EXTRA ETHER: Who Owns Your Tweets?

Porter Anderson, Writing on the Ether, Jane Friedman, author, publisher, agent, books, publishing, digital, ebooks, Guy LeCharles Gonzalez, Guy Gonzales, poetry, Handmade Memories: Poems & Essays 1997 – 2011, Free Verse Media, chapbook


Update: Stories at DigitalTrends by Andrew Couts, and at The Hill by Brendan Sasso and Jennifer Martinez, point to potential near-term legislative action that could impact future attempts by authorities to gain access to social-media records without a warrant, as has occurred in the case of Twitter and the Occupy Wall Street protestor Malcolm Harris.

See Couts in two writes:

And see Sasso and Martinez in:

Senate bill would require warrant for email snooping

As Sasso and Martinez write:

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) introduced legislation on Thursday that would require police to obtain a warrant before seizing emails or other forms of digital communication.

And from Couts’ writes:

If approved by the Senate Judiciary Committee in a markup scheduled for next Thursday (September 20), the proposed amendment will be attached to House Bill H.R. 2471, which passed the House late last year. H.R. 2471 seeks to update the Video Privacy Protection Act of 1988(VPPA), a bill that was also authored by Leahy.

Although under-reported at this point — and rather curiously so in connection with the “Twitter-Occupy” case that’s the subject of this Extra Ether — this committee effort could move to the full Senate after Thursday’s markup with the potential to directly affect future instances like the Malcolm Harris case discussed here, presumably across a wide range of social media.

Couts:

The bill would require law enforcement to obtain a probable-cause warrant before accessing all non-public Internet communications, including email, chat logs, and files stored in the cloud.

There is some very good discussion from Jane Friedman on this issue here, in our comments below, in which she asks about the status quo:

If we all use Twitter as a distribution service for our ideas/thoughts (as public as it may be), does that mean we relinquish all rights to that content just because we’ve stated it publicly?

Here is our original post:


Twitter handed over tweets from an Occupy Wall Street protester to a New York criminal judge on Friday after months of fighting a subpoena from prosecutors.

Joseph Ax’s straightforward account of the matter for ReutersTwitter surrenders Occupy protestor’s tweets — is a good place to start, and not just because Reuters was the first to carry the word.

Writes Ax:

The company surrendered the micro-blogging posts to Manhattan Criminal Court Judge Matthew Sciarrino but they will remain under seal until another appeal by the protestor, Malcolm Harris, is argued next week.

That’s about as far as you can go in this story without some sort of emotional current beginning to swirl around the ankles of your consideration.

Porter Anderson, Writing on the Ether, Jane Friedman, author, publisher, agent, books, publishing, digital, ebooks, Guy LeCharles Gonzalez, Guy Gonzales, poetry, Handmade Memories: Poems & Essays 1997 – 2011, Free Verse Media, chapbook

Malcolm Harris / Photo: The New Inquiry

Are we standing on good, solid ground here? Or is something — as the Occupy Wall Street (OWS) protestor Malcolm Harris maintains — being eroded?

Harris is a senior editor with the non-profit non-partisan The New Inquiry, which characterizes itself as “a space for discussion that aspires to enrich cultural and public life.”

Writes NetworkWorld freelancer “Ms. Smith” in Punch to user privacy as Twitter surrenders Occupy protester’s tweets:

Although Harris is only charged with disorderly conduct in connection with an October 2011 Occupy Wall Street protest on the Brooklyn Bridge, it’s a battle about constitutional rights.

That’s a workable description of the case from “street level,” if you will. And It’s certainly in line with how Harris seems to see it.

Porter Anderson, Writing on the Ether, Jane Friedman, author, publisher, agent, books, publishing, digital, ebooks, Guy LeCharles Gonzalez, Guy Gonzales, poetry, Handmade Memories: Poems & Essays 1997 – 2011, Free Verse Media, chapbook

Andy Greenberg / Forbes

Forbes’ Andy Greenberg, in Twitter Forced To Hand Over Occupy Protestor’s Tweets It Sought To Protect, writes:

Harris told me earlier in the week that he hopes to set a legal precedent with his case “about the way law enforcement is able to use social media – either as a dependable source of intelligence or not. I want not,” he wrote. ”Part of the nature of the medium is that not everyone is who they say they are, not everything is literal…I don’t think Twitter is a good place to find legal evidence of anything.”

