Access to Social Media in Criminal Cases

A recent article was published which discussed a New York judge’s decision to allow prosecutors to access tweets without a warrant. The case involved a defendant charged with disorderly conduct for his protest on the Brooklyn Bridge as part of the Occupy Wall Street movement.  The judge ruled that a prosecutor may access tweets on your Twitter account, even deleted ones, without a warrant because it is public information owned by a third party.  You may read the full article here: Your Tweets Can Be Subpoenaed.

Often technology moves faster than the legislatures can keep up, leaving court’s to try and create analogies to old laws and cases.  For instance, in the case above, the court reasoned that bank records have been considered public records by the courts for a long time, and that likewise because tweets are accessible by the public, they too are public records. 1 Because only a subpoena is needed for a bank record, the judge found that only a subpoena would be needed for access to a Twitter account.  However, defense counsel thought a better analogy would be to recent court decisions involving GPS tracking devices.  The Supreme Court has held that while an individual’s location on the street is public knowledge, police cannot gather information from a GPS device without first getting a warrant.  (You may access this case here: Justices Say GPS Tracker Violated Privacy Rights)

This case may have come out differently had it been decided in Pennsylvania because Pennsylvania provides for greater protections to an individual’s privacy than the federal government.  An argument could be made under the Pennsylvania Constitution that access to Twitter and Facebook accounts without a warrant is an invasion of privacy.  Not all Twitter and Facebook accounts are open to the public.  Many users specifically block access to their information so that only certain friends and family can access it.

If a court in Pennsylvania were to analogize this to the way courts have looked at bank records, a warrant may be required.  Bank records are personalized, private information about an individual, held by a third party, the bank.  It is true that bank employees have access to an account holder’s bank statements and information.  However, it is unlikely that a bank employee is closely scrutinizing your entire record.  Rather they see perhaps one statement or transaction at a time.  The culmination of information that can be gathered about a person from examining months or years of their bank records is vast.  You can learn their daily habits, where they go on vacation, what type of entertainment they enjoy, what products they purchase, and so on.  Thus, the courts have reasoned that the constitutionally recognized right to privacy in one’s bank records is based on the content of that information and in the specific aspects of one’s private life that might be revealed by divulging into this information.  Thus, it would be an invasion of someone’s privacy if the government could gather this information without a warrant supported by probable cause. 2

Likewise, some members of the public have access to an individual’s social media website or profile, such as family members, friends and the third-party who owns the website.  Most users must grant someone permission before their accounts can be viewed by that person.  Like a bank record, individual entries on  a Twitter or Facebook page are unlikely to reveal much about a person. However, when their entire account is reviewed, including things that have been deleted, this allows the government to divulge into a person’s private life.  This is an invasion of privacy and should be protected by the Constitution of Pennsylvania.

1 The Pennsylvania courts extend greater protection to bank records under the Pennsylvania Constitution than the U.S. Constitution and federal courts.  The court found that an individual has a reasonable expectation of privacy in his bank records. See Commonwealth v. DeJohn, 486 Pa. 32 (1979).

 

2 The reasoning in this paragraph comes from the following cases: Commonwealth v. Duncan, 752 A.2d 404 (Pa.Super. 2000); Commonwealth v. DeJohn, 486 Pa. 32 (1979).