Twitter “Tweets” can reveal a great deal of information about a person including, identification information, the location where the Tweet was made (often referred to as “geolocational” information), who was Tweeted and, of course, the contents of such Tweets. This information, depending on what is needed to be proved, no doubt, could be of assistance in a criminal or civil action.
Discussed below is the recent case of People v. Harris, where a criminal court, in the context of a disorderly conduct prosecution arising out of the Occupy Wall Street protest, was asked to address the complex issue of whether a criminal defendant and/or Twitter has standing, under either a constitutional analysis or the Stored Communications Act (SCA)1 to quash a subpoena issued, without a warrant, to a third-party online social networking service which sought to obtain defendant’s “user information” and the substance of his Tweets.
After conferring with the DA’s office, Twitter informed defendant that his Twitter account had been subpoenaed. Defendant thereafter notified Twitter of his intention to file a motion to quash the subpoena.
As a result, Twitter took the position that it would not comply with the subpoena until the court ruled on the motion. On April 20, 2012, the court denied defendant standing to object to the subpoena and directed that the requested information be produced.
Thereafter, Twitter moved to quash the subpoena.2 Just a few days ago, on June 30, 2012, the court ruled on Twitter’s motion and directed that Twitter produce all “non-content” information and certain of defendant’s Tweets, also known as “content” information, and that all materials are to be provided to the court for in camera inspection.
The court found that “defendant’s contention that he has privacy interests in his Tweets to be understandable, but without merit.” The court described Twitter as:
a public, real-time social and information network that enables people to share, communicate, and receive news. Users can create a Twitter profile that contains a profile image, background image, and status updates called tweets, which can be up to 140-characters in length on the website. Twitter provides its services to the public at large. Anyone can sign up to use Twitter’s services as long as they agree to Twitter’s terms.
No Undue Burden
Twitter argued that denying “defendant standing placed an undue burden on Twitter . . . [forcing] Twitter to choose between either providing user communications and account information in response to all subpoenas or attempting to vindicate its users’ rights by moving to quash these subpoenas itself.” However, the court noted that such burden is carried by every third-party recipient of a subpoena, and this argument “cannot be used to create standing for a defendant where none exists.”
Although the SCA affords a court the power to quash a subpoena if compliance therewith would create an “undue burden” on the provider, the court found that Twitter’s compliance would not be unduly burdensome as it “does not take much to search and provide the data to the court.”
The court analogized Twitter’s obligation to produce the disputed Tweets to that of a witness to an altercation on the street who could be compelled to testify and stated that “today, the street is an online, information superhighway, and the witnesses can be the third party providers like Twitter, Facebook, Instragram, Pinterest, or the next hot social media application.” The court stated that:
Tweets are not e-mails sent to a single party. At best, the defense may argue that this is more akin to an e-mail that is sent to a party and carbon copied to hundreds of others. There can be no reasonable expectation of privacy in a tweet sent around the world. The court order is not unreasonably burdensome to Twitter, as it does not take much to search and provide the data to the court. So long as the third party is in possession of the materials, the court may issue an order for the materials from the third party when the materials are relevant and evidentiary.4
Fourth Amendment Rights
The court noted that the U.S. Supreme Court has “repeatedly” held that the Fourth Amendment5 “does not protect information revealed by third parties” and that courts “have applied this rationale and held that internet users do not retain a reasonable expectation of privacy.”6 The court found that there is no reasonable expectation of privacy in information intentionally broadcast to the world, and stated that:
If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy. There is no proprietary interest in your tweets, which you have now gifted to the world. This is not the same as a private email, a private direct message, a private chat, or any of the other readily available ways to have a private conversation via the internet that now exist. Those private dialogues would require a warrant based on probable cause in order to access the relevant information….
There is no reasonable expectation of privacy for tweets that the user has made public. It is the act of tweeting or disseminating communications to the public that controls. Even when a user deletes his or her tweets there are search engines available such as “Untweetable”, “Tweleted” and “Politwoops” that hold users accountable for everything they had publicly tweeted and later deleted.
