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

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."

Comments

Sounds nice

[nurb432]

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

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[__aaqvdr516]

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

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[geekoid]

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.

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[nschubach]

It makes me wonder if they would also do the same if it was a more serious offense.

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[geekmux]

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.

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[snowgirl]

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...

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[snowgirl]

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...

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[Eponymous Hero]

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.

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[__aaqvdr516]

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.

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[Anonymous Coward]

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.

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[Local ID10T]

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

Warrants are issued by judges.

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[__aaqvdr516]

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.

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[Samantha Wright]

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.

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[__aaqvdr516]

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

[whisper_jeff]

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".

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[cusco]

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).

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[Anonymous Coward]

"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.

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[serbanp]

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.

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[oxdas]

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.

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[snowgirl]

Thank you for clarifying TFA, as the summary failed to properly disclose all the details.

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[snowgirl]

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...

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[Jah-Wren Ryel]

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 shit. Pretty sad it only took ~35 years for them to start pulling the same stunts. We have some really short institutional memory.

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[Aryden]

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.

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[Americano]

And the actual motion 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.

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[Aryden]

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.

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[nurb432]

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"

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[snowgirl]

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

[tomhath]

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

[snowgirl]

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

[Aryden]

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.

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[Anonymous Coward]

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.

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[Aryden]

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.

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[snowgirl]

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

[Hatta]

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

Yes, duh.

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[snowgirl]

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:

"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

[SnapaJones]

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...

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[Anonymous Coward]

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

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[Anonymous Coward]

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.

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[I_am_Jack]

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.

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[ediron2]

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

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[__aaltlg1547]

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.

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[Americano]

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

[kelemvor4]

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

[Beelzebud]

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

[Beelzebud]

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?

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[Qzukk]

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/

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.

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[lexsird]

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.

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[wvmarle]

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.

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[Anonymous Coward]

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

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[Anonymous Coward]

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.

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[medcalf]

The ones who try to blow up bridges are considered terrorists, yeah.

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[russotto]

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.

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[Xeno man]

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.

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[__aaltlg1547]

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.

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[Americano]

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

[oxdas]

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.

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[Samantha Wright]

I am using the eccentric alternative for hysterical raisins.

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[snowgirl]

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

[snowgirl]

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...

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[Anonymous Coward]

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.

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[Pseudonym]

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

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[Anonymous Coward]

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.

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[pdabbadabba]

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.)

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[Anonymous Coward]

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.

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[Anonymous Coward]

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.

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[MrHanky]

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

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[Anonymous Coward]

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."

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[oxdas]

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?

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[serbanp]

The thing is that few if any think about this distorted perception and accept half-baked memes as "truth".

In American history, George Washington is a stark example. We have a state, the federal capital and untold number of cities named after the guy. Mediocre education, sub-par military ability (he lost many more battles than he won), he prevailed at Yorktown against his will (it was de Rochambeau who forced him to attack), and so on. Basically his great qualities are the "survivor skill" and that he refused to be coronated as King.

Yet he's looked at as the second Messiah's incarnation, kids in school shed tears when they hear his name and everyone reveres him. Really?

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[Anonymous Coward]

I'm thinking if they wanted to screw with regular people, they'd just pull your internet history and leak it to your Facebook.

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[lexsird]

To that I must retort with this: http://www.youtube.com/watch?v=sbRom1Rz8OA

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[cbope]

While others will not recognize it until it is too late.

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[Aryden]

You should read more closely. The 11,667 assessments were done between December of 2008 and March of 2009. 3 months. During this time, we did not have major events taking place such as OWS.

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[Aryden]

I've sat too many times in a court room and have seen too many witness testimonies ruled out as hearsay. (And yes, I blame android spellcheck for here-say). I get arrested for a crime. During the investigation, the detectives interview people in a bar that I frequent. One person, tells the investigators that he overheard me tell someone I did it, or that I even told him directly. Sane lawyers will have that testimony tossed as hearsay due to not having any form of corroboration or evidence. With that being said, many times hearsay is accepted as evidence in a crime if it comes from respected sources i.e. priests, doctors etc.

