Socially Aware: The Social Media Law Update - Vol. 3, Issue 4 August 2012 - Social Media

In this issue of Socially Aware, our Burton Award-winning guide to the law and business of social media, we explore whether one can serve legal notice through Facebook and other social media platforms; examine the ongoing dispute between Twitter and the Manhattan District Attorney over the discovery of user tweets; summarize the NLRB's latest guidance regarding workplace social media policies; review a controversial provision from Amazon Web Services's customer agreement; take a look at a putative class action lawsuit against the Pittsburgh Penguins hockey team arising out of the team's text messaging activities; highlight regulatory challenges to broker-dealers and investment advisers in using social media; visit a recent fair use decision in connection with a South Park parody of a viral video; and discuss the California Attorney General's formation of a new Privacy Enforcement and Protection Unit. All this plus our statistical snapshots showing the growing popularity of mobile devices (and the corresponding decline of PCs).

"YOU HAVE ONE NEW LAWSUIT": CAN YOU SERVE LEGAL NOTICE THROUGH SOCIAL MEDIA?

Can a litigant be served via social media? On June 7, 2012, in Fortunato v. Chase Bank, a federal district court ruled that defendant Chase Bank could not use Facebook to serve a third-party defendant with the complaint that Chase had filed against her.

In Fortunato, plaintiff Lorri Fortunato sued Chase Bank, alleging that the defendant had unlawfully garnished her wages to pay a credit card debt that, according to the plaintiff, was actually incurred by her estranged daughter, Nicole (who the plaintiff alleged had lied on a credit card application in order to open an account in her mother's name). Chase sought to implead Nicole in the matter, but was having a difficult time physically locating her; indeed, as the court noted, Nicole apparently had a "history of providing fictional or out of date addresses[.]"

Chase hired a private investigator, who "searched . . . [Department of Motor Vehicles] records, voter registration records, . . . Department of Corrections records, publicly available wireless phone provider records, and social media websites" for a way to contact Nicole. The private investigator's search turned up four possible addresses for Nicole in four different towns, but the defendant remained unable to physically locate her at any of those locations.

The private investigator did, however, find what she believed to be Nicole's Facebook profile, which listed a contact email address and a location in yet a fifth town. In view of this discovery, and given that Chase's "numerous attempts to effect personal service" and "diligen[t] . . . search for an alternate residence where Nicole might be served" had not succeeded, the bank suggested a novel alternative to the court: serving Nicole with notice by sending her a message on Facebook.

Chase argued that service through Facebook would meet due process requirements because it was "reasonably calculated to apprise" Nicole of the claims against her (echoing the words of the U.S. Supreme Court in Mullane v. Central Hanover Bank & Trust Co.), and that it should therefore be an acceptable alternative means of service. Although the court agreed as an initial matter that some form of alternative service would be appropriate, the court rejected Chase's argument, ruling that service by Facebook would not be sufficiently "reasonably calculated to apprise" Nicole under the circumstances. Noting that "anyone can make a Facebook profile using real, fake, or incomplete information," the court found that "[Chase] ha[d] not set forth any facts that would give . . . a [sufficient] degree of certainty that the Facebook profile . . . [was] in fact maintained by Nicole[.]" The court then ordered Chase to publish notifications in the local newspapers for all five towns that its private investigator had identified as possible residences for Nicole.

The Fortunato court prefaced its analysis by remarking that "[s]ervice by Facebook is unorthodox to say the least," and that the court was "unaware of any other court that ha[d] authorized such service." But, as it turns out, at least a handful of courts—in the United States and abroad—appear to have done just that. In May 2011, a local state court in Minnesota permitted service of a petition for divorce by Facebook (or, indeed, "[any] other social networking site"), finding that, compared to the "antiquated . . . and prohibitively expensive" traditional means of publishing notifications in local newspapers, service through social media would be both cheaper and more likely to actually reach the party at issue. (And, although not a ruling on the issue, official form documents on the Utah State Court system's website can be read to suggest the use of Facebook and Twitter as possible alternative means of service.)

