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

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...

[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: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: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?

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: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: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.

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: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: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.