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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.
That's pretty strange. It's almost as if he's the one on trial.
then stop posting shit on the internet.
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.
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.
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.
-- IANAL, this isn't legal advice, and definitely isn't legal advice for you. Also, Squee!
Shit like this will be the end of facebook. Insurance companies will be lining up to scour the site for people to dump.
Well, they'd go through a judge, who would naturally already have an account.
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.
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.
I've calculated my velocity with such exquisite precision that I have no idea where I am.
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.
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.
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?
"Nobody knows the age of the human race, but everybody agrees that it is old enough to know better." - Unknown
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
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).
My parade.... you are raining on it :(
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,yet another "Beware what you post" article. like a slashdot member would do something so stupid.
Jack of all trades,master of none
Neh, I still have some ethics!
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?
[Fuck Beta]
o0t!
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.
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."
This is called a stupidity tax. There are many different kinds of stupidity taxes. This is just one of them.
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.
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!"
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.
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."
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.
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.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
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.
"In prison you just have to shut your eyes and take it. Here you have to shut your eyes and give it."
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.
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.
"In prison you just have to shut your eyes and take it. Here you have to shut your eyes and give it."
Nope, don't need that anymore, that is so 1990's.
---- Booth was a patriot ----
Except that, unlike a physical object that is relinquished to another, a person's Facebook profile remains under that person's control.
"In prison you just have to shut your eyes and take it. Here you have to shut your eyes and give it."
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.
"In prison you just have to shut your eyes and take it. Here you have to shut your eyes and give it."
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.
If the data isn't public, then it's private.
Certainly. On the other hand, that a document lacks such protection does not automatically nullify any expectation of privacy I may have.
Only with respect to that third party. With respect to others, I still have a reasonable expectation of privacy.
"In prison you just have to shut your eyes and take it. Here you have to shut your eyes and give it."
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.
"In prison you just have to shut your eyes and take it. Here you have to shut your eyes and give it."
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!
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)
They whose government reduces their essential liberties for temporary security, receive neither liberty nor security.
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.
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.
sic transit gloria mundi
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.
"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.
Troll is not a replacement for I disagree.
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.
Be seeing you...
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?)
Can you be Even More Awesome?!
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?
In general, it is safe and legal to kill your children. -- POSIX Programmer's Guide
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...
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.
"In prison you just have to shut your eyes and take it. Here you have to shut your eyes and give it."
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.
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.