By Chris Gavrielidis
Twitter is all about “social justice,” according to its Vice President and General Manager. In a recent blog post, the social media outlet announced that “[u]sing Twitter’s Public APIs or data products to track or profile protesters and activists is absolutely unacceptable and prohibited.” And in the interest of “justice,” it is prohibiting law enforcement from accessing information which is open to everyone—except to law enforcement, apparently.
The government has long made use of Twitter’s services in quite interesting and effective ways. Last year, for example, the Air Force used intel from Twitter (namely, the so-called “moron” tweet) to locate an ISIS command center. Less than one day after an ISIS operative tweeted a selfie revealing its location, the Air Force sent warplanes to destroy the facility. [1]
But Twitter, which is infamous for safe-guarding terrorist user accounts (albeit to the U.S. military’s benefit), has now made it clear that its Public API data is not available for general law enforcement purposes. But the irony is that public information is just that—public. To restrict the authorities from accessing information that is freely accessible to the public is perplexing. The idea is akin to requiring police to ignore incriminating evidence clearly left in plain view. Under Supreme Court precedent, merely observing evidence left in plain view is technically not even a search. [2] From this context, it becomes unclear what legal authority Twitter would rely upon in order to protect its users from themselves. But even assuming that taking advantage of Twitter’s pubic data constitutes a search, it remains unclear whether it would be considered unreasonable.
To be fair, the general public only has reasonable access to about 1 percent of all tweets posted every day. It is unclear whether and to what extent law enforcement would have access to data which the general public does not. But this hardly raises any Fourth Amendment concerns, because there is no forced government intrusion. Usually, law enforcement only receives the information from companies which have already been granted “firehouse” access to the massive stream of Twitter’s data by the social media giant itself. Those companies willingly enter into agreements with law enforcement organizations for the dissemination of public user data. One of these companies is called Datminr, and it curiously appears to be the sole exception to Twitter’s recent crackdown.
Despite reinforcing its position on this issue, the FBI entered into a contract with Datminr in early November. [3] Datminr provides access to 100 percent of Twitter posts, and the FBI will have access to all of it. Interestingly enough, Twitter owns a five percent share of Datminr and has justified the contract, stating that a “narrowly tailored news alert product is available to some first responders, like the FBI.”
[1] See Walbert Castillo, Air Force intel uses ISIS “moron” post to track fighters, CNN (June 5, 2015), accessible at http://www.cnn.com/2015/06/05/politics/air-force-isis-moron-twitter/.
[2] See, e.g., Oliver v. United States, 466 U.S. 170, 176-77 (1984); United States v. Beene, 818 F.3d 157, 162-63 (5th Cir. 2016); Patel v. City of Montclair, 798 F.3d 895, 898 (9th Cir. 2015); United States v. Pinter, 984 F.2d 376, 378-79 (10th Cir. 1993).
[3] See Jeff J. Roberts, Twitter Warns Developers About Misusing Data, FORTUNE (Nov. 22, 2016), accessible at http://fortune.com/2016/11/22/twitter-data-surveillance/.
Student Bio: Chris Gavrielidis is a Staff Member on the Journal of High Technology Law and a third-year student at Suffolk Law.
