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

if you dont want anyone on the internet to know

[sakura the mc]

then stop posting shit on the internet.

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: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

[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: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

[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!"