Warrants Can Breach Social Media Privacy

Online privacy is something a lot of people get wrong. From sharing those pointless “legal warnings” on Facebook to believing Snapchat images are really “gone for good” people have made a lot of bad assumptions about their social media activity. A recent ruling by at New Jersey appeals court may just serve to destroy even more erroneous assumptions about internet privacy. Think your Twitter account is totally private and sacred? Think again.

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The recent ruling in New Jersey would allow law enforcement agencies to view “private” social media messages and tweets with a warrant. That means even messages you thought were erased, but still might be stored on site servers, could be wide open for viewing by police.

The ruling came after Essex County prosecutors demanded to view videos on private Twitter feeds and were denied. The issue came down to particulars of the law: which kind of warrant is actually needed to access social media accounts.

There are two types of warrants typically related to these investigations: a communications data warrant and a wiretapping warrant. The latter is necessary when trying to access electronic communications while in transit, and it’s much tougher to get.

The defense tried to argue that, since the content was private and stored, it had not been transmitted. The prosecution argued that, since the content had actually been transmitted across Twitter servers, it was no longer a “live” transmission. The three-judge panel agreed.

Cases like these continue to flow through the courts, creating limits and de facto regulations on social media, while most of the consumer public remains blissfully unaware they even exist. The internet is still a bit of the Wild West, but lawmakers are whittling away at that environment a little bit at a time, creating do’s and don’ts which many people will never know about until it’s too late.

In cases like these, in the context of conducting a criminal investigation, many people would support legal assessments and regulations on what is or is not permissible. They figure, as most do that laws should err on the side of caution but also that law enforcement officers should not be hindered in an investigation by outdated regulations meant for older and less prevalent technologies.

That said, the other side of this debate worries that increased laws related to internet use and social media accounts blur the lines between due diligence and a right to privacy. They want law enforcement to have all the tools they need, but not at the expense of personal autonomy. From a PR perspective, both sides of this argument could be doing a better job of informing the public. Laws regulating and limiting internet freedom are being ruled on, but millions still think their Facebook profiles are really private.

William Doonan is a tax law and legal expert in New York.