Twitter ruling disappoints, but doesn't surprise privacy advocates

Computerworld - Privacy advocates this week said they are dismayed, but not surprised about a New York Criminal Court judge's decision ordering Twitter to hand over all the data it has on an Occupy Wall Street protester being investigated for disorderly conduct.

In an 11-page ruling, Judge Matthew Sciarrino denied Twitter's motion to quash a subpoena from New York City prosecutors seeking the deleted tweets, email addresses, IP address and other information of Twitter user Malcolm Harris, who was arrested last year in connection with the New York OWS protests.

The ruling marked the second time the same court has rejected arguments that the data being sought by prosecutors is constitutionally protected and can only be obtained via a search warrant. Harris had earlier sought to quash the subpoena.

The court rejected Harris' claims because the data sought by prosecutors belonged to Twitter, not him. The court asserted that Harris therefore had no standing to challenge the subpoena.

In filing its motion to quash the subpoena, Twitter contended that under its terms of service, the data belonged to Harris.

Twitter argued that taking away Harris' ability to challenge the subpoena unfairly puts the onus on Twitter to legally defend its users rights.

Twitter and Harris both contended the data being sought was protected under Fourth Amendment prohibition of unreasonable search and seizure. Thus, Twitter maintained that prosecutors needed to obtain a search warrant before they could ask for the data to be handed over.

In dismissing the arguments, Judge Sciarrino held that the Fourth Amendment didn't apply in this case because there would be no physical intrusion into Harris' Twitter account.

"If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy. There is no proprietary interest in your tweets, which you have now gifted to the world," he wrote.

Tweeting is very different from a private mail, private chat or other forms of private online communications, Sciarrino wrote.

"Those private dialogues would require a warrant based on probable cause in order to access the relevant information. " The same is not true of public tweets, he noted.

The ruling elicited predictable groans from privacy rights groups. "We think the judge missed the point on the privacy analysis," said Marc Rotenberg, executive director of the Electronic Privacy Information Center (EPIC).

"It's one thing for the police to overhear a person shout an incriminating statement. We agree there would be no expectation of privacy" in those situations, Rotenberg said. "But when the police go to a communications service provider and demand that the company turn over records of a customer, that is a very different scenario."