×

Welcome to the Slashdot Beta site -- learn more here. Use the link in the footer or click here to return to the Classic version of Slashdot.

Thank you!

Before you choose to head back to the Classic look of the site, we'd appreciate it if you share your thoughts on the Beta; your feedback is what drives our ongoing development.

Beta is different and we value you taking the time to try it out. Please take a look at the changes we've made in Beta and  learn more about it. Thanks for reading, and for making the site better!

Twitter Rejects Prosecutors' Subpoena For a User's Data Without Warrant

Soulskill posted about 2 years ago | from the you-and-what-army dept.

Privacy 168

Sparrowvsrevolution writes "In defense of user privacy, Twitter filed a motion (PDF) yesterday in a New York state court asking a judge to block a subpoena that would force the company to turn over the data of one of its users, Malcolm Harris. Harris was arrested in an Occupy Wall Street protest on the Brooklyn Bridge in October for 'disorderly conduct.' The company's lawyers claim that the subpoena violates the fourth amendment and Twitter's terms of service, which says that users' tweets belong to them and thus can't be handed over to law enforcement without their consent."

cancel ×
This is a preview of your comment

No Comment Title Entered

Anonymous Coward 1 minute ago

No Comment Entered

168 comments

Sounds nice (-1, Troll)

nurb432 (527695) | about 2 years ago | (#39935807)

But they will just come back with a warrant and make it 'difficult' for twitter.

Re:Sounds nice (5, Insightful)

Jaktar (975138) | about 2 years ago | (#39935847)

That's fine. This is what due process is all about.

Re:Sounds nice (-1, Offtopic)

geekoid (135745) | about 2 years ago | (#39935881)

Don't reply to the troll. This is a guy that thinks Lincoln had it coming.
He has no grasp of how the government really works, and seems to think we are in a police state.

Re:Sounds nice (0)

Jaktar (975138) | about 2 years ago | (#39936041)

I'm not quite 10x your UID but nearly double his :P

I don't recognize all the names. I'll have to be more mindful in the future.

Re:Sounds nice (0, Flamebait)

Anonymous Coward | about 2 years ago | (#39936195)

"He has no grasp of how the government really works, and seems to think we are in a police state."

We are.

Now why don't you shut the fuck up and quit pontificating on things
you know nothing about.

Re:Sounds nice (1)

serbanp (139486) | about 2 years ago | (#39936251)

he, he! another one going for that sig!

In defense of the GGP, check out the rationale, I'd say he's pretty much right, Washington included. [slashdot.org]

Re:Sounds nice (0, Troll)

Beelzebud (1361137) | about 2 years ago | (#39937225)

Booth was a patriot to the confederacy. That's why Americans refer to him as a terrorist. I'm not a Confederate. The "rationale" is bullshit.

Re:Sounds nice (4, Insightful)

lexsird (1208192) | about 2 years ago | (#39937337)

One might argue that Booth considered himself a patriot, is what the sig is saying I think.

When does anyone wake up and consider themselves a proper villain? I doubt even Hitler thought of himself as a villain.

History determines who is the villain and who is the patriot. The victors write history. Some philosophers might are argue that there is no "right or wrong", just different points of view. The matter seems highly subjective, yet ironically, it's insisted upon being objective by everyone.

Re:Sounds nice (4, Insightful)

pdabbadabba (720526) | about 2 years ago | (#39938007)

I've never understood people who suggest that assigning moral blame is simply the victors prerogative, as though nobody else would have an opinion. If this were the case, history would not contain episodes of "victor"-villainization. But they're actually really easy to find. In the U.S. alone, and just off the top of my head, we have slavery, genocide (or close to it) of the native americans, japanese internment, segregation, the Mai Lai massacre...the list goes on. No, I think it is cear that people can detect right from wrong (if only very imperfectly) no matter how the victor spins it. (Of course, suppressing information may be a problem; but it's a different one from the mater of moral relativism you're talking about.)

Re:Sounds nice (1)

MrHanky (141717) | about 2 years ago | (#39938147)

Correct. But people who don't learn from history tend to repeat tired old memes about it, and in distorted form.

Re:Sounds nice (-1)

Anonymous Coward | about 2 years ago | (#39936591)

Person pointing out we are living in a police state gets modded -1 and person saying we are not is modded up. Expected on slashdot.

Re:Sounds nice (0)

Anonymous Coward | about 2 years ago | (#39937917)

Person pointing out we are living in a police state gets modded -1 and person saying we are not is modded up. Expected on slashdot.

Well, I always avoid modding up A/C posts no matter what.

Re:Sounds nice (5, Insightful)

SnapaJones (2634697) | about 2 years ago | (#39936745)

A police state? Perhaps not. A corrupt government? Definitely. TSA, Patriot Act, "for the children" excuses left and right, free speech zones, NDAA, completely idiotic wars...

Re:Sounds nice (3, Insightful)

kelemvor4 (1980226) | about 2 years ago | (#39937143)

and seems to think we are in a police state.

Umm.. have you been outside in the past few years? Perhaps read news articles that aren't tailored for nerds? Assuming you live in America, you are in a police state.

Re:Sounds nice (2, Insightful)

Beelzebud (1361137) | about 2 years ago | (#39937239)

I'm outside all the time, and have not seen this police state you're blabbing about. Do you even know WTF a police state is?

