the place where there is no darkness: privacy and protest in the age of social media

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The Place Where There is No Darkness:

Privacy and Protest in the Age of Social

Media

William Carius*

ABSTRACT

As social networks become increasingly intertwined with our daily lives,

the question has arisen of what to do when those networks are in posses-

sion of potentially incriminating or legally desirable information. This is

most obvious in cases where social networks, such as Twitter, are subpoe-

naed in relation to criminal offenses and asked to surrender the infor-

mation in their possession, as was done in the case of Occupy Wall Street.

Such issues are generally governed by the Stored Communications Act,

which is a subsection of the Electronic Communications Privacy Act. The

information obtained from Twitter is currently being used to prosecute ac-

cused members of the Occupy Wall Street movement, and the practice will

likely be put into further use going forward. This raises issues of privacy

and unfair prosecution in relation to social media, and whether the federal

and state governments may obtain the collective tweets of individual users,

which often contain GPS information (which the Supreme Court and vari-

ous courts in New York State have ruled requires a warrant). Twitter’s sur-

render of the collective GPS information of a user’s Twitter account is

analogous to allowing a GPS search without a warrant because the infor-

mation would enable an investigating party to track a user’s past move-

ments.

I. INTRODUCTION

In September of 2012, a New York City (NYC) criminal court ordered a subpoena forcing the social network Twitter to surrender thousands of tweets written by Malcolm Harris, the self-described instigator of the infa-mous “Brooklyn Bridge” protest by Occupy Wall Street.1 Harris had previ-

* The author wishes to thank his friends and family, without whom this paper would not

exist, and the talented staff of the NEJCCC, without whom this paper would not be publish-


136 CRIMINAL AND CIVIL CONFINEMENT [Vol. 40:135

ously attempted to intervene in order to quash the subpoena, and Twitter itself had withheld compliance with the order until the court made a deter-mination.2 The NYC court eventually ruled that Harris had no standing to

quash the subpoena and dismissed the privacy concerns posed by noting that any issues would be addressed during an in camera review.3

The court admitted that “[i]n recent years, social media has become one of the most prominent methods of exercising free speech, particularly in

countries that do not have very many freedoms at all.”4 However, the court seemed to ignore the potentially chilling effect on free speech that its ruling might cause, somewhat darkly noting that “[t]he Constitution gives you the right to post, but . . . there are still consequences for your public posts.”5

Spurred by such intersections between social media and criminal proce-

dure, this Note will address the deficiencies of current privacy law in rela-tion to social networking and the information stored by social network pro-viders. Part II will introduce the legal reasoning and statutory constructions of People v. Harris6 in more detail and explain the court’s logic in deter-mining that Harris lacked the standing to challenge the subpoena of his

tweets. Part III will discuss the history of privacy law and protection in America, from Warren and Brandeis’ influential article on the right to pri-vacy all the way through the Supreme Court’s ruling in Kyllo v. United

States.7 Part III will also specifically discuss the Supreme Court’s ruling against warrantless vehicular GPS transmitters in United States v. Jones.8 Part IV will argue that the subpoena is unconstitutional because some of

the information contained in the tweets is subject to a reasonable expecta-tion of privacy and could be used to track Harris’ movements over a period of several months. Part IV will also argue that the subpoena is against pub-lic policy because the Stored Communications Act on which it is founded is so outdated as to be entirely ineffective for its original purpose. Part V will conclude this Note.

able.

1. People v. Harris, 949 N.Y.S.2d 590, 591 (N.Y. Crim. Ct. 2012).

2. Id.; People v. Harris, 945 N.Y.S.2d 505, 506-07 (N.Y. Crim. Ct. 2012).

3. Harris, 945 N.Y.S.2d at 510-11.

4. Harris, 949 N.Y.S.2d at 597.

5. Id. at 597-98.

6. Harris, 945 N.Y.S.2d at 505.

7. Kyllo v. United States, 533 U.S. 27, 27 (2001).

8. United States v. Jones, 132 S. Ct. 945, 945 (2012).

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II. PEOPLE V. HARRIS: THE N.Y.C. COURT’S ANALYSIS

A. Harris’ Attempt to Quash the Subpoena (Harris I)

Malcolm Harris allegedly used Twitter to deceive an Occupy Wall Street protest into marching across the Brooklyn Bridge and was arrested and charged with disorderly conduct for taking part in that protest.9 The prose-cutor sought to obtain Harris’ Twitter records through a subpoena duces te-cum,10 specifically requesting his email address and tweets posted during

the period between September 15th, 2011 and December 31st, 2011.11 Twitter informed Harris that it had been subpoenaed, and Harris in turn in-formed Twitter that he intended to file a motion to quash the subpoena.12 Upon learning of Harris’ intent, Twitter’s officers opted to refuse to com-ply with the subpoena until the court had ruled on Harris’ motion.13

The NYC criminal court, Judge Matthew Sciarrino presiding, denied

Harris’ motion to quash.14 In the opinion, the court compared Twitter’s possession of Harris’ tweets to bank record cases in which other courts had held that an individual has no right to challenge a subpoena issued against a third-party bank.15 The court quoted the New York Supreme Court in say-

ing that “‘[b]ank records, although they reflect transactions between the bank and its customers, belong to the bank. The customer has no proprie-tary or possessory interests in them. Hence, he cannot preclude their pro-duction.’”16 However, the judge failed to distinguish between the relatively sterile contents of a set of bank records and the potentially much more re-vealing and exploitable contents of a collective tweet history.17 While bank

records may reveal a list of financial transactions, a person’s tweet history could include any number of otherwise undiscoverable impressions.18 The court determined that Harris had no proprietary interest in the user infor-mation of his Twitter account because the Twitter Terms of Service agree-ment (TOS) stated: “By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free

9. Harris, 945 N.Y.S.2d at 506; Malcolm Harris, I’m the Jerk Who Pranked Occupy

Wall Street, GAWKER.COM (Dec. 14, 2011, 3:30 PM), http://gawker.com/5868073.

10. “A subpoena ordering the witness to appear in court and to bring specified docu-

ments, records, or things.” BLACK’S LAW DICTIONARY 1563 (9th ed. 2009).

