May 11, 2012 | By Hanni Fakhoury

NY Twitter Decision Fails to Recognize Content and Location Data Require a Warrant

A New York judge's broad opinion, ordering Twitter to comply with a subpoena (PDF) and turn over account information about one of its users arrested for disorderly conduct in connection with an Occupy Wall Street protest, is worse the deeper you dig into it. 

The judge ruled (PDF) that the user, Malcolm Harris, lost ownership of his tweets once he posted them online, and therefore had no legal standing to challenge the subpoena. This decision prompted several worried responses, including our own, because our Fourth Amendment privacy rights should not be surrendered simply because we use online service providers that store information remotely. Even Twitter stepped in to defend Harris, filing a motion to quash (PDF) the subpoena.

But two other troubling legal rulings in the opinion have received less scrutiny, even though they also put basic privacy rights in jeopardy. The court threw away one of the most important procedural protections enshrined in our constitution -- the Fourth Amendment's search warrant requirement -- by lowering the standard for government access to both the contents of communication, and information about a person's location.

First, the court allowed the government to get the contents of communication -- in this case, Harris' tweets -- with a mere subpoena. But consistent with the Fourth Amendment, Congress made clear that the contents of communication can only be accessed by law enforcement with a search warrant. The Stored Communications Act (SCA) details how the government can obtain certain types of information from electronic storage providers. And while there has been debate about the legal standard that applies for obtaining non-content records like cell phone location information -- we think a search warrant is required, and the government does not -- the SCA is absolutely clear that a search warrant is required for content that is less than 180 days old. For that reason, when we first wrote about this case we predicted that the government's request for tweets was unlikely to succeed because consistent with the SCA, Twitter's law enforcement guidelines required a search warrant in order to access this information.

Unfortunately, the Court was led astray by the government, who argued (PDF) that the SCA didn't even apply because the tweets were public, although the text of the SCA doesn't distinguish between public and non-public content. (The government's argument makes us wonder, if the tweets were public, then why did the government need a subpoena anyway?) As a result, the court allowed the government to access content -- the tweets -- without a search warrant, even though some of the content was less than 180 days old. And although the SCA suggests content older than 180 days old can be obtained without a search warrant, we helped convince the Sixth Circuit Court of Appeals that the Fourth Amendment's search warrant requirement applied to email regardless of how long its been in electronic storage. The same rule should apply with respect to tweets too.

But its not just about privacy. Allowing government access to the content of communication without the judicial oversight that comes with a search warrant also presents real First Amendment problems too. Just like we said when we previously challenged the government's attempts to get information from Twitter, allowing access to all of a person's tweets, whether related to Occupy Wall Street or not, chills free speech. That's abundantly clear here where the government is pursuing a criminal charge about as serious as a speeding ticket (disorderly conduct has a maximum punishment of 15 days in jail, or a $250 fine) during an internationally reported political protest and rally.

Unfortunately, there are other problems with the Court's order. The judge also allowed the government to get access to location information without a search warrant. Twitter keeps a record of a user's IP address when he logs in to post a tweet. Since the majority of Twitter users access the site through mobile phones, these IP addresses are keys that help unlock a person's location.  As the order states, the government wants the information

to refute the defendant’s anticipated defense, that the police either led or escorted the defendant into stepping onto the roadway of the Brooklyn Bridge. The People claim the defendant’s anticipated defense is contradicted by his public statements, which identifies the @destructuremal account as likely belonging to the defendant and indicates that while on the Brooklyn Bridge the defendant may have posted Tweets that were inconsistent with his anticipated trial defense.

When we first wrote about this case, we believed it was all about location, location, location. The real reason NYC prosecutors wanted this information was to get location data that would give the government information about the workings of the Occupy Wall Street movement and its members. That explains why Harris was singled out: he had over 1,500 followers, 7,200 tweets and was outspoken about his involvement in the Occupy movement.

But as we've explained many times before, the government needs a search warrant to get location information. Earlier this year, the Supreme Court issued its groundbreaking opinion in United States v. Jones that found attaching a GPS device to a car to track a person's movements for 28 days was a "search" under the Fourth Amendment, and thus could only be done with a search warrant. In her concurring opinion, Justice Sotomayor questioned "whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on."

That's precisely what's happening here. While the NYC prosecutors may be interested in Harris' movement on the day of his arrest, the subpoena requested three months of information from Twitter, far more than the 28 days at issue the Supreme Court found violated the Fourth Amendment. And by figuring out where Harris was for three months, the government can learn much about him and the Occupy movement. A search warrant ensures that location information can be an effective law enforcement tool in cases where there is probable cause to believe evidence of a crime will be found, but strikes a balance with a person's right to privacy, and ensures that this information won't be misused for politically motivated witch hunts based on trivial criminal charges.

The court's acceptance of the government's arguments for disclosure has resulted in a broad opinion that has far reaching consequences to free speech and privacy. The judge now has an opportunity to correct this error and grant Twitter's motion to quash the subpoena. If he doesn't, we hope that the New York appeals court will follow the direction of the Sixth Circuit with respect to contents of communications, and the Supreme Court with respect to location information, and insist on the protections of the Fourth Amendment.


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