First, the background on the charge, People v. Harris, 2011NY080152.

Porter Anderson, Writing on the Ether, Jane Friedman, author, publisher, agent, books, publishing, digital, ebooks, Guy LeCharles Gonzalez, Guy Gonzales, poetry, Handmade Memories: Poems & Essays 1997 – 2011, Free Verse Media, chapbook

Paloma Esquivel

Paloma Esquivel writes it up for the Los Angeles Times in As Occupy anniversary nears, Twitter gives up info on protester. (The Occupy Wall Street movement has its anniversary today, Monday, September 17.)

Harris was charged with disorderly conduct after his arrest at an Occupy protest last year on the Brooklyn Bridge, and prosecutors say his Twitter messages could show whether he was aware of police orders to stay on a pedestrian path.

Harris and other protesters — almost 700 were arrested in the bridge protest — said they believed they were allowed to use the roadway.

A New York Times account without byline puts a tighter spin on the interest of prosecutors in seeing Harris’ tweets. In Twitter Turns Over User’s Messages in Occupy Wall Street Protest Case, the Times’ piece says:

Manhattan prosecutors subpoenaed the records in January, because the messages could show that the police did not lead protesters off the bridge’s pedestrian path and then arrest them, an argument that the protester, Malcolm Harris, of Brooklyn, is expected to make at trial.

Porter Anderson, Writing on the Ether, Jane Friedman, author, publisher, agent, books, publishing, digital, ebooks, Guy LeCharles Gonzalez, Guy Gonzales, poetry, Handmade Memories: Poems & Essays 1997 – 2011, Free Verse Media, chapbook

Jeff Roberts / Photo: GigaOM

Jeff Roberts at GigaOM picks up the narrative in Twitter turns over OWS tweets after threat from judge:

The case became a media sensation after Twitter notified Harris about prosecutors’ demands for his account. Harris then challenged the demand but, in a remarkable decision, Judge Matthew Sciarrino Jr., ruled that he had no standing because the tweets did not belong to him.

After Twitter stepped in on Harris’ behalf, Sciarrino issued another unusual decision that suggested people have little or no constitutional rights in what they publish on social media.

And then Roberts gets us to one of the most difficult parts of this issue, emphasis mine:

The case is significant because it is helping to define privacy and free speech in the age of social media. While tweets are by their nature public statements, Harris had deleted them. The issue of whether or not they are still public documents is an open question but the more pressing legal issue is over who owns them in the first place.

 

Twitter has claimed that the user — in this case Harris — owns his or her tweets. And Twitter has had the support of the American Civil Liberties Union and the non-profit digital-rights watchdog, Electronic Frontier Foundation.

Nevertheless, ownership of tweets, at this point, is in the judgment of the beholder.

Porter Anderson, Writing on the Ether, Jane Friedman, author, publisher, agent, books, publishing, digital, ebooks, Guy LeCharles Gonzalez, Guy Gonzales, poetry, Handmade Memories: Poems & Essays 1997 – 2011, Free Verse Media, chapbook

Manhattan Criminal Court Judge Matthew Sciarrino, Jr. / Photo: New York Law Journal

In recent days, Roberts has focused on Judge Matthew Sciarrino’s own difficulties with the world of social media. In The Facebook-addicted judge and the little blue bird, Roberts writes of 2009 reports about Sciarrino being “disciplined for ‘Facebook addiction'”:

The reports cited a series of “incidents”, including Sciarrino’s habit of updating his Facebook status from the bench. The judge also reportedly snapped a photo of his crowded courtroom and posted it on the social network.

Even more serious were Sciarrino’s attempts to “friend” the lawyers who appeared in his court — a highly unprofessional move that placed the lawyers in an awkward ethical and legal position. A Staten Island news site also reported that the judge had a MySpace page on which he posted a campaign poster for his “friend,” a Republican candidate for state office.