11. Harris, 945 N.Y.S.2d at 506.


13. Harris, 945 N.Y.S.2d at 506-07.

14. Id. at 511.

15. Id. at 507-08.

16. Id. at 508 (quoting People v. Doe, 467 N.Y.S.2d 45, 56 (N.Y. App. Div. 1983)).

17. Id.

18. Id.; see infra Part IV.A.2 (discussing the bank record analogy further).



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).”19

Because Harris had to agree to these terms, Twitter had a license to use, display, and distribute his tweets to anyone for any purpose it might pos-sess.20 However, the court then went on to say that Twitter’s license to use Harris’ tweets eliminated his ownership of the tweets entirely, and used this

peculiar misreading of the agreement to rule that Harris’ inability to pre-clude Twitter’s use of his tweets demonstrated a complete lack of proprie-tary interest in those same tweets.21

Harris had argued that he had standing to intervene because any judg-

ment that would allow the subpoenaed information to be released to the prosecution would bind him to the decision.22 The court rejected this argu-ment, drawing on precedent to determine that a party who seeks to inter-vene is only bound by a judgment when such judgment would constitute res judicata23 as against the applicant.24 It went on to determine that Harris would not be bound by res judicata in any ruling regarding the prosecu-

tion’s subpoena.25 The court reasoned that Harris could not be bound by any ruling that granted the production of information because he was not a party in the action between Twitter and the District Attorney’s Office, and was not in privity26 with any actual party in that action.27

Though it ruled that Harris himself had no standing to challenge the sub-

poena against Twitter as it had been issued, the court still decided to evalu-ate the order under the Unlawful Access to Stored Communications Act (SCA, or, alternatively, the Act), which governs the privacy of stored Inter-net communications in the United States.28 The court ruled that Twitter was an “electronic communication service provider” under the Act, which made

it subject to SCA compulsion orders.29 Finally, the court found that the

19. Harris, 945 N.Y.S.2d 507-08 (quoting Twitter Terms of Service, TWITTER.COM,

http://twitter.com/tos (last visited Apr. 2, 2013)).

20. Id.

21. Id.

22. Id. at 510; see N.Y. C.P.L.R. § 1012 (McKinney 2005).

23. “An issue that has been definitely settled by judicial decision.” BLACK’S LAW

DICTIONARY 1425 (9th ed. 2009).

24. Harris, 945 N.Y.S.2d at 510.

25. Id.

26. “The connection or relationship between two parties, each having a legally recog-

nized interest in the same subject matter (such as a transaction, proceeding, or piece of

property).” BLACK’S LAW DICTIONARY 1320 (9th ed. 2009).

27. Harris, 945 N.Y.S.2d at 510.

28. Id. at 511-12; see 18 U.S.C. § 2703(c)(2) (2009).

29. Harris, 945 N.Y.S.2d at 512.



prosecution made a factual showing constituting “specific and articulable facts showing that there are reasonable grounds to believe” that the sought after tweets were “relevant and material to any ongoing criminal investiga-

tion” because the information was sought to refute Harris’ anticipated de-fense.30 The court granted the subpoena and ordered Twitter to surrender the tweets and user information associated with Harris’ account.31 This or-der was unconstitutional because Harris had a reasonable expectation of privacy regarding much of the information included in his tweets.32

B. Twitter’s Attempt to Quash the Subpoena (Harris II)

After the criminal court denied Harris’ motion to quash the subpoena, Twitter stepped in and attempted to quash the subpoena itself.33 Twitter ar-gued against the court’s previous ruling that its users did not have standing to quash a disclosure order under the SCA.34 It also subsequently revised

its TOS agreement to include the phrase “You Retain Your Right To Any Content You Submit, Post Or Display On Or Through The Service,” in an attempt to undercut the court’s ruling that Twitter’s own TOS was respon-sible for the lack of user standing to intervene.35 Twitter also attempted to use the language of the SCA to show that the subpoena would saddle it with an unreasonable burden of production and was thus statutorily prohib-

ited by the Act.36 The court rejected this argument, reasoning that such a burden of production is placed on every third-party respondent to a sub-poena, and that such a burden could not be used to create standing for de-fendants where none had otherwise existed.37

Twitter also made reference to Justice Sotomayor’s famous musing that

“it may be necessary for the court to reconsider the premise that an individ-ual has no reasonable expectation of privacy in information voluntarily dis-closed to third parties.”38 The court rejected this notion almost immediate-ly, stating that tweets are not emails that have been sent to a single party, but are public communications broadcast to the world and are thus not enti-

30. Id. (quoting 18 U.S.C. § 2703(d) (internal quotation marks omitted)).

31. Id.

32. Infra Part IV.A.1.


34. Id. at 592-93.

35. Id. at 593 (quoting Twitter Terms of Service, TWITTER.COM, http://twitter.com/tos

[accessed by the court on June 11, 2012]).

36. 18 U.S.C. § 2703(d) (2009).

37. Harris, 949 N.Y.S.2d at 593.

38. Id. (quoting United States v. Jones, 132 S. Ct. 945, 957 (2012) (internal quotation

marks omitted)).



tled to any reasonable expectation of privacy.39

Twitter then challenged the validity of the subpoena, arguing that it was

unconstitutional under the Fourth Amendment.40 While the court consid-ered the rulings in United States v. Jones41 and in People v. Weaver,42 it distinguished these cases on physical intrusion grounds, something not in-herent in the surrender of electronic information.43 Because there was no physical intrusion and Harris had “purposely broadcast” his tweets to a

server 3,000 miles away, which then relayed them around the globe, he had no reasonable expectation of privacy in the first place.44 The court also re-lied on precedent from both the Supreme Court of the United States and the Appellate Division of the New York Supreme Court, which had ruled that the Fourth Amendment does not protect information disclosed by third par-ties45 and that Internet users do not retain a reasonable expectation of pri-

vacy,46 respectively.47 The court explained its reasoning by likening a tweet to screaming out of a window:

If you post a tweet, just like if you scream it out the window, there is no

reasonable expectation of privacy. There is no proprietary interest in

your tweets, which you have now gifted to the world. This is not the

same as a private email, a private direct message, a private chat, or any

of the other readily available ways to have a private conversation via the

internet that now exist. Those private dialogues would require a warrant

based on probable cause in order to access the relevant information.48

The court went on to note that Twitter had already entered into an agreement with the Library of Congress two years prior, which provided that every public tweet, stretching all the way back to Twitter’s creation, would be archived within the Library for historical preservation.49 It used this to further bolster its logic that an ordinary user has no reasonable ex-

39. Id. at 593.

40. Id.

41. Id.; Jones, 132 S. Ct. at 949 (holding that the government’s installation of a GPS

tracking device on a vehicle was a physical intrusion into a constitutionally protected area).

42. Harris, 949 N.Y.S.2d at 594; People v. Weaver, 909 N.E.2d 1195, 1202-03 (N.Y.

2009) (holding that a state police investigator’s placing a GPS tracking device inside de-

fendant’s vehicle was a physical intrusion into a protected area).

