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Harvesting Tweets for Research and Profit - Is it Legal?

posted 15 Sep 2010, 08:58 by Mpelembe Admin   [ updated 15 Sep 2010, 09:01 ]


Harvesting tweets is on the rise.

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
afterwards, 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.

Conclusion

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.

About the Author:

Leading Internet, IP and software lawyer Chip Cooper has
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