Twitter is continuing to fight a court order demanding that it turn over tweets and other information related to the Occupy Wall Street protest.
In January, Twitter was issued a subpoena by the city of New York calling for "any and all user information, including email address, as well as any and all tweets posted for the period of 9/15/2011 - 12/31/2011" by Malcolm Harris, an Occupy Wall Street protestor facing a disorderly conduct violation. It's not clear why the city would go to all this trouble for such a piddling charge, but Harris claimed that what prosecutors really wanted was to see what he was saying around the date of September 17 "for unrelated reasons."
Twitter's fight against the order hasn't been going very well; it had previously sought to overturn the city's effort to obtain Harris' information without a warrant, but lost that case in July when a judge ruled that people who post on Twitter have no reasonable expectation of privacy. The company is holding firm, however, claiming in a new appeal that Harris' tweets are protected by the Fourth Amendment, which protects against unreasonable searches and seizures, "because the government admits that it cannot publicly access them, thus establishing that Defendant maintains a reasonable expectation of privacy in his communications."
"The fact that the government needs Twitter's assistance to get access to these communications coupled with the fact that the user is explicitly opposing this access contradicts the notion that the user has no reasonable expectation of privacy in these tweets," the appeal states. "If an email is entitled to Constitutional protection but an unavailable Tweet is not, what exactly is the dividing line that will allow citizens to understand when the Constitution protects their communications? It simply cannot be the case that a Tweet that is no longer available or is deleted mere seconds after it was posted is unprotected by the Federal or New York Constitutions, but an email sent to a group of people and never deleted can only be obtained with a search warrant."
"Under the First and Fourth Amendments, we have the right to speak freely on the Internet, safe in the knowledge that the government can't get information about our speech without a warrant and without satisfying First Amendment scrutiny," said Aden Fine, an attorney for the American Civil Liberties Union, which is filing an amicus brief in support of Twitter. "We're hopeful that Twitter's appeal will overturn the criminal court's dangerous decision, and reaffirm that we retain our constitutional rights to speech and privacy online, as well as offline."
It all gets very muddled in a hurry. The idea that people use Twitter with any expectation of privacy is patently ridiculous: We tweet because we want the world to pay attention to us. But by what logic can we applaud the use of Twitter and other social networking tools in uprisings in countries like Egypt and Syria, while at the same time stand idly by as the authorities take steps to chill the same sort of behavior at home?