There are things that make you shake your head. This is one of them.
In a candid ruling, a New York judge said a protester can’t stop prosecutors from searching his Twitter account because he doesn’t own the tweets in the first place.
Judge Matthew Sciarrino Jr. cited a “widely-believed” but “mistaken” notion about online privacy rights and said that search and seizure protections don’t apply because we “do not have a ‘physical’ home on the Internet.”
The ruling, which grows out of the Occupy Wall Street protests, reinforces a troubling legal trend that declares people have no privacy right in their online communications — even though they spend more and more of their time on services like Twitter and Facebook. Ironically, the judge acknowledged as much:
It's not quite that simple, nor is it really novel.
Business records (the records of a business you voluntarily contract with) have always been discoverable by subpoena in both civil and criminal investigations. You can challenge such through various pleadings but the presumption has always been, absent some sort of agreement otherwise, that they're ordinary records and belong to the party that keeps them.
This isn't new. The fact that you walked into my shop and paid me in person at 2:34 PM on Thursday, if I have a business record of that, is discoverable.
The same thing applies here. There are some means to challenge such a subpoena (primarily related to litigation being vexatious or of no probative value -- that is, litigation intended to screw with the other party as opposed to discover some admissible fact) but we used to get these sorts of subpoenas all the time when I ran MCSNet. They were purely routine things and absent some sort of process filed by the other party in challenge of it, we complied as does any legitimate business. If I get such a subpoena here today at The Ticker I will likewise comply.
I don't see what the difference is, frankly. If you want something else then negotiate it and be prepared to pay dearly for it if it ever needs to be used, as litigation is expensive and expecting someone else to take your risk for you is idiotic. Yeah, I know, Twitter is a big faceless corporation. So what? You don't have to use it. It's voluntary. You can even use it through a proxy if you want to in an attempt to hide your location, but whatever they record is their ordinary business data and belongs to them, not you, unless you negotiate otherwise. This is long-settled and not, by any stretch of the imagination, new nor is it something that "just happened" in the digital age.
In fact business records have historically been one of the best sorts of evidence and are routinely admissible (with testimony by affidavit or personal appearance on the chain of custody and how the record is kept and was extracted for evidence purposes) because they're held by a third, disinterested party that typically has no reason to hide anything or tamper with the evidence being sought.
I know people will go nuts on this as some "new" violation of privacy, but it's not. There's nothing new under the sun with this decision at all.
To the contrary -- this is how it's been for a very long time.
What would have been surprising would have in fact been a ruling the other way.
Sorry to pop your bubble folks.....
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