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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.
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.
Yeah its almost as is the Defendant was trying to defend himself by proving the Plaintiff wasn't really injured.
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!
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.
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
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.)
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!"
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.
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