43. Harris, 949 N.Y.S.2d at 594.

44. Id.; Katz v. United States, 389 U.S. 347, 361 (1967); see Kyllo v. United States,

533 U.S. 27, 33 (2001).

45. United States v. Miller, 425 U.S. 435, 443 (1976).

46. Romano v. Steelcase Inc., 907 N.Y.S.2d 650, 655 (N.Y. Sup. Ct. 2010).

47. Harris, 949 N.Y.S.2d at 594.

48. Id.

49. Id.



pectation of privacy regarding his or her tweets, and that the court order mandating their disclosure was not in violation of any constitutional protec-tion.50

Curiously, the court ruled that certain tweets did require a warrant for the government to obtain them for use in prosecution.51 Section 2703 of the SCA mandates that, in order for the government to compel Twitter to dis-close the contents of communications in its possession that have been in

electronic storage for 180 days or less, it must obtain a search warrant.52 A single day’s worth of tweets from Harris’ account, those written on De-cember 31, 2011, had been in electronic storage for less than 180 days when the court issued its opinion.53 The government was thus required to obtain a warrant for these tweets.54 The rest of the information sought, in-cluding Harris’ tweets from September 15, 2011 to December 30, 2011,

was included in the court’s subpoena; no warrant was required.55

III. A BRIEF HISTORY OF PRIVACY AND TECHNOLOGY IN AMERICA

A. Emerging Technology and The Right to Privacy

Emerging technology has stirred controversy in the right to privacy for many years now.56 Samuel Warren was fresh from Harvard Law School when he married Mabel Bayard, daughter of the United States ambassador to Great Britain.57 The media decided that the matter belonged in the public eye and in the eye of newly-developed photographic technology, and began

following him and his family around Boston, even going so far as to snap pictures of his children in their prams.58 Outraged, Warren turned to his friend Louis Brandeis, still a young attorney and not yet a celebrated Su-preme Court Justice.59 The two men discussed the matter at length and be-gan work on one of the most influential writings in American legal scholar-ship: The Right to Privacy, an article that appeared in the Harvard Law

50. Id.

51. Id. at 593.

52. 18 U.S.C. § 2703(a) (2009); Harris, 949 N.Y.S.2d at 596-97.

53. Harris, 949 N.Y.S.2d at 596-97.

54. Id.

55. Id. The particular duality of this result will be addressed in a later section of this

Note. Infra Part V.A.2.

56. See generally Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4

HARV. L. REV. 193 (1890).

57. ALFRED LIEF, BRANDEIS: THE PERSONAL HISTORY OF AN AMERICAN IDEAL 51

(1971).

58. Id.

59. Id.



Review in December of 1890.60 In the article, Warren and Brandeis con-cluded that protection against “prurient” curiosity was a fundamental part of the “right to be let alone.”61 Prophetically, they expressed grave con-

cerns about potential abuses of technology if allowed to go unchecked by legal doctrine:

The intensity and complexity of life, attendant upon advancing civiliza-

tion, have rendered necessary some retreat from the world, and man,

under the refining influence of culture, has become more sensitive to

publicity, so that solitude and privacy have become more essential to

the individual; but modern enterprise and invention have, through inva-

sions upon his privacy, subjected him to mental pain and distress, far

greater than could be inflicted by mere bodily injury.62

Brandeis and Warren proposed that every member of the public has a fundamental right to be “let alone” in both tangible and intangible re-spects.63 They argued that the common law mandates that every person has a right to determine (under ordinary circumstances) how much of their thoughts, sentiments, and emotions would be communicated to others.64 Even if a person has chosen to give their thoughts and ideas public expres-

sion, they should still retain the right and power to fix the limits of what sort of publicity they might be given.65 The existence of such a right does not depend upon the nature or value of the thought or emotion in question, nor does it depend on the particular method of expression adopted or cho-sen.66 Warren and Brandeis admitted that the common law rights and pow-ers are lost upon the actual publication of the thought, emotion, or feeling,

but concluded that such protection was only a small part of the larger right of the individual to be let alone and to avoid any quality of being owned or possessed by another.67

The impact of the article was extraordinary.68 The principle Brandeis

and Warren had laid out—that technology’s impact on society and the indi-vidual should be evaluated by the courts as stringently and completely as possible—was adopted and used by the court system to analyze nearly eve-

60. Id.; LORI ANDREWS, I KNOW WHO YOU ARE AND I SAW WHAT YOU DID: SOCIAL

NETWORKS AND THE DEATH OF PRIVACY 49 (2012). See generally Warren & Brandeis, su-

pra note 56.

61. LIEF, supra note 57; Warren & Brandeis, supra note 56.

62. Warren & Brandeis, supra note 56, at 196.

63. Id.

64. Id. at 198.

65. Id. at 198-99.

66. Id.

67. Id. at 205.

68. ANDREWS, supra note 60.



ry new technology that came before it, from wiretapping phone booths to thermal investigation of people’s homes.69 Indeed, it is so influential that it has been cited in many of the most controversial privacy cases to come be-

fore the United States Supreme Court; first and foremost among them being Katz v. United States.70

B. Wiretapping Tech and Katz v. United States

Charlie Katz was an illegal bookie charged with eight counts of trans-

mitting wagering information by telephone from Los Angeles to Miami and Boston.71 FBI agents attached a listening-and-recording apparatus (a wire-tap) to the cable outside the public telephone booth from which Katz con-ducted his business and the government was permitted, over Katz’s objec-tion, to introduce those recordings at trial.72 Katz was convicted, and the Ninth Circuit Court of Appeals affirmed, reasoning that the recordings had

been obtained without any physical intrusion into the area which Katz oc-cupied (i.e. the inside of the telephone booth).73

The United States Supreme Court rejected the lower courts’ conclu-sion.74 It ruled that searches conducted without any prior approval by a

judge or a magistrate are per se unreasonable under the Fourth Amend-ment, subject only to a few very well-established and well-delineated ex-ceptions.75 The government argued that the activities of the FBI agents were not subject to Fourth Amendment analysis because the surveillance technique they used involved no physical penetration of the telephone booth from which Katz was calling.76 The Court responded that while it

was true that absence of physical penetration had once been thought to re-move such matters from Fourth Amendment inquiry, the concept that prop-erty interests control the right of the government to search and seize the People had long since been eliminated.77 The Court concluded that the fact that the wiretap had not actually penetrated the physical walls of the tele-phone booth had no constitutional significance whatsoever, and reversed

69. Id. See generally Katz v. United States, 389 U.S. 347 (1967); Kyllo v. United

States, 533 U.S. 27 (2001).

70. ANDREWS, supra note 60. See generally Katz, 389 U.S. at 347; United States v.

Jones, 132 S. Ct. 945 (2012); Kyllo, 533 U.S. at 27.

71. Katz, 389 U.S. at 348.

72. Id.

73. Id. at 348-49.

74. Id. at 357.

75. Id.

76. Id. at 352.

77. Id. at 353 (quoting Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 304

(1967)).



