By Hayes Hunt and Brian Kint
A recent case, albeit one dealing with a governmental subpoena, shows that the SCA may not be the panacea that social networking sites think it is. In People v. Harris, Twitter sought to quash a subpoena it had received to produce all user information and tweets from a criminal defendant’s Twitter account. The court disagreed with Twitter that the subpoena violated the SCA. The court noted that the SCA protects only private communications and that the government can still compel a provider to disclose certain types of information if it obtains a search warrant or court order as prescribed by the statute. As a result, it ordered that certain information be disclosed over Twitter’s objections.
The Harris court also dealt with privacy issues and analyzed whether the information requested was protected by the Fourth Amendment. The court noted that the Fourth Amendment protects only information in which a person has a reasonable expectation of privacy. Accordingly, the Supreme Court has repeatedly held that the Fourth Amendment does not protect information revealed to third parties. Because tweets are essentially broadcast to the world, the court concluded, Twitter users have no reasonable expectation of privacy, and therefore, tweets are not protected by the Fourth Amendment.
The court distinguished the principal case relied upon by Twitter, United States v. Warshak, because that case involved emails rather than social website postings. Unlike emails that are directed at specific addressees, the court compared tweets to yelling out an open window. It said:
Consider the following: a man walks to his window, opens the window, and screams down to a young lady, “I’m sorry I hit you, please come back upstairs.” At trial, the People call a person who was walking across the street at the time this occurred. The prosecutor asks, “What did the defendant yell?” Clearly the answer is relevant and the witness could be compelled to testify. Well today, the street is an online, information superhighway, and the witnesses can be the third-party providers like Twitter, Facebook, Instagram, Pinterest, or the next hot social media application.
Of course, the court’s analogy raises a question regarding the ways in which private social media users must disseminate their information in order to maintain a reasonable expectation of privacy. While tweets are inherently public, information on other social networking sites is not. For example, Facebook users can direct certain posts to individuals or small groups of friends. Are such posts more akin to private email communications or a public Internet communication? The answer will help to determine what information is accessible to prosecutors and defense attorneys alike.
Courts will continue to face this and many other questions regarding social networking sites as technologies continue to evolve. As the Harris court noted, “In dealing with social media issues, judges are asked to make decisions based on statutes that can never keep up with technology.” The SCA itself was enacted in 1986, when email was cutting-edge technology and before the widespread use of the Internet, blogging, and social networking. As a result, judges are often forced to apply outdated laws to constantly changing technologies that they may not even fully understand. While this dynamic can create uncertainty (and frustration), it can also create opportunities for defense counsel to find creative ways to vindicate the rights of their clients.
Originally published in the December 2013 issue of The Champion.