FELA Lawyer News Blog

Social Media – The New Miranda

Twitter Warning – You have the Right to Remain Silent.
Anything you POST can and will be held against you in a court of law.
You have the right to an attorney. If you cannot …

If you were wondering if your social networking posts were protected from subpoena power in BOTH a criminal and/or a civil matter, the answer just got much  clearer.

On June 30, 2012, New York State Criminal Judge Matthew A. Sciarrino, Jr. ordered that the state of New York had the ability to subpoena Twitter and require they produce all tweet information related to Malcolm Harris. Mr. Harris has been charged with Disorderly Conduct (NY Penal Law § 240.20[5] ) after allegedly marching on the roadway of the Brooklyn Bridge related to the Occupy Wall Movement. The New York County District Attorneys’ Office sought his tweet information and Twitter resisted. The Judge ordered Twitter to “provide any and all user information, including email addresses, as well as any and all tweets posted for the period of September 15, 2011 to December 31, 2011, from the Twitter account @destructuremal, which was allegedly used by Malcolm Harris.”

The Court first noted that Twitter is a public, real-time social and information network that enables people to share, communicate, and receive news. Users can create a Twitter profile that contains a profile image, background image, and status updates called tweets, which can be up to 140–characters in length on the website. The Court correct pointed out that:

Consider the following: a man walks to his window, opens the window, and screams down to a young lady, “I’m sorry I hit you, please come back upstairs.” At trial, the People call a person who was walking across the street at the time this occurred. The prosecutor asks, “What did the defendant yell?” Clearly the answer is relevant and the witness could be compelled to testify. 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 Judge’s final discussion is worth setting forth herein:

In dealing with social media issues, judges are asked to make decisions based on statutes that can never keep up with technology. In some cases, those same judges have no understanding of the technology themselves (Stephanie Rabiner, Esq., Technologist, Do Judges Really Understand Social Media? [May 9, 2012]). Judges must then do what they have always done-balance the arguments on the scales of justice. They must weigh the interests of society against…..The world of social media is evolving, as is the law around it.

Society struggle with policies, whether they are between student and teacher (N.Y.C Department of Education, NYC Department of Education Social Media Guidelines),or the right of a company to examine an applicant’s Facebook page as part of the interview process (Bill Chappell, State Approves Bill to Ban Employers From Seeking Facebook Login Info.

As the laws, rules and societal norms evolve and change with each new advance in technology, so too will the decisions of our courts. While the U.S. Constitution clearly did not take into consideration any tweets by our founding fathers, it is probably safe to assume that Samuel Adams, Benjamin Franklin, Alexander Hamilton and Thomas Jefferson would have loved to tweet their opinions as much as they loved to write for the newspapers of their day (sometimes under anonymous pseudonyms similar to today’s twitter user names). Those men, and countless soldiers in service to this nation, have risked their lives for our right to tweet or to post an article on Facebook; but that is not the same as arguing that those public tweets are protected. The Constitution gives you the right to post, but as numerous people have learned, there are still consequences for your public posts. What you give to the public belongs to the public. What you keep to yourself belongs only to you.

The full Opinion can be downloaded as a PDF here.

Published by Steve Gordon

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