MLJ Volume 36-1.pdf - Robson Hall Faculty of Law

Social Incrimination 225
obtained as part of a larger criminal investigation. 7 Because Nexopia is
Canadian-based, American laws that limit voluntarily disclosure by hosts
of user information to law enforcement do not apply. 8 As a result, when
users sign up they agree to terms that allow the company to screen for
potentially illegal posts and to disclose them if necessary.
D. Twitter
Twitter is a website which allows individuals to post brief “tweets” and
share them with a broad public audience rather than with a subset of
online friends. It appears infrequently in Canadian case law and has not
contributed significant evidence in either Canada or the US. Although a
very popular site, it does not provide native picture-hosting capabilities
and restricts posts to 140 characters in length, providing a limited
opportunity to express oneself or share potentially incriminating evidence.
Legal discussions have arisen about the unlawful sharing of Canadian
election results, 9 and controversy arose in the US from attempts to
uncover the identities of Wikileaks supporters who may have been
responsible for obtaining stolen government documents. 10 While little case
law exists in regards to defamation, Twitter’s counsel recently told a forum
that this area is very common for litigation and its general policy is to
notify users before handing over their information. 11 For the most part,
most Twitter accounts are completely public, so any discovery would
involve attempting to identify the account owner and the author of posts
rather than uncovering information.
7
See R v Innes, 2007 ABPC 237, 423 AR 14.
8
US, The Stored Wire and Electronic Communications and Transactional Records Access Act,
18 USC § 2701-§ 2712 (2012) [SCA] generally limits ISPs from disclosing information
without a warrant and is discussed later. However, exceptions are made in the US to
case involving harm to children.
9
Canadian Broadcasting Corp v Canada (Attorney General), 2011 ONSC 2281, 105 OR
(3d) 679.
10
In re 2703(d), Order; 787 F Supp (2d) 430 (ED Va 2011) [Re 2703(d)].
11
Alex Macgillivray, “In-House Legal Perspectives” (47 USC § 230: a 15 Year
Retrospective, delivered at Santa Clara Law, 4 March 2011) (podcast) online:
http://itunes.apple.com/itunes-u/id432913282>.