If law enforcement demands the contents of your electronic communications or non–content records from your Twitter account, do you have standing to challenge the subpoena? A New York criminal court has said “no”—because you don’t have a proprietary interest in your Twitter account, and you don’t have privacy interests in your Tweets.
In an April 20, 2012, order in the case New York v. Harris, the court concluded that a user lacks standing to challenge a New York County District Attorney’s subpoena sent to Twitter demanding user information and postings for a Twitter account allegedly used by Mr. Harris. The court concluded that these records belonged to Twitter, and the user did not have a proprietary interest in his Tweets. The court also noted that, by agreeing to Twitter’s terms of service agreement, the user “was granting a license for Twitter to use, display and distribute the defendant’s Tweets to anyone and for any purpose it may have.” At the time of the order, Twitter’s terms of service agreement said, in part:
By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non–exclusive, royalty–free license to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).
On May 17, 2012, Twitter revised its terms of service agreement to add “You retain your rights to any Content you submit, post or display on or through the Services.” But, the same court in a June 30, 2012, order dismissed Twitter’s argument that users have standing to challenge a subpoena like this one. In an article on AllThingsD, Mike Isaac reported that Twitter plans to appeal the court’s decision.
The court also concluded that the user had no privacy interest in his Tweets because they are able to be viewed by others around the world instantly. In the June 30, 2012, order in this case, the court said that posting a message on Twitter is like yelling your message out your window and being heard by a witness walking across the street: “Well today, the street is an online, information superhighway, and the witnesses can be the third party providers like Twitter, Facebook, Instragram, Pinterest, or the next hot social media application.” The court went on to say that, “If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy.”
The court ordered Twitter to turn over all non–content information (logs of account usage, basic subscriber information, etc.) related to this user account and to turn over the content information for this user account that is more than 180 days old. The court noted that the government must obtain a search warrant (not just a subpoena) to force Twitter to disclose the content information for the user account that is in temporary electronic storage for 180 days or less, as required by § 2703(a) of the Stored Communications Act.
The reason I mention this case is that ownership interests in online accounts (Twitter, Facebook, e–mail, YouTube, Flickr, etc.) and privacy interests in online accounts are important issues when planning ahead for a person’s incapacity and death, as well as when the fiduciaries and family members are administering the person’s estate after the person becomes incapacitated or dies. I have mentioned before the importance of reading the terms of service agreements for online accounts to see: (1) whether the user’s account terminates at death, (2) whether the user’s account is transferrable, (3) whether the agreement prohibits the user from allowing others (such as a spouse or a duly–appointed fiduciary) from accessing the user’s account (and whether this “unauthorized access” also could be considered a crime), (4) whether the user’s account can be terminated if you breach the terms of the agreement, and (5) which state law governs the agreement.
As the court mentioned in this case, “The world of social media is evolving, as is the law around it.” The court went on to say, “As the laws, rules and societal norms evolve and change with each new advance in technology, so too will the decisions of our courts.” We can see that the terms of service agreements from these online service providers are also evolving with each new court decision, which happened in this case with Twitter changing its agreement between the dates of the April and June 2012 court orders, presumably in response to the April order.
It will be interesting to see what the future holds for new and different types of online accounts and services (including virtual items in video games and other virtual worlds), especially whether a user has some type of ownership interest (a property right, license interest, intellectual property right, etc.) and whether a user has a privacy interest. These are important issues in estate planning, and some of these rights may have financial value.