Tweet This: Court Says No Reasonable Expectation Of Privacy In Public Postings

Tweet This: Court Says No Reasonable Expectation of Privacy in Public Postings

By George A. Stamboulidis1 and Alberto Rodriguez2

In a matter of first impression, a New York court has recently held that there can be no reasonable expectation of privacy in a publicly posted “tweet” and ordered Twitter, Inc.

(“Twitter”) to disclose a criminal defendant’s tweets and other account information to the New

York District Attorney’s Office.3 The case, People v. Harris, is significant because it applies principles of privacy law under the Constitution to the ever changing and expanding medium of social media and provides guidance on the public’s expectations of privacy in the Internet age.4

This case is unique in that it is a criminal case rather than a civil case and involves Twitter, a third party corporation attempting to quash a subpoena duces tecum rather than the individual account-owner.5 As you may know, Twitter is an online social networking service that enables users to widely share text messages of no more than one hundred forty (140) characters, photos and videos, also known as “tweets.”6 In reaching his conclusion, Judge Sciarrino said that posting a tweet is analogous to screaming out of a window, a situation where no reasonable expectation of privacy is found.7

Here’s the backstory: on October 1, 2011, the defendant, Malcolm Harris, was charged with disorderly conduct for allegedly marching on the roadway of the Brooklyn Bridge in connection with the Occupy Wall Street protests.8 On January 26, 2012, the New York District

Attorney’s Office issued a subpoena to Twitter seeking Harris’ account information and tweets

1 George A. Stamboulidis, the Managing Partner of Baker Hostetler’s New York office, is a former federal prosecutor and the co-leader of the firm’s national White Collar Defense and Corporate Investigations practice. He has served as a corporate monitor for global corporations and counsels and represents corporations, boards and executives on compliance, criminal and regulatory matters. 2 Alberto Rodriguez is a senior associate in Baker Hostetler’s Commercial Litigation and White Collar Defense and Corporate Investigations practice groups. 3 People v. Harris, No. 2011NY080152, 2012 WL 2533640, *4 (N.Y. City Crim. Ct. June 30, 2012). 4 Id. at *6. 5 Id. at *1. 6 People v. Harris, 945 N.Y.S.2d 505, 507 (N.Y. City Crim. Ct. 2012). 7 Harris, 2012 WL 2533640 at *4. 8 Harris, 945 N.Y.S.2d at 506.

601507921 for their relevance in the ongoing criminal investigation.9 Twitter took the position that it would not comply with the subpoena until the court ruled on Harris’ motion to quash the subpoena.

The court denied Harris’ motion to quash, holding that Harris lacked standing10 because he had no proprietary interest in the user information in his Twitter account.11 The court then ordered

Twitter to disclose certain information from Harris’ Twitter account for in camera review. Twitter subsequently moved to quash the court’s order.

After a review of the requirements of the Stored Communications Act, the statute governing disclosure of electronic communications, content and other information on the internet, the court addressed whether disclosure of Harris’ account information and tweets violated Harris’ right to privacy under the Fourth Amendment. The court concluded that there was no violation of the Fourth Amendment because there was neither a physical intrusion onto

Harris’ personal property or a violation of Harris’ reasonable expectation of privacy. 12 The court easily found that there was no physical intrusion into Harris’ Twitter account since the defendant had purposely “broadcast [tweets] to the entire world into a server 3,000 miles away.”13

As to Harris’ reasonable expectation of privacy, the court said that the relevant inquiry was whether the government violated a “subjective expectation of privacy that society recognizes as reasonable.”14 To determine that no reasonable expectation of privacy exists as to public tweets, the court relied on New York caselaw in the civil context in which a court has previously determined that users of social media sites generally do not retain a reasonable expectation of privacy.15 Specifically, in Romano v. Steelcase Inc., the court concluded that no reasonable expectation of privacy existed with respect to postings made on social media sites

9 Id. 10 Harris, 945 N.Y.S.2d at 508-509. 11 The court says that after the April 20, 2012 Harris decision, Twitter changed its terms and policy regarding user rights. Harris, 2012 WL 2533640 at *2. If Twitter’s terms of service provided that users retain their rights to any content they submit, this arguably would have given Harris standing to quash the subpoena. 12 Harris, 2012 WL 2533640 at *4. 13 Id. at *3. 14 Id. (citations omitted). 15 Id. at *4 citing Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (Sup. Ct. Suffolk Co. 2010).

2 such as Facebook and MySpace because those sites do not guarantee complete privacy and that posts on those sites may become publicly available despite one’s privacy settings.16 Based on this precedent, Judge Sciarrino concluded that there could be no subjective expectation of privacy that society would recognize as reasonable in tweets made available to the public.17

To further support the conclusion that there was no reasonable expectation of privacy in publicly posted tweets, the court also noted that in 2010, Twitter signed an agreement with the

Library of Congress providing that every public tweet from Twitter’s inception and beyond would be archived by the Library of Congress.18 Furthermore, the court cited to Twitter’s own privacy policy which explains that Twitter’s services are primarily designed to help users share information with the world.19 Twitter’s privacy policy says that the information made public includes, “not only the messages you Tweet and the metadata provided with Tweets, such as when you Tweeted, but also the lists you create, the people you follow, the Tweets you mark as favorites or Retweet, and many other bits of information that result from your use of the

Services.”20 The court ultimately found that, “[t]here is no reasonable expectation of privacy for tweets that the user has made public. It is the act of tweeting or disseminating communications to the public that controls.”21 The court further points out that, “[e]ven when a user deletes his or her tweets there are search engines available such as ‘Untweetable’, ‘Tweleted’, and ‘Politwops’ that hold users accountable for everything they had publicly tweeted and later deleted.”22

The court was careful to distinguish public tweets from other forms of private internet communications which may be afforded some protection under the Fourth Amendment such 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 currently exist.23 The court suggests

16 Romano v. Steelcase Inc., 907 N.Y.S.2d 650, 433-434 (Sup. Ct. Suffolk Co. 2010). 17 Harris, 2012 WL 2533640 at *4. 18 Id. 19 Id. 20 Id. 21 Id. 22 Id. 23 Id.

3 that the extent to which posts or communications are made public will determine whether there is any violation of the Fourth Amendment.24 In another recent case which considered whether the government violated a defendant’s Fourth Amendment rights by obtaining information from one of the defendant’s Facebook “friends,” the court found that no reasonable expectation of privacy existed where a defendant’s Facebook profile was freely visible to “friends,” even though the profile was not completely public.25 In United States v. Meregildo, the court states that while the defendant believed his Facebook profile would not be shared with law enforcement, he had no justifiable expectation that his “friends” would keep his profile private.26 The court says that the wider the circle of friends, the more likely a defendant’s posts would be viewed by someone he never expected to see them.27 So whether a reasonable expectation of privacy exists for non-public posts will likely depend on the facts and circumstances of those posts and the likelihood of further dissemination.

The Harris court acknowledged that the law in this area is still new and evolving and that it must weigh the interest of society against the inalienable rights of individuals.28 The court says, “[w]hile 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…”29 The court concludes by warning that while the Constitution gives you the right to post and speak your mind, there are still consequences for the posts you make public.30

24 Id. 25 U.S. v. Meregildo, No. 11 Cr. 576, 2012 WL 3264501 at *2 (S.D.N.Y. Aug. 10, 2012). 26 Id. 27 Id. 28 Harris, 2012 WL 2533640 at *6. 29 Id. 30 Id.