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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.
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.”
It is a miracle that curiosity survives formal education. - Einstein
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.
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.
"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.
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.
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).
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.