The court further noted that the information sought was “relevant and material” to the ongoing criminal investigation.7 As such, in accordance with the SCA, Twitter was directed to disclose all “non-content” information and Tweets from September 15, 2011 through December 30, 2011, for in camera inspection.8
In its conclusion, the court observed the challenges, and the balancing act, faced by courts in applying unchanging statutes to an ever-evolving technological landscape. The court stated that courts:
must weigh the interests of society against the inalienable rights of the individual who gave away some rights when entering into the social contract that created our government and the laws that we have agreed to follow. Therefore, while the law regarding social media is clearly still developing, it can neither be said that this court does not understand or appreciate the place that social media has in our society nor that it does not appreciate the importance of this ruling and future rulings of courts that may agree or disagree with this decision. In recent years, social media has become one of the most prominent methods of exercising free speech, particularly in countries that do not have very many freedoms at all.
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While the U.S. Constitution clearly did not take into consideration any tweets by our founding fathers, it is probably safe to assume that Samuel Adams, Benjamin Franklin, Alexander Hamilton and Thomas Jefferson would have loved to tweet their opinions as much as they loved to write for the newspapers of their day (sometimes under anonymous pseudonyms similar to today’s twitter user names). Those men, and countless soldiers in service to this nation, have risked their lives for our right to tweet or to post an article on Facebook; but that is not the same as arguing that those public tweets are protected. The Constitution gives you the right to post, but as numerous people have learned, there are still consequences for your public posts. What you give to the public belongs to the public. What you keep to yourself belongs only to you.
It is thus important when advising a client of her rights where her social media is sought from a provider of electronic communication services in either a criminal or civil9 action, to examine whether, in the first instance, the client or the electronic communication provider, or both, have standing to object to same, and then to determine if the requesting party, whether it is a private individual or entity or the government, has fully complied with the SCA and any other relevant state or federal statute, as well as, of course, whether an argument can be made that the ESI sought is confidential or private, and thus somehow not subject to disclosure.
1. Congress enacted the SCA as Title II of the Electronic Communications Privacy Act of 1986, Pub. L. No. 99–508, 100 Stat. 1848 (1986) (codified as amended at 18 U.S.C. §§ 2701–2711 (2010)).
2. See Greenbaum v. Google, Inc., 18 Misc. 3d 185, 186-87, 845 N.Y.S.2d 695, 698 (Sup. Ct. N.Y. Co. 2007) (“Google confirmed . . . that because many people seek information from Google, “Google leaves it to those people to come in and protect their own interests. However, Google always requests that they be given notice so they can appear [and i]t is thus clear that Google does not represent the interests of people who anonymously operate blogs or anonymously make comments on blogs maintained on Google’s website.”).
4. On the defendant’s motion to quash, the court found that “an analogy may be drawn to the bank record cases where courts have consistently held that an individual has no right to challenge a subpoena issued against the third-party bank. New York law precludes an individual’s motion to quash a subpoena seeking the production of the individual’s bank records directly from the third-party bank as the defendant lacks standing.” The court in Harris noted that in general, the New York rule is that only the recipient of a subpoena in a criminal case has standing to quash it. However, the court in Mancuso v. FloridaMetropolitan University, Inc., 2011 WL 310726 *1-2 (S.D. Fla. Jan. 28, 2011), stated that “[g]enerally, a party does not have standing to challenge a subpoena served on a non-party, unless that party has a personal right or privilege with respect to the subject matter of the materials subpoenaed . . . . [O]ne district court recently held that an individual had standing to challenge a subpoena issued to social networking websites.” The court in Crispin v. Christian Audiger, Inc., 717 F. Supp.2d 965 (C.D. Cal. 2010) explained:
[A]n individual has a personal right in information in his or her profile and inbox on a social networking site and his or her webmail inbox in the same way that an individual has a personal right in employment and banking records. As with bank and employment records, this personal right is sufficient to confer standing to move to quash a subpoena seeking such information. Id. at 974.
