In Court? Be Careful What You Post On Facebook

mbone writes "Going to court? Seeking damages for injuries? Be careful what you post on Facebook (and, presumably, elsewhere). In the first case of its kind (analyzed in the Courtroom Strategy blog), a Suffolk County, NY Judge allowed a defendant in a personal injury lawsuit to obtain access to the Facebook profile of the plaintiff suing them, saying 'Plaintiff has no legitimate reasonable expectation of privacy.' You have been warned. I am not a lawyer, and this is not legal advice, but I would expect this to become common." Readers might be reminded of the Canadian case reported last year of a woman whose cheerful Facebook pictures led an insurance company to yank coverage.

Comments

The Plaintiff?

[Reilaos]

That's pretty strange. It's almost as if he's the one on trial.

Re:The Plaintiff?

[boxwood]

Yeah its almost as is the Defendant was trying to defend himself by proving the Plaintiff wasn't really injured.

Re:The Plaintiff?

[x_IamSpartacus_x]

I agree with you and think this isn't that big of a deal.

I've tried to look into the details of this and this is what I've come up with.
A woman named "Romano" is suing Steelcase Inc for some kind of personal injury and is seeking damages to pay her for "loss of enjoyment of life". The judge granted Steelcase Inc the ability to look into Romano's personal files to show that she's not telling the truth in her claims of injury "especially her claims for loss of enjoyment of life". Here's the court order.

The present application was brought on by Order to Show Cause. The Court has reviewed the submissions both in favor of and in opposition to the relief sought, as well as the applicable federal statutory law, specifically the Stored [*2]Communications Act, 18 U.S.C. 2701 et seq., which prohibits an entity, such as Facebook and MySpace from disclosing such information without the consent of the owner of the account (see, 18 U.S.C. 2702(b)(3); Flagg v City of Detroit, 252 FRD 352 [ED Mich 2008]).

In the "Stored Communications Act 18 U.S.C section 2701 subsection (a) article (1) basically says you can't go snooping around in other people's facebook/myspace/emails but subsection (c) article (3) says section 2703 shows some exceptions. Here's 2701.
Hop over to section 2703 and in subsection (b) article (1) subsection (B) subsection (ii) says you can get a court order as long as you follow article 2703 subsection (d) which give the rules for a court order. Basically if the plaintiff “specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation” then they can go for it.
Now the only thing that I can see that can derail this is if this isn’t a criminal investigation. Otherwise this isn’t a revolutionary ruling and it’s completely within the bounds of the letter of the law.
Here's 2703.

If you’re going to sue someone for personal injury don’t post things online that contradict what you’re claiming in court. Not that hard to figure that out.

Re:The Plaintiff?

[Jurily]

Hop over to section 2703 and in subsection (b) article (1) subsection (B) subsection (ii) says you can get a court order as long as you follow article 2703 subsection (d)

No, at this point you give up and ask a lawyer. Wanna bet there's another text somewhere that further qualifies this?

Re:The Plaintiff?

[cheekyjohnson]

"Yeah its almost as is the Defendant was trying to defend himself by proving the Plaintiff wasn't really injured."

Odd, I thought it was "innocent until proven guilty." Shouldn't the plaintiff be the one who proves that the defendant injured them? The defendant shouldn't have to prove that they didn't injure them.

Re:The Plaintiff?

[fractoid]

This is a civil, not criminal, hearing, right? In that case there's none of this 'beyond reasonable doubt' and 'innocent until proven guilty' stuff, you just have to show that you've got a bit of a point. That's why ridiculous things happen like some sports star being charged of rape, successfully defending the charge in criminal court, and then being immediately sued in a civil court for damages over the 'emotional trauma' caused by the rape that no-one could prove even happened.

Regardless, if you're being charged with permanently injuring someone, while the onus of proof is on them to show that you did it, it may well be quicker, cheaper easier to show that they're not, in fact, injured, than it would be to wait for them to produce some sort of evidence and then rebut that evidence.

Re:The Plaintiff?

[fractoid]

Speaking of lawyers... the judge said "I am not a lawyer." How do you get to be a judge, then? I always thought judges were promoted from the ranks of lawyers... can you go to university to study judgification?

Re:The Plaintiff?

[bruce_the_loon]

That line is from the poster, not the judge. The judge said what in the quotes.

Re:The Plaintiff?

[cheekyjohnson]

Yeah, it does make it quicker, but I was just saying that it would be completely idiotic if they would expect the defendant to prove that they didn't do what they were being accused of.

Re:The Plaintiff?

[oliverthered]

I think a record of my ./ posts will show I'm now bitter and twisted.

Re:The Plaintiff?

[TheSpoom]

Uh, the fact that it's not a criminal investigation is pretty significant, since there's likely no other justification for this action on the books.

Re:The Plaintiff?

[cdrguru]

In most parts of the US judges are elected in a lot of situations and otherwise appointed. Their qualifications need to be acceptable to the appointer and nobody else.

Judges that are elected also do not need to be lawyers - they just need to be elected in an election.

Basically, anyone can be a judge as long as people think you are judge material.

if you dont want anyone on the internet to know

[sakura the mc]

then stop posting shit on the internet.

Re:if you dont want anyone on the internet to know

[TheRaven64]

But Facebook has all sorts of privacy controls so that only my friends can see stuff!

Re:if you dont want anyone on the internet to know

[hedwards]

Yeah, that kind of reminds me of that thing Midge on that 70s show said. This is one of those obvious moments like when she said "Bob! If you tell them, they’ll know!".

Re:if you dont want anyone on the internet to know

[Mitchell314]

Then stopping friending judges.

Re:if you dont want anyone on the internet to know

[Anonymous Coward]

Stop posting shit on the internet? But! But stupid people aren't able to do that! I mean, there's all this stuff you would expect people to know they're not supposed to talk about in public, and the stupid people don't even know enough not to do that!

Case in point: One time while riding the bus, a pair of trailer trash girls sitting at the back were talking about their mutual (to their temporary surprise) boyfriend, and all of his bad habits. Including his habit of urinating anywhere and everywhere, and how often they thought they were drinking beer, only to realize that it shouldn't have been that full, or warm. Followed by "And this one time I was jus' down there doin' mah thang, and he jus' start's goin!" "You too? Did ya finish off or throw up?" These two girls were discussing their sex lives and other unsavoury details at sufficient volume that people on the street were blushing every time the bus stopped, and the only open windows were at the front. Some people are just no longer capable of filtering out those "things you shouldn't say in public", and if they can't do that in a crowded public place where people are staring at them in shock at what they're saying, do you think they're capable of stopping when they're sitting alone in front of a computer where nobody can see them?

On a more relevant topic to the article, a friend of mine was going through a very messy divorce, and his psychotic ex was one of those people who friends everyone and their dog on facebook - she unfriended his account, but didn't realize that he still had about twenty or so "real life" friends (including his new girlfriend eventually) who were still on her friends list. Every time she came up with something new to try and screw him over with in court, or attempt to catch him unprepared (ie: without proper forms, paperwork, or research already done) she posted bragging about it on facebook. And then a week later posted complaining about it on facebook when it didn't work because he was always prepared ahead of time. "But I'll totally get him next time when I do this...."

bullshit

[moxley]

Of course he has a reasonable expectation of privacy.

Unless the person was on his friend's list and permitted to see particular posts, the ONLY thing the court should be able to see are things that are viewable by everyone - everything else is SPECIFICALLY set up to be private by way of the passwords and permissions system inherent in having a Facebook account.

Re:bullshit

[WillyWanker]

I was thinking the same thing. If the page is completely public and viewable by anyone then that's one thing. But if it's not, and material is restricted then there most certainly is an expectation of privacy.

Re:bullshit

[Anonymous Coward]

This is a personal injury case. The plaintiff has put their health at issue. By going to the courthouse and claiming that your health was injured you've put your health at issue and the opposing side is given more power to find out about your health.

These slashdot stories about the screwed up law are often the real bullshit here. If we had a story about someone on facebook sending messages suggesting that she wasn't really injured, and then the court didn't allow that evidence into a personal injury hearing, then you'd all be screaming about how stupid the court is.

Re:bullshit

[boxwood]

Uh no.

If I tell all my friends that I'm faking my injury, and the person or company I'm suing hears of it, they can put my friend on the stand and my friend has to tell the court what I said, or risk being charged for perjury.

The company can even hire a PI and can submit photos of you doing activities that you wouldn't be able to do if you were uninjured, as long os the PI doesn't break any laws in getting them.

The courts have always been able to do this, and they've always been able to subpoena things like phone records and emails. Why should it be any different for facebook?

