Subpoenas and Social Media Platforms

A few weeks ago, I raised the issue of social networks being used to solve/prevent crimes. One aspect of the post was about the use of a subpoena from law enforcement to obtain records from the social network operator. In some cases, this can be a good thing, like in tracking down a thug who posted pictures of himself with the computer he stole on the victim’s Facebook page.  In others, like the government’s attempts to prosecute Wikileaks founder Julian Assange, the issue is a bit more mixed.  Right now, the government is seeking the records of Assange’s and some of his supporters’ Twitter accounts.

This is arguably the darker side to the issuance of subpoenas to social media platforms, not because I support Assange, but because of its potential precedential effect on other journalists.  As documented in this great piece on, the threat to journalists and whistle-blowers who use social media to connect has a major problem: journalist shield laws don’t protect information contained in public spaces like Facebook and Twitter.  That means that, although the platforms can be considered electronic communication providers under the Stored Communications Act and thus protected from certain subpoenas from private parties, they are still subject to subpoenas from the government.  As society becomes ever more wired and use of social media becomes more pervasive, shield laws will have to be amended to take these platforms into account.  It could be likened to the need to expand laws against illegal wiretaps to include other electronic means besides telephony.  The intent of the shield laws is to protect journalists and their sources.  I think the resilience of our democracy depends on just this sort of protection, even if that means having to stand up for the likes of Julian Assange.



About Justin Kwong

An attorney in the Twin Cities and adjunct professor at William Mitchell College of Law where I teach a seminar on the law of virtual worlds.
This entry was posted in Contracts and Agreements, Privacy, Rights and Civil Liberties, Social Networks and tagged , , , , , , , , , . Bookmark the permalink.

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