A New York Criminal Court weighs in on the first post-Carpenter Instagram case.

It may seem strange for a Chicago lawyer to feature a New York trial court decision on an internet blog since it will have no precedential value anywhere, but when the very first Carpenter decision involving an Instagram account was handed down, I took notice. In this case, the defendant is charged with violations of New York State laws of harassment and unlawful disclosure of nude images.

In a nutshell, the defendant allegedly threatened her boyfriend’s ex-girlfriend and allegedly posted nude photos of her on 2 Instagram accounts, one of them in her name and one of them created by an unknown person in her name. Search warrants were issued for the 2 Instagram accounts. At issue here is whether the warrants lacked probable cause or were overbroad, lacking sufficient particularity.

After discussing some of the technical nature of how an Instagram account works, the court went to some lengths to point out that current NY law does not adequately address issues that arise in digital searches.

In this case, the search warrant was issued pursuant to the Federal Stored Communications Act, directing Instagram to comply. In addressing the standing issue here, the Court noted that the defendant provided no affidavit to the court regarding the privacy settings that existed for these Instagram accounts nor has the defendant stated that she has any privacy interest in the account created in the complainants name. As a result, the court has ordered that to continue on with these issues, the defendant must provide evidence that the accounts were created or controlled by her, and if so, the privacy settings she maintained for each account.

The Court also went into the details of the investigation to establish that, based on the complainant’s account, there was probable cause to issue the search warrants. Regarding particularity and overbreadth, the court looked to a Second Circuit test for particularity, the court ruled that the IP address and metadata requests were sufficiently particular and not overbroad.

The Court deferred ruling on the defense complaints that the warrant had no date and time restrictions, and directed the prosecutor to disclose everything to the court that was recovered from the Instagram accounts as well as when the warrants were executed.

The case is People v Sime, 2018 N.Y. Misc. LEXIS 4293, 2018 NY Slip Op 28302, Crim. Ct of NY, Bronx County (October 2).

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