The recent decision of a New York City Criminal Court regarding the inability of a criminal defendant to quash a subpoena served upon Twitter for the defendant's tweets, highlights the unsettled case law in the realm of social media.
In determining that the defendant, an alleged Occupy Wall Street protester charged with disorderly conduct, named Malcolm Harris, did not have standing to quash the subpoena served upon Twitter, the court in the People v. Harris likened the sought after Twitter records to bank and telephone records. It has been held that banks and telephone companies own bank and telephone records respectively, not the customers. Based in part on these precedents, and in part on its interpretation of Twitter's terms and conditions, the court held that Harris had no proprietary rights to his tweets and related content on Twitter. In addition to that conclusion, the court also denied the defendant's right to intervene in the Twitter subpoena matter, and in doing so confirmed that Twitter fell under the Stored Communications Act, but that the District Attorney had met the SCA's threshold requirements regarding subpoenas.
The Harris decision was met with an immediate uproar, as the court's interpretation of Twitter's terms and conditions shocked many, including Twitter itself. Twitter has subsequently filed a motion to quash the subpoena stating that the Harris court had misinterpreted its terms and conditions and that its members certainly owned their tweets and content.
Though there is a paucity of case law when it comes to social media and legal issues such as discovery, the Harris court was not the first to address this subject. In the well-documented EEOC v. Simply Storage Management case, a federal court upheld a subpoena issued to a plaintiff in a sexual harassment suit, stating that merely locking a social media platform from the public does not prevent discovery. The Simply Storage court determined that the proper scope of the subpoena in question included "any profiles, postings or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries)...that reveal, refer or relate to any emotion, feeling or mental state."
Taking a different view then that adopted in Harris, a federal district court in Crispin v. Christian Audigier, Inc., found that the plaintiff had standing to move to quash subpoenas served on several social media platforms, including Facebook, because the plaintiff had a "personal right in information in his or her profile and inbox on a social networking site...in the same way that an individual has a personal right in employment and bank records." As in Harris, the Crispin court found that the social media platforms constituted electronic communication providers under the Stored Communications Act. The Crispin court then proceeded to find that the SCA was designed to protect private electronic communications, and that webmail and private messaging were inherently private forms of communications.
Clearly, case law regarding social media is in its infancy. In the coming months, we can expect to see more cases involving social media and the many aspects in which it affects our personal and business lives. As with novel technologies of the past, there will likely be many disparate decisions by state and federal courts, as the law adopts and embraces social media. Eventually, solid and reliable social media case law will be developed.
While the legal system deals with more and more cases involving social media, and case law evolves, it is in the best interests of individuals and businesses to remain vigilant with respect to the content they post and store on social media platforms. Until dependable case law is established, or further relevant legislation is adopted, the most conservative stance is one that does not assume the privacy of any content posted in any manner via social media sites. Businesses in particular must recognize that social media is another source of data release and storage that they must take active measures to protect and control.