Re:Sounds nice (2)

Pseudonym (62607) | about 2 years ago | (#39937889)

Some people don't seem to know the difference between a police state and a crony-capitalist plutocracy.

Re:Sounds nice (5, Insightful)

geekmux (1040042) | about 2 years ago | (#39935901)

That's fine. This is what due process is all about.

Uh, due process? OK, how about root cause? Let's start at step one and answer the relevancy between someones private communications and a charge of disorderly conduct. What, are all OWS detainees winning the grand prize of an FBI file? Are they now considered domestic terrorists?

Kudos to Twitter and recognizing due process, but it is the least of our concerns here.

Re:Sounds nice (3, Interesting)

snowgirl (978879) | about 2 years ago | (#39935945)

answer the relevancy between someones private communications and a charge of disorderly conduct.

Tweets are rarely private communication, but rather a form of public address.

Kudos to Twitter and recognizing due process, but it is the least of our concerns here.

Except that a subpoena _IS_ due process...

Re:Sounds nice (3, Informative)

Aryden (1872756) | about 2 years ago | (#39936449)

My tweets are private if I say my tweets are private. If I do not allow non-friends to see them, it's the same as if I were having a private conversation with a friend of mine inside of my house.

Re:Sounds nice (2)

snowgirl (978879) | about 2 years ago | (#39936525)

My tweets are private if I say my tweets are private. If I do not allow non-friends to see them, it's the same as if I were having a private conversation with a friend of mine inside of my house.

And oftentimes your friend can be subpoenaed as to the contents of that communication.

Re:Sounds nice (1)

Aryden (1872756) | about 2 years ago | (#39936631)

And any sane lawyer in the world can have that testimony thrown out as here-say without a physical proof that the witness was indeed at the location and party to the conversation and he can only speak specifically on the portions of the conversation that he input.

Re:Sounds nice (3, Informative)

snowgirl (978879) | about 2 years ago | (#39936735)

And any sane lawyer in the world can have that testimony thrown out as here-say

It's "hearsay", and you should probably look up what hearsay is rather than go off of personal assumptions or movies/television.

Relevant part of US hearsay rules from Wikipedia [wikipedia.org] :

"Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."[1] Per Federal Rule of Evidence 801(d)(2)(a), a statement made by a defendant is admissible as evidence only if it is inculpatory; exculpatory statements made to an investigator are hearsay and therefore may not be admitted as evidence in court, unless the defendant testifies.[3] When an out-of-court statement offered as evidence contains another out-of-court statement it is called double hearsay, and both layers of hearsay must be found separately admissible.[4]

And, in fact, it is very common for a witness to testify that the defendant has confessed a criminal act to them.

Re:Sounds nice (0)

Anonymous Coward | about 2 years ago | (#39936749)

which is why you shouldn't write down in a tweet.

Re:Sounds nice (5, Insightful)

Anonymous Coward | about 2 years ago | (#39936853)

Except that a subpoena _IS_ due process...

As is contesting one. Civilized men settle their differences in courts of law.

Government: "Hand it over!"
Twitter: "No."
Both: "Rather than the government breaking out the tanks, and Twitter breaking out the Molotovs, why don't we just ask a judge how we should resolve this?"

Trial by observing the ritual combat of lawyers beats the hell out of the alternative.

Re:Sounds nice (1)

snowgirl (978879) | about 2 years ago | (#39937769)

As is contesting one. Civilized men settle their differences in courts of law.

Indeed, however, I suspect this situation to be unlikely in Twitters favor.

Trial by observing the ritual combat of lawyers beats the hell out of the alternative.

I agree.

Re:Sounds nice (0)

Anonymous Coward | about 2 years ago | (#39938161)

Except that a subpoena _IS_ due process...

As is contesting one. Civilized men settle their differences in courts of law.

Government: "Hand it over!"
Twitter: "No."
Both: "Rather than the government breaking out the tanks, and Twitter breaking out the Molotovs, why don't we just ask a judge how we should resolve this?"

Trial by observing the ritual combat of lawyers beats the hell out of the alternative.

Uh, no.

Justice Department: "Hand it over"
Twitter: "No"
You: "why don't we just ask a judge how we should resolve this?"
Judge: "I already issued a subpoena. Hand it over."

Re:Sounds nice (1)

Eponymous Hero (2090636) | about 2 years ago | (#39935995)

disorderly conduct by itself, no. but if they suspect the person organized or encouraged the disorderly conduct with unprotected speech (equivalent to yelling fire in a theater) over the twitter medium, then this sounds like a normal investigation. the context here is the OWS protest. if i organize a group on facebook to do something illegal, and all the feds have on me is a charge for disturbing the peace, then the next logical step would be to get a warrant for the facebook data. it's how police use probable cause to boost a "tail light out" warning into a "2 kilos in the trunk" felony.

Re:Sounds nice (2)

Aryden (1872756) | about 2 years ago | (#39936527)

They have to show evidence of probable cause in order to get a warrant, otherwise it is just a fishing expedition and Twitter is perfectly in their right to do what they are doing.

