D.Nev.: School officials accessing plaintiff’s Twitter postings didn’t violate the First or Fourth Amendments

School officials accessing plaintiff’s Twitter postings didn’t violate the First or Fourth Amendments. There is no reasonable expectation of privacy in Twitter postings. Roasio v. Clark County School District, 2013 U.S. Dist. LEXIS 93963 (D. Nev. July 3, 2013):

Twitter is an online social media site whereby its users “tweet” their thoughts. A “tweet” is a message by a user of Twitter. A user of Twitter has “followers,” which are other users of the Twitter social media site, that may read an individual’s thoughts or “tweets.” Plaintiffs argue that Juliano had a reasonable expectation of privacy in his tweets because his tweets were limited to his followers – i.e., a limited audience viewed or read Juliano’s tweets.

Twitter provides two privacy settings to its user: public and private. If a user maintains a public setting, then any of his or her followers may read the user’s tweets. Additionally, anyone searching the internet may view and read a public user’s tweets whether or not that person is a follower of the tweeter. When a user with a public privacy setting tweets a message, he or she intends the message to be heard by the public at large. It just happens that typically the only people that read the tweet are the users’ followers. A tweet from a user with public privacy settings is just a twenty-first century equivalent of an attempt to publish an opinion piece or commentary in the New York Times or the Las Vegas Sun. When a person with a public privacy setting tweets, he or she intends that anyone that wants to read the tweet may do so, so there can be no reasonable expectation of privacy. See, e.g., United States v. Meregildo, 883 F.Supp.2d 523, 525 (S.D.N.Y. 2012) (“When a social media user disseminates his postings and information to the public, they are not protected by the Fourth Amendment.”). The only real difference is Twitter will publish almost anything, while
newspapers selectively publish opinion pieces.

When a user maintains a private setting, then only his or her followers may read the tweet. If a person who is not a follower of a private user’s profile searches and finds that private user’s profile, that person who searched and found the profile may not read any of the private user’s tweets (though there could be an exception for “re-tweeting” that is irrelevant under the facts of this case). A Twitter user with his or her privacy setting set to private has a more colorable argument about the reasonable expectation of privacy in his or her tweets than a user with a public setting. However, even with a private account, the user is still “disseminat[ing] his postings and information to the public, [and] they are not protected by the Fourth Amendment.” Meregildo, 883 F.Supp.2d at 525. In this case, plaintiffs allege that Juliano maintained a private account. The defendants dispute this contention. At the motion to dismiss stage, the court will accept plaintiffs’ factual allegations as true. However, whether Juliano maintained a private Twitter account is irrelevant in this case.

Even though Juliano has no reasonable expectation of privacy in his tweets, there was still no Fourth Amendment violation because the school administrators accessed Juliano’s tweets via one of his follower’s accounts. Plaintiffs argue that defendants violated the Fourth Amendment because they discovered Juliano’s tweets when one of Juliano’s followers gave the tweets to administrators.

However, it is well-established that when a person shares information with a third party, that person takes the risk that third person will share it with the government. United States v. Choate, 576 F.2d 165, 175 (9th Cir. 1978) (“This Court has repeatedly held that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.”); United States v. White, 401 U.S. 745, 751-52 (1971) (“The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government.”).

This logic applies with equal force in the social media context. When a person tweets on Twitter to his or her friends, that person takes the risk that the friend will turn the information over to the government. Meregildo, 883 F.Supp.2d at 526 (“Where Facebook privacy settings allow viewership of postings by ‘friends,’ the Government may access them through a cooperating witness who is a ‘friend’ without violating the Fourth Amendment.”).

Plaintiffs’ causes of action under 42 U.S.C. § 1983 for violations of the Fourth Amendment is dismissed against all defendants.

Back to blog