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Judge Demands Email and Facebook Passwords From Women In Sexual Harassment Case
An anonymous reader writes "Back in September, a U.S. judge ruled that a school district violated the First Amendment (freedom of speech) and Fourth Amendment (unreasonable search and seizure) rights of a 12-year-old student by forcing her to hand over her Facebook password to school officials who in turn used it to search for messages they deemed inappropriate. This month, another U.S. judge has ordered that women suing their employer for sexual harassment must hand over cell phones, passwords to their email accounts, blogs, as well as to Facebook and other social networks."
I propose /. split into two sites, one featuring litigation and the other focuses on news for nerds.
A judge is perfectly permitted to require the defense access to potentially usable evidence given probable cause that the evidence is there. School officials, on the other hand, are not judges or part of the legal system.
Complete non-story by some muckraker. Naturally, /. posts it.
We'e seen a few stories recently like this, where a judge has demanded someone to turn over information that they've already agreed not to in a TOS.
Was this ever resolved, whether a judge can order you to violate a TOS? Either it's legally binding or it's not. Not variable on who's asking or whether or not it's convenient. They need to make up their minds.
I work for the Department of Redundancy Department.
Not at all.
If you are suing, then cell phones, Facebook and email are all part of the evidence in the case. Without reading the sepcifics I cannot tell you why the judge wanted it.
The teachers requiring a FB p/w were on a fishing expedition that went beyond the purview of their positions.
So a woman claims sexual harassment, states that all the evidence is on her phone, email and facebook, and we're supposed to be outraged that the judge wants the evidence?
Yes, I checked the linked articles to make sure, downmod me for that, but without providing this information the accuser has no case whatsoever.
I'm impressed that the judge actually wants the evidence, most of the lawsuits that get to Slashdot seem to show judges who ignore all evidence and go with whatever lawyer has the prettiest tie that day.
The plaintiff was allegedly using facebook to make statements about the case and other events relevant to the case.
Facebook should have a secondary READ ONLY password that can be voided after say 7 days
or Facebook should simply give the court a dump of the required info
btw whats with them needing the actual hardware since the phones themselves should not have the needed data anymore
(i could see asking for the NUMBERS but not the hardware)
Any person using FTFY or editing my postings agrees to a US$50.00 charge
There is a BIG difference between a judge ordering someone to disclose their facebook password to collect evidence and a school teacher or principal doing it. Also, the person in question here is the plaintiff. The defense generally does have a lot of latitude when it comes to evidence collection. My only complaint here is that the plaintiff's sexual behavior outside of work should not be relevant or admissible, but it looks like from some of the statements that the defense is going to push to get that stuff admitted. The judge should put pretty strict criteria on what evidence may be collected and presented to the jury. We aren't really getting those details here, though.
Fuck you and your terrorism fear mongering. Seriously, just fuck you. People like you are a far bigger threat to our freedom than any terrorist.
Give me Classic Slashdot or give me death!
As a first step we should demand "read only" access passwords from our service providers. Almost all the accounts, from trivial throwaway email accounts to brokerage/mutual fund accounts holding hundreds of thousands of dollars offer just one level of access. Either you get full access to do anything you damn well please, or nothing. If we have a "valet key" access with limited privileges at least we can be sure these cops or judges won't be able to mess it up.
Other benefits include third party services that can watch for bills being posted, bills being paid on trime, or do investment portfolio analysis etc. E-Trade used to have something similar. They had a regular password and then a second "trading password" to invoke non-const member functions like ordering funds transfer or to buy/sell securities. But, sadly, they took it away.
sed -e 's/Chuck Norris/Rajnikant/g' joke > fact
Were these women sexually harassed on FaceBook ? If not it has nothing to do with the case.
Uh, false?
Certainly there are numerous ways that facebook communications could have something significant to do with the case, without being the specific venue for harassment.
If only the article mentioned something specifi...OH LOOK:
Statements that discuss her financial expectations in [the] lawsuit; a photograph of herself wearing a shirt with the word “CUNT” in large letters written across the front (a term she alleges was used pejoratively against her, also alleging that such use offended her); musings about her emotional state in having lost a beloved pet as well as having suffered a broken relationship; other writings addressing her positive outlook on how her life was post-termination; her self-described sexual aggressiveness; statements about actions she engaged in as a supervisor with Defendant . . . ; sexually amorous communications with other class members; her post-termination employment and income opportunities and financial condition . . .
Go ahead and post your social security number.
And your mother's maden name
And your date of birth
You have nothing to hide? Prove it.
Yeah, right.
What do you do if you sue someone and DON'T have a social networking page. Will your case get thrown out for not providing what you don't have? We already see this with job interviews. How many people were not accepted for a job because they wouldn't or couldn't provide a Facebook password? I don't use ANY social networking sites with the exception of Linkedin. Do you think they would believe me if I said I don't have one? It should be the decision of the plaintiffs to provide that information as evidence, not the position of the judge to order private information.