Re:Sounds nice (3, Informative)

snowgirl (978879) | about 2 years ago | (#39936659)

disorderly conduct by itself, no. but if they suspect the person organized or encouraged the disorderly conduct with unprotected speech (equivalent to yelling fire in a theater) over the twitter medium, then this sounds like a normal investigation.

Under the current standard, yelling fire in a crowded theater (clear and present danger) is not enough to unprotect speech, but rather that it has to incite to immediate lawless behavior. However, organizing a disorderly conduct mob would still qualify... this newer standard came as a result of many pacifists being charged with criminal speech acts when protesting wars.

Re:Sounds nice (1)

Jaktar (975138) | about 2 years ago | (#39936021)

Maybe the police are trying to charge this guy with more than disorderly conduct. Incitement perhaps? The police don't always tip their hand unless they need to. Sometimes they will see if you will voluntarily give information up, then they don't have to go searching for it. I'd bet someone was hoping Twitter would just cough it up.

Re:Sounds nice (4, Interesting)

cusco (717999) | about 2 years ago | (#39936159)

What, are all OWS detainees winning the grand prize of an FBI file? Are they now considered domestic terrorists?

Pretty much every protester is considered a possible terrorist by the gov't today, and it's likely that most of the OWS protesters went in with the assumption that they were going to get a file opened on them. All the ones that I've met did anyway (most of them probably already had one though, so they might not be representative).

Re:Sounds nice (5, Insightful)

Jah-Wren Ryel (80510) | about 2 years ago | (#39936421)

Pretty much every protester is considered a possible terrorist by the gov't today, and it's likely that most of the OWS protesters went in with the assumption that they were going to get a file opened on them.

And we are back to the 60s again when the FBI used to send people into churchs and other gatherings of non-violent organizations in order to spy on, and sometimes screw with, them. COINTELPRO [wikipedia.org] shit. Pretty sad it only took ~35 years for them to start pulling the same stunts. We have some really short institutional memory.

Re:Sounds nice (1)

Aryden (1872756) | about 2 years ago | (#39936431)

You're naive if you think the OWS protesters do not have FBI files. Shit, the FBI has files on a HUGE portion of the population. Most just don't even know it.

Re:Sounds nice (1, Troll)

Shavano (2541114) | about 2 years ago | (#39937071)

You're naive if you think the OWS protesters do not have FBI files. Shit, the FBI has files on a HUGE portion of the population. Most just don't even know it.

Sure they do. The FBI has nothing to do all day long but assemble files on people who are not suspected of nything.

Re:Sounds nice (4, Informative)

Qzukk (229616) | about 2 years ago | (#39937289)

The FBI has nothing to do all day long but assemble files on people who are not suspected of nything.

http://emptywheel.firedoglake.com/2011/03/26/are-95-of-people-investigated-under-new-guidelines-innocent-but-entered-into-database/ [firedoglake.com]

They obviously have time to spare on ...

a report of a suspicious car that included no license plate number. Such tips are entered into its computer system even if there is no way to follow up on them.

Check, your move.

Re:Sounds nice (0)

Shavano (2541114) | about 2 years ago | (#39937649)

Yeah that article says they've got 11,667 files. In my book, one in 27,000 doesn't amount to "files on a HUGE portion of the population."

It's not even a huge portion of the PRISON population. Go panic about something that matters.

Re:Sounds nice (1)

Hatta (162192) | about 2 years ago | (#39936679)

What, are all OWS detainees winning the grand prize of an FBI file? Are they now considered domestic terrorists?

Yes, duh.

Re:Sounds nice (2)

wvmarle (1070040) | about 2 years ago | (#39937395)

What, are all OWS detainees winning the grand prize of an FBI file? Are they now considered domestic terrorists?

Well why? Of course they are terrorists. Haven't you been paying attention over the last decade on what's been going on in the US, the UK and several other countries in the world?

Step 1: push through laws that allow police to detain "suspected terrorists" without charges for undetermined lenghts of time. Push through laws that take all normal detainee rights away from "suspected terrorists". In the meantime you leave all other crimes alone, as of course only those horrible "suspected terrorists" need their rights taken away to prevent further terrorism to occur.

This is sold to the public as "only for those heinous terrorists" while everyone else's rights are not in danger. Because only if you're a terrorist you should be afraid. And the system will never make a mistake in arresting suspects, would they?

Step 2: now whenever you want to arrest someone, simply label them "suspected terrorist" to take away all their rights and your own duty to provide any evidence that suggest the detainee is involved in this terrorism. And gain bragging rights on the evening news where you can tell the people how well you protect them by rounding up more suspected terrorists that may have had the idea to start planning some far-fetched terrorist plot to destablise the country or whatever.

That's what's being done, and that's why all those "anti-terrorism" laws scare the hell out of me. These laws will always go in the lines of "if we think you're a terrorist, we can put you away forever and you have no rights to do anything about it". While normally someone arrested for a crime must be charged within a certain period (usually days) or released unconditionally. And even when charged they can not be held forever without trial or bail - they must ask the judge time and again to extend pre-trial detention. Unless of course this person is a "suspected terrorist".

This is a prime example of how this tactic can be used against basically anyone. I have no idea what this protest was about, but just label the protestors "terrorists" out to "destabilise the country" or something in those terms and, from a law enforcement pov, life suddenly gets a lot easier.

