DRAFT - Ready for comment.

How Your Tweets Are Forever Searchable

-- By JulianBaez - 16 Apr 2010

What You Thought

Your Twitter account is public by default. Moments after a high profile vote on healthcare reform you punch out a reaction in a minute. “Democrats are doubling the deficit and enacting a government takeover of #healthcare,” or “Republican #HCR filibuster = 30 million sentenced to death or bankruptcy.” Your followers, all personal friends, see the tweet. In 12 hours, it’s no longer visible on their front pages, other tweets have pushed yours off their front pages.

A stranger searches the hashtag #HCR or #healthcare. If they search within two weeks, your tweet appears. If they search after two weeks, your tweet is no longer indexed and searchable. Your momentary reaction is only available to those who look specifically at your twitter.

Or so we thought.

What’s True

In the summer of 2009, the Library of Congress stated that it intended to compile all tweets related to Sotomayor’s Supreme Court nomination, via Twitter no less. This was part of the Library’s Web Archiving plan to preserve primary source materials. On April 14th 2010, Twitter announced it would donate its entire public tweet archive to the Library: “Only after a six-month delay can the Tweets will be used [sic] for internal library use, for non-commercial research, public display by the library itself, and preservation.”

But what use is information in 2010 without means to quickly search it? Google Replay allows users to search tweets available on a specific date and time. Eventually, “it will reach back to the very first tweets.” Your instantaneous reaction will become instantaneously searchable ad infinitum.

We still don’t know whether user’s profile information, followers, geo-locational data and deleted tweets will be available. Will users be classified like books?

The Law

Copyright

Intellectual property rights in blogs and tweets are a newly emerging legal question courts have yet to address. The blogosphere’s prevailing opinion is the majority of tweets are not copyrightable because they are not original works of authorship, do not reach the requisite level of creativity, and are simply too short to register. Unlike similarly succinct haikus, most tweets are simply statements of fact, making them not copyrightable.

Twitter’s terms of use relinquish any intellectual property rights in material posted and claim the copyright remains in the hands of the posting user. Therefore, Twitter would not claim it held the copyright. The blogosphere consensus maintains that about 90% of all tweets are non-copyrightable statements of facts and references to other facts. Although the specific way of expressing facts has copyrightable potential, 140 characters and common knowledge ideas significantly limit the opportunity for original expressions. Most bloggers also believe the chances of individuals pursuing copyright infringement claims of their tweets are slim to none.

You probably do not own your tweets; you probably do not care.

Privacy

There’s also privacy concerns which can be divided into two parts, tweets before and after Twitter’s announcement that all past and future tweets will be searchable.

There is one big difference between the two; tweeters could argue they had a reasonable expectation of privacy before the announcement. Twitter’s public operating procedure had been that all tweets were no longer searchable after two weeks. While researchers could individually look up your individual twitter account, they could not come across your tweets through a general search after two weeks. A user could reasonably expect their tweets would not be as prominently displayed before the announcement, even if the tweets were still public.

Whether we are discussing tweets made before or after the announcement, current privacy law likely doesn’t cover public tweets. However, there are cases which hold that the fact the privacy one expects in a given setting is not complete or absolute does not render the expectation unreasonable as a matter of law (Sanders v. ABC (Cal. 1999)). Holdings like this leave open the possibility for tweeters to claim tort of intrusion even in a public place.

Although politically unlikely for multiple reasons, a statutory safeguard for tweeters would provide certain protection. There is recent legislative precedent for protecting privacy in public places. However, the Video Voyeurism Prevention Act of 2004 only protects individuals in public places when they reasonably believe their private areas would not be visible to the public. Also tweeters are a far less sympathetic group than victims of voyeurism. Finally, a tweet protection statute would have to be clear that a reasonable person has an expectation of privacy after a specified time following a public tweet.

The Consequences Of A Public Tweet Database

My prediction is that any controversy over this will mirror closely the controversy surrounding Facebook’s introduction of the mini-feed feature. A small group of users will complain about the feature as it is fully introduced and its repercussions are felt. This will result in a public apology and the introduction of new copyright and privacy controls for users to opt in to. In this case, Twitter will likely allow users to be entirely private, public, or non-archived public. This will somewhat alleviate concerns but less users will opt in to the additional copyright and privacy controls over time. Finally, these controls will be slowly relaxed until they are unrecognizable or entirely removed. The frog will boil slowly.

The final result will more or less mirror the initial concerns. However, users who did not initially give up the service or adopted the service afterwards, will barely be aware of the privacy and copyright issues. Basically, despite whatever ruckus you hear in the coming weeks and months, Google Replay and the Library of Congress now have all your tweets.

Your momentary reaction will be forever searchable.