The case involves a 12-year-old girl who used Facebook to diss the hall monitor, writing “[I hate] a Kathy person at school because [Kathy] was mean to me.” She also used the social network to talk about “naughty things” with a boy. When one of her “friends” ratted on her, the girl wrote on her Facebook wall, “I want to know who the f%$# told on me.”

Three school officials, including a counselor and a taser-wearing cop, came down hard. They interrogated her in an office and badgered the sobbing girl until she handed over her passwords. They proceeded to go through her Facebook and email accounts to find the “naughty” discussion she had with the boy.

Now, the school is in hot water. U.S. District Judge Michael Davis ruled that the school appears to have violated the girl’s free speech and privacy rights. He wrote:

For more than forty years, the United States courts have recognized that students do not check their First Amendment rights at the schoolhouse door  …  The movement of student speech to the internet poses some new challenges, but that transition has not abrogated the clearly established general principles which have governed schools for decade

Davis noted that there is a clear exception to the rule that schools can’t infringe on students’ free speech rights —  when there is a clear threat of violence with a connection to the school. This obviously wasn’t the case in Minnesota since the girl’s Facebook activity took place outside of school.

The decision, first reported by Seattle lawyer Venkat Balasubramani, comes at a time of a growing backlash against school and workplace attempts to pry into people’s social media lives.

Davis’ ruling also provides an interesting tour of other cases in which students push the social media envelope, sometimes in very unpleasant ways. In one example, a court upheld the speech rights of a student who made a MySpace parody of his principal:

the student featured a picture of the principal (taken from a school website) and stated that the principal was “too drunk to remember” his birthday and was also a “big steroid freak,” a “big whore,” and a “big fag.”

Students’ social media activity may be upsetting or disrespectful but it’s nothing new — Bart Simpson, the Beastie Boys and others have trash-talked teachers since the dawn of school. The platform is different but the behavior is not.

Judge Davis’ decision , which came in response to the school’s request to dismiss, is here:

Minnesota Student First Amendment
(Image by 3445128471 via Shutterstock)

In an order issued on Friday, US District Judge William Pauley III ruled that accused gangster Melvin Colon can’t rely on the Fourth Amendment to suppress Facebook evidence that led to his indictment. Colon had argued that federal investigators violated his privacy by tapping into his profile through an informant who was one of this Facebook friends.

The informant’s Facebook friendship served to open an online window onto Colon’s alleged gangster life, revealing messages he posted about violent acts and threats to rival gang members. The government used this information to obtain a search warrant for the rest of Colon’s Facebook account. The Colon information is part of a larger investigation into crack-dealing and murder in the Bronx.

Judge Pauley III’s ruling is significant because it is the latest in a series of cases that defines how and when police can search social media.

• See also: Social Media judge says tweets are for cops

In the Bronx case, the judge found that Colon couldn’t stop his Facebook friends doing what they liked with the information he revealed:

Colon’s legitimate expectation of privacy ended when he disseminated posts to his “friends” because those “friends” were free to use the information however they wanted-including sharing it with the Government.

To support this position, Judge Pauley III cited a case that confirmed the government can listen in on phone calls without a warrant provided that one of the people on the call gives it permission to do so.

Ironically, Colon’s current account suggests that the government’s ability to peruse Facebook profiles may have become even easier since the introduction of the Facebook Timeline. The feature can in some cases reveal past events and status updates to the public unless a user changes his or her privacy settings.

What appears to be Colon’s account (cited in the court case as “Mellymella Balla” in the Bronx) can now be seen by the public. Here is a screenshot from his profile:

The case may also raise the question of whether social media companies are providing an adequate explanation of their privacy settings to all Americans. You can read the ruling itself here:

Facebook Privacy Ruling

(Image by Fisun Ivan via Shutterstock)

Twitter announced today that it is filing an appeal in a case that is helping to define privacy rights in the social media era.