Re:Sounds nice (2, Informative)

snowgirl (978879) | about 2 years ago | (#39935929)

That's fine. This is what due process is all about.

But a subpoena is also a part of due process... it's properly a court order compelling testimony of a witness... no, it's not a warrant, but they're not going to Twitter to search and seize, it's a court order demanding that Twitter produce the information requested as it is a necessary testimony to a legal proceeding.

In fact, this is the typical way to request information to obtain information about identity, etc from a 3rd party.

Namely, wtf is going on here, a subpoena is standard proper due process in this case, why is Twitter trying a very likely futile legal theory? ... Really, they could only properly quash the subpoena if they can show that the information that they hold is irrelevant to the court proceeding. Demanding a warrant means that law enforcement agents will come physically to their site, and find the information themselves, seizing necessary servers if required in order to search them off site. Would they really want to open themselves up to such an invasive search after the prosecution has submitted and received a proper and valid subpoena in accordance with due process already?

The legal theory is baffling my mind here...

Re:Sounds nice (2, Insightful)

Anonymous Coward | about 2 years ago | (#39936027)

Sounds to me like the subpoena is a fishing trip... that should be blocked. If there are specific tweets they want more detail about, let them subpoena those.

Re:Sounds nice (4, Informative)

Local ID10T (790134) | about 2 years ago | (#39936037)

Subpoenas are issued by the clerk of the court at the discretion of the attorneys involved.

Warrants are issued by judges.

Re:Sounds nice (1)

snowgirl (978879) | about 2 years ago | (#39936401)

Subpoenas are issued by the clerk of the court at the discretion of the attorneys involved.

Warrants are issued by judges.

They can also result in going to jail for civil contempt of court...

Re:Sounds nice (5, Interesting)

Samantha Wright (1324923) | about 2 years ago | (#39936099)

The secret is in the reading of TFA. Twitter's angry that the subpoena claims that Harris has no right to challenge it. The only circumstance allowed by the Stored Communications Act under which the subpoena is filed in which this right can be withheld is if Harris has "no proprietary interest in the content," which is patent bullocks and makes no sense. Officially the subpoena is being made by the prosecution in anticipation of a particular defence; by contrast I do believe a warrant requires suspicion of guilt before it can be issued. It's also very, very unnecessarily broad, and hence blatantly meant to fish for incriminating materials.

Re:Sounds nice (1)

ediron2 (246908) | about 2 years ago | (#39937043)

Your 4th from last word is spelled correctly... but for a moment my mind went "no, PHISH." ... I've been doing this too long.

Re:Sounds nice (-1)

Anonymous Coward | about 2 years ago | (#39937423)

It's bollocks, ma'm, BOLLOCKS. Bollocks are the hairy things that hang down between a Scotsman's legs (no, not a sporran!). Bullocks, on the other hand and ironically enough, are bulls that don't have any bollocks.

Re:Sounds nice (4, Interesting)

Jaktar (975138) | about 2 years ago | (#39936149)

TFA gives some pretty compelling reasons.

1. that the data belongs to Harris under Twitterâ(TM)s terms of service, and handing it over would violate both those terms of service and the SCA.

2. it argues that handing over Harrisâ(TM)s data would violate the Fourth Amendmentâ(TM)s protections against searches without a warrant, which it argues applies even when the government is seeking information about allegedly public activities like a userâ(TM)s tweets.

3. it points out that Twitter is in California, and argues that the New York prosecutors need to make their case to a California court to obtain Twitterâ(TM)s data.

All seem like valid arguments to quash a subpoena to me.

Re:Sounds nice (4, Informative)

Americano (920576) | about 2 years ago | (#39936443)

And the actual motion [aclu.org] explains some pretty compelling reasons why the subpoena went forward:

1) That Mr. Harris had to agree to Twitter's terms of service to have an account;
2) That the terms of service grant Twitter the following:

By submitting, posting or displaying Content on or through the Services, you grant us 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).

The essential argument is that since the user is granting Twitter that license to his tweets, the user has no "proprietary" (ownership) interest in the tweets, because by posting, he specifically gives up his right to prevent Twitter from doing anything they wish with that tweet he's submitted. In essence, they conclude that he's "given away" his tweet to Twitter via that license, and that he therefore has no standing to claim that it is "his property" which may not be disclosed by Twitter without his permission.

Re:Sounds nice (2)

I_am_Jack (1116205) | about 2 years ago | (#39936925)

That's a very broad and subjective interpretation of the law. Twitter's TOS is allowing Twitter the right to offer other's the ability to transmit, re-tweet, allow other's to quote, etc. It does not claim ownership of the tweets, just that if one uses Twitter to tweet the thoughts, photo, etc, other users within the system can use the Twitter UI to do the same. It's still Harris' intellectual property, as Harris did not grant Twitter the right to use it outside of Twitter, nor did Twitter request it. It's similar to a journalism shield law.

Re:Sounds nice (1)

Americano (920576) | about 2 years ago | (#39937077)

That's a very broad and subjective interpretation of the law.

Well, it also happens to be the court's interpretation of the law, so... that makes it at least slightly more official than your opinion or mine.

