• Be Careful What You Post: Social Networks Are Discoverable
  • October 28, 2010
  • Law Firm: Keating Muething Klekamp PLL - Cincinnati Office
  • The first case in the District of California, is Buckley H. Crispin v. Christian Audigier, Inc.,  where the federal judge on appeal ruled that private postings on social networking sites such as MySpace and Facebook would be protected against third party subpoenas in civil cases under the privacy provisions of the Stored Communications Act of 1986. This sounds great for those advocates of privacy laws; however, this ruling only pertained to  those portions of the sites that were marked “private.” Only the sections of Mr. Crispin’s site that were restricted to his friends  were considered private and not discoverable by the California Court system for a third party subpoena. The court went so far as to liken the private portion of the networking sites as private as e-mail.  This court found that the SCA’s protections applied to only the wall postings and comments that were not available to the general public. This decision begs the question of whether anyone can avoid discovery by simply modifying his or her settings at the time of the lawsuit, or do you need to determine at the time of the alleged wrongdoing what the level of privacy was on someone’s site? Also, many people have thousands of “friends” on their sites that can see the “private” contents of the sites. Does this mean this information is still considered private? What if the user of a social networking site is unaware of the different levels of restrictions to his or her web site? 

    In the second case, Romano v. Steelcase, a new York Judge ruled that defendant Steelcase was entitled through discovery to access the plaintiff’s current and historical Facebook and MySpace pages and accounts. This included previously deleted information that could prove to be inconsistent with plaintiff’s claims of injuries and loss of enjoyment of life. Ms. Romano claimed that she fell off of a defective Steelcase chair which caused her permanent injuries, pain, multiple surgeries and loss of enjoyment of life. Defendant Steelcase claimed that the public portions of her Facebook and MyShape pages proved that since the alleged accident she still had an active lifestyle including a trip to Florida. Defendant states that the public portions of her sites were inconsistent with her claim that she was largely confined to her home in bed. Justice Jeffrey Arlen Spinner agreed that the private portions of Ms. Romano’s social networking sites might contradict her claims. The New York Judge also based his ruling on the claim that the primary purpose of all social networking sites is to enable people to share information about how they lead their social lives even though these sites have “self-set privacy controls.” The Judge ruled on the fact that both social networking sites state explicitly on their sites that they can not guarantee the privacy of information posted by their users. In fact MySpace warned users “not to forget that their profiles and MySpace forums are public spaces.” The Judge further stated that:

    Thus, when Plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings. Indeed, that is the very nature and purpose of these social networking sites else they would cease to exist. Since Plaintiff knew that her information my become publicly available, she cannot now claim that she had a reasonable expectation of privacy. As recently set forth by commentators regarding privacy and social networking sites, given the million of users, “ [i]n this environment, privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking.”

    This proves once again that attorneys must be proactive when they are talking to their clients regarding documents. They should not forget to inquire about social networking sites, blogs and twitter accounts as well as the standard e-mail, blackberry and other media. It must be made clear that any information on these social networking sites could be discoverable depending on the relevance to the case. This issue has just begun to be litigated, and I am sure it will continue to be more controversial as the rulings, both pro and anti-privacy, are heard.