By Hayes Hunt and Jillian Thornton
955 million people are Facebook users and there are 500 million Twitter users worldwide. With these staggering numbers, social media is a goldmine or minefield for lawyers seeking information. What happens when a lawyer sends a third-party subpoena to Facebook or Twitter about an individual?
The answer is Facebook and Twitter will likely object on the grounds that the production of private information would violate the Stored Wire and Electronic Communications Privacy Act (“SCA”). The SCA prohibits an internet company from disclosing a user’s private information unless the user provides consent. Courts have thus generally held that a party cannot obtain social-media data by merely sending a subpoena to Facebook or Twitter.
Facebook takes the position that it is prohibited by the SCA from disclosing a user’s private information, and generally asks to dismiss a subpoena that asks for private information. See, e.g., Juror Number One v. Superior Court, 206 Cal. App. 4th 854 (Cal. App. 3d 2012) (noting that Facebook moved to quash a subpoena under the SCA, and arguing that the requested information could be obtained from the user himself, who “owned” his profile information). Facebook actually receives so many subpoena requests for user data that it currently dedicates a section of its online Help Center to answering questions about civil subpoenas. See Law Enforcement and Third-Party Matters, Facebook.
The SCA is not all-encompassing though. For example, the SCA permits the government to compel disclosure of the basic subscriber and session information using a subpoena. In addition, one court recently held that Twitter must produce user information in response to a criminal subpoena. See People v. Harris, Case No. 2011NY080152, 2012 WL 2533640 (N.Y. Crim. Ct. June 30, 2012). In Harris, the court denied Twitter’s motion to quash a subpoena to obtain a user’s information, email address, and posts for a certain time period. Although Twitter argued that the user owns his tweets, the court held that users do not have standing to object to the criminal subpoena because the user has no proprietary interest in the information, nor does the user have a reasonable expectation of privacy in information shared with third parties. “There can be no reasonable expectation of privacy in a tweet sent around the world.” Id. at *3. The court concluded that “[s]o 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.” Id.
You can expect to see more judges ordering Facebook and Twitter to produce “private” information in response to third-party subpoenas.