In news reports that span the gamut from anonymous terroristic threats directed to Mike Tyson’s Broadway show,1 to the source of the WikiLeaks,2 the spotlight of public attention has been drawn to the availability of material evidence from online social networks. It was to be expected as online social networks have become a significant part of the lives of many. No one can approximate with accuracy the amount of hours a day spent by the average user in communicating with his or her contacts, “friends” or acquaintances on Facebook,3 Twitter,4 LinkedIn5 or similar social media sites making connections, contacting business associates, or just updating friends.

Although these sites began as simple opportunities to make contact with others, today they comprise complex communications networks for the transmission of ideas, photographs, videos, and other content-based messages, referred to here simply as “digital chatter.” The number of users involved in this digital chatter is estimated at over 1.5 billions users; one social medium alone claims that it has over 500 million active users, with the average user creating 90 pieces of content each month.6 More importantly, this digital chatter is potentially invaluable because the users of these networks typically communicate in an uninhibited manner, disclosing personal data that the user would probably never want to see the light of day.

Given the volume and nature of the digital chatter that is being transmitted, should it surprise anyone that New York attorneys view these networks as fertile grounds for the harvesting of valuable, material trial evidence? Litigation concerning the seizure and disclosure of this valuable digital chatter is the subject of this article.

The Subpoena Duces Tecum

In the usual case, an attorney conducting a pretrial investigation will identify some pertinent and relevant material that he or she believes likely to be held by a particular social network. The attorney will then issue a subpoena duces tecum for a court proceeding demanding the relevant records likely held by the network. The network in this case is a third-party custodian of the information.

In a criminal action, the power to subpoena witnesses and evidence may be exercised by the court, the prosecutor, or the defense attorney. Criminal Procedure Law (CPL) §610.20 (2) states that “[a] district attorney…as an officer of a criminal court in which he is conducting the prosecution of a criminal action or proceeding, may issue a subpoena of such court, subscribed by himself, for the attendance in such court or a grand jury thereof of any witness whom the people are entitled to call in such action or proceeding.”7 The general New York rule is that only the recipient of a subpoena in a criminal case has standing to quash it.8

In issuing a subpoena duces tecum, the drafter should keep in mind that if a motion to quash is filed concerning it, the reviewing court will usually raise these questions: Are the requested documents material to the litigation?9 Is there appropriate specificity of the documents requested? Are the documents procurable reasonably in advance of trial by the exercise of due diligence? Can the party properly prepare for trial without such a production and inspection in advance of trial, and will the failure to obtain such inspection unreasonably delay the trial? Is the application made in good faith and not intended as a general “fishing expedition”?10

One addition to the questions that may be raised above, and invoked routinely by a social network moving to quash a subpoena duces tecum for digital chatter, is the claim that the production of certain material would violate the provisions of the federal Stored Wire and Electronic Communications Privacy Act (SCA).11 The SCA, 18 U.S.C. §2703(d) provides that a court issuing an order pursuant to this section, on a motion made promptly by the service provider, may quash or modify such order, if the information or records requested are unusually voluminous in nature or compliance with such order otherwise would cause an undue burden on such provider.

The SCA prohibits a service provider from disclosing a user’s private information and contents of a communication12 unless the user gives consent13 or an exception applies per 18 U.S.C. 2702(b). Records of a service provider may be obtained by a law enforcement agency on a showing by the agency of “specific and articulable facts showing that there are reasonable grounds to believe that the contents of an electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation,” as per 18 U.S.C. §2703(d). Disclosure may also be mandated if an emergency exists threatening the life or serious physical injury of others as per 18 U.S.C. §2702. The rules applicable to service providers regarding retention and preservation of evidence are provided in 18 U.S.C. §2703(f).

Section 2304 of the New York Civil Practice Law and Rules (CPLR) specifies the parameters of a motion to quash, to fix conditions or to modify, and provides that, “[a] motion to quash, fix conditions or modify a subpoena shall be made promptly in the court in which the subpoena is returnable…. Reasonable conditions may be imposed upon the granting or denial of a motion to quash or modify.”

It should also be noted that CPLR 2304 grants the trial court broad discretionary power to impose reasonable conditions on compliance with a subpoena. For instance, in a case involving subpoenaed bank records, Montesano v. North Fork Bank,14 the Appellate Division, Second Department, determined that the trial court had improvidently exercised its discretion in directing that the bank produce the subpoenaed documents, which were “substantial in amount,” within only one day. Moreover, since the documents were not in paper form as requested by the petitioner’s subpoena, and since the petitioner refused the bank’s invitation to review them in their original form, the Second Department determined that the reimbursement of only 15 cents per copy was inadequate, and a hearing was ordered to determine the appropriate hourly rate for research time spent to locate the subject documents, in addition to the rate of 15 cents per copy.