Katz’s conviction.78

C. Privacy in the Home and Superhuman Capacities

The Supreme Court also addressed privacy concerns in the much more recent case of Kyllo v. United States.79 Federal agents used thermal imag-ing equipment to map the heat patterns radiating from Danny Kyllo’s home in an attempt to determine if they were consistent with the high-intensity lights necessary for indoor marijuana cultivation.80 The agents determined

that this was indeed the case and, after obtaining a warrant from a magis-trate judge, searched Kyllo’s home and arrested him for manufacturing ma-rijuana.81 Kyllo attempted to suppress the evidence at trial but was unsuc-cessful and instead pled guilty to the charge.82 The Ninth Circuit had reservations about the intrusiveness of thermal imaging, and remanded the case to the district court, which determined that the devices were not intru-

sive because they did not show any people or activity within the walls of the home, only relative areas of heat radiation.83 The Ninth Circuit initially reversed this determination, but later withdrew its decision and issued a new opinion affirming the district court.84 It reasoned that Kyllo had no subjective expectation of privacy because he had made no attempt to pre-vent the heat from escaping his home and because the thermal imager did

not expose any intimate details of the activity within.85

The Supreme Court reversed the decision, holding that where the gov-ernment makes use of a device, not otherwise in general public use, to ex-plore details of a person’s home that would have remained unknowable

without any physical intrusion, the surveillance constitutes a search and is per se unreasonable without a warrant.86 The Court concluded that to with-draw the protection of a minimum expectation of privacy in private resi-dences would allow the advancement of police technology to chip away at the foundations of the Fourth Amendment.87

The Court specifically noted the importance of the fact that the camera

78. Id. (“Once it is recognized that the Fourth Amendment protects people—and not

simply ‘areas’—against unreasonable searches and seizures it becomes clear that the reach

of that Amendment cannot turn upon the presence or absence of a physical intrusion into

any given enclosure.”).

79. Kyllo v. United States, 533 U.S. 27, 27 (2001).

80. Id. at 29.

81. Id.; see 21 U.S.C. § 841(a)(1) (2010).

82. Kyllo, 533 U.S. at 29.

83. Id.

84. Id.

85. Id.

86. Id. at 40.

87. Id. at 34.



constituted “sense-enhancing” technology.88 The government argued that the thermal imaging surveillance should be allowed because it only detect-ed the heat radiating from the external surfaces of Kyllo’s home.89 The

Court dismissed this “mechanical” argument, comparing a thermal imager to a satellite system capable of scanning a house and its surroundings from many miles away.90

D. The Supreme Court and United States v. Jones

Perhaps the most famous recent privacy case to go before the Supreme Court is that of Antoine Jones, who was suspected by police of narcotics trafficking.91 Police obtained a warrant to attach a GPS tracking device to the undercarriage of a Jeep registered to Jones’s wife.92 The warrant specif-ically authorized the attachment of the unit in the District of Columbia and specified that the procedure be performed within ten days of issuance.93

The police proceeded to install the device on the eleventh day and did so in Maryland rather than in the District of Columbia.94 They then tracked the vehicle’s movements for twenty-eight days, and eventually secured a multi-count indictment charging Jones (and several co-conspirators) with con-spiracy to distribute and possess with intent to distribute narcotics.95 While the first trial ended in a hung jury, a second jury convicted Jones of these

charges, and he was sentenced to life in prison.96

The Supreme Court reversed the conviction partly on the ground that the police had violated the terms of the warrant by waiting too long and leaving the jurisdiction in which they were originally to plant the device.97 Howev-

er, the Court was more principally concerned with the “reasonable expecta-tion of privacy” that it felt is inherent in American society.98 The Court de-fined the “reasonable expectation” as “an expectation ‘that has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permit-ted by society.’”99

88. Id.

89. Id. at 35.

90. Id.


92. Id.

93. Id.

94. Id.

95. Id.

96. Id. at 949.

97. Id. at 948 n.1, 964 n.11.

98. Id. at 951.

99. Id. (quoting Minnesota v. Carter, 525 U.S. 83, 88 (1998)).



However, while the Court raised issues of privacy, it did not deviate from its precedent that the Fourth Amendment protects only against unrea-sonable physical intrusion upon a citizen’s privacy,100 nor did it diverge

from the idea that information voluntarily disclosed to the public (as the government argued Jones had done when he drove in broad daylight) is not subject to a reasonable expectation of privacy.101 But Justice Sotomayor, addressing the issue of searches that do not involve physical contact, criti-cized the majority for discussing only physical intrusions and stated that “it may be necessary to reconsider the premise that an individual has no rea-

sonable expectation of privacy in information voluntarily disclosed to third parties.”102

IV. ARGUMENT

A. Occupy Wall Street and the Twitterverse

1. Compelling the Surrender of Tweets Without a Warrant is Unconstitutional Because it Violates a Reasonable Expectation

of Privacy

It is unconstitutional for a court to compel the disclosure of tweets with-out a warrant because Twitter collects enough metadata with every tweet to make it possible to track the user’s location in a manner analogous to a GPS unit.103 Twitter records the Internet Protocol address (IP address) of every tweet written; that information can be used to determine where a

computer or mobile device and its user are located when the unit is con-nected to the Internet.104 Because a user would not expect the information to be displayed to the public (tweets do not publicly display the IP address-es from which they originate), he or she thus has a reasonable expectation of privacy regarding the various locations that can be recorded with the use of IP address tracking.

If a police officer is in possession of an IP address, it is a relatively sim-ple matter to use public databases, such as the American Registry for Inter-

100. Id. at 949, 952.

101. Id. at 951-52.

102. Id. at 957, 962.

103. Memorandum of Amici Curiae in Support of Non-Party Twitter, Inc.’s Motion to

Quash § 2703(d) Order at 16, People v. Harris, 949 N.Y.S.2d 590, 594 (N.Y. Crim. Ct.

2012) (No. 2011NY080152); Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 409 (2d Cir.

2004); Twitter Privacy Policy, TWITTER, http://twitter.com/privacy (last visited Nov. 12,

2013).


