When a New York judge ruled that Malcolm Harris did not have fourth amendment protections for his tweets because they are not physical property, Twitter had every reason to just give up and let the courts have the tweets. Instead, the company challenged the court ruling, stating that the subpoena of Harris' tweets violates its terms of service, the Stored Communications Act, and the fourth amendment to the U.S. constitution.
Unfortunately for Harris and Twitter, the challenge was rejected back in July, on the basis that Harris could not assert privacy rights to tweets that were formerly public. Twitter was once again ordered to hand over the tweets.
Today it has been confirmed that there is yet another twist in the case. Twitter has filed their appeal of the decision, taking the matter to the New York Supreme Court. Benjamin Lee, Twitter legal counsel and Litigation & IP lead at Twitter, announced the filing this afternoon through Tweets:
Twitter users own their Tweets. They have a right to fight invalid government requests, and we continue to stand with them in that fight.
In its appeal, Twitter makes many of the same arguments that it made in its initial motion. In short, the company states that Twitter users own their tweets, and argues that Harris certainly has a proprietary intrest in his formerly public tweets. It also asserts that the subpoenas issued by the trial court violate both the U.S. and New York state constitutions.
The ACLU has filed a friend-of-the-court brief supporting Twitter. In a post to the ACLU blog, ACLU Senior Staff Attorney Aden Fine outlines his organizations reasoning for weighing in on the matter. From the blog post:
Under the First and Fourth Amendments, we have the right to speak freely on the Internet, safe in the knowledge that the government cannot obtain information about our communications or our private information unless law enforcement first satisfies First Amendment scrutiny and obtains a warrant showing probable cause. The DA didn’t do that here. Instead, it has tried to avoid these constitutional hurdles by issuing a mere subpoena for Harris’s Twitter information.
Whether the New York Supreme Court is likely to side with the trial court or with Twitter is unknown at this point. The court's decision, though, will help set far-reaching free speech and privacy precedents. It will decide the matter of what rights Twitter users, and users of social media in general, have to their data and other information they have posted.