Twitter sings like a canary -- and we all lose
You know that blue bird Twitter uses as its mascot? Turns out it's really a stool pigeon. Two days ago, Twitter agreed to hand over the tweets and other informationof one of its users to a New York municipal court.
To be fair to Twitter, the social network made a concerted effort to keep Malcolm Harris' records private, going further than most companies would to protect user privacy and -- more to the point -- absolve itself of the responsibility for what its users say.
In the end, Judge Matthew Sciarrino Jr. threatened to paw through the last two quarters of Twitter's private financial statements to come up with a fine large enough to sting. Twitter relented.
The cops are trying to prove that Occupy Wall Street protestor Harris knew he was violating the law by blocking the Brooklyn Bridge last October. The 23-year-old activist has claimed the cops told him he and the 700 others arrested that day could occupy the bridge; the authorities wanted to use Harris' tweets against him to prove that he knew otherwise.
What's at stake for Harris? A $250 fine. What's at stake for the rest of us Netizens, though, is far greater. Sciarrino demanded more than three months' worth of Harris' tweets, which Harris noted is "the legal equivalent of busting a party with loud noise and demanding my phone records for 3.5 months to see if I helped plan it."
The case goes straight to the heart of who owns your information -- a much bigger question than tweets -- and what rights you have to stuff you've published on someone else's site or obtained via someone else's service. More and more government authorities are using the argument that they're simply requesting "business records" from third parties -- a sneaky way of obtaining information about you without having to jump through all those annoying Constitutional hoops or give you a chance to object in court.
Judge Sciarrino said issuing public tweets is like screaming out your window. Naturally, if you shout something out your window, you can't claim your privacy is being violated if your neighbors happen to hear it. In the opinion he handed down last June, Sciarrino wrote:
If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy. There is no proprietary interest in your tweets, which you have now gifted to the world. This is not the same as a private email, a private direct message, a private chat, or any of the other readily available ways to have a private conversation via the internet that now exist.
The problem here -- one common to a lot of old-school judges trying cases involving technology -- is that Sciarrino is employing the wrong metaphor. Using Twitter is not like screaming out of a window, unless someone happens to be standing outside your window with a tape recorder, a transcriptionist, and a sys admin waiting to upload it to a database in the cloud.
When you scream out of a window, your scream isn't being recorded and cataloged. It's unlikely that anyone can search for the words you used when you screamed and find that recording. It's even more unlikely that your scream will find its way to the Library of Congress (if it does, that's a hell of a loud scream).
This is far from the only place where the legal authorities are not really keeping up with the times. Other U.S. courts have ruled that tracking your car via GPS is not a violation of privacy because your car is visible in public; thus, you have a lower expectation of privacy. Personally, I don't think I should be forced to alter my expectation of privacy because surveillance equipment got a whole lot better.
Dear judges of the world: Talking is not the same as typing. Typing a letter on a typewriter and mailing it is fundamentally different than writing an email and sending it, even if the physical actions are almost identical. Being able to spot a car moving along a road and identify it is not the same as following it for 1,000 miles and recording every place it stopped. It's definitely not the same as being able to follow 1,000 cars and track all their locations without ever leaving your desk.
What the world really needs is much better metaphors, so that our legal system can understand the changes technology is making to all our lives and adjust its own expectations accordingly.
Harris may well lose his case. Public tweets may be just that: public. But the trend toward capturing all our information and using it against us, just because somebody can, is deeply disturbing.
Ever metaphor you didn't like? Post your favorite techno-analogies below or email me: firstname.lastname@example.org.