Anita Ramasastry’s article posted Wednesday on Facebook and MySpace Postings pointed out two cases that highlight a schism in the U.S. court system over the handling of the admissibility of comments, pictures and other information hosted on social-networking sites.
The first is a New York court decision wherein the court reached the determination that comments and posts across social networking Websites are not protected under the SCA because such social networking communications are not ‘private communications.’
The federal Stored Communications Act (SCA) acts as congressionally created bar to limit the U.S. government’s ability to compel Internet Service Providers (ISP) to “disclose information in their possession about their customers and subscribers.”
New York Court Finds No Reasonable Expectation of Privacy in "Private" Facebook and MySpace Postings;
In the New York lawsuit between plaintiff Kathleen Romano and defendant Steelcase, Inc. (the manufacturer of office chairs, founded in Grand Rapids, Michigan in 1912 and assumed its current name in 1954), over injuries and loss of enjoyment of life suffered by Romano as a result of her Steelcase chair collapsing during the normal course of carrying out her clerical duties.
To counter Romano’s allegations, Steelcase sought to introduce evidence from her MySpace and Facebook profiles. Steel case contended that this evidence depicted trips to Florida and Pennsylvania and that demonstrated that Romano was still able to enjoy her life.
The New York court ultimately granted Steelcase's motion to compel production of this evidence, on the ground that the information contained in Romano's social- network postings was "material and necessary" to the case, and was not legally shielded by Romano's own use of self-selected privacy settings .
In reaching its finding that users’ reasonable expectation of privacy on social media Websites like Facebook and MySpace was merely “wishful thinking,” the New York court examined whether the use of privacy settings on sites such as Facebook and MySpace gives Internet users a reasonable expectation of privacy in their social-networking postings.
To aid in its determination, the court relied on precedents interpreting the Fourth Amendment and ultimately came to the determination that users had no reasonable expectation of privacy.
The second case (California)
Reaching a different decision than the New York court, a California court recognized users’ privacy on content on social networking Websites;
In the California case, plaintiff Buckley Crispin brought suit against Christian Audigier, an apparel company, for breach of contract claims for exceeding the scope of his licensing agreement.
To counter, Audigier sought to issue subpoenas to MySpace, Facebook and two other social network Websites seeking communications made by Crispin about Audigier.
The initial ruling by the magistrate judge held that the communications should be admitted. However, later at the appellate court level another judge held that the communications should be protected under the SCA.
Persuasive to the court of appeals the judge pointed out that social messaging and e-mail services offered by networking sites were intended by the legislature to be covered by the SCA. The appellate judge added that;
“Facebook wall postings and the MySpace comments are not strictly ‘public,' but are accessible only to those users plaintiff selects."
Ramasastry clarified this point in her article;
“Thus, only if Crispin had set his Facebook wall to allow viewing by "everyone" would his postings have been deemed truly public in the eyes of the California court. If Crispin's setting were "Friends Only," his status updates would be considered as private as an email message.”
“The Right Approach May Stake Out Some Middle Ground. . . . On the issue of the discovery of social-networking site postings, there may be a middle ground -- or a sliding scale. Perhaps "Friends Only" postings can be considered private, but not "Friends of Friends" postings, for example.
Perhaps courts could presume that postings are public (and thus discoverable), but parties could seek to rebut that presumption, based upon the manner and way in which a given posting was restricted or shared.
Clearly, a posting on a social-networking site is not as private as an email. Yet social-networking sites do allow information to be shared exclusively with a limited class of people -- including only friends and family. In so doing, they do offer a limited form of privacy. Courts may eventually realize as much.
For now, however, social-networking users are best advised to assume conservatively that, if they are ever caught up in a lawsuit, their postings will be deemed public for purposes of discovery, could be used by the opposition, and could even be made public in a courtroom someday.”