Twitter Defends User In Court Over Occupy Tweets

By: Zach Walton - May 15, 2012

We reported last month on Malcolm Harris, a member of the Occupy Wall Street movement, and his attempt to have a tweet subpoena quashed. The judge in the case denied his motion saying that Tweets are not physical property and can therefore be obtained without a warrant. It was a disappointing ruling, but it made sense. We went on with our lives and just hoped that next time would be different.

Well, there’s been a new development in the case. A development that I don’t think anybody ever saw coming. Twitter, the actual company, has filed a motion with the court to quash the order that Harris’ Tweets be subpoenaed. The company says that Harris does indeed have a proprietary interest “in the content that he submits to Twitter” saying that a subpoena effectively violates Twitter’s Terms of Service which states that users “retain rights to any Content [they] sumbit, post, display on or through Twitter.”

But wait, it gets better. Twitter also states that the subpoena “imposes an undue burden” on themselves by making them break the law. What law? The SCA, or the Stored Communications Act, which they state “expressly permits users to challenge demands for their account records.” They also say that the Fourth Amendment’s “warrant requirement applies even when the government seeks information about allegedly public activities.”

But wait, it gets even better. On a final note, Twitter says that the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings has been violated in this case. To break that down, the case is currently being heard in New York but the subpoena is directed at a company in California. For the court to have access to Harris’ Tweets, New York has to present the appropriate certification to a California court, schedule a hearing and obtain a California subpoena for production. In essence, the court can’t even begin to obtain the Tweets until they issue a subpoena in California.

Wow, I mean, wow. I didn’t think I would ever see the day when an Internet company would lay the legal smackdown on the courts. This is a sound argument and one that the court can’t ignore. Twitter has essentially proven, at least in the case of their service and their state, that the Fourth Amendment does apply online. I’m sure that the court is going to try to use some kind of trick to get access to the Tweets, but it’s going to be even harder for them from now on.

Twitter has set an example here. I was worried when they announced their plans to selectively censor Tweets based on country, and I’m still worried about that. I’m immensely relieved, however, that they are taking a person’s privacy and rights into account with this case. If the court wants to get ahold of those Tweets, they will have to supply a search warrant.

Score one for the Internet. It’s a bright day, go out and enjoy it. Now if only we could apply this same reasoning to trash like CISPA.

[h/t: ACLU]
Zach Walton

About the Author

Zach WaltonZach Walton is a Writer for WebProNews. He specializes in gaming and technology. Follow him on Twitter, StumbleUpon, Pinterest, and Google+ +Zach Walton

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  • Michael Jon Ward

    Great read and good on twitter!

  • Keith

    Nice job by Twitter, hopefully other companies will take notice and use the protect of Federal law to their advantage.

  • Mark Atwood

    Good job Twitter. Does Facebook and Google have the balls to follow your excellent example?

  • Ashley, cutey

    Way to go twitter!

  • Robert j Allen

    We can only hope twitter choses to regularly stand up for its users constitutional rights. And maybe other social media will take the lead.
    Social network analysis

    One common form of surveillance is to create maps of social networks based on data from social networking sites such as Facebook, MySpace, Twitter as well as from traffic analysis information from phone call records such as those in the NSA call database,[38] and others. These social network “maps” are then data mined to extract useful information such as personal interests, friendships & affiliations, wants, beliefs, thoughts, and activities.[39][40][41][42]

    Many U.S. government agencies such as the Defense Advanced Research Projects Agency (DARPA), the National Security Agency (NSA), and the Department of Homeland Security (DHS) are investing heavily in research involving social network analysis.[43][44] The intelligence community believes that the biggest threat to U.S. power comes from decentralized, leaderless, geographically dispersed groups of terrorists, subversives, extremists, and dissidents. These types of threats are most easily countered by finding important nodes in the network, and removing them. To do this requires a detailed map of the network.[41][42][45][46]

