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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."
That's fine. This is what due process is all about.
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.
"You want to know how to help your kids? Leave them the fuck alone." -George Carlin
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.
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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If they're not private, why do they need Twitter's help to see them?
But information made public can be accessed without any action of Twitter already.
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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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.
Subpoenas are issued by the clerk of the court at the discretion of the attorneys involved.
Warrants are issued by judges.
"You want to know how to help your kids? Leave them the fuck alone." -George Carlin
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.
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.
Bio questions? Ask me to start a Q&A journal. Computer analogies available for most topics!
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.
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).
"Think about how stupid the average person is. Now, realise that half of them are dumber than that." - George Carlin
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.
Twitter is most deffinately doing The Right Thing here.
Python: 'And then suddenly you have a language which says "we're all stuck with whatever the whiniest coder wants".'
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.
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.
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.
When information is power, privacy is freedom.
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:
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.
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.
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.
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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.
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.
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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.
WARNING! This girl exceeds the MAXIMUM SAFE standards established by the FDA for BRATTINESS
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...
Private direct messages should require a warrant IMHO.
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.
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.
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.
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?
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 ...
Check, your move.
If I have been able to see further than others, it is because I bought a pair of binoculars.
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.
Take the Red Pill.
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.
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.
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.
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.
Some people don't seem to know the difference between a police state and a crony-capitalist plutocracy.
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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.)
caritj.org
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?
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.
>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.
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