Subpoenaed Tweets

In People v. Harris,15 the prosecution subpoenaed the defendant’s Twitter account for the user’s information, email address, posts and “tweets” for a certain time period. The defendant was charged with disorderly conduct16 for allegedly marching on the roadway of the Brooklyn Bridge. A subpoena duces tecum was issued by the prosecutor to the corporate entity Twitter seeking the defendant’s account information and tweets for their relevance in the ongoing criminal investigation per CPL §610 and the SCA, 18 U.S.C. §2703(c)(2).

The defendant’s anticipated trial defense was that the police either led or escorted him onto the non-pedestrian part of the Brooklyn Bridge, a defense allegedly contradicted by his publicly posted tweets around the time of the incident. Accordingly, it was asserted that the requested information was relevant and material to the trial.

Twitter moved to quash the subpoena, but Judge Matthew Sciarrino Jr., of the New York City Criminal Court, denied the motion in part, and granted the motion in part. Twitter contended that the user owns his tweets and had standing to object to disclosure. The court found that the subpoena duces tecum was properly issued to Twitter per CPL §610.10 and 18 U.S.C.S. §2703(c)(2). It also found that the user did not have standing to object to the subpoena because the user had no proprietary interest in the information, nor does the user have a reasonable expectation of privacy in information shared with third parties.17 Moreover, a user has no reasonable expectation of privacy in information he intentionally broadcasts to the world. “There can be no reasonable expectation of privacy in a tweet sent around the world,” Sciarrino mused.18

Therefore, the court determined that disclosure did not offend the Fourth Amendment of the U.S. Constitution, the SCA, 18 U.S.C.S. §2701 et seq.,19 or New York law. The court concluded that “[s]o long as the third party is in possession of the materials, the court may issue an order for the materials from the third party when the materials are relevant and evidentiary.”20 Thus, the court determined that the “non-content records such as subscriber information, logs maintained by the network server, etc. and the September 15, 2011 to December 30, 2011 tweets are covered by the court order. However, the government must obtain a search warrant for the December 31, 2011 tweets.” The court determined that a search warrant was required for the Dec. 31, 2011 tweets as they were in temporary electronic storage for 180 days or less, and therefore a search warrant was required as per 18 U.S.C. §2703(a).21

People v. Harris is consistent with 1979 holding of the U.S. Supreme Court in Smith v. Maryland.22 There, the high court articulated the third-party exception to the Fourth Amendment search analysis, and held that the government’s access to business (telephone) records held by third parties did not implicate the Fourth Amendment. The court determined that those who voluntarily conveyed numerical information to phone company equipment had no reasonable expectation of privacy in that transfer of information; thus, probable cause was not required for disclosure of dialed digits.23 The third-party exception to the Fourth Amendment search analysis24 was recently questioned by Justice Sonia Sotomayor in her concurring opinion in United States v. Jones.25

Conclusion

The cases involving subpoenas of social media found on sites such Facebook and Twitter require courts to analyze what is really “private” information, the Stored Communications Act and traditional constitutional rules concerning an individual’s expectation of privacy. The cases demonstrate that what a social media user places in the public domain cannot be withheld when appropriate legal process is utilized and traditional Fourth Amendment expectation of privacy analysis is applied.

Peter A. Crusco is executive assistant district attorney, investigations division, Office of the Queens County District Attorney. The views expressed herein are the author’s, and do not necessarily reflect the policies or views of the office.

Endnotes:

1. See, e.g., “Twitter gives NYPD info on account behind threats to Mike Tyson show on Broadway,” CBS Online News, Aug. 8, 2012, at http://m.cbsnews.com/fullstory.rbml?catid=57488883&feed_id=30&videofeed=null.

2. See, e.g., Zack Whitaker, “U.S. Judge Upholds Twitter Subpoena of WikiLeaks Followers,” London Calling, Nov. 11, 2011, at http://www.zdnet.com/blog/london/u-s-judge-upholds-twitter-subpoena-of-wikileaks-followers/842; Declan McCullagh, “DOJ Wins Access to WikiLeaks-Related Twitter Accounts,” CNET News, March 11, 2011, at http://news.cnet.com/8301-31921_3-20042277-281.html; see also In re Application of United States, 830 F. Supp. 2d 114 (E.D. Va. 2011); In re 2703 (d) Order, 787 F. Supp. 2d 430 (E.D. Va. 2011).