Porter Anderson, Writing on the Ether, Jane Friedman, author, publisher, agent, books, publishing, digital, ebooks, Guy LeCharles Gonzalez, Guy Gonzales, poetry, Handmade Memories: Poems & Essays 1997 – 2011, Free Verse Media, chapbook

Will Oremus / Slate

And getting back to the current case, in Why Twitter Caved and Handed an “Occupy” Protester’s Data to the Government, Will Oremus writes for Slate:

Twitter surprised and impressed civil liberties groups this summer by taking a stand on behalf of an Occupy Wall Street protester’s privacy…The dirty part is that Sciarrino claimed that, in order to determine the appropriate fine, he would need Twitter’s financial records from the past two quarters. That’s anathema for a private startup clawing to keep its competitive edge, as Sciarrino surely knows.

 

Most observers — including quoted personnel of the Electronic Frontier Foundation — seem to agree that Twitter has been put into an intolerable bind.

The Washington Post is carrying a fonted feed of video from the Associated Press about the situation, under the headline Twitter turns over records in Occupy Wall Street case. This is a kind of story “kit,” as some network newsrooms would call it, a collection of soundbites and “b-roll,” or backgrounder video, that a news service can use to shape into a report, or “package.”

Porter Anderson, Writing on the Ether, Jane Friedman, author, publisher, agent, books, publishing, digital, ebooks, Guy LeCharles Gonzalez, Guy Gonzales, poetry, Handmade Memories: Poems & Essays 1997 – 2011, Free Verse Media, chapbook

Prof. John Coffee / Columbia Law School

In this video are bites at time codes 1:00 and 1:36 from Columbia Law School’s Prof. John Coffee, who says:

(At 1:00) Well, I certainly understand why Twitter feels exposed, and caught between a rock and a hard place. But there really is no basis for resisting the subpoena. You have a criminal prosecution. The prosecution wants to know any inconsistent statement the defendant has made publicly. And once you go on Twitter, there’s neither an expectation of privacy, nor any claim of privilege.

And there it is.

The crux of the matter is that — unlike a case that might involve a subpoena of private records never before released — this situation involves statements originally made as tweets, which are public.

Coffee to the Associated Press:

(At 1:36) I think it’s a problem for Twitter. But I think people of the Occupy movement can’t have it both ways: You can’t tell the entire world (in public tweets), “This is what I’m going to do,” and then be surprised when a court or authorities find those statements after the fact to show what your actual intent was.

 

Porter Anderson, Writing on the Ether, Jane Friedman, author, publisher, agent, books, publishing, digital, ebooks, Guy LeCharles Gonzalez, Guy Gonzales, poetry, Handmade Memories: Poems & Essays 1997 – 2011, Free Verse Media, chapbook

David Kravets / Wired

David Kravets at Wired, in Twitter Reluctantly Coughs Up Occupy Protester’s Data, points up the potentially pivotal nature of the case this way:

The case (is) being closely watched as the authorities increasingly monitor and move to access material posted on social networks. The development comes two months after the micro-blogging site reported that, for the first six months of the year, the authorities sought information on Twitter user accounts 679 times, and Twitter produced some or all of the information 75 percent of the time.

For all the respect being voiced by many for Twitter’s long battle not to release the subpoenaed tweets, the New York Post, of course, wasn’t about to miss a good line. Garrett Sloane’s story, Twitter caves on OWS data, led with the best line so far about the social-media giant:

They’re going to tweet like canaries.

| | |

How do you feel about Twitter’s handover of the subpoenaed tweets of Malcolm Harris? Do you believe, as Twitter argued, that you own your own tweets? Or does the fact that they’re made in public mean that they’re fair game in a legal case? Does this case concern you in terms of free speech and social media?


Join us Thursdays at JaneFriedman.com for Writing on the Ether, presented this week by  Guy LeCharles Gonzalez, author of Handmade Memories: Poems and Essays, 1997-2011.


Images: iStockphoto / Eduardo Luzotti

Posted in Writing on the Ether.