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[silentcoder]

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

To what end ? That's hearsay evidence and wouldn't be admissible anyway.
Let's try to stretch the analogy to where it at least makes sense. Your friend is death, you don't know sign language, so while she was there you communicated by writing to her on little sticky notes.
Now in theory she could be subpoenaed to hand those sticky notes over - at least that's a real written record, so not hearsay anymore and thus proper evidence.
The thing is however, that they are in your, or her, house - where they cannot be simply ceased. A subpeona isn't enough - you need a warrant to obtain documents that are located in a private home.

A twitter stream marked private, and those messages sent using the private-message mechanism should be treated no differently. They are not public information, they are private documents held on private property and should require a warrant from a judge to be handed over, not just a subpoena from a lawyer.

Re:Sounds nice

[jmcvetta]

I'm outside all the time, and have not seen this police state you're blabbing about.

Been to the airport lately?

Re:Sounds nice

[Anonymous Coward]

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.

I was arrested, for unauthorized political speech aka "jaywalking", at an Occupy protest. Since then I've been approached by several shifty people who vaguely suggested I should get involved with illegal/immoral crap. They seemed disappointed when I told them I wasn't interested. Coincidence? You be the judge.

Re:Sounds nice

[Anonymous Coward]

A police state is a state where the policeman is paid better than the teacher.
          -- V. I. Lenin

Re:Sounds nice

[xenobyte]

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.

Now, The Occupy protesters were not non-violent. In fact they some were very violent when they were removed from the places they 'occupied'. The peaceful ones are uninteresting, but the violent ones are a whole other ballgame. They have the potential to be both rioters and down the line armed revolutionaries, and any civilized society has to defend itself against those seeking to overthrow it as swift and fast as possible. Thus the interest from law enforcement.

Re:Sounds nice

[Americano]

Granting a license to something does not negate your proprietary interest in that something.

May I take this to mean that you also support restrictive EULA's which give the "owner" ultimate control over what you may or may not do with the software, books, music, etc. that you create using their tools?

After all, if I grant you an unrestricted, royalty-free license to use something, that doesn't mean I no longer 'own' the thing I've given you the license for, so it's absolutely okay for me to come along and tell you you can only install / use it on certain systems, you can't resell it, you can't share it, and you can't do anything I don't otherwise approve of with it.

I can't wait to see you lining up to voice your support for the RIAA, BSA, and other organizations who also feel this way about licenses on "virtual" products. Because this is a direct, logical, and consistent result of the sentiment you've just expressed - that granting someone a license to do whatever they want with a "non-physical" good means that the license granter still has ultimate say in how the user uses & disposes of the item, regardless of the actual terms of the license.

Re:Sounds nice

[Anonymous Coward]

How many millions of Jews died in the Holocaust?

Yeah. Take that "subjective" nonsense and smoke it. Some things are about as objectively evil as can be.

Re:Sounds nice

[Americano]

So what you're saying is that you support restrictive EULA regimes which let the copyright owner tell you what you can and cannot do with an item, even after they've granted you a license to do whatever you want with it? That is a logical consequence of the statement you've just made.

Re:Sounds nice

[gl4ss]

and if they weren't violent to begin with, you can always dump some "informants" into the mix to suggest them to use violent options. because inciting crime isn't a crime if fbi does it.

so the next plan is to make a device called the history eraser button and go around asking people to press it, those who press the button end up in gitmo because they're terrorists.

Re:Sounds nice

[russotto]

Granting a license to something does not negate your proprietary interest in that something.

May I take this to mean that you also support restrictive EULA's which give the "owner" ultimate control over what you may or may not do with the software, books, music, etc. that you create using their tools?

No; I take the position that this is what EULAs are intended to do, but that the EULAs for most products are not valid in general because (among other reasons) there in fact has been a transfer of title (of a copy, not the copyright itself).

After all, if I grant you an unrestricted, royalty-free license to use something, that doesn't mean I no longer 'own' the thing I've given you the license for, so it's absolutely okay for me to come along and tell you you can only install / use it on certain systems, you can't resell it, you can't share it, and you can't do anything I don't otherwise approve of with it.

