Wall Street protest on the Brooklyn Bridge, it’s a battle about constitutional rights.
That’s a workable description of the case from “street level,” if you will. And It’s certainly in line with how Harris seems to see it.
Harris told me earlier in the week that he hopes to set a legal precedent with his case “about the way law enforcement is able to use social media – either as a dependable source of intelligence or not. I want not,” he wrote. ”Part of the nature of the medium is that not everyone is who they say they are, not everything is literal…I don’t think Twitter is a good place to find legal evidence of anything.”
First, the background on the charge, People v. Harris, 2011NY080152.
Paloma Esquivel writes it up for the Los Angeles Times in As Occupy anniversary nears, Twitter gives up info on protester. (The Occupy Wall Street movement has its anniversary today, Monday, September 17.)
Harris was charged with disorderly conduct after his arrest at an Occupy protest last year on the Brooklyn Bridge, and prosecutors say his Twitter messages could show whether he was aware of police orders to stay on a pedestrian path.
Harris and other protesters — almost 700 were arrested in the bridge protest — said they believed they were allowed to use the roadway.
A New York Times account without byline puts a tighter spin on the interest of prosecutors in seeing Harris’ tweets. In Twitter Turns Over User’s Messages in Occupy Wall Street Protest Case, the Times’ piece says:
Manhattan prosecutors subpoenaed the records in January, because the messages could show that the police did not lead protesters off the bridge’s pedestrian path and then arrest them, an argument that the protester, Malcolm Harris, of Brooklyn, is expected to make at trial.
Jeff Roberts at GigaOM picks up the narrative in Twitter turns over OWS tweets after threat from judge:
The case became a media sensation after Twitter notified Harris about prosecutors’ demands for his account. Harris then challenged the demand but, in a remarkable decision, Judge Matthew Sciarrino Jr., ruled that he had no standing because the tweets did not belong to him.
After Twitter stepped in on Harris’ behalf, Sciarrino issued another unusual decision that suggested people have little or no constitutional rights in what they publish on social media.
And then Roberts gets us to one of the most difficult parts of this issue, emphasis mine:
The case is significant because it is helping to define privacy and free speech in the age of social media. While tweets are by their nature public statements, Harris had deleted them. The issue of whether or not they are still public documents is an open question but the more pressing legal issue is over who owns them in the first place.
— Occupy Wall Street (@OccupyWallSt) September 17, 2012
Twitter has claimed that the user — in this case Harris — owns his or her tweets. And Twitter has had the support of the American Civil Liberties Union and the non-profit digital-rights watchdog, Electronic Frontier Foundation.
Nevertheless, ownership of tweets, at this point, is in the judgment of the beholder.
In recent days, Roberts has focused on Judge Matthew Sciarrino’s own difficulties with the world of social media. In The Facebook-addicted judge and the little blue bird, Roberts writes of 2009 reports about Sciarrino being “disciplined for ‘Facebook addiction'”:
The reports cited a series of “incidents”, including Sciarrino’s habit of updating his Facebook status from the bench. The judge also reportedly snapped a photo of his crowded courtroom and posted it on the social network.
Even more serious were Sciarrino’s attempts to “friend” the lawyers who appeared in his court — a highly unprofessional move that placed the lawyers in an awkward ethical and legal position. A Staten Island news site also reported that the judge had a MySpace page on which he posted a campaign poster for his “friend,” a Republican candidate for state office.
And getting back to the current case, in Why Twitter Caved and Handed an “Occupy” Protester’s Data to the Government, Will Oremus writes for Slate:
Twitter surprised and impressed civil liberties groups this summer by taking a stand on behalf of an Occupy Wall Street protester’s privacy…The dirty part is that Sciarrino claimed that, in order to determine the appropriate fine, he would need Twitter’s financial records from the past two quarters. That’s anathema for a private startup clawing to keep its competitive edge, as Sciarrino surely knows.
— Anonymous ⎝⏠⏝⏠⎠ (@OperationLeakS) September 17, 2012
Most observers — including quoted personnel of the Electronic Frontier Foundation — seem to agree that Twitter has been put into an intolerable bind.
The Washington Post is carrying a fonted feed of video from the Associated Press about the situation, under the headline Twitter turns over records in Occupy Wall Street case. This is a kind of story “kit,” as some network newsrooms would call it, a collection of soundbites and “b-roll,” or backgrounder video, that a news service can use to shape into a report, or “package.”
In this video are bites at time codes 1:00 and 1:36 from Columbia Law School’s Prof. John Coffee, who says:
(At 1:00) Well, I certainly understand why Twitter feels exposed, and caught between a rock and a hard place. But there really is no basis for resisting the subpoena. You have a criminal prosecution. The prosecution wants to know any inconsistent statement the defendant has made publicly. And once you go on Twitter, there’s neither an expectation of privacy, nor any claim of privilege.
And there it is.
The crux of the matter is that — unlike a case that might involve a subpoena of private records never before released — this situation involves statements originally made as tweets, which are public.
Coffee to the Associated Press:
(At 1:36) I think it’s a problem for Twitter. But I think people of the Occupy movement can’t have it both ways: You can’t tell the entire world (in public tweets), “This is what I’m going to do,” and then be surprised when a court or authorities find those statements after the fact to show what your actual intent was.
Wall Street braced for Occupy first anniversary protest http://t.co/4lW0Wy7n
— Telegraph Business (@telebusiness) September 17, 2012
David Kravets at Wired, in Twitter Reluctantly Coughs Up Occupy Protester’s Data, points up the potentially pivotal nature of the case this way:
The case (is) being closely watched as the authorities increasingly monitor and move to access material posted on social networks. The development comes two months after the micro-blogging site reported that, for the first six months of the year, the authorities sought information on Twitter user accounts 679 times, and Twitter produced some or all of the information 75 percent of the time.
For all the respect being voiced by many for Twitter’s long battle not to release the subpoenaed tweets, the New York Post, of course, wasn’t about to miss a good line. Garrett Sloane’s story, Twitter caves on OWS data, led with the best line so far about the social-media giant:
They’re going to tweet like canaries.
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How do you feel about Twitter’s handover of the subpoenaed tweets of Malcolm Harris? Do you believe, as Twitter argued, that you own your own tweets? Or does the fact that they’re made in public mean that they’re fair game in a legal case? Does this case concern you in terms of free speech and social media?
Images: iStockphoto / Eduardo Luzotti