Porter Anderson / @Porter_Anderson

View posts by Porter Anderson / @Porter_Anderson

Porter Anderson (@Porter_Anderson) is a journalist and consultant in publishing. He's The Bookseller's (London) Associate Editor in charge of The FutureBook. He's a featured writer with Thought Catalog (New York), which carries his reports, commentary, and frequent Music for Writers interviews with composers and musicians. And he's a regular contributor of "Provocations in Publishing" with Writer Unboxed. Through his consultancy, Porter Anderson Media, Porter covers, programs, and speaks at publishing conferences and other events in Europe and the US, and works with various players in publishing, such as Library Journal's SELF-e, Frankfurt Book Fair's Business Club, and authors. You can follow his editorial output at Porter Anderson Media, and via this RSS link.

22
Join the conversation

avatar
5 Comment threads
17 Thread replies
0 Followers
 
Most reacted comment
Hottest comment thread
4 Comment authors
EXTRA ETHER: Who Owns Your Tweets? | PorterAnderson.comPorter AndersonFriend GriefJane FriedmanAJ Sikes Recent comment authors

This site uses Akismet to reduce spam. Learn how your comment data is processed.

  Subscribe  
newest oldest most voted
Notify of
Diane Krause

I find this case fascinating, and one I believe was inevitable. With all our new avenues of free speech — which perhaps has tempted many of us to speak more freely than we may have before — new precedents will be a natural outgrowth. Since I come from the pre-Twitter generation, I’m wondering how this scenario compares to “the old days” of social media. Say a person published a letter to the editor or an editorial in a major metropolitan newspaper containing content that hinted at his/her guilt or innocence related to a violation of the law. That editorial would… Read more »

Darrelyn Saloom

Will turning over private tweets lead to the same with private messages?

Diane Krause

Doesn’t seem to me that it would, since the purpose of messages is more private, one-to-one communication. But I’m no lawyer, so I have no idea. Good question. What’s the end result if/when the balance tips one way or the other?

Porter Anderson

Right, similar to my thinking. Per my comment above.

Porter Anderson

Hey, Darrelyn.

As I understand it what’s in question at this point is public tweets, not “DMs” or the direct messages you send in private on Twitter.

Your question is a good one, as to whether the precedent of releasing these public tweets of Harris’ could in some way have a bearing on later bids to have direct messages (private) released. At least in such a case, we’d be on somewhat more familiar territory — that’s a bit more like private phone records, etc. But who knows where this might be leading?

Plot your revolution quietly. 🙂
And thanks for commenting!
-p.
@Porter_Anderson

Porter Anderson

Thanks, Diane, appreciate you reading and commenting! To take your good question a bit further, would the newspaper you postulate here — subpoenaed for that editorial in its archives — then claim that the contents of the editorial belonged to the guy who wrote it? That, in effect, is what Twitter has said about Malcolm Harris’ tweets, which makes it doubly interesting. Instead of Twitter (or that newspaper) saying, this is our property and we don’t want to release it, Twitter has said this is the (tweet) writer’s property and we don’t want to release it. A very interesting argument,… Read more »

Diane Krause

Thanks for having me, and allowing me to be a part of the discussion. I always read your Writing on the Ether and appreciate you giving us meaty topics to chew on! This one definitely fits the bill. 🙂

Porter Anderson

You’re very kind, Diane, a regular Ethernaut, much prized, come back frequently! 🙂
-p.

JosephRatliff

I’m watching this case from the perspective of “Does this information, given by Twitter, prove anything as evidence?”

While not always the case… people say stuff all the time online that isn’t true, it’s not like they are under oath to do so, and the feeling of “anonymity” tends to create a false security to bend the truth a little.

So, if the court of law uses this information, what are they using to prove said information was accurate… especially in our “innocent until proven guilty” society?

