Anything You Tweet May be Used Against You in a Court of Law.

As New Yorkers prepare for our Frankenstorm, Mayor Michael Bloomberg has responded to Governor Andrew Cuomo’s declaration of a state of emergency by ordering a mandatory evacuation in parts of the City most vulnerable to flooding. This area, known as Hurricane Evacuation Zone A, includes large swathes of Staten Island, the location of that awful Andy Garcia movie, and several points of the City’s coast in and along the water. Of course, as in any natural disaster, people are taking to social media to discuss their refusal to evacuate.



Full disclosure: This guy is from Virginia, but I couldn’t resist because it’s so feisty.


With all the competing messages of people scolding others to evacuate and the scolded resisting, I found one particularly interesting tweet:


Well, @EricMessick, thank you for giving me a hook for this blog post. Presuming the State of New York eventually wanted to go after brazen non-evacuees, it is in fact a crime in New York to knowingly violate an emergency evacuation order under New York Executive Law § 24(5)—punishable by no more than three months in jail or a fine of no more than $500. While it’s usually hard to prove what someone actually knew, posting your flagrant refusal to evacuate is pretty damning evidence. However, can your tweets, posts, sepia-bordered Instagram snags, and check-ins be used against you in a New York State criminal court? The answer seems obvious, but—as with everything in the criminal law—it’s more complicated than that.

The United States Constitution mandates that the People be secure in their persons, homes, papers, and effects from unreasonable searches and seizures. This has been interpreted to mean that any search without a warrant is per se unreasonable. See Myron Moskovitz, Cases and Problems in Criminal Procedure: The Police 17 (2010). For most of American history, this constitutional requirement did not apply to the States: Americans were not protected from warrantless searches and seizures by the States unless the State prosecuting them in a criminal trial had decided a similar right existed in that State. This made the Fourth Amendment pretty very thin in terms of protection for most people, since there are relatively few federal crimes when compared to voluminous state criminal codes.

In the 60’s the Supreme Court stepped in to bridge this gap in the law with its seminal decision in Mapp v. Ohio, 367 U.S. 643 (1961). In that case, a woman was brought up on obscenity charges after Ohio police burst into her home and ransacked it without warrant and without probable cause. The Supreme Court decided that, where an unreasonable search and seizure had taken place, any evidence gathered in that unreasonable search and seizure was constitutionally unusable even in a state criminal prosecution. While Mapp was a major turning point in American constitutional law, it came with the price of creating a new and convoluted problem for the state courts to resolve: Just what was an unreasonable “search” under this new reading of the Fourth Amendment?

The Supreme Court came up with its test for unreasonable searches just six years after Mapp was decided in Katz v. United States, 389 U.S. 347 (1967). There, the FBI, without a warrant, spied on a man while he used a public telephone booth with a listening device. Since the defendant was using a public telephone booth, the argument went, there was no unreasonable search. The Court rejected this argument, saying that a “search” occurs whenever the government is intruding on a person’s good faith, reasonable expectation of privacy. Since the defendant in Katz had expected privacy in the telephone booth, and since a reasonable person would also expect privacy in it, the FBI’s eavesdropping was a search that would require a warrant in order to be reasonable. Therefore, as the FBI did not have a warrant, the search was unreasonable and the evidence could not be used.

While the Court has twisted and turned the rules that keep evidence obtained illegally out of courts, the U.S. legal system has struggled over when a defendant’s good faith expectation of privacy is, in fact, reasonable. The Court has found that information a defendant says to even one other person is not protected by a reasonable expectation of privacy. See United States v. White, 401 U.S. 745 (1971). The Court has also found that information you divulge to a third party over commercial communication services—such as numbers you dial, email addresses you communicate with, and URLs you visit—are not protected by a reasonable expectation of privacy—even if the content of the phone call or the email or the website itself does carry a reasonable expectation of privacy. See, e.g., United States v. Forrester, 512 F.3d 500 (9th Cir. 2007); United States v. Warshack, 631 F.3d 266 (6th Cir. 2010).

So what’s that got to do with your status updates on Facebook and Twitter? It means that courts have to consider whether a government agent reading through posts you made in private to your social media accounts violates your constitutional right to privacy if the government ever tries to prosecute you for something you admitted to (or alluded to) doing in those posts. After all, this type of activity was completely unimaginable in 1791 when the Fourth Amendment was ratified, and it would have been equally foreign to the Supreme Court that decided Mapp and Katz. A recent New York City Criminal Court case gives good insight into the way that courts consider these novel issues of criminal procedure.

In People v. Harris, 36 Misc. 3d 613 (N.Y. City Crim. Ct. 2012), the court analyzed whether a defendant had standing to keep tweets he had made from being divulged to the prosecutor. While the court reached its decision on grounds not related to the Fourth Amendment, it opined that Harris did not have the ability to keep the prosecution from asking Twitter for the content of his tweets because he did not have a reasonable expectation of privacy in them. Twitter’s Terms of Service provides that every tweet you make on Twitter confers on Twitter a royalty-free license to use, copy, reproduce, process, adapt, modify, publish, transmit, display, and distribute any content you post. As such, no matter how many people you may—or may not—be sharing that content with, and no matter how private you think your tweets are, your expectation of privacy is just not reasonable. To quote the court, “The widely believed (though mistaken) notion that any disclosure of a user’s information would first be requested from the user and require approval by the user is understandable, but wrong.” Id. at 618.

So what’s the take-away? No matter how private you might believe something you post online to be—even if you have it shared with “only me” on Facebook, and even if you later delete them—, that isn’t good enough to keep it beyond the eyes of the government acting without a warrant or wanting to read them without your permission. The act of posting, which on most social media sites confers on the site itself full license distribute and publish whatever you post, legally gets rid of any reasonable expectation of privacy you have in the content of the post. Obviously, any argument about a reasonable expectation of privacy despite such a term of service on the service you’re using would be completely obliterated by sharing your post with the public generally.

While it’s highly unlikely that New York would go after people electing—in my opinion, foolishly—to knowingly violate Mayor Bloomberg’s evacuation order, watch your social media! You never know where it might show up.


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About Phil

Hello, world! I'm a law student at the CUNY School of Law. I hope you enjoy blogs about reality TV, the Internet, and all the hottest goss that you can shepardize.

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