Quash § 2703(d) Order, supra note 103, at 3 & n.2.



net Numbers, to determine where the user of that IP address is located.105 If the government were able to obtain the IP address records for a user’s tweets over a several month period, it would provide such a complete pic-

ture of his or her movements that it would amount to nearly continuous tracking, similar to the case in United States v. Jones.106 However, unlike in Jones, Harris and other Twitter users have a reasonable expectation of privacy because the act of tweeting does not disclose the IP address of the user (and thus the location of the user) to the public eye.107 In Jones, as in many other Supreme Court cases, the Court reaffirmed its rule that individ-

uals do not have a reasonable expectation of privacy in an automobile be-cause the location of the vehicle is disclosed to the public simply by the act of driving.108 This is not the case in People v. Harris because the IP ad-dress from which the tweets originate is not visible to the public, nor would a user expect it to be publicly visible.109 Indeed, Twitter users are convey-ing the information to Twitter with the expectation that the information will

not be publicly available.110

The Harris I court relied on the Second Circuit’s ruling in United States

v. Lifshitz that “individuals do not have a reasonable expectation of privacy in internet postings or e-mails that have reached their recipients.”111 But the

court ignored the fact that Lifshitz involved a federal probationer whose ex-pectation of privacy was already reduced as a result of his situation.112 Nor did Lifshitz involve information that would not ordinarily be disclosed to the public that could be used to track a user’s movements over a period of many months.113 The court also analogized posting a tweet to screaming the same message out of a window.114 It reasoned that because the person

yelling out of a window is disclosing the message to the world, and because a publicly viewable tweet discloses a message to anyone who chooses to see it, there is no reasonable expectation of privacy regarding whatever message a tweet may contain.115 The Harris I court even noted that Twitter

105. Sony Music Entm’t Inc. v. Does 1-40, 326 F. Supp. 2d 556, 567 (S.D.N.Y. 2004)

(detailing the ease with which public databases can be used to look up at least the “general

location” associated with a given IP address).



Quash § 2703(d) Order, supra note 103, at 16; Twitter Privacy Policy, supra note 103.

108. Jones, 132 S. Ct. at 951-52; United States v. Knotts, 460 U.S. 276, 281 (1983).

109. Twitter Privacy Policy, supra note 103.

110. Id.


112. United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004).

113. Id.

114. People v. Harris, 949 N.Y.S.2d 590, 594-96 (N.Y. Crim. Ct. 2012).

115. Id.



had signed an agreement with the Library of Congress in 2010 allowing every publicly viewable tweet to be archived by the library for historical preservation.116 But the court failed to distinguish the fact that while a mes-

sage yelled out of a window is a finite event and has a finite lifespan, the nature of the Internet causes a tweet to exist in perpetuity.117 In a situation where the source of a message yells it out of a window, depending on the time and circumstances, no one may even hear the message or know who said it, but a tweet exists for a much longer and more indefinite period of time;118 even if a user deletes an individual tweet, it can be exhumed

through the use of publicly-available search engines designed specifically for that purpose.119 This would indicate that a tweet is not analogous to a public shout because of its prolonged lifespan and suggests that tweets ought to be entitled to greater protection and a greater expectation of priva-cy because they can be revived, potentially years in the future, for use in criminal prosecution.120

Finally, the Harris I court ruled that because there was no physical intru-sion into Harris’ Twitter account, he was not protected by the Fourth Amendment’s prohibition on unreasonable search and seizure of persons, houses, papers, or effects.121 In Katz, the Supreme Court held that an elec-

tronic form of surveillance which involved no physical intrusion was of no constitutional significance.122 The Harris I court addressed this on the basis that Katz only applies if the government violated a subjective expectation of privacy that society recognizes as reasonable.123 However, as previously established, Harris and other Twitter users do have a reasonable expecta-tion of privacy regarding the IP addresses from which their tweets origi-

nate.124 The IP addresses are not disclosed to the general public and are not ordinarily available to anyone other than Twitter itself.125 Because of this, the Katz rule preventing unreasonable searches by electronic means where there is a reasonable expectation of privacy, and the court’s order granting the subpoena of Harris’ tweets was both unreasonable and unconstitutional.

116. Id.; see Matt Raymond, How Tweet It Is!: Library Acquires Entire Twitter Ar-

chive, LIBRARY OF CONG. (Apr. 14, 2010), http://blogs.loc.gov/loc/2010/04/how-tweet-it-is-

library-acquires-entire-twitter-archive/.

117. Harris, 949 N.Y.S.2d at 594-96.

118. Id. at 595-96.

119. Id.

120. See Raymond, supra note 116.

121. Harris, 945 N.Y.S.2d at 508-10.

122. Katz v. United States, 389 U.S. 347, 353 (1967).

123. Harris, 945 N.Y.S.2d at 509-11.

124. See supra Part IV.A.1.

125. Id.



2. The Court’s Ruling That Harris Has No Standing, Because He Does Not Own His Tweets, is Invalid

As stated previously,126 the court in Harris I ruled that Harris had no

standing to quash the subpoena because “Twitter’s license to use the de-fendant’s Tweets means that the Tweets the defendant posted were not his. The defendant’s inability to preclude Twitter’s use of his Tweets demon-strates a lack of proprietary interests in his Tweets.”127 However, Twitter’s own TOS includes a clause that reads as follows: “By submitting, posting or displaying Content on or through the Services, you grant us a world-

wide, 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).”128

Nowhere in the TOS is there mention of a user surrendering ownership

of his or her tweets entirely; the TOS agreement simply stipulates that Twitter may reproduce and utilize any given user’s tweets as it sees fit.129 The court interpreted this clause to mean that Harris had absolutely no pro-prietary interest in his tweets and used that line of reasoning to determine that he had no standing to challenge the subpoena for the information to be used against him.130 The court did not detail how it made the leap from

“non-exclusive license” to “no proprietary interest.”131

Instead, the United States Supreme Court has held that those whose con-stitutional rights are threatened by a warrantless government request for in-formation from a third party have standing to challenge that request.132 In

Rakas v. Illinois, the Court held that the defendants had no standing to chal-lenge the seizure of contraband items in their vehicle because they had not

asserted a property or possessory interest in the items themselves.133 The Appellate Division of the New York Supreme Court held in People v. Laws that the Rakas rule applies under the New York Constitution.134 As stated previously, the Harris I court ruled that Harris had no proprietary interest

126. See supra Part II.A.

127. Harris, 945 N.Y.S.2d at 508.

128. Twitter Terms of Service, TWITTER, http://twitter.com/tos (last visited Apr. 3,

2013).

129. Id.

130. Harris, 945 N.Y.S.2d at 508.

131. Id.


Quash §2703(d) Order, supra note 103, at 6 (citing Eastland v. United States Servicemen’s

Fund, 421 U.S. 491, 501 n.14 (1975)); Perlman v. United States, 247 U.S. 7, 12-13 (1918)

(allowing an individual to bring constitutional objections to the disclosure of documents by

a third party).

