So I ran across this article a week ago, and I’ve been stewing on what it means, both as an attorney and as a facebook user…. and it leaves me asking the question:
What do you think your rights are when it comes to “private” facebook posts? “Private” meaning that you have them selected as “friends only”.
So here’s the story…
Judge Grants Discovery of Postings on Social Media: Link
Plaintiff must give defendant access to private postings from Facebook and MySpace that could contradict personal injury action claims
Acting Justice Jeffrey Arlen Spinner (See Profile) of New York’s Suffolk County Supreme Court held that precluding defendant Steelcase Inc. from accessing Kathleen Romano’s private postings on Facebook and MySpace “not only would go against the liberal discovery policies of New York favoring pretrial disclosure, but would condone Plaintiff’s attempt to hide relevant information behind self-regulated privacy settings.”
The judge continued, “In light of the fact that the public portions of Plaintiff’s social networking sites contain material that is contrary to her claims and deposition testimony, there is a reasonable likelihood that the private portions of her sites may contain further evidence such as information with regard to her activities and enjoyment of life, all of which are material and relevant to the defense of this action.”
In 2003, Romano fell off an allegedly defective desk chair while working at Stony Brook University. Claiming she sustained “serious permanent personal injuries” and had to undergo multiple surgeries, she sued Steelcase Inc., the manufacturer of the chair, and the chair’s alleged distributor, Educational & Institutional Cooperative Services Inc.
Among other things, she maintained that she had herniated discs, restricted motion in her neck and back, and “pain and progressive deterioration with consequential loss of enjoyment of life.”
However, Steelcase said in court papers that Romano’s claims were belied by public portions of her Facebook and MySpace profiles, which “reveal[ed] that she has an active lifestyle and can travel and apparently engages in many other physical activities inconsistent with her claims in this litigation.”
For example, Steelcase said Romano’s public profile on Facebook depicted her “smiling happily in a photograph outside the confines of her home despite her claim that she … is largely confined to her house and bed.”
Steelcase subsequently served Romano with a notice for discovery requesting “authorizations to obtain full access to and copies of Plaintiff’s current and historical records/information on her Facebook and MySpace accounts.”
After she refused to provide this information, Steelcase moved by order to show cause to obtain access to Romano’s accounts.
(There’s more to the article, so feel free to follow the link to read it all.)
And here’s what I’ve been thinking:
The plaintiff in this case is attempting to keep secret from the defense some amount of information that they posted on Facebook. The argument is that the postings were made with an expectation of privacy; the settings of the plaintiff’s Facebook only allow a restricted number of people to view the information. (Later in the article, she is also arguing trying to protect her information because getting access to *all* of the information would necessarily include irrelevant information, and having such information revealed would be “harassing and intimidating”. Both good points – but no one likes having their information rummaged through to find the truth you’re attempting to hide, or to find evidence against the case your trying to build, so that’s another story entirely.)
However, because the information is relevant to the case, and because the New York laws on discovery of information are “liberal” – the defense has argued that they have a right to see the information. What this means is that they will have evidence from the plaintiff’s own “mouth” regarding some aspect of the case.
So with that in mind, let’s take a moment to understand privacy for the courts. Privacy, in it’s most sacred sense for the court, is that between two groups: 1) married couples (in order to maintain the stability of a marriage, which is good for society) and 2) professionals and their clients. In this case, between lawyers and their clients when speaking about the case. The idea is that in order of the lawyer to do their job properly, they must be able to maintain the utmost confidence that words spoken by their client are heard by no one other than the attorney (and relevant aides). One of the first things to destroy this confidentiality is to have “someone else” in the room. That someone else could be a spouse, a parent, or a friend and witness to the events. (My favorite example is that when a parent is bringing a suit on behalf of their child, the child and the attorney must talk in private, and the parent cannot be in the room – or the confidentiality is broken).
That being said, when you look at what the Plaintiff wants to protect – statements related to the case that he made under “self-regulated privacy” on a social media network – the shield of privacy is rather flimsy. Not only are you broadcasting information to your friends, but the legal expectation of the privacy of that information is zero to none. If you wouldn’t post pictures of yourself drinking because you know that potential employers will search the site, why would you post arguably damning information about a law suit you’re current involved in?
At this point, if you haven’t realized that anything you post on the internet, “private” or not, isn’t open to public consumption – then you have other problems.
But this one is certain: The warning from the courts (like the one in this article) is clear. Lawyers, especially young attorneys like myself, are savvy to the internet – and if you post information related to something “private”, then it’s only reasonable that we search for that information in fulfillment of our client advocacy. Now, while it remains unethical to be-friend you under false pretenses in order to gain the information* Link , it is certainly possible to get the information through discovery under a common-sense argument: If it was really that private, then they wouldn’t have posted it on Facebook.
Just Saying, Esq.
And just as an afterthought, since I was trying to focus on an expectation of privacy, Facebook was also claiming that they couldn’t provide the information, because:
Producing Romano’s profile without her consent violates the federal Stored Communications Act, which bars Facebook from “producing a non-consenting subscriber’s communications even when those communications are sought pursuant to a court order or subpoena,” Facebook argued in court papers.
This I would be interested in, because gaining access to information stored online is a serious issue to pay attention to. We all have an expectation that in order to violate our privacy, anyone coming after it will have to go through getting a subpoena/etc. to access it. In fact, the opposite is becoming more true as some copyright-infringement bullies are making deals with or convincing ISPs that such information is best turned over voluntarily.
This is one of the goals of the proponents of a bill being shelved, momentarily, in our governmental process. It’s called “The Combating Online Infringement and Counterfeits Act (COICA)”. While being shelved, they are asking those who would be effected to voluntarily block websites “known” for “copyright infringement” – and completely bypassing due process and blindsiding net-neutrality.
For more information, check out the link: https://www.eff.org/coica . I should be posting more about this bill, and it’s potential effects, soon.
(c) Nicole L. M. Jurkowski 2010