Data stored on Twitter's servers became fair game for eager prosecutors on July 2, when a New York City criminal court judge once again upheld the District Attorney's subpoena for more than a hundred days' worth of tweets and user information tied to a Brooklyn man arrested during the Occupy Wall Street protests. But the judge's decisions are all wrong, warns American Civil Liberties Union Senior Attorney Aden Fine. The judge's linked pair of groundbreaking rulings, Fine says, redefined constitutional rights in the social media era in frightening new ways.

Tweets & Metadata

For starters, Fine argued, Judge Sciarrino mixed up two different kinds of data: tweets and metadata. "All the decision talks about is the public nature of tweets," Fine said in a phone interview about Sciarrino's late June ruling to deny Twitter Inc.'s motion to quash the subpoena. But the Manhattan district attorney has requested more than the public information associated with the account of @destructuremal, allegedly used by Malcolm Harris, an Occupy participant arrested on the bridge.

Sciarrino's concern is for the tweets themselves, and there he has a straightforward framing. "What you give to the public belongs to the public," he declared in late April. "What you keep to yourself belongs only to you." To bolster his ruling, the judge pointed to two projects that suggest just how tremendously public a medium Twitter truly is: the Library of Congress' long-promised tweet archive and Politwoops, a running feed of politicians' deleted tweets. They're complicated pieces of evidence. The Library of Congress is wrestling with how to meet Twitter's restrictions on researcher access. Politwoops may well violate the Twitter API's terms of service. But for Fine, they're perfect examples of how, in celebrating Twitter's publicness, Sciarrino is eliding public tweets and collected nonpublic data like IP addresses, email addresses, timestamps and more. Whether that's error or intentional, Fine won't speculate. But "it's one of the big problems with this decision."

(The ACLU joined with the Electronic Frontier Foundation and Public Citizen on an amicus brief supporting Twitter's motion to quash the DA's subpoena.)

Which brings us to a big problem with treating public tweets and Twitter metadata as one and the same thing.

No Warrant Necessary

Sciarrino implicitly decided that users like Harris have no right to go to court to protect any of it. "There is no proprietary interest in your tweets," Sciarrino wrote, "which you have now gifted to the world." On this point, Twitter and the judge lobbed terms of service provisions at one another. The company pointed to the part that said users retain their rights to content. The jurist highlighted the part that said Twitter is free to use and reproduce tweets. "Twitter's license to use the defendant's Tweets," Sciarrino wrote, "means that the Tweets posted were not his." If Harris' tweets don't belong to him, then he has no leg to stand on when the government combs through Twitter's servers for them. "As a user, we may think that storage space to be like a 'virtual home,'" wrote the judge, "and with that strong privacy protection similar to our physical homes." But we'd be mistaken. "That 'home' is a block of ones and zeros stored somewhere on someone's computer." As such, we have no right to tell the government not to enter our Twitter accounts without a warrant - whether we're talking about the data we voluntarily make public or the data we generate as we go about doing it.

Users have no recourse on those constitutional questions, says the ACLU's Fine. And that problem goes beyond Twitter. "The rationale of that decision means that Internet users never have the right to go to court to protect their own constitutional rights on the Internet."

Deliberate Versus Automated Disclosure

All of which adds up to another concern for Fine: The government's ability to combine easy-to-get public social data with easy-to-get social metadata can reveal a tremendous amount. Say I tweet, "About to do something very, very bad." That line's meaning is far different if metadata places me outside the Big Gay Ice Cream Truck parked at New York's Union Square than it does outside a subsequently robbed Citibank in the Bronx. Sciarrino, in his rulings, cited United States vs. Miller, a landmark Supreme Court case that held that bank customers had no privacy right to records on their accounts maintained by banks. The Miller decision on banking was controversial enough back in 1976, Fine says. But it's worse now, when social media users aren't fully aware of the information being collected about them. "When you knowingly disclose something, that's one thing," argues Fine. "But when you unknowing disclose your location, for example, to a company, that can't be enough to eliminate your expectation of privacy." The worry goes beyond privacy to the chilling of free speech.

By combining public tweets and privately held metadata, "[the government] can create a very detailed map of your speech activities," Fine says. "And that raises serious First Amendment issues."

Social Media Justice

Sciarrino fancies himself something of an expert on social technologies. He hashtagged his first ruling: "The defendant moved to #quash that subpoena. That motion is #denied." Notice that the second ruling came on June 30th. As a Saturday, that's a nontraditional day for the issuance of judicial opinions. It also happened to be International Social Media Day.

The judge declared himself well positioned to break the ground he knew he was breaking. "While the law regarding social media is clearly still developing," he wrote, "it can neither be said that this court does not understand or appreciate the place that social media has in our society nor that it does not appreciate the importance of this ruling and future rulings of courts that may agree or disagree with this decision."

Indeed, it will now likely be up to future courts to see how right he got it.