Twitter's TOS is significantly broader than you're trying to claim it is - "he didn't grant Twitter the right to use it outside of Twitter" - the TOS actually says he DOES grant them the right to use it anywhere they see fit - "any and all media or distribution methods (now known or later developed.)" In essence, he has granted them a copy of his IP, with which they can do anything they wish, and he has no claim on what they do with their copy - and so, he has no standing to block the court-ordered disclosure of the information by Twitter, because he grants that license to them.

Again - go read the actual motion I linked, and the legal reasoning included in it, it's quite interesting. It helps if you understand the law and the legal reasoning being applied in the decision before you start claiming that he's protect by some bizarrely twisted shield laws and intellectual property laws - your attempt to invoke those simply illustrates your misunderstanding of the law, and how it's being applied here.

Re:Sounds nice (0)

Anonymous Coward | about 2 years ago | (#39937407)

Copyright is statutory and created on inception of the content and good for the life of the author +70 years. That statutory treatment superceeds a commercial TOS.

JJ

Re:Sounds nice (1)

Americano (920576) | about 2 years ago | (#39937669)

First, this isn't a copyright issue. It's a subpoena of business records related to a case before the court. There are restrictions on the type of information that may be subpoenaed, but the court has ruled that the information being requested meets the requirements for information that may be requested from a service provider. "That's copyrighted" is not sufficient cause to refuse a subpoena. If it was, Twitter would have argued it in its motion to the court. It didn't.

Now, Twitter can (and has) argued that the user SHOULD have standing to challenge this under the federal Stored Communications Act, which probably stands the best chance of getting them to reverse the motion and quash the order. And if that does happen, you can bet there'll be a warrant issued for the records instead - in fact, that's pretty much what the conclusion from twitter states - "quash the order, and give us a warrant instead."

Re:Sounds nice (2)

russotto (537200) | about 2 years ago | (#39937485)

Granting a license to something does not negate your proprietary interest in that something. Just the opposite -- you grant a license rather than transferring title if you want to retain a proprietary interest.

I don't think twitter's second argument has much merit; I don't think a Fourth Amendment claim against the government obtaining information which had once been made public will stand up. But Harris should at least get the chance to make it the argument.

Re:Sounds nice (0)

Anonymous Coward | about 2 years ago | (#39937861)

is that right? just because I give you a royalty free license to some piece of intellectual property I own does not mean I no longer have a proprietary interest in it. I can still have a proprietary interest in the product at the same time as giving that right to another person as a form of payment.

Re:Sounds nice (1)

tomhath (637240) | about 2 years ago | (#39936523)

1 If it's Harris' data Twitter's terms of service are irrelevant

2 This isn't a search, it's a request for specific information, same as any other subpoena

3 If it's Twitter's data then the law is kind of unclear since he obviously sent the tweets from New York

Re:Sounds nice (4, Informative)

oxdas (2447598) | about 2 years ago | (#39936347)

First, per the Twitter terms of service, all communication is the property of the user and NOT Twitter. Twitter is arguing that it can't surrender what it doesn't own without a warrant. Think of it like this. I open a safe deposit box at my local bank. If the government wants access to property in the box, then is a subpoena to the bank enough? Twitter is in essence claiming they are like the bank; a repository and conduit, nothing more. (for safe deposit boxes, a subpoena will get you the paperwork about the box, but not inside it)

Secondly, Twitter is saying that the government needs a warrant for this information under the Fourth Amendment.

Third, Twitter is saying that if New York prosecutors want access to Twitter information, they need to file in Twitter's home state of California.

There is a lot of unsettled law in moving from the physical to the digital world. The government is arguing that many rights from the physical world don't translate to the digital one, Twitter disagrees.

Re:Sounds nice (1)

snowgirl (978879) | about 2 years ago | (#39936515)

But a bank cannot access your safe deposit box without you. So, they ensure that even when they hold anything for you that they construct a continued expectation of privacy with no right of the bank to violate that right without your consent.

Meanwhile, Twitter can access all your details and Tweets at will, and you grant them rights to redistribute at will... thus dismantling any argument of a right to privacy.

Re:Sounds nice (3, Interesting)

oxdas (2447598) | about 2 years ago | (#39937691)

With a warrant, the bank just drills the lock, so the bank can have access as well. Or, if you like, how about securing an item in their vault. The bank now has unfettered access, but a warrant is still necessary for the government to seize the goods.

I would disagree that licensing to redistribute dismantles any expectation of privacy. The government must still act within the established law. In this case the Stored Communications Act. This act allows the government to seize things such as email contents, etc and was the law used by the government in this case to issue the subpoena.

This SCA offers a lower than warrant standard called "D" subpoenas for information about an account, but not the contents of the "stored" communication which still require a warrant. This is where it gets tricky. The government in most of the country doesn't count communications that have already been transmitted or viewed by the recipient as any longer being "stored" for the purposes of the act. However, in Theofel v. Farey-Jones, the Ninth Circuit expanded the meaning of "stored" to include such things as read emails, etc. In this case they ruled that personal emails (presumably regardless of number of recipients) were protected and required more than just a "D" subpoena. Now, you can argue that a tweet is fundamentally different from a email to a million people and I would consider this a reasonable enough question for a court to address. This is why Twitter wants this whole thing moved to California, where the courts would have to follow the precedent of the Ninth Circuit. It is also why the government brought the suit in another district.

