Who owns your Twitter posts?

The New York Supreme Court recently ruled that a Twitter user has no standing the oppose a subpoena of his Twitter records. The Court’s decision was based on United States v Miller, 425 US 435 (1976), where the U.S. Supreme Court ruled that a bank account customer cannot assert ownership of his financial records because such records belong to the bank.

Twitter has intervened and is filing an appeal, arguing, on behalf of its users, that their users’ Tweets belong to the users and not to Twitter. Thus, under Miller, the users should have standing to oppose subpoena of their private Twitter records.

Noteworthy (credit CNBC.com):

Twitter says that it makes it clear in its terms of services that users own their content and they have “a right to fight invalid government requests,” i.e. subpoenas.

Twitter’s appeal argues that users have a property right to the content they post and have a Fourth Amendment privacy right to their accounts. The company says that deleted Tweets are not public, and that Twitter accounts should have the same protection as personal email accounts. Click here to read Twitter’s appeal.

The Court, on the other hand, seems stuck on the fact that “[b]y design, Twitter has an open method of communication.”

Sure, that’s true. However, Twitter, like Facebook where Courts had previously opined on user expectation of privacy in private posts, has privacy settings which allow users to limit and/or altogether abolish the openness of their level of communication. Bottom line: If “reasonable expectation of privacy” is the criteria for standing, then such expectation is granted by existing privacy settings.

We’ll see what happens on appeal.