Bottom line, don't sue someone for personal injury if you're not really injured.

Re:bullshit

[causality]

Uh no.

If I tell all my friends that I'm faking my injury, and the person or company I'm suing hears of it, they can put my friend on the stand and my friend has to tell the court what I said, or risk being charged for perjury.

The company can even hire a PI and can submit photos of you doing activities that you wouldn't be able to do if you were uninjured, as long os the PI doesn't break any laws in getting them.

The courts have always been able to do this, and they've always been able to subpoena things like phone records and emails. Why should it be any different for facebook?

Bottom line, don't sue someone for personal injury if you're not really injured.

I always find it amusing whenever there's a story that sums to "social networking sites are like everything else you have ever experienced in your life -- irresponsible/thoughtless use can bite you in the ass" and the people involved seem shocked to discover this.

Re:bullshit

[cynyr]

If i ask the court to look as i feel the plaintiff feels contrary to the suit IRL. So I ask the court to look on facebook to see if he/she has been posting contrary to their position on court. The court looks at my reasons for wanting that information, and in this case decided to let me "discover" what is there. Seems fine to me. Don't be claiming you are injured in court and then brag that you are sueing some guy in court over your paper cut on FB.

Re:bullshit

[hedwards]

No, the plaintiff really doesn't. During discovery the judge can, and often does, order things like emails to be handed over when they're relevant to the case. And emails are far more reasonable to expect to be private than facebook posts are.

Re:bullshit

[morgan_greywolf]

You have to be kidding. From Facebook's TOS:

You hereby grant Facebook an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to (a) use, copy, publish, stream, store, retain, publicly perform or display, transmit, scan, reformat, modify, edit, frame, translate, excerpt, adapt, create derivative works and distribute (through multiple tiers), any User Content you (i) Post on or in connection with the Facebook Service or the promotion thereof subject only to your privacy settings or (ii) enable a user to Post, including by offering a Share Link on your website and (b) to use your name, likeness and image for any purpose, including commercial or advertising, each of (a) and (b) on or in connection with the Facebook Service or the promotion thereof.

Does that look like Facebook gives a damn about your rights or your privacy?

Re:bullshit

[lavagolemking]

Ok, so assuming the plaintiff didn't have a reasonable expectation to privacy, how did the defendent actually access the plaintiff's private Facebook information? Merely the lack of a reasonable expectation of privacy in what is publicly posted should not entitle someone to otherwise unauthorized access to your account. If they want the full array of information collected on Facebook, that's what a discovery or subpoena is for.

Re:bullshit

[demonlapin]

"Reasonable expectation of privacy" is a legal term of art that bears very little relation to what a reasonable person might reasonably expect to be private. For starters, and in general (IANAL) if you've told anyone your secret, you no longer have a reasonable expectation of privacy in that information. So even if you post it as visible only to your friends, you've already felt comfortable sharing it with Facebook and with all those friends. It's no longer a secret. Getting the info from Facebook is just faster than subpoenaing your Facebook friends and compelling them to testify about what they saw there.

Re:bullshit

[causality]

You have to be kidding. From Facebook's TOS:

You hereby grant Facebook an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to (a) use, copy, publish, stream, store, retain, publicly perform or display, transmit, scan, reformat, modify, edit, frame, translate, excerpt, adapt, create derivative works and distribute (through multiple tiers), any User Content you (i) Post on or in connection with the Facebook Service or the promotion thereof subject only to your privacy settings or (ii) enable a user to Post, including by offering a Share Link on your website and (b) to use your name, likeness and image for any purpose, including commercial or advertising, each of (a) and (b) on or in connection with the Facebook Service or the promotion thereof.

Does that look like Facebook gives a damn about your rights or your privacy?

A site specifically designed to appeal to petty exhibitionists who need attention, by its very nature, is not going to attract people who have their own best interests at heart and are willing to act accordingly with regard to privacy. This is true for all of the same reasons that there are a lot of alcoholics at AA meetings. If Facebook doesn't give a damn about privacy it's because they have discovered something: you can be a big-name site and attract millions of users without giving a damn about privacy.

Re:bullshit

[Anonymous Coward]

They didn't.

"In light of the fact that the public portions of Plaintiff's social networking sites contain material that is contrary to her claims and deposition testimony, there is a reasonable likelihood that the private portions of her sites may contain further evidence such as information with regard to her activities and enjoyment of life...." --emphasis mine

>>>If they want the full array of information collected on Facebook, that's what a discovery or subpoena is for.

...and that's the means they used.

Re:bullshit

[koick]

IANAL so don't know full ramifications of the "subject only to your privacy settings", but seems to me that means if I set something as private then it's private between myself and the person(s) I shared it with.

Re:bullshit

[morgan_greywolf]

On the public Internet?

There's an old Chinese proverb that goes something like this: "A secret one person knows is a secret; a secret two people know is no secret; a secret three people know is information shouted to the world."

You can add a corollary to that: "Anything posted to the Internet counts as three people."

As others have pointed out, the Internet is just like real life. If you're suing someone for injury and then tell your friends that you aren't really injured, the defense attorney, if they find that out, can subpoena the people you told and the court can and will compel them to testify.

Re:bullshit

[rickb928]

In the 80s, a good friend of mine retired from police work and went into PI work for insurance companies. He related one of his early close calls to me...

He went out into the woods a bit to videotape a man who was collecting worker's comp for a back injury for a few years. He taped him for a half hour chopping wood in his backyard. After a moment's break looking around (it was deer hunting season), the subject put down the axe, walkd over and picked up his rifle, and looked to be sighting a deer.

My friend is still taping, and he zooms in for a moment, sighting right down the scope. He can see the subject's eye in the scope.

The first round hit 2 feet to his right. He moved out.

The subject spent the next two weeks looking for my friend. At the next administrative hearing, he got to see the tape. My friend is a patient and kind man. He offered to refuse to testify at a trial for attempted murder if the subject gave up his claim and went back to work. Sadly, the subject balked, and went to jail for aggravated assault. And this cost him his job. Apparently, at the nearing, he railed on about how the PI was trespassing. He was filmed from a public logging road.

BJ went on a long career catching people doing all kinds of bad things. His PI work turned his opinion of people sour much more than his police work did. He was even more disappointed at the things people would do for just money, and not very much at that.

Discovery sucks, but being guilty sucks more.

Re:bullshit

[maxume]

I don't understand why you would treat a friends-only Facebook posting any differently than you would treat an email.

Re:bullshit

[Anonymous Coward]

Sorry... I find this humourous. It's only specifically set up as "limited visibility," and only until Facebook changes their TOS/Privacy Policy/etc.

If it's on Facebook, it's available to the public, or at least to the court/government (of any participatory country) with a subpoena (or not). Don't post stuff in public that you want to stay private. This is why the Canadian government has had issues with Facebook and has stated that it violates Canadian privacy laws.

Re:bullshit

[arivanov]

I do not think the defendant should have been allowed this for completely different reasons.

By refusing to pay they are essentially implying that the claimant has committed insurance fraud and filed a fraudulent claim. That is a felony in nearly any jurisdiction. So they should put their money where their mouth is on this one and sue her accordingly or at least countersue her immediately after she filed a lawsuit.

Then they can subpoena access to her facebook account and a whole lot of other stuff. That is the way this should be done instead of granting the defendant access to material which they should not have to.

Re:bullshit

[TheoMurpse]

Getting the info from Facebook is just faster than subpoenaing your Facebook friends and compelling them to testify about what they saw there.

And before someone complains that this would be inadmissible in court due to the rules barring hearsay, statements made against interest are by definition not hearsay in the Federal Rules of Civil Procedure. In some states, I know for a fact it is by definition not hearsay. In other states, I would wager it is the same, or is at least an exception to the rule barring hearsay.

Re:bullshit

[Adrian Lopez]

If I tell all my friends that I'm faking my injury, and the person or company I'm suing hears of it, they can put my friend on the stand and my friend has to tell the court what I said, or risk being charged for perjury.

The key distinction being that your friend did indeed have access to your profile. The general public did not.

Re:bullshit

[Adrian Lopez]

Unless the person was on his friend's list and permitted to see particular posts, the ONLY thing the court should be able to see are things that are viewable by everyone - everything else is SPECIFICALLY set up to be private by way of the passwords and permissions system inherent in having a Facebook account.

That's exactly right. People make their profiles private so only their friends can see them. It's one thing when a court of law orders my friend testify, but the notion there's generally no reasonable expectation of privacy is ridiculous. If I limit access to my profile so only my friends can see it, it is perfectly reasonable to expect that only my friends will have access to it.

