Twitter Rejects Prosecutors' Subpoena For a User's Data Without Warrant 168
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."
Get a Warrant (Score:5, Informative)
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:Sounds nice (Score:3, Informative)
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...
Re:Sounds nice (Score:5, Informative)
Subpoenas are issued by the clerk of the court at the discretion of the attorneys involved.
Warrants are issued by judges.
Re:Get a Warrant (Score:5, Informative)
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:Half right (Score:5, Informative)
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 [aclu.org], and it goes into fairly deep detail about the issue, and is a fairly straightforward read.
Re:Sounds nice (Score:5, Informative)
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.
Re:Sounds nice (Score:5, Informative)
And the actual motion [aclu.org] 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.
Re:Sounds nice (Score:4, Informative)
Re:Sounds nice (Score:4, Informative)
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 (Score:4, Informative)
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 [wikipedia.org]:
"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 (Score:5, Informative)
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/ [firedoglake.com]
They obviously have time to spare on ...
Check, your move.