133. Rakas v. Illinois, 439 U.S. 128, 148 (1978).

134. People v. Laws, 623 N.Y.S.2d 216, 218 (N.Y. App. Div. 1995).



in his tweets because it conflated “non-exclusive license” and “no proprie-tary interest,” but did not explain how it arrived at the conclusion that the two were the same.135

Instead, the court analogized the tweets to transactional records held in the possession of a bank, reasoning that since bank records are considered to be business records, tweets should be considered to be the same.136 The court quoted People v. Doe, ruling that “[b]ank records, although they re-

flect transactions between the bank and its customers, belong to the bank. The customer has no proprietary or possessory interests in them. Hence, he cannot preclude their production.”137 But the court neglected to consider the fact that, unlike bank records, tweets do not reflect only transactions be-tween Twitter and its users.138 Tweets are not simply the transactions of money between accounts, but contain information such as IP addresses, us-

ers’ browser types, operating system data, referring webpages, locations, pages visited, mobile carriers (if the system is accessed from a mobile de-vice), device and application IDs, and search terms, to say nothing of the actual content of the tweets themselves.139 Because tweets include infor-mation that would allow a government agency to track the movements of a criminal defendant (or other citizen) retroactively, they are analogous to the

“private papers” referred to by the United States Supreme Court in United

States v. Miller,140 on which the Harris I court relied. While it is arguable that the contents of the tweets themselves are not private information,141 the IP addresses and bundled location information are private, shared only with Twitter and its employees, and exist under limited statutory over-sight.142 In contrast, bank records are under very strict statutory over-

sight;143 the Bank Secrecy Act exists solely “to require the maintenance of records which will later be available for examination by the Government in ‘criminal, tax, or regulatory investigations or proceedings.’”144 Thus, be-cause there is no statutory justification for a ruling that Harris has no pro-

135. Harris, 945 N.Y.S.2d at 508.

136. Id. (citing United States v. Miller, 425 U.S. 435 (1976); People v. Doe, 467

N.Y.S.2d 45, 46 (N.Y. App. Div. 1983)).

137. Harris, 945 N.Y.S.2d at 508 (quoting Doe, 467 N.Y.S.2d at 46).

138. Id.

139. Twitter Privacy Policy, supra note 103.

140. Miller, 425 U.S. at 440 (holding that a bank depositor had no protectable Fourth

Amendment interest in bank records maintained under the Bank Secrecy Act and obtained

by subpoenas).

141. See infra Part IV.B.2 (discussing whether tweets are private information).

142. Twitter Privacy Policy, supra note 103; Harris, 945 N.Y.S.2d at 511.

143. 12 U.S.C. §§ 1829b(a)(2), 1951(b) (2004).

144. California Bankers Ass’n v. Shultz, 416 U.S. 21, 94 (1974) (Marshall, J., dissent-

ing) (quoting 12 U.S.C. §§ 1829b(a)(2), 1951(b)).



prietary interest in his tweets, and because the Harris I court did not pro-vide any alternative reasoning for discounting his possessory and proprie-tary interests,145 the court’s conclusion must fail.

3. The Court’s Reliance on the SCA is Invalid Because the SCA Itself is so Outdated That Using it to Obtain Information is Unconstitutional

The SCA was first drafted in 1986 as part of the Electronic Communica-

tions Privacy Act, and has been altered very little with regard to the devel-opment of social networks.146 In fact, the last time the SCA was amended, Facebook was barely in its infancy and Twitter had not yet even been founded.147 When the law was first written, a single gigabyte’s worth of storage would have occupied a football field sized room; such storage was generally available only to the largest and wealthiest universities and tech-

nical schools.148 Now, a gigabyte-sized flash drive unit is no larger than a postage stamp and can be purchased for only a few dollars.149 The electron-ic world has changed considerably since the SCA was passed.

In granting the subpoena against Twitter, the Harris II court was bound

by the SCA’s stricture150 that any communication in Twitter’s possession aged 180 days or less could only be acquired by obtaining a warrant.151 This requirement is likely a remnant of the Fourth Amendment’s “aban-donment doctrine” where abandoning property results in a forfeit of Fourth Amendment protection for that property.152 In that case, the drafters of the Act may have opted to treat communications that had not been accessed for

more than 180 days as abandoned property.153 But in the case of Twitter or Facebook communications, which are part of an active and constantly growing social profile, it is illogical to consider the information abandoned

145. Harris, 945 N.Y.S.2d at 508.

146. See Electronic Communications Privacy Act of 1986, Pub. L. No. 99–508, 100

Stat. 1848 (2006).

147. Violence Against Women and Department of Justice Reauthorization Act of 2005,

Pub. L. No. 109-162, 119 Stat. 2987 (2005) (enacted).

148. Rex Farrance, Timeline: 50 Years of Hard Drives, PCWORLD.COM (Sept. 13,

2006, 12:00 AM), http://www.pcworld.com/article/127105/article.html.

149. R. Kayne, What is the Difference Between Flash Memory and Hard Drive?,

WISEGEEK (Oct. 7, 2013), http://www.wisegeek.com/what-is-the-difference-between-flash-

memory-and-a-hard-drive.htm.

150. 18 U.S.C. § 2703(a) (2012).


152. Ilana R. Kattan, Cloudy Privacy Protections: Why the Stored Communications Act

Fails to Protect the Privacy of Communications Stored in the Cloud, 13 VAND. J. ENT. &

TECH. L. 617, 641 (2011).

153. Id.



because it is associated with its creator in perpetuity, unlike physical prop-erty. Because of the now greatly-advanced storage capabilities to which so-cial networks have access, a user’s entries and posts can easily follow him

or her around for months or even years.154 Users expect that their infor-mation will be just as protected on Day 181 as it was on Day 179, and the distinction is arbitrary given the current state of technological storage and communication.155 What difference does it make, should it make, whether a tweet is 179 days old or 181 days old? Why should the tweet that is two days older receive less protection simply on that criterion alone? In Harris

II, the court granted the subpoena for all of Harris’s tweets from September 15, 2011, until December 30, 2011.156 But the court declined to grant a subpoena for the tweets from December 31, 2011, the very last day sought, because such a grant was prohibited by the SCA.157 The tweets thus had to be obtained through use of a warrant.158

Because the SCA allows police and prosecutors to obtain information for

which there is a reasonable expectation of privacy without a warrant,159 its 180-Day Rule160 is constitutionally impermissible and should either be re-drafted or eliminated entirely to prevent irreparable harm to the users of so-cial networks. The rule is arbitrary and premised on a doctrine that does not

apply to the matter at hand;161 it reduces the protection on what should be constitutionally-protected material considerably in instances where the age of such material might vary by as little as twenty-four hours.162

154. ECPA Reform and the Revolution in Cloud Computing: Hearing Before the Sub-

comm. on the Constitution, Civil Rights, & Civil Liberties of the H. Comm. on the Judiciary,

111th Cong. 118 (2010) (statement of Marc J. Zwillinger, Partner, Zwillinger Genetski LLP)

(stating the SCA was based on the assumption that users download their emails to their

computers, whereas now emails typically remain on the server after being read by the recip-

ient).

155. Id.; Kattan, supra note 152, at 462.

156. Harris, 949 N.Y.S.2d at 596.

157. Id.

158. Id.


160. 18 U.S.C. § 2703(a) (2012).