Re:bullshit

[rickb928]

He should be in the grave. I know I can shoot better than that.

But for the subject, losing his comp AND his job was punishment enough. There is the question of leaving a person free who was willing to commit murder, but it is also very possible he meant off scare off BJ. Mind you, that's still assault at least.

Re:bullshit

[kesuki]

"I always find it amusing whenever there's a story that sums to "social networking sites are like everything else you have ever experienced in your life -- irresponsible/thoughtless use can bite you in the ass" and the people involved seem shocked to discover this."

that reminds me of something i read lately. Stephen king/peter straub novel 'black house' ISBN 0-375-50439-7 something about 'the fisherman' and bitten asses..

Re:bullshit

[DCFusor]

Yeah, really, I'm a competitive shooter myself. Had I been filming that I think I've have started moving real quick when the rifle came up. Either the guy was real lucky, or the bad guy was a lousy shot -- on purpose or by accident. Give me a couple seconds and I can always put one inside 1 MOA (for you guys who don't know what that means, it's inside an inch at 100 yds, scaling with distance). I don't know many hunters who are as good, but if you're close enough to see an eye in the scope, man, you're too close for an even mediocre shooter to miss most of the time.

Re:bullshit

[rickb928]

Most of my field shots were 50yds, but I scored well with the 6X scope on the Springfield we had for long shots. BJ says he was 200yds out, and the video sort of supports that. 30x zoom on those old cameras was really awful, but it was obvious the guy was chopping wood. His comment about the scope was, to me, something like seeing the lenses flare, but he liked to tell the eye story better. Of course, he could have misjudged the distance, but I think the subject was shooting a .308 scoped, and I'm not at all partial to those. My mom's .300 Savage was sweet, but the .30-06 was really quite nice to shoot. I would have expected to make the shot with that, but a hunting .308 is just not my choice.

BJ didn't embellish much in the old days. But he believed the subject intended to hit him. People do weird things.

Re:bullshit

[Anonymous Coward]

Errr, since he was the victim, I'm pretty sure it would be pretty hard to get an obstruction of justice charge to stick.

Re:bullshit

[bws111]

The Fifth Amendment only says you can't be compelled to testify against YOURSELF. There is no 'right not to answer' for any other reason.

Re:bullshit

[sumdumass]

When the defendant is a large company with lots of money at stake, then it's possible they hired private investigators to prove the charges against them false or to inject enough reasonable doubt in order to lesson the monetary effects involved with them.

Imagine this scenario for instance. Suppose you are suing me for the same situation. Now, I call your neighbor and ask them for a work reference claiming you listed them on an application a while back. I ask seemingly work related questions that they will presumably answer in a way that would promote you (unless they don't like you). So I ask if you are a good worker, if you would be able to lift 50-70 pounds on a regular basis. I ask if you whatever ending with, if you were me, would you hire this person for this job. And I would describe the job as one that wouldn't be capable if the accusations of injury were true. Now, I don't stop with your neighbor, I go through all the references on your last job, have the detectives do some associations and check out other friends, search the internet for your myspace or face book pages, search friends, look for other people that seem to have you listed as a friend, then I attempt to paint a picture that all the people I pretended to interview as a job reference, and the majority of online references showed your claim was frivolous or lacking.

Now here is the catch, your expectation of privacy does not outweigh a defendant getting a fair trial. In short, you will have to give up some privacy in order to pursuit your case against someone. This is known as discovery in which you give all information pertinent to the case to the defendant/other-side. But if the court or the defendant think other information is pertinent, or that information is likely to exist that would have some bearing on the case, then they can order or get the information ordered to be disclosed. And this is all part of loss of the expectation of privacy when you bring a case against someone. About the only way you can avoid it is to drop the case and hope they don't counter sue and bring it up.

Re:bullshit

[sumdumass]

By refusing to pay they are essentially implying that the claimant has committed insurance fraud and filed a fraudulent claim. That is a felony in nearly any jurisdiction. So they should put their money where their mouth is on this one and sue her accordingly or at least counter sue her immediately after she filed a lawsuit.

The government would have to file charges on her if it's a felony. The insurance company could only have standing for a civil suit over the felony if they can show they were injured in the act which is what refusing to pay is stopping. Well, that is unless the law specifically allows them to sue without injury which I'm not aware of any laws doing that for stuff like this.

So in reality, it's sort of a catch 22 for what your thinking off. They would have to lose their case that was brought against them for not paying in order to be injured, but if they lose that, then they couldn't prove they were injured since a court showed it was a valid claim and they had to pay.

Re:bullshit

[Geoffrey.landis]

...My friend is a patient and kind man. He offered to refuse to testify at a trial for attempted murder if the subject gave up his claim and went back to work.

That would be "obstruction of justice," Your friend is not only stupid, he should be in jail.

Wow, I'm not sure, but this may be the first time any of my comments has been moderated "Troll". (I believe I may have gotten "flamebait" before).

Offering to refuse to testify at a trial for attempted murder because you made a deal with the defendent is obstruction of justice, i'm afraid, whether or not the guy is the attempted victim. he guy should be in jail.

Re:bullshit

[Compaqt]

Yeah, Facebook is basically e-mails that are posted on a webpage.

Re:bullshit

[Jedi Alec]

IANAL so don't know full ramifications of the "subject only to your privacy settings", but seems to me that means if I set something as private then it's private between myself and the person(s) I shared it with.

And if a judge subpoena's one of those folks to come on in and testify they're just as obligated to do exactly that.

In other words, if you tell people about you pulling stupid shit and whoever you're up against in court finds out, those people are going to (have to) tell on you.

Re:bullshit

[Walter Carver]

Your friend was dealing with sour people. If you nice, you don't usually (repeat, usually) get a PI following you. It's natural that he felt sour for people in general. But not all people are like that.

What I mean to say is that the type of your job effects your opinion on lots of things.

WTF would anyone waste time and privacy to have...

[Anonymous Coward]

their 15 minute of fame. Because Facebook and other systems like it leverage the rather insecure feeling of meaningless most people have about themselves. Suckers be suckers, get what you deserve.

Privacy Policy?

[JohnG]

It seems to me that this completely nullifies any privacy policy in force on any website. If you have no "legitimate reasonable expectation of privacy" with a privacy policy in force, than how can an employee of the website in question, or the management themselves, get in trouble for violating said policy? Judges really need to be careful what garbage they spew out, lest they set the wrong precedent.

Re:Privacy Policy?

[Anonymous Coward]

... how can an employee of the website in question, or the management themselves, get in trouble for violating said policy?

By not being judges and/or legal officials gathering evidence for use in a trial.

Re:Privacy Policy?

[causality]

It seems to me that this completely nullifies any privacy policy in force on any website. If you have no "legitimate reasonable expectation of privacy" with a privacy policy in force, than how can an employee of the website in question, or the management themselves, get in trouble for violating said policy? Judges really need to be careful what garbage they spew out, lest they set the wrong precedent.

Had you read the article, you'd have seen where the court actually referenced the privacy policy. From that thing you didn't read:

Supreme Court Judge Allen Spinner reasoned -I think completely correctly – that social networking sites are not private lockboxes where you store your most intimate secrets; in fact their privacy policies tell you that they are public spaces. Therefore he said:

“Plaintiff has no legitimate reasonable expectation of privacy.”

Re:Privacy Policy?

[boxwood]

The Privacy Policy is between you and Facebook. There is no privacy policy between you and everyone in the world.

If an employee of Facebook violates the privacy policy between you and Facebook then they can be sued. If Facebook gets a subpoena requesting information from their servers then they have to comply or the judge can throw them in jail. You cannot sue Facebook for complying with a subpoena. Because not complying with a subpoena would be against the law. Contracts cannot compel someone to break the law.

So yeah, a subpoena or search warrant trumps any privacy policy or contract you may have.

So Facebook has to abide by its privacy policy, but the courts do not have to abide by Facebook's privacy policy. You could say the courts are above the law, but its more accurate to say that the courts ARE the law.

Re:Privacy Policy?

[hedwards]

I'm not sure I agree, but ultimately the decision was correct. Most if not all ToS include a line about turning over records when presented with a subpoena relevant to the records. I would've thought that would be the line that did it, however if the ToS state that it is to be considered a public place, that would be a a reasonable ruling as well on the motion.

Re:Privacy Policy?

[JohnG]

I did read the article. The courts can get a search warrant to come into my home and take whatever they want, but I doubt that any judge would ever say about my home that I have "no legitimate reasonable expectation of privacy.” If you have a profile, and you set it to private, than there is a reasonable expectation of privacy. There is not now, nor has there ever been, any privacy against the actions of the courts. Maybe I'm arguing semantics, I just think it was poorly phrased on the part of the judge.

