September 8, 2010
Researchers and marketers alike are now capturing and downloading Tweets from Twitter’s database. Privacy activists argue privacy concerns. Researchers, marketers, and Twitter users all want to know – is Twitter harvesting legal?
How and Why
Every day, users of the Twitter social media publishing platform send out millions of Tweets — short electronic messages of 140 characters or less — to their readers and followers.
Most Twitter users are not aware that it’s relatively easy for anyone with a skilled programmer to harvest and download their Tweets. All a programmer has to do is to gain access to Twitter’s Application Programming Interface (API), and then to write code that requests data from Twitter’s servers through the API. The code contains search criteria, usually in the form of key words and phrases of interest.
One prime example of why Tweets are harvested is the harvesting of Tweets by news organizations Tweets during the riots that followed the Iranian presidential election of 2009. The results provided an excellent source of real time information from a closed society as events unfolded, and afterward, a fascinating historical record of how the protesters worked together under difficult conditions.
Advertisers have also joined the Tweet harvesting process.
For example, suppose you’re going to lunch in an urban office setting, and you tweet a collection of co-workers suggesting a specific restaurant. A savvy marketer harvests your Tweet, and then emails to your smart phone a coupon for a hefty discount at another restaurant nearby. Pretty nifty for the savvy marketer, and perhaps a welcome suggestion for a discounted lunch, but is it legal?
The Electronic Communications Privacy Act
In 1968, the Wiretap Act was passed to impose rules for obtaining wiretap orders. In 1986, the Wiretap Act was amended by The Electronic Communications Privacy Act to extend coverage of the Wiretap Act to electronic communications.
Generally, the Wiretap Act as amended prohibits the intentional interception, use, or disclosure of wire and electronic communications, unless a statutory exception applies. This means that all persons (including governments) are prohibited from wiretapping phones and intercepting electronic communications over the Web, unless a statutory exception (safe harbor) applies.
How does this apply to Tweets? A specific statutory exception applies to electronic communications that are publicly accessible. This is the exact language of the statutory exception: “It shall not be unlawful … for any person… to intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public”.
Readily accessible to the general public is defined by the statute as follows: “… with respect to a radio communication, that such communication is not… scrambled or encrypted”.
It would appear that any Tweet that is not designated by the Twitter user as “private” would clearly fall within the statutory exception because the Tweet is not scrambled or encrypted. So, Tweet harvesters appear to have a strong argument that they’re protected by the publicly accessible safe harbor.
The Google Litigation
Google is now involved in litigation involving its collection of WiFi data. It seems that Google’s Street View cars have engaged in the now-ended practice of collecting bits of private wireless data while cruising neighborhoods for data used in its Google Maps online service.
Although Google ceased this type of electronic data collection and stated that it was not intentional, a class action suit has been filed against Google.
The harvesting of Tweets that are not designated as private would appear to be protected by the publicly accessible safe harbor. It’s interesting that Google’s collection of WiFi data is very similar to Tweet harvesting. It would seem that publicly accessible safe harbor would also protect Google in this litigation, but we’ll have to wait and see how this case is resolved.
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