161. Kattan, supra note 152, at 641.

162. Harris, 949 N.Y.S.2d at 596.



B. A New Kind of Privacy

1. Even if the Subpoena is Constitutional, Compelling the

Disclosure of the Tweets is Against Public Policy Because the Practice of Obtaining Stored Communications Without a Warrant is Founded on the SCA, Which is so Outdated that it is No Longer Statutorily Useful and Must be Redrafted

Because the SCA is constitutionally deficient, it cannot be allowed to

remain in its current form.163 But before we can consider how best to revise it, we must consider its current language. Section 2701 of the SCA (the first section of the Act) reads as follows:

(a) Offense.—Except as provided in subsection (c) of this section who-

ever—

(1) intentionally accesses without authorization a facility through

which an electronic communication service is provided; or

(2) intentionally exceeds an authorization to access that facility;

and thereby obtains, alters, or prevents authorized access to a wire

or electronic communication while it is in electronic storage in

such system shall be punished as provided in subsection (b) of this

section.

(b) Punishment.—The punishment for an offense under subsection (a)

of this section is—

(1) if the offense is committed for purposes of commercial ad-

vantage, malicious destruction or damage, or private commercial

gain, or in furtherance of any criminal or tortious act in violation

of the Constitution or laws of the United States or any State—

(A) a fine under this title or imprisonment for not more than

5 years, or both, in the case of a first offense under this sub-

paragraph; and

(B) a fine under this title or imprisonment for not more than

10 years, or both, for any subsequent offense under this sub-

paragraph; and

(2) in any other case—

(A) a fine under this title or imprisonment for not more than

1 year or both, in the case of a first offense under this para-

graph; and

(B) a fine under this title or imprisonment for not more than




5 years, or both, in the case of an offense under this subpara-

graph that occurs after a conviction of another offense under

this section.

(c) Exceptions.—Subsection (a) of this section does not apply with re-

spect to conduct authorized—

(1) by the person or entity providing a wire or electronic commu-

nications service;

(2) by a user of that service with respect to a communication of or

intended for that user; or

(3) in section 2703, 2704 or 2518 of this title.164

As discussed previously,165 the SCA was drafted and enacted by Con-gress in 1986 as a subsection of the Electronic Communications Privacy Act.166 It was most recently amended in 2006,167 when social networking as we know it was still in its infancy. The Harris II court also made use of other statutory sections,168 namely the Required Disclosure of Customer

Communications or Records provision of the Act, which contains the 180-Day Rule and of which sections (a) and (d) are reproduced below:

(a) Contents of wire or electronic communications in electronic

storage.—A governmental entity may require the disclosure by a pro-

vider of electronic communication service of the contents of a wire or

electronic communication, that is in electronic storage in an electronic

communications system for one hundred and eighty days or less, only

pursuant to a warrant issued using the procedures described in the Fed-

eral Rules of Criminal Procedure (or, in the case of a State court, issued

using State warrant procedures) by a court of competent jurisdiction. A

governmental entity may require the disclosure by a provider of elec-

tronic communications services of the contents of a wire or electronic

communication that has been in electronic storage in an electronic

communications system for more than one hundred and eighty days by

the means available under subsection (b) of this section.

(d) Requirements for court order.—A court order for disclosure un-

der subsection (b) or (c) may be issued by any court that is a court of

competent jurisdiction and shall issue only if the governmental entity of-

164. 18 U.S.C. § 2701 (2012).


166. Electronic Communications Privacy Act of 1986, Pub. L. No. 99–508, 100 Stat.

1848 (2006).

167. Violence Against Women and Department of Justice Reauthorization Act of 2005,

Pub. L. No. 109-162, 119 Stat. 2987 (2005) (enacted).




fers specific and articulable facts showing that there are reasonable

grounds to believe that the contents of a wire or electronic communica-

tion, or the records or other information sought, are relevant and mate-

rial to an ongoing criminal investigation. In the case of a State govern-

mental authority, such a court order shall not issue if prohibited by the

law of such State. 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 volu-

minous in nature or compliance with such order otherwise would cause

an undue burden on such provider.169

Professor Lori Andrews has proposed an entire constitution for govern-ing commercial and governmental use of the Internet,170 and while her work is too ambitious for this Note, one of the provisions of her Social Network Constitution is useful for re-drafting portions of the SCA:

Evidence from social networks may only be collected for introduction

in a criminal trial if there is probable cause and a warrant has been is-

sued. . .Evidence from social networks may only be introduced at trial if

it is directly relevant to the crime or civil action charged and the proba-

tive value outweighs the prejudicial value, the evidence is relevant, the

evidence is properly authenticated, and the evidence otherwise complies

with all rules of civil and criminal procedure.171

Utilizing these principles, we can redraft sections (a) and (c) of the SCA itself as follows (added or altered sections are presented in italics):

(a) Offense – Except as provided in subsection (c) of this section, who-

ever –

1. intentionally accesses without authorization a facility through

which an electronic communication service is provided; or

2. intentionally exceeds an authorization to access that facility;

and thereby obtains, alters, copies, or destroys information con-

tained therein, or prevents authorized access to a wire or electron-

ic communication while it is in electronic storage in such system

shall be punished as provided in subsection (b) of this section.

(c) Exceptions – Subsection (a) of this section does not apply with re-

spect to conduct authorized –

1. by person or entity providing a wire or electronic communica-

tion service so long as there is permission given by the appropri-

ate and relevant user;

169. 18 U.S.C. § 2703 (2012) (emphasis added).

170. ANDREWS, supra note 60, at 188-91.

171. Id. at 190.



2. by a user of that service with respect to a communication of or

intended for that user; or

3. in section 2703, 2704, or 2518 of this title;

4. nor shall any contractual obligation be read to as a surrender

of a user’s proprietary rights in any and all communications of or

intended for him or her.

Additionally, using these same principles, we can revise sections (a) and (d) of the Required Disclosure of Customer Communications or Records provisions as follows:

(a) Contents of wire or electronic communications in electronic

storage. – A governmental entity may require the disclosure by a pro-

vider of electronic communication service of the contents of a wire or

electronic communication, only pursuant to a warrant issued using the

procedures described in the Federal Rules of Criminal Procedure (or,

in the case of a State court, issued using State warrant procedures) by a

court of competent jurisdiction [the 180-Day Rule has been eliminated

here; all disclosures now require a warrant].

(d) Requirements for court order – A court order for disclosure under

subsection (b) or (c) may be issued by any court that is a court of com-

petent jurisdiction, and shall issue only if the governmental entity can

prove by a preponderance of evidence that is has probable cause to

warrant the seizure of such information, and offers specific and articu-

lable facts to prove that the information sought is relevant and material

to an ongoing criminal investigation. In the case of a State governmen-

tal authority, such a warrant shall not issue if prohibited by the law of

such State. A court issuing a warrant pursuant to this section, on motion

made promptly by the service provider, may quash or modify such a

warrant, if the information or records requested are unusually volumi-

nous in nature or compliance with such order otherwise would cause an

undue burden on such provider. Additionally, a court issuing a warrant

pursuant to this section, on motion made promptly by the user whose in-

formation or communications are sought, may quash or modify such a

warrant if the information sought would constitute a surrender of in-

formation that could not be gained by a member of the general public

without the use of advanced technologies not available to said public.