Re:Sounds nice (0)

snowgirl (978879) | about 2 years ago | (#39937835)

With a warrant, the bank just drills the lock, so the bank can have access as well.

With a warrant both the bank and law enforcement agents are allowed and permitted to violate any and all expectations of privacy. Since the bank has to drill the lock in order to obtain your security box, that makes it clear that they do not have "unfettered", and unrestricted access to the contents. In fact, it would require a clear invasion of privacy in order to break the security of the box. This is only permitted when, a) they have a warrant, and b) you are in serious default of payment, and they have a court order allowing them to seize the property contained within in lieu of payment on the default.

Or, if you like, how about securing an item in their vault. The bank now has unfettered access, but a warrant is still necessary for the government to seize the goods.

The bank is still restricting access to the goods and respecting ones privacy. The equivalent is like a store putting up your documents on a billboard, then when you tell them to take them down, they comply, but the government comes along and wants those details again.

Sure, private communications can still happen between 100 individuals, but clearly and patently private communication cannot happen when someone is posting something publicly...

Re:Sounds nice (0)

Anonymous Coward | about 2 years ago | (#39938145)

If it was actually posted publicly, NY wouldn't need a warrant, subpoena, or even a lawyer. A 5 year old with a computer could get them the guy's tweet history.

Re:Sounds nice (1)

oxdas (2447598) | about 2 years ago | (#39938227)

I don't have to subscribe to view a public billboard. There is at least some constriction from being as purely public as a billboard. He is making tweets with the expectation of communicating with a certain subset of those subscribers. Is the difference between public and private the intention, the medium of communication, the likelihood of further dissemination?

Putting that aside for the moment, the government is also after his private tweets. The internal tweet information they want also provides additional information about him (such as ip addresses, who he is associating with, etc) which were not made public in the first place (although this information would probably be accessible with the subpoena). Would you draw a line between public and private tweets (Twitter direct communication)? If my account mixes public and private communications, can the government obtain only that communication that I send out to all subscribers or is all Twitter communication public?

Re:Sounds nice (2)

Xeno man (1614779) | about 2 years ago | (#39937581)

Twitter is standing up for user privacy rights by saying, user tweets are the users property and not ours and we won't just give them out to anyone that asks. If a judge issues a warrant then we will comply with the law but Twitter is not going to be an evidence locker that lawyers can take everything you say and hold it against you.

Re:Sounds nice (0)

Anonymous Coward | about 2 years ago | (#39938129)

That's fine. This is what due process is all about.

No, it's not- you don't get to contest a warrant or a subpoena until after the fact in any other situation. They can claim the tweets belong to the users, it doesn't matter. They are in possession and/or have access to the data, the warrant is to obtain the data from a particular location, not from a particular person. Just like if the cops have a warrant to search your house, they don't have to wait for you to come home.

Get a Warrant (5, Informative)

Local ID10T (790134) | about 2 years ago | (#39935897)

But they will just come back with a warrant and make it 'difficult' for twitter.

No. that will not make it difficult for Twitter. That will protect Twitter.

Complying with a warrant provides legal grounds for Twitter to act. Giving out information without one opens Twitter up to lawsuits.

Re:Get a Warrant (1)

snowgirl (978879) | about 2 years ago | (#39935961)

No. that will not make it difficult for Twitter. That will protect Twitter.

Complying with a warrant provides legal grounds for Twitter to act. Giving out information without one opens Twitter up to lawsuits.

Except a subpoena is already a court order, and grounds for Twitter to act. They're not just handing out information willy nilly...

Re:Get a Warrant (5, Informative)

Anonymous Coward | about 2 years ago | (#39936061)

It's not the *correct* way to get information, though.

A person can be forced by subpoena to testify. They can be forced to produce their own documents, or documents they created for others. They cannot be forced by subpoena to provide other people's documents that the other people wrote for themselves. That requires a warrant, which has a higher standard.

Re:Get a Warrant (1)

snowgirl (978879) | about 2 years ago | (#39936465)

Indeed I can be subpoenaed to produce documents that another has given me, at least in some cases. The right to privacy was forfeit by sharing the material with a third party, and there is no intention that the documents could be used against me for criminal proceedings, so Twitter has no 4th amendment argument, and the third party who owns the document has no expectation of privacy.

Re:Get a Warrant (2)

MobyDisk (75490) | about 2 years ago | (#39937021)

e right to privacy was forfeit by sharing the material with a third party,

Really? Where is the line drawn?

If I send an email, did I share it with my ISP so it is not private? What about my stock portfolio stored on vanguard.com? Or the pictures of me naked I stored on dropbox.com?

Re:Get a Warrant (2)

snowgirl (978879) | about 2 years ago | (#39937799)

e right to privacy was forfeit by sharing the material with a third party,

Really? Where is the line drawn?

If I send an email, did I share it with my ISP so it is not private? What about my stock portfolio stored on vanguard.com? Or the pictures of me naked I stored on dropbox.com?

If your email was unencrypted then it was being sent to an individual. The ISP is expected not to read your emails though, so generally, even if email is unencrypted it is accepted that email is similar to verbal communication... namely, privacy is expected, but anyone that you talked to is allowed to share such communication at will... in one-party consent states they can even record it, and even in two-party consent states, IM and emails are known to be regularly recorded, and thus by using such a method of communication you are consenting to that data being recorded. Twitter and facebook posts are regularly divorce proceeding evidence.

