What Would Washington Tweet?

One of my pet peeves is seeing how the legal system often times misunderstands technology. So, I think I should give a thumbs up to this decision involving a request for information about tweets from the Occupy Wall Street Protest.

The NYPD has requested Twitter to turn over user information and records of tweets made by
@destructuremal (real name: Malcolm Harris). After a court ruled that Harris could not quash the subpoena because he didn't have standing the microblogging site took up the cause.

Twitter's first argument was that the user should have the right to challenge the subpoena instead of Twitter having to do it. As a practical matter Twitter doesn't want to get involved with these things. If the court found that tweeters had standing to challenge subpoenas it would make life easier for Twitter. If someone was challenging one they would sit back and wait for the court decision. If a user decided not to challenge it then Twitter could hand over the records without looking like they aren't fighting for their users. By making Twitter the person who has to be in court it places the company is a terrible bind. Do they do the easy thing and hand over the data or do they try and argue for protection of this data?

While the court understands this problem, they don't buy it as an argument to create standing. They also don't care much for Twitter's argument that the user has an expectation to privacy in the information they share with them. "There can be no reasonable expectation of privacy in a tweet sent around the world," the court said, distinguishing it from an email, direct chat, or IM. Even though this is new technology, it isn't a new problem. The court compares this case to one where a person yells something at someone else on a street and is overheard by other people. Of course the people overhearing the conversation can testify to it. The fact that it was tweeted instead of yelled doesn't change anything.

So, Twitter has to turn over the tweets. I've already heard some people upset about this from a privacy aspect, but it isn't really an issue. The police could get these tweets either from the account or from one of the many sites that allow you to search deleted tweets. The reason they need it from twitter is so that they can get it into evidence. A printout of a tweet without verification from twitter connecting it to that particular user account (as opposed to something photoshopped) won't be able to make it into evidence. The information was already out there. This just makes is admissible in court.

The final interesting bit from the opinion is this musing on what the founders would think of Twitter.

While the U.S. Constitution clearly did not take into consideration any tweets by our founding fathers, it is probably safe to assume that Samuel Adams, Benjamin Franklin, Alexander Hamilton and Thomas Jefferson would have loved to tweet their opinions as much as they loved to write for the newspapers of their day (sometimes under anonymous pseudonyms similar to today’s twitter user names).

Can you just imagine the tweet fight @TheRealBurr would have with @AHam?