Monday, April 23, 2012

Occupy Wall Street Public Tweets Subpoena Decision May Have A Troubling Analysis

A judge ruled earlier today that deleted public tweets may be used as evidence in an Occupy Wall Street protestor's trial. While I generally agree with the main point of this decision that public Tweets are fair game, some of the analysis behind the decision may be very troubling.

Once a Tweet is public to the entire world you don't have an expectation of privacy even if the Tweet has been deleted. Former Congressman Anthony Weiner learned the hard way (no pun intended) that once you post something publicly you have no expectation of privacy. However, if one has a protected Twitter account where the owner of the account has the ability to choose who may have access to his Tweets and/or sends a Twitter Direct Message the user may have an expectation of privacy and then a warrant may be needed for the government to be able to access the Tweets and/or the Direct Messages.

One aspect of the decision I found to be very troubling was on page 4 where it states, "Twitter’s license to use the defendant’s Tweets means that the Tweets the defendant posted were not his." I believe that this analysis is incorrect and demonstrates that Judge Matthew A. Sciarrino, Jr. may not fully understand social media, digital technology, and public policy. In addition, on page 6 of the decision, it states, "While the Fourth Amendment provides protection for our physical homes, we do not have a physical “home” on the Internet." If Judge Sciarrino's reasoning is extended to all online services that may mean that as a society we don't have an expectation of privacy for password protected digital content. If we don't have an expectation of privacy for our password protected digital content this may drastically harm the ability for technology companies to monetize cloud computing and other future electronic services because businesses and consumers may be hesitant to utilize these services if the government has the ability to access our password protected digital content without a warrant.

While we may not have an expectation of privacy for our public Tweets, some of the analysis for this decision is terribly flawed and demonstrates the need for our judiciary to become better educated about the issues inherent with social media and technology.

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Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

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