Anita Ramasastry

Facebook and MySpace Postings in Court: In a Lawsuit, Privacy Settings May Not Matter

By ANITA RAMASASTRY
Wednesday, September 29, 2010

Users of social-networking sites may believe that the contents of their pages are "private" because they have set their user controls or privacy settings to render their postings invisible to the public, and visible only to designated friends or relatives.

Recently, however, a New York court held that such postings must still be produced in response to discovery in a civil suit. Otherwise, the court reasoned, privacy settings could allow plaintiffs to hide relevant evidence.

In contrast, in a California case, the court tried to preserve some modicum of privacy on social-networking sites, at least for now. In this column, I'll analyze both cases, and comment on what the legal standard should be.

The New York Lawsuit: A Discovery Request Seeks Facebook and MySpace Postings

The plaintiff in the New York suit is Kathleen Romano. Her suit is a personal-injury matter, and the defendant is office-chair manufacturer Steelcase, Inc.

Romano alleges that, in 2003, she sustained injuries while performing clerical duties at Stony Brook University Medical Center, when the Steelcase chair she was sitting in collapsed. Due to her injuries, she says, in the ensuing seven years she has been unable to work, has been mainly house-bound , and has lost the ability to fully enjoy her life. Romano's attorney notes that she has had several spinal surgeries, with medical expenses of at least $200,000.

The defense claims that Romano's Facebook and MySpace postings and photos will tell a somewhat different story -- depicting trips to Florida and Pennsylvania that, they claim, show that Romano still has the ability to enjoy her life. Accordingly, they sought copies of Romano's current and deleted postings.

The New York court ultimately granted Steelcase's motion to compel production of this evidence, on the ground that the information contained in Romano's social- network postings was "material and necessary" to the case, and was not legally shielded by Romano's own use of self-selected privacy settings .

In the course of its analysis, the court discussed the federal Stored Communications Act ("SCA"), which limits the government's ability to compel Internet Service Providers to "disclose information in their possession about their customers and subscribers." The SCA is a complicated statute -- notoriously difficult to apply to new social media -- and Congress is now revisiting it. Thus, here I will focus primarily on the New York court's determination that social-networking postings and comments do not fall under the SCA because they are not private communications.

The Court Found No Reasonable Expectation of Privacy in "Private" Facebook Postings

The New York court focused, in part, on Fourth Amendment precedent to determine whether the use of privacy settings on sites such as Facebook and MySpace gives Internet users a reasonable expectation of privacy in their social-networking postings. Ultimately, it held that users had no reasonable expectation of privacy.

In support of its holding, the court noted that MySpace warns users not to forget that their profiles and MySpace forums are public spaces, and that Facebook's privacy policy states (among other things) that "You post User Content . . . on the Site at your own risk. Although we allow you to set privacy options that limit access to your pages, please be aware that no security measures are perfect or impenetrable."

Ultimately, the New York court deemed the argument for a reasonable expectation of privacy on such sites mere "wishful thinking."

The New York Court Consulted Relevant Out-of-State Precedent as Potentially Instructive

In the course of its analysis, finding no New York law directly addressing the issue, the New York court looked to precedent from other jurisdictions as being potentially instructive.

The court considered, for instance, a 2009 case from Colorado, Ledbetter v. Wal-Mart Stores Inc . There, the defendant, Wal-Mart, had subpoenaed the contents of plaintiffs' social-networking postings. Again, the issue was the true extent of the plaintiff's injuries. The Colorado court compelled discovery, noting that the information sought by the subpoenas fulfilled the legal standard: It was "reasonably calculated to lead to the discovery of admissible evidence and is relevant to the issues in the case."

The New York court also considered the Canadian case of Leduc v. Roman , where a defendant requested production of the plaintiff's Facebook material. There, too, the plaintiff claimed that as a result of injuries (there, injuries sustained in a car accident), his enjoyment of life was lessened. The Canadian court allowed discovery of the Facebook material.

In support of its ruling, the Canadian court noted that it was "beyond controversy" that a person's Facebook pages might contain relevant documents. The court also noted that other Canadian courts had allowed as evidence photographs that had been posted on a person's Facebook page, which showed whether a person at issue had engaged in certain activities in which he or she had claimed not to engage.

The Canadian court also concluded that it is reasonable to infer -- from the social- networking purpose of Facebook -- that even if a person maintains a fully private profile (with only the person's name accessible to the public), relevant information may still exist on that person's limited-access private pages.

A California Court Has Reached a Conclusion Opposite to that of the New York Court, Recognizing a Place for Privacy on Social-Networking Sites

In a recent California case, the court's ruling was quite different. There, artist Buckley Crispin sued an apparel company, Christian Audigier, for using his designs in ways that he claimed violated his original contract by exceeding the scope of his licensing agreement. Audigier responded by issuing subpoenas to Facebook, MySpace, and two other third parties, seeking communications by Crispin about Audigier.

Crispin's lawyers argued that such communications were protected by the SCA Initially, a magistrate judge recommended that the court should hold otherwise, but on appeal, another judge ultimately agreed with Crispin. The judge pointed out that social- messaging or e-mail services offered by networking sites are covered by the SCA; and added that "Facebook wall postings and the MySpace comments are not strictly ‘public,' but are accessible only to those users plaintiff selects."

Thus, only if Crispin had set his Facebook wall to allow viewing by "everyone" would his postings have been deemed truly public in the eyes of the California court. If Crispin's setting were "Friends Only," his status updates would be considered as private as an email message.

The Right Approach May Stake Out Some Middle Ground

As social-networking sites are still fairly new, it is no surprise that courts are disagreeing about the legal issues they raise. In prior columns such as this one and this one , I've described other questions raised by modern technologies-- Should cellphones be allowed in court? Should the Internet be permitted to be used in voir dire? -- that have also recently divided courts.

On the issue of the discovery of social-networking site postings, there may be a middle ground -- or a sliding scale. Perhaps "Friends Only" postings can be considered private, but not "Friends of Friends" postings, for example.

Perhaps courts could presume that postings are public (and thus discoverable), but parties could seek to rebut that presumption, based upon the manner and way in which a given posting was restricted or shared.

Clearly, a posting on a social-networking site is not as private as an email. Yet social-networking sites do allow information to be shared exclusively with a limited class of people -- including only friends and family. In so doing, they do offer a limited form of privacy. Courts may eventually realize as much.

For now, however, social-networking users are best advised to assume conservatively that, if they are ever caught up in a lawsuit, their postings will be deemed public for purposes of discovery, could be used by the opposition, and could even be made public in a courtroom someday.


Anita Ramasastry, a FindLaw columnist, is the D. Wayne and Anne Gittinger Professor of Law at the University of Washington School of Law in Seattle and a Director of the Shidler Center for Law, Commerce & Technology. She has previously written on business law, cyberlaw, computer data security issues, and other legal issues for this site, which contains an archive of her columns

Ramasastry is currently on leave from the University to work for the federal government. The views expressed in this column are solely those of Ramasastry in her personal capacity and do not necessarily represent the views of any of her employers, past or present.

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