Many mistakenly believe that their tweets and other social media posts are private and are protected at least to some degree from court-ordered production. However, that is not reality, at least for public tweets. Recently, a New York trial court judge emphasized just how unprotected and available some social media, such as public tweets, are to litigants, while thoughtfully commenting on the challenges the courts face trying to balance the benefits of quickly evolving social media against traditional rules evidence in legal proceedings.
In People v. Harris (2012) 949 N.Y.S.2d 590, New York charged defendant Harris with disorderly conduct for his role in an Occupy Wall Street protest on the Brooklyn Bridge. To respond to the anticipated defense that the police had escorted Harris onto the bridge, the prosecution sought to obtain allegedly contradictory tweets publicly posted by Harris on Twitter. The prosecution served a subpoena on Twitter seeking Harris’s account information including email addresses and all tweets posted from an account that the prosecutor claimed was used by the defendant.
Initially, the defendant sought to quash the subpoena, but the trial judge denied the motion, holding that defendant did not have a proprietary interest in his tweets (based in part on Twitter’s policies which provided that Twitter owned the information once posted). When the prosecution then tried to enforce the order, Twitter itself appeared and asked the court to quash the subpoena, noting that it had since modified its policies to state: “You retain your right to any content you submit, post or display on or through the service.” Twitter argued that individual users should be given standing to challenge subpoenas for their accounting information. To hold otherwise, Twitter reasoned, would impose an undue burden on Twitter to have to decide between responding to subpoenas or moving to quash them on behalf of its users.
In rejecting Twitter’s argument, the Harris judge analogized Twitter to a witness who observes someone screaming out his window to a woman, “I’m sorry I hit you, please come back upstairs.” That witness would have to provide testimony about the communication, the court reasoned, and “Well 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.” One commentator noted the judge’s “wonderful” statements about modern-day litigation concerning social media:
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.
The judge made clear that he understood the import of the issue before him, which pitted constitutional rights of expression in the ever-evolving world of social media against the goal of ascertaining truth in legal proceedings:
In dealing with social media issues, judges are asked to make decisions based on statutes that can never keep up with technology. In some cases, those same judges have no understanding of the technology themselves [citation]. Judges must then do what they have always done—balance the arguments on the scales of justice. They 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. . . 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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The world of social media is evolving, as is the law around it. Society struggles with policies, whether they are between student and teacher (New York City Department of Education, NYC Department of Education Social Media Guidelines), or the right of a company to examine an applicant’s Facebook page as part of the interview process (Bill Chappell, State Approves Bill to Ban Employers From Seeking Facebook Login Info, http:// www.npr.org/blogs/thetwo-way/2012/04/10/150354579/state- approves-bill-to-ban-employers-from-seeking-facebook-login-info). As the laws, rules and societal norms evolve and change with each new advance in technology, so too will the decisions of our courts. 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.
The court ultimately granted the motion to quash the subpoena for tweets that were less than 180 days old at the time of the subpoena because the Stored Communications Act provisions only allow a subpoena for data that has been stored for more than 180 days. The court opined that the prosecutor would have to obtain a court order for those earlier tweets.
Again, this opinion demonstrates that no one should consider his public tweets confidential; they will likely not be considered private or unavailable to subpoena where relevant. For attorneys, it emphasizes the need to focus on the statutory authority for the discovery, since the court followed the SCA provisions and disallowed the content portion of the subpoena for any tweets stored less than 180 days. If you want to discover tweets, make sure that you review the authority for obtaining them and that they fit within that authority.