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Is Twitter obligated to preserve the deleted tweets of politicians?

Susan Etlinger
NEW YORK - JANUARY 12:  U.S. Rep. Anthony Weiner (D-NY) walks in front of Bernard Madoff's Manhattan residence after speaking to members of the media January 12, 2009 in New York City. A judge ruled that  Madoff can remain free on bail, living in his Manhattan penthouse and does not have to go to jail. Madoff is accused of running a $50 billion Ponzi scheme through his investment company.  (Photo by Daniel Barry/Getty Images)

Politicians everywhere are probably celebrating like crazy this week.

The Sunlight Foundation, an organization dedicated to making politics accountable and transparent, was just told by Twitter that it would no longer have access to its developer API, which enabled the site's "Politwoops" app to track and post politicians' deleted tweets. The story has been covered in news outlets from Gawker to The Washington Post, but the consensus is pretty much the same: Twitter was wrong.

This little story explains a lot about why the digital medium is so confoundingly hard. As citizens, we want to know that politicians' communications are preserved; after all, as Philip Bump argued in the Post article, "The reason Anthony Weiner is no longer a member of Congress is because he sent a photograph of himself in his underwear to someone on Twitter." Politwoops is further credited with capturing embarrassing deleted tweets from politicians on everything from Cyndi Lauper's hotness to backtracking on Bowe Bergdhal.

It's a fair point. Richard Nixon resigned because the release of the Watergate Tapes (and revelations about that 18-minute gap) made it impossible for him to continue to serve as President.  As Justice Louis D. Brandeis famously said, "Sunlight is the best disinfectant."

But unfortunately it's not that simple in this case. Bear with me.

The Sunlight Foundation issue brings back the question, which has existed since the beginnings of the Internet, as to whether a site such as Twitter is more like a magazine (which created the information it contains) or a newsstand (which simply makes it accessible to the public). My bet (and I have no inside information here) is that Twitter would argue that it is more like a newsstand, where the user (in this case the politician) is the magazine and Twitter is the newsstand. So if a politician decides to remove content, Twitter would have no obligation (and actually might incur liability) by replacing it. This example also shows the limits of interpreting 21st-century realities using 19th century concepts, but that's another issue for another day.

So, as a legal expert explained to me, the public may have an interest in seeing deleted tweets, but in the ordinary course, they wouldn't have a right to see them. I imagine that the phrase "in the ordinary course" is the key here; if there were a court order, that would possibly be a different story, and the Twitter lawyers would have to hash it out with the politician's and the prosecutor's lawyers. 

Now this isn't to say that those deleted tweets can't be captured at all; it just means that Twitter will not be party to it by providing access to its developer API. Doing so would mean the company is selectively enforcing its own terms of service, which could compromise the trust of all users. How would we then know who they enforce it for, and who they don't? This issue becomes even more complex outside the United States, where privacy norms and the "Right to be Forgotten" legislation in the EU add a completely different dimension. (We can't forget that Twitter is a global company, after all.)

So there you have it. As a citizen, I wish Twitter had made a different choice. As a user, I'm relieved they didn't.