The case turns on a subpoena by which New York City wants Twitter to turn over the account information of Occupy Wall Street protestor Malcolm Harris. In a controversial decision in October, Judge Matthew Sciarrino Jr. ruled that Harris couldn’t challenge the subpoena because he didn’t have any rights in the Twitter account and therefore lacked standing.

After the court booted Harris from the case, Twitter itself stepped in to challenge the subpoena. Early this month, the same judge ruled that no privacy rights were at stake because Twitter is a public forum akin to shouting in the street. The judge ultimately decided that prosecutors could have access to the account after he conducted a closed-court review of which parts of the account were relevant (for a detailed overview of the case, see: Social Media Judge says tweets are for Cops.

Twitter has now responded by announcing an appeal on, well, Twitter. “We’re appealing the Harris decision. It doesn’t strike the right balance between the rights of users and the interests of law enforcement,” wrote intellectual property lawyer Benjamin Lee in a tweet. The news was first reported by All Things D.

A higher court is likely to hear the appeal because the Harris affair is an important test case of privacy and social media, and because Judge Sciarrino Jr.’s rulings contain questionable reasoning and a bombastic writing style. In his rulings, the judge holds himself out as an authority on social media and uses Twitter-style hashtags with words like “#quash” and “#subpoena.”

Sciarrino Jr. was recently disciplined by New York’s judicial oversight body after lawyers complained about his attempts to friend them on Facebook. He was transferred to Manhattan from Staten Island as part of the disciplinary process. If it takes the appeal, a higher court will likely provide more guidance into how and when police can search social media.

The case itself involves Malcolm Harris, one of hundreds charged with disrupting traffic after a protest on the Brooklyn Bridge last summer. To build the case, prosecutors asked Twitter to turn over Harris’s account, which contains not just a record of his public messages but could also contain more private information such as the location of his tweets, personal messages and deleted items.

The case attracted media attention after Harris applied to quash the subpoena directed at Twitter. In April, Judge Matthew Sciarrino Jr. ruled that Harris couldn’t sue in the first place because the tweets in question belonged to Twitter and not to him. Sciarrino Jr. also lambasted “widely-believed” but “mistaken” notions about online privacy and attempted to show off his fluency in social media by adopting Twitter’s hashtag convention to write that the motion to “#quash” was “#denied.”

Twitter responded to the April ruling by moving itself to quash the subpoena itself — an effort that came up short today. The company said in an email statement:

“We are disappointed in the judge’s decision and are considering our options. Twitter’s Terms of Service have long made it absolutely clear that its users *own* their content. We continue to have a steadfast commitment to our users and their rights.”

Tweets: Do they belong to you, Twitter or the street?

The Harris ruling is larded with flamboyant rhetoric but also raises important questions about how privacy law should apply to social media. In ruling against Twitter and Harris, Sciarrino Jr. invoked a 1976 case in which the Supreme Court ruled that a bank didn’t violate user privacy when it turned over customer records because the records were the bank’s property. This raises the question of whether our Facebook and Twitter accounts are just like bank and phone records.

Strangely, Sciarrino Jr. said that Harris’ tweets were Twitter’s property but also found that social media companies were just like witnesses who overhear something shouted in the street:

Well today, the street is an online, information superhighway, and the witnesses can be the third party providers like Twitter, Facebook, Instragram, Pinterest, or the next hot social media application.

The judge holds himself out as an authority on social media by dropping company names and citing recent law journal articles on social media and the judiciary. He has also learned about it firsthand; in 2009, he was disciplined by court authorities and transferred from Staten Island to Manhattan after lawyers complained about him friending them on Facebook.

Sciarrino Jr.’s analysis of the Harris decision is interesting, and perhaps troubling, because it appears to offer no legal protection at all to social media accounts. On one hand, the judge concludes that users have no right to object to account searches (or even know about them) because the accounts are not their property. But at the same time, he characterizes Twitter and Facebook as passive witnesses whose role is to simply pass on information.