No, because that would actually violate the license (which you specified was "unrestricted") even if it were valid. Just because a license grantor retains ownership does not mean they get to retroactively change the terms of the license.

Re:Sounds nice

[Anonymous Coward]

"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.

Just because your parents gave you a curfew doesn't mean that the military's out there enforcing it. If we lived in a police state, that'd have been intercepted before it posted and/or you'd have been shot for it.

Re:Sounds nice

[Americano]

No, because that would actually violate the license (which you specified was "unrestricted") even if it were valid. Just because a license grantor retains ownership does not mean they get to retroactively change the terms of the license.

Twitter is not attempting to appropriate the work as their own, nor is the court. Twitter is being told, "Hey, I need to look at your copy of those tweets for court business." And by your own argument, Mr. Harris has ceded all proprietary interest in Twitter's *copy* of his message by granting them that unrestricted, use anywhere license, and he certainly does not have possession of Twitter's copies - the second requirement for someone to demonstrate that they have standing to ask the court to quash a subpoena.

Again, I would encourage you to actually go and read the legal reasoning of the court, and familiarize yourself with the laws at play. This dogged insistence that "he retains copyrights" somehow makes his records immune to subpoena is simply incorrect. If you want to argue points of the Stored Communications Act, you should probably be familiar with its provisions.

Re:Sounds nice

[Anonymous Coward]

"and down the line armed revolutionaries, and any civilized society has to defend itself against those seeking to overthrow it as swift and fast as possible."

Umm... You are aware of how the United States of America gained its independence, right?

Re:Sounds nice

[CanHasDIY]

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

The mental image this phrase invokes...

Laughing
My
Ass
Off

Re:Sounds nice

[Anonymous Coward]

and if they weren't violent to begin with, you can always dump some "informants" into the mix to suggest them to use violent options. because inciting crime isn't a crime if fbi does it.

Why even bother to do that? "Remove people from the places they were occupying" by physically shoving them, maybe knocking some of them down, then complain they were "violent" because they resisted being shoved and knocked down.

Re:Sounds nice

[Anonymous Coward]

That's a horrible argument (and I know you're just paraphrasing the actual motion). That argument essentially says that if you give someone redistribution rights for something you publish, that automatically transfers the copyright to them. That is patently false.

However, I do agree that the limited rights that the defendant did surrender give the government a strong argument that the subpoena is valid. After all, the use agreed that Twitter may "distribute such Content" without needing any further permission. Legally, Twitter could voluntarily give the info to the government and the defendant could do nothing about it. That should be sufficient to permit the government to demand the info with a subpoena.

Re:Sounds nice

[craigminah]

Yeah, cue up the song they played when Captain Kirk fought Spock with that weighted half-moon thing: http://www.youtube.com/watch?v=3Rl46Dpy-P4

Re:Sounds nice

[jdavidb]

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 shit. Pretty sad it only took ~35 years for them to start pulling the same stunts. We have some really short institutional memory.

What makes you think they ever stopped?

Re:Sounds nice

[Americano]

Not really. The argument says that if you grant a license to a copy of something you've published, the person who granted the "no restrictions" license loses any say in the matter of what the licensee does with their copy of the publication. It doesn't say that granting a license cedes all copyrights, it says that granting the license disclaims the copyright owner's rights to control what Twitter does with the copy they've licensed to Twitter. And that's what the government has asked for - the information Twitter holds on its servers, which the user has granted them a license to redistribute and reproduce in any form they desire.

Copyright in and of itself is not sufficient grounds for quashing a subpoena. The grounds for quashing this subpoena are rooted in 4th amendment and Stored Communications Act, and what needs to be considered is whether this request for records constitutes an "ureasonable search" that violates the defendant's expectations of privacy, and there are some specific standards set forth in the SCA to test whether or not a subpoena is valid. The subpoena (according to the court's reasoning) meets those standards; it's up to Twitter to show how they fail to meet those tests, and frankly, their response seems to mostly boil down to "But, but, but... 4th Amendment," as if exclaiming that will create additional protections for this data.

