{"id":1182,"date":"2012-04-27T21:46:24","date_gmt":"2012-04-28T01:46:24","guid":{"rendered":"http:\/\/www3.law.harvard.edu\/journals\/hlpr\/?p=1182"},"modified":"2015-10-02T15:23:40","modified_gmt":"2015-10-02T15:23:40","slug":"so-your-tweets-are-no-different-than-bank-records-huh","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/lpr\/2012\/04\/27\/so-your-tweets-are-no-different-than-bank-records-huh\/","title":{"rendered":"So Your Tweets are no Different Than Bank Records, huh?"},"content":{"rendered":"

By Jonathan Peters<\/p>\n

<\/em>Follow me<\/em>\u00a0<\/em>@jonathanwpeters\u00a0on Twitter.<\/p>\n

<\/em>Your tweets are no different from bank records, a New York\u00a0judge ruled\u00a0Monday. \u00a0Prosecutors had subpoenaed an Occupy protestor\u2019s tweets after he was arrested in the fall during a Brooklyn Bridge protest. \u00a0The judge was ruling on the protestor\u2019s motion to quash the subpoena, which sought \u201cuser information, including email address,\u201d and three months of tweets from the protestor\u2019s Twitter feed.\u00a0As Adam Martinwrote\u00a0in\u00a0The Atlantic<\/em>:<\/p>\n

Judge\u00a0Matthew Sciarrino Jr. wrote that there was no precedent in New York for an order to quash a subpoena to a \u201cthird-party online social networking service seeking to obtain the defendant\u2019s user information and postings.\u201d But he wrote that \u201can analogy may be drawn to the bank record cases where courts have consistently held that an individual has no\u00a0right to challenge a subpoena issued against the third-party bank.\u201d Sciarrino ruled that [the protestor] couldn\u2019t quash the subpoena, but he didn\u2019t necessarily rule that the tweets or other information would be admissible as evidence.
\n
\nThe judge added that prosecutors proved that the tweets might be relevant to the case against the protestor, calling into question his \u201canticipated defense\u201d that police officers led protesters onto the bridge before arresting them. \u00a0The judge also said that\u00a0\u201dTwitter\u2019s license to use the defendant\u2019s Tweets means that the Tweets the defendant posted were not his.\u201d \u00a0(The license is non-exclusive.) \u00a0For its part,\u00a0Twitter had notified the protestor of the subpoena and had refused to comply with it while the protestor prepared his motion to quash.<\/p>\n

I\u2019m troubled by the judge\u2019s\u00a0reasoning.<\/p>\n

First, he doesn\u2019t appear to understand the nature of social media. \u00a0Take, for example, footnote 3 of the opinion: \u201cThe reality of today\u2019s world is that social media, whether it be Twitter, Facebook, Pinterest, Google+ or any other site, is the way people communicate and to some extent has supplemented email for many people.\u201d<\/p>\n

It\u2019s a bit strange to say that social media have \u201csupplemented\u201d email, because social media haven\u2019t really added to email. \u00a0They\u2019re just different. \u00a0In other words, the purposes and capabilities of email are different from the purposes and capabilities of Twitter, Facebook, Pinterest, etc. \u00a0So the judge is comparing apples to oranges, in a way that reminds me of the time a friend asked me if she should \u201cbuy a Twitter device.\u201d<\/p>\n

Second, tweets are different from bank records. \u00a0The latter, quite literally, are the business records of the bank. \u00a0They\u00a0document the business transactions between the bank and its customers. \u00a0As a result, the records belong to the bank, and the customer cannot claim that he owns or possesses them. \u00a0Fair enough. But tweets are not the business records of Twitter, and they do not document the business transactions between Twitter and its users.<\/p>\n

Even though Twitter retains a non-exclusive license to use them, tweets are a form of user-generated content, and they are personal and expressive, unlike bank records. \u00a0Even the judge said as much in his opinion: \u201cWith a\u00a0click of the mouse or now with even the touch of a finger, Twitter users are able to transmit their personal thoughts, ideas, declarations, schemes, pictures, videos and location, for the public to view.\u201d \u00a0He also referred to Twitter as \u201can information network.\u201d Again, apples to oranges, bank records to tweets.<\/p>\n

Third, the judge helpfully explains that \u201cwe do not have a physical \u2018home\u2019 on the Internet\u201d and that \u201cthe Fourth Amendment\u00a0provides protection for our physical homes.\u201d \u00a0(My friends who play FarmVille will be super pissed when they learn this.) \u00a0The judge goes on to describe the Internet\u2019s infrastructure, which is different, of course, from a physical home\u2019s:<\/p>\n

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. As a user, we may think that storage space to be like a \u201cvirtual home,\u201d and with that strong privacy protection similar to our physical homes. However, that \u201chome\u201d is a block of ones and zeroes stored somewhere on someone\u2019s computer. As a consequence, some of our most private information is sent to third parties and held far away on remote network servers. A Twitter user may think that the same \u201chome\u201d principle may be applied to their Twitter account. When in reality the user is sending information to the third party, Twitter.<\/p>\n

Argh. \u00a0No less than the U.S. Supreme Court has said otherwise, that the Fourth Amendment\u00a0does not \u201cturn upon the presence or absence of a physical intrusion.\u201d \u00a0Katz v. United States<\/em>, 389 U. S. 347, 353 (1967). \u00a0And as Justice Sotomayor wrote in her concurring opinion in\u00a0U.S. v. Jones<\/em>, it\u2019s time \u201cto reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.\u201d\u00a0565 U.S. __ \u00a0at 5 (2012). \u00a0The New York case, admittedly, might not be a great vehicle to test that premise, because it involved publicly accessible tweets. \u00a0But the underlying principle remains.<\/p>\n

The mere fact that information is \u201cheld far away on remote network servers\u201d shouldn\u2019t dictate the Fourth Amendment protection for that information, not in a world where more people are doing more things online, many of them mundane. \u00a0Today, I store information in the cloud that one year ago I would have stored on a local server or in a desk drawer. \u00a0Today, sending\u00a0information online to third parties is a function of my daily affairs. \u00a0Today, the Fourth Amendment would turn a blind eye. \u00a0That\u2019s bad policy, and as Sotomayor wrote, \u201cthis approach is ill suited\u00a0to the digital age.\u201d<\/p>\n

Jonathan Peters is a media lawyer and the Frank Martin Fellow at the Missouri School of Journalism, where he is working on his Ph.D. and specializing in the First Amendment. He has written on legal issues for a variety of news outlets, most recently the Columbia Journalism Review, The Nation, Wired and PBS. Email him at<\/em>\u00a0<\/em>jonathan.w.peters@gmail.com<\/em><\/a>. \u00a0Follow me\u00a0@jonathanwpeters\u00a0on Twitter.\u00a0<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

By Jonathan Peters Follow me\u00a0@jonathanwpeters\u00a0on Twitter. Your tweets are no different from bank records, a New York\u00a0judge ruled\u00a0Monday. \u00a0Prosecutors had […]<\/p>\n","protected":false},"author":6,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[2],"tags":[],"class_list":["post-1182","post","type-post","status-publish","format-standard","hentry","category-blog"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/peZQka-j4","_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/1182","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/users\/6"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/comments?post=1182"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/1182\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/media?parent=1182"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/categories?post=1182"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/tags?post=1182"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}