2. Allowing the Use of the Content of Tweets in Criminal

Prosecutions Will Chill Free Speech Nationwide

If the content of tweets were available for use in criminal prosecutions without a warrant, the chilling effect on national free speech would be mas-



sive.172 The entire democratic process is dependent upon the free expres-sion of ideas and opinions, a fact the Founding Fathers recognized in draft-ing the First Amendment.173

The sheer size and volume of the information collected and stored by so-cial networks, like Facebook and Twitter, provides a tremendous incentive for federal and state law enforcement officials to seek the use of that infor-mation in criminal prosecutions.174 For example, if Facebook were a physi-

cal nation, its 800 million users would make it the third largest on Earth.175 Facebook has at least some personal information regarding every one of its users in addition to their social records.176 There is little reason why Face-book might not receive a subpoena, much like that sent to Twitter, and be compelled by a court to surrender information for use in criminal prosecu-tion.177 While arguably desirable or even necessary in some cases, overuse

or abuse of this power by courts could effectively invalidate many of the protections that the First and Fourth Amendments are meant to provide.178

But even more unsettling than the use of the personal information that social networks store is the use of the content of tweets and Facebook posts

itself.179 Professor Robert Post has argued that the First Amendment ought to be interpreted such that it ensures free participation in the forum of pub-lic opinion.180 Professor Daniel Solove has noted that “the government can readily use subpoenas to gather information pertaining to communications, writings, and the consumption of ideas.”181 Various courts have concluded that this information gathering indirectly chills free speech in various con-

texts because it allows surveillance of political activities, identification of

172. DANIEL J. SOLOVE, NOTHING TO HIDE: THE FALSE TRADEOFF BETWEEN PRIVACY

AND SECURITY 146 (2011).

173. Id.

174. Id. at 149; REBECCA MACKINNON, CONSENT OF THE NETWORKED: THE

WORLDWIDE STRUGGLE FOR INTERNET FREEDOM 146 (2012); Christopher Slobogin, Is the

Fourth Amendment Relevant in the Technological Age?, in CONSTITUTION 3.0: FREEDOM

AND TECHNOLOGICAL CHANGE 18 (Jeffrey Rosen & Benjamin Wittes eds., 2011); Jack M.

Balkin, The Constitution in the National Surveillance State, in THE CONSTITUTION IN 2020,

198 (Jack M. Balkin & Reva B. Siegel eds., 2009).

175. ANDREWS, supra note 60, at 1.

176. Facebook Terms of Service, FACEBOOK, http://www.facebook.com/legal/terms

(last visited Apr. 2, 2013).

177. SOLOVE, supra note 172, at 165.

178. Id. at 93.


180. Robert C. Post, A Progressive Perspective on Freedom of Speech, in THE

CONSTITUTION IN 2020, 198 (Jack M. Balkin & Reva B. Siegel eds., 2009).

181. SOLOVE, supra note 172, at 149 (citing Fisher v. United States, 425 U.S. 391, 397

(1976)) (holding that use of a subpoena to obtain records from a third party does not violate

the Fifth Amendment privilege of the person under investigation).



anonymous speakers, prevention of the anonymous consumption of ideas, discovery of associational ties to political groups, and enforcement of sub-poenas to the press or to third parties about reading habits, speech, and ex-

pression of ideas.182 Why should the content-based use of tweets and Face-book posts (or any other submission to a social network) be regarded any differently?183 There is mounting concern that the Internet is home to in-flammatory and unregulated speech that encourages mob rule and threatens the reasoned discourse considered pivotal to a functioning democracy.184 Professor Lawrence Lessig once said of the Internet that “[i]f there was a

meme that ruled talk about cyberspace, it was that cyberspace was a place that could not be regulated.”185

But there is a danger that cyberspace can be regulated through the use of content-based criminal prosecutions.186 Internet companies like Google,

Facebook, and Twitter are facing global pressure to track what their users are doing such that those users can be prosecuted or cut off from the ser-vice if they do anything illegal or objectionable.187 Even without an actual prosecution, the looming threat of an arrest or criminal investigation might be enough to prevent many people from speaking freely.188

Because of the potential damage that a content-based prosecution might

do—not only to a criminal defendant but also to the public forum as a whole—there must be safeguards (such as the proposed redrafting of the SCA)189 and restrictions in place to prevent the abuse of information gath-ering and limit the use of expressive content.190 Free expression encourages

societal discussion.191 By communicating their likes and dislikes, members of the populace can determine their priorities and work to change the con-

182. Id. at 150-51 (citing White v. Davis, 533 P.2d 222, 226-27 (Cal. 1975)) (“[T]he

presence in a university classroom of undercover officers taking notes to be preserved in

police dossiers must inevitably inhibit the exercise of free speech both by professors and

students.”); A Grand Jury Witness v. United States (In re Grand Jury Proceedings), 776 F.2d

1099, 1102-03 (2d Cir. 1985) (reiterating the “well established” standard that government

interests must be “compelling” and “sufficiently important to outweigh the possibility of

infringement” when a grand jury subpoena would implicate First Amendment rights).

183. ANDREWS, supra note 60, at 76; MACKINNON, supra note 174, at 88; Slobogin,

supra note 174, at 18.

184. MACKINNON, supra note 174, at 88.

185. LAWRENCE LESSIG, CODE VERSION 2.0, 31 (2006).

186. ANDREWS, supra note 60, at 76; MACKINNON, supra note 174, at 90-91; Slobogin,

supra note 174, at 18; Balkin, supra note 174, at 198.

187. MACKINNON, supra note 174, at 93.


189. See supra Part IV.B.1.





ditions of social institutions that they find to be in need of repair.192

V. CONCLUSION

It is unconstitutional to obtain tweets for use in criminal prosecution without a warrant because the bundled IP address information and other metadata is subject to a reasonable expectation of privacy by Twitter’s us-ers.193 That bundled metadata could be used by law enforcement officials to track a user’s movements over a period of several months in a manner

analogous to United States v. Jones.194 Even if the search is constitutional as a matter of Fourth Amendment jurisprudence, allowing the disclosure without the safeguards of a probable cause standard is unconstitutional be-cause the SCA on which the search is premised on is so outdated.195 Final-ly, assuming that the search is constitutional in spite of these defects, al-lowing the search without a warrant is against public policy because of the

potentially destructive effects on free speech nationwide.196

192. Id.


194. United States v. Jones, 132 S. Ct. 945 (2012).


196. See supra Part IV.B.2.

the place where there is no darkness: privacy and protest in the age of social media

Documents