Re:Privacy Policy?

[causality]

I did read the article. The courts can get a search warrant to come into my home and take whatever they want, but I doubt that any judge would ever say about my home that I have "no legitimate reasonable expectation of privacy.” If you have a profile, and you set it to private, than there is a reasonable expectation of privacy. There is not now, nor has there ever been, any privacy against the actions of the courts. Maybe I'm arguing semantics, I just think it was poorly phrased on the part of the judge.

Another user did a good job of summing up why the court made this decision. That agreement makes it clear that you lose control over any data you submit to Facebook. Even if they provide privacy controls, they apparently have no obligation to make sure they work as the user intended since the data submitted now belongs to Facebook. Personally, I find the arrangement unappealing in the extreme; that's why I don't use Facebook.

The idea that anything you post to a social networking site is going to remain confidential and private is a false one, of which it seems many need to be disabused. The common sense rule still applies: don't ever post anything that you wouldn't want to be fully public. I never understood what was so difficult about this that motivates people to keep trying to find ways around it.

Re:Privacy Policy?

[Americano]

Yes, you are just arguing semantics.

An "expectation of privacy" has a context, and in this case, the context for that "expectation of privacy" is posts made on Facebook. Given FB's privacy policy, it is not reasonable to assume that your data on FB is private, because FB makes it quite clear that your data isn't really "private," though they "make efforts to keep it private," but specifically call out that it may be disclosed accidentally, or by friends, FB applications, or to properly-constructed and applicable legal requests (subpoenas, etc.)

If your bank offered "social features" that allowed you to link your accounts with a bunch of your friends' accounts, and said "We can't promise other people won't find out how much money you have"... would you bank there? I sure wouldn't, because I want my financial information to be private and secure - and so I wouldn't put my money into a bank that shared my financial info with others.

(And even with a "reasonable expectation of privacy" from a bank... that information is still subject to subpoena and other discovery methods.)

Re:Privacy Policy?

[BrokenHalo]

The common sense rule still applies: don't ever post anything that you wouldn't want to be fully public. I never understood what was so difficult about this that motivates people to keep trying to find ways around it.

The only thing that seems to be difficult is convincing people that this basic rule applies to everyone, no matter whether they be goodies or baddies. The fact is, people are reluctant to accept responsibility when their own stupidity comes back to bite them on the ass.

Re:Privacy Policy?

[TheoMurpse]

Or you could think of the contract between you and Facebook as creating a political subdivision of the US, subservient to municipal, state, and national law. It controls the behavior of its citizenry (you and Facebook), but not those superior to it (a city, state, and nation).

Re:Privacy Policy?

[Adrian Lopez]

Another user did a good job of summing up why the court made this decision. That agreement makes it clear that you lose control over any data you submit to Facebook. Even if they provide privacy controls, they apparently have no obligation to make sure they work as the user intended since the data submitted now belongs to Facebook. Personally, I find the arrangement unappealing in the extreme; that's why I don't use Facebook.

That's a technicality. A person's expectation of privacy depends more on the nature of the service (such as the fact that it has privacy controls) than on the contents of a document most people never read. While I don't think there's any problem in allowing access to private data when it's legally warranted, the notion that my Facebook profile is public even when I've made it private is not at all reasonable.

Re:Privacy Policy?

[causality]

Another user did a good job of summing up why the court made this decision. That agreement makes it clear that you lose control over any data you submit to Facebook. Even if they provide privacy controls, they apparently have no obligation to make sure they work as the user intended since the data submitted now belongs to Facebook. Personally, I find the arrangement unappealing in the extreme; that's why I don't use Facebook.

That's a technicality. A person's expectation of privacy depends more on the nature of the service (such as the fact that it has privacy controls) than on the contents of a document most people never read. While I don't think there's any problem in allowing access to private data when it's legally warranted, the notion that my Facebook profile is public even when I've made it private is not at all reasonable.

The legal agreement under which you use the site is more than a "technicality", as this judge has reiterated. You can downplay that fact because you don't like it, but that won't change the reality. Personally, I don't like it either, but it makes no sense to me at all to use the site under that agreement and then complain about the agreement. That'd be ridiculous, sort of like ordering salmon at a restaurant and then, when the waiter comes back with it, complaining that I don't like salmon. If I don't like the taste of salmon I don't order it. If I don't like the way a site is managed I don't use it. If I use a site without knowing basic facts about it and get a result I don't like, that's my fault and no one else's. The only downside for some people is that living this way might mean they would run out of things to bitch about and excuses to play the victim card.

I will tell you the other way unrelated to the agreement that the privacy controls are no guarantee of anything. Say you declare something (i.e. a photo) private and allow one other person to have access to it. Now that they have access, that person can download the photo (good old right-click and "save as"). If they feel like it, they can now repost it anywhere, including to their own Facebook page with no privacy controls. I doubt that's an exhaustive list of how your settings can be circumvented.

Very simply, no rational person who takes even a moment to investigate the matter is going to conclude that posting materials to Facebook is a really great way to keep them private. That's hard fact, not somebody's feelings about how they wish things would be. What is "reasonable" is based on the actual facts of the matter and at least a half-assed attempt at learning them, which is not difficult in this case.

What if you're on FetLife?

[Anonymous Coward]

I'm not on Facebook, so I don't care, but what if my insurance company wants to see what I've been writing to my Cyber Governess...?

I've been a bad, bad boy..

Re:What if you're on FetLife?

[FuckingNickName]

Well, they'd go through a judge, who would naturally already have an account.

Court doesn't work like that...

[Oxford_Comma_Lover]

You can get access to a huge amount of non-public data about the other party. It's called "discovery," and in civil cases you are supposed to turn over even things that will clearly make the other side win. (Nothing like the fifth Amendment right against compelled self-incrimination applies).

That being said, the discovery requests theoretically are supposed to have something to do with the case. Depending on the case, FB information may or may not be relevant. But keep in mind that Judge's also don't *Want* to get involved in fights over discovery, as a rule, so if the lawyers can't work it out he might just rule against the party that is being the most stubborn.

Incidentally, discovery is a huge part of the reason our justice system is as bad as it is. It has advantages--makes it easier to go after a corporation that has done something evil, for example--but it makes going to court *a LOT* more expensive, which makes the courts less accessible to small and medium-sized businesses and to individuals.

Re:Court doesn't work like that...

[Anonymous Coward]

Discovery makes a justice system bad? Discovery is nothing more than how we deal with the fact that people are people. If people were completely honest, and fair, then yeah, discovery wouldn't be necessary, but then neither would be a court of law.

Even if somebody isn't lying deliberately, people are more than capable of distorting the truth just because they are biased in favor of their own interests.

I don't know what problem you think Discovery causes, but the lack of it would be far far worse.

Re:Court doesn't work like that...

[Oxford_Comma_Lover]

> I don't know what problem you think Discovery causes, but the lack of it would be far far worse.

The lack of it in *every* case might be bad, but in most cases, a very very limited discovery would be sufficient. Notably, in most business disputes, everyone has good records and all of the paperwork. In most other disputes, everyone already *knows* what happened, otherwise they wouldn't be in court. Adding discovery just makes the trial longer and more expensive, which increases the transaction costs of trials, which makes the justice system less accessible.

Make someone produce what they're going to use, unless they can make a good showing for why that's not sufficient.

Discovery is also something that's a pain to efficiency nerds, because it is so frequently an incredible waste of resources and duplication of work. Both sides paying lawyers to review tens of thousands or millions of the same pages, when ninety-nine out of a hundred times the case could be resolved the same way without the expenditure if neither side were able to do discovery.

And look up "e-discovery" for related problems.

Re:Court doesn't work like that...

[Anonymous Coward]

The lack of it in *every* case might be bad, but in most cases, a very very limited discovery would be sufficient.

There are provisions in many places for limited discovery, which if you'd said was what you wanted, I'd at least accepted. You didn't even qualify your remarks with a modifier like "Unrestrained" though so...yeah, to me, it seems you're overreaching a tad.

Re:Court doesn't work like that...

[rickb928]

"Notably, in most business disputes, everyone has good records and all of the paperwork."

Mod parent FUNNY. Please.

In suits against corporations, records and evidence are always the first thing to be destroyed. Just as you would perhaps delete and burn the photos of your drunken partying if faced with a DWI, corporations might not hesitate to destroy or'lose' documentation. If that's too hard, they will bury you in mountains of unrelated records, make you ask specifically for things you are not sure even exist but have to ask for, delay production, and try to charge 'reasonable' costs for documents. Perhaps they will deliver you data that is encrypted, saved in obscure formats, or even damaged.

