The Modern Archivist

Is There Any Privacy on Social Networking Sites?

1. The answer appears to depend on your privacy settings and the relevance of the data to a lawsuit.  Here are several recent cases and rules that illustrate the state of privacy on social networks today:
2. 1.  In Crispin v. Audigier, the court held that social network communications are private per the Stored Communications Act** (including wall postings that were limited to friends only) and not susceptible to subpoena.  “Moreover, the information the parties gave Judge McDermott establishes that Facebook wall postings and the MySpace comments are not strictly “public,” but are accessible only to those users plaintiff selects.”  Because the communications were private, the discovery was denied except for those messages/wall postings that are accessible to the public. 
3. 2.  In Sasqua v Courtney, the defendant argued that the plaintiff’s client list isn’t confidential since “virtually all personnel in the capital markets industry that Sasqua serves have their contact information on Bloomberg, LinkedIn, Facebook or other publicly available databases.”    In addition, this case has some fun facts (a family business, an uncle suing his niece and a live demonstration – on the stand – showing how to use the Internet to find prospective clients).  Check out more by reading the whole decision or this blog entry.    This is vastly different from a 2008 UK case that ordered an employee to hand over their Linkedin contacts when they left the company. 
4. 3.  In Romano v. Steelcase, the court ordered the plaintiff to deliver a consent that would allow the defendant to gain full access to the “Plaintiff’s current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information.”   The court issued this ruling mainly because the Plaintiff placed her physical condition in controversy and the pages in question likely contained information directly relevant to her claims. 
5. 4.  The NY State Bar Association recently ruled that lawyers can view and utilize Myspace and Facebook profiles so long as they don’t gain access by ‘friending’ the person.  In other words, if your profile is accessible by the public then it is fair game for any litigation.  Specifically, the new rule states:  “A lawyer who represents a client in a pending litigation, and who has access to the Facebook or MySpace network used by another party in litigation, may access and review the public social network pages of that party to search for potential impeachment material. As long as the lawyer does not “friend” the other party or direct a third person to do so….” 
6. 5. In State v. Huertas, the defendant’s social network postings were used as evidence during the sentencing phase of her criminal case.  The judge noted that the postings showed a failure of the defendant to take responsibility for her actions after she gave drugs to a friend and then failed to seek help as her friend lay dying.    
7. 6.  Lastly, in the case of Cvent v. Eventbrite, the court ruled that public websites (those capable of being browsed by the public) are susceptible to scraping since the information is public (“scraping” is the methodical gathering of data from a website usually done by small programs that travel to the site, gather the data and send it back to the host).  While this is not about a social network, the same principles apply – namely that public information is fair game.  If you want more info on scraping, methods to stop it and the lawsuits around it, please see Eric Goldman’s blog. 

Although it is too early to find many hard and fast rules surrounding social networking sites and litigation, here are ones that are easy to spot:  1) Data from social networking sites is often used as evidence in lawsuits;  2) That data is discoverable (even deleted pages); and 3) Your best bet to quash a subpoena using the SCA is to make sure no information is completely public. 

Or maybe the answer is either to stop using Facebook entirely or just change your name. 

** The Crispin court also provided a nice overview of the cases involving the Stored Communications Act.  Here is a short synopsis from page 13 of the decision:  Viacom International Inc. v. Youtube Inc., 253 F.R.D. 256, 264 (S.D.N.Y. 2008) (the SCA prohibits disclosure of information pursuant to a civil subpoena because the Act “contains no exception for disclosure of such communications pursuant to civil discovery requests”); In re Subpoena Duces Tecum to AOL, LLC, 550 F.Supp.2d 606, 611 (E.D. Va. 2008) (“Applying the clear and unambiguous language of § 2702 to this case, AOL, a corporation that provides electronic communication services to the public, may not divulge the contents of the Rigsbys’ electronic communications to State Farm because the statutory language of the [SCA] does not include an exception for the disclosure of electronic communications pursuant to civil discovery   subpoenas”), etc.  For more information on the SCA, see this article. 

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• Deleted Facebook and MySpace Posts Are Discoverable–Romano v. Steelcase (ericgoldman.org)
• Do Your Social Networking Privacy Settings Matter If You Get Sued? (blogs.forbes.com)