    Jason Ethier of Northeastern University, in his study of modern social network analysis, said the following of the Scalable Social Network Analysis Program developed by the Information Awareness Office:

    The purpose of the SSNA algorithms program is to extend techniques of social network analysis to assist with distinguishing potential terrorist cells from legitimate groups of people…. In order to be successful SSNA will require information on the social interactions of the majority of people around the globe. Since the Defense Department cannot easily distinguish between peaceful citizens and terrorists, it will be necessary for them to gather data on innocent civilians as well as on potential terrorists.
    —Jason Ethier[41]
    AT&T developed a programming language called “Hancock”, which is able to sift through enormous databases of phone call and Internet traffic records, such as the NSA call database, and extract “communities of interest” — groups of people who call each other regularly, or groups that regularly visit certain sites on the Internet. AT&T originally built the system to develop “marketing leads”,[47] but the FBI has regularly requested such information from phone companies such as AT&T without a warrant,[47] and after using the data stores all information received in its own databases, regardless of whether or not the information was ever useful in an investigation.[48]

    Some people believe that the use of social networking sites is a form of “participatory surveillance”, where users of these sites are essentially performing surveillance on themselves, putting detailed personal information on public websites where it can be viewed by corporations and governments.[39] About 20% of employers have reported using social networking sites to collect personal data on prospective or current employees.[49]

    See also: Definition of terrorism and Terror

    Many scholars believe that the actions of their own governments can be labeled “terrorism”; however others, including governments, international organizations, private institutions and scholars, believe that the term is only applicable to the actions of non-state actors. Historically, the term terrorism was used to refer to actions taken by governments against their citizens whereas now it is more often perceived as targeting of civilians as part of a strategy directed against governments.[8] Historian Henry Commager wrote that “Even when definitions of terrorism allow for state terrorism, state actions in this area tend to be seen through the prism of war or national self-defense, not terror.”[9] While states may accuse other states of state-sponsored terrorism when they support insurgencies, individuals who accuse their governments of terrorism are seen as radicals, because actions by legitimate governments are not generally seen as illegitimate. Academic writing tends to follow the definitions accepted by states.[10] Most states use the term “terrorism” for non state actors only.[11]

    The Encyclopædia Britannica Online defines terrorism generally as “the systematic use of violence to create a general climate of fear in a population and thereby to bring about a particular political objective”, and states that “terrorism is not legally defined in all jurisdictions.” The encyclopedia adds that “[e]stablishment terrorism, often called state or state-sponsored terrorism, is employed by governments — or more often by factions within governments — against that government’s citizens, against factions within the government, or against foreign governments or groups.”[2]

    While the most common modern usage of the word terrorism refers to civilian-victimizing political violence by insurgents or conspirators,[12] several scholars make a broader interpretation of the nature of terrorism that encompasses the concepts of state terrorism and state-sponsored terrorism.[13]Michael Stohl argues, “The use of terror tactics is common in international relations and the state has been and remains a more likely employer of terrorism within the international system than insurgents.[14] Stohl clarifies, however, that “[n]ot all acts of state violence are terrorism. It is important to understand that in terrorism the violence threatened or perpetrated, has purposes broader than simple physical harm to a victim. The audience of the act or threat of violence is more important than the immediate victim.”[15]

    Scholar Gus Martin describes state terrorism as terrorism “committed by governments and quasi-governmental agencies and personnel against perceived threats”, which can be directed against both domestic and foreign targets.[4]Noam Chomsky defines state terrorism as “terrorism practised by states (or governments) and their agents and allies”.[16] Jeffrey A. Sluka has described Noam Chomsky and Edward S. Herman as pioneers in academic studies about state terrorism.[17]

    Michael Stohl and George A. Lopez have designated three categories of state terrorism, based on the openness/secrecy with which the alleged terrorist acts are performed, and whether states directly perform the acts, support them, or acquiesce to them.[18]

  • Robert j Allen

    Amendment IV

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.