Without discovery, you may have a hard time proving the corporation knew of a problem, or had done the same thing before. Without discovery, you may be unable to show the truth of the driver who injured you, something a simple as their eyeglass prescription or their drinking habits, or their need for speed.

While the Fifth Amendment doesn't require you to aid the prosecution, or generally be compelled to provide evidence (not always), it doesn't shield you from establishing facts about you without your consent, if they are available. In the end, are you asking that the truth not be available? Be careful what you ask for. By your measure it will be measured to you.

And go ahead and try to prove they are denying you discovery. Maybe you can, maybe not. Many a corporation will apologize for their electronic data problems, pointing out they have the same issues. Generally, the penalties for being unable (and implicitly but unproven unwilling) to produce what is asked for are less than what the damages and penalties would be for a serious (and sometimes minimal) lawsuit.

Pretty funny that you think corporations will deliver these good records without resistance, and you would delete your Facebook page in a New York minute if you thought it would tend to imcriminate you. And now you know how pointless that would be.

Facebook exposes you. Remember this.

Re:Court doesn't work like that...

[TheoMurpse]

in most cases, a very very limited discovery would be sufficient

Then I'm sure you'll be happy to hear that in most cases, discovery is very limited.

Re:Court doesn't work like that...

[TheoMurpse]

In suits against corporations, records and evidence are always the first thing to be destroyed.

Unless the lawsuit would be catastrophic to the company, it knows better than to destroy records. We have this lovely thing in the American jurisprudential systems. It is embodied as the Latin phrase "omnia praesumuntur contra spoliatorem." Assume all against the spoiler.

In effect, it means that if you know a record was destroyed, you can assume basically the worst against the person who destroyed it.

Because of this rule, most of the time a company will not dare to delete records. Unless, of course, as I said above, it would be catastrophic to the company.

Re:Court doesn't work like that...

[rickb928]

Even today you give corporations too much credit, I think. Many do not properly evalute risk, even in relatively minor issues. And some, especially some in the news lately, seem to think they can in fact get away with anything.

History would show you this is more true than you are willing to admit to.

Re:Court doesn't work like that...

[TheoMurpse]

History would show you this is more true than you are willing to admit to.

That's selective bias. You only hear about the companies that do stupid stuff.

You don't hear about the tons of lawsuits every year where the companies don't destroy evidence.

Re:Court doesn't work like that...

[saihung]

Endless discovery is what allows huge corporations to bury people who have done nothing wrong. It is what allowed Montsanto to bankrupt unknown numbers of farmers, seed cleaners, and other people who likely did nothing wrong, because it's discover that allowed Montsanto to keep dragging these people to pointless depositions, one after the other. And because the judges in the USA don't usually interest themselves in this process unless someone objects, and since you need a lawyer to do that, it means that the guy with the deepest pockets can just harass the hell out of you until you die.

That's what problems your precious discovery costs you "justice" system. That's not the only flaw with America's adversarial system, but it sure as hell doesn't help. In many other countries, a magistrate judge oversees this process and ensures that it doesn't unfairly burden anyone.

Re:Court doesn't work like that...

[kesuki]

"Discovery is nothing more than how we deal with the fact that people are people. If people were completely honest, and fair, then yeah, discovery wouldn't be necessary, but then neither would be a court of law."

once i thought the same was true. then i realized stuff i dont want to post to the internet.

Re:Court doesn't work like that...

[rickb928]

So how many does it take?

Your sample seems lacking also. Trust?

hmmm

[Charliemopps]

Shit like this will be the end of facebook. Insurance companies will be lining up to scour the site for people to dump.

Re:hmmm

[Americano]

Pro tip: If you're trying to hide your diabetes from your insurance company, don't tag pictures of yourself on Facebook titled, "HERE I AM IN DIABETIC SHOCK - DON'T TELL BLUE CROSS LOL!"

Re:hmmm

[causality]

Shit like this will be the end of facebook.

And nothing of value was lost.

Insurance companies will be lining up to scour the site for people [who are defrauding them] to dump.

Fixed that for you.

So, Facebook provides opportunities for stupid people to shoot themselves in the foot. Unlike say, driving, said stupid people are unlikely to harm someone other than themselves while proceeding to apply a metaphorical firearm to their foot. This is bad? Why?

Re:hmmm

[TheRaven64]

stupid people are unlikely to harm someone other than themselves while proceeding to apply a metaphorical firearm to their foot. This is bad? Why?

Because it's only a metaphorical firearm?

This is a disaster

[TubeSteak]

Supreme Court Judge Allen Spinner reasoned -I think completely correctly - that social networking sites are not private lockboxes where you store your most intimate secrets; in fact their privacy policies tell you that they are public spaces. Therefore he said:
"Plaintiff has no legitimate reasonable expectation of privacy."

I find this reasoning to be wildly fallacious.
http://www.courts.state.ny.us/REPORTER/3dseries/2010/2010_20388.htm

The Judge (incorrectly IMO) makes a mockery of "self-regulated privacy settings."
The end result of this case is that if you put it online, even for only one person to see, it is fair game for discovery.

In determining whether a right to privacy exists via the Fourth Amendment, courts apply the reasonableness standard set forth in the concurring opinion of Justice Harlan in Katz: "first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as reasonable." Id. at 361, 516 (Harlan, J. concurring) (internal quotations omitted).

Since Plaintiff knew that her information may 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 millions 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 is the conclusion of a logical failtrain and I hope it goes to the 2nd Circuit Court of Appeals

Re:This is a disaster

[hedwards]

No, the decision was correct. A social networking site is indeed a public place for all intents and purposes. Considering that emails are usually made available during discovery, I don't think this was unreasonable. And really, the plaintiff should have turned over those pages anyways as they're apparently relevant to the case at hand.

Additionally, email providers and other sites of similar purpose typically include language to allow themselves to provide your information in response to lawfully granted subpoenas.

Re:This is a disaster

[Americano]

Facebook's privacy policy specifically states the following:

Facebook is about sharing information with others — friends and people in your communities — while providing you with privacy settings that you can use to restrict other users from accessing some of your information. We share your information with third parties when we believe the sharing is permitted by you, reasonably necessary to offer our services, or when legally required to do so.

Further on, in the context of "when we might share your data:"

To respond to legal requests and prevent harm. We may disclose information pursuant to subpoenas, court orders, or other requests (including criminal and civil matters) if we have a good faith belief that the response is required by law. This may include respecting requests from jurisdictions outside of the United States where we have a good faith belief that the response is required by law under the local laws in that jurisdiction, apply to users from that jurisdiction, and are consistent with generally accepted international standards. We may also share information when we have a good faith belief it is necessary to prevent fraud or other illegal activity, to prevent imminent bodily harm, or to protect ourselves and you from people violating our Statement of Rights and Responsibilities. This may include sharing information with other companies, lawyers, courts or other government entities.

And still further down:

Risks inherent in sharing information. Although we allow you to set privacy options that limit access to your information, please be aware that no security measures are perfect or impenetrable. We cannot control the actions of other users with whom you share your information. We cannot guarantee that only authorized persons will view your information. We cannot ensure that information you share on Facebook will not become publicly available. We are not responsible for third party circumvention of any privacy settings or security measures on Facebook. You can reduce these risks by using common sense security practices such as choosing a strong password, using different passwords for different services, and using up to date antivirus software.

In other words: If it's a secret and needs to remain so, you don't share it with your 20 closest Facebook friends on the Internet, because you have no reasonable expectation that those people (or others who manage to get elevated access privileges) will keep your secret safe. The court's reasoning is entirely consistent with the privacy policy Facebook has laid out. As far as "if you put it online, even for only one person to see," yes, and that's always been the case. A subpoena can (and often will) result in this information being disclosed, and anybody who thinks that Facebook is magically exempt from subpoenas because "it's a social network with a privacy policy and stuff," is foolish.

Re:This is a disaster

[Anonymous Coward]

The courts have consistently held that if you post something to a web service, and *anyone* can read it such as administrators at the service, (i.e. it is clear text and not encrypted) then you have lost (or at the least, greatly diminished) the expectation of privacy.

It is analogized to the difference between a postcard (which the postal service can read) and a sealed letter (which the postal service can not read). You have no privacy in the contents of the postcard, or in the information on the outside of the sealed envelope (i.e. who you are sending letters to and receiving then from).

Re:This is a disaster

[TubeSteak]

The court's reasoning is entirely consistent with the privacy policy Facebook has laid out.

Since when do we rely on a website's privacy policy or ToS to set public policy?

Re:This is a disaster

[Kijori]

I'm not sure I can agree with you.

