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Everything You Tweet Can Be Held Against You!

The following is a guest blog post by Julie Brook, Esq., Legal Editor with the CEB Blog.

Judges throughout the country wrestle with the legal ramifications of evolving new technology, including personal information privacy in the use of social media. A New York criminal court recently put a big hole in any privacy expectation on tweets when it upheld a subpoena duces tecum and required Twitter to provide a defendant’s tweets to the district attorney.

In the New York case, the defendant, who had posted tweets during an Occupy Wall Street demonstration, was charged with disorderly conduct. The DA served a subpoena duces tecum on Twitter seeking the defendant’s account information and tweets from a 3-month time period. The DA thought the information relevant to counter the defendant’s anticipated defense that the police intentionally led marchers to an area where they were not supposed to be, then arrested them.

Twitter challenged the subpoena by mounting a strong privacy argument that it violated the Fourth Amendment, the Stored Communications Act (SCA) (18 USC §§2701-2712), or New York law. Judge Sciarrino, of the New York City Criminal Court, shot down all of these.

The judge held that the controlling issue was publication to third parties. Although the defendant’s Twitter account would be protected under the Fourth Amendment if the government violated a subjective, reasonable expectation of privacy, the Supreme Court has held several times that the Fourth Amendment does not protect information revealed to the public by third parties.

At least to Judge Sciarrino, tweets are very public. As he explained, the act of posting a tweet is a broadcast to the “entire world,”

[t]here is no proprietary interest in your tweets, which you have now gifted to the world.

The judge also found the subpoena relevant and material under the SCA, and its scope sufficiently circumscribed under New York state law.

Judge Sciarrino poignantly acknowledged that “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” and that the US Constitution “gives you the right to post.” But, despite his salute to the freedom to tweet, he also noted that “what you give to the public belongs to the public…..”

Are all tweets really a gift to the world? For example, what if a Twitter account holder has only one follower to whom he or she is tweeting? Or even a dozen followers? As the judge noted, Twitter’s privacy policy states that information a user provides is information the user is asking to be made public. But do 12 followers constitute the “public?” What do you think?

For excellent coverage of California and federal privacy law relevant to California businesses, including the Stored Communications Act, Fourth Amendment privacy protections, and privacy law in litigation, check out CEB’s Privacy Compliance and Litigation in California. On social media in the context of Internet law, turn to CEB’s award-winning book Internet Law and Practice in California, chap 8.

This material is reproduced from CEB Blog entry, Everything You Tweet Can Be Held Against You!, CEB Blog (July 23, 2012 http://blog.ceb.com/2012/07/23/everything-you-tweet-can-be-held-against-you/). Copyright 2012 by the Regents of the University of California. Reproduced with permission of Continuing Education of the Bar - California. For information about CEB publications, telephone toll free 1-800-CEB-3444 or visit our Web site, CEB.com.

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