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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Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

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Lawrence W. Gallick on Toth v. Everly Well, Inc.

The Federal Trade Commission (FTC) recently reached an $800,000 <a href="http://ftc.gov/os/caselist/1023163/120612spokeoorder.pdf">settlement</a> with the data broker Spokeo, Inc. (“Spokeo”).  The FTC’s complaint alleged violations not normally seen together:  First, that Spokeo distributed personal information for background checks by employers in ways that failed to comply with the Fair Credit Reporting Act (FCRA) and, second, that Spokeo’s employees posted Spokeo product endorsements without revealing their connection to the company, in violation of <a href="http://www.law.cornell.edu/uscode/text/15/45">Section 5</a> of the <a href="http://www.law.cornell.edu/uscode/text/15/chapter-2/subchapter-I">FTC Act</a>, which prohibits “unfair or deceptive acts or practices in or affecting commerce.”The Alleged FCRA ViolationsThe FCRA imposes certain obligations on “consumer reporting agencies,” which are generally defined as businesses that assemble or evaluate certain information about a consumer and furnish it to third parties for their use in determining the consumer’s eligibility for credit, insurance, or employment.  The FCRA requires a consumer reporting agency to follow specified procedures to help protect consumers’ rights, including steps to ensure that each report it sells is used for a purpose specifically permitted by the law and that the information contained in the report is accurate.  The law also requires a consumer reporting agency to inform each recipient of a consumer report of its obligations under the Act, including that it notify a consumer in the event that it takes adverse action against him or her based on information in the report (such as a decision to deny him or her credit or not to hire him or her).Spokeo collects personal information about consumers from hundreds of online and offline sources—including social networks and marketing databases—and combines this information to create profiles on those consumers.  Spokeo then sells access to these profiles.  The FTC alleged that, because Spokeo marketed the profiles to human resources departments and others for use in the hiring process, it was a consumer reporting agency subject to the FCRA.  According to the FTC, Spokeo did not, however, comply with the Act’s requirements.  Moreover, even though Spokeo had changed its website terms of service to state that it was not a consumer reporting agency and to prohibit clients from using its information for purposes protected by the FCRA, Spokeo did not actually enforce those terms, such as by revoking the access of companies that it knew—or should have known—were using its consumer reports for employment purposes.Although this is the FTC’s first FCRA case involving the sale of data collected for employment purposes from social media and other online sources, it should not have come as a complete surprise, as this was not the first time that the agency had weighed in on the subject.  In May 2011, FTC staff <a href="http://ftc.gov/os/closings/110509socialintelligenceletter.pdf">wrote</a> to a company described as “an Internet and social media background screening service used by employers in pre-employment background screening,” reminding it of the FCRA’s applicability.  Even in light of these FTC activities, however, businesses may not appreciate just how broad the law’s definition of a “consumer reporting agency” is.  Companies that compile or evaluate and then distribute consumer data should seek to determine whether they need to comply with the FCRA’s requirements.  Further, companies that receive consumer reports from consumer reporting agencies—whether to make employment decisions or otherwise—are also bound by certain obligations under the FCRA and, potentially, state laws.The Allegedly Deceptive EndorsementsJust a few years ago, the FTC updated its Endorsement Guides (“Guides”) to address issues specific to social media marketing.  Although the Guides do not have the force of law, they provide marketers with guidance from the FTC on avoiding potentially deceptive practices under Section 5 of the FTC Act.  Even prior to this update, however, the Guides made clear that any connection between an endorser and the seller of the advertised product—such as an employment relationship—must be disclosed, as such a connection affects the weight that consumers give to the endorsement.  The message to companies:  Create and enforce a social media policy that requires your employees to disclose the fact of their employment when talking about your products or services.Spokeo allegedly did just the opposite:  The FTC asserted in its <a href="http://ftc.gov/os/caselist/1023163/120612spokeocmpt.pdf">complaint</a> that Spokeo directed its employees to pose as ordinary consumers and post endorsements praising the company’s products.  What’s more, Spokeo managers actually reviewed the endorsements and supplied the accounts that were used to make them—all to give the public the misleading impression that Spokeo had numerous happy customers.  In the FTC’s view, this practice was deceptive because, had consumers known that the endorsements were posted by the seller’s own employees, they would have known that they should probably take the endorsements with a grain of salt.  In its settlement with the FTC, Spokeo agreed not only to comply with the Guides going forward but to also remove all of the fake endorsements already posted.A myth has developed among many companies seeking to exploit social media that the old rules do not apply in this new age.  The Spokeo settlement is a stark reminder that the old rules do in fact apply, and that companies ignore those rules at their peril.

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Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance c

Julie O'Neill

Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance challenges around a wide variety of both online and offline privacy issues, including tracking, interest-based advertising, geo-targeting and other mobile tracking, personalization, and cross-device tracking. Recognized in The Legal 500 US 2014, 2016, 2019, and 2020 and Chambers USA 2021 for her exceptional legal work, her clients praise her saying, “She is really good at giving practical, targeted advice and taking stock of what the risk profile of the client is, so that the advice is holistic.” (Chambers USA 2021).