The most important elements of this decision seem to me to be:

-The public portion of the respondent's FB profile shows her smiling outside her house, which would appear to contradict her claim that she has lost all enjoyment in life and cannot leave the house
-It is likely based on this that further relevant evidence is contained in the private section of her FB account
-It would be against the interests of justice to allow a respondent to hide relevant evidence behind self-administered privacy settings

Regarding the privacy issues:
-Both a subjective and an objective expectation of privacy are required under NY law
-Materials that have been distributed to third parties are prima facie not subject to an expectation of privacy since the respondent no longer has control over their distribution.

This seems reasonable to me, and on the facts of this case - the woman is alleged to be committing fraud and is attempting to suppress the discovery of further evidence - the outcome would appear to be just.

Re:This is a disaster

[nlawalker]

If it's a secret and needs to remain so, you don't share it with your 20 closest Facebook friends on the Internet

You are absolutely right, but I'd go further and say "If it's a secret and needs to remain so, you don't put it on Facebook." Even if you don't share it with anyone, Facebook is a public website run by a company that makes absolutely no guarantees and enters into no contracts with you to ensure that your information is private or protected. You have no reasonable expectation that Facebook will keep your secret safe.

Putting something on Facebook is the equivalent of leaving it lying on the sidewalk. Setting privacy controls is like leaving a note that says "please don't touch or take this."

Re:This is a disaster

[Americano]

Who's "setting public policy"?

The court is looking at the facts of the matter before it: The plaintiff posted some stuff on Facebook, and the defendant has requested access to that stuff, claiming that it is relevant to the case. This request might be denied if there were sufficient privacy concerns to show that the request would violate the defendant's reasonable expectation of privacy.

The court looks at the type of service (social networking, a public space where people connect with one another); the privacy policy of the site (which states that FB "cannot control the actions of other users [ . . . and . . . ] cannot ensure that information you share on FB will not become publicly available"); From this, he draws a conclusion that you have no reasonable expectation of privacy for posts made on Facebook.

Please explain why you WOULD have a *reasonable expectation* of privacy, in light of the fact that Facebook specifically tells you that anything you post could be revealed to the public? You may have a deep *desire* for privacy... you may wish very hard for it, in fact, but Facebook specifically and completely disavows any responsibility for keeping your secrets.

You: "I really want someplace online where I can store my deepest darkest secrets, and I think Facebook is the place to do it."
Facebook: "Well, anything you post here could be revealed to the public."
You: "But you have these privacy controls!"
Facebook: "Yes, but they're not guaranteed to work properly, and besides, if you share your secrets with friends, they can share them with anybody else without your permission."
You: "I don't care. I want to poke people."
Facebook: "Okay... but just so long as you're clear that everything you say or post could end up being revealed to the public."
You: "Yeah yeah, I know, everything I say is private."
Facebook: "No, that's not what we said at all. That's completely the opposite of what we said, in fact."
You: "LOL FARMVILLE!"

Re:This is a disaster

[BrokenHalo]

In other words: If it's a secret and needs to remain so, you don't share it with your 20 closest Facebook friends on the Internet...

Or fans of NCIS might prefer this reference:
"Best way to keep a secret is to keep it to yourself. Second best way is to tell one other person if you must. There is no third best."

Re:This is a disaster

[westlake]

The end result of this case is that if you put it online, even for only one person to see, it is fair game for discovery.

The whole point of discovery is to expose as much evidence as possible. The ideal outcome is not the expense of a trial but a settlement based on what both sides know to be true - or at least what both sides know can be proven.

Re:This is a disaster

[Adrian Lopez]

A social networking site is indeed a public place for all intents and purposes.

No, it's not. If I lock down my profile so only my friends can see it, it's really no different than only allowing my friends into my home. Unless your profile is open to the public, there doubtless exists a reasonable expectation of privacy. That doesn't mean the court should not allow access to a person's private profile in cases where it's legally warranted, but the standard should be as high as with any other case where private data is being sought.

Re:This is a disaster

[Adrian Lopez]

The courts have consistently held that if you post something to a web service, and *anyone* can read it such as administrators at the service, (i.e. it is clear text and not encrypted) then you have lost (or at the least, greatly diminished) the expectation of privacy.

That makes about as much sense as saying that my medical records are public information because doctors at the hospital have access to them. Access to a restricted group of people (administrators, doctors, etc) does not in any way imply the information is public.

It is analogized to the difference between a postcard (which the postal service can read) and a sealed letter (which the postal service can not read). You have no privacy in the contents of the postcard, or in the information on the outside of the sealed envelope (i.e. who you are sending letters to and receiving then from).

That information is only available to those who have legitimate access to your postcard. The fact that letter carriers can see what's written on a postcard in no way implies that my neighbor is also to be granted access to its contents when it's not in plain view.

Re:This is a disaster

[Adrian Lopez]

Materials that have been distributed to third parties are prima facie not subject to an expectation of privacy since the respondent no longer has control over their distribution.

Except that, unlike a physical object that is relinquished to another, a person's Facebook profile remains under that person's control.

Re:This is a disaster

[Adrian Lopez]

Please explain why you WOULD have a *reasonable expectation* of privacy, in light of the fact that Facebook specifically tells you that anything you post could be revealed to the public? You may have a deep *desire* for privacy... you may wish very hard for it, in fact, but Facebook specifically and completely disavows any responsibility for keeping your secrets.

I have a reasonable expectation of privacy due to the fact that access to my profile is limited to those who are authorized to see it. As for Facebook's privacy policy, that only covers the relationship between Facebook and myself, holding Facebook harmless for legitimate disclosure of information found on my profile. That Facebook isn't liable for such disclosure does not mean the disclosure is legally appropriate or that the information disclosed isn't private.

Re:This is a disaster

[Anonymous Coward]

That makes about as much sense as saying that my medical records are public information because doctors at the hospital have access to them. Access to a restricted group of people (administrators, doctors, etc) does not in any way imply the information is public.

The law doesn't say it becomes "public" but just that you lose the expectation of privacy. Those are two completely different legal concepts.

As for doctor-patient records, they, like priest-penitent records, and lawyer-client records, have legal protection called "privilege" and so you have legal basis for asserting that your expectation of privacy is preserved.

If you share information without a law* giving you a right to expect the information will be kept strictly private (e.g. lawyer-client or doctor-patient privilege), you have forfeited your expectation of privacy in the information disclosed to that third party. That does not, however, mean it is "public" or that a legal right to prevent public disclosure does not exist. When you have lost the expectation of privacy, you then have little grounds to prevent an adverse party in a lawsuit from accessing that information, but you may be able to get a protective order forbidding that adverse party from making the information public. It can then be used as "attorney eyes only" and used privately in the lawsuit, but not disclosed publicly.

*Some courts have entertained that a very strict confidentiality provision in a contract can be used to preserve the expectation of privacy in information disclosed to a third party outside of a legal privilege relationship, but there have been only a couple of cases in that regard.

Re:This is a disaster

[Kijori]

Materials that have been distributed to third parties are prima facie not subject to an expectation of privacy since the respondent no longer has control over their distribution.

Except that, unlike a physical object that is relinquished to another, a person's Facebook profile remains under that person's control.

Sorry, I perhaps should have explained the point more fully. An example often given is that of a letter: you prima facie have no right to privacy regarding the contents of a letter since you have placed the information in someone else's control, and that person might choose to divulge it. The situation here is analogous: by putting the photographs or information on her Facebook profile the woman accepted that any one of her Facebook friends might then distribute them, which suggests that she did not consider the material she was posting to be private.

Re:This is a disaster

[Adrian Lopez]

The law doesn't say it becomes "public" but just that you lose the expectation of privacy. Those are two completely different legal concepts.

If the data isn't public, then it's private.

As for doctor-patient records, they, like priest-penitent records, and lawyer-client records, have legal protection called "privilege" and so you have legal basis for asserting that your expectation of privacy is preserved.

Certainly. On the other hand, that a document lacks such protection does not automatically nullify any expectation of privacy I may have.

If you share information without a law giving you a right to expect the information will be kept strictly private (e.g. lawyer-client or doctor-patient privilege), you have forfeited your expectation of privacy in the information disclosed to that third party.

Only with respect to that third party. With respect to others, I still have a reasonable expectation of privacy.

Re:This is a disaster

[Adrian Lopez]

Sorry, I perhaps should have explained the point more fully. An example often given is that of a letter: you prima facie have no right to privacy regarding the contents of a letter since you have placed the information in someone else's control, and that person might choose to divulge it. The situation here is analogous: by putting the photographs or information on her Facebook profile the woman accepted that any one of her Facebook friends might then distribute them, which suggests that she did not consider the material she was posting to be private.

