As reported in The New York Law Journal:
“The Constitution gives you the right to post, but as numerous people have learned, there are still consequences for your public posts. What you give to the public belongs to the public. What you keep to yourself belongs only to you,” Criminal Court Judge Matthew Sciarrino Jr., sitting in Manhattan, wrote in People v. Harris, 2011NY080152.
Sciarrino on June 30 ordered the site to produce in chambers Malcolm Harris’ user information and tweets from a more than three-month period—information the Manhattan District Attorney’s Office is seeking for its prosecution of a disorderly conduct case charge against Harris.
The law is already changing in order to keep up with how people communicate, be it on Twitter, Facebook, or dozens of other social media sites, and it appears as though, at least in a criminal case, public tweets will be subject to subpoena. How will this affect civil cases? Certainly, tweets or messages posted publicly will be discoverable and properly considered as evidence, but could we see private user information subpoenaed and subsequently produced? Perhaps: imagine a scenario in which a plaintiff claiming a knee injury tweets to the public that he or she just finished hiking up a mountain. The tweets themselves could ruin his or her case, and the user information could verify that it was indeed the plaintiff sending the tweets. Litigants and their counsel must be cognizant that tweets might come back to bite them in litigation. Accordingly, when it comes to social media, be aware that ‘social’ likely means not private!