Friday, July 20, 2012

Twitter, Privacy, and Proprietary Interest

Twitter, Privacy, and Proprietary Interest

We were pleased to hear Twitter announce yesterday that it will appeal the recent ruling by Manhattan Criminal Court Judge Matthew Sciarrino Jr. that it must hand over a user's tweets. Twitter had previously argued for both First Amendment and Fourth Amendment protections for its users.

Judge Sciarrino disagreed in both instances, noting in his decision that "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." We found this decision troubling.

It is interesting to consider the difference between a tweet and a scrambled tweet. Scrambls users have an expectation of privacy, even when they are disseminating communications via social platforms, including Twitter's own public information network. Users posting with scrambls are deliberately retaining control over their tweets. Twitter believes that its users have a proprietary interest in the content they post. According to Twitter's Terms of Service, "You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed)." We agree with Twitter's position that sharing content via social media should not mean the forfeiture of all interest in that same content.

Posting with scrambls is the polar opposite of screaming a tweet out of the window. It enables users both to embrace modern communications platforms like Twitter, and to assert ownership and control of their own content.

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