Usually in discovery you turn over data, often times even processed data (scans, copies, PDFs rather than original files).
Redactions are very common. Handing over 100% of communication, relevant or not, completely ubredacted is NOT how things are supposed to work.
note, always make sure to send a message to your lawyer with every account. They should then be able to argue that it contains priveledged info and needs to be turned over by the lawyer in a different format (not saying it will work, but It's worth a try).
Back when records were physical, lawyers were given temporary, unrestricted, but observed access to documents, and able to ask for broad sections to be copied and sent based on what they saw.
I think the facebook equivalent is to give access to the account supervised for x number of hours, and then allow requests to be made for all messages in this date range, or these people, etc.
Wow, sent an e-mail as suggested when clicking on "use classic" banner, and got a fast response that addressed my msg
Right, the judge can't force the women to hand over access. He can say "hand over access or have your case thrown out for insufficient evidence", though.
"None can love freedom heartily, but good men; the rest love not freedom, but license." --John Milton
If you are suing, then cell phones, Facebook and email are all part of the evidence in the case. Without reading the sepcifics I cannot tell you why the judge wanted it.
Also, TFA clearly states that the accounts are turned over to the forensics expert not to the defendant. Forensics expert hopefully being an impartial observer here - it's not like the defendant has their account to himself.
I RTFA, it is a legit request.
The plaintiffs were using it to communicate about the suit. It is their own ignorance that caused it.
I fail to see how a subpoena to Facebook and her mail provider couldn't accomplish the same thing without having to give out passwords.
More Twoson than Cupertino
You cannot avoid a lawfully issued subpoena (or warrant) by pointing at a contract saying you are obligated not to turn over the requested discovery/evidence. There are certain very limited communications not subject to subpoenas/warrants, and online posts with your friends aren't on that list. (Personal communications with doctors, lawyers, spouses, mental health professionals, and religious ministers are.)
I can think of all sorts of malfeasance that could be hidden if a TOS magically inhibited the discovery process.
The idea of a TOS is legally valid (although that does not stop it from containing invalid terms) but it does not override a court order.
Oh no. The Plaintiff is making claims. The defendant needs to be able to defend themselves against accusations. If there were rights to lean in favor of one party over the other, I would hope it would favor the defense.
It is obvious in cases such as sexual harassment, the first defense is "s/he no reasonable cause to be offended over language or to feel harassed given the type of language she uses on a frequent basis." I recall one particular female who used to work where I work now... she was pretty rowdy with her language and behavior. But from time to time when it was convenient, she would begin to make noises about harassment. In her case, she had no reasonable cause to be offended given her behavior. I was glad to see her go. She really upset a lot of people.
You are making the classic assumption that because she is a 'she' that she is a victim and is completely honest about her claims.... you know, like a particular single mother with a single child collecting child support from three men in three states.
I RTFA too, and while I can see the argument for it, much of it reads like they are hoping to show she is an immoral person.. essentially trying to slut shame her into the harassment being fine.
Actually, if you look at actual cases, it isn't a 'classical assumption' when it comes to sexual harassment suits. They tend to be a significant uphill battle with a lot of 'she is just sensitive, she is just selective, she is just taking advantage of the law' stuff thrown in.. it has disturbing similiarities to the arguments brought up to discredit rape victims.. including the BS 'but she uses that language' argument (which they seem to be fishing for here) since that is just a recasting of one of the common defenses against rape allegations.. 'well, she was a loose woman who slept around', as if somehow because she does something privately it means someone doing it to her non-consentually is ok.
I've never seen someone given access to a corporate account for the sake of discovery, they are given access to the data.
the turning over the password is not legit, a copy of the timeline, activity log, and messages to and from relevant people (with details redacted) is.
In every case I've been involved with, a lawyer gets to go over all of these thongs before turning it over, this is highly unorthodox.
Wow, sent an e-mail as suggested when clicking on "use classic" banner, and got a fast response that addressed my msg
I fail to see how a subpoena to Facebook and her mail provider couldn't accomplish the same thing without having to give out passwords.
Because it involves a third party and makes thing even more complicated than it should be. It is a waste of time and could be money (process fees). The plaintiff is the one who wants to use it for the suit, why not simply give the real sources. Over complicate a process often times is not a good solution but cost more on both time and money.
The DEFENDANT is the one that wants the info. They're claiming that on the internets you can find the plaintiffs:
Wearing a shirt with the word CUNT on it (one plaintiff claims the word cunt was used around her or in reference to her, and that that offends her and she needs lots of money for it)
Discussing their financial situation after being fired
Discussing their job prospects after being fired
Discussing their interactions with the defendants
Discussing the suit in general
Passwords must be given (just change it to something random and hand it to the court) so the court can appoint a reviewer to select which info is pertinent to the case. The reviewer then hands it off to the owner of the account (the plaintiffs) and they block/redact any info they say is private or unrelated. The reviewer then presents the evidence to the court (both plaintiff and defendant) and tells the judge if he thinks the owner of the account chose to block / redact any pertinent information.
