I don’t think anyone was surprised when a New York City criminal court judge ruled that Twitter must hand over tweets, IP address, and the email address of “Occupy Wall Street” protester Malcolm Harris.
In his decision, the judge wrote, "There can be no reasonable expectation of privacy in a tweet sent around the world. 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 tweet, which you have now gifted to the world. This is not the same 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 now exist.”
In this ruling, Judge Matthew A. Sciarrino Jr. also requested Twitter hand over any IP addresses associated with the tweets and the email address on Harris’ profile. The ruling raises questions (again) about the privacy of what is posted on social media. Harris’ Twitter account was public, and he admitted he wanted his tweets to be widely read but was fighting the disclosure on principle.
The decision is another added on the pile of social media rulings in the last few years that are attempting to define what contexts or uses of social media should be protected as free speech or be protected as unreasonable searches. In his recent book, Navigating Social Media Risks, lawyer Robert McHale says there are a growing number of court cases where social media is playing a key role. Several courts have ruled that social media content is generally discoverable, despite privacy objections.
Also playing another key point in the discussion is the use of electronically stored information (ESI) that many businesses and organizations are required to preserve once a legal action has been started. This duty to preserve ESI has not been clearly defined yet for third party providers such as Twitter and Facebook.
McHale wrote, “ESI generally presents more challenges in discovery and litigation holds than traditional hard-copy information, and the use of social media only increases those challenges.” Even though social sites may routinely alter or delete data, McHale says that sites need to take care to preserve ESI. There are serious penalties in some instances for failure to produce ESI.
The question now is how liable sites like Facebook and Twitter are for their huge store of information. The Library of Congress announced an agreement with Twitter in 2010 to archive tweets, but claimed that it was only for research and scholarly purposes. That agreement between Twitter and the Library of Congress is still being worked out.
The Stored Communications Act was enacted to help preserve a person’s right to unreasonable searches and help protect third party providers such as internet service providers and companies like Facebook. However, the push to authenticate posts and tweets often begs to cross the line of privacy into requesting profile information, such as email addresses, that might not be readily available to the public. The question becomes whether or not that information could be discovered via another method readily available to the public.
Suffice it to say, the ramifications of using social media in litigation are evolving. Looking for consistencies in the cases and rulings in McHale’s book will leave you scratching your head. The same can be said of rulings from the National Labor Relations Board concerning privacy matters in the workplace. Recently, the NLRB issued a report citing several large brands whose social media policies were deemed unlawful. There was a lot of talk about what not to do, but very little talk about what to do. But Maryland social media lawyer Bradley Shear says patterns are starting to take shape.
“The general pattern that is starting to emerge is that people have a right to privacy to their password protected digital content and that the proper legal avenues need to be followed in order for a civil litigant to obtain social media content from an opposing party.”
Shear also said that social media is starting to play a more prominent role in criminal cases.
“The Occupy New York protestor case is one of the first criminal matters to address social media privacy issues as they pertain to obtaining social media evidence. If one's content is freely accessible to all without a defendant needing to affirmatively provide access there generally isn't an expectation of privacy. However, if content is behind a password protected wall a suspect may generally have an expectation of privacy and therefore either a subpoena or a warrant may be needed to obtain access to the content.”
Shear said keeping up is a challenge for the courts.
“Courts are trying to determine how to address privacy issues in the social media age. The law constantly tries to catch up with changing technologies and by the time a new law has passed a new technology may be created that the drafters of the legislation did not envision."
What's your take on the legal issue of privacy in social media? The comments are yours.