The FTC’s Spokeo Settlement Highlights Social Media-Related Legal Risks

The Federal Trade Commission (FTC) recently reached an $800,000 settlement with the data broker Spokeo, Inc. (“Spokeo”).  The FTC’s complaint alleged violations

The FTC’s Spokeo Settlement Highlights Social Media-Related Legal Risks

The Children’s Online Privacy Protection Act of 1998 (“COPPA”), which became effective in April 2000, has long served as the primary regulatory tool of the Federal Trade Commission (the “FTC”) to police online privacy issues concerning children under 13.  The COPPA Rule (the “Rule”), promulgated by the FTC pursuant to COPPA, in general requires the operator of a website or online service that is directed to children or that knowingly collects personal information from children to obtain verifiable parental consent before collecting personal information from a child under the age of 13.  In September 2011, after the Act had been on the books for over a decade, the FTC announced that change was coming and proposed for public comment certain amendments to the Rule, as we explained last year.  After all, when the Act first passed in 1998, Mark Zuckerberg was just 14 years old, and social media giants like Facebook, YouTube and Twitter would not launch until well into the next decade.  Google had just been founded and operated out of a garage in Silicon Valley.  Pets.com was the next big thing.  Change was long overdue.On August 1, 2012, after reviewing over 350 comments to its proposed amendments, the FTC announced that it was seeking further proposed modifications to the Rule.  So what’s new this time?Network Advertisers and Other Third-Party Information Collectors Potentially Responsible for COPPA ComplianceAlthough COPPA applies only to websites or online services, the FTC’s proposed new modifications seek to expressly hold certain third-party plug-in, software download, and advertising networks accountable for COPPA compliance when they collect personal information through a website or online service that they know is child-directed.  Does this mean that such third parties are going to be held strictly liable for COPPA compliance when they are integrated into a website or online service?  No.  Although it considered this option, the FTC instead proposes to apply the Rule only if the third party “knows or has reason to know” it is collecting personal information through a host site or service that is directed to children.  Thus, if credible information that such use is occurring is brought to the attention of a plug-in or ad network, for example, it ignores this information at its peril.Mixed Approach to Mixed Audience Sites Historically, the FTC has not charged mixed audience websites that contain content appealing to both children and adults as “directed to children,” given the burden that this can impose on providers and users alike.  Instead, the FTC has charged such websites under COPPA only where they had actual knowledge that they were collecting personal information from children.  The FTC now seeks to codify this approach.  Under its proposed revisions, a website or service that has child-oriented content appealing to a mixed audience, where children under 13 are likely to be over-represented, will not be deemed “directed to children” if the site or service age-screens all users before personal information is collected.  Then, once the site learns who self-identifies as under 13, it must obtain appropriate parental consent before collecting any personal information and otherwise comply with the Rule with respect to them.  Websites or services that knowingly target, or have content likely to attract, children under 13 as its primary audience must still treat all users as children for COPPA compliance purposes.Information collected by “persistent identifiers,” including in connection with behaviorally-targeted ads, counts as “personal information” for COPPA purposesThe FTC announcement also included certain modifications and clarifications to some of its earlier, more controversial 2011 proposals.  Last fall, for instance, the FTC expanded the definition of “personal information” (the collection of which generally triggers a parental consent obligation) to include information collected by “persistent identifiers” that track a devise’s use over time and across different platforms.  This expansion met considerable resistance from some quarters because commentators felt that “persistent identifiers” track devise use, not personal use, and therefore should not count as collecting “personal information,” but the FTC did not alter its stance.  An exception, however, exists for information collected by persistent identifiers if it is used as support for internal operations.So what counts as “support for internal operations”?  The FTC now proposes to expressly define those operations as including “site maintenance and analysis, performing network communications, use of persistent identifiers for authenticating users, maintaining user preferences, serving contextual advertisements, and protecting against fraud and theft.”  Thus persistent identifiers can be used for these express purposes without regard to any COPPA compliance consequences.  But for all other uses, COPPA may become an issue.  Use of a persistent identifier for purposes outside of these operations, including for behaviorally-targeted advertising (specifically addressed in the recent commentary) will likely trigger the Rule’s obligations.  Because of this expanded definition, and the fact that age cannot be determined from a persistent identifier, sites directed to children may be well advised to engage in such activities only after first obtaining verifiable parental consent.  In fact, given the breadth of this potential rule, operators of sites wholly unrelated to children should take notice as this change may well portend a broader shift in policy within the FTC toward these issues.The FTC is accepting comments on the proposals until September 10, 2012.  The FTC expects to publish a final Rule this year.