I have no problem with the notion that the woman's friends may, under subpoena, disclose information she considers private. The problem I have is with the blanket statement that there doesn't exist any reasonable expectation of privacy. Think of how you'd react if one of your friends publicly distributed online but restricted-access pictures of your children without your permission and then tell me there's no reasonable expectation of privacy.

Re:This is a disaster

[Americano]

I have a reasonable expectation of privacy due to the fact that access to my profile is limited to those who are authorized to see it.

You are wrong. You have an unreasonable *wish* for privacy. Facebook's privacy policy does not prevent a subpoena of records, nor do they make any guarantees against disclosure of your data. Their policy tells you up front that your data *may* be disclosed to the public, and that they WILL cooperate with legal requests they consider to be "good faith".

If you can read those two items in their policy and still think you have any expectation that your data will not be disclosed, you are engaging in - as the judge stated - "wishful thinking".

Facebook's privacy policy is an agreement between you and Facebook which dictates the terms and conditions under which your data may be disclosed to the public (or third parties) by Facebook, and their privacy policy more or less states "if we think we need to, or we screw up, or your friends don't have any discretion we or they will disclose your data." You may consider the information private. In that case, the privacy policy is pretty clear that it doesn't belong on Facebook.

Re:This is a disaster

[glwtta]

The problem I have is with the blanket statement that there doesn't exist any reasonable expectation of privacy.

Legally, you only have an expectation of privacy if you are keeping something private - if you share it with anyone, it's not private anymore. There is no "private except for this bunch of people", the legal system isn't some minutely customizable panel of privacy settings.

Think of how you'd react if one of your friends publicly distributed online but restricted-access pictures of your children without your permission and then tell me there's no reasonable expectation of privacy.

That's precisely the idea - once you give those pictures to your friends, you no longer have an expectation of privacy because they could, at any time, distribute them further without your permission.

Yes, it's not enough to just claim that something is private, you have to actually treat it as private.

Re:This is a disaster

[Adrian Lopez]

You are wrong. You have an unreasonable *wish* for privacy. Facebook's privacy policy does not prevent a subpoena of records, nor do they make any guarantees against disclosure of your data. Their policy tells you up front that your data *may* be disclosed to the public, and that they WILL cooperate with legal requests they consider to be "good faith".

No, I'm not. I do not merely wish for privacy, I actually know that the info on my profile cannot be seen by people who are not on my friends list unless those friends happen to disclose that information. It's not reasonable to expect that these friends will never disclose that information, but it's perfectly reasonable to expect my privacy to otherwise be respected. As for subpoenas, if Facebook is compelled to reveal particular information then it has to do so regardless of its privacy policy, and I have no problem with that.

Re:This is a disaster

[Americano]

I say again: read their privacy policy which you agree to when you sign up for their service.

They clearly state in there that your data should not be considered safe from public disclosure, and that it may be disclosed to others.

On what do you base your "expectation" of privacy, when Facebook, the provider of the service, explicitly states that your data should not be considered secure and private?

Here's a car analogy: my car is fairly well made, and has so far been quite reliable for the nearly-4-years I've owned it. This reliability does not give me a "reasonable expectation" that it will never break down. Now, I do have an earnest *desire* for it to not break down and leave me stranded somewhere - this is why I have routine maintenance performed on it, in the form of oil changes, tune-ups, inspections, and the like.

In much the same way, if you have an earnest *desire* for your data to not be disclosed to the public, you perform "routine maintenance" on your Facebook profile, and eliminate anything you wouldn't wish to be made public, or avoid posting it up there in the first place.

It's worse than you think

[hyades1]

If there's a single insurance company lawyer who doesn't have several fake profiles up on Facebook so they can track plaintiffs to whatever extent they can get away with, I'd be very surprised.

Real friends don't let friends do Facebook.

[Anonymous Coward]

With all these reports of people screwing themselves because of Facebook, people need to learn to 'Just say "No"!' (to facebook)

Re:Thanks for the free hacking law!

[Americano]

See, the problem with that is that hacking into a computer system is a violation of the law. Facebook responding to a subpoena during the discovery phase of a lawsuit is not.

This could also be used in reverse

[Schemat1c]

What if I decide to commit a crime and I 'arrange' a nice alibi with pictures and well timed postings on my FB page?
Could I use that to defend myself in court?

Re:This could also be used in reverse

[causality]

What if I decide to commit a crime and I 'arrange' a nice alibi with pictures and well timed postings on my FB page? Could I use that to defend myself in court?

It'd be up to the prosecution to prove that your alibi is not valid. The fact that the pictures were posted to Facebook doesn't change anything.

Sort of like the way fraud is not some strange new crime requiring new laws merely because a computer was involved (think phishing scam) instead of a telephone or a face-to-face con man.

Re:This could also be used in reverse

[westlake]

What if I decide to commit a crime and I 'arrange' a nice alibi with pictures and well timed postings on my FB page?
Could I use that to defend myself in court?

You could try.

But, on the record, I would argue the geek doesn't have it in him to lie in a way that will persuade a jury.

He over-complicates things. His notions of plausibility are nuts.

Re:This could also be used in reverse

[Anonymous Coward]

Sort of like the way fraud is not some strange new crime requiring new laws merely because a computer was involved (think phishing scam) instead of a telephone or a face-to-face con man.

Yeah, how's that working out for you?

Just subpoena the people on tfriends list

[petes_PoV]

And have them testify as to what the plaintiff had said. You get the same information, but it takes longer, costs more and inconveniences more people (as well as honking off your "friends").

The information will come out, it's just how much extra effort people have to go to, to get it. This seems to me like an efficient way of finding out what the truth (yes, yes I know: what's truth got to do with the law?) is.

p.s. I'm constantly surprised that anyone thinks anything they post anywhere on the internet has, in practice, any degree of privacy or confidentiality - under any circumstances. If you want to keep something confidential DON'T TELL ANYONE.

Re:Thanks for the free hacking law!

[santax]

My parade.... you are raining on it :(

Re:Thanks for the free hacking law!

[Americano]

Why not spend the weekend studying the law - go to law school, pass the bar, become a judge, and then you can subpoena records legally... no need for all that messy and illegal hacking. :)

Yawn

[Stan92057]

Yawn,yet another "Beware what you post" article. like a slashdot member would do something so stupid.

Re:Thanks for the free hacking law!

[santax]

Neh, I still have some ethics!

Stupidity tax

[TimHunter]

This is called a stupidity tax. There are many different kinds of stupidity taxes. This is just one of them.

What we have is a can of worms

[BrokenHalo]

Trouble is, Facebook doesn't have much (apart from a dodgy honour system) in the way of identification of individuals. I have often wondered (hypothetically) how things would pan out if I were a defendant in court where evidence from Facebook posts were presented against me.

I do not have a Facebook account, and for a variety of reasons never will, but I often wonder how I would convince a court of that, given that I can find half a dozen individuals there who share the same name as myself.

Re:What we have is a can of worms

[MysteriousPreacher]

I'd imagine it'd be up to the plaintiff to prove to a reasonable extent that the posts are yours - perhaps including a subpoena or two sent to facebook, and forensic analysis of the computers you use.

Facebook really should close allow an option for people to validate themselves. Right now there's a kind of crude web of trust model, but this doesn't really work unless the people inviting you are already connected and known to people you already know and trust. I think some other companies have validated identities through small charges to credit cards. It's not perfect, but at least it leaves a paper trail if someone is playing silly buggers and it ends in court. Stolen cards could be used, but then the account is only going to be useful until the fraud investigation begins, and people would need a pretty good reason to risk the legal consequence of committing credit card fraud.

Re:What we have is a can of worms

[ottothecow]

I would imagine it is pretty easy to positively identify the facebook photos that you posted of yourself having a blast doing the things you claim you cannot do.

They are not looking for posts that say "Omg I am suing the insurance company for moneyz!" but rather photos that dispute your story (like a "disabled" worker spending their workmans comp frolicking in the waves on the beach).

There is no expectation of privacy on the internet

[brokeninside]

At least not by people that understand how the Internet works. Unless an encrypted connection was used, all those packets floating back and forth between Facebook and the user's computer are the equivalent of a message on a postcard that is delivered from hop to hop by rand strangers that just happen to be going in that direction.

There is no reasonable expectation of privacy in that situation.

As a rule of thumb, no one should put anything on the internet (from email to forums like Facebook) that they aren't will to see show up on the front page of the local newspaper.

Another Total Garbage Court Ruling

[Nom du Keyboard]

Yet another total garbage court ruling.

