Do you have a reasonable expectation of privacy if you have a private, protected Twitter account?
That's the key issue for an appellate court come Sept. 28 — and ultimately for all of us — in the case of Malcolm Harris, one of more than 700 Occupy Wall Street protestors arrested when a major New York City march went off course right into oncoming traffic on the Brooklyn Bridge this past October. Accusations flew between police and the protest organizers over whether the protesters purposely marched onto the bridge to disrupt the city, or whether the police tricked them into heading to that location so that the police could break up the protest. New York is prosecuting Harris for disorderly conduct. The Manhattan District Attorney subpoenaed Twitter in January to provide the prosecution with Harris's protected Tweets, location information and other sensitive information in an attempt to gather evidence about whether protesters or police "gave the order" onto the Bridge.
Instead of simply providing the information, Twitter opposed the subpoena. Twitter argued that Harris, and not Twitter, owned Harris's tweets and that Harris had the right and obligation to respond to the government subpoena instead of Twitter. Twitter also argued that the subpoenas were unconstitutional searches because Harris, like all Twitter users, has a reasonable expectation of privacy in his protected tweets. But the trial court judge ordered Twitter in June to produce the information, ignoring the distinction between public tweets and private, protected tweeting. And that's a pretty big difference.
What is a reasonable expectation of privacy, anyway? Our Founding Fathers hated it when British soldiers kicked their doors in for no reason and rifled through their collections of colonial porn. Their response? The Fourth Amendment, which says all Americans are secure in our private lives — our homes, our papers, our stuff — from unreasonable government searches and seizures. One way that the law decides whether a search or seizure is unreasonable (and therefore unconstitutional) is to ask whether a citizen has "a reasonable expectation of privacy" in that "thing." Because any person can say to a judge, for example, that "I expected my well-lit meth lab sitting on my front lawn to remain private," the law asks whether our expectations of privacy are reasonable. A judge will ask if American society has accepted the idea that this "thing" is something we all understand to be private. If we do have a reasonable expectation of privacy in that "thing," then the government has to have better reasons (probable cause) for searching or seizing that "thing." So a police officer cannot just kick the door in to your house and search every room of your home whenever he wants. He'd need better reasons, because we expect privacy at home.
What about those protected tweets?
Some people use Twitter like their own 140-character newspaper, and others use it like email to communicate with a select few. After Twitter filed its appellate brief in the New York state criminal case People v. Harris, continuing its stand on behalf of its users, the government conceded that without the cooperation of Twitter or Harris, the prosecution cannot access Harris's tweets. Because they are protected as private. A quick anology: absent a court order, the prosecution can't read Harris's mail without his cooperation (or the cooperation of the postal service). And that's because Harris has a reasonable expectation of privacy in his mail. Why wouldn't that be the same here?
We need to find ways to express our expectation that our lives can be private and online, so that courts and legislators can make the right decision. Posting that odd Facebook Privacy Notice was worth it for just that reason. But note that growing concern over the tracking capability inherent in a world with GPS in everything hasn't stopped other courts from ruling that the police can track your location via your cellphone without a warrant. So it's time to stand with Twitter and say that you expect your protected tweets to be private and protected.
An advocate for the Digital Age, Michael Phillips is an associate at a Wall Street litigation boutique (though he is not your attorney and this piece does not constitute legal advice for you!). He has been called a “thick-haired man” by the New York Times.