Actually, if you look at actual cases, it isn't a 'classical assumption' when it comes to sexual harassment suits. They tend to be a significant uphill battle with a lot of 'she is just sensitive, she is just selective, she is just taking advantage of the law' stuff thrown in.. it has disturbing similiarities to the arguments brought up to discredit rape victims.. including the BS 'but she uses that language' argument (which they seem to be fishing for here) since that is just a recasting of one of the common defenses against rape allegations.. 'well, she was a loose woman who slept around', as if somehow because she does something privately it means someone doing it to her non-consentually is ok.
You should RTFA.
One plaintiff is suing because of the word cunt. She can be seen wearing a shirt with the word cunt on it.
Various plaintiffs are suing because they were fired and can't find employment. There are messages sent between them indicating they actualyl had job offers.
There are also messages between the plaintiffs detailing their interactions with the defendants, their plans to sue, etc.
This isn't victim blaming, it's bog standard evidence discovery.
Mod parents up - both posts are soooo insightful!!
Fuck me, I agree - used to able to engage in a argument on slashdot - not so much anymore - I am finally starting to see why so many say they no longer even read here. Yes, I'm stupid for hanging around.
But just in case any of you R-turds get the notion, could you argue against any of the points? or does lack thereof speak to the arguments?
slashdot troll = you make a compelling argument I do not like the implications of.
Rather than demanding the password from the customer, the judge should either order the parties to hand over all relevant information to the court, or if they are willing but unable to do so, order Facebook, etc. to preserve the account information for later review by a court-appointed official. The court should of course pay the service providers their actual costs of complying, then send the bill to the plaintiff. The plaintiff can then add the amount to the damages they are seeking.
While expedient, handing over passwords is a bad idea.
If I were Facebook and saw this, I would immediately find out whose accounts these were and disable access to the account on the grounds that "Facebook believes the account's password has been compromised or that its compromise is imminent." This will force the judge to talk to them.
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
Let's imagine for a moment that the crime (this is not a criminal case, but a civil one, but since you are talking about rape...) is theft by burglary or theft by robbery. It's say victim A has never been a victim before, but always kept his doors locked and his money and valuables concealed from view. Let's say victim B has also never been a victim before, but level locked his doors and was pretty flagrant about his valuables.
Neither victim "deserves" to be robbed or burglarized. No one is asserting that. But when one person takes more care than another to prevent a crime from happening to them, it weighs in on the whole case in terms of credibility.
Now transferring these same relative conditions to rape victims, you can begin to see why some victims might have their behavior weighed in with the evidence. And this isn't only the case in criminal cases, but also in the case of insurace. Did you know you can save money on your car insurance by having additional security and safety features on your car? There's a reason for that. It's about factoring risk in with the equation.
Where you want to claim "victim blaming" I suggest it has more with creating an objective picture.
Also, I have to object to your comparing workplace harassment with criminal rape. It's a misplaced and extreme comparison. It certainly illustrates how extreme you are willing to be when attempting to make an argument.
Passwords must be given (just change it to something random and hand it to the court) so the court can appoint a reviewer to select which info is pertinent to the case. The reviewer then hands it off to the owner of the account (the plaintiffs) and they block/redact any info they say is private or unrelated. The reviewer then presents the evidence to the court (both plaintiff and defendant) and tells the judge if he thinks the owner of the account chose to block / redact any pertinent information.
The more normal process is for the attorney of the party requested to provide the data to sift through the mass of potentially relevant information and to extract what needs to be disclosed, redacting anything that isn't relevant to the questions at hand. The attorney's duty to the court ensures that all relevant information is provided, and the attorney's duty to the client ensures that nothing else is.
Note to ACs: I usually delete AC replies without reading them. If you want to talk to me, log in.
Facebook will have a say when she hands over the password, then Facebook blocks the password because of "Too many simultaneous logins" or logins from unusual locations.
Then they will have to get access to her email account to be able to perform the password reset, which depending on the provider might lead to the same sort of issues.
Interesting, my interpretation was different.
She's claimed abuse, yet perpetrates that abuse herself.
She's claimed harrassment, yet has engaged in that behaviour.
She's claimed loss, yet has stated she's benefited.
It doesn't seem inappropriate that the court would seek clarity on these matters.
I'd rather they demanded "all material" than passwords, and it would also make more sense: I don't know where the cellphone I owned in 2009 _is_, and I did a factory reset on it before I stopped using it. So it has no text messages, no email, etc. on it; giving it to the court is futile.
You cant?
"God damm it, I am broke, and cant find a job guess I should sue my former employer"
You have 5 Moderator Points!
Which Helpless Linux zealot/MS basher do you want to mod down today?