Just this morning, a client asked me a question: Can his potential adversary use deleted, private Facebook messages between them as evidence in the breach of contract case he was thinking about bringing in court? (Of course if the adversary had not also deleted them, he could just introduce them that way, but the client believed that both of them had deleted them). I told him that Yes, even though he considered them “private” he had sent them via Facebook which is not private. While he may technically own the content of the message, he used FB’s medium to send it and all the other side had to do would be to subpoena FB to see if the messages were available and retrievable.
So I was not surprised that Manhattan Criminal Court Judge Matthew Sciarrino ruled yesterday that Twitter had to comply with the NY DA’s subpoena upon them seeking the deleted tweets of an Occupy Wall Street protester facing criminal charges arising out of the march across the Brooklyn Bridge that took place on October 2011. Both the defendant and Twitter had argued in court that because the defendant owned the content of his message, the subpoena was a “search” of the person or property of the defendant without a warrant – which violates the Fourth Amendment to the Constitution. Judge Sciarrino disagreed and said that even if he owned the content, once he tweeted his message, the content was put out to the public and any third party (including Twitter) could be compelled to produce evidence of the message. Judge Sciarrino likened it to a defendant opening up the window of his apartment building and shouting down to his girlfriend on the street below: “I am sorry I hit you. Come back upstairs.” Anyone who heard the message could testify about what they heard.
“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,” the judge said, pointing out that Twitter agreed in 2010 to supply the Library of Congress with every tweet since the site’s start.
The judge emphasized that the public postings in question were different from private e-mails, direct messages, chats or other ways to have a private conversation via the Internet.
“Those private dialogues would require a warrant based on probable cause in order to access the relevant information.” He also noted that prosecutors would have to obtain a search warrant for any tweets that were less than 180 days old, noting the Stored Communications Act’s requirement of a warrant for disclosure of contents in temporary “electronic storage” for less than 180 days from the date the government seeks the information.
Samuel Adams, Alexander Hamilton, Benjamin Franklin 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).”But, the judge added, “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.” And I think he is right on that point. You can’t engage in public speech and then expect to be able to treat that speech as private.
But where I think the judge got it wrong and what I think is by far more important, is that Judge Sciarrino ruled that the defendant himself had no standing to contest the subpoena. Relying in part on Twitter’s then existing terms of service which stated that Twitter owned the content, the Judge said that the defendant “had no proprietary interest in his account’s user information.” The ACLU filed an amicus curiae brief in support of the defendant arguing that it was unconstitutional to rule that the the “speaker” himself lacked standing. In a news report about the case Aden Fine, a senior staff attorney at the ACLU, issued this statement:
“The most troubling aspect of this decision is the court . . .concluded individual Twitter users don’t have a right to go to court to protect their constitutional rights. That is a very troubling proposition… Regardless of who owns the tweets or the Twitter account information, individuals have a right to go to court to protect their constitutional rights when their speech activities are at issue.”
This means that the burden to fight the subpoenas falls on Twitter (and other similar websites), a burden that Twitter made clear it does not relish as the site complained in its brief that this puts the company in the “untenable position” of uniformly complying with mass quantities of subpoenas, or making constant motions to quash subpoenas to protect users. But the judge was unswayed by Twitter’s concerns and arguments of “undue burden” stating, “That burden is placed on every third-party respondent to a subpoena and cannot be used to create standing for a defendant where none exists.”
This decision, if upheld on appeal after trial, could unleash a torrent of subpoenas by governments in all manner of prosecutions. Whereas a warrant must be supported by probable cause, a subpoena needs only to be likely to reveal material and necessary information to survive a motion to quash – a much lower burden obviously. Furthermore, ruling that a party engaged in that form of communication cannot even argue in defense of his constitutional rights when the government is attempting to use that communication against him is far too narrow a view of the “ownership” of the content.
The decision also runs counter to the trend in NY State law on this issue. In fighting motions to quash subpoenas issued by our office to get the names of anonymous posters on various blogs, I have argued that the blogs themselves have no standing as it is the poster who should be made to contest the release of information. In the New York cases where IP addresses and other identifying information of anonymous posters were sought it was always the anonymous poster, not the Internet Service Provider, who challenged disclosure based on their own First Amendment rights. See, e.g., In the Matter of Application of Liskula Cohen v. Google Inc., 25 Misc.3d 945, 887 N.Y.S.2d 424 (N.Y. Sup. 2009); Public Relations Society of America Inc. v. Road Runner High Speed Online, 8 Misc.3d 820, 799 N.Y.S.2d 847 (N.Y. Sup. 2005).
New technology always brings new law. But this decision opens up huge areas of potential conflict that will test the limits of our expectations of privacy and the accessibility to information to the government without warrant. This may be the first time a court has decided these issues but it will certainly not be the last.