The decision is part of a broader trend of judicial decisions allowing prosecutors greater access to people's communications on social media websites, such as Twitter, Facebook, or Instagram. Authorities say they need to view the posts to search for criminal conduct and to ascertain the authenticity of the messages. The social media companies argue that the posts belong to the individuals, under their terms of service. If that were the case, defense lawyers say, the individuals should be allowed to quash such a subpoena as a violation of the Fourth Amendment, which guarantees a reasonable expectation of privacy or would, at least, require authorities to obtain a search warrant.
“This case is indicative of a proactive attitude by the prosecutor in obtaining and using public social media statements by defendants,” says James Keneally, a partner in the white-collar practice at Kelley Drye & Warren LLP, a law firm in New York. “That is why this was of importance to the District Attorney’s office.”
In his ruling, Judge Matthew Sciarrino Jr. compared the tweets with an individual passing by who hears someone yell out a window, “I’m sorry I hit you, please come back upstairs.” At a trial, he says, the district attorney could call the person walking across the street at the time to testify about what he or she heard.
“Clearly the answer is relevant and the witness could be compelled to testify,” wrote the judge. “Well today, the street is an online, information superhighway, and the witnesses can be the third party providers like Twitter, Instagram, Pinterest, or the next hot social media application.”