If I set my privacy controls on FB to exclude others then I have a perfectly reasonable expectation of privacy.

And if I share everything with everyone, then the defendant wouldn't have needed a court order to see it.

I'm really coming to hate stupid judges with no understanding of technology, apparently no understanding of the law, and jobs guaranteed for life!

Consider This...

[Nom du Keyboard]

Consider this: The defendant is trying to prove that the plaintiff said that they were more healthy on FB than they claimed in court, hence they were lying to the court.
But...
Suppose the plaintiff claimed even worse injury in FB. Would that count in their favor in the court, or would they now simply be accused of lying on FB?
Seems to me that the defense wanted the most favorable picture that they could get and whatever was posted on FB (not under oath) weighed more heavily than court testimony (that was under oath).
True Fail by the court.

Re:Consider This...

[jimnorcal]

...whatever was posted on FB (not under oath) weighed more heavily than court testimony (that was under oath).

Interesting point. What if I'm the type of person that wants others to think that I'm actually doing better than I really am. You know .. the type of person that doesn't like to complain in front of others or admit that they're not feeling well so they don't look weak or for whatever other reasons. Such a thing as a facebook profile should not be used against anyone in a court of law under such circumstances. If I'm really sick, especially if it's because of some reason that could cause some embarrassment, then I wouldn't want everyone to know about it and I may say "feeling good" on my profile.

Reasonable expectation of privacy

[nurb432]

Nope, don't need that anymore, that is so 1990's.

Excellent Precedent For My Lawsuit

[monoqlith]

I've been suing my friends because they wouldn't accept my friend requests.

Now, I can expect that the judge will rule that they are legally obligated to friend me, giving me legal access to their profiles.

Rejecting friend requests causes appreciable stress and harm!

Muahahahaha!

[zmollusc]

Heh, twitter is ready-made for bolstering my future fraudulent claim for ass-whiplash. 'OMG my ass hurts', 'Cripes a blimey, i cannot sleep for ass pain', 'Golly gosh, those rotters at whatever inc were so negligent. I hope the lovely court system can help me. Ow! Ow!'

(Better post this as AC)

Re:Muahahahaha!

[ChrisMP1]

by zmollusc (763634)

(Better post this as AC)

Good luck with that. Lemme know how you make out, ok?

Re:Muahahahaha!

[zmollusc]

Oh noes! My fraudulent $millions, jeopardised! :-(

Back to the pants-collecting scheme, then.

This is not a precedent

[Anonymous Coward]

No laws need to change for this to be true. Letting facebook content be available only to friends is akin to telling them your secrets to their faces (yes, people still do that). The court here has the same rights to subpoena as in any other case, but doesn't even need to here. It's not private anymore if you start telling other people, no matter how much you swear them to secrecy or how limited that circle of friends is. YOU have limited YOUR OWN claim to "privacy" when you let information pass from the inside of your head to the outside world. The internet generation (of which I am a slightly older member) just needs to learn that. You don't put things on facebook that you don't want others to see any more than you tell friends--no matter how close--secrets that you want actually kept secrets.

Oh, and cheating insurance companies just screws the rest of us in this country. This person deserves whatever's coming.

Our man is down.

[westlake]

He should be in the grave. I know I can shoot better than that.

The insurance investigator has a boss.

Surevillance operations are planned. When the investigator doesn't phone in his report on time the boss will ask questions. He will call the police - and he can tell them exactly where to start looking.

Your insurance fraud has escalated to Murder 1 and the chances that you will escape conviction on the capital charge are nill.

Re:Our man is down.

[rickb928]

Hmmm. As I recall, Comp cases back then were pretty much private companies underwriting employers. In this case the employer was a multinational before that was cool.

I have no doubt BJ gave all the details. There was a complaint to the county attorney, and it the case was dropped by them. Back then, someone would probably count it as severe distress and let it go. Today, he would be up on charges in hours. We are not so innocent anymore.

Yes, standards change. There was a time that divorce cases would go along with husbands being incredibly angry and distraught. Today, if a husband raises his voice in court, he's likely to get a restraining order. The level of tolerance is much lower.

Wait what?

[wisnoskij]

"Plaintiff has no legitimate reasonable expectation of privacy"
Why?
I assume that it means that Facebook is not really private, but if that was true then you would not need a court order to get access to it.

Re:Wait what?

[bws111]

It really doesn't have much to do with Facebook, or how difficult the information is to get. It has more to do with the legal definition of expectation of privacy. In everyday usage, people think of something as being public (if everyone has access to it) or private (if only a few people know it). The legal definition is much stricter. For something to be considered legally private only one person must have the information - you (there are a few notable exceptions to this). If something is legally private the court does not have access to it. If you tell ANYONE (*) else the information it is no longer considered legally private, and the court can have access to it.

So, by posting info on Facebook (whose very purpose is sharing information) you are giving up your legal privacy protection.

If the lawyers said to the court 'we noticed that every night she closes the window shades and we hear music in there, and we think she is dancing around the room, so let us put a camera in there so we can find out' the court would deny it, because she has a reasonable expectation of privacy. However, if she tells someone she is doing that (in person, by phone, through the mail, on the web, etc) it is no longer private.

* The exceptions to the rule are for lawyers, doctors, spouses, and maybe the clergy.

Re:Wait what?

[wisnoskij]

That is a horrible definition of privacy.
and if their are exceptions, why not others.
Why would you not be able to tell your mother or other trusted confidants.

Also you should be able to expect the lvl of privacy that you use.
if you tell X people, and the opposition finds out what you told them then, sure they can use that information.
but if you tell trustworthy people and you have a reasonable expectation of privacy and the opposition cannot find out what you said then that proved the point that you have a reasonable expectation to privacy.

Re:Wait what?

[bws111]

The exceptions are there because our society thinks they are worth it. In order for a lawyer to represent his client the best he can, he needs all the information - even that which is detrimental to his client. If a lawyer could be compelled to testify against his own client the client would be deprived of good representation. In order to have a healthy (mentally and physically) population, people must not be afraid to go to the doctor. In order to have a healthy marriage it is important that the spouses be able to bare their souls to each other. And compelling a priest (eg) to testify against a penitent would go against freedom of religion.

Re:Wait what?

[wisnoskij]

And can an argument not be made that you need to tell parents everything to have a healthy relationship or the same for a close confidant/friend.

and if it is so important that the opposition has information why not just make it so that even if he has told no one that he is still legally required to tell the court.

Re:Wait what?

[bws111]

An argument COULD be made for parent/child privilege (and it seems some people in Massachusetts are trying to do that, but it is not currently the law, so it has no effect on this case. As for confidant or friend, no that makes no sense at all. There is no legal relationship called 'friend' or 'confidant'. What would the test be?

The Fifth Amendment (a person can not be compelled to testify against himself) is the reason he can not be legally required to tell the court even if he told no-one else.

Bottom line: if you want something to be truly private, don't tell anyone.

hmmm

[Nyder]

I really hope they people are smart enough to challenge these rulings.

While I can understand giving up proof of stuff at court orders, this totally sounds like they are fishing.

We don't know what you posted, but it probably has something to do with the case, so we are going to allow the defendant to have access to your personal info to see if there's a problem.

Don't post your life on the internet.

[Anonymous Coward]

You post your public life on the internet then complain when someone uses it against your self. It's you own fault for posting anything about your life onto the internet for anyone to see. And I agree, you have no expectation of privacy when post your life on the internet.

Refactor the Law

[zippthorne]

Yep, laws are pretty gross. And will continue to be as long as lawyers write the laws, make money off of disputes over interpretations of the laws written, and have no negative feedback for spawning dependency hell.

How much do you want to bet that if you take the full document and drill down through the referenced documents, eventually you find both circular references and missing references (i.e. references to documents that have been lost through time, or repealed?)

Self-incrimination

[Jaxoreth]

my friend has to tell the court what I said, or risk being charged for perjury.

What? No! Your friend has the right to not answer! Yeesh, hasn't anyone here ever heard of the Fifth Amendment?

You mean the one guaranteeing the right not to incriminate oneself?

Wow this is so cleaver

[SupremoMan]

Using Facebook as sworn testimony! Cause you know people never lie on Facebook! /sarcasm... Also that would be my defense if I was her. Unless she was dumb enough to add a picture... in which case I'd say I shopped it... Unless she was dumb enough to also attach a video...

what about personal IRL things

[jimnorcal]

Next will be the other party's attorneys with a court order ransacking your house, garage, car and anything/place else belonging to you looking for your diary/journal in hopes to prove you're not being honest.

Oh, and is there such a thing as IRL anymore? I'm starting to think not.