Slashdot Mirror
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.
then stop posting shit on the internet.
Yeah its almost as is the Defendant was trying to defend himself by proving the Plaintiff wasn't really injured.
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.
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.
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.
It is a miracle that curiosity survives formal education. - Einstein
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.
All of the above was encrypted with a Quad ROT-13 method. Unauthorized decryption is in violation of the DMCA.
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.
Facebook's privacy policy specifically states the following:
Further on, in the context of "when we might share your data:"
And still further down:
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.
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.
It is a miracle that curiosity survives formal education. - Einstein
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!"
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?
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.
politicians are like babies' nappies: they should both be changed regularly and for the same reasons
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.)
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.
It is a miracle that curiosity survives formal education. - Einstein
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!"
"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.
Filthy, filthy copyrapists!
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.