3. See http://www.facebook.com/.

4. Tweets can be searched for and read from a variety of mobile devices. It may be difficult to determine the source of a tweet as tweets are often posted by persons using pseudonyms or pretending to be persons they are not.

5. See http://www.linkedin.com/.

6. Jenny Lee, “Facebook Privacy Is Your Privacy,” The Acronym, Aug. 25, 2011, at https://acronym.imsa.edu/2011/08/facebook-privacy-is-your-privacy/.

7. See, e.g., People v. Neptune, 161 Misc.2d 781 (Kings Co. 1994) (subpoena used for discovery was improper and abuse of process).

8. See, e.g., People v. Crispino, 298 A.D.2d 220, 221 (1st Dept. 2002) app. dsmd. 99 N.Y.2d 613 (2003) (defendant, as a customer, has no proprietary interest in the defendant’s bank account records); In re Nassau County Grand Jury, 4 N.Y.3d 665, 678 (2005) (the standard of reasonableness applies to a Grand Jury subpoena duces tecum). Cf., 18 U.S.C. §2704(b).

9. See, e.g., People v. Charlton, 239 A.D.2d 104 (1st Dept. 1997) app. den. 90 N.Y.2d 104 (1997) (defense failed to demonstrate materiality of police officer’s testimony to require his production by subpoena at Mapp hearing).

10. People v. Carassavas, 103 Misc.2d 562, 426 N.Y.S.2d 437 [Saratoga County Ct. 1980]; People v. Price, 100 Misc.2d 372, 379, 419 N.Y.S.2d 415 [1979]).

11. Hayes Hunt and Jillian Thornton, “Facebook and Twitter Subpoenas, Privacy and the Law,” Aug. 6, 2012, at http://www.fromthesidebar.com/social-media-law/facebook-and-twitter-subpoenas-privacy-and-the-law/.

12. “Contents” is defined in 18 U.S.C. §2510(8).

13. See 18 U.S.C. §2703(b)(3).

14.Montesano v. North Fork Bank, 282 A.D.2d 537 (2d Dept. 2001).

15. People v. Harris, 2012 NY Slip Op 22175, 2012 N.Y. Misc. LEXIS 3076 (N.Y. County June 30, 2012), modifying People v. Harris, —Misc.3d—, 2012 N.Y. Misc. LEXIS 1871 (N.Y. County April 20, 2012).

16. NYS Penal Law §240.20 [5].

17. See also Juror Number One v. Superior Court, 206 Cal. App. 4th 854 (Cal. App. 3d 2012) (In investigation involving juror misconduct, the juror failed to demonstrate an expectation of privacy in his Facebook posts; Facebook’s motion to quash based on alleged SCA violation rejected by the court.).

18. Harris, 2012 NY Slip Op 22175 at *7.

19. See also Juror Number One, 206 Cal. App. 4th at 854; Facebook Help Center, at http://www.facebook.com/help/?page=211462112226850.

20. Harris, 2012 NY Slip Op 22175 at *7.

21. Id. at *14-16.

22. Smith v. Maryland, 442 U.S. 735, 744-45 (1979).

23. Dialed digits are also known as pen register/trap and trace data, or PRTT and in 1988, New York State enacted CPL Article 705 to govern disclosure of such records by court order satisfying the standard of reasonable suspicion and relevance.

24. Katz v. United States, 389 U.S. 347, 360 (1967) (the Fourth Amendment does not protect the merely subjective expectation of privacy, but only those expectations that society is prepared to recognize as reasonable).

25. United States v. Jones, 565 U.S.—, 132 S. Ct. 945 (2012). Cf., In re Application, 632 F. Supp. 202, (E.D.N.Y. 2008) (Garaufis, D.J.) (an application for 113 days of historical cell site location information required a warrant based upon probable cause; the court determined that the customer had an expectation of privacy in the third party records); In re Application, 2011 U.S. Dist. LEXIS 93494 (E.D.N.Y. 2011). But see People v. Hall, 86 A.D.3d 450, 452 (1st Dept. 2011) (three days of cell site location information data does not constitute a protracted surveillance requiring a search warrant per the Fourth Amendment).