Re:Sounds nice

[Anonymous Coward]

Would you be willing to rochambeau the 9000 British and German troops at Yorktown?
Washington was an 18th century honey badger!

Re:Sounds nice

[HapSlappy_2222]

Well, there's two ways to interpret "hearsay" testimony. In general terms, it's "witness overheard suspect say something damaging" which is actually just fine for evidence, though it would probably be more useful in support of physical evidence than as anything truly damning.

The narrower, thrown out of court, version of hearsay is when a third or even fourth party gets involved, such as Johnny being told by Jimmy that Joe said he killed James. It's silly to use Johnny as a witness; there's simply too many people involved. On the other hand, pulling Jimmy in as a witness is much more direct, and should be admissible as evidence.

I think that movies and tv shows etc have bastardized the idea of "hearsay" in general, just like so many other things.

http://en.wikipedia.org/wiki/Hearsay All my reasoning comes from the above wikipedia entry and the one Snowgirl provided, so I'm really going on gut too, but I've also been close enough to trouble to know that what you say to someone, even in private, can definitely be used against you.

Re:Sounds nice

[ganjadude]

Hate to invoke godwin, but do you think the blonde hair blued eye germans in the 30s thought they were living in a police state?

Re:Sounds nice

[_0xd0ad]

Meanwhile, Twitter can access all your details and Tweets at will

Can, but their TOS says they won't. That's the "lock".

and you grant them rights to redistribute at will

Citation needed. Unless a tweet is public, you haven't granted Twitter the right to redistribute "at will".

Re:Sounds nice

[Anonymous Coward]

But ultimately, the cultural victors (and those who wrote the public education textbooks) were abolitionists and progressives. Also, a lot of people probably still see nothing wrong with japanese internment, segregation, etc. If the South had won the civil war, how do you think slavery would be portrayed in a theoretical Confederate States of America? There's no right and wrong, you're just assigning "right" to your progressive ideals.

Re:Sounds nice

[Fjandr]

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

I dunno, I think trial by actual combat would be more fair in some cases. Class action lawsuits, maybe? :)

Re:Sounds nice

[Aryden]

Definitely can be, but you have to look at the attorneys involved, the judge and the evidence. I have seen judges toss 1st person testimony as hearsay due to no corroborating evidence while I have seen some judges accept hearsay with no corroboration. It can really depend on the person sitting the bench.

Re:Sounds nice

[HapSlappy_2222]

Absolutely correct. It's really a case of the specifics over-ruling the generals. Every case is going to have its own details to consider; otherwise, we could just use an old Macintosh computer as the judge for the entire justice department. :)

Re:Sounds nice

[__aaltlg1547]

The problem for you is that 11,667 is only 11,667. How long would it take them at that rate to get "a HUGE portion of the population?" Well that depends on what you call a "HUGE portion" doesn't it?

The average American's lifetime is about 300 of those 3-month periods. In each of those three month periods, if they were making files at a constant rate,
you have a 1 in 27400 chance of being profiled each quarter. So your chance of coming to the FBI's interest in your WHOLE LIFE is on the order of 1 percent.

Does that qualify as a "HUGE portion of the population" to you? It doesn't seem all that huge to me.

I might call 10% a huge portion, although I would know I was exaggerating. And somtime before they got to 10%, I'd become concerned that the FBI is busy with more than just trying to enforce the law.

You don't seem to know you're making an extraordinary claim that's actually refuted by the data you posted. And you probably feel good about it because you were modded up. Well I have news for you. You can be modded as "Interesting" or "Insightful" by the ignoramuses around here even when you're completely wrong, as you are in this case. And people are frequently modded "Troll" for posting facts and challenging unsubstantiated assertions.

Re:Sounds nice

[Aryden]

In some circumstances, that would almost be a better option.

Re:Sounds nice

[snowgirl]

To what end ? That's hearsay evidence and wouldn't be admissible anyway.