The Founding Fathers and the Right to Tweet

Sciarrino Jr. finishes with a flourish, noting that “Samuel Adams, Benjamin Franklin, Alexander Hamilton and Thomas Jefferson would have loved to tweet their opinions as much as they loved to write for the newspapers of their day (sometimes under anonymous pseudonyms similar to today’s twitter user names).”

This analogy is intriguing but also problematic.  As the judge points out, some founding fathers did write anonymously but they were able to keep their anonymity. Under the judge’s reasoning in the Twitter decision, the publisher who printed the Federalist Papers would be forced to identify the authors — and the authors would have no legal rights at all.

Sciarrino Jr.’s decision also fails to address the issue of how much information social media companies must turn over to authorities. The judge points to search engines like Politwoops and Tweleted (services that collect deleted tweets) in order to emphasize that our tweets are inherently public information available to all. But he does little to acknowledge that our Twitter and Facebook accounts contain not just public utterances, but also a wealth of more personal information that we don’t intend for others to see.

The decision, which was first reported by the New York Law Journal and can be read here, means that Twitter must turn over the bulk of Harris’s account to the court which will then determine which parts are relevant to the prosecution.

It’s not immediately clear if Twitter will appeal the decision. The American Civil Liberties Union, which filed a brief on behalf of Harris and Twitter, issued a statement today:

“What is surprising is that the court continued to fail to grapple with one of the key issues underlying this case: do individuals give up their ability to go to court to try to protect their free speech and privacy rights when they use the Internet? As we explained in our brief, the answer has to be no.”

Judge Matthew Sciarrino Jr. cited a “widely-believed” but “mistaken” notion about online privacy rights and said that search and seizure protections don’t apply because we “do not have a ‘physical’ home on the Internet.”

The ruling, which grows out of the Occupy Wall Street protests, reinforces a troubling legal trend that declares people have no privacy right in their online communications — even though they spend more and more of their time on services like Twitter and Facebook. Ironically, the judge acknowledged as much:

The reality of today’s world is that social media, whether it be Twitter, Facebook, Pinterest, Google+ or any other site, is the way people communicate..

The communications in this case were the tweets of Malcolm Harris, who was charged with disorderly conduct after marching on the roadway of the Brooklyn Bridge. Tweets, by their nature, are public communications, but a search of his Twitter account would also reveal more private information. As the court explained, “Twitter collects many types of  user information, including IP address, physical location, browser type, mobile carrier among other types.”

In his ruling, Judge Sciarrino Jr. compared Twitter and email accounts to bank records. He cited a 1976 case in which a divided Supreme Court said a defendant had no right to stop searches of his bank statements because the records were the property of the bank.

In blunt language, the judge explained:

Here, the defendant has no proprietary interests in the @destructuremal account’s user information and Tweets … Twitter’s license to use the defendant’s Tweets means that the Tweets the defendant posted were not his. 

Twitter itself has a history of aggressively standing up for the rights of its users by notifying them when law enforcement wants to search their accounts (other sites like Facebook routinely pass on user profiles without notifying them).

The notification process allows users an opportunity to challenge the searches in court and ensure they are not overly broad. Rulings like that of Judge Sciarrino Jr., however, undermine that ability by saying that users don’t have a right to get involved in the first place — even though it is their data at stake:

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. While the Fourth Amendment provides protection for our physical homes, we do not have a physical  “home”  on  the  Internet.     [..]    As  a  user,  we  may  think  that  storage  space  to  be  like  a  “virtual  home,”   and  with  that  strong  privacy  protection  similar  to  our  physical  homes.     However,  that  “home”  is  a  block  of  ones  and  zeroes   stored  somewhere  on  someone’s  computer.   As a consequence, some of our most private information is sent to third parties and  held  far  away  on  remote  network  servers.

The judge also used the ruling to show off his fluency with Twitter itself. Referring to the microblog’s convention of using hashtags as keywords, he noted that Harris’s motion to “#quash” the subpoena was “#denied.”

The judge’s social media prowess was also on display in 2009 when he was disciplined for friending lawyers on Facebook.

Here is the ruling itself:

OWS Twitter Copy