In our recent post, Can the Court Force You to Turn Over Your Facebook Account? The Short Answer. Yes, we discussed how courts around the country have been ordering parties to turn over social media accounts during litigation.  In an update to the Occupy Wall Street Protest cases, the New York Times (Twitter Turns Over User’s Messages in Occupy Wall Street Protest Case) reported that Judge Matthew Sciarrino Jr., of the Criminal Court in Manhattan, ordered Twitter to turn over a stack of tweets written by an arrested Occupy Wall Street protester, Malcolm Harris.  The Manhattan prosecutor sought discovery of the tweets in an effort to defeat an argument the defendant is expected to make at his criminal trial for disorderly conduct. 

There are some interesting lessons to learn from this ruling.  First, if you intend to subpoena social media records, it might take a very long time to actually obtain them.  The prosecution issued the subpoena in January 2012 – so it took nine months for Twitter to turn over the posts – and the prosecution still does not have them.  Second, if you seek information from a social media site, you should be ready to respond to a host of motions to quash your subpoena by both the social media site and the opposing party.  Both Twitter and the defendant unsuccessfully moved to quash the subpoena in this case.  Third, you may need to look at the social media site’s Terms of Use when determining whether you (as a litigant and social media user) have the right to object to the subpoena.  In this case, the court ruled that Defendant Harris did not have standing to object to the subpoena because the Terms of Use gave sole “proprietary interest” in the messages to Twitter, not the defendant.  (For a good discussion of the procedural aspects of the case, see, the Wall Street Journal’s piece, Twitter Turns Over Occupy Wall Street Tweets).

Finally, the ruling also touched on the ever-present privacy issue.  How did Judge Sciarrino handle the issue of social media privacy versus access to information?  Well, the judge sealed the messages in his chambers until a hearing on the order requiring disclosure.  If Mr. Harris loses his challenge, then Judge Sciarrino held that he would personally review each message, and only turn over to the prosecutor the relevant Tweets.   Judge Sciarrino also stated that “once the material was broadcast, it was no longer a private record”, mirroring many of the judicial conclusions that once information is put out on the web, privacy rights seriously decline.

Whether the litigation is criminal or civil, this case exemplifies how any litigant can seek and obtain access to a party’s social media accounts.  Courts routinely recognize that messages posted on social media accounts are relevant to most litigation matters and fall within the domain of public information – accessible and discoverable during litigation.

Like it or not, Twitter, Facebook and any other social media site, may be required to disclose your personal, but maybe not so private, information.  Social media users should constantly be aware of that possibility (so think before you tweet)!  Have you had concerns about the privacy of your social media sites?