The problem here -- one common to a lot of old-school judges trying cases involving technology -- is that Sciarrino is employing the wrong metaphor. Using Twitter is not like screaming out of a window, unless someone happens to be standing outside your window with a tape recorder, a transcriptionist, and a sys admin waiting to upload it to a database in the cloud.
When you scream out of a window, your scream isn't being recorded and cataloged. It's unlikely that anyone can search for the words you used when you screamed and find that recording. It's even more unlikely that your scream will find its way to the Library of Congress (if it does, that's a hell of a loud scream).
This is far from the only place where the legal authorities are not really keeping up with the times. Other U.S. courts have ruled that tracking your car via GPS is not a violation of privacy because your car is visible in public; thus, you have a lower expectation of privacy. Personally, I don't think I should be forced to alter my expectation of privacy because surveillance equipment got a whole lot better.
Dear judges of the world: Talking is not the same as typing. Typing a letter on a typewriter and mailing it is fundamentally different than writing an email and sending it, even if the physical actions are almost identical. Being able to spot a car moving along a road and identify it is not the same as following it for 1,000 miles and recording every place it stopped. It's definitely not the same as being able to follow 1,000 cars and track all their locations without ever leaving your desk.
What the world really needs is much better metaphors, so that our legal system can understand the changes technology is making to all our lives and adjust its own expectations accordingly.
Harris may well lose his case. Public tweets may be just that: public. But the trend toward capturing all our information and using it against us, just because somebody can, is deeply disturbing
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