Stock portfolio stored on vanguard.com? Subject to the same rules as storing your stock portfolio with a person... namely, if they get a subpoena asking for them to produce your financial records, then they will generally comply.

Pictures of you naked stored on dropbox.com? If it's in your public folder, then there is no argument, it was published publicly and thus subject to no expectation of privacy. If it were maintained in your private area, and dropbox has clear policies that your private data is your private data, then there is an expectation of privacy. Preferably, you should be encrypting the data, so that dropbox company has no access to the data, which would ensure that a warrant is required in order to obtain the information.

Making a bunch of tweets and then deleting them is not a revocation of public publishing... especially when you gave license to dropbox to reproduce and redistribute your tweets at will when you sign the ToS...

Re:Get a Warrant (1)

nurb432 (527695) | about 2 years ago | (#39936475)

I didn't say that the warrant will make it difficult, i said they would come back and make it difficult.

"If you don't play with us, we will become bullies.. by the way, have you been audited lately?"

Re:Sounds nice (1)

whisper_jeff (680366) | about 2 years ago | (#39936157)

You say that as if it's a bad thing. It's what virtually everyone (except law enforcement...) wants. It's called due process. It's also called "working as intended".

Re:Sounds nice (1)

nurb432 (527695) | about 2 years ago | (#39936499)

Admittedly it wasn't worded well, but that isn't what i meant. Separate the warrant from making things difficult for standing in the way. Like a protection racket, in a twisted backwards way. "Play or pay"

Half right (0)

WoodstockJeff (568111) | about 2 years ago | (#39935887)

The user's personal information should require a warrant.

However, if tweets were shared with anyone (isn't that the POINT of something like Twitter?), those should not be considered "private". Ask an attorney if you can declare attorney/client privilege if you discuss your case over a PA system at a race track...

Re:Half right (2)

Fned (43219) | about 2 years ago | (#39935941)

If they're not private, why do they need Twitter's help to see them?

Re:Half right (1)

hendridm (302246) | about 2 years ago | (#39936173)

FTA: "Harris has deleted all public tweets before February" ...and... "It’s worth noting that all of Harris’s data, including private direct messages and deleted tweets, would likely be included in the subpoena."

Re:Half right (5, Informative)

Americano (920576) | about 2 years ago | (#39936197)

Because the user has deleted all of his tweets before February 2012.

The prosecution believes that his tweets (including those deleted) will contradict his "anticipated defense" - specifically, that he was induced or forced to step onto the roadway by police, rather than stepping out onto the roadway of his own volition, and obstructing traffic. For instance, if they can show he tweeted a photo of himself and some other protesters dancing around in the roadway minutes before he was arrested, it sort of torpedoes the "The police threw me into the street!" defense.

The reasoning the court is using in supporting the subpoena (by rejecting the defendant's motion to invalidate it) is that the records are akin to bank records - they are *about* the user, but the user has neither possession nor a "proprietary" interest in those records - in other words, the records belong to the bank, and so a subpoena is sufficient for the bank to turn over records about the defendant. Given Twitter's terms of service (granting them a worldwide irrevocable license to reproduce, present and display... etc. etc.... your tweets) and the precedent of bank records, the judge has ruled that the defendant has no standing to challenge the validity of the subpoena.

You can read the full order here [aclu.org] , and it goes into fairly deep detail about the issue, and is a fairly straightforward read.

Re:Half right (1)

dlgeek (1065796) | about 2 years ago | (#39938209)

While I agree with you, and think the vast majority of the decision is very well reasoned, this quote scares the crap out of me:

The widely believed (though mistaken) notion that any disclosure of a user's information would first be requested from the user and require approval by the user is understandable, but wrong. While the Fourth Amendment provides protection for our physical homes, we do not have a physical "home" on the Internet. What an Internet user simply has is a network account consisting of a block of computer storage that is owned by a network service provider.

If that becomes a set precedent, it will have an incredibly chilling effect on online privacy.

Re:Half right (0)

Anonymous Coward | about 2 years ago | (#39936167)

The tweets *may* be public. But his email and account details are not, duh.

But... (0)

Anonymous Coward | about 2 years ago | (#39935907)

...they hate having to play by the rules

FTFY (-1)

Anonymous Coward | about 2 years ago | (#39935921)

"The company's lawyers claim that the subpoena violates the fourth amendment and Twitter's terms of service, which says that users' tweets belong to them and thus won't be handed over to law enforcement without their consent."

Fixed the summary.

won't = will not = Twitter will not hand them over to law enforcement without the user's consent. (i.e.: Law enforcement is required to get a warrant to legally compel Twitter otherwise.)

can't = can not = are not able = Twitter is not able to hand them over to law enforcement without the user's consent. (Users have encrypted their tweets and thus Twitter is not able to provide the plaintext.)

Re:FTFY (3, Insightful)

Anonymous Coward | about 2 years ago | (#39936079)

No, it's correct. If you're going to be pedantic, at least make it correct. Can't here means that it would be a violation of their ToS and that they'd likely get sued or subjected to whatever penalties that entails.

