Courts have also begun to grapple with novel issues regarding the constitutionality of the government’s use of information obtained from social media companies in criminal proceedings.

For example, in November 2012, a New York appellate court heard arguments regarding Twitter’s appeal of two court orders in the prosecution of an Occupy Wall Street protestor. The trial court held that the defendant lacked standing to move to quash the government’s third-party subpoena to Twitter for his account records and that his Tweets were not protected by the Fourth Amendment. The trial court similarly denied Twitter’s motion to quash the government’s subpoenas for the defendant’s Twitter records for the same reasons, among others.

Notably, the defendant was only able to move to quash the subpoena because “Twitter’s policy is to notify users of requests for their information prior to disclosure,” a policy which is becoming more common among social media companies. Not only does Twitter notify its users that the company has received a government-issued information request for the user’s data, but Twitter also protects its business by litigating against such third-party government subpoenas.

Twitter argued on appeal that the defendant has the standing to quash the government’s subpoena because he has a proprietary interest in his Tweets, pointing to the express language of Twitter’s Terms of Service.

Moreover, Twitter argued that the defendant’s Tweets are protected by the Fourth Amendment, primarily because the government concedes that the Tweets it sought were not made public by the defendant. And, if a defendant has a reasonable expectation of privacy under the Fourth Amendment in his or her non-public emails. Twitter argued that not affording that same protection to users’ non-public Tweets would create “arbitrary line drawing.”

Finally, even assuming the Tweets in question were public, Twitter argued that the government still requires a search warrant under the Federal and New York constitutions. Notwithstanding Twitter’s pending appeal, Twitter complied with a court order requiring it to promptly submit the Defendant’s Tweets under seal.

The line-drawing concerns expressed by Twitter in its People v. Harris brief— that a defendant’s reasonable expectation of privacy under the Fourth Amendment in his or her social media records depends on the privacy settings for the particular account in question—were implicated in United States v. Meregildo, described above, where the Court held that “where Facebook privacy settings allow viewership of postings by ‘friends,’ the Government may access them through a cooperating witness who is a ‘friend’ without violating the Fourth Amendment.”

Some courts have concluded that individuals have “a reasonable expectation of privacy to [their] private Facebook information and messages.” Those courts, while recognizing the importance of properly understanding how Facebook works, distinguished between a “private message” and a post to a user’s Facebook wall. Using privacy setting distinctions to determine social media users’ constitutional rights may result in an arbitrary line drawing that may evaporate as social media evolves.

Indeed, with Facebook’s customizable and post-specific privacy settings, a person sharing a message by posting it on another user’s wall can actually make it as private as information shared via a Facebook message.

In addition, it remains uncertain whether, given the sheer breadth of information available in any particular social media account, search warrants for entire social media accounts can be successfully challenged for lacking sufficient limits or boundaries that would enable the government-authorized reviewing agent to ascertain which information the agent is authorized to review.

Ultimately, because an expectation of privacy under the Fourth Amendment is partly a function of whether “society [is] willing to recognize that expectation as reasonable,” social media’s rapid proliferation throughout today’s society may influence the privacy protections afforded to social media evidence in the future.



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