Given the digital goldmine of potential evidence available from social media websites, it is not surprising that they are increasingly targeted by search warrants and government subpoenas in criminal matters.
I recently had a conversation with an Assistant District Attorney that stated when they subpoena digital records from social media websites like Facebook, and Twitter, those social media companies disclose to the user that a subpoena has been ordered to release specific information from the website. As the ADA stated, “this makes it extremely difficult to investigate a person’s social media activity during an on-going investigation.” Further, when a subpoena is issued, the ADA already has creditable evidence to move forward with a subpoena to proceed with the investigation. The ADA is not issuing subpoena’s to invade the privacy of an individual’s innocent conduct.
This new policy from social media companies comes in the wake of the NSA surveillance scandal. Just last month, Eric Snowden appeared via videoconference at the South by Southwest technology conference, urging companies to increase their security and protect their users from government intrusion. Snowden wants the technology industry to get serious about protecting the privacy of its users and customers. Since the NSA scandal, social media companies have implemented new privacy policies that have made it difficult for investigators to subpoena records. This has changed the way social media companies cooperate with government officials.
Federal law provides that, in some circumstances, the government may compel social media companies to produce social media evidence without a warrant. The Stored Communications Act (“SCA”) governs the ability of governmental entities to compel service providers, such as Twitter and Facebook, to produce content (e.g., posts and Tweets) and non-content customer records (e.g., name and address) in certain circumstances. The SCA, which was passed in 1986, has not been amended to reflect society’s heavy use of new technologies and electronic services, such as social media, which have evolved since the SCA’s original enactment. As a result, courts have been left to determine how and whether the SCA applies to the varying features of different social media services.
Facebook has posted in a Help page article titled “May I obtain contents of a user’s account from Facebook using a civil subpoena? The article cites the Stored Communications Act as the reason that “Federal law prohibits Facebook from disclosing user content…in response to a civil subpoena,” stating unequivocally:
“Federal law prohibits Facebook from disclosing user content (such as messages, timeline posts, photos, etc.) in response to a civil subpoena. Specifically, the Stored Communications Act, 18 U.S.C. § 2701 et seq., prohibits Facebook from disclosing the contents of an account to any non-governmental entity pursuant to a subpoena or court order.”
In response to Facebook’s interpretation of SCA, a federal district court judge has held that certain elements (e.g., private messages) of a user’s Facebook or MySpace profile were protected from being subpoenaed under the Stored Communications Act by analogizing them to a type of electronic message (Bulletin Board System–BBS) that was mentioned in the Stored Communications Act. Crispin v. Audigier, 717 F.Supp.2d 965 (2010, C.D. CA). The court quashed the defendant’s subpoenas to Facebook and MySpace requesting private messages from the plaintiff’s account.
As to the subpoenas seeking Facebook wall postings and MySpace comments, the Crispin court remanded the matter so a fuller evidentiary record regarding plaintiff’s privacy settings so it could be determined before deciding whether to quash the subpoena for that content. This implies that Facebook does not get to decide where the “privacy” bar should be set in determining whether social networking postings and comments are subject to a subpoena as Facebook’s Help pages would lead us to believe—only the court gets to decide that.
Perhaps this is why companies like Facebook have implemented a disclosure rule that notifies the user when a warrant or subpoena has been issued and requests the users site based content.
Are social media companies doing the right thing by notifying users when records are subpoenaed? Thoughts?