More Change Coming: The FTC Proposes Further Significant Changes to Its COPPA Rule

The Children’s Online Privacy Protection Act of 1998 (“COPPA”), which became effective in April 2000, has long served as the primary regulatory tool of the Fede

More Change Coming: The FTC Proposes Further Significant Changes to Its COPPA Rule

With the issuance of its third guidance document on workplace social media policies in the past year, the National Labor Relations Board (NLRB) continues to refine its position on how to craft workplace social media policies that are consistent with the terms of the National Labor Relations Act (NLRA).Section 7 of the NLRA provides employees with the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  This right applies regardless of whether the employees are members of a labor union.  The NLRB’s guidance on this subject suggests that employee social media policies that discourage the exercise of these rights may run afoul of the NLRA.The NLRB’s third memorandum, issued by Acting General Counsel Lafe Solomon, analyzes in detail seven different social media policies at issue in recent cases before the NLRB.  Six of these policies were found by the NLRB to contain provisions that are contrary to the NLRA, while the seventh “revised” policy was upheld in its entirety as lawful.  The NLRB specifically questioned the breadth of the following types of provisions, many of which are commonly found in social media policies:<ul><li>Prohibitions on the disclosure of confidential or “non-public” information, or of matters concerning individual privacy rights, via social media. Instructions not to reveal non-public information may be unenforceable as applied to discussions about, or criticism of, the employer’s labor policies and its treatment of employees. The NLRB noted such a tension in policy requiring social media users not to “reveal non-public company information on any public site,” where the explanation of non-public company information did not include appropriate carve-outs for activities protected under Section 7.</li><li>Prohibitions on the disclosure of an individual’s personal information via social media.  The NLRB took issue with a social media policy instructing employees: “[D]on’t disclose [personal information regarding employees and other third parties] in any way via social media or other online activities.” As the NLRB explained, “[I]n the absence of clarification, employees would reasonably construe it to include information about employee wages and their working conditions.”</li><li>Discouragements of the “friending” of one’s co-workers.  According to the third memorandum, a policy statement advising employees to “think carefully about ‘friending’ other co-workers” could be construed as unlawfully discouraging employees from communicating regarding the terms of their employment.</li><li>Requirements that employee grievances be addressed through internal procedures, rather than aired online.  A social media policy providing the employer “believes that individuals are more likely to resolve concerns about work by speaking directly with co-workers, supervisors or other management-level personnel than by posting complaints on the Internet” was found to be unlawful, according to the NLRB, because it might inhibit employees from “seeking redress through alternative forums.” The NLRB noted, however, that employers may “reasonably suggest” availing of internal dispute resolution procedures.</li><li>Prohibitions on the sending of unsolicited communications to other employees. The NLRB found a policy requiring employees to report receiving “unsolicited or inappropriate electronic communications” to be an impermissible restraint on employees’ right to discuss their employment conditions.</li><li>Restrictions on public discussions of personal opinions regarding work.  One policy discussed in the memorandum expressly permitted employees to discuss online their personal opinions about work-related issues, but only to other employees and not to the general public. The NLRB found this overbroad because the right to discuss employment conditions extends to discussions with non-employees.</li><li>Prohibitions on comments regarding pending legal matters.  A policy providing, “Don’t comment on any legal matters, including pending litigation or disputes,” was found to be unlawful on the basis that it “restricts employees from discussing the protected subject of potential claims” against their employer.</li><li>Prohibitions on responding to government inquiries.  The NLRB found that one employer’s direction to employees not to respond to communications from government agencies was overbroad “to the extent that it restricts employees from their protected right to converse with [NLRB] agents or otherwise concertedly seek the help of government agencies regarding working conditions, or respond to inquiries from government agencies regarding the same.”</li><li>Requirements that employees check with the legal department or human resources (HR) department prior to posting or communicating with the media.  Requiring employees to secure permission from their employer before engaging in activities protected under Section 7, the memorandum noted, is prohibited by the NLRA.</li></ul>Analyzing employer social media policies under the NLRA continues to be major enforcement priority of the NLRB, although the NLRB’s position on social media policies remains, for the most part, untested by the courts.  The third memorandum underscores how the precise wording of the policy is critical to whether it is considered overbroad by the NLRB.  Social media policies that distinguish between the prohibited behavior and concerted activities excluded by the policy, and that provide examples of each, would be more likely to withstand NLRB scrutiny.  By contrast, the third memorandum cautions employers against relying on a so-called “savings clause” (such as a general statement that the policy will not be interpreted in a manner inconsistent with the NLRA) if “employees would not understand from this disclaimer that protected activities are in fact permitted.”Alongside its long list of examples of potentially unlawful policy language, the third memorandum provides one example of a social media policy that it considered lawful.  Although this exemplar, which is attached to the NLRB memorandum in full, will not meet the needs of all employers, it may serve useful as a resource against which to compare your company’s social media policy.  As the NLRB’s position on this subject evolves, we suggest consulting counsel to address whether specific provisions of your company’s social media policy are consistent with the NLRB’s guidance.

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The NLRB Weighs In (Again) On Social Media Policies

The NLRB Weighs In (Again) On Social Media Policies

With the issuance of its third guidance document on workplace social media policies in the past year, the National Labor Relations Board (NLRB) continues to ref

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.

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