Not all hearsay is inadmissible. In fact, when someone confesses to a crime, or states some fact that would suggest that person's guilt, then hearsay is explicitly allowed. Why? Because it's unlikely that someone would confess to a criminal act falsely, so therefore, there is no question of if the defendant were lying or telling the truth when the statement was spoken.

Sure, the witness may be lying, but that is something that the jury is allowed to evaluate, as they will see the witness and their testimony.

There is also tons of hearsay which is also explicitly admitted, but then you probably didn't read about hearsay, you're just inferring out of the usage from movies and TV... but think about all the times they try and put someone in the cell with a person, and trying and get the person to confess to the crime that they're being held for...

Re:Sounds nice

[snowgirl]

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.

The tweets were deleted, which is why NY needs to have Twitter produce a reproduction of the Tweets.

Re:Sounds nice

[snowgirl]

i don't have to subscribe to view a public billboard.

You also don't have to subscribe to read a tweet either... just to be notified of a tweet or follow a tweet source.

Re:Sounds nice

[silentcoder]

> but think about all the times they try and put someone in the cell with a person, and trying and get the person to confess to the crime that they're being held for...

You're aware that they usually put some sort of recording device in there as well, right ? I got several lawyers in my family and they are all clear hearsay is explicitly not allowed except in a few very rare circumstances. But - their knowledge is not of AMERICAN law, so there could be more exceptions there - perhaps because you have a jury system and we have a judge-only system.

We believe that 12 random people simply cannot know the law well enough to give somebody a fair trial.

Re:Sounds nice

[blackhat1234]

If your friend is death, I think you have bigger things to worry about then a subpoena!

Re:Sounds nice

[silentcoder]

LOL - yeah, that was a horrid typo.

Re:Sounds nice

[snowgirl]

We believe that 12 random people simply cannot know the law well enough to give somebody a fair trial.

I can get behind that notion... except the 12 random people are supposed to ensure that the law never gets so complicated that it cannot be explained to a layperson. Specifically, the Common Law system was fraught with judges exceeding their authority and jailing people without good reason, so the USA system invented grand juries and trial by jury. (Notable fact: one was only guaranteed these rights in Federal courts before incorporation of those rights from the 14th amendment.)

Grand juries were intended to ensure that before charges were ever brought against someone that the prosecution had to at least be able to prove to X random laypersons that the defendant committed the crime without anyone arguing against it... I mean, if the prosecution can't prove its case beyond a reasonable doubt even when it controls everything the grand jury hears, it certainly doesn't deserve to go to trial. (US law allows for summary judgements in civil cases when taking everything a side has argued as true results in them still being in the wrong.)

Anyways, I'm down for the Civil Law tradition, with judges trained separately from lawyers, and issued resolved in reasonable discussion, rather than in an adversarial system. In the adversarial system, it's far too easy for one side, or the prosecution/defense to dump money into getting better results...

Re:Sounds nice

[silentcoder]

Well I wasn't really trying to debate which system is better - I think they both have pros and cons. The biggest con of our system is that judges can have too much power and abuse it.
The biggest con of the jury system is that you can play on jurors emotions to get an outcome that really should never have happened (think O.J. here).

What I do like about our system now is that it empowers citizens - judgements have force of law, and judges can create and abolish what we call common law. This put at least some legislative control back in the hands of citizens. Ultimately our constitutional court can actually order parliament to make legislated laws, scrap laws not constitutional and order them to act on constitutional rights. The reason I say this empowers citizens is that anybody can bring a court case.
It's much easier to do that than to try and influence politicians who are too easily bought.

When it works the court system provides our most important guardianship of civil rights. It was a court decision that forced government to legalize gay marriage and provide anti-retrovirals to rape victims for example. When it doesn't work well we get government complaining that "unelected judges should not get to tell elected officials how to govern".

That said - the civil law tradition, at least our version, still has an adversarial trial aspect. It's just that the person you're supposed to convince is a respected and educated authority on the law (again, in theory :P )

Like I said, I see pros and cons to both systems, and I'm not fully sold on either. I was just mentioning that the system I'm familiar with is different from yours so my statement may not be accurate in your country.

