Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

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Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

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Lawrence Gallick

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

Anthony M. Ramirez

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As the Occupy Wall Street protests fade from memory, a related discovery battle between Twitter and the New York County District Attorney rages on. Earlier this

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We’ve Come for Your Tweets: Twitter to Appeal Denial of Its Motion to Quash District Attorney’s Subpoena

We’ve Come for Your Tweets: Twitter to Appeal Denial of Its Motion to Quash District Attorney’s Subpoena | Socially Aware

J. Alexander Lawrence

As the Occupy Wall Street protests fade from memory, a related discovery battle between Twitter and the New York County District Attorney rages on.Earlier this year, we <a href="https://www.sociallyawareblog.com/2012/05/18/new-york-court-to-criminal-defendant-your-tweets-may-be-used-against-you/">discussed</a> the District Attorney’s efforts to subpoena user information and tweets of criminal defendant Malcolm Harris, an Occupy Wall Street protester charged with disorderly conduct for allegedly occupying the roadway of the Brooklyn Bridge.  In a setback for Twitter, the Criminal Court of the City of New York recently denied Twitter’s motion to quash the District Attorney’s subpoena; Twitter has announced its decision to appeal the court’s decision.  In this article, we take a look at the court’s decision rejecting Twitter’s motion, and discuss key issues to be addressed on appeal.As noted, the dispute emerges from the District Attorney’s criminal prosecution of Harris.  Believing that Harris had tweeted information inconsistent with his anticipated defense, the District Attorney sought from Twitter the user information and tweets associated with the account @destructuremal—the Twitter account allegedly used by Harris.  Harris filed a motion to quash, and Twitter refused to comply with the subpoena pending the results of Harris’s motion.The court <a href="https://www.aclu.org/files/assets/owsharrismtqdecision.pdf">found</a> that Harris lacked standing to quash the third-party subpoena on Twitter, because Harris had neither a proprietary interest nor a privacy interest in the user information or tweets associated with the @destructuremal account.  The court observed that no search warrant was required to obtain Harris’s tweets, as no Fourth Amendment privacy rights are implicated when information is sought from a third party, such as Twitter.  Rather, in a criminal case, the Stored Communications Act (SCA) permits the government to subpoena subscriber and session information directly from a social media site.  The court ordered Twitter to comply with the subpoena.Twitter then filed its own motion to quash the subpoena.  Twitter argued that, under its Terms of Service, Harris in fact retained his rights to any content that he submitted, posted or displayed on or through the Twitter service; and that denying Harris’s standing to oppose the subpoena placed an undue burden on Twitter.  In a <a href="http://www.aclu.org/files/assets/owsharristwitterdec63012.pdf">decision</a> handed down on June 30, 2012, the court disagreed.  The court noted that the general rule in New York is that “only the recipient of a subpoena in a criminal case has standing to quash it,” and reiterated that Harris had no Fourth Amendment privacy right in his tweets.  Twitter has objected to the court’s decision, and, as noted, will be filing an appeal; a review of the court’s decision highlights key issues to be addressed on appeal.No Privacy ViolationProving a violation of the Fourth Amendment requires a showing of either (1) a physical intrusion onto personal property or (2) a violation of a reasonable expectation of privacy.  The court found that, due to Harris’s publication of his tweets to third parties, neither showing could be made here.No Physical IntrusionWith regard to physical intrusion, the court stated simply that there had been no physical intrusion into Harris’s Twitter account.  Unlike the contents of someone’s home or car, the contents of Harris’s Twitter account had been “purposely broadcast to the entire world [and] into a server 3,000 miles away.”No Reasonable Expectation of PrivacyWith regard to any expectation of privacy, the court likened posting a tweet to screaming out of an open window.  According to the court, “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.”  The court distinguished a tweet, however, from a “private” Internet dialogue, such as one conducted via private email, private direct message, or private chat.  Accessing relevant information from such private Internet dialogues “would require a warrant based on probable cause.”  A tweet, however, is not like an email sent to a single party, and “[t]here can be no reasonable expectation of privacy in a tweet sent around the world.”A Tweet Is a “Public Posting”The court based its decision on its finding that a tweet is a “public posting.”  In the court’s view, “It is the act of tweeting or disseminating communications to the public that controls.”  The court supported its finding by citing Twitter’s Privacy Policy, which states that “[o]ur Services are primarily designed to help you share information with the world.  Most of the information you provide us is information you are asking us to make public.”  As further evidence of the public nature of a tweet, the court also cited Twitter’s 2010 agreement with the Library of Congress, under which every public tweet since Twitter’s inception is to be archived; several Internet sites through which deleted tweets remain accessible; and a National Geographic Channel project that has collected tweets and intends to broadcast them into space this August.The court likened the third-party recipient of a tweet to a witness on the street who overhears something screamed out of an open window.  As the court put it, “today, the street is an online, information superhighway, and the witness can be the third-party providers like Twitter, Facebook, Instagram, Pinterest, or the next hot social media application.”  A tweet, like a scream out the window, has been made public, and “[t]here is no reasonable expectation of privacy for tweets that the user has made public.”No Undue Burden on TwitterTwitter argued that denying standing to Harris placed an undue burden on Twitter, who was thereby forced to either comply with, or move to quash, each such subpoena seeking information of a Twitter user that it receives.  The court flatly disagreed, noting that “that burden is placed on every third-party respondent to a subpoena and cannot be used to create standing for a defendant where none exists.”No Undue Burden Under the Stored Communications Act A court issuing an order under Section 2703(d) of the SCA, “on a motion made promptly by the service provider,” may quash or modify the order if it finds that the information or records sought are “unusually voluminous” or if compliance with the order “otherwise would cause an undue burden” on the service provider.  In this case, the <a href="http://www.aclu.org/files/assets/owsharristwitterdec63012.pdf">order</a> requires Twitter to provide all user information associated with the @destructuremal Twitter account, including all tweets posted from it between September 15, 2011, and December 31, 2011.  The court declined to find that this order placed an undue burden on Twitter under the SCA, stating instead that “it does not take much to search and provide the data to the court.”Warrant Required for Tweets in Electronic Storage for Less Than 180 DaysThe only data associated with the @destructuremal account that the court did not order Twitter to produce were those tweets sent out from the account on December 31, 2011.  This is because, under the SCA, the court may compel either an Electronic Communications Service (ECS) or a Remote Computing Service (RCS) to disclose non-content information, and may compel an RCS to disclose its contents; but the court may only compel an ECS to disclose content that has been in electronic storage for more than 180 days.  At the time that the June 30, 2012 order was issued, the court did not have the proper authority under the SCA to order disclosure of tweets made on December 31, 2011.  The court, accordingly, modified its previous order with respect to the ECS content that was less than 180 days old—removing that portion of the order that would have required Twitter to produce tweets placed from the @destructuremal account on December 31, 2011.What Next?The Criminal Court of the City of New York ordered Twitter to disclose all non-content information, as well as all content information from September 15, 2011, to December 30, 2011.  As noted, Twitter has announced its intention to appeal, rather than to comply with, the decision.  Twitter will not have to turn over the December 31, 2011 tweets unless the government obtains a search warrant.  Will Twitter have to turn over the other @destructuremal tweets?  We’ll keep you posted.