Porter Anderson

Hi, Joseph, many thanks for reading and commenting! I like your line about “the feeling of ‘anonymity’ (that) tends to create a false security to bend the truth a little.” I think you have a point here about the very odd way we experience a lot of social media. I’ve been aghast many times to see folks putting things across as fact that were clearly their own interp or even imagination, on more than one platform. There does seem to be some odd sense of invisibility, when, in fact the very phrase “social media” should indicate that nothing could be… Read more »

JosephRatliff

I hope cases of this kind DO move along that adjustment as you mentioned Porter. But, while hard to argue with “you tweeted it in front of God and everybody” I think we DO have to argue it. As for the illusion of anonymity social media provides, as the saying goes… “What gets put on the Internet, stays on the Internet.” With that said, social media postings do not represent a court transcript, and were never intended to provide (or be) evidence from what I can tell. In my opinion, they should be left alone unless the facts behind any… Read more »

Porter Anderson

Exactly, Joseph, it is, indeed a touchy issue. There is legislation on the Hill being attempted (via Leahy and the Senate Judiciary Committee) to tackle this, as you can see in this story from Andrew Couts: http://www.digitaltrends.com/web/senate-bill-emails-warrant/ (And Jane has a good discussion of this in her comments with Viki above.)

But what’s really being opened up here is a new category of communication which, while made publicly, needs some protection it hasn’t had.

What comes next could be critical to the debate, obviously.
-p.

AJ Sikes
AJ Sikes

This is frightening to say the least. Our speech, once recorded in a public venue, and a proprietary public venue at that, no longer belongs to us.

Porter Anderson

So the court seems to say, yes, Aaron.

I do wonder, though, if we would consider, say, our comments on the street to a TV camera to be things we “owned?” I think people have an illusion about social media, thinking what transpires on those channels is somehow “not as public” as other means of expression.

Just thinking as I go. Thanks for commenting,
-p.
@Porter_Anderson

Diane Krause

Agree with you on the illusion, Porter. More time spent thinking before speaking might be in order in this new age, don’t you think? At least in some social media realms. Which I believe presents an interesting challenge for our younger generation, who have grown up in the communication free-for-all. I have kids 23 and 19, and while we’ve certainly tried to teach them to be prudent and discerning, and mine for the most part are relatively discerning in their social media habits, they’ve still grown up in a generational society of anything-goes (especially on Facebook).

Jane Friedman

The issue here that concerns me most is that Twitter’s own Terms of Service stipulate that you, as account owner/creator, own the content (tweets) that you create. The law has just stepped in and said that Twitter’s Terms of Service are invalid (irrelevant?) or don’t apply. It puts Twitter in a strange middleman position of having to deal with every lawsuit/case that might come its way. That doesn’t seem tenable, does it? That would take immense resource. If we all use Twitter as a distribution service for our ideas/thoughts (as public as it may be), does that mean we relinquish… Read more »

Friend Grief

Thanks, Jane. I was pretty sure I understood Twitter’s terms and services, correctly, and I did. I was under the impression that their terms and services were akin to the disclaimer “the opinions expressed here are those of the writer, not the publisher” (letters to the editor) which absolved the publisher of responsibility for content. Does the same potential issue exist for Facebook, Pinterest, Google+ and LinkedIn? What about our blogs (hosted by WordPress or Blogger)? This ruling seems to render all of their terms and services now null and void. Should we think twice before posting anything satirical or… Read more »

Jane Friedman

YES! Same potential issue with every social media site. And unless your site is self-hosted, I imagine the same could apply to Blogger/Wordpress free accounts.

Porter Anderson

Right, Jane and Viki. Andrew Couts is writing here in a separate story: http://www.digitaltrends.com/web/senate-bill-emails-warrant/ He’s clarifying that the Senate Judiciary Cmte. could approve as early as Thursday the Leahy bill that would amend this outdated “third-party doctrine” rule in the ECPA. Couts is saying that if the committee approves it in markup, then it attaches to an already-passed (in the House) bill, HR 2471 … which then goes to the Senate. The question that leaves us with, then, is whether the amended bill is likely to encounter resistance in the Senate, or can we expect it to go through? Here… Read more »

Jane Friedman

I have no idea about opposition to the amendment. Unlike SOPA, this particular bill/amendment isn’t getting much attention, which is a shame.

Porter Anderson

Agree, it’s way too quiet out there about this committee initiative coming this week. Surely as we get closer there’ll be more ink on it.

trackback

[…] is some very good dis­cus­sion from Jane Fried­man on this issue here, in our com­ments below, in which she asks about the sta­tus quo: If we all use Twit­ter as a dis­tri­b­u­tion […]