Re:Sounds nice

[snowgirl]

When it works the court system provides our most important guardianship of civil rights.

I usually attempt to bring this up, any time someone tries to claim that the 2nd Amendment protects all other US rights. I'm like, no... your right to redress our grievances does. You can't take away the ability of people to bear arms... out of all the rebellions that the US has had, only one was without the right to bear arms, and it is in fact, the only one that succeeded...

BTW, what country do you live in? I can only guess, and don't have much of a clue where and what tradition you're even talking about.

Re:Sounds nice

[silentcoder]

>BTW, what country do you live in? I can only guess, and don't have much of a clue where and what tradition you're even talking about.

I live in South Africa, our original court system was the Dutch-Roman system. Since 1994 there were some reforms in the court system, but it's essentially still a Dutch-Roman court base. What changed was that we instituted a judicar-state where the constitutional court is in fact the highest power in the land, not the executive government. This was actually an alien system to both the major parties in the original negotiations (the National Party and the African Nationalist Congress were both nationalist movements - with a strong preference for Westminster government). It got instituted as a compromise since neither party trusted the other enough to want to let a government with them in it be the highest power in the land - so they chose to make government subject to the court.

Re:Sounds nice

[snowgirl]

Woah, nifty... I like the idea that the court has supreme say in legal matters, because that's what they're there for after all.

I mean, it's the fundamental reason why the US court has constitutional review... it's not in the Constitution, (but then working off of a Common Law heritage, a lot wasn't codified for a long time) but it was recognized that even the government must bow before the courts.

Of course, getting courts to work fairly with democracy... that's a tangly bit that I've yet to be solved well.

Half right

[WoodstockJeff]

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

[Fned]

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

Re:Half right

[Hentes]

But information made public can be accessed without any action of Twitter already.

Re:Half right

[Mashiki]

Authenticity? Or perhaps unique subscriber information.

Re:Half right

[Anonymous Coward]

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

Re:Half right

[hendridm]

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

[Americano]

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, and it goes into fairly deep detail about the issue, and is a fairly straightforward read.

Re:Half right

[the eric conspiracy]

Private direct messages should require a warrant IMHO.

Re:Half right

[dlgeek]

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

[Americano]

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

It is known as third party doctrine - in essence, if you disclose information to another person via a third party, you lose your 4th Amendment protections relative to that information, at least insofar as the third party is concerned. The theory is that by revealing that information to (or via) the third party, you have waived your "reasonable" right to privacy. The Stored Communications Act actually enumerates some additional protections for electronic communications that precedent would have suggested is fair game under third party doctrine.

There's a really interesting review of the third party doctrine from the Michigan Law Review that discusses some of the criticisms of it, and offers some arguments in support of it. An interesting read, no matter which side of the argument you happen to agree with.

In the meantime for us lesser mortals who don't sit on a court or own a Congressperson, the best bet is to never ever ever assume that anything - especially incriminating evidence - that you write down or transmit via email or any other electronic service is "secure," "private," or "your property." It's bad practice to document your misdeeds to begin with, and even worse practice to store them in (or share them via) a platform like Facebook, Twitter, Myspace, or anything else. That certainly doesn't solve the problem inherent to balancing privacy with third party disclosure, but it at least lessens your risk of a "bad" court decision allowing somebody free access into your Facebook data where you've carefully documented all of your criminal activity for the world to see.

Get a Warrant

[Local ID10T]

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

[snowgirl]

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

[Anonymous Coward]

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

[snowgirl]

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

[nurb432]

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:Get a Warrant

[MobyDisk]

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

[snowgirl]

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

[dlgeek]

If I send an email, did I share it with my ISP so it is not private?

Yes. See the Stored Communication Act (18 USC Â2701 - 2711), and United States v Lifshitz, (369 F3d 173 [2d Cir 2004]).

What about my stock portfolio stored on vanguard.com?

There's about 150 years of case law that declare that bank records can be subpoenaed with the defendant having no standing to move to quash. It's actually one of the main precedents the judge used in this case to squash the defendant's motion.

But...

