In dismissing a claim for violation of Fourth Amendment rights, the United States District Court for the District of Nevada in Rosario v. Clark County School District, No. 2:13-CV-362, 2013 U.S. Dist. LEXIS 93963 (Nev. Jul. 3, 2013) recently became the latest court to hold there is no reasonable expectation of privacy in Twitter tweets.
This case arises out of plaintiff Juliano Rosario’s tweets about his high school’s basketball team. Juliano tried out for the team in his senior year, but was initially cut. After his father protested the cut, Juliano was eventually given a spot on the team. Immediately following the final game of the season, Juliano made numerous sexually and racially offensive tweets about several school officials, including coaches and the athletic director. The school disciplined Juliano for “cyberbullying” after learning of the offensive tweets. Juliano and his father then filed a 10-count complaint against the school district and six of its employees alleging, among other things, that the defendants (the school district and several officials) violated Juliano’s Fourth Amendment rights by searching his Twitter account.
In ruling on the defendants’ motion to dismiss the Fourth Amendment claim, the Court recited Supreme Court precedent providing that a person has a constitutionally protected reasonable expectation of privacy when that person has both a subjective expectation of privacy and that expectation is one that society recognizes as reasonable. The plaintiffs argued that Juliano had such a reasonable expectation of privacy in his tweets. The Court disagreed and explained that Twitter has two privacy settings: (1) “private,” where tweets can arguably only be read by a tweeter’s “followers”; and (2) “public,” where tweets can be read by anyone. The Court reasoned that tweeters using the “public” setting intend that anyone who wants to read the tweet may do so, and there can therefore be no reasonable expectation of privacy. The Court opined that tweeters using the “private” setting have a “more colorable argument about the reasonable expectation of privacy in his or her tweets,” but nevertheless held that such users are still “disseminating  postings and information to the public, [and] they are not protected by the Fourth Amendment.” United States v. Meregildo, 883 F. Supp. 2d 523, 525 (S.D.N.Y. 2012) (relating to Facebook posts).
For purposes of ruling on the defendants’ motion to dismiss, the Court assumed as true the plaintiffs’ allegations that Juliano’s Twitter account was “private,” and not “public.” The Court nevertheless concluded that Juliano had no reasonable expectation of privacy in his tweets, and that there was no Fourth Amendment violation when the school accessed his tweets through a follower’s account after that follower gave the tweets to school officials. The Court concluded that it is well-established that a person who shares information with a third party takes the risk that that third party will share it with the government, and that the same logic applies in the social media context.
This decision may also help support the notion that social media followers may not constitute protectable trade secrets. (See also our previous blogs regarding trade secret protection for followers on Twitter, MySpace, and LinkedIn).