Can't hasn't meant only ability for centuries, get with the times man.

1 Rejected out of how many allowed? (0)

Anonymous Coward | about 2 years ago | (#39935935)

Care to release that ratio, Twitter?

I'm going to estimate it's over 1000/year.

What most people don't realize (3, Interesting)

Anonymous Coward | about 2 years ago | (#39936235)

Is that many states have laws which allow their own law enforcement to subpoena records without a warrant. You can't tap a conversation but you can get phone records, identifying information, and general subscriber information without warrant. Any prosecutor or investigator is allowed this privilege in most states. Anyone who runs an ISP already knows this. Most people are under the impression that a judge has to sign a search warrant. That is assuredly not the case for most of the information that any service provider has stored. The fact this is happening between states gives Twitter the ability to say "sorry, try California courts instead" and also brings federal laws into action that might not apply if Twitter and the requesting party were both in California.

Re:What most people don't realize (2)

Aryden (1872756) | about 2 years ago | (#39936601)

Yes, but under those rules, Twitter would only be required to show the court documentation pertaining to when he tweeted and to what parties the tweets may have been read by, not the actual content of the tweets which is what they want. For that, a warrant is needed for twitter to release 3rd party information.

Re:What most people don't realize (1)

Anonymous Coward | about 2 years ago | (#39937047)

The law is not nearly so simple. There are a variety of laws that protect consumer privacy, and a variety of laws that cover wiretapping, and a variety of laws that cover things in-between. And there is a lot of case law which defines particular situations. Law enforcement generally tries to go after anything that isn't wiretapping without a warrant.

Check out the chick (0)

Anonymous Coward | about 2 years ago | (#39936331)

I went to read the linked article from Forbes and got off track when I saw the chick with the big breasts in the photo... I now have no interest in reading the article but felt I needed to at least leave a comment here about the chick.

Do I need help?

Re:Check out the chick (0)

Anonymous Coward | about 2 years ago | (#39937181)

Do I need help?

No. You need a 4chan account.

What's next? (0)

Anonymous Coward | about 2 years ago | (#39936761)

I like everything about the facts in this case. I suspect the government will drop the case or settle rather than have it go to trial and get a ruling adverse to them in cases of higher crimes too. That's how they roll.

http://www.fireworksfoundation.org/actions.aspx

http://www.fireworksfoundation.org/Bruce-Niles.aspx

JJ

conspiracy charges? (0)

Anonymous Coward | about 2 years ago | (#39937493)

"The subpoena seeks user information including email address, and Tweets posted for the period of September 15, 2011"

If they get email addresses, i think they can go for a conspiracy charge too, surly that's a bigger charge than disorderly conduct!

Nice pysops chill effect from the Gov. (0)

lexsird (1208192) | about 2 years ago | (#39937535)

What a wonderfully proactive move! Yet another PR war attack if there ever was one. Follow the logic here; pick out a "trouble maker" in the crowd and make an example of him by means that go over the line and do it in a big public way. If you oversell it, you might not get the reaction you want. But this is "subtle" (don't laugh) and with a slight hint of obfuscation, making it palatable to the OWS slightly paranoid mindset. ("look..we are clever and see you")

It's a salvo round of uncertainty for one's privacy and social network. The election season is drawing nigh and we can feel the OWS crowds lurking for a go at it in our bones. Can we not? This has all of the makings of something big and violent. Think London riots of recent and multiply that by American savagery, anger and angst. This is a stew pot of boiling trouble.

Zuccati* Park was yet another clash point that the NYPD put some serious preventive troops on just recently. There was an anniversary recently and the NYPD was not going to allow another re-invasion of the park. We are talking shock troop armor ready for violent beat down time. These are pictures of America that we should never see. They don't have to hate us for our freedoms now, do they?

This fall will be a defining moment for the country and the world. Its a war of worlds condensed down to an election cycle. Nobody can afford to lose anymore. The tension fogs the air NOW, it promises to foam and boil as the moment draws near. Anxieties will mount fast and so will tempers and emotions.

When the smoke clears, there can be only one.

twitter seem like some chill bros (0)

Anonymous Coward | about 2 years ago | (#39937747)

i may sign have to sign up for that shit if this how they handle themselves

Why in the first place (1)

CanEHdian (1098955) | about 2 years ago | (#39938025)

Am I crazy, or is sending a subpoena to Twitter not a little over the top for a simple 'disorderly conduct' charge? What's next, raiding your home and seizing your computers and storage devices for jaywalking?

Yes they would need a warrant, and yes the judge should laugh them out of his courtroom for doing this on a 'disorderly conduct' charge. They can waste taxpayer's money and the court's time somewhere else.

Load More Comments
Slashdot Account

Need an Account?

Forgot your password?

Don't worry, we never post anything without your permission.

Submission Text Formatting Tips

We support a small subset of HTML, namely these tags:

  • b
  • i
  • p
  • br
  • a
  • ol
  • ul
  • li
  • dl
  • dt
  • dd
  • em
  • strong
  • tt
  • blockquote
  • div
  • quote
  • ecode

"ecode" can be used for code snippets, for example:

<ecode>    while(1) { do_something(); } </ecode>
Sign up for Slashdot Newsletters
Create a Slashdot Account

Loading...