Outside of the United States, several courts—including courts in New Zealand, Australia, Canada and the United Kingdom —have affirmed or even endorsed the use of Facebook and other social media sites as acceptable alternative means of serving counterparties with notice of the claims brought against them.

The Fortunato court's approach does not necessarily contradict these examples, given that the Fortunato court did not categorically reject service by Facebook or other social networks. Rather, the court concluded that service through Facebook would not be appropriate under the circumstances of the case at issue. Which begs the question: what might the right circumstances be?

As a general matter, the law still favors traditional personal service as its preferred and primary method—the often-depicted "you've been served" moment of physically handing a summons and complaint to a party to be served. Statutes in U.S. jurisdictions also typically expressly authorize other traditional means of service, for example, delivery to a party's residence or agent. When these methods prove impractical, statutes typically authorize courts to allow some sort of appropriate alternative means of service. But in a case like Fortunato, assuming that the complainant has demonstrated that alternative service should be permitted, what might need to be shown in order to demonstrate to the court's satisfaction that service through social media would be appropriate?

The Fortunato court expressly identified a first major hurdle, which some have termed "authentication". In order to demonstrate a reasonable likelihood that the counterparty is actually going to receive notice, the complainant needs to be able to convince the court that the social media profile in question really does belong to the party to be served, and is not under the control of a different person with the same or a similar name (or even, perhaps, an impersonator). This has some parallels to the issues raised when trying to use social media evidence in the context of a trial.

A second hurdle, somewhat less explicit in the Fortunato court's ruling, is whether— even if the social media profile does belong to the party to be served—the profile's owner regularly (or ever) logs in to or checks that profile. Being able to demonstrate this fact could help support an argument that "the person to be served would be likely to receive the summons and complaint" through his or her social media profile, which, as the Fortunato court noted, was important in cases where service by email has been accepted.

Cases from various countries, coupled with some creative thinking, provide helpful guidance for how a party that wants to serve notice through social media could surmount the hurdles above. For example, a party could try to demonstrate:

That the personal biographical details listed in the profile match the party to be served's basic personal information (e.g., date of birth, educational history and/or work history);
That recent photos of the party to be served have been posted to the profile;
That the profile's "friend" or contact list corresponds with the party to be served's known real-world acquaintances;
That updates, posts and other interactions on the profile's "wall" identify the user as the party to be served;
That the profile's user has responded to recent friend requests, wall posts or private messages; and
That third-party testimony corroborates the assertion that the profile belongs to the party being served.

Depending on the applicable social media profile's privacy settings, much of this information may be readily accessible to the general public. (Yes, people do still leave their social media profiles wide open.) Of course, practitioners should keep in mind ethical rules when using social media to obtain information.

In the long run, service through social media and other Internet-based means of communication could become a viable alternative to personal service, given that electronic service may have certain distinct advantages over the traditional means of alternative service used where no physical address is available (i.e., publication in local newspapers and posting of public notices). First, as noted in the Minnesota case described above, electronic notice can be far quicker, cheaper and easier. Second, as the Minnesota court also noted, notice may actually be more likely to reach the intended recipient if delivered through social media than if communicated through those more traditional means. And third, some means of Internet communication enable senders to confirm electronically that their messages have been opened or received by the intended recipients.

Given the likelihood that attempted service through social media will be around for a while, we look forward to keeping you posted on future developments.

WE'VE COME FOR YOUR TWEETS: TWITTER TO APPEAL DENIAL OF ITS MOTION TO QUASH DISTRICT ATTORNEY'S SUBPOENA

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 discussed 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 found 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 decision 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 Violation

Proving 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 Intrusion

With 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 Privacy

With 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 Twitter

Twitter 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 order 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 Days

The 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.

To read this Update in full, please click here.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

United States: Socially Aware: The Social Media Law Update - Vol. 3, Issue 4 August 2012