A recent article on the Huffington Post website reflects the strange ways that new technology is influencing government, this time in courts.
Michael Tarm's article addresses multiple cases where courts have decided on or are considering deciding on allowing members of the press to tweet from the courtroom. The concerns seem to be focused on Twitter specifically as a new platform, not Twitter as a method of rapidly disseminating news.
Other judges worry that tweets about evidence could pop up uninvited on jurors' cellphones, possibly tainting the panel.
Twitter is not unique in that it can cause messages to appear on people's phones. Facebook, Google Plus, email, text messages and push notifications from news apps can all cause notifications to appear on peoples' phones.
If the judges are worried about the jury being contaminated by speculation about the evidence, the judges have the authority to order jurors to stop paying attention to news sources. If the judges are worried about jurors being distracted by their phones, they can order the phones turned off or muted. A narrow focus on Twitter alone ignores the other sources of news that jurors can be contaminated by.
In addition to jury contamination, many judges worry about the effect that tweeting people will have on the courtroom. Chicago Judge Charles Burns requires that reporters register their Twitter handle with a deputy before they enter his courtroom. If the deputy notices that a journalist appears to be tweeting from the courtroom, the deputy reports the reporter to Burns for discipline. This is supposed to stop reporters from tweeting from the courtroom.
Burns' requirement is innovative, but it has a major holes:
- Reporters aren't the only ones tweeting
- Secondary twitter accounts can be created
- Real-time tweets don't have to come direct from the courtroom
With the rise of the Internet and social media, everyone can break news. Smartphones aren't limited to reporters, meaning that unless the deputy has a list of all the Twitter handles of all the people in the room, Burns' policy won't effectively prevent Tweeting from the courtroom.
Even if every person in the courtroom provides a twitter handle, the deputy still can't know that the people in the courtroom aren't tweeting. Twitter handles are limited to 15 characters. If you limit those fifteen characters to the letters a through z, the numbers 0 through 9, the dash and the underscore, then that's a potential 20.2 sextillion Twitter handles, or 2.9 trillion handles per person on Earth. It's trivially easy for someone to set up a second, and there are only a few methods of determining who in the courtroom sent those tweets.
One method would be to search the phones of reporters entering the courtrooms and leaving the courtroom for Twitter apps or entries for Twitter in the phones' browser histories, but that is circumvented by installing the app in the courtroom and deleting it before leaving. Searches in-courtroom would require access to the device, which a sensible person would lock with a code. It is (to the best of my knowledge) still prohibited to force a suspect to unlock or decrypt devices in their possession, and searches of phones still require warrants in most jurisdictions in most cases.
Of course, if you're willing to arrest someone for tweeting, then you're probably willing to subpoena Twitter to prove that the suspect did the tweeting. This second method of identification is just as arduous as the first, because Twitter fights what it believes to be improper subpoenas.
In addition, Twitter's records may not accurately reflect the identity of the tweeter. If the tweeter is using proxies or onion routers, the IP address of the computer that accessed Twitter's servers is not the IP address of the tweeter. Not all proxies and no onion routers keep records of who accesses what server. It's practically impossible to determine who tweeted from a courtroom.
Tweet by mailIf a judge bans Twitter but allows email then he has created an arbitrary line with no functional difference. The only difference between tweeting and emailing is temporal. With Twitter, the journalist tweets. With email, the journalist sends a tweet-length email to the newsroom, where a human or computer posts the email to Twitter.
Burns' Media liaison Irv Miller is assuming that emails will be sent infrequently, when there's no reason to make that assumption. It's just a protocol for sending bytes.
Use it creatively.