The Pew Internet and American Life Project reported that, as of November 2008, 37% of American adults use online social networks. In the last two years, this number increased greatly.
This trend has led criminal prosecutors and civil litigators to seek online messages in lawsuits. It has been the law that emails relevant to litigation are discoverable. Are Facebook posts different?
Facebook posts were recently relied on to arrest and charge three college students for serving alcohol to minors who were killed in a car as they left the party. http://www.lansingstatejournal.com/article/20110208/NEWS01/302080009/3-charged-providing-alcohol-Holt-teens-killed-Meridian-Township-crash
Facebook steadfastly opposes subpoenas served by parties in civil suits seeking subscriber information or postings. This is because Facebook has a duty to protect account holders privacy by opposing disclosure in this fashion. The Stored 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. P 2702(b)(3). This is why the cell phone company resisted giving up former Mayor Kwame Kilpatricks Skytel text messages to his former Chief of Staff, and lover, sent during the time he was performing City business. The City held the rights to consent to the disclosure of the text messages and gave its consent and this meant Skytel had a duty to release them. Flagg v City of Detroit, 252 F.R.D. 346, 352 (ED Mich 2008). Those posts were discoverable also because they were relevant to investigation of criminal wrongdoing.
Employers can be expected to subpoena text messages, Twitter postings and Facebook posts made by employees who use them at the workplace and later sue their employer. To the extent the posts were made during work time, the employer can argue the right to privacy is lost.
The idea of obtaining private social networking messages sent by a party to a civil lawsuit from a third party or from their employer has become a hotly litigated issues. For an interesting law review on this approach, see Aaron Blank, Comment: on the Precipe of E-discovery: Can Litigants Obtain Employee Social Networking Web Site Information Through Employers?, 18 CommLaw Conspectus 487 (2010) (The Catholic University of America CommLaw Conspectus).
The initial question in seeking to block disclosure of Facebook posts would be are they private and privileged? In civil cases, some courts have enforced subpoenas to allow parties to obtain Facebook wall postings by finding the information is relevant and not subject to any privilege. One rationale the Courts give when requiring production of Facebook posts in discovery is that the person lost any expectation of privacy when they sent the post.
Other Courts have denied enforcement of subpoena seeking Facebook wall posts. These Courts have refused to enforce subpoenas for Facebook posts and MySpace comments on the basis of finding these posts are not strictly “public,” but rather are accessible to just a few users. These Courts find that the poster retains an expectation of privacy among users.
There is no Michigan state court decision of federal decision in the Sixth Circuit resolving the privacy issue as of now.
Once the privacy hurdle is overcome, those seeking Facebook or Myspace comments will not have an unfettered right to discovery any and all messages. They will not be allowed to go on a fishing expedition; rather, they have to show the posts they seek are material and relevant. Prior to releasing posts, the judge likely will review them in camera to decide which are material. Mackelprang v. Fidelity National Title Agency of Nevada, Inc., No. 2:06-cv-00788-JCM-GWF, 2007 WL 119149, *1, *1 (D. Nev. Jan. 9, 2007).
Until the privacy and materiality issues are resolved, lawyers representing a party in civil cases, or in a divorce or in a criminal case, should advise their client (and family and friends of the client) to refrain from posting anything on Facebook, MySpace, Twitter or other social networking sites about their pending case. Clients should be advised not to post at work. They should be told that posts made on accounts owned or controlled by another may be subject to disclosure as well.
Moreover, until the right to discovery of this online information is clarified, those seeking this information will have to be persistent, willing to jump through procedural hoops and creative. The cost will often be too great. A subpoena could be issued to a Facebook friend of one posting a message and, if that person does not object, the posting can be obtained.
Stay tuned for future blog posts on the intersection of the law and social networking sites. Future posts will include:
(1) what to do when a judge in town “friends” you on Facebook, and
(2) what if a jury posts to their Facebook Wall about a trial in which they are sitting a s juror,
(3) are Facebook messages by spouse discoverable in divorce case to prove he/she had an affair?