5. See People v. Hall, 14 Misc. 3d 245, 257, 823 N.Y.S.2d 334, 343 (Sup. Ct. N.Y. Co. 2006) (“Thus, this Court finds that there is no Fourth Amendment infirmity to the SCA. The Fourth Amendment does not apply to disclosures thereunder because the information, having been gathered by T–Mobile for its own legitimate business purposes belongs to T–Mobile, not Hall, and because the Fourth Amendment does not apply to the interception of electromagnetic waves outside of a person’s home, so as to constitute the acquisition of such information as a search or seizure.”). See also In re Application of theU.S. for an Order Pursuant to 18 U.S.C. § 2703(d), 830 F. Supp.2d 114, 132-33, 136, 138 (E.D. Va. 2011)(“The recording of IP address information by Twitter and subsequent access by the government cannot by itself violate the Fourth Amendment,” where it was Twitter that decided to record or retain this information, and thus any privacy concerns were the “consequence of private action, not government action;” “If the user is communicating over the Internet, intermediary computers and the destination computer must know the IP address as a condition of communication. Under the Fourth Amendment, that fact renders unreasonable any expectation of privacy in the IP address” and thus because the order “did not invade Petitioners’ reasonable expectations of privacy, it cannot constitute a search in violation of the Fourth Amendment”).
6. See Patterson v. Turner Const. Co., 88 A.D.3d 617, 618, 931 N.Y.S.2d 311, 312 (1st Dep’t 2011) (“The postings on plaintiff’s online Facebook account, if relevant, are not shielded from discovery merely because plaintiff used the service’s privacy settings to restrict access.”) In Romano v. Steelcase Inc., 30 Misc. 3d 426, 433, 907 N.Y.S.2d 650, 656 (Sup. Ct. Suffolk Co. 2010), the court noted that “New York courts have yet to address whether there exists a right to privacy regarding what one posts on their on-line social networking pages . . . However, whether one has a reasonable expectation of privacy in internet posting or e-mails that have received their recipients has been addressed by the Second Circuit, which has held that individuals may not enjoy such an expectation of privacy.” The court in Romano found there was no legitimate reasonable expectation of privacy and
[t]hus, when Plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings. Indeed, that is the very nature and purpose of these social networking sites else they would cease to exist. Since Plaintiff knew that her information may become publicly available, she cannot now claim that she had a reasonable expectation of privacy. As recently set forth by commentators regarding privacy and social networking sites, given the millions of users, “[i]n this environment, privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking.” Id. at 434, 907 N.Y.S.2d at 657.
7. In its first decision, the court in Harris ordered Twitter to disclose the “contents” of defendant’s Tweets, finding them “by definition public.” The court also held that the subpoena was not overbroad.
Section 2703 [of the SCA] distinguishes between “contents” and non-content “records.” 18 U.S.C. § 2703; seeSmith v. Maryland, 442 U.S. 735, 743–44, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). If the government seeks content information about a communication, that is, “information concerning the substance, purport, or meaning of that communication,” paragraphs (a) and (b) apply. 18 U.S.C. §§ 2510(8), 2703(a)–(b), 2711. If the government seeks non-content records, as it does here, paragraph (c) controls, and provides different procedural protections. 18 U.S.C. § 2703(c). The earlier Twitter Order was issued under paragraph (c), which enumerates particular records subject to disclosure, including the subscriber or customer’s name, address, telephone connection records or records of session times and durations, length and type of service used, telephone number or temporarily assigned network address, and method of payment. Id. The government need not notify the customer or subscriber of a records request under paragraph (c).
In re Application 2703(d), 830 F. Supp.2d at 127-28.
8. However, pursuant to the SCA, as to the substantive Tweets less than 180 days old, the court ordered that the government obtain a search warrant. See 18 U.S.C. § 2703(a)(b)(d).
9. See Romano, 30 Misc. 3d at 427, 907 N.Y.S.2d at 652 (“The Court has reviewed the submissions both in favor of and in opposition to the relief sought, as well as the applicable federal statutory law, specifically the [SCA], which prohibits an entity, such as Facebook and MySpace from disclosing such information without the consent of the owner of the account”).