[Anonymous Coward]

...they hate having to play by the rules

FTFY

[Anonymous Coward]

"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

[Anonymous Coward]

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.

Re:FTFY

[crutchy]

lawyer's don't usually say things like "can't" and "won't" because they aren't formal. even engineers aren't likely to use them in reports. in legalese, "can't" is more open to interpretation (or misinterpretation, or simply misreading) than "can not". in engineering its all about liability and covering your ass as much as possible.

but i agree that such formality is totally inappropriate for slashdot; the summary will be misinterpreted regardless of what language its written in.

1 Rejected out of how many allowed?

[Anonymous Coward]

Care to release that ratio, Twitter?

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

I might stop hating Twitter now

[bob8766]

This article is dangerously close to causing me to like Twitter, instead of despising it

Re:I might stop hating Twitter now

[interval1066]

Twitter is most deffinately doing The Right Thing here.

Re:I might stop hating Twitter now

[crutchy]

the subpoena probably just didn't come with enough cash

What most people don't realize

[Anonymous Coward]

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

[Aryden]

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

[Anonymous Coward]

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.

Re:What most people don't realize

[Americano]

No to compel disclosure of the contents of the communications they need one of two things:

1) A search warrant;
-- OR --
2) a 2703(d) subpoena, as defined and allowed by the SCA;

I'll give you two guesses what type of subpoena it is. Hint: if you're leaning towards it being a 2703(d) subpoena, you're absolutely right.

For Twitter to refuse the subpoena, they must show - via legal logic & sound citation of precedent - that the subpoena does not meet the requirements of a 2703(d) subpoena, or that the court's legal reasoning in support of the issuance of the subpoena was faulty somehow. Just saying "sorry, we're not giving you contents," doesn't work, when the law specifically allows you to subpoena the contents of the communications under certain conditions which the judge has ruled are satisfied.

Check out the chick

[Anonymous Coward]

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

[Anonymous Coward]

Do I need help?

No. You need a 4chan account.

Re:Check out the chick

[crutchy]

you may need help cleaning up the mess, but i'm not volunteering

What's next?

[Anonymous Coward]

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?

[Anonymous Coward]

"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.

[lexsird]

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

[Anonymous Coward]

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

Why in the first place

[CanEHdian]

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.

Doesn't matter anymore with CISPA

[detritus.]

The only reason Twitter probably refused to comply is because they could have been sued for doing so.
It should, but if CISPA passes, the US government can make up the most bogus and untrue story about a person, tell Twitter they want this data, and they'll gladly hand over everything they want, and can't get sued for doing so.
They probably are after IP addresses and deleted tweets, too.

Social media and privacy

[Shahv]

Hmm...social media and privacy laws are always in the news. This Twitter thing reminds me of a case when one guy asked for data collected by Facebook from his profile and activities and got a hundreds of pdf files. ( See this story here

Do lawyers eat their words like U? LOL!

[Anonymous Coward]

How do they taste w/ ur foot in ur mouth + the bitter taste of defeat -> http://yro.slashdot.org/comments.pl?sid=2808773&cid=39855971 hmmm? LMAO!

Writing checks ur mouth can't CA$H?

[Anonymous Coward]

How'd ur words taste now that you must eat 'em -> http://yro.slashdot.org/comments.pl?sid=2808773&cid=39855971 - flacored w/ the bitter taste of your defeat + ur foot in ur mouth?

U've ur own mess to clean up, lol

[Anonymous Coward]

How do ur words taste now that u must eat them -> http://yro.slashdot.org/comments.pl?sid=2808773&cid=39855971 flavored w/ ur foot in ur mouth + the bitter taste of defeat?

Single Side'd

[AlleyTrotte]

I wonder if Twitter would have the same response if it were a TeaParty activist?

NSA

[rullywowr]

I am sure the NSA already has the "backdoor" keys to access whatever data they want on the likes of Twitter, Facebook, etc.

What Constitution?

[Anonymous Coward]

Constitution??? What Constitution?!? WE DON'T NEED NO STINKIN' Constitution!!!

