How private are your posts on Facebook and your tweets on Twitter? If you think the answer depends only on how you configure your privacy or security settings for your accounts, you might be in for a rude awakening – at least if you’re ever involved in a court case.
Two recent cases illustrate that if you step into a courthouse – whether intentionally, as a plaintiff in a civil suit, or not so intentionally as a defendant or even as a juror – you give up a fair chunk of your expectation of privacy in the social media sphere.
Bored at Jury Duty? Don’t Tell Your Facebook Friends
In California, a man will likely have to turn over posts he made to Facebook while he was serving on a jury in a criminal assault trial in 2010. After the jury returned a guilty verdict, a fellow juror ratted out the man, who was posting in violation of the judge’s orders forbidding such communications during the trial. At a subsequent juror misconduct hearing, he tried to argue that his posts weren’t about the substance of the trial but about how bored he was.
Because juror misconduct can lead to a tainted verdict, a lawyer for a defendant in the criminal trial went on the offense, hoping to have his client’s conviction overturned. He first tried to force Facebook to turn over the posts, but the social media giant evaded responsibility by pointing to the Stored Communications Act (SCA), which protects electronic communications stored by providers of electronic communications services. The issue went to a California appellate court, which ruled on May 31 that the juror must turn over his posts made during the trial, regardless of what they were about.
This outcome is “not surprising,” says Todd Pittenger, a litigator in the Orlando office of Akerman Senterfitt. “The juror put himself in a problem situation.” Pittenger explains that anyone who is subject to an ongoing legal dispute – criminal or civil — gives up some amount of privacy in their social media communications because they’re in a special position; they must remain uninfluenced by outside forces during the trial. “Jurors shouldn’t use it during trial,” he says, referring to any social media channel. “They should wait until after they’ve finish their service. Then they even write books!”
It’s common knowledge that jurors are forbidden to talk about the cases they are helping to decide. But the temptations of social media have pushed the issue even further. Pittenger notes that the Florida Supreme Court just approved an instruction that trial judges must give jurors, telling them directly that “they must not use electronic devices or computers to talk about the case, including tweeting, texting, blogging, emailing, posting information on a website, or chat room, or any other means at all.”
Accused of a Crime? Tweets Are on the Table
Another recent case is exploring the limits of the privacy of messages posted to Twitter by a criminal defendant. In New York prosecutors in an Occupy Wall Street trespassing case are trying to compel Twitter to turn over the tweets of a defendant about his activities during a protest on the Brooklyn Bridge.
Arguing that they need the tweets to counter an anticipated argument by the defendant blaming the police for moving the protesters into the roadway on the bridge, the Manhattan DA’s office has subpoenaed Twitter. The social media provider is using the SCA to avoid complying, and privacy rights groups, including the ACLU, have stepped in to the case to argue that indeed, it is the Twitter user, not Twitter, who owns the tweets and should be the target of any subpoena.
“This is a closer call,” Pittenger observes, explaining that an exception to the SCA could allow a law enforcement agency access to the records if their contents pertain to the alleged commission of a crime. Fourth Amendment concerns can arise where searches of criminal defendants’ belongings are concerned, and Pittenger uses the analogy of the locked trunk of a car on the street: If tweets are locked down by the user so that only other users he or she approves can see them, are they protected in terms of the Constitution? Defendants waive Fourth Amendment protections where evidence is left in “plain view,” he points out.
Does Limiting Your Audiences Make a Difference?
So, what if someone actually figures out how to limit the audiences for his or her social media posts so that they are not available to the public at large. “That is an argument you could make,” Pittenger allows. “But the general expectation of privacy is so much less with social media, that if there’s a good reason to be looking, like protecting the integrity of the court process, it would be easy to convince a judge to overcome that barrier.”
Privacy is a right that almost always bumps up against other important rights, and when it comes to the right to a fair trial, privacy has often been forced to give way. “Hopefully these cases don’t represent a big inroad on privacy,” Pittenger says.
The limits of privacy in the social media activities of litigants and criminal defendants are still being worked out by the courts. But the person walking down the street still has a greater expectation of privacy for social media activity. “The government can’t just fish around out of curiosity,” says Pittenger. But the minute litigation becomes a possibility, privacy can be traded for fairness, he warns, so it’s best to be careful what you post, because it can come back to bite you – “privacy” settings or no — in a trial.