Let's hear it for the "small government" Republicans who drape themselves in our Constitution. It's a pitty that they obviously have no idea what is in it or what it stands for...

Im the same way.

[Anonymous Coward]

No Warrant?
No Data.
No Exceptions.

copyright?

[jc42]

... and Twitter's terms of service, which says that users' tweets belong to them ...

What I'd wonder is: I may be just a matter of time until someone sends a twitter, and and repeats the comment in some other public forum ... and Twitter sues them for copyright infringement.

After all, Twitter does claim to own your tweets. If this has any meaning at all, it means that they own the copyright. So if you repeat your own tweet somewhere else, you have violated the copyright that you assigned to Twitter when you signed up for an account.

This isn't a hypothetical situation. There have been lots of cases of writers and musicians being charged with copyright infringement by publishers when they use their own creation without permission. This is exactly why publishers include such terms in contracts. They want all the income from our creations, and don't want us going off and creating something similar for other employers.

There was a related case a few years back, when msn.com was caught using images from customers' web sites in their ads. When called on it, their management replied that the TOS stated clearly that any files stored on their servers became the property of msn.com, and they had the legal right to use their own property in their advertising.

I'd guess that Twitter included such a clause for the same reasons, and they're on the lookout for profitable ways to use all the text that they now own. Shaking down people for copyright infringement could be one way.

My only input

[Stan92057]

My only input is that No TOS is above the law . If they get a legally issued warrant then they must abide.

Re:My only input

[admdrew]

The TOS isn't above the law, but it can help the interpretation of the law: if the content is owned by the user (per the TOS), Twitter could be violating the law by giving in to the subpoena.

Half wrong

[dutchwhizzman]

Twitter would have to answer if they have an account from this person, if they have tweets by him, if those tweets were "deleted" and some other meta-information, if they were given a subpoena in the state of California. However, they would not have to reveal the actual content of those tweets, until a warrant was properly issued by a Judge.

Before a Judge should give such an order, there should be at least indications that the content would be incriminating for the person and as such, that the tweets would in fact contain information about him, or were certified to be made by him and not somebody else that had access to the account at the time. If he said "someone else tweeted those, I don't know who, others had access to that account", the burden of proof would lay with the prosecution. I'd say the prosecution won't find it easy to convince a judge it's not merely a fishing trip. Not impossible, but they'd have to work for it.

Re:Half wrong

[Americano]

Twitter would have to answer if they have an account from this person, if they have tweets by him, if those tweets were "deleted" and some other meta-information, if they were given a subpoena in the state of California. However, they would not have to reveal the actual content of those tweets, until a warrant was properly issued by a Judge.

This subpoena is a Section 2703(d) subpoena, allowed for under the SCA, per the ruling I linked:

In order to obtain the court order found in 2703(d), the People must offer “specific and articulable facts showing that there are reasonable grounds to believe” that the Tweets “are relevant and material to an ongoing criminal investigation.”(18 USC 2703[d]). This court finds that the factual showing has been made.

Section 2703(d) allows them to request the *contents* (not just subscriber information) using a subpoena provided the request meets certain specific criteria. The judge has ruled that they have been met. Since this is a Federal law, Twitter's only real option is to refuse the subpoena until the prosecution files an action in California to have a California court issue the same subpoena, and then *hope* that the California judge interprets the situation differently than the New York judge.

And, since the judge in NY has ruled that the 2703d subpoena criteria are met (requiring "specific and articulable facts showing that there are reasonable grounds to believe that the tweets are relevant"), it's a fairly small step to go from there to search warrant which will compel the disclosure of this info.

Fourth amendment prohibits Warrantless searches

[Anonymous Coward]

It seems clear to me. What is the problem? Hell no, it is not constitutional.

The Fourth Amendment to the U.S. Constitution reads:

"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."

in contrast to

[Anonymous Coward]

note that wireless carriers like Verizon, AT&T, etc. not only hand over your data without a warrant, they make a tidy business out of selling it. Not recordings of your calls, of course, that does require a warrant; but your call records, who you called, who called you, when, how long you spoke, even where you were at the time, all just data to be peddled.